Holding

Identification by photograph is admissible, and the court may frame a charge under Section 29/23 of the NDPS Act; the appeal is dismissed.

Summary

The police intercepted a truck carrying a large consignment of Mandrax tablets that had been dispatched from an Indian port to a fictitious foreign company. The appellant, the chairman of the clearing agency that took possession of the consignment during off‑loading, was identified by a police inspector through a photograph as the man seen driving a car at the interception. The appellant contended that such photographic identification was inadmissible and sought discharge under Section 227 of the CrPC. The Supreme Court held that identification by photograph is admissible and that, at the charge‑framing stage, the court may consider the prospect of a witness correctly identifying the accused without delving into the full probative value of the material. Consequently, the court affirmed that a charge under Section 29 read with Section 23 of the NDPS Act could be framed and dismissed the appeal.

Issues considered

Whether identification of the accused by photograph is admissible evidence for the purpose of framing a charge under Section 227 of the CrPC.
Whether the court may frame a charge under Section 29 read with Section 23 of the NDPS Act based on the materials on record without a detailed probative analysis.
Whether the appellant is entitled to a discharge under Section 227 of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 227, s. 228, s. 240
Indian Evidence Act, 1872s. 9
Narcotic Drugs and Psychotropic Substances Act, 1985s. 23, s. 29

Subjects

NDPS Actidentification by photographcharge framingSection 227 CrPCconspiracynarcoticsevidentiary admissibility

Judgment

•
UMAR ABDUL SAKOOR SORA THIA A
v.
INTELLIGENCE OFFICER
NARCOTIC CONTROL BUREAU

AUGUST 6, 1999
B
[K.T. THOMAS AND D.P. MOHAPATRA, JJ.]

Criminal Law :

Narcotic Drugs and Psychotropic Substances Act, 1985: c
Sections 29 and 23-Police intercepted truck carrying "Mandrax"
tablets-Said stock despatched from a port in India to a company abroad-
Accused was one of the key persons who conspired with four others already
charge-sheeted-Both the consignor and consignee were fictitious concerns-
Accused was Chairman ofthe clearing agency company which took possession D
· . of the consignment during off-loading operations on behalf of the non-
existing consignee-Witness identified a photograph as that of the accused
who drove a car at the time of interception and who curiously watched the
off-loading operations-Held: Under such circumstances, trial court and
High Court rightly refused to discharge accused-Criminal Procedure Code, E
1973, S.227.

Evidence Act, 1872:

Section 9-Accused-Jdentification-Mode-ldentification by
photograph-Admissibility-Witness identified the photograph of accused as F
the person whom he saw at the relevant time-Accused was not a proclaimed
offender and court did not consider the eventuality in which accused was to
be so proclaimed-Held: Identification by photograph admissible in evidence.

Criminal Procedure Code, 1973:
G
Sections 228 and 240-Framing of charge-Scope-Held: Court not
expected to go deep into the probative value of materials on record-If on
basis of materials on record court comes to conclusion that accused would
have committed the offence, court obliged to frame charge and proceed to
trial. H
113
114 SUPREME COURT REPORTS [1999) SUPP. I S.C.R.

,A The appellant was charged under Section 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 and his application for discharge under
Section 227 of the Criminal Procedure Code, 1973 was dismissed by the
trial court and the High Court. Hence this appeal.

According to the prosecution, the police intercepted a truck carrying
B tablets of "Mandrax" which was a high potency narcotic substance. The said
stock was despatched from a port in India to a company abroad. The appellant
was one of the key persons who conspired with the other four accused
already charge-sheeted. Both the consignor and the consignee were fictitious
concerns. The appellant was the Chairman of the clearing agency company,
C which took possession of the consignment during off-loading operations on
behalf of the non-existing consignee. The police officer identified the
photograph of the appellant as that of the person whom he saw driving a car
at the time of interception of the truck and who was curiously watching the
off-loading operations.

D On behalf of the appellant it w.as contended that identification by
photograph was inadmissible in evidence.

Dismissing the appeal, this Court

HELD: 1. Prosecution has to examine the police officer as a witness
E 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 the stage
o'f framing of the charge the court is disabled from considering the prospect
of such a witness correctly identifying the appellant cluring trial. In so
considering the court can take into account the fact that during investigation
F . 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 the appellant is not a proclaimed offender and this Court is not
considering the eventuality in which he would be so proclaimed.(118-F-G-H]

Kartar Singh v. State of Punjab, (1994) 3 SCC 569, held inapplicable.
G
2. 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. [119-G)

H State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, followed.
U.A.S. SORA THIA v. INTEL. OFFICER NARCOTIC CONT. BUREAU [THOMAS, J.] 115
Satish Mehra v. Delhi Administration, [1996) 9 SCC 766, held A
inapplicable.

3. There is no scope for contending in this case that the court cannot
frame charge under Section 29 read with Section 23 of the Narcotic Drugs
and Psychotropic Substances Act, 1985. The trial court and the High Court
rightly dismissed the discharge application of the appellant. [120-E) B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
743 of 1999.

From the Judgment and Order dated 25.8.98 of the Madras High Court
in Crl.R.C. No. 103of1997. C
R.K. Jain, B. Kumar, Mahesh Aggarwal, Rishi Aggarwal, E.C. Aggarwal,
Atul Sharma, Triveni Potekar and Ayaz Khan for the Appellant.

K.C. Kaushik and D.S. Mehra for the Respondents
D
The Judgment of the Court was delivered by

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. E
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 F
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 G
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 despatc~ed from the port of H
116 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A Chennai in India in the name of Mis. K.J. Exports, 36 Seventh Street, Shastri
Nagar, Chennai-20, and the destination was shown as a company in South
Africa by name Mis. 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
B 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-
C sheeted. Subsequently appellant was also arraigned with them for the offence
under Section 29 of the NDPS A<;t.

In support of the plea for pre-charge exoneration appellant pleaded
before the High Court, inter a/ia, that no sanction has been obtained under .......
Section 188 of the Code. That plea was repelled by the High Court and learned
D 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: (I) A letter addressed by the Mozambique Police
in August, 1966. (2) A fax message sent by South African Police Service on
E 3-4-1997 stating that no material has been thus far collected to connect the
I

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
F 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.

G 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 '
H for the prosecution to establish who they were. Investigation revealed the
U.A.S. SORA THIA v. INTEL. OFFICER NARCOTIC CONT. BUREAU [THOMAS, J.] 117
following facts also: A
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 Mis. Miami Travels and Tours Ltd. It was submitted that B
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:
c
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 D
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-tum at the shop opposite to
the police station. The vehicle was heading back towards the E
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,
F
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 G
to me by a member of the border post 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
supposed 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 H
118 SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R.

A 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
B 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
c 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 v. 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
D 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
E 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
F the identification made by Mr. Mkhatshwa 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 appelll\nt
G 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
H to the appellant.
U.A.S. SORATHIA v. INTEL. OFFICER NARCOTIC CONT. BUREAU [THOMAS, J.] 119
Shri R.K. Jain, learned senior counsel contended that the circumstances A
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 B
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.-(l) Whoever C
abets, or is a party to a criminal conspiracy to commit an offence
punishable under this Chapter, shall, whether such offence be or be
1
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. D
(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-
E
(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 F
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 G
the charge and proceed to the trial.

Learned counsel relied on the decision of this Court in Salish Mehra
v. Delhi Administration, [1996] 9 SCC 766. It was held therein:

"When the Judge is fairly certain that there is no prospect of the case H
120 SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A 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
.I 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
B is advisable to truncate or snip 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 ofMaharashtra & Ors.
C v. 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, t
a case for framing of charge exists. To put it differently if the court
were to think that the accused might hav_e committed the offence it
·n 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)

E 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.
F
v.s.s. Appeal dismissed.