Mohammed Fasrin vs The State Rep. By The The Intelligence ...

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.296 OF 2014

MOHAMMED FASRIN APPELLANT(S)

VERSUS

STATE REP. BY THE INTELLIGENCE OFFICER RESPONDENT(S)

J U D G M E N T

DEEPAK GUPTA, J.

This appeal by the accused is directed against the

judgment dated 19.02.2008 of the Madras High Court

whereby it upheld the judgment dated 16.12.2005 of the

District and Sessions Judge, Madurai acting as the

Special Court for Narcotic Drugs and Psychotropic

Substances Act, 1985 (NDPS Act) cases and convicted the

accused along with three others for having committed

offences under the NDPS Act. As far as the appellant is

concerned, he was convicted for having committed offences

under Section 8(c) read with 29, 21 and 23(c) and 27(A)

of the NDPS Act and apart from that appellant had Signature Not Verified Digitally signed by ARJUN BISHT Date: 2019.09.16 committed the offence punishable under Section 8(c) read 14:58:17 IST Reason:

with 27(A) of the Act and sentenced to undergo rigorous

1 imprisonment for a period of 15 years and to pay fine of

Rs.1,50,000/- and in default of payment to undergo simple

imprisonment for one year. Offence under Section 27A of

the Act relates to punishment for financing illicit

traffic and harbouring offenders and reads as follows:

27A. Punishment for financing illicit traffic and harbouring offenders.- Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees"

The essential ingredient of this offence is that

the prosecution must prove that the accused has financed

directly or indirectly any of the activities falling in

sub-clause (i) to (v) of Clause (viiia) of Section 2 of

the Act or has harbored any person engaged for the

aforesaid activities. As far as the case of the

prosecution is concerned, it is only of financing and not

of harboring.

Section 8(c) of the NDPS Act reads as follows:

8. Prohibition of certain operations.- No person shall-

(a) .........

(b) .........

2

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,

except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:

Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:

[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]"

This is basically an offence for exporting or

importing into India or exporting from India contraband

substance. Though, the charges against the appellant were

of financing and of indulging in international smuggling

of contraband, virtually no evidence in this regard has

been found.

We now may refer to the facts necessary for

disposal of this case. On 04.01.2003, the Intelligence

3 Officer, Narcotic Department received information that at

the instance of the present appellant 7.4 kgs. of heroin

would be carried in a Toyota Qualis vehicle bearing No.TN

31 C 9117. This vehicle was apprehended when it was

parked at Tamil Nadu Hotel of Madurai - Alagar Koil road

and 7.4 kgs. of heroin was recovered from it. At that

time accused no.2 to 6 were sitting in the car. Accused

nos.2 to 4 have been convicted under various provisions

of the NDPS Act. We are not concerned with them since, to

our knowledge, no appeal has been filed by them.

As far as the present appellant is concerned, the

only evidence, if it can be called that, is the statement

of a co-accused (accused no.2) and his own alleged

confession. As far as statement of co-accused (Ext.P41)

is concerned, in that the co-accused states in great

detail as to how he came into contact with one other

person also called Mohammed in Bombay who had instructed

him to go to Manglapuram from Bombay. There he was again

asked to come to Hotel Airline at Manglapuram where he

met the said Mohammed of Bombay. It was that Mohammed of

Bombay, who handed over the vehicle to him and told him

that 7.4 kgs of heroin is kept hidden in 7 packets in a

false compartment beneath the front seat of the car. The

only allegation with regard to appellant is that after

taking delivery of the contraband from Mohammed of

Bombay, the co-accused was to take the heroin and hand it

4 over to one Nalliappan. The said Nalliappan was to

further hand over the heroin to the appellant. Neither

the said Mohammed from Bombay nor Nalliappan have been

examined in the case nor they have been arrayed as

accused. Therefore, the link evidence is totally

missing. Furthermore, the allegation is only in the

nature of hearsay that Mohammed had told the co-accused

that he had to deliver the contraband to the present

appellant. Even if we take the confession of the co-

accused Hasan Mohamed (A-2) into consideration, it would

only prove that Mohammed (from Bombay) had told the co-

accused that Nalliappan would handover the contraband to

the present appellant. This evidence of a co-accused is a

very weak type of evidence which needed to be

corroborated by some other evidence. The confession of a

co-accused gives a clue to the investigating authorities

as to how to investigate the matter and against whom to

investigate the matter. Thereafter, it is for the

investigating officers to collect evidence against the

said person who has been named by the co-accused. In the

present case no such corroborative evidence has been led.

That brings us to the confessional statement of the

appellant recorded by PW-1. Admittedly, this confession

was recorded after the appellant was arrested. It is

true that the issue, whether a statement recorded under

Section 67 of the NDPS Act can be construed as a

5 confessional statement even if the officer who has

recorded such statement was not to be treated as a police

officer, has been referred to a larger Bench in the case

of Tofan Singh v. State of Tamil Nadu1.

We, for the decision of this case, therefore,

proceed on the premise that the confession is admissible.

Even if it is admissible, the Court has to be satisfied

that it is a voluntary statement, free from any pressure

and also that the accused was apprised of his rights

before recording the confession. No such material has

been brought on the record of this case. It is also well

settled that a confession, especially a confession

recorded when the accused is in custody, is a weak piece

of evidence and there must be some corroborative

evidence. The confession of the co-accused, which was

said to be a corroborative piece of evidence, has been

discussed above and is of no material value. Therefore,

other than the two confessional statements – one of the

co-accused and the other of the accused, the prosecution

has gathered no evidence to link the appellant with the

commission of the offence. As such, without going into

the legality of the admissibility of the confession, we

hold that even if these confessions are admissible then

also the evidence is not sufficient to convict the

accused.

1 (2013) 16 SCC 31

6 We, accordingly, find force in the appeal. We hold

that both the Trial Court and the High Court wrongly

convicted the accused. We set aside the judgment of both

the Courts below. Appeal is accordingly allowed. The

accused is already on bail. His bail bonds are

discharged.

...................J. (DEEPAK GUPTA)

...................J. (ANIRUDDHA BOSE)

New Delhi September 04, 2019

7 ITEM NO.120 COURT NO.13 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s).296/2014

MOHAMMED FASRIN Appellant(s)

VERSUS

STATE REP. BY THE INTELLIGENCE OFFICER Respondent(s)

(IA No. 20994/2013 - EXEMPTION FROM FILING O.T.)

Date : 04-09-2019 This matter was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DEEPAK GUPTA HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Appellant(s) Mr. Shikhil Suri, Adv.

Mr. Shiv Kumar Suri, AOR Mr. Shilpa Saini, Adv.

For Respondent(s) Mr. Ajit Kumar Sinha, Adv.

Mr. Sanjay Kumar Tyagi, Adv.

Mr. Rajan Kumar Chaurasia, Adv. Mrs. Rekha Pandey, Adv.

Mr. T.A. Khan, Adv.

Mr. Divyansh Rai, Adv.

Mr. B.V. Balaram Das, AOR

Mr. B. Krishna Prasad, AOR

UPON hearing the counsel the Court made the following O R D E R

The appeal is allowed in terms of the signed reportable

judgment.

Pending application(s), if any, stands disposed of.

(ARJUN BISHT) (RENU KAPOOR) COURT MASTER (SH) BRANCH OFFICER

(signed reportable judgment is placed on the file)

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