Crl.Appeal Nos.733 and 734 of 2006

Crl.Appeal Nos.733 and 734 of 2006 1 2025:KER:26714 **==> picture [58 x 57] intentionally omitted <==** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 1[ST] DAY OF APRIL 2025 / 11TH CHAITHRA, 1947** ## **CRL.A NO. 733 OF 2006** **AGAINST THE JUDGMENT DATED 07.09.2005 IN SC NO.185 OF 2005 OF SPECIAL COURT (NDPS ACT CASES), THIRUVANANTHAPURAM.** ## **APPELLANT/COMPLAINANT:** **INTELLIGENCE OFFICER, NCB, RIU, TRIVANDRUM.** **BY ADV R.VINU RAJ, SPL. P. P. NARCOTICS CONTROL BUREAU** ## **RESPONDENT/ACCUSED NO.5:** **SULFIKAR @ ALIYAS SULFI, AGED 28 YEARS, R/O. AZHEEM MANZIL, KUNNATHUKOPPAM, NEDUMANGAD.** **BY ADV D.KISHORE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **26.03.2025, ALONG WITH CRL.A.734/2006, THE COURT ON 01.04.2025 DELIVERED THE FOLLOWING:** Crl.Appeal Nos.733 and 734 of 2006 2 2025:KER:26714 **==> picture [58 x 57] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 1[ST] DAY OF APRIL 2025 / 11TH CHAITHRA, 1947** ## **CRL.A NO. 734 OF 2006** **AGAINST THE JUDGMENT DATED 07.09.2005 IN SC NO.185 OF 2005 OF SPECIAL COURT (NDPS ACT CASES), THIRUVANANTHAPURAM.** ## **APPELLANT/COMPLAINANT:** **INTAELLIGENCE OFFICER, NCB, RIU, TRIVANDRUM.** **BY ADV R.VINU RAJ, SPL. P. P. NARCOTICS CONTROL BUREAU** ## **RESPONDENT/ACCUSED NO.1:** **IBRAMSHA AGED 50 YEARS, S/O.LATE RAJAK, R/O. NO.6, VELAYUDHAN STREET, KAMARAJ NAGAR, HARIYAMANGALAM, TANJORE ROAD, TRICHY-8, TAMIL NADU.** **ADV.SREELAKSHMI SABU, STATE BRIEF.** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.03.2025, ALONG WITH CRL.A.733/2006, THE COURT ON 01.04.2025 DELIVERED THE FOLLOWING:** Crl.Appeal Nos.733 and 734 of 2006 3 2025:KER:26714 **==> picture [58 x 57] intentionally omitted <==** ## **C.S.SUDHA, J.** **--------------------------------------------Crl.Appeal Nos.733 and 734 of 2006 --------------------------------------------Dated this the 1st day of April 2025** ## **J U D G M E N T** Crl.Appeal No.733/2006 filed under Section 378(2) Cr.P.C., the appellant, who is the complainant in S.C.No.185/2005, namely, the Intelligence Officer, Narcotic Control Bureau (NCB), RIU, Thiruvananthapuram, on the file of the Special Judge for trial of cases under the NDPS Act Cases, Thiruvananthapuram, challenges the acquittal of the fifth accused for the offence punishable under Section 8C read with Section 21(c), 23(c), 25, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act). Crl.Appeal No.734/2006 under Section 377(2) Cr.P.C., has also been filed by the complainant in the aforesaid case seeking enhancement of the sentence of the first accused in the case. 2. The prosecution case is as follows - on Crl.Appeal Nos.733 and 734 of 2006 4 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:26714 27/09/2004 at about 06:00 p.m., PW1, the Intelligence Officer attached to the Revenue Intelligence Unit, NCB, Thiruvananthapuram, received secret information that A2 Ajmal from Chennai; A3 Badusha from Nedumangad and A4 Meeran from Ramanadu in Tamilnadu have conspired to procure about 300 grams of heroin for the purpose of exporting the same to Maldives through a carrier by concealment in his body in the form of capsules. The information which PW1 got was that the drug would be carried by A1 Ibramsha from Trichi in his abdomen and that he would reach the International Airport at Thiruvananthapuram for his onward journey to Maldives on 28/09/2004 by Indian Airlines flight. Accordingly, the officials of NCB kept surveillance at the airport and at about 09:30 a.m., A1 arrived at the Airport. The officials approached A1 and on questioning he admitted the carriage of drugs in his abdomen in the form of capsules. He was taken to the Medical College Hospital, Thiruvananthapuram to retrieve the swallowed capsules. X-ray was taken and the carriage of drugs in the abdomen in the form of capsules was confirmed. Medicines were administered to Crl.Appeal Nos.733 and 734 of 2006 5 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:26714 A1 for the purpose of evacuating the capsules and accordingly as many as 64 capsules were recovered from his stools. The contents of all the 64 capsules were separated. The content weighed 255 grams. Using the field drug detection kit, the officials tested the drug and confirmed that it was heroin. A1 was discharged from the hospital and his statement under Section 67 of the Act was recorded as per which he confessed that he had been lured by the other accused in the case for carrying of drugs to Maldives. A1 was arrested on 28/09/2004. 3. The confession by A1 revealed the involvement of A5 Sulficar in the criminal conspiracy relating to drug trafficking. Accordingly, A5 was summoned to the office of the NCB on 29/09/2024 and his statement under Section 67 of the Act recorded. A5 also admitted his involvement in the criminal conspiracy and hence he was placed under arrest on 30/09/2004. The investigation conducted revealed the involvement of A1 to A5 in the crime and hence final report was filed alleging the commission of the offences punishable under Sections 21(c), 23(c), 28 and 29 of the Act. Crl.Appeal Nos.733 and 734 of 2006 6 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:26714 3.1. A2 to A4 were reported to be absconding and hence could not be arrested or produced before the trial court. The first and the fifth accused were in custody since the date of their arrest and hence the trial court proceeded with the trial of the case against them. After complying with the necessary formalities contemplated under Section 207 Cr.P.C., the trial court framed a charge against the first accused under Sections 21(c), 28 and 29 of the Act and under Sections 28 and 29 of the Act against the fifth accused, which was read over and explained to the accused persons to which they pleaded not guilty. 4. On behalf of the prosecution, PW1 to PW9 were examined and Exts.P1 to P27 and MO.1 to MO.8 were marked. After the close of the prosecution evidence, the first and the fifth accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. A1 and A5 denied those circumstances and maintained their innocence. A1 admitted his arrest by the NCB officials at the International Airport, Thiruvananthapuram on 27/09/2004 and the evacuation of 64 Crl.Appeal Nos.733 and 734 of 2006 7 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:26714 capsules from his abdomen at the Medical college hospital, Thiruvananthapuram. However, he denied having given any voluntary statement to the officials of NCB under Section 67 of the Act. A1 submitted that he was completely unaware of the contents of the capsules which he was made to swallow by others. He swallowed the capsules as he was made to believe that they contained diamonds. He further stated that he was running a teashop and that he was offered a sum of ₹15,000/- and an air-ticket to Maldives for the carriage of the capsules in his abdomen. It is also his case that he had signed the statement under Section 67 of the Act under threat by the NCB officials. A5 stated that he was summoned to the NCB office at Thiruvananthapuram, where he was manhandled by the officials and made to sign a statement. According to him, he has no involvement whatsoever in the crime. He also submitted that while he was in judicial custody, he filed a statement retracting the confession that he is alleged to have given to the NCB officials. 5. As the trial court did not find it a fit case to acquit the accused persons under Section 232 Cr.P.C., they were Crl.Appeal Nos.733 and 734 of 2006 8 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:26714 asked to enter on their defence and adduce evidence in support thereof. No oral evidence was adduced by the accused persons. The retracted confession statement of A5 has been marked as Ext.D1. 6. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court did not find any evidence to find A5 guilty of the offences punishable under Sections 28 and 29 of the Act and hence he was acquitted under Section 235(1) Cr.P.C. However, A1 has been found guilty of the offence punishable under Sections 21(b) of the Act and hence he has been sentenced to rigorous imprisonment for a period of 5 years and to a fine of ₹25,000/- and in default, to rigorous imprisonment for six months. Set off under Section 428 Cr.P.C. has been granted. The case against A2 to A4 was split up and refiled as S.C.No.1013/2005. Aggrieved, the complainant has come up in appeal. 7. The points that arise for consideration in this appeal are - (i) Whether there is any infirmity in the finding of acquittal of appellant/A5 in Crl.A.No.733/2006 by the trial court ? Crl.Appeal Nos.733 and 734 of 2006 9 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:26714 (ii) Whether the sentence imposed on the appellant/A1 in Crl.Appeal No.734/2006 is liable to be enhanced ? 8. Heard both sides. 9. The prosecution relies on the confession statement of A5 to find him guilty of the offence alleged against him. In the light of the dictum in **Tofan Singh v. State of Tamil Nadu, (2021)4 SCC 1 : 2020(6) KHC 111** , the confession statement is inadmissible in evidence. In the said decision it has been held that the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” coming within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under Section 25 of the Evidence Act, and hence cannot be taken into account in order to convict an accused for an offence under the NDPS Act. That being the position, there is no infirmity in the findings of the trial court. Hence Crl.Appeal No.733/2006 is liable to be dismissed. 10. The appellant/complainant in Crl.Appeal No.734/2006 is aggrieved by the finding of the trial court that the Crl.Appeal Nos.733 and 734 of 2006 10 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:26714 prosecution failed to establish that the contraband seized from the appellant was commercial quantity. A1 was found guilty for possession of contraband of intermediate quantity and hence a sentence of five years has been imposed. The trial court in paragraph no.17 of the impugned judgment refers to the reason why the prosecution case that the appellant/A1 was in possession of 250 gms, was not accepted. The trial court found that the materials on record showed that the weight taken by the NCB officials of the contraband was not foolproof. The possibility of the contraband weighing less than 250 gms could not be ruled out. In the said circumstances it was concluded that the prosecution was able to succeed in only proving the offence punishable under Section 21(b) of the Act by A1. On going through the testimony of PW1, the detecting officer, and the other material prosecution witnesses in whose presence the contraband had been weighed, it appears that the evidence regarding the actual weight or the accurate weight has not come on record. A reading of the testimony shows that the possibility of variation in the total weight cannot be ruled out. The Act provides for stiff sentences. Crl.Appeal Nos.733 and 734 of 2006 11 2025:KER:26714 **==> picture [58 x 57] intentionally omitted <==** Stiffer the sentence, stiffer is the proof required. This test has not been satisfied in this case by the prosecution and hence I find no infirmity in the findings of the trial court. In the result, both the appeals are dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** Jms