Delhi District Court
Sc No. 58A/09 Dri vs . Mohd Anwar Khan on 18 March, 2013
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IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURTS COMPLEX, NEW DELHI
Sh. Deepak Khatri
Intelligence Officer
Directorate of Revenue Intelligence
New Delhi.
V E R S U S
Mohd Anwar Khan
S/o Sh. Ashiquin Khan
R/o 3483, Phatak Daroga
Abdul Aziz
Lal Kuan, Delhi-110006
SC No. : 58A/09
ID No. : 02403R0434872009
U/S : 21 NDPS Act
Date of institution : 24.12.2009
Date of reserving judgment : 14.03.2013
Date of pronouncement of judgment : 18.03.2013
Decision : Acquitted
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence (hereinafter referred to as DRI), Hqrs., through Sh. Deepak Khatri, Intelligence Officer, against the accused Mohd Anwar Khan for commission of the offence SC No. 58A/09 DRI Vs. Mohd Anwar Khan 2 punishable U/S 21 of the NDPS Act, 1985.
2. The facts of the case, in brief, are that on 08.07.2009 PW1 Sh. Sujeet Kumar, Intelligence Officer of DRI, Headquarters, New Delhi had received a secret intelligence that one young man of Indian Origin, aged 22 years, about 5' 8 " tall, having wheatish complexion and thin built would come near the bus stop on the road leading towards Delhi, opposite Sanjay Gandhi Transport Nagar Delhi, at around 8.00 PM on that day for taking a public transport and that man would be carrying some narcotic substance either on his person or in a bag. PW1 had reduced the above information in writing and had put up the same before PW9 Sh. Atul Handa, a Deputy Director of DRI, who was his immediate official superior, and PW9 vide his endorsement made on the above information itself had directed the IO/PW2 Sh. Deepak Khatri to take immediate steps for search and seizure etc of the above said narcotic substance.
3. It is alleged that two public witnesses, i.e PW3 Sh. Shyam Lal and PW4 Sh. Adam, were called in the office of the DRI situated on the 7th Floor of D- Block, IP Bhawan, IP Estate, New Delhi and the officers of DRI had informed both the above public witnesses regarding the above secret intelligence and had requested them to witness the expected interception of the above man and the recovery of the narcotic drugs from him, to which they both had agreed.
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4. The raiding team of DRI, led by the IO/PW2 Sh. Deepak Khatri, had reached at the above spot and started keeping vigil there. At about 8.15 PM, one young man carrying a blue and red coloured " N ike " brand bag and matching with the description given in the above intelligence was seen approaching the above bus stop. The above person had stood at the bus stop for sometime in wait and then he suddenly started moving from the bus stop and sensing that the said person might run away, the officers of DRI had intercepted that man. The members of the DRI team had introduced themselves to the above person and on inquiry the identity of that person was revealed as the accused Mohd Anwar of this case and on being asked about the contents of his bag, the accused had replied that the same only contained his personal belongings.
5. Thereafter, the two panch witnesses were introduced to the accused by the IO/PW2 and the accused was told about the above information and again asked about the narcotic substance in his possession, if any, and the accused had again replied in negative. The accused was then told that his search for the narcotic substance was to be conducted and the DRI officers had also given a notice U/s 50 of the NDPS Act Ex. PW2/A to the accused, in the presence of the panch witnesses, explaining him his legal rights to get his person and the above bag searched in the presence of a Gazetted Officer or a Magistrate. The accused had given a written reply on the above notice itself in his SC No. 58A/09 DRI Vs. Mohd Anwar Khan 4 own hand witting and had offered his search to be conducted before a Gazetted Officer of DRI and had also submitted further that the search proceeding be conducted in the office of the DRI as the above place of his interception was not a secured place.
6. Thereafter, the accused, along with his above said bag and the two panch witnesses, was escorted to the above office of DRI and after reaching there he was introduced with PW7 Sh. V.S. Pandey, who is a Senior Intelligence Officer of DRI and was also a Gazetted Officer. PW7 was also apprised about the entire facts and then the search of the ' p erson ' of the accused was conduced there in the presence of PW7, but nothing incriminating was recovered therein. However, in the search of the above " N ike " bag carried by the accused, 10 cloth packets bearing some rubber stamp markings were recovered and these cloth packets were further found to be containing a transparent polythene packet in each of the cloth packets, which further contained some off white colour powdery/granular substance giving a strong pungent smell. The above packets were marked as X1 to X10 for the purposes of identification.
7. The IO/ PW2 had then taken out a small quantity of the substance from each of the above 10 packets and tested it with the help of a Narcotic Drug Detection Kit and the same had tested positive for heroine. The gross SC No. 58A/09 DRI Vs. Mohd Anwar Khan 5 weight of the above 10 packets was found to be 10.258 kgs and the net weight of the heroine contained therein to be 10.056 kgs. All the above pockets etc were seized by the IO/PW2 for violation of the provision of the NDPS Act.
8. The IO/PW2 had then taken out two representative samples of 5 gms each from the above 10 packets and these samples were kept in separate zip locked small polythene pouches and were marked as X1A to X10A and X1BA and X10B. These two batches of samples were further kept in separate paper envelopes and the same were also correspondingly marked and sealed with DRI seal No.10, affixed over a paper slip pasted on each of the envelopes and bearing the dated signatures of the IO/PW2, the accused himself, PW7 Sh. V.S. Pandey and the above two panch witnesses. The IO/PW2 had also put back the substance of the above 10 packets in the same packings and these packets of the remaining heroine were also sealed with the above seal of DRI affixed on similar paper slips pasted thereon and signed by the above signatories. These sealed packets of the case property were then kept in a steal trunk, along with above " N ike "
bag, and this trunk was further wrapped with a cloth, stitched and sealed in the same manner. The IO/PW2 had also prepared test memos in triplicate and had further prepared one detailed panchnama Ex. PW2/B regarding the above proceedings and the above test memos and panchnama were also got signed from the above persons. A facsimile the above seal of DRI was also affixed on the test memos SC No. 58A/09 DRI Vs. Mohd Anwar Khan 6 as well as on the panchanama.
9. It is also alleged in the complaint that in response to the summons Ex. PW2/C given by the IO/PW2 to the accused U/s 67 of the NDPS Act, he had tendered his voluntary statement Ex. PW2/D under the above provisions on 09.07.2009 (the date wrongly typed as 09.09.2009 in the complaint), in which the accused had not only admitted his apprehension with the above quantity of heroine from the above place, but he had also disclosed his many personal and other details. It was also disclosed by him, inter- alia, in his above statement that the above bag containing the above packets of heroine was in fact given to him by one Harun at about 8.00 PM on 08.07.2009 at the petrol pump, gali No.1 Sanjay Gandhi Transport Nagar, G.T Karnal Road, New Delhi and the above Harun had asked him to keep the above bag containing heroine in his safe custody for three days and Harun had promised to pay Rs. 2,000/- to him for the said job. The accused had also stated in his above statement that he had met the above Harun on 25.06.2009 in a train while he was coming back to Delhi from Aligarh and the above Harun had promised to help him in coming out of his poor financial condition. The accused had also disclosed that though initially he was called by Harun at the above petrol pump on 04.07.2009 at about 5.00 PM, but he was again called at the same place on 08.07.2009 on 3.00 PM and then again on 8.00 PM when the above bag was actually handed over to him. However, the accused was not SC No. 58A/09 DRI Vs. Mohd Anwar Khan 7 able to tell any contact number and further details of the above Harun.
10. It is also alleged in the complaint that since the accused appeared to have committed offence punishable U/s 21 of the NDPS Act, he was arrested in this case and an intimation regarding his arrest was given to his father and after getting the accused medically examined, he was produced in the court and remanded to judicial custody. The sealed sample parcels of this case were got deposited with the C.R.C.L. on 09.07.2009 and vide the report dated 14.07.2009 Ex. PW12/A received subsequently, all the samples were found to be containing diacetylmorphine (heroin) and the percentage thereof was given to be ranging between 72.1% to 85.3%. The sealed parcel of the case property was also got deposited with the valuable godown of the New Customs House on 10.07.2009. One report U/s 57 of the NDPS Act Ex. PW2/L regarding the arrest of the accused and recovery of the above contraband substance from him was also sent by the IO/PW2 to his superior officer on 09.07.2009 itself and though, the residential premises of the accused were also raided on that day, but nothing incriminating could be recovered in the above raid. After recording the statement of the above two panch witnesses and completing the other necessary formalities of investigation, a complaint for the offence punishable U/s 21 of the NDPS Act was ultimately filed against the accused in the court.
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11. The complaint was filed in this court on
24.12.2009 and cognizance thereof was taken on the same day. A prima facie case for commission of the offence punishable U/s 21 (c) of the NDPS Act was found to be made out against the accused vide order dated 26.02.2010 and a charge for the said offence was also framed against him on the same day.
12. The prosecution in support of its case has examined on record total 12 witnesses and their names and the purpose of examination is being stated herein below:-
13. PW 1 Sh. Sujeet Kumar, Intelligence Officer of DRI, is the person who had received the above secret intelligence and had reduced it into writing as Ex. PW1/A and had further put up the same before Sh Atul Handa, Dy Director.
14. PW2 Sh. Deepak Khatri is the main Investigating Officer of this case and he has deposed in detail on the above lines of the prosecution story regarding the apprehension of the accused and the recovery of the above contraband substance from him. He has proved on record various documents prepared by him during the investigation of this case and has also identified the accused as well as the case property in the court.
15. PW3 Sh. Shyam Lal is one of the two panch SC No. 58A/09 DRI Vs. Mohd Anwar Khan 9 witnesses joined in the investigation by the IO/PW2 and he has also broadly deposed on the above lines of the prosecution story regarding apprehension of the accused from the above place with the above bag containing the packets of contraband substance and has also identified his signatures on some of the above documents prepared in his presence, the accused as well as the case property.
16. PW4 Sh. Adam is the other panch witness allegedly joined during the investigation of this case, but he has not supported the case of the prosecution and has turned hostile.
17. PW5 Sh. Lakhi Ram is the Inspector and In-Charge of the Valuable Godown, New Customs House at the relevant time when the sealed parcel of the case property of this case was deposited with him on 10.07.2009 for safe custody and he has proved on record his endorsement made on the deposit memo Ex. PW2/M and the relevant entry of the Valuable Godown Register made in this regard as Ex. PW5/A.
18. PW6 Sh. Jagdish Rai, the then Stenographer of DRI, had only taken the sealed sample parcels of this case to C.R.C.L. on 09.07.2009 vide forwarding letter Ex. PW6/A and had deposited the same there vide receipt Ex. PW6/B.
19. PW7 Sh. V.S. Pandey, the then Senior Intelligence Officer of DRI, is the Gazetted Officer of DRI before whom SC No. 58A/09 DRI Vs. Mohd Anwar Khan 10 the search of the accused and his above bag was conducted and the recovery of the packets of contraband substance was effected. He has also broadly deposed on the above aspect of the prosecution story and has identified the accused as well as his signatures on various documents prepared in his presence or countersigned by him. However, the case property was not shown to him for identification as Ld defence counsel has not insisted for the same.
20. PW8 Sh. K.K. Sood was working as a Deputy Director of DRI at the relevant time and it is with him that the sealed parcels of the case property and samples were kept for safe custody after seizure and he had sent the sample parcels to C.R.C.L. on 09.07.2009 vide forwarding letter Ex. PW6/A and the parcel of the case property to Valuable Godown on 10.07.2009 and had counter-signed the inventory/deposit memo thereof Ex. PW2/M. Though, he had also issued search authorization dated 09.07.2009 Ex. PW8/B for search of the residential premises of the accused, but nothing incriminating was recovered in the above raid, as stated above, and one execution report Ex. PW8/A in this regard was also submitted to him.
21. PW9 Sh. Atul Handa is the concerned Deputy Director of DRI at the relevant time before whom the above secret information reduced into writing as Ex. PW1/A was put up and who had directed for taking action thereon by the IO/PW2.
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22. PW 10 Sh. R Roy had only conducted the above raid at the house of the accused on the basis of the search authorization Ex. PW8/B, but nothing incriminating was recovered in the said raid and he had only prepared one nil panchanama Ex. PW10/A and submitted the execution report Ex. PW8/A in this regard.
23. PW 11 Dr. Vinod Kumar is the Chemical Assistant of the C.R.C.L. who had received the above sealed sample parcels of this case, along with test memos and forwarding letter, and had issued the receipt Ex. PW6/B in this regard to PW 6 Sh Jagdish Rai of DRI.
24. PW 12 Dr. Raj Kumar, Assistant Chemical Examiner of C.R.C.L. had examined the above samples, under the supervision and guidance of Sh. R.P. Singh, Chemical Examiner, and had given the final analysis report Ex. PW12/A, vide which all the above samples were opined to be containing diacetylmorphine and the percentage thereof was also mentioned in the report.
25. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record was put to the accused in his statement recorded U/s 313 Cr.P.C. and the same was denied by him to be incorrect. Though, he has admitted that he was present at the above bus stop opposite to Sanjay Gandhi Transport Nagar on the above date and time, but he has stated that he was called by some persons SC No. 58A/09 DRI Vs. Mohd Anwar Khan 12 towards a vehicle and at gun point he was forcibly made to sit in a vehicle and was taken away and falsely implicated in this case subsequently. He has also specifically stated that at the above relevant time, he was not carrying any bag with him nor any contraband substance was recovered from his possession and he was simply standing at the above bus stop for taking a bus to Lakshmi Nagar, where his sister was residing. However, no defence evidence was led by him on record.
26. I have heard the arguments advanced on behalf of the prosecution as well as the accused and have also gone through the written arguments/submissions filed on record by Sh. Satish Aggarwal, Ld SPP for DRI/prosecution and Sh. Akshay Kumar Sharma, Ld counsel representing the accused. The evidence led and the other record of the case have also been perused.
27. There are various loopholes, lacunae, contradictions and inconsistencies in the story of prosecution which make the story of the prosecution and the evidence led on record to be seriously doubtful and in the light of the same, it can be held that the prosecution has not been able to substantiate its charge and to prove the guilt of the accused beyond reasonable doubts.
28. The first flaw in the story of the prosecution is that the very constitution of the raiding team of DRI, its SC No. 58A/09 DRI Vs. Mohd Anwar Khan 13 composition and the visit at the above spot of apprehension of the accused with the above contraband substance is under clouds. Apart from PW3 Sh. Shayam Lal and PW5 Sh. Adam, who both are the alleged public witnesses joined in the raiding team, the only other witness of recovery examined by the prosecution on record is the IO/PW2 Sh. Deepak Khatri himself and no other official witness examined on record has claimed himself to be a part of the raiding team. Though, Ld SPP for DRI is right in making a submission that it is not the quantity but the quality of the evidence which matters and the conviction can be based solely on the testimony of sole official witness, but for that, the testimony of the official witness should be inspiring confidence and the credibility of the official witness should not be impeached or be under clouds.
29. According to the depositions made by the sole official witness of apprehension of the accused with the above bag examined on record, i.e. the IO/PW2 Sh. Deepak Khatri, the raiding team of DRI consisted of Sh. Sujeet Kumar IO, Sh. Ashok Kumar, STA and some sephoys and drivers of the vehicles and there were about 7/8 officials in total in the raiding team, but besides the above two names, the IO/PW2 has not been able to tell the name of any other official of the raiding team who had actually participated in the proceedings of this case. None of the documents prepared by the IO/PW2 at the spot or in the office subsequently contains the name or signatures of any such SC No. 58A/09 DRI Vs. Mohd Anwar Khan 14 other official witness of DRI. The most surprising part of the prosecution story on this aspect is that though according to the IO/PW2, PW1/Sh. Sujeet Kumar was also one of the members of the raiding team, but strangely enough PW1 Sh. Sujeet Kumar has only deposed about the receiving of the above intelligence and reducing it into writing as Ex. PW1/A and putting up the same before his senior officer and he has not made any depositions at all on record regarding his being in the raiding team or participating in any further proceedings. The above contradiction in the prosecution story is a material contradiction as participation in the raid was not something to be forgotten by PW1/Sh. Sujeet Kumar, if the claim of the IO/PW2 regarding PW1' s participation in the team is believed, and the only inference which can be derived from the depositions of PW1 is that either no such raiding team was constituted or visited at the spot or the depositions of the IO/PW2 regarding the participation of PW1 in the raiding team are false and in both these cases, the credibility of the IO/PW2 stands affected to a great extent.
30. The next contention of Ld defence counsel is that the mandatory provisions of Section 50 of the NDPS Act have not been complied with in this case as, from the record, it is not revealed that the alleged notice U/s 50 of the NDPS Act Ex. PW2/A was a valid notice as it nowhere states that the accused could have been produced before a nearest SC No. 58A/09 DRI Vs. Mohd Anwar Khan 15 Magistrate or a Gazetted Officer. He had also argued that the above notice and the alleged reply given by the accused on the same were all fabricated subsequently and no such notice was actually given to the accused at the spot of his alleged apprehension and this document was created subsequently in the DRI office.
31. It has been held time and again by their lordships of the Hon' b le Supreme Court as well as of different High Courts that the provisions of Section 50 of the NDPS Act are mandatorily to be complied with and the accused has a legal right to be apprised of that in case he wants then his search can be conducted in the presence of a Gazetted Officer or a Magistrate for the recovery of any contraband substance. However, it is also now well settled that the above provisions are not required to be complied with in case the recovery of the contraband substance has not to be effected from the ' p erson ' of the accused, but the same has to be or has been effected from some luggage, briefcase, suitcase or bag etc being carried by the accused. Reference in this regard can be made to some of the judgments in cases of State of H.P. Vs Pawan Kumar 2005 (4) SCC 350, Madan Lal Vs State of H.P. 2003 Crl. L.J. 3868 and Ajmer Singh Vs State of Haryana - 2 010 (2) SCR 785 (Crl. Appeal No. 436/09) etc. Since in the instant case also, as per the prosecution story, the recovery of heroin has not been effected from the ' person ' of the accused but from the above bag being carried by the accused, no SC No. 58A/09 DRI Vs. Mohd Anwar Khan 16 such notice was legally required to be served by the accused in view of the propositions of law laid down in the above cases. But, if the accused was apprised about his above legal right and was told that he can be produced for search before a Gazetted Officer or a Magistrate, then simply because the word ' nearest ' was not mentioned in the notice or told to the accused, it cannot be said that the above provisions were not complied with as it stood complied with by apprising the accused of his legal right of being searched before the above officers.
32. However, when the contents of the above notice, the reply given thereto by the accused and the signatures and dates appearing on the said notice are scrutinized carefully, the genuineness of the above document comes under serious clouds. As per the reply given by the accused at portion B to B of the above notice, the accused had stated that any Gazetted Officer of DRI can take his search as well as the search of his above bag in the DRI office as the above place was not secured for him. However, the above reply does not sound to this court to be a genuine reply which could have been given by the accused as keeping in view the fact that the accused comes from a very poor family and had studied only upto class 10th, he could never have been aware the meaning of DRI, what to say of that any Gazetted Officer (Rajpatrit Adhikari, as stated in his reply) was actually available in the office of the DRI. Further, there was no reason on SC No. 58A/09 DRI Vs. Mohd Anwar Khan 17 the part of the accused for feeling unsecured at the alleged place of his apprehension and expressing a desire to be taken to the office of DRI and rather the evidence on record reflects that the IO/PW2 had no intentions at all from the very beginning to conduct any proceedings at the spot. It is so because the evidence brought on record clearly shows that the above seal of DRI used in this case was got issued by the IO/PW2 only on 09.07.2009, i.e. on the next day of apprehension of the accused from the above spot at about 8.00 PM on 08.07.2009. The IO/PW2 has also not claimed that he had taken any testing kit or sealing material etc at the spot with him and rather during his cross examination he has also admitted that he had not made even any enquiry from the accused as to why the place of his apprehension was not found safe for search by him at the spot. Hence, when the evidence of the prosecution is scrutinized in entirety to test its veracity regarding the service of the above notice at the spot, it is found that there are various discrepancies in the prosecution evidence which clearly suggest that the above notice U/s 50 of the NDPS Act Ex. PW2/B allegedly given to the accused at the spot is a fake document, which has not come into existence at the alleged time and place and rather the same was created and manufactured subsequently. This gives a serious blow to the trustworthiness of the prosecution story, even though the above notice was not legally required to be served in this case.
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33. Though, the accused does not have any right to claim that the sealing and search proceedings should have been conducted at the spot of his apprehension itself, but the prosecution has certainly to rule out the possibility of manipulation of the above proceedings in case the investigating officer had chosen not to conduct these proceedings at the spot. It is so because the accused will certainly stand prejudiced in case such proceedings are not conducted in a fair manner and at an independent place and rather if the same are conducted in the office of the investigating agency itself where there can always be the possibility of manipulation of the proceedings and documents. It is not the case of the DRI that the investigating officer himself had chosen to shift the place of conduction of the above proceedings from the spot of apprehension of the accused to their office for any administrative conveniences or other compelling reasons and rather it is being projected as if the accused was not interested in conduction of the above proceedings at the spot and had expressed his desire to get these proceedings conducted in the office of the DRI on the ground that the place of his apprehension was not a secured place and this part of the prosecution story makes the very genuineness of the above notice Ex. PW2/A and the reply thereto given by the accused to be highly doubtful. Moreover, the Ld defence counsel has also pointed out an overwriting on the date appearing against the signatures put by one of the two alleged panch witnesses, namely Sh. Adam, on the above SC No. 58A/09 DRI Vs. Mohd Anwar Khan 19 notice at point E and it clearly appears that the date had been changed from 9 to 8 on the said notice and this also corroborates the contention of Ld defence counsel that no such notice was given to the accused at the spot and the same was fabricated subsequently.
34. The next contention of the Ld defence counsel is that the two public witnesses namely Sh. Shyam Lal and Sh. Adam allegedly joined by the IO/PW2 at the time of raid are false witnesses and no such witnesses were ever joined at the time of raid and the evidence led on record reflects that simply their signatures were taken on various documents in the DRI office. He has also argued that PW4 Sh. Adam has not supported the case of the prosecution regarding his participation in the raid and has turned hostile and even PW3 Sh. Shyam Lal has failed to corroborate the prosecution story on material particulars.
35. On perusal of the testimonies of PW3 Sh. Shyam Lal and PW4 Sh. Adam, it is found that PW4 Sh. Adam in his examination in chief has clearly stated that he had not visited the ITO bus stand, i.e. the area from where he was allegedly joined by the DRI officers in the raid, on 08.07.2009 and he was not aware anything about the present case. He has also stated in clear terms that he is an illiterate person and he can only put his signatures in Hindi and he had not visited Sanjay Gandhi Transport Nagar at G.T. Karnal Road with DRI officers on 08.07.2009. He SC No. 58A/09 DRI Vs. Mohd Anwar Khan 20 was also got declared hostile by Ld SPP for DRI and was cross examined on various aspects with regard to his participation in the above proceedings. Though, in later part of such his cross examination conducted on behalf of DRI, he has gone to admit some of the suggestions regarding the conduction of some proceedings in the DRI office in his presence and the signing of some documents by him, but even then he had not supported the prosecution case regarding the apprehension of the accused from the above spot in his presence or the recovery of the above packets containing heroin from the bag found in possession of the accused.
36. Now coming to the depositions of the other public witness namely Sh. Shyam Lal examined on record as PW3, it is observed that there are some material contradictions between his testimony and the depositions made by the IO/PW2 on record on certain aspects pertaining to the apprehension of the accused. As per the IO/PW2, they all had reached at the spot well in advance of the arrival of the accused there and according to him they had reached there at around 7.30/7.45 PM and according to the complaint, the time of arrival of the accused at the spot was about 8.15 PM and they all were already present there at that time. However, as per PW3 Sh. Shyam Lal, the accused was already standing at the above bus stop on the spot and he was standing there before they had reached at the spot. He has also stated that on reaching at the spot he had not come out of the vehicle and remained to be SC No. 58A/09 DRI Vs. Mohd Anwar Khan 21 seated in the vehicle itself and the accused was apprehended at the spot by the officers of DRI, but the depositions of the IO/PW2 suggest that they all had come out of the vehicle and were already keeping a surveillance at the spot when the accused had subsequently reached there. According to the IO/PW2, after they had apprehended the accused and the accused had replied in negative on being asked about the presence of the contraband substance on his 'person' or in his bag, he was introduced with the public witnesses before being questioned again regarding his being in possession of the contraband substance, in the presence of the public witnesses, but according to PW3, he was not introduced with the accused at the spot. Being conscious of the consequence of his above depositions that he remained seated in the vehicle when some officers of DRI had apprehended the accused at the spot, PW3 had also tried to improve upon and cover up by saying that after apprehension of the accused, the accused was brought near the vehicle in which he was sitting and hence he was able to hear the conversation between the DRI officers and the accused. It appears that he was forced to make the above depositions as he had already stated on record that the accused was told by the DRI officers regarding his search to be conducted in the presence of a Gazetted Officer etc.
37. Again, like the number of the officials of DRI who had actually participated in the raid, the number of vehicles with the raiding team had also remained a mystery SC No. 58A/09 DRI Vs. Mohd Anwar Khan 22 as none of the above two witnesses has been able to say exactly as to in how many vehicles they had reached at the spot. The IO/PW2 has only stated that they were 7/8 officials in the raiding team and he does not now remember the registration numbers or other details of the vehicles with them and according to PW5 there were 4/5 vehicles with the raiding team. With only 7/8 officials in the raiding team, there does not appear to be any justification in carrying 4/5 vehicles in the raiding team and the above witnesses appear to be telling a lie on this aspect. No logbooks or other record regarding the visit of any such vehicles or officers at the spot has also been produced on record and though otherwise it was not necessary to be produced, but when the very constitution of the raiding team is under doubts, it could have provided some corroborations to the prosecution case.
38. Again, though according to PW3 after the apprehension of the accused from the spot, the accused was brought to the office of DRI and there in search of the above bag carried by the accused, some packets of contraband substance were recovered and some samples were also taken after testing of the above, but he is completely silent with regard to the sealing of any such sample parcels or the parcel of the remaining case property or the seal of DRI used in the sealing process. He has also simply identified his signatures as appearing on different documents prepared in the above process, like the panchnama SC No. 58A/09 DRI Vs. Mohd Anwar Khan 23 Ex. PW2/B, its annexures Ex. PW2/B1 to Ex. PW2/B10, the notice U/s 50 of the NDPS Act Ex. PW2/A and test memos Ex.PW2/G and PW2/K etc, but has nowhere deposed about the contents of most of these documents, except the notice U/s 50 of the NDPS Act, whereas according to the prosecution story the contents of the panchnama were read over and explained to the public witnesses before their signatures were taken on the said document.
39. As per the panchnama, the above proceedings of sealing and seizure etc were concluded at about 4.00 PM on 09.07.2009, i.e. the next day of apprehension of the accused as he was apprehended at about 8.15 PM on 08.07.2009, however, if the depositions made by PW3 Sh. Shyam Lal are to be believed, everything stood concluded at about 10.00 PM to 11.00 PM on 08.07.2009 itself as he has stated that they had reached, alongwith the accused in the DRI office at about 9.00 PM and the proceedings were completed at about 10.00 PM to 11.00 PM, whereas according to the depositions made by the IO/PW2 and PW7 Sh. V.S. Pandey, the accused was brought in the DRI office at around 10.00/10.30 PM only on that day and the proceedings had continued till 4.00 AM on 09.07.2009. If the depositions of PW3, who is a public witness produced by the prosecution itself are believed, even the above panchnama Ex. PW2/B, which is a vital document of the prosecution, also appear to be a fabricated document as this document according to the prosecution story was concluded and signed on SC No. 58A/09 DRI Vs. Mohd Anwar Khan 24 09.07.2009 and the date 09.07.2009 also appears to be there against the signatures of all the persons appearing on this document. This is despite the fact that PW3 has stated in clear terms that he had signed all the documents on 08.07.2009 itself.
40. Again, some other manipulation of the documents is also visible from the record and from the evidence led on record and it is regarding the summons and statements U/s 67 of the NDPS Act of the above two public witnesses recorded during the investigation and tendered before the IO/PW2. As per the prosecution case and the depositions made by the IO/PW2 on record, the summons Ex. PW2/N and PW2/P were served upon the above two public witnesses Sh. Adam and Sh. Shyam Lal respectively on 09.07.2009 itself, which is the date of conclusion of the above proceedings. This date also appears on the above summons against the signatures of the IO/PW2 as well as of the above two public witnesses as appearing on the said documents. Since, PW4 Sh. Adam has turned hostile and PW3 Sh. Shyam Lal has stated that he had signed all the documents on 08.07.2009 itself, the above service or receipt of the summons by these witnesses on 09.07.2009 makes the above documents to be doubtful. Again, according to the above summons, PW4 Sh. Adam was directed to be present for statement in the DRI office at 11.00 AM on 28.07.2009 and PW3 Sh. Shyam Lal was directed to be present there on 09.09.2009 at the same time. There does not appear to be any justification for SC No. 58A/09 DRI Vs. Mohd Anwar Khan 25 serving a summons upon PW3 Sh. Shyam Lal for a date which falls after about two months from the date of seizure of the contraband substance. Further, as per the prosecution story, the above two witnesses had also appeared before the IO/PW2 on the above given dates in compliance of the above summons and had also tendered their respective statements Ex. PW2/O and PW2/Q respectively.
41. As per the prosecution case and the depositions of the IO/PW2 as well as of PW3 Sh. Shyam Lal, PW4 Sh. Adam was not conversant with the written Hindi language in which the above statement Ex. PW2/O of Sh. Adam was tendered and hence, his above statement was written in the handwriting of PW3 Sh. Shyam Lal. However, neither in the depositions made by the IO/PW2 or in the depositions of PW3 Sh. Shyam Lal, it has come on record as to for what purpose PW3 Sh. Shyam Lal was present in the office of DRI on 28.07.2009 as he was not summoned to appear in the DRI office on this date and rather he was summoned to appear much after the above date, i.e. 09.09.2009. The statement Ex. PW2/O of Sh. Adam also carries an endorsement made by Sh. Shyam Lal that he had written the above statement as per the dictation of Sh. Adam and also on the request of Sh. Adam and even oral depositions have been made on record by him as well as the IO/PW2 in this regard, but none of them could justify the presence of Sh. Shyam Lal in the DRI office on the above date, i.e. 28.07.2009, when the above statement was tendered before the IO/PW2 by Sh. Adam.
SC No. 58A/09 DRI Vs. Mohd Anwar Khan 26 Again, the above statement Ex. PW2/O of Sh. Shyam Lal also carries an endorsement made by the IO/PW2 that the same was tendered before him on the above date. Since, there is no evidence led on record by the prosecution to show the presence of Sh. Shyam Lal, who is the actual author of the above document, in the DRI office on 28.07.2009, there is every possibility that the above document is also a fabricated document.
42. Besides the above, there is some other evidence also which leads this court to come to the above conclusion as even the statement Ex. PW2/Q dated 09.09.2009 tendered by Sh. Shyam Lal before the IO/PW2 carries an endorsement made by the IO/PW2 thereon that the same was tendered before him on 28.07.2009, whereas this statement was actually tendered on 09.09.2009, according to the prosecution case as well as the depositions of the above witnesses himself. The above endorsement made by the IO/PW2 on this statement Ex. PW2/Q cannot be taken lightly and cannot be ignored as it is the date on which the statement of the other public witness Sh. Adam was allegedly tendered before the IO/PW2 and rather it leads this court to believe that both the above statements of the public witnesses appear to be subsequently fabricated at the same point of time.
43. It is also observed on appreciation of the prosecution evidence that according to the IO/PW2 the SC No. 58A/09 DRI Vs. Mohd Anwar Khan 27 accused was apprehended within about 2/3 minutes of his reaching at the spot, but it is strange that he has not been able to tell the direction from which the accused had reached at the above bus stop though, according to him, they were already waiting there for the accused for a considerable time. He was also not able to remember the direction in which the accused had started proceeding prior to the apprehension of the accused at the spot. As already stated above, PW3 Sh. Shyam Lal has stated on record that the accused was already standing there at the above bus stop when they had reached there and he was apprehended by the DRI officers within 5 minutes of their reaching at the above bus stop when he had started moving towards Delhi.
44. The IO/PW2 was the most material witness of the prosecution story, but it is strange that he has not been able to remember many of the material things like the above directions of coming and going of the accused, the names of the members of the raiding team except one Sh. Sujeet Kumar, the exact position of the accused at the place of interception and also the name of the official of DRI who had called the public witnesses etc. It is necessary to mention here that though the IO/PW2 has claimed that the two public witnesses were called in the office of DRI itself from the nearby area of ITO, but he has not been able to tell as to by whom and by what mode these public witnesses were called. In view of the facts that one of the panch witnesses namely PW4 Sh. Adam has turned hostile SC No. 58A/09 DRI Vs. Mohd Anwar Khan 28 and there are material contradictions in the statements of PW3 Sh. Shyam Lal and the IO/PW2 regarding the factum of apprehension of the accused from the above spot with the above bag containing the contraband substance and further in view of the above manipulation of documents, the evidence led on record by the prosecution regarding recovery of the above substance from the possession of the accused does not inspire any confidence.
45. Besides the above evidence of recovery of contraband substance from the possession of accused, the statement of the accused tendered U/s 67 of the NDPS Act Ex. PW2/D, which was given in response to the summons Ex. PW2/C served upon the accused, is also there on record. It is being argued on behalf of DRI that the above statement is the voluntary statement given by the accused in his own handwriting and it not only contains his admissions regarding the above contraband substance having been recovered from his possession, but also about the entire search and seizure proceedings. It is not being disputed on behalf of the accused that the above statement Ex. PW2/D is not in the handwriting of the accused, but the defence case is that the above statement is a dictated statement which the accused was forced to write and he had also retracted from the same vide his retraction application dated 25.09.2009 on record.
46. As far as the above statement Ex. PW2/D and the SC No. 58A/09 DRI Vs. Mohd Anwar Khan 29 retraction application dated 25.09.2009 of the accused are concerned, it is found that the above retraction was filed in the court more than about 2½ months after the tendering of the above statement Ex. PW2/D and it nowhere even contains the signatures or thumb impression of the accused and it is a typed application given and signed by Ld counsel for the accused representing him at that time. The above application was also replied by the Ld SPP for DRI and he is right in making a submission that the above retraction application is nothing but a result of the legal advise. Moreover, it has been drafted in a very vague manner.
47. Though, the Ld SPP for DRI has relied upon the judgment in case of Kanhaiya Lal Vs. Union of India 2008 (1) JCC (Narcotics) 23 that such retraction statement should be proved on record as per the provisions of the Evidence Act and further in case of K.T.M.S. Mohd & Anr Vs. UOI 1992 SCC (Crl.) 572 to the effect that it is for the maker of such a statement to establish that it was involuntary and extracted by illegal means, but the above judgments no longer hold good in view of the subsequent judgments in cases of Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC) and Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 etc which are to the effect that such a retracted confessional statement, even though the retraction is not proved in evidence as per law, SC No. 58A/09 DRI Vs. Mohd Anwar Khan 30 is a very weak piece of evidence and cannot be made the basis of conviction of the accused in the absence of any independent corroboration thereof. Even otherwise, as discussed above, the above retraction is being discarded as being of no consequence as the same is not signed by the accused, was filed after a gap of about 2½ months and apparently appears to be the result of legal advise as it had been filed by the Ld counsel for the accused.
48. However, even otherwise the above statement Ex. PW2/D of the accused does not appear to be a voluntary statement when it is scrutinized in the light of the other evidence led and the manipulation of documents brought on record, though it contains the personal details of the accused and the factual details of the case as per the prosecution story mentioned therein. The prosecution has not been able to bring on record any independent material to corroborate the contents thereof. It is well settled and also discussed above that such a retracted confessional statement cannot be made the sole basis of conviction of an accused under the NDPS Act and it can only be used for corroboration of some other evidence brought by the prosecution on record. However, as also discussed above, the evidence led by the prosecution on record regarding the recovery of the above contraband substance from the accused does not inspire confidence in view of the above manipulation of facts and documents brought on record and in view of the same this statement also cannot be used to SC No. 58A/09 DRI Vs. Mohd Anwar Khan 31 corroborate the same or to make it the basis of conviction of the accused for the above offence. The judgment in case Ravinder @ Bittoo Vs. State of Maharashtra 2002 (2) JCC 1059 (SC) being relied upon by Ld defence counsel on this aspect can be differentiated as in this case the entire evidence of the prosecution regarding his apprehension from the above place with the contraband substance is under serious clouds and even reasonable doubts are there on record regarding the voluntariness of the said statement and further various material documents of the prosecution case appear to be fabricated.
49. One other contention of Ld SPP for DRI is that huge recovery of heroin weighing about 10 kg has been effected from the possession of the accused and in view of the law laid down in case of State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, the question of implanting of the same does not arises and the prosecution case should be believed. However, as discussed above, the evidence led by the prosecution on record regarding recovery of the above contraband substance is not found to be convincing and the same is highly doubtful and there is also manipulation of various documents visible on record and hence, the accused cannot simply be convicted in this case as the contraband substance shown to have been recovered from him is more than 10 kg in weight because the prosecution has failed to lead on record some concrete and convincing evidence to show its recovery from the SC No. 58A/09 DRI Vs. Mohd Anwar Khan 32 possession of the accused.
50. Another contention of Ld SPP for DRI is that since the accused has been found to be in possession of the above contraband substance as per the prosecution case, the presumption of a culpable mental state in terms of Section 35 of the NDPS Act is available to the prosecution against him and further in terms of the provisions of Section 54 of the above said Act, he shall be presumed to have committed an offence under this Act as he has failed to account for or explain his possession of the above contraband substance. It has been argued that the onus of proving his innocence lied upon the accused in view of the evidence led on record regarding the recovery of the above contraband substance from his possession. Judgment in case Pawan Mehta Vs. State 2002 Drugs Cases 183 has also been relied upon by him in this regard.
51. However, the above arguments and submissions being made by Ld SPP for DRI are without any merits as the above presumptions contained in the above sections can come into operation only when the evidence led by the prosecution on record regarding the recovery of such contraband substance from the possession of the accused is convincing and trustworthy and these presumptions cannot be resorted to if the evidence regarding recovery of possession is doubtful or under serious clouds, as is in the present case. Reference in this regard can be made to the SC No. 58A/09 DRI Vs. Mohd Anwar Khan 33 celebrated case of Noor Aga Vs State of Punjab & Anr. 2008(3) JCC (Narcotics) 135, wherein the following observations were made by the Hon ' b le Supreme Court:-
87. " Section 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is " beyond all reasonable doubt "
but it is ' preponderance of probability ' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. "
52. It is also an argument of Ld SPP for DRI that the defence of false implication taken by the accused is a very weak defence and no evidence has been led by the accused on record in his defence to substantiate the same and hence, the case of the prosecution should be believed, but this argument also does not hold good as the SC No. 58A/09 DRI Vs. Mohd Anwar Khan 34 prosecution has to prove its case against the accused beyond reasonable doubts and it cannot be given any advantage of the weakness of the defence. Simply because the accused has admitted that he was picked up by some persons from the above place, it cannot be taken to be an admission on his part of his guilt or the possession of the above contraband substance.
53. It is well settled that the onus of proving its case beyond reasonable doubts is always upon the prosecution and in a case under any enactment like the NDPS Act laying down severe punishments, this onus becomes more high in degree and the duty of the court is to ensure that the provisions of such an enactment are complied with strictly and a higher degree of assurance is required for convicting the accused. Reference in this regard can be made to the judgment in case of State of Punjab Vs. Baldev Singh 1999 Drugs Cases 150 : (1999) 3 SCC 977, wherein it was held that:-
" It must be born in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed " .
54. Reference can also be made to the case of Mausam Singh Roy Vs State of WB (2003) 12 SCC 377 wherein also it was held that it is a settled principle of criminal jurisprudence that the more serious the offence is, the SC No. 58A/09 DRI Vs. Mohd Anwar Khan 35 stricter is the degree of proof, since a higher degree of assurance is required to convict the accused.
55. In view of the above discussion, it is held that the prosecution has miserably failed to prove its charge and the guilt of the accused for the offence punishable U/s 21(c) of the NDPS Act beyond reasonable doubts. The accused is, therefore, acquitted of the above charge giving benefit of doubt. Let he be released from custody in this case if he is not wanted to be detained in any other case.
56. The case property, i.e. the above contraband substance, be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of any appeal to be filed against this judgment, as the case may be.
57. A bond U/s 437A Cr.P.C. on behalf of the convict has already been furnished on record. Hence, let the case file be consigned to record room.
Announced in the open court on 18.03.2013 (M.K.NAGPAL) ASJ/Special Judge NDPS South District Saket Court Complex New Delhi SC No. 58A/09 DRI Vs. Mohd Anwar Khan