The Madras High Court has recenlty ordered release of a man jailed for possessing prohibited substance under NDPS Act noting that he was under misconception of it being wheat flour and tamarind.
The bench of Justice G Ilanthiraiyan allowed the appeal filed by a man who was sentenced to ten years RI and a fine of ₹1 lakh for consciously possessing 1.5 kg Heroin for transportation to Kuwait and was charged under Sections 8(c) r/w 21(c), 22(b), 23(c) and 29 NDPS Act.
The arrest of the appellant was made following a lead received via phone stating about the alleged supply of heroine. The team proceeded to the Custom Examination Area in the depature hall of Chennai International Airport and started checking the passports of the passengers coming after immigration clearance. They identified tthe accused from his passport and interrogated him, after disclosing their identity. The intention to search him and his baggage was conveyed to the accused and right under Section 50 of the NDPS Act was explained to him.
Upon his search the substance were found. During his trial, it was averred that the prosecution failed to comply the mandate of Section 50 of the NDPS Act, during the course of search and seizure.
The Trial Court however declined the same and observed that, the contraband was recovered from the airbag of the accused, which was handed over by the accused to the staff of Flight Operator for loading after customs check. The bags were brought back by the staff to the examination hall and searched. Therefore, Section 50 of the NDPS Act, which is to be followed in case of search of the person does not apply. Though intimation about the option under Section 50 of the Act not necessary, the accused was informed about his right and he has declined to exercise the option to be searched before a Gazatted Officer or Judicial Magistrate, it pointed out.
The defence raised was that the accused was not conscious of the contraband found in his possession, since it was given by the absconding accused Venkateswara Rao saying it contains wheat flour and tamarind. Innocently, the accused received it since few more villagers also gave eateries and snacks to be handed over to their relatives at Kuwait.
However, the Trial Court held that presumption of culpability stands rebutted through the statement of the accused as he had stated that, initially, he was scared to receive the parcel given by Venkateswara Rao and refused, but he convinced him and assured nothing to get scared. Referrence was made to Mohan Lal Vs. State of Rajasthan, 2015 Latest Caselaw 311 SC, Noor Aga Vs. State of Punjab & ANR., 2008 Latest Caselaw 570 SC, Madan Lal And ANR Vs. State of Himachal Pradesh, 2003 Latest Caselaw 384 SC
The Prosecution had also cited calls details between the accused and Venkateswara Rao which as per it, proved that the accused was in frequent contact on the day of his travel to Kuwait, carrying the contraband. He has received a sealed parcel with knowledge that it contains something not to be carried an therefore, he cannot plead absence of culpable mental state, they had argued.
His Counsel however, argued that the appellant has been truthful in his statement and had disclosed the source of the contraband and his lack of conscious possession. The use of the expression that he was scared to receive the parcel given by Venkateswara Rao is taken adverse by the trial Court to infer his culpable mental state, he contended.
The accused being the first time traveller to abroad, was scared of carrying things for others and had bonafidely expressed his apprehension, when Venkateswara Rao requested him to carry Wheat flour and Tamarind. Further, the alleged collection of call detail records (CDR) between the accused and Venkateswara Rao, during the relevant period was not proved through the manner known to law.
Whether the trial Court correct in holding the accused guilty of possession of heroin relying upon Sections 35 and 54 of the NDPS Act, which provides for presumption of culpable mental state and the animus to possess?
Analysing the above, the High Court found Trial Court ruling to be faulty and stated that it has not properly explained had failed to follow the dictums laid by the Supreme Court.
"The previous statement recorded by Police Constable under Section 161(3) of Cr.P.C had been treated par with the statement recorded under Section 67 of the NDPS Act by the Empower Officer of NCB authorised to summon witnesses and record statements. The trial Court erred in referring this inadmissible document to presume culpable mental state of the accused. The complainant had failed to probe the case properly. To say the least, the perfunctory investigation noticed at all stage. Having shown Venkateswara Rao, an absconding accused in the complaint, no effort has been taken to proceed against him further. The information allegedly collected from Tathaiah the father of the accused that one of his sons detained in Kuwait prison and his cell phone was used by the absconding accused Venkateswara Rao, not further investigated to verify the statement. The author of the letter, who gave the CDR was not examined. Tathaiah was not examined and also the police constable, who alleged recorded his statement also not examined. The trial Court itself not convinced of the charge that this accused conspired with the absconding accused Venkateswara Rao to commit the crime of drug trafficking."
Though not in all cases, the carrier can plead absence of culpability, in the peculiar circumstances and facts of this case as narrated above, the knowledge of contraband in the Airbag cannot be attributed to the accused/appellant, the Court said.
"Through his statement it is probablised that he had carried the parcel given by Venkateswara Rao, without knowing that it is a prohibited substance. By preponderance of probability, the accused had established the absence of knowledge."
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(With input from news agency language)
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