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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.