The Madras High Court reversed a trial court judgment that viewed a man to be blameworthy of endeavoring to convey around 1.5 kilograms of Heroin on a flight by knowingly it to be wheat flour [Anandam Gundluru versus Police Inspector, NCB]
Justice G Jayachandran noticed that the accused person was in an all likelihood conveying a bundle given by someone else.
Subsequently, information about the contraband in his pack couldn’t be credited to him since it appeared to be likely that he was conveying the contraband without realizing that it was a prohibited substance.
“However not in all cases, the transporter can argue nonappearance of culpability, in the particular conditions and realities of this case as described over, the information on contraband in the Airbag can’t be credited to the accused person/appellant. Through his explanation it is probabilised that he had conveyed the package given by Venkateswara Rao, without knowingly that it is a prohibited substance,” he expressed.
As per the prosecution story, in September 2014, a Narcotics Control Bureau(NCB) Official got information through his Mukhbir/agent about one person, Venkateshwara Rao planning to send 1 1⁄2 Kg of Heroin by Fly Emirates Flight, which leaves Chennai at 21.45 hrs that night through Anandam Gundluru (the appellant) to Kuwait via Chennai Air terminal.
Following immigration clearance, officials really checked the documents like visa & passports of travellers and identified the person name Anandam Gundluru.
The right under Section 50 of the NDPS Act was explained to the accused.
“It was told by the Inquiry Officer that you have the right, if you want, you can get your search done in the presence of any gazetted officer or magistrate. If you want, we get them called after giving information. But the accused/Gundluru refused to do so.
Section 50 of NDPS Act:- Conditions under which search of persons shall be conducted.—(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]
On examination, his check-in luggage was found to have two packets of Heroin weighing around 1 kg and 0.5kg.
As the prime suspect absconded and was untraceable, Anandam Gundluru alone was prosecuted by the NCB. To prove the charges 8 witnesses, 47 documents and 10 Material Objects were relied on the said of the complainant. The Trial court found the accused guilty of offence under Sections 21 (c) and 23 (c) of NDPS Act. Found him not guilty of offence under Sections 22 (b) and 29 of the NDPS Act.
Aggrieved by the conviction and sentence of 10 years with fine of Rs.1,00,000/, the present appeal is filed.
Advocate TS Sasikumar, defending the appellant, said in the Hon’ble High Court that the statements given by the appellant to the police reveal his truth and he truthfully told the police from where the banned substance came to him. He did not know that the said substance was banned.
He argued that some villagers, Venkateswara Rao had given him a bundle saying it contains tamarind and wheat flour.
In his argument, the lawyer also submitted that during the search at the airport, the appellant without any hesitation allowed the officers to search his bag.
Further, he contended that the trial court erred in concluding that the accused’s comment — recorded as a statement by the NCB — that he was apprehensive of carrying the packages overseas meant that he knew what they contained.
He also contended that the collection of Call Detail Records (CDR) between the accused and Venkateshwara Rao were not proven as per law and also underlined the person who provided those records was not examined as a witness before the trial court.
The High Court brought up that the trial court had cleared the litigant from the charge of criminal conspiracy (under section 120 B IPC) and had just convicted him for having the contraband in view of his CDR, and on an explanation recorded by the Andhra Pradesh police from Rao’s dad.
It observed that the CDR was not joined by an endorsement under section 65B of the Indian Evidence Act and furthermore that the person who gave such Information to the officers was not examined as a witness before the trial court. It further saw that the people who recorded and translated Rao’s dad’s statement under section 161 CR.P.C was also not examined before the trial court.
The judgement passed by the II Additional Special Court under NDPS Act, Chennai made
in C.C. No. 15 of 2015 dated 09.01.2017 is hereby set aside. Fine amount paid, if any, by the appellant shall be refunded to him. Bail bond executed, if any, shall stand cancelled. The accused is set at liberty in this case. The prison authority shall release him from the prison if his presence in jail is not required in any other case.