Sc No. 71A/07 Dri vs Gurudev Singh & Anr. on 18 November, 2013

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Delhi District Court

Sc No. 71A/07 Dri vs Gurudev Singh & Anr. on 18 November, 2013

                                        1


              IN THE COURT OF SHRI M.K.NAGPAL
           ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
               SAKET COURT COMPLEX, NEW DELHI


Directorate of Revenue Intelligence
Delhi Zonal Unit, New Delhi
Through Sh Gurjit Singh, Intelligence Officer



                                 V E R S U S

1. Gurudev Singh
S/o Late Sh Jai Singh
R/o 7/340, Trilokpuri
New Delhi

2. Mandeep Singh
S/o S. Harbhajan Singh
R/o Village Havelian, PO Noshera
District Taran Taran
Punjab


SC No. : 71A/07
U/S    : 21/25/29 NDPS Act
Computer ID No. 02403R0747462007

Date of institution                             :   01.11.2007
Date of reserving judgment                      :   31.10.2013
Date of pronouncement of judgment               :   18.11.2013
Decision                                        :   Convicted


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)

through Sh Gurjit Singh, Intelligence Officer, against

SC No. 71A/07                                        DRI Vs Gurudev Singh & Anr.
                                             2


the     accused         Gurudev         Singh      and     Mandeep         Singh        for

commission of the offences punishable U/S 21/25/29 of the NDPS Act, 1985.

2. The brief facts of the case are that on 07.05.2007, PW1 Sh Kamal Kumar, Intelligence Officer of DRI Headquarters, had received a secret information at around 3:00 PM that a Silver colour vehicle make Mahindra Scorpio bearing registration no. DL 7CC 8955, in which some narcotics drugs were concealed, would be coming near the Trilokpuri T-Point, adjacent to Block no. 8 at Gazipur, Noida Road, Delhi between 5:30 to 6:30 PM on that date. PW1 had reduced the above information in writing as Ex. PW1/A and had then put up the the same before PW9 Sh Pankaj K. Singh, Deputy Director of DRI, who had called the complainant/PW3 Sh Gurjit Singh, who is also an Intelligence officer of DRI and the main investigating officer of this case, for taking necessary action on the said information.

3. It is alleged that acting upon the said information, the IO/PW3 Gurjit Singh had called two public witnesses at around 4:00 PM and they both were told about the said information by him and on his request, they had also agreed to witness the possible interception of the above said persons and the subsequent search proceedings. A team of the DRI officers, accompanied by the two public witnesses, had then reached at the above place and had started maintaining a SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

surveillance at the spot and at around 5:30 PM, they had spotted one silver colour Mahindra Scorpio vehicle bearing the above registration number while coming from the side of Khichripur and the above vehicle was made to stop. The vehicle was found to be occupied by two persons and the members of the DRI had introduced themselves to the occupants of the vehicle and the name of the person sitting beside the driver of the above vehicle on inquiry was revealed as the accused no. 1 Gurudev Singh, a resident of Trilokpuri, Delhi, and the identity of the driver of the said vehicle was revealed as the accused no. 2 Mandeep Singh, a resident of Taran Taran in Punjab. The two public witnesses were also introduced to both the accused persons by the IO/PW3.

4. Then, both the accused persons were appraised about the said secret information and they were asked as to whether they were carrying any narcotics drugs on their 'persons' or in their above vehicle, to which both of them had replied in negative. They both were informed that in view of the above specific information available with the DRI Officers, the above said vehicle as well as their 'persons' were required to be searched and the IO/PW3 had also shown them a search authorization U/S 41 of the NDPS Act Ex. PW2/A issued in this regard and the contents thereof were also made known to both the accused persons and since the above place of apprehension of the accused persons was a busy and crowded public place and not conducive for conducting the further search SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

proceedings, the IO/PW3 had asked both the accused persons to accompany them to the office of the DRI situated at the Drum Shape Building, IP Bhawan, IP Estate, New Delhi, to which the accused persons had also agreed.

5. Thereafter, the accused persons, alongwith the above said vehicle and the two panch witnesses, were brought to the above said building and there the IO/PW3 had served the notices U/S 50 of the NDPS Act Ex. PW3/A and PW3/B respectively upon the accused Gurudev Singh and Mandeep Singh, vide which both the accused persons were appraised about their legal rights to get their above said vehicle and persons searched before a Gazetted Officer of a Magistrate and vide their separate replies given on the above notices in their own handwritings, both the accused persons had opted for the conduction of the above search by any officer of DRI. Then, the search of the above vehicle of the accused persons was conducted by the IO/PW3, in the presence of the public witnesses, and the same had resulted into the recovery of total 33 transparent polythene packets containing a cloth packet each, stuffed with some off white colour powdery/granular substance. Out of the above 33 packets, 10 packets were found kept in a light green colour shoulder bag placed in the space for leg room between the front and the middle seat, 12 packets were found concealed beneath the foot- mat of the middle and rear seat and the remaining 11 packets were found concealed inside the stepney of the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

vehicle. All the above packets, alongwith the accused persons and the panch witnesses, were then taken to the office of the DRI situated at 7th floor of the said building for detailed search and examination.

6. It is further alleged in the complaint that, thereafter, all the above packets were opened in the DRI office and the same were found to contain white colour cloth bags, which were stitched from three sides and were bearing some rubber stamp markings, and on opening the said cloth bags, it was found that 23 out of the above cloth packets were containing a single layer heat sealed transparent polythene packet, each containing some off white colour granular/powdery substance, and the other 10 packets were found containing double layer of transparent polythene containing similar off white colour granular/ powdery substance. These packets were cut opened one by one and a sharp pungent smell was found emanating therefrom and a small quantity of substance was taken from each of these packets and was tested individually and the same had given positive results for heroin. In total, four different types of markings were found present on these cloth packets and the packets were marked as A-1 to A-12, B-1 to B-10, C-1 to C-10 and D-1, as per the patterns of the markings found on the clothes of these packets. The gross weight of the above packets was found to be 34.022 KG and the net weight of the heroin contained therein to be 33.065 KG. Some documents, including photocopies of RC, Insurance SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

Certificate, Pollution Certificate, Delivery Receipt and some Toll Payment Slips and one service book of the above vehicle, were also recovered from the dashboard of the above vehicle. The above documents were also taken into possession. The personal search of both the accused persons was also conducted and nothing incriminating was recovered in their search, but the driving licenses of the accused persons and one mobile phone each etc were recovered from their respective possessions and the same were also resumed for the purposes of investigation. All the above packets of heroin, alongwith its packing materials as well as the above shoulder bag and documents, were seized for violation of the provisions of the NDPS Act.

7. Thereafter, the IO/PW3 had taken out two representative samples of 5 grams each out of the heroin of eight different lots of the above packets, i.e from packets A-1 to A-5, one set marked as A-1-5A and A-1-5B, from packets A-6 to A-10, one set marked as A-6-10A and A-6-10B, from packets A-11 to A-12, one set marked as A-11-12A and A-11-12B, from packets B-1 to B-5, one set marked as B-1-5A and B-1-5B, from packets B-6 to B-10, one set marked as B-6-10A and B-6-10B, from packets C-1 to C-5, one set marked as C-1-5A and C-1-5B, from packets C-6 to C-10, one set marked as C-6-10A and C-6-10B and from packet D-1, one set marked as D-1A and D-1B. The above samples were put in separate zip locked polythene pouches and were correspondingly marked as SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

above. All these polythene pouches were further put in separate paper envelopes and these envelopes were also correspondingly marked and sealed with the seals of Directorate of Revenue Intelligence-10, over and above a paper slip pasted on each of the envelopes and bearing the dated signatures of the IO/PW3, public witnesses as well as the accused persons. The remaining heroin of the above packets was repacked in the same packets and these packets were further kept in cloth pieces, stitched and sealed with the same seals, which were affixed over similar paper slips pasted on these envelopes, which were also signed by all the above persons, and these packets were marked as X1 to X33. These sealed packets of remaining case property were then further put into a steel trunk, alongwith their packings as well as the above green colour shoulder bag, and this trunk was also wrapped with the cloth, stitched and sealed in the similar manner. Test memos in triplicate and a detailed panchnama Ex. PW3/C were prepared by the IO/PW3 with regard to the above proceedings and a facsimile of the above seal of DRI was affixed on the test memos as well as the panchnama.

8. The summons U/S 67 of the NDPS Act Ex. PW3/D dated 08.05.2007 were then issued to the accused Mandeep Singh and in response to the above summons, he had also tendered his statement Ex. PW3/E in his own handwriting and in Punjabi language, wherein he had admitted their apprehension with the above contraband substance, from SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

the above said place and in the above said manner, besides disclosing his personal details. He had disclosed in his above statement that he was driving a vehicle at Amritsar on hire basis for the last about six months and during that time he had met one Pindu, who was aged about 24 years and a resident of Chheharta and running a scooter repairing shop at Chheharta Jhabaal Road near Chheharta Gurudwara at Academy Road and the above Pindu had persuaded him for smuggling of heroin and Pindu had offered him healthy amount for that. He had also stated that though initially he was not willing for the above job, but Pindu had started teasing him at his financial condition and had also offered him that if he would work for Pindu, then Pindu would purchase a vehicle for him on loan basis and an amount of Rs 50,000/- shall be deducted from the loan amount for his every visit to Delhi for delivery of heroin, to which he had agreed.

9. The accused Mandeep Singh had also disclosed in his above statement that he had earlier delivered 2 KG and 6 KG of heroin respectively on two different occasions to some South African person near the Chand cinema, as per the instructions of the above Pindu, and he had visited and stayed at the house of accused Gurudev Singh on both these occasions and the accused Gurudev Singh had also accompanied him at the time of said deliveries. It was also disclosed by him that at the time of delivery of the 6 KG of heroin, they had SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

come from Punjab in a red colour Tata Safari vehicle of Sh Joginder Singh, for whom he was working as a driver earlier and from whom the vehicle was taken on a false pretext. He had also disclosed that the above Mahindra Scorpio vehicle no. DL 7CC 8955 being used by them at the time of their interception in this case was purchased by them from Delhi on 04.05.2007 as the above Pindu had given him an amount of Rs 5,00,000/- for purchase of the above vehicle and the said vehicle was purchased from a dealer near the Parparganj flyover and the accused Gurudev Singh had also accompanied him at that time and thereafter the above vehicle was taken by them to Punjab, where the above 33 KG of heroin was concealed by the above Pindu in the said vehicle, which they were bringing to Delhi for delivery to some persons, as per the instructions of the above Pindu. He had also stated that the above co-accused Gurudev Singh was in his double relation as he was his uncle as well as and his cousin in relations.

10. It is alleged that, thereafter, the summons Ex. PW3/F dated 08.05.2007 U/S 67 of the NDPS Act were served upon the accused Gurudev Singh and in response to the said summons he had also tendered his voluntary statement under the above provisions before the IO/PW3 in his own handwriting and in his said statement, besides disclosing his various personal details, he had also admitted their apprehension with the above contraband substance from the above spot and in the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

above said manner. He had also disclosed therein, inter-alia, that the co-accused Mandeep Singh is the son of his maternal uncle Sh Harbhajan Singh and about 20 days ago his above co-accused Mandeep Singh had called him at ISBT and had told him that he had brought 2 KG of heroin from Punjab and had sought his help to deliver the above heroin in Delhi as he was not aware about the roads of Delhi. It was also disclosed by the accused Gurudev Singh in his above statement that at that time he was working as a driver with some person/company and was running on leave and hence, he had agreed to the above proposal of his co-accused and had taken his co- accused to his residence at Trilokpuri and on the same day in the evening, they had gone near the Chand cinema in Kotla area and his co-accused had delivered the above 2 KG of heroin to some African person there.

11. It is also alleged that it was further disclosed by the accused Gurudev Singh in his above statement that at the request of his co-accused, he had accompanied his co-accused to Amritsar, Punjab by bus and he had separated from his co-accused and had gone to meet his widow sister-in-law (widow of his cousin brother) in Taran Taran and his co-accused had told him that he would come to take him after 4-5 days and after about 5-6 days therefrom, his co-accused had reached the above village in a red colour Tata Safari vehicle and took him alongwith him and told him on the way that he had brought 6 KG of heroin which was to be delivered to SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

someone in Delhi, and they both had then come to Delhi, stayed at his above residence in Trilokpuri and then in the same evening they had gone to the above place near Chand cinema, where his co-accused had again delivered the above 6 KG of heroin to the same African person and on both these occasions his co-accused had given him Rs 300-400/- for his expenses. It was also stated by him in his above statement that while going back to Punjab after the above delivery, his co-accused had told him that next time he had to purchase a vehicle from Delhi and then they would bring sufficient quantity of goods from Punjab and this time his co-accused will give him Rs 10,000/- for his help.

12. It was further stated by the accused Gurudev Singh in his above statement that his co-accused Mandeep Singh had again reached at his above house in Delhi on 03.05.2007 and on 04.05.2007 they both had purchased a Mahindra Scorpio vehicle bearing registration no. DL 7CC 8955 in the name of his co-accused from a dealer and then on 05.05.2007 they both had gone to Punjab in the above vehicle and his co-accused had dropped him in Village Gandhiwind and told him that they both will proceed for Delhi in the night of 06.05.2007. It was also stated by him that they both had left from Delhi in the night of 06.05.2007 in the above vehicle of his co- accused and on the way his co-accused had told him that this time he had brought 33 KG of heroin and after delivery thereof, his co-accused will pay him Rs SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

10,000/- and they both had reached Delhi on 07.05.2007 and in the evening at about 5 PM, his co-accused had told him that they will have to separate 10 KG of heroin for delivery of the same at Vikaspuri and then they had proceeded towards Khichripur in the said vehicle and during that period the co-accused Mandeep Singh had taken out 10 KG of heroin and had put the same in a green coloured bag and they were planning to park the above vehicle at his residence and then to proceed to Vikaspuri by an Auto and he was told by his co-accused that the delivery of the goods/heroin was to be made to someone at the New Pastry Shop, but they both were apprehended by the DRI officers as soon as they were about to turn towards his house from the Ghazipur Road. Though, in his above statement the accused Gurudev Singh had provided some details of his employer, but he was not able to disclose as to from where and from whom the above heroin was being procured by his above co-accused.

13. Since both the accused persons appeared to have committed offences punishable U/S 21, 25 and 29 of the NDPS Act, they were arrested in this case on 08.05.2007 itself and were got medically examined and remanded to custody. The residential premises of the accused Gurudev Singh at Trilokpuri were also raided by a team of the DRI Officers led by PW10 Sh Jyothimon, but neither any narcotic substance nor any other incriminating article were recovered in the said search. However, it had transpired during the above raid that SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

one red colour Tata Safari vehicle bearing no. DL 3CJ 8034, which was found parked in the street of the above house, belonged to the accused Mandeep Singh and he had brought it there about two weeks ago. The above vehicle was also searched by the DRI Officers, after it was opened with the key provided by one Smt Raj Kaur, who is the sister-in-law (bhabhi) of the accused Gurudev Singh, but nothing incriminating was also recovered from the said vehicle and PW10 had requested the local police of the Operations Cell of the East District to take custody of the vehicle till further orders.

14. The DRI Officers had also requested their counterparts in Punjab to take some follow-up action regarding the search of the residential house of accused Mandeep Singh in Punjab and the above house was also searched by a team of DRI Officers led by PW25 Sh Ramesh Sharma, but nothing incriminating was also recovered in the said search. It was also revealed during enquiries that the brother and uncle of the accused Mandeep Singh were arrested by the Punjab Police few days ago in a case of fake currency.

15. One sealed set of sample parcels was deposited with the CRCL Delhi on 09.05.2007 by PW6 Sh Jagdish Rai, alongwith the duplicate test memos and the forwarding letter Ex. PW5/B given by PW5 Sh Alok Aggarwal. The sealed parcels of the case property was also got deposited in the Valuable Godown of the New Customs SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

House through PW4 Sh D.B.Sharma, In-charge of the Valuable Godown at the relevant time, and from 07.05.2007 till the time the case property was deposited there, it had remained in the office of the Assistant Director DRI in lock and sealed condition. The statements of the two panch witnesses U/S 67 of the NDPS Act were also recorded on 16.05.2007, in which they both had deposed about their participation in the panchnama proceedings.

16. Some enquiries were conducted and some statements were also recorded regarding the ownership of the above Mahindra Scorpio vehicle bearing no. DL 7CC 8955 and it was revealed that the above vehicle was registered in the name of one Smt Rajbala Gupta, and she had claimed to have sold the above vehicle on 23.02.2007 to one Sh Sirajuddin and had also handed over to him the signed transfer documents, i.e. Forms No. 29 and 30 of the M.V.Act and the above Sirajuddin had further sold the said vehicle to the accused persons, but it was not sold by him directly and it was sold through one M/S Durga Motors, Preet Vihar and one Mr Raju, working as an auto dealer in Pandav Nagar in the name and style of Shalimar Car Bazar, and it had also transpired that the above two accused had purchased the said vehicle for a sum of Rs 5,15,000/-, out of which they had also paid a sum of Rs 5,00,000/- and had taken the delivery of the said vehicle of 04.05.2007 and the balance amount of Rs 15,000/- was to be paid subsequently, when the accused SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

Gurudev Singh was to deliver a copy of his ID document of Delhi to them for transfer of the said vehicle in his name, though it was actually purchased by the accused Mandeep Singh as he wanted to get it transferred in the name of accused Gurudev Singh to keep the Delhi registration number. The copies of the driving licenses of both the accused persons, which were handed over by them to the above brokers at the time of purchase of the above vehicle and which were bearing their respective signatures, were also taken into possession from the above brokers.

17. The other vehicle make Tata Safari having number DL 3CJ 8034 was found to be registered in the name of one Sh Muzzafar Shah at his given address of Pamposh Enclave, New Delhi, but it was found that he had already left the Delhi address and was residing in Sri Nagar. During the enquiries conducted from him and some other persons, it was also revealed that the above Tata Safari vehicle was though registered in his name, but he had already sold it to one Sh Nirmal Singh, who was a broker of District Ludhiana, Punjab, on 28.02.2007, who had further sold it to one Sh Surender Kumar of District Amritsar on 26.05.2003 and Sh Surender Kumar had further sold it to one Sh Harchand Singh of District Taran Taran after about three months of its purchase and the above Harchand Singh was found to be confined in a case of NDPS Act in Amritsar Jail at that time and the statement of the above Harchand Singh was yet to be recorded, with SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

the permission of the concerned court, when this complaint was finalized by the DRI Officers. However, none of the above named persons, who could be interrogated by the DRI officers, were found to be known to the accused Mandeep Singh who had allegedly used the above vehicle in the transportation of the drugs, though from the enquiries conducted in the local village of the above accused it was revealed that the said vehicle was seen in his village on 13.04.2007 and it remained there for a few days.

18. Some efforts were also made to trace the above Pindu and it was revealed that his real name was Palwinder Singh @ Pindu, a resident of Chheharta, Amritsar, but it was found that he was not visiting at his residence and his father was also summoned to join the investigation, but even he could not be made to join the same till the filing of this complaint and ultimately, after completing the formalities of the investigation and recording some other statements, a complaint for commission of the above said offences was filed against the accused persons in this court.

19. The complaint was filed on 01.11.2007 and cognizance of the above offences was taken. A prime facie case for commission of the offences punishable U/S 29 and 21 r/w Section 29 of the NDPS Act was found to be made out against both the accused persons and a prime facie case for commission of the offence punishable U/S SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

25 of the said Act was also found to be made out against the accused Mandeep Singh vide order dated 09.02.2009 and charges for the above said offences were also accordingly framed against both the accused persons on the same day.

20. The prosecution/DRI in support of its case has examined total 28 witnesses on record. The names and the purpose of their examination is being stated herein below:

21. PW1 Sh Kamal Kumar, Intelligence Officer is the person who had received the secret information, reduced it into writing as Ex. PW1/A and had put it up before his official superior, i.e. PW9 Sh Pankaj K Singh.

22. PW2 Sh B.K.Banerjee was posted as an Appraiser in the DRI Office at the relevant time and he had issued the above search authorization Ex. PW2/A, for search of the above vehicle make Mahindra Scorpio, and the above DRI seal to the IO/PW3 vide entry at serial no. 30 Ex. PW2/B of the seal movement register. He had also subsequently sent the telegrams Ex. PW2/D and PW2/E, vide receipt Ex. PW2/F regarding the arrest of the accused persons to their relatives, letters Ex. PW2/G and PW2/J to his counterparts in Amritsar for some follow up actions against the accused and had received their replies Ex. PW2/I, PW2/K and PW2/L, sent one letter Ex. PW2/H to RTO Sheikh Sarai, Delhi seeking some information SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

regarding the above said vehicle make Tata Safari and had received the requisite information on the said letter itself and had also written one letter Ex. PW2/M to the Nodal Officer of M/S Bharti Cellular Ltd. and had received the requisite information/ record vide reply Ex. PW2/N.

23. PW3 Sh Gurjit Singh, Intelligence Officer is the investigating officer of this case and he was leading the raiding team which had apprehended both the accused persons from the above said place and had also recovered the above contraband substance. He has deposed in detail on the above lines of the prosecution story in this regard and also regarding the proceedings of the search, seizure and sampling etc. conducted by him. He has also proved various documents prepared by him during the investigation of the above case and has identified the accused, the case property as well as the different signatures appearing on the said documents.

24. PW4 Sh D.P.Saxena, Intelligence Officer had deposited the sealed parcel of the case property of this case in the Valuable Godown of New Customs House on 10.05.2007, on the directions of PW5 sh Alok Aggarwal, vide deposit memo Ex. PW4/A, and the above parcel/case property was handed over by him to PW8 Sh D.B.Sharma of the Valuable Godown in intact condition.

25. PW5 Sh Alok Aggarwal is the then Assistant SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

Director of DRI who was entrusted with the sealed parcels of the case property and samples of this case, alongwith test memos in triplicate, for safe custody by the IO/PW3 after the seizure of this case. He had also written a letter dated 09.05.2007 Ex. PW5/A to his counterpart at Ludhiana for some investigation regarding the above Pindu (wrongly typed as Pinto in his statement), one letter Ex. PW5/B dated 09.05.2007 to the Chemical Examiner CRCL, authorizing Sh Jagdish Rai/PW6 to deposit a set of the sample parcels in the CRCL, alongwith the duplicate test memos, and PW6 had also subsequently handed over to him the acknowledgment receipt Ex. PW5/B issued by the CRCL in this regard. On 10.05.2007 he had also directed PW4 Sh D.P.Saxena to deposit the sealed parcel of the case property in the Valuable Godown and had also countersigned the deposit memo Ex. PW4/A prepared in this regard by PW4 and had further issued one search authorization dated 08.05.2007 Ex. PW5/C for search of the house of the accused Gurudev Singh in Trilokpuri, Delhi and had also sent one letter Ex. PW5/D to DRI Ludhiana requiring some follow up action against the above Muzzafar Shah.

26. PW6 Sh Jagdish Rai is the person who was handed over the sealed set of eight sample parcels of this case, alongwith the duplicate test memos, for deposit with the CRCL, vide forwarding letter Ex. PW5/B and had deposited the same there against acknowledgment Ex. PW6/A. SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

27. PW7 Ms Poonam Aggarwal was a member of the raiding team led by Sh Jyothimon, Intelligence Officer of DRI, which had searched the residential house of accused Gurudev Singh at Trilokpuri on 08.05.2007 on the basis of the above search authorization Ex. PW5/C. However, she has stated that nothing incriminating was recovered in the said search.

28. PW8 Sh D.B.Saxena was the In-charge of the Valuable Godown on 10.05.2007 and on that day, on the instructions of his senior officer Sh B.B.Batra, he had received the sealed parcel of the case property of this case from PW4 Sh D.P.Saxena and had also made an endorsement in this regard on the deposit memo Ex. PW4/A and a corresponding entry Ex. PW8/A in the concerned register of the Valuable Godown.

29. PW9 Sh Pankaj K Singh is the then Deputy Director of the DRI before whom the above secret information Ex. PW1/A was put up by PW1 and who had directed the IO/PW3 to take the necessary action thereon, after having discussions with PW1 and his senior officers.

30. PW10 Sh Jyothimon, Intelligence Officer, was leading the team of DRI Officers which had raided the house of the accused Gurudev Singh in Trilokpuri, Delhi on 08.05.2007 vide search authorization Ex. PW5/C. He had also prepared one panchnama Ex. PW10/A regarding the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

above search proceedings and submitted the execution report Ex. PW10/B. Subsequently, he had also sent one letter Ex. PW10/C to the Inspector, Operation Cell, East District, regarding some enquiry pertaining to the above Tata Safari vehicle no. DL 3CJ 8034.

31. PW11 Mohd Idris and PW12 Sh Irfan Khan are the two public witnesses joined by the DRI officers in the above raid and they both have deposed regarding their participation in the above proceedings. Their testimonies will be discussed and appreciated subsequently.

32. PW13 Sh Onkar Singh is the concerned commission agent in the name and style of Shalimar Car Bazar in Pandav Nagar, who had sold the above Scorpio vehicle bearing registration number DL 7CC 8955 to the accused persons and had delivered the said vehicle to them on 04.05.2007 against the payment of Rs. 5,00,000/-made by the accused persons, out of the agreed sale consideration of Rs. 5,15,000/-. He has stated that on receipt of the summons Ex. PW3/V (wrongly typed as PW3/B in his statement and the statement of the IO/PW3) from the DRI office, he had tendered his statement Ex. PW3/W, alongwith documents Ex. PW3/W1 to PW3/W9, regarding the said transaction during the investigation of the case.

33. PW14 Sh Gaurav Mittal is a partner of the other firm M/s Durga Motors with whom the above vehicle was SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

standing at the relevant time and from whom the above vehicle was procured by PW13 for sale to the accused persons. He has also deposed about tendering his statement Ex. PW3/Y, on receipt of the summons Ex. PW3/X, in the office of DRI and also the identification of the photographs Ex. PW3/Y1 and PW3/Y2 of the accused persons.

34. PW15 Sh Jagdish Saran is the concerned Chemical Examiner of CRCL on whose directions the sample packets of this case, alongwith requisite documents, were received in the CRCL office on 09.05.2007 and the said samples were also subsequently analysed by Sh L. M. Aggarwal, Assistant Chemical Examiner, under his guidance and supervision, and under whose signatures also the final test report dated 20.08.2007 Ex. PW15/A was prepared. He has stated that the samples having CLD No. 163(9) to 169(9) (7 samples) were found positive for the presence of diacetylmorphine and sample having CLD No. 170(N) was found positive for the presence of morphine only and their percentage was also given in the said report. He has also identified the signatures of Sh L. M. Aggarwal, in the above test report and also in the analysis report given in Section II of the test memo Ex. PW3/K.

35. PW16 Sh Jaivir Singh is the concerned Lab Assistant of CRCL who had received the above sealed sample parcels, alongwith test memos and forwarding SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

letter, against the acknowledgement receipt Ex. PW6/A given by him.

36. PW17 Sh M.C.Maheshwari is also a member of the raiding team of DRI led by PW10 Sh Jyothimon, which had searched the residential house of accused Gurudev Singh at Trilok Puri, Delhi. As discussed above, nothing incriminating was recovered in the said search.

37. PW18 Sh Om Prakash is an official of the Transport Authority, Sheikh Sarai and he has produced in this court some record pertaining to the ownership of the above vehicle make Tata Safari bearing registration number DL 3CJ 8034, which stood registered in the name of one Sh Muzzaffar Shah.

38. PW19 Sh Tarun Khurana is the Nodal officer of Bharti Airtel and he has stated that the mobile number 9971141834 stood registered in the name of the accused Gurudev Singh and has also brought on record a copy of the subscriber application form, alongwith the identity proof of the subscriber, as Ex. PW19/A. He has also stated that in response to the letter Ex. PW2/N of the DRI, the call detail record Ex. PW19/B (collectively) of the above number was earlier supplied by their companies and he has further produced on record on certificate U/S 65(B) of the Evidence Act regarding the correctness of the said record.

SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

39. PW20 Sh Ashok Kumar is an official of DRI and he has only reduced the statement Ex. PW3/Q of the public witness Sh Idris Khan/PW11 in writing on 16.05.2007, on request and as per the dictation of the above witness. He has stated that the above statement was tendered before the IO/PW3 Sh Gurjeet Singh.

40. PW21 Sh Surjit Singh is the Assistant Nodal Officer of M/s Idea Cellular Ltd, Punjab and he is a witness of the record pertaining to the other mobile number 9814543445 found in possession of the accused Mandeep Singh and as per the depositions of this witness, the above number was initially of M/s Spice Communications Ltd and the above company stood amalgamated with the other company named M/s Idea Cellular Ltd and the above number was initially allotted to one Mandeep Singh S/o Sh Tehal Singh R/o 25, Balwant Nagar, Jalandhar and it was activated on 20.10.2005 and was erased on 23.01.2007 and the same was subsequently allotted in the name of one Smt. Baljeet Kaur W/o Sh Jaswinder Singh R/o 312, Village Thoba, Tehsil Ajnala, District Amritsar. He has also produced on record the ownership record of the above number as Ex. PW21/B and PW21/C and has also stated that the call detail record Ex. PW21/D was earlier supplied by his predecessor in response to the letter Ex. PW21/A of the DRI.

41. PW22 Sh Surender Kumar is one of the owner of the above Tata Safari vehicle number DL 3CJ 8034 and he SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

has stated that he had purchased the above vehicle in the year 2003 through a car dealer at Ludhiana and it was sold by him in the same year to one Sh Harchand Singh and he has also earlier tendered his statement Ex. PW22/A in this regard to the DRI officers on 08.10.2007.

42. PW23 Sh Taseen Sultan is also an intelligence officer of DRI posted at Srinagar at the relevant time and he had conducted some enquiry regarding the above Sh Muzaffar Shah, who was the registered owner of the above Tata Safari vehicle, and had forwarded one report of enquiry Ex. PW23/B to his Delhi office, alongwith his letter Ex. PW23/A dated 13.07.2007.

43. PW24 Sh Nilank Kumar is the then Assistant Director of DRI and he had sent one letter Ex. PW24/A dated 09.10.2007 to the DRI, Amritsar for conducting some enquiry with regard to one Sh Harchand Singh, pertaining to the above Tata Safari vehicle DL 3CJ 8034, and he had sent his reply/report Ex. PW24/B. He had also written a letter Ex. PW24/C and PW24/D for providing some records pertaining to the above mobile numbers and also one other letter Ex. PW24/F to DRI, Ludhiana office regarding some enquiry about the above Tata Safari vehicle.

44. PW25 Sh Ramesh Sharma was posted as a Senior Intelligence Officer in the office of DRI, Amritsar and he had also forwarded the enquiry report regarding the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

search of the house of accused Mandeep Singh in Punjab, the report Ex. PW2/1 regarding the above Tata Safari vehicle and has also proved some letters Ex. PW2/J, PW2/K, PW24/B and PW25/B forwarding some documents to the DRI office in Delhi.

45. PW26 Sh Suman Kumar and PW27 Sh Ram Kumar are the neighbours of the accused Gurudev Singh in Trilokpuri, Delhi and they were alleged to be the witnesses of the search of the house of above accused Gurudev Singh and the above Tata Safari vehicle parked in the street of the said house. However, they have not claimed to have participated in any such search proceedings and have only claimed to have signed some documents in this regard.

46. PW28 Dr Vijay Jain is the Medical Officer of the RML Hospital at the relevant time who had examined the accused Gurudev Singh and Mandeep Singh vide MLCs Ex. PW28/A and PW28/B dated 08.05.2007.

47. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record by the prosecution was put to both the accused persons in their statements recorded U/S 313 Cr.P.C. and the same was denied by them to be wrong and incorrect. They both in their identical statements have claimed that the entire story of the prosecution is a false and concocted story and the things had not happened in the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

way in which the same had been deposed by the prosecution witnesses. They both have claimed that they were picked by the DRI officers from the residence of accused Gurudev Singh on the pretext of conducting some enquiry from them and then they were taken to the DRI office and were falsely implicated in this case. It is also claimed by them that their above statements U/S 67 of the NDPS Act are not their voluntary statements and they were forced to write the above dictated statements and the story given in the above statements is a false story and they were only made to tell their personal and family details to the DRI officers. They have also claimed that in the DRI office, they were forcibly made to sign on various blank, semi written and written papers, including some small paper slips, and have further denied having any connection with the above vehicles. They have also stated that they have signed the above documents and written the above statements only because they were assured by the DRI officers that they will be allowed to go after that, but instead they were falsely implicated in this case. They both have claimed to have retracted their alleged statements U/S 67 of the NDPS Act at the earliest possible opportunity and have also chosen to lead evidence in their defence.

48. I have heard the arguments advanced by Sh Satish Aggarwal, Ld SPP for DRI, assisted by Sh Vikas Gautam, Advocate, and Sh Kamal J.S.Mann, Ld counsel representing both the accused. I have also gone through SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

the evidence led and the other record of the case, including the written submissions filed on behalf of both the parties.

49. The challenges made to the prosecution case and the evidence led on record can be broadly discussed under the following heads:-

NON COMPLIANCE OF THE PROVISIONS OF SECTION 42 NDPS ACT

50. The first challenge to the prosecution story is on the ground that the mandatory provisions of Section 42 of the NDPS Act have not been complied with in this case. In this regard, it is observed that since the information received in this case and reduced into writing was with regard to the fact that some narcotic drugs were being brought concealed in the above Mahindra Scorpio vehicle bearing registration No. DL 7CC 8955 and the above vehicle would be reaching at the above spot on a given date and time, there is no doubt to this court that the mandatory provisions of Section 42 of the NDPS Act were required to be complied with in this case.

51. However, this court fails to accept the argument of Ld defence counsel that the above information was required to be reduced into writing in duplicate or triplicate and a separate copy thereof was required to be sent by PW1 Sh Kamal Kumar, who had received the said information, to his immediate official superior. As per SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

the depositions of PW1 as well as PW9 made on record, after PW1 had reduced the above information into writing, he had immediately put up the said information Ex. PW1/A before PW9 for further necessary action and it is PW9 who had given the necessary directions for acting upon the said information, by making the necessary endorsement in this regard on the said information itself. Hence, the provisions of Section 42 of the NDPS Act stood complied with in this case by bringing the above information by PW1 to the knowledge of his superior officer, i.e. PW9, in the form of Ex. PW1/A and it is nowhere required by the above Section that a separate copy of the said information should have been sent to PW9. Since the information had been immediately brought by PW1 to the notice of PW9, there is no argument that the communication thereof was beyond the prescribed time of 72 hours in terms of sub-section (2) of the above Section. Hence, there is not found to be any force in the above argument of Ld defence counsel.

52. The next contention of Ld defence counsel on the aspect of compliance of the provisions of Section 42 of the NDPS Act is that PW9 Sh Pankaj K. Singh cannot be said to be the 'immediate official superior' of PW1 Sh Kamal Kumar for the purposes of the provisions of sub- section (2) of Section 42 of the NDPS Act as PW1 is an officer of the rank of Intelligence Officer only whereas the rank of PW9 at the relevant time was a Deputy Director and it was admitted by PW1 during his cross SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

examination that a Senior Intelligence Officer (SIO) of DRI is higher in rank to an Intelligence Officer. This argument of Ld defence counsel is also not found forceful as PW1 in his cross examination has also stated that for the purposes of reporting of intelligence, his immediate officer was Deputy Director (Intelligence) and simply because no circular or official order has been produced in this court which required PW1 to report to PW9 in intelligence matters, as argued, it cannot be said that the above depositions of PW1 are not correct as there is nothing wrong or unusual if an intelligence officer is made to report to an officer of the rank of a Deputy Director or even higher then that for the purposes of intelligence.

53. One other contention of Ld defence counsel connected to this Section is also that the above secret information reduced into writing as Ex. PW1/A is a fabricated document as it is not bearing any despatch or diary number etc of the office of PW1 or of PW9 and the possibility cannot be ruled out that this document was fabricated subsequently, but here also there is no reasonable ground or material available to this court for arriving at any such conclusion regarding the above document being a fake or forged document and simply because it is not found bearing any diary or despatch number, it cannot be held to be a fake document as the case of the prosecution is not that the above document or information was despatched by PW1 to PW9 in routine SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

dak, but the same was personally produced by PW1 before PW9.

VIOLATION OF THE PROVISIONS OF SECTION 50 NDPS ACT

54. 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 and the notices Ex. PW3/A and PW3/B given to the accused persons under the above provisions are manipulated documents and even these notices do not make out a case of compliance of the above provisions from the given contents of the said notices as the same do not show that the legal rights of the accused persons were told to them by the IO/PW3. It is also argued that the alleged replies of the accused given on the above notices are also fake and the accused persons were made to write the above replies under force and without explaining them the contents of the notices, which were given in English language and was not a language known to the accused persons.

55. On this aspect, it is observed that, as also discussed above, that the recovery of the above heroin in this case has not been effected from the 'persons' of the accused persons and the same was effected from the above Mahindra Scorpio vehicle found in possession of the accused persons, as the evidence led on record shows that the above 33 packets containing heroin were found concealed in the above vehicle. Hence, in view of the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

settled law and propositions on the subject, the provisions of Section 50 of the NDPS Act are not meant to be complied with in this case. Reference in this regard can be made to some of the judgments, including 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, Ajmer Singh Vs State of Haryana-2010 (2) SCR 785 (Crl. Appeal No. 436/09), and Jarnail Singh Vs State of Punjab, AIR 2011 SC 964.

56. Moreover, on perusal of the above notices Ex. PW3/A and PW3/B, it is found that the contents of the above notices clearly make out that the accused persons were told that in view of the above information their persons as well as their above vehicles were required to be searched and they had a legal right under the above Section to get their personal search and the search of their vehicles to be conducted in the presence of a Gazetted Officer or a Magistrate, for which they were required to give their option in writing. There is also sufficient oral and documentary evidence on record to the effect that the above contents of the said notices were explained to them and the accused Gurudev Singh had also given his reply to the said notice in Hindi language in his own handwriting and the accused Mandeep Singh had also given his reply in Gurumukhi language in his own handwriting to this effect and also to the effect that the search could be conducted by any officer of DRI. Hence, even otherwise, the provisions of SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

Section 50 of the NDPS Act are found to be complied with in this case, though the same were not required to be complied with, as discussed above.

NON COMPLIANCE OF PROVISIONS OF THE SECTION 55 OF THE NDPS ACT

57. The next challenge to the prosecution story is on the ground that the provisions of Section 55 of the NDPS Act regarding the safe deposit and custody of the case property have not been complied with in this case and the evidence led on record do not suggest that the case property had remained intact or was not tampered with. It has also been argued that PW5 Sh Alok Aggarwal, to whom the sealed parcels of the case property and samples were handed over by the IO/PW3 after the seizure, had not affixed his own seals on the parcels or had not made any endorsement thereon on the said parcels and there had been a violation of the provisions of Section 55 of the NDPS Act in this regard also.

58. As per the provisions of Section 55 of the NDPS Act, an officer In-charge of a PS shall take charge of and keep in safe custody all the articles seized under the NDPS Act within the local jurisdiction of his police station, as may be delivered to him, and he shall also allow any officer who may accompany such articles to the police station or who may be deputed for the purposes, to affix his seal on such articles or to take samples SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

therefrom and the samples so taken shall also be sealed with a seal of the officer In-charge of the police station.

59. However, it is not disputed that the prosecuting agency herein, i.e. DRI, is not having any malkhana thereof for deposit of the case property of different cases or for keeping them in safe custody, just like the regular police stations, and as per the practice, the seized case property is sent by the DRI for safe deposit to the Valuable Godown of the New Customs House. There is also not the practice in the cases of DRI that the seized parcels of the case property sent for such deposits to the Valuable Godown should also be counter-sealed with the seals of any senior officer of the DRI or the same should be counter- sealed with the seals of the officer In-charge of the above Valuable Godown and this practice of deposit has been upheld in a number of cases by the Hon'ble Delhi High Court and also by the Hon'ble Supreme Court, provided that the evidence led on record did not suggest that there was any such tampering of the parcels of the case property at any stage. Reference in this regard can be made to one judgment in case of Siddiqua Vs NCB 2007 (1) JCC (Narcotics) 22.

60. Coming to the evidence led on record, it is observed that it has been specifically deposed by the IO/PW3 that the sealed parcels of the case property and SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

samples, alongwith the test memos, were handed over by him to PW5 Sh Alok Aggarwal for the safe custody after the seizure and PW5 has also specifically stated on record that on 08.05.2007, the IO/PW3 had given to him the sealed case property and samples, alongwith the test memos in triplicate, for the safe custody after the seizure and sealing done by him. He has also stated that he had kept the case property and samples in his custody under the lock and key and on 09.05.2007, he had written a letter Ex. PW5/B to the Chemical Examiner, CRCL whereby he had authorized PW6 Sh Jagdish Rai to carry eight sealed sample packets for deposit in the CRCL and besides the above forwarding letter and sample packets, he had also handed over the test memos in duplicate to PW2 and after depositing the same there, PW2 had subsequently handed over to him the acknowledgement issued by the CRCL in token of receiving of the said parcels and documents. Even PW6 Sh Jagdish Rai has specifically deposed and corroborated the depositions of PW5 regarding the handing over of the above sealed sample parcels and documents to him by PW5 vide forwarding letter Ex. PW5/B and the deposit thereof in the CRCL in intact condition vide the acknowledgement Ex. PW6/A. PW16 Sh Jaivir Singh is the concerned official of CRCL who had received the above sealed sample parcels and documents from PW6 and had issued the above acknowledgement Ex. PW6/A and it is also specifically deposed by him that the above sealed sample parcels were in intact condition and he had checked the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

seals thereof and had found them in intact condition and the seals affixed on the sample parcels were of the impression of Directorate of Revenue Intelligence-10 and were matching with the facsimile of the seal given on the test memos. The depositions of the above witnesses and the documents proved by them duly establish the safe custody and deposit of the samples with the CRCL.

61. It is also observed that according to PW9, on 10.05.2007, he had directed PW4 Sh D. P. Saxena to prepare a deposit memo, with the assistance of the IO/PW3 Sh Gurjeet Singh, for depositing the case property in Valuable Godown and after the above memo was prepared and brought by him, he had signed the same and had also handed over the said memo and the sealed case property to PW4 for depositing the same in the Valuable Godown and subsequently the acknowledgement of deposit thereof was also given to him by PW4. PW4 also corroborates the depositions of PW5 regarding the task given to him for preparation of the above deposit memo and the deposit of the sealed parcel of the case property of this case by him in the Valuable Godown on the above date and he has also stated that he had handed over the above sealed parcel of the case property to PW8 Sh D. B. Sharma of the Valuable Godown and PW8 had also made an endorsement on the above deposit memo regarding the receiving of the said property in safe condition. PW8 has also made similar depositions on record regarding the deposit of the above case property with SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

him and the making of his endorsement on the above deposit memo and has also stated specifically that at the time of deposit of the said property, he had checked the detailed particulars of the case property given in the deposit memo and the seals affixed on the case property were of the impression of Directorate of Revenue Intelligence-10 and were tallying with the deposit memo and the case property was kept by him in the godown for safe custody. He has further proved on record one entry Ex. PW8/A made by him in the relevant register of the Valuable Godown regarding the deposit of the case property. The depositions made by these witnesses and the documents proved by them also establish on record the safe deposit of the case property in the Valuable Godown.

62. Further, it is also observed that when the sealed parcels of the case property, the samples as well as the remnants thereof, were produced before this court during the trial for the first time during the depositions of the IO/PW3, the paper slips pasted thereon and the seals affixed on these parcels, which were affixed on the above paper slips, were found to be in intact condition and the very intactness of these seals affixed on the paper slips rules out the possibility of tampering of the case property or of the samples while the same were in the custody of the DRI officers or of the In-charge, Valuable Godown. Even, the remnants of the samples received back from the CRCL SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

after analyses were produced in the court in intact condition and the depositions of PW16 Sh Jaivir Singh and of PW15 Sh Jagdish Saran, Chemical Examiner of CRCL, who had tested the above samples, also rule out any possibility of tampering of the samples while the same were lying in the custody of the CRCL. Hence, simply because the seals of PW5 or of the In-charge, Valuable Godown were not affixed on the sealed parcels of the case property or of the samples, it cannot be said or inferred that the said parcels were tampered at any stage of the investigation or of the trial.

NON COMPLIANCE OF THE PROVISIONS OF SECTION 57 OF THE NDPS ACT

63. It has also been argued on behalf of the accused persons that the provisions of Section 57 of the NDPS Act have not been complied with in this case and in terms of propositions of law laid down in the case of Mausam Singh Roy Vs State of WB (2003) 12 SCC 377, the same is fatal for the prosecution case as a higher degree of assurance was required for conviction of the accused persons in this case of NDPS Act, which is a case of serious nature. However, it appears that the above argument has been advanced by Ld defence counsel merely for the sake of arguments as the oral as well as documentary evidence led on record shows the compliance of the above said provisions and not otherwise.

64. It has been specifically deposed by the IO/PW3 SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

that on 08.05.2007 he had submitted a report of seizure of 33 KG of heroin and arrest of accused persons to PW2 Sh B.K.Banerjee and the said report is Ex. PW2/C on record. Even PW2 has made specific depositions regarding the submission to and perusal of the above report by him on the above date. The above report has been submitted on 08.05.2007, whereas the accused persons were apprehended in this case on 07.05.2007 at around 5:35 PM and were formally arrested in this case only on 08.05.2007 and hence, the report is found to have been submitted within the prescribed time of 48 hours as given in the above Section. There is found to be no requirement that the said report should have been sent after making an entry in the dak register, as argued. Moreover, it is now well settled that the compliance of the provisions of above Section is even not mandatory and only directory in nature and the non compliance thereof cannot make the seizure or arrest effected in a case to be illegal.

TIMINGS OF APPREHENSION AND FORMAL ARREST OF THE ACCUSED PERSONS

65. It has also been argued by Ld defence counsel that though the accused persons were apprehended admittedly on 07.05.2007 at about 5:30 PM, but they were formally arrested in this case only on 08.05.2007 at around 5 and 5:30 PM, i.e. almost after 24 hours from the time of their apprehension in this case and this is a violation of their rights to be produced before a SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

court at the earliest and not later than 24 hours and the above delay in effecting their arrest makes the same illegal. However, on perusal of the case file it is found that as per the arrest memos Ex. PW3/H and PW3/I respectively of the accused Gurudev Singh and Mandeep Singh they were formally placed under arrest in this case at 3:10 PM and 3:00 PM respectively and they could not have been arrested immediately after their apprehension unless the DRI officers were sure that they were possessing any contraband under the NDPS Act or that their possession of the above contraband substance was a conscious possession. As per the evidence led on record, the panchnama proceedings were concluded at around 11:45 PM on 07.05.2007 and the statements U/S 67 of the NDPS Act of the above two accused were recorded only in the morning of 08.05.2007 and they are also found to have been produced in the court on 08.05.2007 itself and there is not found to be any violation of the above provisions of Cr.P.C. (It is observed that on the order passed on their remand application dated 08.05.2007, the date 07.05.2007 is written by mistake though the application itself is dated 08.05.2007).

DELAY IN SENDING OF THE SAMPLES

66. The next contention of Ld defence counsel is that the sample parcels of this case had not been sent and deposited with the CRCL within the prescribed time of 72 hours as per the standing instructions/guidelines SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

of the Government of India and the above delay in sending of the samples parcels has not been explained on record and the same casts serious doubts on the recovery and the probability of tampering of the sample parcels cannot be ruled out. However, this argument of Ld defence counsel is also found to be without any merits as, admittedly, the seizure of the above contraband substance was effected at around 5:35 PM and the sealed parcels were prepared only thereafter as the panchnama proceedings had concluded at around 11:45 PM on that day. According to the depositions of PW5, PW6 and PW16, as discussed above, the above parcels were taken by and deposited with the CRCL by PW6 Sh Jagdish Rai vide forwarding letter Ex. PW5/B and the same were received there by PW16 vide acknowledgement Ex. PW6/A and the date of deposit of the said samples there is 09.05.2007. Though, the alleged guidelines issued by the Government of India are admittedly not having any statutory mandate, but even otherwise the sample parcels are found to have been deposited with the CRCL within the prescribed period of 72 hours and as also discussed above, no possibility or inference of their tampering at this stage with the same is drawable.

NO PROCEDURE FOR USING SMALL PAPER SLIPS FOR SEALING PURPOSES

67. This is also one of the contentions of Ld defence counsel that in the guidelines laid down by the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

Government of India, which have not been placed on record in this case though there are certain guidelines issued by the Narcotic Control Bureau on the subject, no paper slips having the signatures of the accused or the witnesses are required to be used in the sealing procedure and the use of such paper slips in this case creates doubts regarding the recovery and sealing procedure adopted by the IO/PW3 in this case. This court fails to accept the above argument of Ld defence counsel also as the use of such paper slips on the parcels of the samples and of the case property at the time of sealing thereof can only add credibility to the prosecution case and the same in no way can be taken to suggest or mean that the above procedure of use of such slips was an illegal work. The purpose of affixation of the above paper slips on the above parcels and getting the signatures of the accused and the witnesses, besides the IO himself, is only that the same will provide credibility and authenticity to the process of sealing as any tampering with the above paper slips can show the tampering of the contents of the parcels and further that the above parcels were actually prepared at the alleged time and in the presence of the signatories of the above paper slips. During the evidence led on record, it has also been established that the above paper slips used on the above parcels were found to be undisturbed and the seals affixed thereon were found to be intact and the same has also established that the said parcels were not tampered with at any stage of the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

case, till their production in the court. Hence, the use of the above paper slips on the said parcels is not a ground to make the sealing process or the recovery of the above contraband substance of this case to be doubtful.

THE JOINING OF PUBLIC/PANCH WITNESSES AND RELIABILITY OF THEIR TESTIMONIES

68. The next contention of Ld defence counsel is that the joining of the two public witnesses namely Mohd. Idris/PW11 and Mohd Irfan/PW12 during the search and seizure proceedings is highly doubtful and the contrary statements made by these two public witnesses on record on various material aspects suggest that they were never joined at the time of seizure of the contraband substance of this case and were merely made to sign the documents subsequently. It has also been argued that their presence near the office of DRI at the relevant time of their joining is also doubtful and the witnesses have not been able to prove the contents of various documents signed by them and placed on record of this case as they have either expressed their ignorance about the documents or the contents thereof.

69. On appreciation of the prosecution evidence, it is observed that PW11 Mohd Idris and PW12 Mohd Irfan Khan are both the two public witnesses joined by the IO/PW3 during the search and seizure proceedings of this SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

case and according to both these witnesses, they both were working as carpenters in the C.R. building at ITO on the relevant date of their joining the proceedings, i.e. 07.05.2007, and they were made to join the proceedings by the DRI officers. They both have also specifically stated that they had accompanied the team of DRI officers in their vehicles to the Trilokpuri area, on/near the road leading towards Noida, and they all had started waiting there and after about 15-20 minutes thereof, one silver colour Scorpio vehicle had reached there and above vehicle was intercepted and found occupied by two persons and they have also identified the two accused to be the two occupants of the said vehicle at the relevant time.

70. They both have also deposed specifically that at the spot, the DRI officers had shown some documents to the accused persons and thereafter the accused persons as well as their above vehicles were escorted to the parking area of DRI office at ITO and there about 20-25/25-30 packets were recovered from the said vehicle, which were found concealed in the dickey, stepney and below the mat of the said vehicle, and then they all had gone to the 7 th floor office of the DRI in the said building. They both have also deposed that after reaching there, the DRI officers had recovered some white colour powder (like salt) from the said packets and the same were seized and sealed by the DRI officers and PW11 has also stated that some tests were SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

also conducted by the DRI officers, before it was seized and sealed, and have further stated that some documents regarding the above seizure and sealing were also prepared at that time, which they both had signed and then after the conclusion of the proceedings, they had left the office of the DRI. They both have also identified their signatures on different documents of this case, which were shown to them and include the search authorization Ex. PW2/A, the notices U/S 50 of the NDPS Act Ex. PW3/A and PW3/B given to the accused persons, the panchnama Ex. PW3/C and its annexures Ex. PW3/C1 to PW3/C11 etc, as well as the various paper slips taken out from the sealed parcels of the samples and case property produced in the court during the trial.

71. Ld defence counsel has though pointed out that both the above public witnesses have made certain contrary depositions on certain aspects, as according to PW11 Mohd Idris, they both were working for their elder brother Sh Usman, a government contractor of the above C.R. Building, whereas according to PW12 they were working for a contractor named Sh Laxman; whether the DRI officers who had requested them to join the proceedings were numbering 2-3 or 3-4; according to PW11 one of the two vehicles used by the DRI officers in the raid was perhaps an Ambassador of white colour and the other was a Gypsy, but according to PW12 both the vehicles were Ambassadors, according to PW11 they were SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

requested to join the proceedings at around 2:00/2:30 PM, whereas PW12 states that they were requested to join the proceedings at around 4:00/4:30 PM on that day and the number of packets recovered from the accused persons etc, but after going through the above contradictions and the totality of their depositions, it is observed that the above contradictions being pointed out by Ld defence counsel are not material enough to be made the basis for discarding the testimonies of these witnesses. It cannot be ignored that the seizure of this case was effected in the year 2007 whereas the testimonies of the above two witnesses were recorded in the court in the year 2011, i.e. after a gap of about four years from the date of the seizure. Further, it is also deposed by both the above witnesses that they were not educated/much educated, as PW11 has claimed himself to illiterate and PW12 has claimed to have studied only up- to 8th standard, and keeping in view their poor education and the profession in which they were involved, they could not have been reasonably expected to depose in a smarter way and rather they have deposed in a natural manner and have given an account of the of the incident as retained in their memory at the time of making of their above depositions in the court. Moreover, it is found that they both are duly corroborating the depositions of the IO/PW3 on all material aspects of joining of the investigation of this case, their visit to the above spot and the interception of the above accused and their vehicles in their presence, the search SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

of the said vehicle and the recovery of the above packets of contraband substance and the carrying out of the seizure and sampling work etc regarding the said packets in their presence.

72. As far as the argument of Ld defence counsel regarding the non proving of the contents of some material documents like the notice U/S 50 of the NDPS Act and the panchnama etc by them is concerned, it has also been specifically deposed by both these witnesses that various documents regarding the above proceedings were prepared by the DRI officers in their presence and they both had signed the same and have also identified their signatures on the said documents in court. Though, PW11 during his cross examination has gone to state that he is not aware regarding the nature of the above documents shown by the DRI officers to the accused persons or got signed from them, but during his re- examination, he has admitted that something was explained to him regarding the contents of the said documents, but he is now not remembering as to what was explained. Even PW12 permitted to be re-examined on some aspect has stated it to be correct that he had signed the above documents after the contents thereof were explained to him. Moreover, being laymen and not educated enough, they were not expected to corroborate the case of the prosecution on each and minute detail and it is sufficient if they generally corroborate their case regarding the seizure of the above contraband SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

substance from the accused persons in their presence, which they have successfully done on record.

EVIDENCE REGARDING THE RECOVERY OF THE CONTRABAND SUBSTANCE

73. Besides the testimonies of the above two public witnesses, i.e. PW11 Sh Mohd Idris and PW12 Sh Irfan Khan, the only witness of recovery examined on record is the IO/PW3 Sh Gurjeet Singh himself and he in his statement made in this court has made detailed depositions on the above lines of the prosecution story regarding their visit at the spot, on the basis of the secret intelligence Ex. PW1/A and after having been armed with the search authorization Ex. PW2/A, the interception of the above vehicle and the accused persons from the above spot and the same being brought to the office of the DRI at ITO, the search proceedings leading to the recovery of the 33 packets of heroin and the subsequent seizure and sampling work etc carried out in their office on the 7th floor of the said building. He has also proved on record all the relevant documents prepared by him in connection with the said proceedings like the notices U/S 50 of the NDPS Act Ex. PW3/A and PW3/B given to the accused persons, the panchnama Ex. PW3/C and the test memos etc. He has also stated specifically about the documents recovered from the said vehicle of the accused and resumed by him for the purposes of investigation, which have been identified by him as Ex. PW3/C5 to PW3/C11 and has also identified the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

photocopies of the rubber stamp markings of the cloths of the above packets, which were made as annexures to the above panchnama and are Ex. PW3/C1 to PW3/C4. His depositions regarding the recovery of the above packets from the above vehicle of the accused are also duly corroborated on all material particulars by the depositions of the other material public witnesses of this case, i.e. PW11 and PW12, as discussed above, and the same are further corroborated by the above documents as well as some other documents brought on record like a copy of the relevant entry of the seal movement register Ex. PW2/B, vide which the above seal of Directorate of Revenue Intelligence-10 used in this case was issued to him.

74. Ld defence counsel has argued that the sole testimony of the IO/PW3 being an official witness of DRI should be discarded and should not be believed, but this argument of Ld defence counsel cannot be accepted as it has already been discussed above that his depositions are duly corroborated by the above two public witnesses examined on record. Ld defence counsel has also argued that no logbook of the alleged vehicles used in the raid has been brought on record to corroborate the claim of the above witnesses for visiting the above spot, but the same is considered to be not necessary in view of the consistent and corroborative testimonies of the above three recovery witnesses. Though, Ld defence counsel has also argued that it has been admitted by the IO/PW3 SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

in his cross examination that the names of the accused persons or their vehicle description were not given in the secret intelligence received by the DRI officers, but the same were not required as the number of the above vehicle was very much disclosed in the said information, which was sufficient for acting upon the said information and to intercept the said vehicle. Rather, the fact that the names of the accused persons or their physical descriptions etc. have not been given in the above information is a circumstance to show the genuineness of the said information and to rule out the manipulation of the above document at a later stage, subsequent to the apprehension of the accused persons.

75. It has also been argued by Ld defence counsel that the IO/PW3 had admittedly not taken any proof of the addresses of the above public witnesses or their qualifications etc., but when the above witnesses already stand examined on record, the non taking of proof of their residence or identifies etc. should not even be discussed and as far as the non-taking of the proof of their educational qualifications is concerned, the same was also not required.

76. Though, the IO/PW3 was cross examined on record at length by Ld defence counsel, but during his such cross examination, nothing material could be extracted out from him to make his visit to the above spot, alongwith the two public witnesses, the interception of SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

the accused and their vehicle from the said spot, or the recovery and seizure of the above contraband substance from them to be doubtful and rather, as discussed above, his depositions are found to be inspiring confidence and are further corroborated by the testimonies of the two other public witnesses and the relevant documents proved on record. Though, some minor contradictions or discrepancies are found to be there in their testimony, but the same are also not found to be on any material aspects and do not go to the root of the case and do not adversely effect his testimony. Thus, the evidence led by the prosecution on record in the form of the depositions made by the IO/PW3, which are duly corroborated by the depositions of the above two public witnesses and the documentary evidence brought on record, clearly establishes their case of recovery of the above contraband substance from the possession of the accused persons.

STATEMENTS U/S 67 OF THE NDPS ACT OF THE ACCUSED

77. As far as the admissibility of such a statement made by an accused under the NDPS Act is concerned, it is now well settled that if such a statement is made by the accused voluntarily, it can not only be acted upon by the court, but it can also be made the basis of the conviction of the accused. However, if such a statement has been subsequently retracted upon by the accused then such a retracted confessional statement of the accused, SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

even though the retraction is not proved in evidence as per law, has been held to be a very weak peace of evidence and it cannot be made the basis of the conviction of the accused in the absence of any independent corroboration thereof. But the entire facts and circumstances of a case are to be looked into for arriving at a conclusion regarding the voluntariness of such a statement and those leading to retraction thereof. Reference in this regard can be made to judgments in cases of Kanhaiya Lal Vs Union of India 2008 (1) JCC (Narcotics) 23, Raj Kumar Karwal Vs Union of India & Ors. (1990) 2 SCC 409, Kanhaiya Lal Vs Union of India 2008 (1) AD (Crl.) (SC) 277:2008 (1) JCC (Narcotics) 23, Francis Stanly @ Stalin Vs Intelligence Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124, Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC) and Noor Aga Vs State of Punjab & Anr. 2008(9) Scale 681, some of which have been even referred to from both the sides. Reference on this aspect can also be made to the judgment of the Hon'ble Supreme Court in case Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140, wherein it was held by their Lordships that though as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made U/S 67 of the NDPS Act, but as of a rule of prudence the court requires some corroboration thereof.

SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

78. Coming to the facts of the present case, it is found that in response to the summons Ex. PW3/D and PW3/F given to the accused Mandeep Singh and Gurudev Singh, they both had also tendered their statements U/S 67 of the NDPS Act Ex. PW3/E and PW3/G respectively in their own handwritings before the IO/PW3. The statement of accused no. 1 had been tendered in Hindi language whereas the statement of accused no. 2 is in Punjabi language and in their above statements they both had specifically admitted their apprehension from the above spot and the recovery of the above contraband substance from their possession and the entire subsequent proceedings done with regard to the same. Their above statements also show that not only they were found to be in possession of the above contraband substance, which was concealed in the above vehicle, but their possession of the said substance was also a conscious possession. Moreover, the evidence in the form of these statements is in addition to the evidence led on record regarding the recovery of the above contraband substance from their possession.

79. Though, the IO/PW3 has not been able to trace out the source of supply or procurement etc of the above contraband substance and also though, no trace of the above Pindu, who used to supply heroin to the accused Mandeep Singh and on whose instructions the accused Mandeep Singh was delivering the contraband substance to an African person, could not be traced out and further SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

though no documentary evidence could be collected to prove the previous two deliveries of the consignments of contraband substance by the accused persons in Delhi, but certain other facts disclosed by the accused persons in their above statements have certainly been verified and corroborated during the investigation, including the use and possession of the above two vehicles, i.e. the above Mahindra Scorpio vehicle bearing number DL 7CC 8955 and Tata Safari vehicle bearing number DL 3CJ 8034.

80. On appreciation of the prosecution evidence, it is found that it is the case of the prosecution, and also specifically deposed by the IO/PW3, that during the search of the above Mahindra Scorpio vehicle found in possession of the accused persons, some documents were also recovered from the said vehicle, besides the above packets of contraband substance, and these documents include a copy of one delivery receipt dated 04.05.2007 of the said vehicle and the said delivery receipt of the vehicle Ex. PW3/C9, a copy of the Registration Certificate of the above vehicle Ex. PW3/C10 and a copy of its Insurance Certificate Ex. PW3/C11. As per the above documents, the registered owner of the said vehicle was one Smt Rajbala and vide the above delivery receipt Ex. PW3/C9, the possession of the above vehicle was handed over to the accused Mandeep Singh on 04.05.2007, on account of sale of the above vehicle to him, and the above delivery receipt is also bearing the signatures of the above accused as well as of the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

accused Gurudev Singh as a witness thereof. During the statements U/S 67 of the NDPS Act, the accused persons had also disclosed that the above vehicle was purchased by them from a dealer near the Parparganj Flyover and the possession of the said vehicle was taken by them on 04.05.2007 on making a payment of Rs 5,00,000/- to the dealer and the balance amount of Rs 15,000/- was to be paid later on, on completion of certain formalities regarding the registration thereof, as discussed above.

81. During the investigation, the IO/PW3 had also issued summons Ex. PW3/R to the above Smt Rajbala and had received one reply/letter Ex. PW3/S in response to the same, in which it was stated that she had already sold the above vehicle to one Sirajuddin and she had also forwarded copies of some documents, alongwith the said letter. Even the summons Ex. PW3/T on record were issued by the IO/PW3 to the above Sirajuddin and one statement Ex. PW3/U is stated to have been tendered by the above Sirajuddin before the IO/PW3 with regard to the purchase and sale of the above vehicle by him through some dealers.

82. PW13 Sh Onkar Singh examined by the prosecution on record is the concerned dealer working in the name of M/s Shalimar Car Bazar and he has stated specifically that the above vehicle was sold by him to the accused persons and the said vehicle at the relevant time was standing with M/s Durga Motors, of which PW14 Sh Gaurav SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

Mittal was a partner, and he had also stated that on payment of Rs 5,00,000/- by the accused persons, the possession and delivery of the above vehicle was given to the accused persons on 04.05.2007. He has also stated that no documents of sale or purchase of the said vehicle were signed by the accused persons on the above date as they had stated that they will sign the requisite documents when they will again return back with the balance payment of Rs 15,000/- and alongwith an identity proof of the accused Mandeep Singh for transfer of the vehicle and it is also stated by him that though the vehicle was purchased by the accused Mandeep Singh, but he was interested in getting the vehicle registered in the name of accused Gurudev Singh to keep the Delhi registration number of the vehicle. He has also stated further that the accused persons had handed over to him photocopies of their driving license in proof of their identities, which were also duly signed by the accused persons, and he had further made one statement Ex. PW3/W on receipt of the summons Ex. PW3/V from the DRI officers during the investigation and had also tendered some documents at that time, which included the above photocopies of the driving licenses of the accused persons, which were also signed by the accused persons, the original Insurance Certificate and the blank signed forms no. 29 and 30 regarding the above transaction as well as the original of the above delivery receipt of the vehicle, which documents are Ex. PW3/W1 to PW3/W9 on record. PW14 Sh Gaurav Mittal has also corroborated the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

depositions of PW13 regarding the sale and delivery of the above vehicle to both the accused persons on the above date and the tendering of his statement Ex. PW3/Y, in response to the summons Ex. PW3/X issued to him during the investigation, regarding the above transaction and they both have also identified the accused persons.

83. The depositions as made by the above two witnesses on record and as further corroborated by the documents brought on record on the above aspect, duly corroborate the disclosures made by the accused persons regarding the purchase and taking delivery of the above vehicle on 04.05.2007 and no motive or reason can be attributed on the part of the above public witnesses in deposing against the accused persons in this regard and the evidence in the form of their oral testimonies and the documents brought on record during their evidence could never have been planted or manipulated by the IO/PW3. Though, the Ld defence counsel has argued that the non examination of Smt Rajbala and Sh Sirajuddin in court is fatal for the prosecution case and was necessary to complete the chain of the prosecution evidence, but this argument is found to be not having any force as even in the absence of the examination of the above two witnesses, the prosecution has been successful in establishing that the above vehicle was purchased by the accused persons through the above witnesses and its possession was also taken by the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

accused persons on 04.05.2007, which only was relevant for the present case.

84. Again, the reference of one other Tata Safari vehicle of red colour had also come in the above statements of the accused persons, which is stated to have been used by them in transportation and delivery of a previous consignment of heroin weighing 6 kg and the above vehicle was arranged and brought by the accused Mandeep Singh. As per the statement Ex. PW3/E of the accused Mandeep Singh, the above vehicle belonged to one Joginder Singh, but he failed to give or provide the complete particulars of the above Joginder Singh and hence, Joginder Singh could not be traced out. However, some ownership enquiries were made from the concerned transport authority of Sheikh Sarai, New Delhi vide letter Ex. PW2/H issued by PW2 Sh B.K.Bannerjee and it was intimated vide endorsement made by an official of the concerned authority on the above letter Ex. PW2/H itself that the above vehicle was registered in the name of one Sh Muzzafar Shah, a resident of the given address of Pamposh Enclave, New Delhi. Even one witness Sh Om Prakash/PW18 has also been examined by the prosecution in this regard and he has brought on record a computerized copy of the ownership details/record of the said vehicle.

85. However, the above Sh Muzzafar Shah could not be traced out at his given address of Delhi and he was SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

found to be residing in the State of J&K. PW23 Sh Tassin Sultan of DRI had conducted some enquiry regarding the above Sh Muzzafar Shah and had forwarded his report Ex. PW23/B, alongwith letter Ex. PW23/A, vide which it was reported by him that the above Sh Muzzafar Shah had already sold the above vehicle to one Sh Nirmal Singh in the year 2003, who was working as a broker of vehicles and was a resident of Ludhiana, Punjab, but the said vehicle was not got transferred by the above Sh Nirmal Singh and some documents regarding the above transaction were also forwarded with the said report. One statement of the above Nirmal Singh Ex. PW25/C was also recorded during in the investigation regarding the said transaction and the same is an admitted document on record and alongwith his above statement, he had also tendered some original documents, including the delivery receipt of the said vehicle to Sh Surender Kumar. The above Sh Surender Kumar has also been examined on record as PW22 and he has stated that he had purchased the above vehicle in the year 2003 itself and he also claims to have sold the same to one Sh Harchand Singh in the same year, who was known to him as the above Harchand Singh used to come at his shop for the purchase some medicines. He has also deposed about tendering of his statement Ex. PW22/A in this regard during the investigation. However, by the time, the statement U/S 67 of the NDPS Act Ex. PW22/A of this witness was recorded by the IO/PW3 on 08.10.2007, the above Harchand Singh was stated to be confined in jail in some case.

SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

86. However, it is also the prosecution case that a team of DRI officers led by PW10 Sh Jyothimon had searched the house of the accused Gurudev Singh in Trilokpuri, Delhi on 08.05.2007 and though, nothing incriminating was recovered in the said search, but one red colour Tata Safari vehicle bearing the above number DL 3CJ 8034 was found parked in the street/lane of the said house, which was also searched by them. PW7 Smt Poonam Aggarwal and PW17 Sh M.C.Maheshwari are also both the members of the above raiding team and as per them, the above vehicle was opened and searched with the key provided by one Smt Raj Kaur, who was the sister-in-law (bhabhi) of the accused Gurudev Singh, though nothing incriminating was also admittedly recovered in the search of the said vehicle. PW26 Sh Suman Kumar and PW27 Sh Ram Kumar are the two neighbours of the above accused, who were joined by PW10 during the above search proceedings as public witnesses, and though they both have not denied the visit of the raiding team of DRI to the above premises and their presence at the relevant time, but they have turned hostile regarding the conducting of the above search proceedings in their presence. However, they have admitted their signatures on the panchnama Ex. PW10/A prepared regarding the said proceedings and also on the search authorization Ex. PW5/C. PW10 is also found to have submitted one execution report Ex. PW10/B regarding the said search proceedings and has also proved on record one letter Ex. PW10/C dated 09.05.2007 written by him to the Inspector, SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

Operations Cell, East District of Delhi Police for taking custody of the said vehicle. Hence, even though, the above two public witnesses have not supported the case of the prosecution regarding the seizure of the above Tata Safari vehicle from the street of the house of accused Gurudev Singh, but the same stands duly proved on record from the depositions made by the above officials witnesses of DRI and the documents proved during their testimonies.

87. Though, the above sister-in-law (bhabhi) of the accused Gurudev Singh was also made to sign the above search authorization Ex. PW5/C and the above panchnama Ex. PW10/A, as the above search proceedings were conducted in her presence according to the prosecution case, but she was not cited as a witness by the prosecution. However, she was examined by the accused persons in their defence as DW1 and though she had denied that the above search proceedings were conducted in her presence or the contents of the panchnama were explained to her before taking her signatures thereon, but she had not disputed her signatures appearing on the above panchnama.

88. While claiming that the accused persons were picked up from her above residence on 07.05.2007 at around 9.30/10.00 AM by 4-5 persons in plain cloths, she had also stated in her examination in chief that the said officers had also taken the keys of the accused SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

Mandeep Singh's red colour Safari vehicle with them. Thus, though she has not specifically admitted the seizure of the above Tata Safari vehicle from outside her house, but in a sense, she has stated on record that the above Tata Safari vehicle belongs to the accused Mandeep Singh. Hence, even the testimony of DW1 corroborates the case of the prosecution and the disclosures made by the accused persons in their above statements U/S 67 of the NDPS Act that the above Tata Safari vehicle, which was found parked outside the house of DW1 Smt Raj Kaur and the accused Gurudev Singh, belonged to and was parked there by the accused Mandeep Singh and the above evidence led by the prosecution on record regarding the above said two vehicles duly corroborates the disclosures made by the accused persons in their above statements regarding the use of the said vehicles in transporting the above contraband substance and the same is a strong ground for holding that the above statements and disclosures contained therein were made by the accused persons voluntarily and not under some force or duress etc.

89. There is also one other circumstance which shows the correctness and voluntariness of the disclosures made in the above statements U/S 67 of the NDPS Act of the accused persons as three original Toll Plaza slips Ex. PW3/C5, PW3/C6 and PW3/C7 of the NHAI Toll Plaza Points located at Doraha and Shambhu in Punjab and Karnal in Haryana were recovered from the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

above Scorpio vehicle of the accused persons, at the time of their interception in this case, and all these Toll Plaza slips are of the date 07.05.2007 and the same also corroborate the disclosures made by the accused persons in their above statements regarding their coming in the above vehicle from Punjab to Delhi on the above day. These documents, coupled with the other oral and documentary evidence led on record regarding the purchase of the said vehicle by the accused persons from Delhi and taking delivery thereof on 04.05.2007 and the seizure of the above Tata Safari vehicle from outside the house of the accused Gurudev Singh, are sufficient to show the correctness and voluntariness of the above disclosures. All the above facts recorded in their disclosure statements, including their personal and family details, could never have been in the knowledge of the DRI officers and these should have been in their exclusive knowledge only and the corroboration of some of these facts, as discussed above, given in their above disclosure statements is a circumstance to show the voluntariness thereof.

90. Again, in their above statements dated 08.05.2007 of the accused persons it has also come on record that the mobile number 9971141834, which was found in possession of the accused Gurudev Singh, was in his own name and the other mobile number 9814543445 found in possession of the accused Mandeep Singh was provided to him by the above Pindu. Though, the SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

computerized call detail records of the above two mobile phones have not been proved on record as per the provisions of the Evidence Act, but the ownership record of the above mobile number 9971141834 of accused Gurudev Singh given in the letter Ex. PW2/N of the concerned service provider proved on record establishes that the above mobile number was allotted to the above accused Gurudev Singh and even the letter Ex. PW21/A proved on record shows that the other mobile number 9814543445 found with the accused Mandeep Singh was not in his name and it was in the name some lady named Baljeet Kaur, who could not be traced out during the investigation. The above evidence is also a circumstance to show the correctness of the disclosures made in the above statements of the accused persons and the voluntariness thereof and these statements not only corroborate the other evidence led by the prosecution on record regarding the recovery of the above heroin from the possession of the accused persons, but also establish that their possession of the above heroin was a conscious possession.

91. Though, the retraction applications of both the accused persons are also found to have been filed on record during their appearance in the court of Ld ACMM concerned on 22.05.2007, but it is observed that their above retraction applications have not come on record at the earliest possible opportunity and had come after a delay of about 14-15 days. Moreover, their retraction SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

applications have been worded in a very vague manner and do not contain any specific denial of the facts earlier stated by them and are rather the plain denials of their earlier statements and these retractions apparently appear to have been filed on some advice of an advocate or some other senior or experienced inmates. Moreover, the facts and circumstance brought on record also nowhere suggest that any physical or mental tortures were given to the accused persons for extracting their above statements and rather their MLCs dated 08.05.2007 Ex. PW28/A and PW28/B proved on record do not show the presence of any fresh external injuries on their persons, which again is a circumstance to negate the allegations of physical tortures. Hence, their retraction applications on record are found to be of no relevance.

HUGE QUANTITY OF CONTRABAND

92. The contention of Ld SPP for DRI is that the recovery of the above huge quantity of 33 kg of heroin from the possession of the accused persons is in itself a strong circumstance to rule out their false implication in this case, whereas the contention of Ld defence counsel is that the conviction of the accused persons cannot be arrived at simply on the basis of the huge quantity of the substance recovered in this case. I do agree that the submissions being made by Ld defence counsel that the quantity of the seized contraband SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

substance alone is not a ground in itself for believing the guilt of the accused persons, but certainly the same is a circumstance which has to be considered by the court, in the light of the other evidence brought on record, for appreciating the evidence led on record for arriving at a finding of guilt or otherwise of the accused persons.

93. The quantity of 33 kg of heroin is a very huge quantity as under the NDPS Act only 250 Grams of heroin is prescribed as a commercial quantity of the said substance. In the CRCL report Ex. PW15/A, which also stands duly proved on record during the depositions of PW15 Sh Jagdish Saran and is also otherwise admissible U/S 293 Cr.P.C., the purity percentage of diacetylmorphine in the above 7 out of the 8 samples drawn from the above 33 packets and tested vide the said report has been given as ranging between 20.8% to 56.7% and the 8th sample Marked D1A was found to be negative for diacetylmorphine and was found positive for morphine only. The above negative sample Marked D1A was drawn only form one packet Marked D1 whereas the other six samples Marked A-1-5A, A-6-10A, A-11-12A, B-1-5A, B-6-10A, C-1-5A, C-6-10A were representing the remaining 32 packets. Going by the above average purity percentage of around 44% of diacetylmorphine found in the above 32 packets, the purity weight of the heroin contained in these 32 packets comes to around 14 kg, which is still very huge quantity of the above SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

contraband substance. As the seizure of this case was effected on 07.05.2007, i.e. much prior to the issuance of notification No. S.O.2941(E) dated 18.11.2009 of the Government of India, Ministry of Finance, which requires that the whole quantity of the mixture of the substance is to be considered and not just its purity or pure contents. Keeping in view the above huge quantity and its value in the National as well as International market, it was not practically possible for the DRI officers to have planted the above huge quantity of heroin upon the accused persons from their own pocket or resources and hence, Ld SPP for DRI has rightly referred to judgments in cases of State of Punjab Vs Balwant Rai 2005 (1) JCC (Narcotics) 103 and CBI Vs Aashiq Hussain Faktoo & Ors. 2003 (2) JCC 316 on this aspect.

PRESUMPTIONS U/S 35 AND 54 OF THE NDPS ACT

94. Section 35 of the NDPS Act deals with the culpable mental state of an accused in a prosecution under the NDPS Act and it prescribes that in any offence under this Act which requires such a culpable mental state of the accused, the court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Section 54 of the NDPS Act also lays down that in trials under this Act, it may be presumed, until and unless the contrary is proved, that SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

the accused has committed an offence under this Act in respect of any narcotic drug or psychotropic substance etc, for the possession of which he fails to account satisfactorily.

95. A combined effect of the above two provisions is that if an accused is found to be in possession of any contraband substance, then the court shall presume that he has committed an offence under the above said Act pertaining to the said substance, unless and until the contrary is proved, if he fails to account satisfactorily for the said possession. Further, if a criminal mental state of the accused is required to be established for the said offence, then the court shall also presume that the accused had that criminal mental state and it shall only be a defence of the accused to prove that he had no such mental state.

96. In the instant case, since both the accused have been held to have been found in physical possession of the above contraband substance, they are presumed to be having the criminal mental state to possess the above contraband substance and to have committed an offence regarding the same and the burden lied upon them to prove the absence of the above criminal mental state or to account for their possession of the above contraband substance. However, the accused are found to have failed to discharge the above burden as nothing has been brought on record to establish that they were not aware regarding SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

the presence of the above contraband substance in their above vehicle.

97. While, dealing with the concept of 'conscious possession' the Hon'ble Supreme Court in the case of Madan Lal & Another Vs State of H.P. : (2003) 7 SCC 465 has held as under:-

"26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."

98. Further, the Hon'ble the Apex Court in case of Dharampal Singh Vs State of Punjab : 2010 (10) SCALE has also held as under :-

"From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act given statutory recognition to culpable mental state. It includes knowledge of fact.

The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

account for satisfactorily the possession of opium. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence."

DEFENCE OF THE ACCUSED

99. The only defence taken by the accused persons in this case is that they both have been falsely implicated in this case after they were picked up from the house of the accused Gurudev Singh in Trilokpuri by some plain cloth officials as they wanted to conduct some enquiries from them. They both have claimed that they were then taken to the DRI office where they were forced to sign on various blank and written documents and to write some papers and they had signed and written the above documents as they were given an assurance by the above officers that they will be let off after doing the same. However, instead the letting off, they were falsely implicated in this case by the DRI officers while shielding the real culprits and they had nothing to do with the above recovered heroin or the vehicle.

100. Their above defence was put up only at a belated stage during the course of recording of their statements U/S 67 of the NDPS Act and nowhere during the examination of the prosecution witnesses, it was suggested to them that the accused persons were picked up from the house of the above accused. Even otherwise, the above defence of the accused persons is a very vague SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

and weak defence and does not stand in view of the oral and documentary evidence led by the prosecution on record.

101. Though, they had also examined the above Smt Raj Kaur in their defence as DW1 and she had also tried to substantiate their above defence while adding that the accused persons were taken away from their residence on 07.05.2007 at around 9:30/10:00 AM and at that time, the accused Mandeep Singh had come to their residence from Punjab to attend some marriage, but her above depositions are not corroborated or substantiated by any satisfactory evidence as no proof of any such marriage has also been brought on record. Even otherwise, the above timing of 9:30/10:00 AM on 07.05.2007 is against the timings recorded in the Toll Plaza slips Ex. PW3/C5, PW3/C6 and PW3/C7 vide which the above vehicle found in possession of the accused is shown to have crossed the Doraha, Shambhu and Karnal Toll points at 00:18:02, 01:20:32 and 02:22:36, i.e. at around 12:18 PM, 1.20 PM and 2:22 PM on that day.

102. Further, during her cross examination DW1 has also admitted that no complaint was ever filed by them regarding the above incident of the taking of the accused persons from their residence by the DRI officers or their false implication in this case and the above depositions being made by this witness in this regard for the first time in this court, after a long gap of SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

about 6 years, cannot be believed. Again, no explanation at all could be furnished by the accused persons in their defence for their alleged false implication in this case as in the absence of their being any enmity between them or their family members and the DRI officers, the DRI officers would not visit their above residence for picking up the accused persons or for falsely implicating the accused persons in this case. It is also not the case of the accused persons that they were even known to the DRI officers prior to the above date. Hence, the plea of false implication of the accused persons in this case is also found to be a vague and false plea.

CHARGE FOR OFFENCES PUNISHABLE U/S 25 AND 29 OF THE NDPS ACT

103. As stated above, besides the charge for commission of the offence punishable U/S 21 of the NDPS Act, r/w Section 29 of the said Act, pertaining to the possession of a commercial quantity of heroin, a charge was also framed against both the accused persons for commission of the offence punishable U/S 29 of the said Act and further a charge for commission of the offence punishable U/S 25 of the said Act was also framed against the accused Mandeep Singh.

104. Section 25 of the NDPS Act is attracted in a case if any owner, occupier or a person in charge or having control of a vehicle or animal etc allows or SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

permits it to be used by any other person for commission of any offence punishable under the above said Act and this Section should not be attracted, in the considered opinion of this court, if the person, who is the owner or in control etc of that vehicle, permits the said vehicle to be used by any other person for commission of the above offences. Since, as per the prosecution story, the above vehicle make Scorpio was purchased by the accused Mandeep Singh and was being used for transportation of drugs by himself, though alongwith the co-accused Gurudev Singh, the offence punishable U/S 25 of the NDPS Act is not made out against them.

105. The offence punishable U/S 29 of the NDPS Act pertains to being a member or a part of a criminal conspiracy to possess or to deal in contraband substances and besides the evidence pertaining to the recovery of the above contraband substance from their possession, the prosecution has also successfully proved on record from the above statements U/S 67 of the NDPS act made by the accused persons, which are duly corroborated by the other evidence led on record, that they both were involved in the purchase of the above Scorpio vehicle from Delhi on 04.05.2007 and the same was taken by them to Punjab for transportation of heroin therein and they both were further found transporting and possessing the above heroin therein concealed in the said vehicle. The evidence also establishes on record that even the above Tata Safari vehicle seized in this SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

case was used by them for the above purpose and it was seized from outside the residence of the accused Gurudev Singh. Hence, the evidence led on record is sufficient to establish the existence of a criminal conspiracy between them to deal in contraband substances and to possess the above quantity of heroin and therefore, the charge for the offence punishable U/S 29 of the NDPS Act is also proved against the accused persons, besides the charge for the offence punishable U/s 21(c) of the said Act for possessing the above commercial quantity of heroin in furtherance of their above criminal conspiracy.

106. In view of the above discussion, both the accused Gurudev Singh and Mandeep Singh are held guilty and convicted for the above offences punishable U/S 21(c) and 29 of the NDPS Act. Let they be now heard on the quantum of sentence.

Announced in the open
court on 18.11.2013                                       (M.K.NAGPAL)
                                                     ASJ/Special Judge NDPS
                                                         South District
                                                      Saket Court Complex
                                                           New Delhi




SC No. 71A/07                                             DRI Vs Gurudev Singh & Anr.
                                     75


                IN THE COURT OF SHRI M.K.NAGPAL

ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT SAKET COURT COMPLEX, NEW DELHI Directorate of Revenue Intelligence Delhi Zonal Unit, New Delhi Through Sh Gurjit Singh, Intelligence Officer V E R S U S

1. Gurudev Singh S/o Late Sh Jai Singh R/o 7/340, Trilokpuri New Delhi.

2. Mandeep Singh S/o S. Harbhajan Singh R/o Village Havelian, PO Noshera District Taran Taran Punjab.



SC No. : 71A/07
U/S    : 21/25/29 NDPS Act
Computer ID No. 02403R0747462007


ORDER ON SENTENCE

Present:        Ms Mala Sharma, Ld SPP for DRI.
                Both the convict in JC in person.

After having convicted both the accused persons for the offences punishable U/S 21(c) and 29 of the NDPS Act vide my judgment dated 18.11.2013, arguments have been heard today as advanced by Ms Mala Sharma, Ld SPP for DRI as well as the convicts in person on the point of SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

sentence to be awarded to the convicts. However, Ld defence counsel has not turned up despite waiting till 4:00 PM.

2. The offence punishable U/S 21(c) of the NDPS Act carries a minimum term of rigorous imprisonment for a period of 10 years extending up to 20 years and also a fine of not less than Rs 1 Lac and extending up to Rs 2 Lac and even the other offence punishable U/s 29 of the NDPS Act proved against the accused persons carries the same punishment.

3. It has been submitted on behalf of the prosecution that the maximum terms of imprisonment and fine be awarded to the convicts and they do not deserve any leniency from this court as they have been found guilty of possessing a huge commercial quantity of Heroin weighing around 33 KG and even as per the purity, the weight of the above Heroin comes to around 14 KG.

4. On the other hand, convicts have requested for taking a lenient view in the matter and awarding of the minimum sentence of imprisonment and fine to them. It is submitted by the convict Gurudev Singh that he is aged about 42 years and is having the liability to maintain his wife and two minor children. It is also submitted by him that his widow mother is also residing with his wife and is required to be taken care of by him, though she is not financially dependent upon him and is getting some SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

pension. The convict Mandeep Singh also submits that he is also aged about 28 years and is still unmarried and is having the liability to maintain his old parents as his brothers have already deserted them.

5. I have thoughtfully considered the above submissions being advanced on the point of sentence. The accused persons have only been found to be part of a criminal conspiracy to deal in contraband substances and were also found possessing a commercial quantity of Heroin in furtherance of the above criminal conspiracy. However, as per the evidence brought on record, the convict Mandeep Singh was only acting as a carrier of contraband substances for some petty monetary considerations and he had also roped in the convict Gurudev Singh in the above illicit business by offering him some petty monetary consideration. No other involvement of the convicts in any such type of case has also been brought on record.

6. Hence, keeping in view the totality of the facts and circumstances, age, family background and all other attending circumstances, both the convicts are being awarded the minimum sentence of rigorous imprisonment for a period of 10 years each and a fine of Rs 1 Lac each for both the above said offences. In case of non payment of fine they shall further undergo simple imprisonment for a period of three months each. Both the above sentences shall run concurrently. The period of SC No. 71A/07 DRI Vs Gurudev Singh & Anr.

custody already undergone by both the convicts is allowed to be set off in terms of the provisions of Section 428 Cr.P.C. Fine has not been paid. Let them to undergo the above sentences as per law. A copy of the judgment and the order on sentence be supplied to both the convicts free of cost.

7. The case property be also confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment and order on sentence. File be consigned to the record room.

Announced in the open
court on 25.11.2013                                   (M.K.NAGPAL)
                                                 ASJ/Special Judge NDPS
                                                     South District
                                                  Saket Court Complex
                                                        New Delhi




SC No. 71A/07                                         DRI Vs Gurudev Singh & Anr.

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Sc No. 71A/07 Dri vs Gurudev Singh & Anr. on 18 November, 2013