CRL A/263/1997 of Vs on 12 December 2002

:JUDGMENT

This Criminal Appeal is directed against the judgment dated 27.2.199 6rendered in C.C.No.283 of 1993 by the Court of Special Sessions Judge,(E.C.Act Cases), Madurai, thereby convicting the appellant for an offencepunishable under Sections 8(c) r/w 18 of the Narcotic Drugs and PsychotropicSubstances Act (hereinafter referred to as the ‘NDPS Act’), sentencing him toundergo 10 years R.I. and to pay a fine of Rs.1 lakh and in default, toundergo a further R.I. for a period of three years.

2. The charge against the accused as framed by the trial Court isthat firstly the appellant/accused, joining hands with two others, enteredinto a conspiracy to transport 'Abin' worth Rs.2,35,000/- in a car and hencethey are punishable under Section 29 of the NDPS Act. Secondly theappellant/accused, having been in possession of ‘Abin’ weighing 47 Kgs.without any valid permit or licence, in order to export the same from Indiaand transporting the same in India from one place to another having indulgedin all acts for exporting the said contraband ‘Abin’, had become liable forbeing tried and punished under Sections 23 and 30 of the NDPS Act and alsounder Section 135A of the Customs Act.

3. The trial Court, having framed the above charges, had conducted an elaborate trial permitting the parties to record their evidence. On the partof the prosecution, 8 witnesses have been examined as P. Ws. 1 to 8, besidesmarking 27 documents as Exs.P.1 to P.27 and 15 materials objects have beenalso marked as M.Os.1 to 15 and on the part of the defence, one witness hasbeen examined as D.W.1 and one document has been marked as Ex.D.1.

4. With the above evidence having been placed on record, the trial Court, in its judgment, has arrived at the conclusion to hold theappellant/accused guilty of the offences under Sections 8(c) r/w 18 of theNDPS Act and has convicted and sentenced him in the manner aforementioned. Itis only testifying the validity of this judgment dated 27.2.1996 passed by theCourt of Special Sessions Judge (E.C.Act Cases), Madurai, the appellant hascome forward to prefer the above appeal on certain grounds as pleaded in thegrounds of appeal.

5. Before going into the merits of the case, it has become incumbent on the part of this Court to mention that it is the definite case of theprosecution as per the charge that the above appellant/accused, joining handswith two others, has indulged in transporting the contraband from one place toanother, inside India, being in possession of the contraband ‘Abin’ havingmade all arrangements to export the same from out of India and hence thecharge against them for the commission of offence punishable under Sections29, 8(c) r/w 18, 23 and 30 of the NDPS Act and under section 135A of theCustoms Act.

6. Today, when the above matter has been taken up for consideration

in the presence of the learned counsel for the appellant and the learnedSpecial Public Prosecutor appearing on behalf of the respondent/State, inconsideration of the facts and circumstances brought forth on either side andupon hearing the learned counsel for both, what comes to be known is that thecharge speaks of the seizure of the contraband, viz., 'Abin' which is not anitem prohibited as per the NDPS Act, and therefore, technically, the offencecannot be brought straight under the purview of the NDPS Act. The trialcourt, thoughtless of this anomaly that has occurred in the case, particularlyin the charge and without offering any explanation or questioning theprosecution regarding the actual English term of the contraband or thecomponents and character of the same, under the impression that 'Abin' is alsoa prohibited item under the NDPS Act, has not only convicted, but alsosentenced the accused in the manner extracted supra.

7. During arguments, learned Special Public Prosecutor would be emphatic in his version stating that the 'Abin' seized from the appellant andothers is nothing but 'Opium', and therefore, this Court should take it intoconsideration and treating that 'Abin' is 'Opium', should confirm theconviction and sentence as passed by the trial court, as per its judgmentdated 27.2.1996, against which, the appeal has been preferred not only on thispoint, but also in consideration of the evidence placed on record in the wholeof the case.

8. Even though Section 391 of the Criminal Procedure Code providesfor any appellate court, if it thinks necessary that additional evidence is tobe recorded on its own reasons, takes such an evidence itself, still, optionis given also to direct the same to be taken by the Court of Sessions or aMagistrate, which is not mandatory, but recommendatory in nature.

9. In fact, without such additional evidence being recorded, simplygiving expression or taking into consideration some literal or dictionarymeaning, 'Abin' cannot be so easily construed or taken for ' Opium',particularly the variety of the 'Abin' that is alleged to have been seized bythe prosecution in the case in hand. Moreover, the Sessions Court, whichtried the offence, since being better apprised of the facts and circumstancesof the case, the demeanour of the witnesses, is the right Court to deal withand record additional evidence, in appreciation of which, should pass itsjudgment ultimately on facts and circumstances and in accordance with law.

10. In the above circumstances, this Court is left with no choice butto set aside the judgment of the lower court and to remand the case forrecording additional evidence on the above point and to decide the matterultimately.

In result,

(i) the judgment dated 27.2.1996 rendered in C.C.No.283 of 1993 by theCourt of Special Sessions Judge, (E.C. Act Cases), Madurai, is hereby setaside;

(ii) the case is remanded to the trial court for recording additionalevidence on the point of the seized contraband as aforementioned and to decidethe case ultimately in consideration of the entire facts and circumstances andthe evidence already recorded, in accordance with law;

(iii) since it is a long pending matter, the trial court is furtherdirected to observe all the procedures contemplated by law in the abovecircumstances and to deliver the judgment within six months from the date ofreceipt of a copy of this judgment; and

(iv) as it is a continuous process, so far as the accused/convict isconcerned, he shall continue as a remand prisoner,gs.

V. KANAGARAJ, J.

pending trial, till such time that either his application seeking bail isconsidered or a finality of decision is made in the subject matter onjudgment; and therefore, question of release of the appellant/accused, becauseof this remand, does not arise at all.

The above criminal appeal is disposed of in the above manner.

gs.

To1. The Special Sessions Judge,(E.C.Act Cases) Madurai.

1. The Special Sessions Judge,

2. The Judicial Magistrate No.II,Tuticorin.

3. - do Thro' the Chief Judicial Magistrate,Tuticorin.

4. The Superintendent,Central Prison,Palayamkottai.

5. The Special Public Prosecutor,High Court, Chennai.