Full Judgment Text
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PETITIONER:
UMAR ABDUL SAKOOR SORATHIA
Vs.
RESPONDENT:
INTELLIGENCE OFFICER, NARCOTIC CONTROL BUREAU
DATE OF JUDGMENT: 06/08/1999
BENCH:
K.T. Thomas, D.P. Mohapatra.
JUDGMENT:
THOMAS, J.
Leave granted.
Appellant had a diplomatic outfit earlier (an honorary
officer in the Consulate of Liberia at Mozambique) of which
he was subsequently stripped. He is said to be an Indian
citizen as he holds a passport issued from India. He is now
facing a charge under Section 29 of the Narcotic Drugs and
Psychotropic Substances Act(for short "the NDPS Act") before
a Special Court at Chennai. He moved the trial court for a
discharge under Section 227 of the Code of Criminal
Procedure, but in vain. He then moved the High Court of
Madras for quashing the said order of the Special Court. A
learned Single Judge of the High Court dismissed his
petition as per the impugned order.
On 21-4-1994, the Royal Police of the Kingdom of
Swaziland (situate adjacent to South Africa and Mozambique)
intercepted a container truck carrying nearly 2 million
tablets of "Mandrax". They were packed in plastic packets
of 1000 tablets each and cartoned in slabs consisting of 9
packets each. The contraband was concealed in packets of
electric globes. Mandrax is a high potency narcotic
substance, the chemical name of which is "Methaqualone". As
the catch was of a significant quantity of forbidden
substance, messages were sent to various Narcotic Control
Bureau. It was eventually discovered that the said stock
was despatched from the port of Chennai in India in the name
of M/s. K.J. Exports, 36 Seventh Street, Shastri Nagar,
Chennai-20, and the destination was shown as a company in
South Africa by name M/s. Dynamic Electronics Ltd.,
Annfrere (South Africa). After the investigation, a
complaint was filed against four persons (1. Arib K.
Patel, 2. Y.V. Nagraj, 3. G.N. Venugopal, 4. M.
Arumugam) under different offences of the NDPS Act.
Subsequently the investigating agency received some more
information about the aforesaid Mandrax and the connection
of the appellant therewith. They obtained permission from
the Special Court to conduct further investigation into the
matter under Section 173(8) of the Code. Such investigation
revealed to the investigating officer that appellant was one
of the key persons who conspired with the other four accused
already charge-sheeted. Subsequently appellant was also
arraigned with them for the offence under Section 29 of the
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NDPS Act.
In support of the plea for pre-charge exoneration
appellant pleaded before the High Court, inter alia, that no
sanction has been obtained under Section 188 of the Code.
That plea was repelled by the High Court and learned counsel
did not, according to us rightly, raise that plea in this
Court during arguments.
Two documents pressed into service by the appellant
before the High Court and in this Court are: (1) A letter
addressed by the Mozambique Police in August, 1966. (2) A
fax message sent by South African Police Service on 3-4-
1997 stating that no material has been thus far collected to
connect the appellant with the contraband consignment.
The High Court did not accept any of those documents to
sustain the plea of the appellant. We too do not find any
force in the contention based on those two communications,
for, they revealed only what the police then felt on the
materials they could unearth till then. Such a view
expressed by the police in those countries cannot foreclose
the investigating force in India from arriving at the right
conclusion, nor even the police authorities of those
countries themselves from taking a different view
subsequently.
If the allegations are correct, there is an undeniable
position that a serious offence under Section 23 of the NDPS
Act had been committed in respect of the aforesaid
contraband articles. It is for the prosecution to establish
the persons who have committed the offence. Four persons
who were already charge-sheeted are said to be those engaged
at the exporting end. There must have been human persons at
the importing stage and it is for the prosecution to
establish who they were. Investigation revealed the
following facts also:
Both the consignor and the consignee are fictitious
concerns and no such company was ever in existence. But the
clearing agency which presented the Bill of Entry on behalf
of the non-existing consignee and which took possession of
the consignment during the offloading operations was a
company by name M/s. Miami Travels and Tours Ltd. It was
submitted that appellant was the Chairman of the clearing
agency company.
The aforesaid is a very material and incriminating
circumstance which, if established, would take the
prosecution a long way off.
Another fact which the prosecution wants to prove is the
following: The driver who drove the container truck left
Mozambique and proceeded towards Annfrere (South Africa) but
en route the vehicle was intercepted at Lomahasha Borderpost
on 21-4-1994 by a police squad comprising of Mr. Albert
Mkhatshwa (who was the Inspector of Royal Swaziland Police
Force). That Inspector has given a statement on oath before
the Commission of Police, South Africa. The relevant
portion of the statement is the following:
"While we were busy off-loading the boxes
containing Mandrax hidden between globes from the
truck with registration number HBZ 728T, I noticed
a black car that was making a U-turn at the shop
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opposite to the police station. The vehicle was
heading back towards the borderpost and the driver
(an Indian male who was alone in the car) was
looking curiously towards what we were doing. I
cannot remember exactly what kind of car he was
driving, it was either a Mercedes Benz or BMW
sedan, but it was black in colour.
Because of the driver’s curiosity towards our
activities at that stage, I contacted the
borderpost gate telephonically to stop the black
car because I’d like to interrogate the driver.
The border post is 120 m from the police station.
The Indian male was stopped at the border post and
he was brought to me by a member of the borderpost
personnel. I questioned this Indian male about
his curiosity and he told me that he was actually
coming from Mozambique to look for someone at the
shop that he was suppose to meet, but this guy
didn’t show up. He also told me that he was a
diplomat from Liberia and he was staying in
Mozambique. He appeared also very nervous to me.
I was confused by this because this man was an
Indian and I asked for his passport. He gave his
passport to me and the contents thereof confirmed
that it was a diplomatic passport issued by the
Republic of Liberia. I cannot recall the name or
surname of the man."
The next circumstance highlighted by the learned counsel
for the respondent is that a photo of the appellant was
shown to Mr. Albert Mkhatshwa later and he identified that
figure in the photo as the person whom he saw driving the
car at the time of interception of the truck.
It was contended that identification by photo is
inadmissible in evidence and, therefore, the same cannot be
used. No legal provision has been brought to our notice
which inhibits the admissibility of such evidence. However,
learned counsel invited our attention to the observations of
the constitution bench in Kartar Singh vs. State of Punjab
{1994 (3) SCC 569} which struck down Section 22 of the
Terrorist and Disruptive Activities (Prevention ) Act, 1987.
By that provision the evidence of a witness regarding
identification of a proclaimed offender in a terrorist case
on the basis of the photograph was given the same value as
the evidence of a test identification parade. This Court
observed in that context:
"If the evidence regarding the identification on
the basis of a photograph is to be held to have
the same value as the evidence of a test
identification parade, we feel that gross
injustice to the detriment of the persons
suspected may result. Therefore, we are inclined
to strike down this provision and accordingly we
strike down Section 22 of the Act."
(para 361)
In the present case prosecution does not say that they
would rest with the identification made by Mr. Mkhatshwa
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when the photograph was shown to him. Prosecution has to
examine him as a witness in the court and he has to identify
the accused in the Court. Then alone it would become
substantive evidence. But that does not mean that at this
stage the court is disabled from considering the prospect of
such a witness correctly identifying the appellant during
trial. In so considering the Court can take into account
the fact that during investigation the photograph of the
appellant was shown to the witness and he identified that
person as the one whom he saw at the relevant time. It must
be borne in mind that appellant is not a proclaimed offender
and we are not considering the eventuality in which he would
be so proclaimed. So the observations made in Kartar Singh
in a different context is of no avail to the appellant.
Shri R.K. Jain, learned senior counsel contended that
the circumstances arrayed against the appellant, even if
proved, may not establish that he was involved in a criminal
conspiracy to export the said consignment. We do not agree
with the learned counsel on this score. We do not want to
elaborate that aspect at this stage lest it may have an
impact on the ultimate conclusion.
Section 23 of the NDPS Act deals with punishment of any
person who imports into India or exports from India or
transshipment of narcotic drugs and psychotropic substances,
in contravention of the provision of the NDPS Act. Section
29 reads thus:
"Punishment for abetment and criminal conspiracy.-
(1) Whoever abets, or is a party to a criminal
conspiracy to commit an offence punishable under
this Chapter, shall, whether such offence be or be
not committed in consequence of such abetment or
in pursuance of such criminal conspiracy, and
notwithstanding anything contained in section 116
of the Indian Penal Code, be punishable with the
punishment provided for the offence.
(2) A person abets, or is a party to a criminal
conspiracy to commit, an offence, within the
meaning of this section, who, in India, abets or
is a party to the criminal conspiracy to the
commission of any act in a place without and
beyond India which-
(a) would constitute an offence if committed
within India; or
(b) under the laws of such place, is an offence
relating to narcotic drugs or psychotropic
substances having all the legal conditions
required to constitute it such an offence the same
as or analogous to the legal conditions required
to constitute it an offence punishable under this
Chapter, if committed within India."
It is well settled that at the stage of framing charge
the court is not expected to go deep into the probative
value of the materials on record. If on the basis of
materials on record the court could come to the conclusion
that the accused would have committed the offence the court
is obliged to frame the charge and proceed to the trial.
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Learned counsel relied on the decision of this Court in
Satish Mehra vs. Delhi Administration {1996 (9) SCC 766}.
It was held therein:
"When the Judge is fairly certain that there is no
prospect of the case ending in conviction the
valuable time of the court should not be wasted
for holding a trial only for the purpose of
formally completing the procedure to pronounce the
conclusion on a future date. We are mindful that
most of the Sessions Courts in India are under
heavy pressure of workload. If the Sessions Judge
is almost certain that the trial would only be an
exercise in futility or a sheer waste of time it
is advisable to truncate or sn ip the
proceedings at the stage of Section 227
of the Code itself."
(para 15)
The present is certainly not a case where the aforesaid
ratio can justifiably be applied. A three-Judge Bench of
this Court in State of Maharashtra & ors. vs. Som Nath
Thapa & ors. {1996 (4) SCC 659} has held thus:
"If on the basis of materials on record a court
could come to the conclusion that commission of
the offence is a probable consequence, a case for
framing of charge exists. To put it differently
if the court were to think that the accused might
have committed the offence it can frame the
charge, though for conviction the conclusion is
required to be that the accused has committed the
offence. It is apparent that at the stage of
framing of a charge, probative value of the
materials on record cannot be gone into; the
materials brought on record by the prosecution has
to be accepted as true at that stage."
(para 32)
There is no scope for contending in this case that the
court cannot frame charge under Section 29 read with Section
23 of the NDPS Act. The trial court and the High Court
rightly repelled the plea of the appellant in that regard.
We, therefore, dismiss this appeal. Needless it is to say
that the trial court shall dispose of the case untrammeled
by any observations made by the High Court in the impugned
order or by us in this judgment.