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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.