Crl.R.P.No.1041 of 2023

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 8[TH] DAY OF JANUARY 2024 / 18TH POUSHA, 1945** **CRL.REV.PET NO. 1041 OF 2023** **AGAINST THE ORDER DATED 05.08.2023 IN SC 1140/2022 OF THE** **SESSIONS COURT, ERNAKULAM** ## **REVISION PETITIONERS/ACCUSED 6,10,11,12,13,14,15,17,18 & 19:** - **1 ARUL MICHAEL RUBAN, AGED 32 YEARS** **S/O.SAKARIAS, H.H/NO.29/122 B2,KAMARAJ SALAI, COLACHEL, KALKULAM, KANNYAKUMARI DISTRICT, THAMILNADU,(ACCUSED NO :6), PIN – 629251.** - **2 RENNY,** **AGED 39 YEARS,** **S/O.THOMAS, 1044, NEW GOVERNMENT HOSPITAL, THOTHOOR, KANNYAKUMARI DISTRICT, THAMIL NADU, (ACCUSED NO :10), PIN – 629176.** - **3 STEPHEN, AGED 44 YEARS, S/O.FRANCIES, TSUNAMI COLONEY,POOTHURAI, KANNYAKUMARI DISTRICT, THAMIL NADU, (ACCUSED NO :11), PIN – 629176.** - **4 TITUS, AGED 53 YEARS, S/O.DASAN, 16/101E3.ST.THOMAS NAGAR, THOOTHOOR, KANNYAKUMARI DISTRICT. THAMIL NADU, (ACCUSED NO :12), PIN – 629176.** - **5 S.SOBAN, AGED 36 YEARS, S/O.SASSAIYAN, OLD NO.245B, NEW NO.111-10, VATTAVILAGAM, THOTHOOR, KANNYAKUMARI DISTRICT,THAMIL NADU (ACCUSED NO :13), PIN – 629176.** 2 Crl.R.P.No.1041 of 2023 **6 PRITHYU AGED 27 YEARS, S/O.PANIYADIMAI, ST.NICHOLA'S STREET, CHINNATHURAI, THOTHOOR, KANYAKUMARI, (ACCUSED NO :14), PIN – 629176.** - **7 PRAJIN F., AGED 31 YEARS, S/O.FRANCIES, ST.NICHOLA'S STREET, CHINNATHURAI, THOTHOOR,KANYAKUMARI, (ACCUSED NO :15), PIN – 629176.** - **8 VINEESH RAJ, AGED 22 YEARS, S/O.MARIYADAS, STEPHEN TEXTILES, KATTUVILAI,MARTHANDAM, VILAVOOR CODE,KANYAKUMARI, NOW RESIDING AT THENGAPATTANAM, PANAMKALMUKKU (ACCUSED NO :18), PIN – 629165.** **9 FRANCIS, AGED 56 YEARS, S/O.DASAN, OSAVILA COLONEY,KOTTAPURAM.(P.O), VIZHINJAM, TRIVANDRUM DISTRICT, KERALA,(ACCUSED NO :19), PIN – 695521.** **10 M.S.PREMKUMAR, AGED 28 YEARS, S/O P. MYLERUM PERUMAL, KURUVILAIKADU, IRAVIPUTHOORAKADAI KANYAKUMARI, (ACCUSED NO. 17), PIN – 629176.** **BY ADVS. LAL K.JOSEPH KOYA ARAFA MIRAGE P.MURALEEDHARAN (THURAVOOR) T.A.LUXY SURESH SUKUMAR ANZIL SALIM SANJAY SELLEN M.R.XAVIER JESS** 3 Crl.R.P.No.1041 of 2023 ## **RESPONDENTS/COMPLAINANTS:** - **1 STATE OF KERALA (UNION OF INDIA)* REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, DIRECTOR OF REVENUE INTELLIGENCE, KOCHI, PIN – 682025.** ***CORRECTED AS PER ORDER DATED 9.11.2023 IN CRL.M.A.2/2023 IN CRL.R.P.1041/2023)** - **2 INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, KOCHI, PIN – 682025.** **BY ADV SRI.MANU S., SC, DIRECTORATE OF REVENUE INTELLIGENCE** ## **OTHER PRESENT:** ## **SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 29.11.2023, THE COURT ON 08.01.2024** **DELIVERED THE FOLLOWING:** 4 Crl.R.P.No.1041 of 2023 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.R.P.No.1041 of 2023 ----------------------------------------------------------Dated this the 8[th] day of January, 2024** ## **O R D E R** The petitioners are accused Nos.6, 10, 11, 12, 13, 14, 15, 17, 18 and 19 in S.C.No.1140 of 2022 before the I Additional Sessions Judge, Ernakulam. There are 24 accused. The court below framed charge against accused No. 2 to 20 for offences punishable under Sections 21(c), 23(c), 25 and 28 read with 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The charge framed against accused Nos.1, 21, 22 and 23 is for the offences punishable under Sections 21(c), 23(c), 25, 28, 27A and 29 read with Section 8(c) of the NDPS Act. The petitioners filed this revision invoking the provisions of Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code) questioning correctness, legality and propriety of the charge framed against them. 5 Crl.R.P.No.1041 of 2023 2. Heard the learned counsel for the petitioners and the learned Standing Counsel for the Directorate of Revenue Intelligence. 3. 217.525 kgs. of heroin was seized from two fishing vessels, namely, Little Jesus and Prince on 21.05.2022. The contraband was in plastic sacks and kept concealed in the cold-room of the boats. The estimated cost of the contraband is Rs.1526 crores. Both vessels are registered with Indian authorities. The Coast Guard, on suspicion, intercepted the vessels and on inspection found the contraband concealed in the vessels. Accordingly, vessels were brought to Kochi and the sacks of contraband were seized by the Directorate of Revenue Intelligence(DRI) officials and all the accused were arrested. That resulted in initiation of the present case. Based on the report filed by the DRI, the Special Court (I Additional Sessions Judge), Ernakulam to which it was made over for trial, framed the charge on 05.08.2023. 4. The contentions of the petitioners are many-fold: The petitioners are the fishermen and went in the said boats 6 Crl.R.P.No.1041 of 2023 for fishing alone. They did not know anything regarding the plan and plot to import the contraband. It was accused Nos. 1 to 4, who brought the contraband in a canoe from High-Seas and the petitioners or other fishermen in the boats were not told about the contents of such sacks. Since they did not ever know that the seized sacks contained objectionable materials, they cannot be attributed with possession or intention to possess such articles. The petitioners are innocent. They are poor fishermen having families to be looked after. Since the petitioners are arrested and detained, members of their family, including children of tender age, are put to starvation. There is a threat of throwing them away on the streets since bank loans could not be paid by them. It is further contended that the court below did not consider the statements of the petitioners as well as the witnesses while framing charges. If such statements, including ones recorded under Section 67 of the NDPS Act were considered in its proper perspective, it could well be seen that the petitioners were innocent and no charge could have been framed against them. When they 7 Crl.R.P.No.1041 of 2023 were engaged as fishermen in the boats, they would only obey the directions of the master of the vessel. They did only the same. In such circumstances, the petitioners seek to set aside the charge that was framed against them and release them from custody. 5. The learned counsel for the petitioners, after referring to the statements of accused Nos.1 to 4 and also a few of the other accused recorded under Section 67 of the NDPS Act, would urge that knowledge of the contents of sacks brought by accused Nos.1 to 4 cannot be attributed to the petitioners. From the materials on record, it is seen that accused Nos.1 to 4 went in a canoe and brought the contraband. Bringing the contraband in nine sacks, six bags were stocked in the cold-room of the boat ‘Prince’ and three in the other. It is seen that accused Nos.1 to 4 went in the canoe after informing the others in the boats that they would bring big fish and ice. Highlighting the said facts, it is contended that till the Coast Guard personnel intercepted and the 1[st] accused revealed to them that the sacks loaded in the boats 8 Crl.R.P.No.1041 of 2023 contained contraband, none of the petitioners was aware about the contents of such sacks. Thus, two points are asserted by the learned counsel for the petitioners, namely, (i) the petitioners did not have any knowledge about the contents of the sacks stalked in the boats and therefore they did not have conscious possession of the contraband; and (ii) the statements of the accused recorded under Section 67 of the NDPS Act cannot be used at the trial as confession and avoiding such statements, there is absolutely no evidence to connect the petitioners with the alleged crime. 6. The learned Standing Counsel for the DRI pointed out that at the time when the Coast Guard intercepted the boats, no fish, except a few small ones, were there in the boats. Despite the boats being on sail for days together, there was no fish in the boats, which would prove that their intention was not fishing. It is submitted that all the petitioners were present in the boats at the time of interception and the subsequent seizure and arrest. From the circumstances evident from the statements of the officials and 9 Crl.R.P.No.1041 of 2023 also the independent witnesses, presence of accused Nos.5 to 20, among whom are the petitioners, in the boats is established. Therefore, it is contended that the petitioners cannot get absolved from the liability particularly, in the light of the provisions of Sections 35 and 54 of the NDPS Act. 7. To a specific query the learned Standing Counsel for the DRI submitted that the officers of the Directorate of Revenue Intelligence are invested with powers of investigation under Section 53 of the NDPS Act. If so, the confession recorded by such officers may not be relevant and is barred under Section 25 of the Evidence Act, as held by the Apex Court in **Tofan Singh v. State of Tamil Nadu [(2021) 4 SCC 1]** . But in this case, there is sufficient evidence to prove the presence of all the petitioners in the boats at the time of interception and subsequent seizure of the contraband. The materials on record reveal that there was no fish of worth noting in the boats, despite sailing for days together. When the Coast Guard officials interrogated, no one in the boats, initially, revealed about the presence of such bags in the 10 Crl.R.P.No.1041 of 2023 boats. Only after a stifling questioning the 1[st] accused revealed the presence of the Drugs in the boats. That assumes relevance while considering the question as to whether there is a _prima facie_ case for framing a charge against the petitioners. 8. In a fishing boat ordinarily such sacks would not be stalked. From the statements of the accused and other materials it could be seen that the petitioners were also aware of the presence of such sacks in the boats. It is seen that they also did not initially reveal to the Coast Guard officials about the said sacks. In such circumstances, the contention of the learned counsel for the petitioners that these petitioners did not have any knowledge about the contents of sacks stalked in the boats cannot be accepted at this stage. Their further contention that the sacks were in the canoe at the time when the Coast Guard officials intercepted is not supported by any material. The prosecution materials show that the contraband was in the cold-room of the boats. Hence, I am of the view that at this 11 Crl.R.P.No.1041 of 2023 stage, it cannot be said that there is absolutely no material to find even _prima facie_ that the petitioners were not conscious of the possession of the contraband, which was stalked in the boats, where they were members of the crew. 9. The learned counsel for the petitioners placed reliance on a few decisions in order to fortify his contention that conscious possession of the contraband could not be attributed to them and therefore they cannot be saddled with the charge of possessing the contraband. The decisions are,- **Anandam Gundluru v. Inspector of Police, NCB/MDS, Chennai [MANU/TN/6607/2022], Avtar Singh and others v. State of Punjab [(2002) 7 SCC 419], Sorabkhan Gandhkhan Pathan and another v. State of Gujarat [(2004) 13 SCC 608], Kishore Bira v. State of Odisha [2022 (3) Crimes 95 (Ori.)], Peter Robertson Cowan v. State [31 (1987) DLT 305 : MANU/DE/ 0525/1987], Mukbul Ali v. Emperor [1920 SCC OnLine Cal.315]** and **State of Rajasthan v. Bhagirath [MANU/ RH/0516/1990]** . 12 Crl.R.P.No.1041 of 2023 10. Except **Kishore Bira** (supra) in all the aforesaid decisions the matters involved were challenge to conviction and sentence of the respective accused. The criteria to decide criminality of the accused after trial shall not be applied while considering the question whether a charge is liable to be framed against the accused. In **Kishore Bira** (supra) the question was plea for bail. The consideration for deciding whether or not an accused could be granted bail cannot be the parameters for deciding whether a charge is liable to be framed against an accused. Therefore, the principles laid down in the aforesaid decisions cannot be acted upon to appreciate the contentions of the petitioners in support of their plea for discharge. 11. In **State of Bihar v. Ramesh Singh [AIR 1977** **SC 2018]** the Apex Court held that at the stage of framing charge, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage, the truth, veracity and effect of the evidence, which the prosecution proposes to adduce, are not to be meticulously judged. It is also 13 Crl.R.P.No.1041 of 2023 unnecessary to weigh the probable defence of the accused. The view taken by the Apex Court in **Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and another [(1989)** **1 SCC 715]** is that the court need not conduct an elaborate enquiry in sifting and weighing of the evidence at the time of framing charge. It is also not necessary to delve into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. In **Union of India v. Prafulla Kumar Samal and another [(1979) 3 SCC 4]** the Apex Court held that where the materials disclosed grave suspicion against the accused, which has not been properly explained, the court would be justified in framing a charge against the accused. In **Soma Chakravarty v. State through CBI [(2007) 5 SCC 403]** the Apex Court reiterated the said view by holding that when there exists a strong suspicion, a charge can be framed. It was also cautioned that a mere suspension as distinguished from grave suspicion is not enough to frame a charge. 14 Crl.R.P.No.1041 of 2023 ## 12. In **Vijayan P. v. State of Kerala and another** **[(2010) 2 SCC 398]** the Apex Court held that the judge who considers a question where a charge is liable to be framed is not a mere Post office to frame the charge at the behest of the prosecution. The judge is expected to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In **State of Gujarat v. Dilipsinh Kishorsinh Rao (MANU/SC/ 1113/ 2023]** , the Apex Court held that at the stage of considering an application for discharge, the court shall proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate such materials in order to determine whether the facts emerging from the materials taken on its face value disclosed the existence of the ingredients necessary of the offences alleged. 13. As stated, the petitioners cannot claim absolute innocence in the light of the materials placed on record by the prosecuting agency. After considering the materials available then on record, this Court in B.A.No.426 of 2023 filed by the 15 Crl.R.P.No.1041 of 2023 petitioners found that there was _prima facie_ materials to proceed against the petitioners. Now, the final report is filed, based on which a charge has been framed. The offences for which the petitioners are charged essentially is possession of the Narcotic drug of commercial quantity. In the light of the presumption available under Sections 35 and 54 of the NDPS Act, the seizure of the contraband from the boats where the petitioners were also members of the crew, it can only be held that there are sufficient grounds to frame a charge against the petitioners. Whether they had active knowledge about the presence of the contraband in the boats is a matter to be decided after trial. The presumptions under Section 35 as well as Section 54 of the NDPS Act are rebuttable ones. Whether or not such presumptions could be applied in this case, can be decided only based on the probative value of the evidence to be adduced at the trial. In such circumstances, the challenge of the petitioners against the order framing charge against them can only fail. The revision petition is therefore dismissed. 16 Crl.R.P.No.1041 of 2023 14. The petitioners have been in judicial custody since 21.05.2022. There is already a direction as per the order dated 06.03.2023 in Bail Appl.No.9272 of 2022 for speedy disposal of this case. Considering the circumstances of the petitioners and the other accused, who are also similarly placed, the said direction for a speedy disposal of this case has to be followed scrupulously by the trial court. If there is any hurdle for such speedy trial, the said court shall bring that matter to the Registrar (District Judiciary), who shall take appropriate steps to enable the trial court to have the trial of this case in a timely manner and ensure its disposal without any delay. Sd/- **P.G. AJITHKUMAR, JUDGE** dkr