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Judgment
M. Karpagavinayagam, J.—K. Mani (A1), the Appellant herein, was charged for the offences u/s 8(c) read with 21, 22, 25 and 29 of the
N.D.P.S. Act along with another (A2). A2 was acquitted by the trial Court. The Appellant (A1) was also acquitted in respect of the charge u/s 29
of the Act, but he was convicted for the offences under Sections 8(c) read with 21, 22 and 25 of the Act and sentenced to undergo R.I. for 10
years and to pay a fine of Rs. 1,00,000/-. Challenging the same, the Appellant has filed this appeal.
The case of the prosecution in brief is this:
(a) The Appellant is a taxi driver in Chennai. He used to park his taxi outside Savera Hotel. The second accused Basheer Patel, one Mohan
Reddy of Karurand one Singa Reddy used to frequently stay in the hotel and regularly used to engage the taxi of the Appellant. They wanted the
Appellant to give on rent a room for storing the contraband articles. Accordingly, the Appellant (A1) let out the room after receiving Rs. 5,000/- as
advance on a monthly rent of Rs. 500/-. Thereafter, the contraband articles were kept in the said room, which situate in the ground floor of the
house premises of the Appellant.
(b) On receipt of information, on 19.8.1993, P.W. 1 Intelligence Officer, after obtaining the search warrant from the Assistant Collector of
Custom, searched the house of the Appellant between 4.30 p.m. and 8.30 p.m. in the presence of the Appellant. When the locked room in the
ground floor was opened, the Officers found 13 carton boxes. On opening the same, it was found to contain suspected mandarax tablets.
(c) Then, the Appellant was taken to the Customs Office and two statements were obtained from the Appellant on 19.8.1993 and 20.8.1993.
They are Exs.P-4 and P-5. Thereafter, he was arrested for the offences u/s 8(c) read with 21, 22 and 25 of the N.D.P.S. Act.
(d) In the confession statements, the Appellant stated that he let out the room in the ground floor to one Mohan Reddy and Singa Reddy for
keeping the tablets in the said room. He also implicated one Basheer Patel (A2) of Bombay. On the basis of this information, the residence of
Basheer Patel (A2) was searched. Though some documents were recovered, no contraband was recovered in his house.
(e) Out of the 21 samples taken from the room belonging to the Appellant, 17 samples on analysis, were found to contain methaquilone and the
other 4 samples, on analysis through some other laboratory, would contain paracetamol After finishing investigation, the complaint was filed against
both the Appellant(A1) and Basheer Patel (A2) of Bombay before the Special Court.
In the trial Court, on behalf of the prosecution, P.Ws. 1 to 4 were examined, Exs.P-1 to P-16 were filed and M.Os. 1 to 16 were marked.
When the accused were questioned, they pleaded innocence.
After analyzing the evidence available on record, the trial Court convicted the Appellant (A1) alone and acquitted the other accused. As noticed
earlier, the Appellant was acquitted in respect of the charge of conspiracy.
Challenging the said conviction and sentence, Mr. B. Kumar, the learned senior counsel appearing for the Appellant, would argue at length
raising several grounds including violation of some of the mandatory provisions.
Mr. P.N. Prakash, the learned Special Public Prosecutor appearing for the Respondent, also was heard at length.
On going through the records and on considering the submissions of the learned Counsel for the parties, I am of the opinion that this Court need
not deal with various grounds urged by the learned senior counsel for the Appellant, since this appeal has to be allowed on a short point.
According to the learned senior counsel for the Appellant, the charge is framed for the offences u/s 8(c) read with 21 and 25 of the Act and as
the ingredients of Sections 25 and 8(c) of the Act are mutually exclusive, the trial in respect of both the charges and the conclusion of the trial
Court convicting the Appellant for both the offences is unsustainable.
On the other hand, in refuting the said contention, it is contended by the learned Special Public Prosecutor appearing for the Respondent that the
case of the prosecution is that both these charges can co-exist, as the contraband was kept in the room belonging to the Appellant, who let out the
premises to the other accused knowingly and as such, there is no wrong to conclude that both the offences, namely, Sections 8(c) and 25 of the
Act, are made out.
According to the prosecution, the locked room was let out by the Appellant to the other accused on receipt of advance of Rs. 5,000/- on a
monthly rent of Rs. 500/-.
u/s 25 of the Act, whoever being the owner of the building knowingly permits it to be used for commission by any other person of an offence
under any provision of the Act shall be punishable. So, the main ingredient of the offence u/s 25 of the Act lies in knowingly permitting use of the
place for the commission of any offence under the Act.
No doubt, u/s 35 of the Act, the Court shall presume culpable mental state of the accused in any prosecution for an offence under the Act.
But, in a case u/s 25 of the Act, it is for the prosecution to establish that the owner of the room knowingly permitted the room to be used for the
commission of an offence under the Act. As such, the expression ''knowingly'' has to be given due weight.
When the Legislature has employed the word ''knowingly'' in Section 25 of the Act, it has to be held that so far as the offence u/s 25 of the Act
is concerned, it is for the prosecution to establish the knowledge that the place was used for the commission of the offence. The word ''knowingly''
is obviously more forcible than the words ""has reason to believe"" because they insist on a greater degree of certainty and certitude in the mind of
the person, who is said to know or to do the act knowingly.
In this case both the Appellant (A1) and A2 have been acquitted in respect of the charge of conspiracy. So, the main offence for which the
Appellant was convicted is u/s 25 of the Act.
The only material available in the prosecution case to show that the Petitioner knowingly permitted the other accused to keep the contraband
drugs in the room by letting out the same is Ex.P-4 confession statement of the Appellant.
Admittedly, the search was conducted in the said room on 19.8.1993 between 4.30 p.m. and 8.30 p.m. in the presence of the Appellant.
Thereafter, he was taken to the Customs office and Ex.P-4 confession statement was obtained on the night of 19.8.1993 in which he stated that he
let out the room in the ground floor to the other accused for keeping the contraband on rental basis. However, the arrest was not shown, even
though in Ex.P-4 confession statement he mentioned about his knowledge.
On the other hand, the Appellant was detained in custody and again Ex.P-5 statement was obtained from him on 20.8.1993 implicating the
other accused. Ultimately, the arrest was shown only on 21.8.1993.
As noticed earlier, the first statement, Ex.P-4, itself would indicate the knowledge of the Appellant about the storage of the contraband drugs
in the room let out. But, the Officer concerned did not choose to arrest him immediately. But, the arrest was shown only on 21.8.1993.
Under those circumstances, the custody of the Appellant between 19.8.1993 evening and 21.8.1993 upto 12.00 noon cannot be said to be
legal and consequently, it has to be held that Exs.P-4 and P-5 statements of the Appellant mentioning about his knowledge of the storage of the
contraband in the room let out by the Appellant is not voluntary.
In this context, it has to be borne in mind that the other conspirators and culprits, who kept the contraband drug in the room let out to them by
the Appellant, were not brought to book. On the other hand, Basheer Patel (A2), another conspirator, has been acquitted. Against the said
acquittal, there is no appeal. Moreover, the confession statement of A2 also would not corroborate the statements of the Appellant with reference
to the letting out of the room for storing the contraband by the Appellant with the said knowledge.
This apart, the carton boxes containing the contraband drug were found securely tied and they have to be cut open. P.W.1 Intelligence Officer
as well as P.W. 4 Chemical Examiner would admit in cross-examination that no person can identify it as mandrax tablets by merely seeing it. In
Ex.P-4 confession statement, the Appellant had stated that the said carton boxes securely tied kept in the room let out to others were there for six
months.
In the light of the above factors, we cannot infer any knowledge of the Appellant in regard to the nature of the goods contained in the carton
boxes.
Considering the present facts and circumstances of the case, I am not able to find sufficient materials to hold the Appellant guilty for the
offences under Sections 8(c) read with 22 and 25 of the N.D.P.S. Act.
In the result, the appeal is allowed The conviction and sentence imposed upon the Appellant by the trial Court are set aside. The Appellant is
directed to be released forthwith, unless or otherwise he is required for any other case.