Delhi District Court
Sc No. 06A/08 Dri vs . Kuldeep Raj on 23 March, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Directorate of Revenue Intelligence
Through Sh. D.P.Saxena, Intelligence Officer
Versus
Kuldeep Raj
S/o Sh. Ramesh Chander
R/o Village Loukhli,
P.O. Ratan Pur Surara,
Tehsil Hira Nagar,
District Kathuwa,
Jammu, J&K.
SC No. : 06A/08
U/S : 21 NDPS Act
ORDER ON SENTENCE
Present : Sh. Vikas Gautam, Proxy Counsel for Sh.
Satish Aggarwal, SPP for DRI.
Convict Kuldeep Raj from JC with Sh.
S.K. Saxena Amicus Curiae.
After having convicted the accused for the offence
U/S 21(c) of the NDPS Act vide my judgement dated
23.03.2011, I have today heard the submissions made on
behalf of the DRI as well as the convict on the point of
sentence to be awarded to the convict.
SC No. 06A/08 DRI Vs. Kuldeep Raj
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2. It has been submitted on behalf of the DRI that
the convict has been held guilty for the offence U/S 21(c)
of the NDPS Act for possessing a commercial quantity of
heroin and keeping in view the serious nature of the
offence and further that an offence under the NDPS Act is
not only an offence against an individual but an offence
against the society at large and the nation, no leniency
should be shown in awarding sentence to the convict and the
maximum term of imprisonment and fine should be imposed
upon him.
3. On the other hand, it has been submitted on
behalf of the convict that he is a very poor person and is
having the liability to maintain his aged parents, two
unmarried sisters and two minor brothers and presently he
is the sole bread earner of his family because due to old
age his father is not in a position to do much work. It is
also submitted that he is very young and aged about 30/31
years only and he is still unmarried and has yet to settle
in life. It is further stated that there is no previous
involvement of the convict in any other case under the NDPS
Act or under any other law and hence request has been made
for taking a lenient view in the matter of sentence.
4. Section 21 of the NDPS Act, which deals with the
punishment prescribed for possessing and carrying etc. a
' commercial quantity ' of the above contraband substance,
carries a sentence of Rigorous Imprisonment for a minimum
period of 10 (ten) years and extendable upto 20 years and
SC No. 06A/08 DRI Vs. Kuldeep Raj
3
also a fine of not less than Rs. 1,00,000/- (One Lakh) but
extendable upto Rs. 2,00,000/- (Two Lakhs). As has already
been held in the judgement the percentage weight of the
heroin recovered from the convict comes to just above 2 kg,
though the net weight of the heroin recovered from him was
above 5 kg. Therefore, keeping in view the above
submissions made on the point of sentence and the age,
family liability and the other attending circumstances, I
sentence the convict to Rigorous Imprisonment for a period
of 12 years and also to pay a fine of Rs. 1,00,000/- (One
Lakh). In case of non payment of the fine the convict
shall further undergo R.I. for a period of six months.
Benefit of Section 428 Cr.P.C. has been extended to the
convict for the period of imprisonment already undergone by
him during the pendency of this case. Fine has not been
paid. Let he be sent to Central Jail, Tihar to undergo the
above sentence as per law.
5. Let a copy of the judgement and this order on
sentence be supplied to the convict free of costs. File be
consigned to record room.
Announced in the open
court on 25.03.2011 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 06A/08 DRI Vs. Kuldeep Raj
4
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Directorate of Revenue Intelligence
Through Sh. D.P.Saxena, Intelligence Officer
Versus
Kuldeep Raj
S/o Sh. Ramesh Chander
R/o Village Loukhli,
P.O. Ratan Pur Surara,
Tehsil Hira Nagar,
District Kathuwa,
Jammu, J&K.
SC No. : 06A/08
U/S : 21 NDPS Act
Date of institution : 29.01.2008
Date of reserving judgment : 18.03.2011
Date of pronouncement of judgment : 23.03.2011
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. D.P.Saxena, Intelligence Officer against the accused Kuldeep Raj for the offence punishable U/S 21 of the NDPS Act, 1985 on allegations that on 04.08.07 at about 05.30 pm a secret information was received by the above IO that a person of Indian origin, of around 28 years of age and 5' 7" of height, of wheatish complexion and having medium built, SC No. 06A/08 DRI Vs. Kuldeep Raj 5 would be standing at the bus stand, Krishna Park, Near Pastry Palace, Vikaspuri at about 05.00 AM on 05.08.07. The above information was conveyed by the IO to his superior officers and on their directions a raiding team to be led by the above IO was constituted and the accused Kuldeep Raj was apprehended by the raiding team from the above said place, at around the time disclosed in the secret information, and at the time of his apprehension he was found carrying one black colour shoulder bag. Since the place of apprehension of the accused was a public place, he was brought to DRI Headquarters and after compliance of the provisions of Section 50 of the NDPS Act, the search of the shoulder bag carried by the accused was conducted and the same was found to contain five heat sealed transparent polythene packets, the contents of which were tested and identified to be heroin and the net weight of the heroin contained in the above five packets was found to be 5.072 KG. Since the possession and carrying etc. of the above commercial quantity of heroin was prohibited and was an offence punishable under the provisions of the NDPS Act, a complaint U/S 21 of the NDPS Act was filed against the accused in this court on 29.01.08 and cognizance thereof was taken on 30.01.08.
2. A prima facie case for the offence punishable U/S 21 of the above said Act was also found to be made out against the accused and hence a charge for the above said offence was also framed against the accused by this court on 05.05.08.
SC No. 06A/08 DRI Vs. Kuldeep Raj
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3. The prosecution/DRI in support of its case has
examined total 10 witnesses on record and their names and the purpose of examination is being stated herein below :-
4. PW1 Sh Sujeet Kumar is the Intelligence Officer of the DRI who had received the above secret information telephonically in his office on 04.08.07 at about 5.15 PM and he had reduced the same in writing as Ex. PW1/A and had placed it before his superior officer, i.e Deputy Director Sh Pankaj Kumar Singh/PW9 on the same day at about 5.30 PM.
5. PW2 Sh B.K.Banerjee, Appraiser of DRI Head quarters had issued the seal of DRI to Sh D.P.Saxena, Intelligence Officer on 05.08.07 vide entry at serial no. 32 of the Seal Movement Register and had also received it back from the above officer on the same day. After the arrest of the accused Kuldeep Raj in the above case by the above IO, he had also intimated his father Sh Ramesh Chander about the arrest vide telegram Ex. PW2/A and has also proved on record the original receipt of the above telegram as Ex. PW2/B and a copy of the relevant entry no. 32 of the Seal Movement Register as Ex. PW2/D. He has also subsequently seen the report/information U/S 57 of the NDPS Act Ex. PW2/C sent by the above IO to him.
6. PW3 Sh D.P.Saxena, Intelligence Officer (IO) is the main investigating officer of this case who on being directed to take action on the above secret information had apprehended the accused and had recovered the above SC No. 06A/08 DRI Vs. Kuldeep Raj 7 contraband substance from him. He has stated that in the evening of 04.08.07 he was called by Sh P.K.Singh, the then Deputy Director, DRI, New Delhi and was informed about the above secret information regarding the presence of a person of given description, with some narcotic drugs in a black colour shoulder bag, at the bus stand, Krishna Park, Vikaspuri, New Delhi on 05.08.07 at about 7 AM and he was directed to take necessary action in the matter. He has stated that acting upon the above information, he had constituted a raiding team and had reached at the spot in advance to keep a watch for that person and at about 7.15 AM he had identified a person matching with the description given in the secret information and had discretely kept a watch on the movement of the said person. However, suddenly, that person started moving and sensing the danger of his escape, they all had stopped that person and had introduced themselves to him while showing their identity cards and the accused had also disclosed his identity on being asked in this regard. It is also stated by him that thereafter the accused was informed about the above secret information and was specifically asked whether he was carrying any narcotic drugs in the shoulder bag being carried by him, but the accused had replied in negative and had disclosed that there were only his personal effects in the said bag. The accused was then told that the search of his shoulder bag was required to be conducted and since the place of apprehension of the accused was not conducive for conducting such search, the accused, alongwith his abovesaid bag, was escorted and brought to the DRI Headquarters at 7th Floor, D Block, IP SC No. 06A/08 DRI Vs. Kuldeep Raj 8 Bhawan, IP Estate, New Delhi.
7. It is also stated by this witness that after reaching their office two panch witnesses namely Sh Nitin Sharma and Sh Manish Kapoor were called and after revealing the contents of the secret information to them and after the introduction between the panch witnesses and the accused, the accused was again asked as to whether he was carrying any narcotic drugs on his person or in his black colour shoulder bag and the accused had again replied in negative.
The IO/PW3 had then given a notice U/S 50 of the NDPS Act Ex. PW3/A to the accused explaining him his legal right to get his person and his above bag searched before a Magistrate or a Gazetted Officer and had also told the accused that he will have to give his option in writing. The accused had then given his written reply on the above notice itself, in his own handwriting and in the presence of the panch witnesses, that any officer of DRI can take the search of his person as well as of his bag, but in the subsequent search of his person conducted by the IO/PW3 nothing incriminating could be recovered. However, on opening the above black colour shoulder bag being carried by the accused, five heat sealed transparent polythene packets were recovered from below the personal effects of the accused placed therein and on opening the same one by one, it was found that there were one cloth bag having some markings each in the above packets and the above cloth bags further contained one plastic transparent polythene packet containing some off white colour substance.
SC No. 06A/08 DRI Vs. Kuldeep Raj 9
8. It is further stated by the IO/PW3 that all the above five packets were then given markings X1 to X5 for identification purposes and there were found to be three different types of markings on the above packets and markings on packets X1 and X2 were similar, markings on packets marked X3 and X4 were also similar though different from marking on packets X1 and X2, and the marking on packet X5 was having another type of marking. The IO had taken out a small quantity of the substance from all the above five packets and on testing the same with the help of Drug Detection Kit, the same had given positive results for heroin, a narcotic drug. Thereafter the IO had weighed the above five polythene packets and their gross weight was found to be 5.214 KG and the net weight of the contraband substance to be 5.072 KG. The accused was then informed that the sale, purchase, possession and transportation etc. of any narcotic drug or psychotropic substance was prohibited and punishable under the NDPS Act and the same was also seized by the IO, alongwith the above shoulder bag and other personal effects etc.
9. It is further stated by the IO/PW3 that thereafter he had drawn two representative samples of approximately 5 grams each from each of the above five packets and the same were put in separate zip locked small polythene packets and were marked as X1A to X5A and X1B to X5B and these packets were further kept in separate paper envelopes and after giving corresponding markings to the same, these envelopes were sealed with the seal of Directorate of Revenue SC No. 06A/08 DRI Vs. Kuldeep Raj 10 Intelligence 10 and over and above each of the above envelopes a paper slip containing the dated signatures of the accused, witnesses as well as of the IO was pasted. The remaining contents of the above recovered substance were also repacked in their original packings and further put in white colour cloth bags and the same were stitched and sealed with the same seal and a similar paper slip containing the signatures of the above person were also pasted on the above pullandas and these packets were given markings as X1 to X5 and all these packets were then put into a steel trunk and the same was wrapped with a white cloth and stitched and sealed in the same manner and a similar paper slip was also pasted thereon. A panchnama with regard to the above proceedings was also prepared and an impression of the above DRI seal was appended on the body of the same. The IO/PW3 had also prepared a test memo Ex. PW3/K in triplicate for chemical analysis and it was signed by him and the accused and the impression of the above seal was also appended on the above test memo. The proceedings conducted were explained to the accused and the witnesses and the panchnama was got signed from them. The panchnama prepared by the IO has been proved on record as Ex. PW3/B and the photocopies of the markings found on the cloths of the above five packets have been proved on record as Ex. PW3/B1 to B5.
10. It is also deposed by the IO/PW3 that thereafter he had issued summons Ex. PW3/C U/S 67 of the NDPS Act to the accused on 05.08.07 itself to appear before him at 12.45 PM SC No. 06A/08 DRI Vs. Kuldeep Raj 11 and the voluntary statement of the accused recorded on the above summons has been proved on record as Ex. PW3/D, wherein the accused had disclosed as to how he was roped in the business of supply of the contraband substance for consideration by one Sh. Shyam Lal, who had met him in Jammu, and the above contraband substance recovered from him was also handed over to him by the above Sh. Shyam Lal and the same was to be supplied to a particular person of given description in Delhi. Thereafter the IO/PW3 had arrested the accused, after explaining him the grounds of his arrest, vide arrest-cum-jamatalashi memo Ex. PW3/E and a copy thereof was also served upon the accused. Thereafter the accused was got medically examined, lodged with PS Daryaganj vide letter Ex. PW3/H and was then produced before the Ld ACMM concerned on the next day and was remanded to judicial custody. Two applications of the IO seeking medical examination of the accused dated 05.08.07 and 06.08.07 and his two MLCs of above dates have also been proved on record as Ex. PW3/F and PW3/I & PW3/G and PW3/J respectively.
11. It is further deposed by the IO that thereafter he had deposited the sealed case property in the Valuable Godown, New Customs House, New Delhi vide inventory/deposit memo Ex. PW3/L dated 06.08.07 and had submitted the report U/S 57 of the NDPS Act, which is already Ex. PW2/C to his senior officer Sh B.K.Banerjee. He has also proved on record another copy of the test memo sent with the sample to CRCL as Ex. PW3/M, identified his signatures on the entry Ex. PW2/D of the seal movement register and has also deposed SC No. 06A/08 DRI Vs. Kuldeep Raj 12 about his being authorized by Sh P.K.Singh to take necessary steps vide his endorsement on the secret information Ex. PW1/A. On 06.08.07, on being authorized by Sh Nilank Kumar, Assistant Director, GI, DRI, he had also taken the sample pullandas to the CRCL for chemical analysis alongwith the duplicate test memo, vide authorization letter Ex. PW3/P and the same were deposited by him in the CRCL vide acknowledgment receipt Ex. PW3/Q. Subsequently on issuance of summons Ex. PW3/R and PW3/T respectively to the above two panch witnesses Sh Nitin Sharma and Sh Manish Kapoor, he had also recorded their voluntary statements U/S 67 of the NDPS Act Ex. PW3/S and PW3/U respectively. During his statement made in this court, besides identifying the accused Kuldeep Raj, he has also identified the paper slip pasted on the pullanda of the remaining case property as Ex. P1, the white cloth of the above pullanda having particular of this case as Ex. P2, the above steel trunk as Ex. P3, the above shoulder bag as Ex. P4, the paper slips pasted on packets marked X1 and X2 of the remaining case property as Ex. P5 and P6 and the outer cloths of these two packets as Ex. P7 collectively, the heroin of these two packets as Ex. P8 and P9 and the white cloths having rubber stamp markings of the above two packets as Ex. P10 and P11.
12. He has also identified the paper slips pasted on packets marked X3 and X4 of the remaining case property as Ex. P12 and P13 and the outer cloths of these two packets as Ex. P14 collectively, the heroin of these two packets as Ex.
P15 and P16 and the white cloths having rubber stamp
SC No. 06A/08 DRI Vs. Kuldeep Raj
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markings of the above two packets as Ex. P17 and P18. He has further identified the paper slip pasted on packet marked X5 of the remaining case property as Ex. P19 and the outer cloth of this packet as Ex. P20, the heroin of this packet as Ex. P21 and the white cloth having rubber stamp markings of the above packet as Ex. P22.
13. He has further identified the paper slips pasted on the duplicate set of five samples marked X1B to X5B as Ex. P23 to P27 and the polythene packets, alongwith the duplicate samples, as Ex. P28 to P32, the paper slips pasted on the other set of five samples sent to the CRCL as Ex. P33 to P37 and the remnants thereof as Ex. P38 to P42.
14. PW4 Sh Parmod Kumar was working as Deputy Director, DRI Regional Unit at Jammu and on receiving one letter from the Delhi Unit of DRI, he had got searched the residential premises of the accused in his native village Loukhli, PO Ratanpur Surara, Tehsil Heera Nagar, District Kathwa, J & K in the follow up action taken subsequent to the arrest of the accused, but nothing incriminating could be recovered in such search and vide his letter Ex. PW4/A and the panchnama Ex. PW4/B, he had conveyed the above fact to the Delhi Unit of DRI. Vide his further letter Ex. PW4/C he had also informed that no trace could be found of the above Sh. Shyam Lal, who used to supply the narcotic drugs to the accused.
15. PW5 Sh. Jaiveer Singh, Lab Assistant, CRCL had received the five sealed sample pullandas of this case in SC No. 06A/08 DRI Vs. Kuldeep Raj 14 intact condition on 06.08.07, along with the forwarding letter and bearing seals of DRI, from the IO Sh. D.P.Saxena on the instructions of Sh. J.S. Aggarwal, the then Chemical Examiner of CRCL and had issued the acknowledgment receipt Ex. PW3/Q. Similarly, on 14.12.07 he had again received the above five sealed sample packets in intact condition, along with the forwarding letter Ex. PW5/A and having the seals of CRCL on the upper portion and the seals of DRI at the bottom portion, from the IO Sh. D.P.Saxena on the instructions of Sh. S.C. Mathur, Chemical Examiner, Grade II of CRCL.
16. PW6 Sh. S.C. Mathur has proved on record the test report dated 21.11.07 of the above five samples of heroin of this case, which were received in the CRCL on 06.08.07 after the same were subsequently entrusted to him for examination, as Ex. PW6/A as the above samples were tested by Sh. S.K. Gupta, ACE under his supervision and vide the above report the above samples were found to contain diacetylmorphine (heroin) qualitatively. The report of the analysis was also given by Sh. S.K. Gupta in the test memo Ex. PW3/M. On 14.12.07 he had again examined the above set of five samples vide report Ex. PW6/B, after receiving the forwarding letter Ex. PW5/A from Sh. K.K. Sood of DRI, New Delhi, and had opined the purity percentage of the above five samples to be 48%, 45.4%, 38.7%, 37.6% & 21.2% respectively.
17. PW7 Sh. D.B.Sharma was working as Inspector, Customs and In-charge Valuable Godown, New Customs House, Near IGI Airport, New Delhi on 06.08.07 and on the SC No. 06A/08 DRI Vs. Kuldeep Raj 15 directions given by his senior officer he had deposited the sealed intact pullanda of this case containing the case property in the Valuable Godown, which was brought to him by the IO Sh. D.P.Saxena of DRI. He had proved on record a copy of the relevant entry of the Valuable Godown register as Ex. PW7/A.
18. PW8 Sh. Nilank Kumar was posted as Assistant Director in the DRI Headquarters on 05.08.07 and he was handed over the sealed pullandas of the samples and case property of this case by the IO on 05.08.07, along with the test memo in duplicate, and on 06.08.07 he had handed over the five sample packets of this case to the above IO, along with the above test memos, for depositing the same with the CRCL vide his forwarding letter Ex. PW3/P (wrongly typed as Ex. PW3/B in his statement, whereas the document was already exhibited on record as Ex. PW3/P in the statement of the IO/PW3). He was subsequently shown the receipt of deposit thereof Ex. PW3/Q by the IO. On 06.08.07 itself he had also handed over the sealed pullanda of the remaining case property to the above IO for depositing the same in the Valuable Godown and has also identified his signatures on the inventory/deposit memo Ex. PW3/L thereof. He has also stated that on 06.09.07 he had sent a letter to Deputy Director, DRI, Jammu for finding out the above Sh. Shyam Lal and a reply Ex. PW4/C to the same was received subsequently.
19. PW9 Sh. Pankaj K. Singh is the superior officer of PW1 Sh. Sujeet Kumar and before him the above secret SC No. 06A/08 DRI Vs. Kuldeep Raj 16 information/intelligence Ex. PW1/A was placed by PW1 and vide his endorsement made thereon he had directed Sh. D.P.Saxena, IO/PW3 to take further necessary action. He has also proved on record his letter Ex. PW9/A written to PW4 for the above follow-up action and the same was replied vide the above letter Ex. PW4/A.
20. PW10 Sh. K.K. Sood was working as Assistant Director, GI in DRI Headquarters, New Delhi on 14.12.07 and he had only forwarded the remnants of the above samples to CRCL again vide his letter Ex. PW5/A for determining the purity percentage thereof.
21. After the conclusion of the evidence of the DRI all the incriminating evidence brought on record was put to the accused in his statement recorded U/S 313 Cr.P.C. and the same was claimed by him to be incorrect. He has also claimed himself to have been falsely implicated in this case. He has claimed that he was doing the work of ' P alledari ' (labour work) at Delhi-U.P. Boarder (Seemapuri Boarder) with one Atul Carrier Transport Company, which is situated in Delhi, and he was picked up on 05.08.07 from the above office of his employer and was taken to the DRI office and was falsely implicated in this case by forcefully taking his signatures on a number of documents. Though he has also chosen to lead defence evidence, but he has subsequently closed the same and has not examined any witness on record in his defence.
22. I have gone through the written arguments filed and SC No. 06A/08 DRI Vs. Kuldeep Raj 17 the oral arguments advanced on behalf of the DRI and also the arguments advanced by Sh. S.K. Saxena, Amicus Curiae.
23. It has been argued by Ld Amicus Curiae for the accused that the entire case of the prosecution is dependent on the sole testimony of the IO/PW3 Sh D.P.Saxena and there is no other oral evidence produced by the prosecution on record to corroborate his depositions and to prove the factum of recovery of the above contraband substance from the accused as no public witness was joined by the IO at the time of apprehension of the accused with the alleged contraband substance, despite the availability of sufficient time. It is also argued that no proceedings have been conducted by the IO/PW3 at the spot and the entire panchnama proceedings have been conducted in the office of the DRI and have been manipulated. It has also been argued that though the two public/panch witnesses were allegedly called in the office of the DRI and were made witness to the panchnama proceedings, but even the above two panch witnesses have not been produced by the prosecution on record and on account of the failure of the prosecution to examine the above witnesses, the case of the prosecution should fail and an adverse inference should be drawn against the prosecution. It has also been argued that even the sole depositions of the IO/PW3 are not sufficient to bring home the guilt of the accused as the same suffer from various infirmities and are not inspiring any confidence. It has also been argued that even the local police was intimated by the DRI Officers with regard to the alleged secret information regarding the SC No. 06A/08 DRI Vs. Kuldeep Raj 18 arrival of the accused with the contraband substance and even no attempt was made by the IO/PW3 to join them subsequent to the apprehension of the accused.
24. On the other hand it has been argued on behalf of the DRI that even in the absence of examination of any panch witness, the case of the DRI stands duly proved on record from the depositions made by the IO/PW3 himself, which further stand corroborated from the documents proved by him on record. It is also argued that the depositions made by the IO/PW3 cannot be discarded merely on the ground of his being an official witness and no adverse inference can also be drawn against the DRI for non production of the two panch witnesses for evidence in this court as the same could not be produced for no fault on behalf of the DRI. It has also been argued that the case of the DRI stands fully proved on record against the accused and the minor discrepancies in the story of the prosecution or in the statement of the IO/PW3, if any, are liable to be ignored and no tampering etc. with the case property or the samples thereof has also been alleged or proved on record.
25. On perusal of the case file it is observed that the secret information received by PW1 and reduced into writing vide Ex. PW1/A, was received in the office of the DRI on 04.08.07 at about 5.30 PM and it was regarding the arrival of a person of given description, alongwith the contraband substance, at a given place on the next day, i.e on 05.08.07 at about 7 AM. As far as the argument of Ld Amicus Curiae SC No. 06A/08 DRI Vs. Kuldeep Raj 19 regarding the non joining of the public witnesses at the spot or the officials of the local police despite availability of sufficient time is concerned, it is observed that though the IO/PW3 in his statement has not made any depositions regarding his any such efforts to join a public witness or an official of the local police at the spot but the same was not at all necessary in a case like this because it is a fact of common knowledge that public persons are seldom willing to be a witness or party to such proceedings which may drag them to a long standing and cumbersome litigation and attending the court proceedings off and on to depose regarding the facts witnessed by them. The Ld SPP for DRI in this regard has rightly relied upon a judgment of our own High Court in case Union of India Vs Victor Namdi Okpo 2010 (4) JCC (Narcotics) 188 wherein their lordships had held that the non joining of public witnesses by the prosecution is not fatal as the public witnesses are always scared to become a witness in a criminal case and it is very hard to find public witnesses these days. As far as the not informing of the local police officials regarding the secret information is concerned, keeping in view the nature of the secret information and also since this information/intelligence was received by a specialized agency the same was also not required and does not adversely affect the credibility of the prosecution story. The joining of the local police officials subsequent to the apprehension of the accused would also not have served any purpose.
26. It is a matter of record that though two public/ SC No. 06A/08 DRI Vs. Kuldeep Raj 20 panch witnesses namely Sh Nitin Sharma and Sh Manish Kapoor were allegedly called by the IO/PW3 in the DRI headquarters and they had witnessed the entire panchnama proceedings and the IO/PW3 had also allegedly recorded their voluntary statements U/S 67 of the NDPS Act Ex. PW3/S and PW3/U respectively in response to the summons Ex. PW3/R and PW3/T respectively issued to them, but none of the above two witnesses could be examined by the prosecution on record because both these witnesses were reported to be not existing/traceable at their given addresses. However, as far as the arguments of Ld Amicus Curiae for drawing an adverse inference against the prosecution in this regard is concerned, the same is without any force because the prosecution cannot be faulted for or held responsible for their non production or their non examination in the court. Both the above witnesses were called in the office of the DRI Headquarters after the accused was brought to their office by the IO/PW3 after his apprehension from the spot and the above contraband substance was recovered from the above shoulder bag of the accused in the presence of the above two panch witnesses and even the entire process of drawing of the samples etc. and the sealing thereof and of the remaining case property has been carried out by the IO/PW3 in the presence of the above two witnesses and specific depositions have been made by the IO/PW3 in this regard during his examination in this court. He has also duly proved on record a notice U/S 50 of the NDPS Act given to the accused prior to conducting the search of his person and bag as Ex. PW3/A, the panchnama proceedings conducted SC No. 06A/08 DRI Vs. Kuldeep Raj 21 and drawn by him as Ex. PW3/B and the photocopies of the markings/documents attended to the above panchnama as Ex. PW3/B1 to PW3/B5 etc. and all these documents are dated 05.08.07 and are bearing the signatures of the above two witnesses also, which have been duly identified on record by the IO/PW3. Similarly, the above summons issued to the above two witnesses and their statements U/S 67 NDPS Act recorded by the IO/PW3 consequent upon the same are also bearing the signatures of these two witnesses, which have also been duly identified by the IO/PW3 on record, and further the process to these two witnesses was issued by this court at their given addresses as recorded in their respective summons and statements and hence the prosecution cannot be faulted if subsequently the above addresses have been found to be not existing or the witnesses not traceable at the said addresses and no adverse inference is required to be drawn against the prosecution in this regard because of the non appearance of these two witnesses in this court. The prosecution in this regard has also rightly relied upon the judgments of our own High Court in case Delias Christophe Guy Jeans Vs. Customs 2004 (3) JCC 1747 and also in the case of Victor Namdi Okpo, Supra wherein also similar observations were made by their Lordships to the effect that no such adverse inference is required to be drawn against the prosecution for non examination of such panch witnesses.
27. The next argument of Ld Amicus Curiae is that no proceedings were conducted by the DRI officers at the spot of apprehension of the accused and the entire proceedings SC No. 06A/08 DRI Vs. Kuldeep Raj 22 have been conducted by them in their office and the alleged recovery of the contraband substance from the accused by the DRI staff in their office is highly doubtful and the same cannot be made to be the basis of conviction of the accused and that too when the panch witnesses have not been produced for their examination in the court. In this regard also it is found that there is no rule or provision under the NDPS Act making it mandatory for the IO to conduct such proceedings at the spot and the recovery of a contraband substance effected from the accused cannot be doubted only on the ground that such recovery was effected at a place different from the place of apprehension of the accused. In this regard also the Ld. SPP for DRI has rightly relied upon a judgment dated 05.11.09 of our own High Court in Criminal Appeals No. 694/05 titled Vimal Kumar Bahal Vs. DRI and No. 779/05 & Crl. M.A. Nos. 11243/06 & 4196/2008 titled Surender Raj Singh Vs. DRI, wherein while reiterating the prepositions of law laid down by the Hon' b le Supreme Court in case M.Prabhu Lal Vs The Assistant Director, Directorate of Revenue Intelligence-JT 2003 (Suppl.2) SC 459, their Lordships of our own High Court had upheld the conviction of the appellants in similar circumstances where after the apprehension of the accused they were taken at a different place and the proceedings of recovery and drawing of samples etc. were conducted at the subsequent place on the ground that the place of apprehension of the accused was not conducive for holding such proceedings. In this case also it has been specifically deposed by the IO/PW3 that since the SC No. 06A/08 DRI Vs. Kuldeep Raj 23 place of apprehension of the accused was not found conducive for conducting the search, the accused was asked to accompany the DRI staff to DRI Headquarters. Hence, the above argument of Ld Amicus Curiae is not found to be of any help to the case of the accused.
28. As already stated above, PW3/IO is the sole witness of recovery of the above contraband substance from the accused and his depositions made in this court cannot be disbelieved or thrown away merely on the ground of his being an official witness. It is now well settled that presumption of honesty is very well available to an official witness as the same is available to any other public witness and all that is required is that the depositions of an official witness are to be scrutinized and appreciated more carefully and the same should also be acted upon with certain amount of circumspection. Reference in this regard can be made to the cases of Delias Christophe Guy Jeans, Supra, State of Haryana Vs Mai Ram 2008 (3) JCC (Narcotics) 188 and State of Punjab Vs Surjeet Singh & Anr. 2009 (3) JCC (Narcotics) 106.
29. The above secret information Ex. PW1/A was put up by PW1 Sh Sujeet Kumar, IO before his superior officer Sh Pankaj.K.Singh/PW9 and vide his endorsement made thereon he had directed PW3 Sh D.P.Saxena/IO to take necessary action on the same and thereafter the IO/PW3 had constituted a raiding team to take action upon the above information and for recovery of the above contraband substance. There are specific depositions made by the IO/PW3 on record that in SC No. 06A/08 DRI Vs. Kuldeep Raj 24 the next morning, i.e on 05.08.07, they had arrived at the spot of information in advance and had kept a watch for the person of the description given in the above secret information. He has also specifically deposed that after his arrival at the spot the accused was apprehended with the above shoulder bag carried by him as his description matched with that given in the above secret information and after the formal introduction session, the accused was asked if he was possessing any contraband substance as per the information and after the accused had replied in negative, he was brought to the DRI Headquarters alongwith the above shoulder bag carried by him. Then he has also deposed that the accused was again asked if he was possessing any contraband substance on his person or in his above shoulder bag and since he had replied in negative, a notice U/S 50 of the NDPS Act Ex. PW3/A was served upon the accused and though nothing incriminating could be recovered in the search of his person conducted subsequent to the service of the above notice, but a search of his above shoulder bag revealed that he was carrying five heat sealed polythene packets below his personal effects in the said bag. It has also been specifically deposed by the IO/PW3 that the above five polythene packets were containing some off white colour substance and the same was tested to be heroin with the help of a Narcotic Detection Kit and the total weight of the above heroin was found to be 5.214 KG and its net weight was 5.072 KG. The IO/PW3 has also made specific depositions with regard to the process of drawing of two sets of samples of 5 grams each from the above five packets and the sealing SC No. 06A/08 DRI Vs. Kuldeep Raj 25 process of the above samples as well as of the remaining substance and also regarding the seizure thereof, as stated above. It has also been specifically deposed by him that over and above all the pullandas containing the samples and the remaining substance a paper slip was also pasted on each pullanda and the same was signed by him, the accused as well as the witnesses and a test memo in triplicate was also prepared at the spot for the purposes of chemical analysis and a copy of the above test memo and the panchnama proceedings have also been duly proved on record by him as Ex. PW3/K and PW3/B respectively. The facsimile of seal of DRI 10 used by the IO/PW3 in the sealing process was also affixed on the above panchnama and the test memo.
30. The IO/PW3 has also specifically deposed that thereafter he had issued summons U/S 67 of the NDPS Act Ex. PW3/C to the accused for his appearance before him and had then recorded his statement Ex. PW3/D, which was given by the accused in his own handwriting. It is also deposed by him that before recording his voluntary statement the accused was explained the provisions of Section 67 of the NDPS Act. On perusal of the above statement Ex. PW3/D of the accused it is found that not only the accused had disclosed therein his personal details, but he had also admitted as to how he was brought in this illegal profession of supply of contraband substances by one Shyam Lal, who had met him in his native State of Jammu (J&K), for some monetary considerations and not only he had admitted his apprehension by the DRI officers, alongwith the above SC No. 06A/08 DRI Vs. Kuldeep Raj 26 contraband substance from the above place in Delhi, but he had also admitted that previously also he had come to Delhi to supply the contraband substance as per the instructions of above Shyam Lal. He had also admitted therein the correctness of the panchnama proceedings carried out by the DRI officers in their office with regard to the recovery, seizure and sealing etc. of the above contraband substance.
31. The IO/PW3 in his statement made in this court has though duly proved on record the notice U/S 50 of the NDPS Act Ex. PW3/A served by him upon the accused informing the accused of his legal right to be searched in the presence of a Magistrate or a Gazetted Officer, but the Ld Amicus Curiae has fairly agreed to the submission made on behalf of the DRI that since the recovery of the contraband substance was effected in this case from the shoulder bag carried by the accused and not from his person, no such notice was legally required to be served upon the accused in view of the prepositions of law as laid down by their Lordships in cases like Ajmer Singh Vs State of Haryana 2010 (2) SCR 785, State of H.P. Vs Pawan Kumar 2005 (4) SCC 350 and State of Punjab Vs Baldev Singh JT 1994 (4) SC 595: 1999 (6) SCC 172.
32. It has been argued by Ld Amicus Curiae for the accused that the above statement Ex. PW3/D of the accused was not a voluntary statement and the same was extracted from the accused by physically beating and abusing him in the DRI office and no reliance can be placed upon the same and the same is also not admissible in evidence. It has also SC No. 06A/08 DRI Vs. Kuldeep Raj 27 been argued that even otherwise the accused had already retracted from the above statement vide his retraction application dated 20.08.07, which is already a part of the record. As far as the admissibility of the above statement made U/S 67 of the NDPS Act is concerned, it is settled that it is very much admissible in evidence and can be acted upon by a court. In case of Kanhaiya Lal Vs Union of India 2008 1 AD (Cr.) (SC) 23 it has been held by the Hon' b le Supreme Court that such a statement is very much admissible in evidence as the same is made by a person who is not an accused in the case at that time and hence it is not hit by the provisions of Article 20(3) of the Constitution of India and even the bar of Sections 24 to 27 of the Evidence Act would not operate to render such a statement inadmissible in evidence. In case of Raj Kumar Karwal Vs Union of India and Ors. (1990) 2 SCC 409 also it was held that the powers of an officer in-charge of a police station U/S 53 of the NDPS Act are not to be read as the powers of the police officer within the meaning of Section 25 of the NDPS Act and a statement U/S 67 of the NDPS Act is not the same as statement U/S 161 of the Cr.P.C. and unless it is made under threat or coercion, such a statement is excluded from the operation of Sections 24 to 27 of the Evidence Act. The above prepositions of law have also been reiterated by our own High Court in the above Criminal Appeals titled Vimal Kumar Bahal Etc., Supra.
33. Though it has been vaguely argued by Ld Amicus SC No. 06A/08 DRI Vs. Kuldeep Raj 28 Curiae for the accused that the above statement U/S 67 NDPS Act of the accused was extracted after he was physically tortured and threatened, but it is observed that during the course of cross examination of the IO/PW3 no suggestions in this respect have been given to him and he has only been suggested vaguely that above statement of the accused was not voluntary. Even during the course of recording of his statement U/S 313 Cr.P.C, the accused has not made any such submissions. Though one retraction application of the accused dated 20.08.07 was filed by him on record, but it is found that even the above retraction application/ statement has not been proved on record in the evidence and moreover the same has not been filed or made at the very first opportunity available to the accused for retracting his above statement or even immediately after the recording thereof. It is a matter of record that the accused was apprehended in this case on 05.08.07 and after the completion of the panchnama proceedings and the recording of his above statement, he was also arrested in this case by the IO/PW3 vide the arrest memo Ex. PW3/E of even date and he was also produced in the court on 06.08.07. On 06.08.07 he had not made any such retraction of his above statement Ex. PW3/D and even between 06.08.07 to 20.08.07, i.e the date of his next production in the court and his filing the above retraction statement/application, he had not taken any steps to retract his earlier statement and send it to the court through the Jail Superintendent concerned. Even his allegations of any physical torture or assault etc. by the DRI officers for extracting the above statement are without SC No. 06A/08 DRI Vs. Kuldeep Raj 29 any basis as in his MLCs Ex. PW3/G dated 05.08.07 and PW3/J dated 06.08.07, no fresh external injury marks have been found or observed on his person and these MLCs rather negate the commission of any torture or physical assault etc. by the IO/PW3 or any other staff member of the DRI upon the accused for or in connection with the recording of the above statement. Hence, in view of the prepositions of the law as laid down in the Criminal Appeals titled Vimal Kumar Bahal Etc. and Kanhaiya Lal, Supra the above statement Ex. PW3/D of the accused is held to be voluntary and can be very much acted upon by this court and the above retraction application/statement of the accused dated 20.08.07 is nothing but an attempt to wriggle out of his previous statement on legal advice.
34. It is also in evidence on record that the above ten sample pullandas as well as the one pullanda of the trunk containing the remaining case property, duly sealed with the seals of DRI 10 and alongwith the test memo in duplicate, were handed over to and placed in the safe custody of PW8 Sh Nilank Kumar on the day of recovery itself and on 06.08.07 he had handed over the five sample pullandas of this case to the IO/PW3, alongwith the duplicate test memo and the forwarding letter Ex. PW3/P (wrongly recorded as Ex. PW3/B in the statement of PW8 though the document was already exhibited as Ex. PW3/P during the examination of the IO/PW3), for deposit in the CRCL for chemical examination of the samples and the sealed pullanda of the remaining case property as well as of the second set of samples were also SC No. 06A/08 DRI Vs. Kuldeep Raj 30 handed over to the IO/PW3 for deposit in the Valuable Godown and the same were also deposited by him with PW7 Sh D.B.Sharma, who was working as Inspector Customs and in- charge Valuable Godown on that day, vide the inventory/ deposit memo Ex. PW3/L, which is prepared by the IO/PW3, countersigned by PW8 Sh Nilank Kumar and also by PW7 Sh D.B.Sharma in token of receipt of the above articles. PW7 has also proved on record a copy of the relevant entry of the Valuable Godown Register as Ex. PW7/A and from the depositions made by PW3/IO, PW7 as well as PW8, which further stand corroborated by the above documents pertaining to the deposit of the case property in the Valuable Godown, it stands proved on record that the pullandas of the remaining case property as well as the second set of samples drawn by the IO/PW3 were handed over to PW7 for deposit in the Valuable Godown in intact condition and the depositions of PW7 further makes it clear that the same were also not tampered with by him while it remained in his custody. The pullandas of the other sets of samples were also taken by the IO/PW3 to CRCL on 06.08.07 in sealed and intact condition and the same were also duly received in the office of the CRCL by PW5 Sh Jaiveer Singh, alongwith the forwarding letter and duplicate test memo, and the seals affixed thereon tallied with the facsimile thereof affixed on the test memo and the acknowledgment of receipt of the above samples has also been duly proved on record in the statement of the IO/PW3 as Ex. PW3/Q. During the depositions made by PW2 Sh B.K.Banerjee a copy of the relevant entry No. 32 of the Seal Movement Register has also been proved on SC No. 06A/08 DRI Vs. Kuldeep Raj 31 record as Ex. PW2/D, vide which he had issued the above seal of DRI 10 to the IO/PW3 on 05.08.07 and had received back the same on the same day.
35. It is also a matter of record that the above set of five samples was examined qualitatively vide report Ex. PW6/A and PW6 Sh S.C.Mathur, Chemical Examiner has clearly stated that the above tests were performed by Sh S.K.Gupta, ACE under his supervision and diacetylmorphine (heroin) was found in the above samples. Since, the purity percentage of the diacetylmorphine (heroin) was not given in the abovesaid report, PW10 SH K.K.Sood has stated to had written a letter dated 14.12.07 Ex. PW5/A to the CRCL for the quantitative determination of diacetylmorphine (heroin) in the above samples and vide report Ex. PW6/B given by PW6 himself the purity percentage in the above samples was opined to be 48.0%, 45.4%, 38.7%, 37.6% & 21.2% respectively. The depositions of PW5 and PW6 also rule out any tempering with the above remnants of samples between their above two examinations vide reports Ex. PW6/A & PW6/B. Even otherwise, the Ld. Amicus Curiae for the accused has not addressed any argument pertaining to any alleged tempering with the case property or the samples at any stage.
36. IO/PW3 in his statement made in this court has also specifically stated that he had prepared a report U/S 57 of NDPS Act on the same day, i.e. on 05.08.07, and had submitted the same to his senior officer Sh. B.K.Banerjee and his above depositions have also been duly corroborated SC No. 06A/08 DRI Vs. Kuldeep Raj 32 on record by PW2 Sh. B.K. Banerjee, who had seen and endorsed the above report Ex. PW2/C. During his statement made in this court the IO/PW3 has also identified all the exhibits of this case, including the remnants of the five samples sent to the CRCL for testing, the other set of five samples taken from the case property, the remaining case property as well as the above shoulder bag carried by the accused at the time of his apprehension etc. as stated above, besides identifying the accused. Though the accused during the course of recording of his statement U/S 313 Cr.P.C. has claimed that he has been falsely implicated in this case after having been lifted form the shop of his above employer in Delhi at the Delhi-U.P. Border (Seemapuri Border), as stated above, but he has not led on record any evidence to substantiate the claim of his false implication despite availing an opportunity for this purpose. He has also not claimed that there was any enmity between him and the officers of DRI or the IO/PW3 Sh. D.P.Saxena which could had resulted in his false implication in this case. He had been apprehended with heroin weighing more than 5 KG in total and keeping in view the very huge quantity and the value of the above contraband substance, there was no possibility of planting of the above contraband substance by the IO upon the accused and that too when it has even not been claimed or argued that the IO or any other officer of the DRI was previously known to the accused or was on enemical terms with him. Hence, the plea of false implication of the accused in this case is also without any substance and cannot be accepted.
SC No. 06A/08 DRI Vs. Kuldeep Raj 33
37. Though certain discrepancies have been pointed out by the Ld Amicus Curiae in the statement of the IO/PW3 like that he has not been able to tell the number of the vehicle in which they had gone to the spot of apprehension of the accused and the name of its driver etc., but the same are very minor in nature and are liable to be ignored because keeping in view the nature of his duties and his frequent involvement in cases like this, the IO/PW3 is not expected to remember such minor details of the incident.
38. In view of the above discussion, it is held that the prosecution/DRI has successfully proved on record the recovery of the above contraband substance, i.e. heroin, from the possession of the accused. Though the net weight of the above contraband substance found in the five polythene pouches recovered from the accused was found to be 5.072 KG in total, but the purity percentage of the samples drawn from the above substance has been reported to be 48.0%, 45.4%, 38.7%, 37.6% & 21.2% respectively vide the report Ex. PW6/B and thus the percentage weight of the above contraband substance comes to just above 2 KG and the purity percentage of a contraband substance has to be seen in this case because the Notification No. SO 2941 (E) of the Ministry of Finance (Department of Revenue) dispensing with the consideration of the purity percentage thereof and taking into consideration the entire quantity of the contraband substance had been issued only on 18.11.09 whereas the recovery of the contraband substance in this SC No. 06A/08 DRI Vs. Kuldeep Raj 34 case was effected on 05.08.07 and the above notification cannot be given retrospective effect.
39. Under the NDPS Act only 250 grams of heroin has been prescribed to be a commercial quantity and hence the prosecution has successfully brought home the guilt of the accused Kuldeep Raj for the offence U/S 21(c) of the NDPS Act and the charge framed against the accused stands proved accordingly. The accused is accordingly held guilty and convicted for the above offence. Let he be now heard on the quantum of sentence.
Announced in the open
court on 23.03.2011 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 06A/08 DRI Vs. Kuldeep Raj