Delhi District Court
Pradeep Kumar Malhotra vs State Through on 28 November, 2013
ID No. 02403R0002281999
IN THE COURT OF ADDITIONAL SESSIONS JUDGE -04 & SPECIAL JUDGE
(NDPS) SOUTH EAST, SAKET COURTS, NEW DELHI
Criminal Appeal No. 32/2012
ID No. 02403R0002281999
Pradeep Kumar Malhotra
s/o late Sh. A. N. Malhotra
r/o B-23, Jangpura Extension,
New Delhi .......... appellant
versus
State through
Central Bureau of Investigation
CGO Complex , Lodhi Road,
New Delhi ..........respondent
Instituted on : 06th June,2012
Arguments concluded on :08th November,2013
Decided on : 28th November, 2013
ORDER
1. Thirty six years ago, criminal law was set into motion in this case. This appeal, is directed against the Judgment dated 19.02.1992 passed by Learned Metropolitan Magistrate, New Delhi in a case (RC no. 09/1977) whereby appellant was convicted for the offence punishable u/s 120-B IPC r/w Section 13 Dangerous Drugs Act and for the offence punishable u/s 61 (1) (A) Punjab Excise Act. Appellant was sentenced to undergo rigorous imprisonment for six months and a fine of Rs. 5,000/- for the offence punishable u/s 120-Br/w section 13 Dangerous Drugs Act and was further sentenced for a period of rigorous imprisonment for three years and fine of Rs. 5,000/- u/s 61 (1) (A) Punjab Excise Act. In default of payment of fine, appellant was ordered to undergo rigorous imprisonment for a period of one year.
2. Briefly stated, relevant backgrounds facts of the case leading to the filing of this appeal, are that a report u/s 173 Cr.P.C. was filed by CBI against Ashok Solomon, Ramesh Solomon, Pradeep Chand, Ashok Dass, Pradeep Kumar Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 1 ID No. 02403R0002281999 Malhotra, Mahesh Kumar Sharma and others alleging that during December, 1976, accused Ashok Solomon, Ramesh Solomon, Pradeep Chand, Pradeep Kumar, Ramesh Kumar Srivastav and other persons entered into a criminal conspiracy to illegally export of hashish out of India to USA. It is alleged that in furtherance of said conspiracy, accused Noor Charan, hired a portion of a flat at Tolstoy Marg and got invoice forms and letter heads printed in the name of M/s New India Export, a fictitious firm floated for the purpose of illegal export of hashish. Noor Mohd., opened a current account in State Bank of Bikaner and Jaipur on 27.01.1977 with initial deposit of Rs. 500/- under the assumed name of Satish Kumar Paul. It is alleged that accused Mahesh Kumar hired the ground floor of the portion of a building in South Extension, Part-I for the purpose of storing and packing hashish. He purchased hand loom cloth from M/s Shanti Lal Krishan lal with a view to wrap the cloth upon the wooden spindles containing hashish. It is further the case of prosecution that accused Pennan was employed by Roop Chand for packing hashish. On 07.05.1977, accused Ashok Dass and Ramesh Kumar Srivastav presented consignment of 42 package containing hand loom fabrics for exporting to California. The consignment was shipped to USA by Japan Airlines flights. Vipin Kumar Sharma and Ashok Kumar Soni were engaged to clear the consignment on behalf of shippers. On 12.05.1977, it was revealed that consignment of 42 bales shipped by M/s New India Export reached Los Angles International Airport and on 13.05.1977, hashish was detected there.
2.1 It is alleged that said consignment was again shipped for Minneapolis , USA on 18.05.1977 and when it reached there on 20.05.1977, its controlled delivery was given. It was found that delivery was handled by Ashok Solomon and Pradeep Chand. Ultimately, 1,296 pounds of hashish was recovered in those wooden spindles. On 19.5.77 accused Krishan Kumar, where name was actually Ashok Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 2 ID No. 02403R0002281999 Dass was apprehended from a marriage party by Custom Officials of India. 2.2 Ashok Solomon, Ramesh Solomon and Pradeep Chand were arrested in USA and were tried by the Court at USA. They admitted to have arranged export of hashish out of India to be received by them in USA. They were convicted and sentenced in USA on 20.05.1977. It is further alleged that on the night of 21.05.1977, a telephonic conversation between co accused Ashok Solomon and Ashok Dass of Canada was taped by Canadian police which indicated that there was discussion about the arrest of Satish @ Ashok Dass in connection with the export of hashish in 42 bales. This information was passed to Indian customs. Statement of Ashok Dass was recorded, whose arrest led to arrest of appellant Pradeep Kumar Malhotra who got recovered 12 grammes of hashish from house no. A-172, Defence Colony on 20.05.1977 and 140.650 Kilograms of hashish from house no. 7, Padmini Enclave on 20.05.1977. It was revealed that some quantity of hashish was also lying in the premises of one Roop Chand Sharma, search of which led to the recovery of 139.500 kgs of hashish and 95 wooden spindles were recovered from the premises.
2.3 On 21.05.1977 , Sh. K.L.Marwah Asst.Collector Customs sent a Letter to CBI and thereafter, on 22nd of May 1977, FIR was lodged by Superintendent of Police CBI. Under section 13 of Dangerous Drugs Act read with 120 B IPC and section 61 of Punjab excise Act. On 23.05.1977, CBI searched premises no. B-51 South Extension, New Delhi and arrested accused Pannan. On 25.05.1977, search was conducted by CBI official at B-74 Defence Colony and on 20.07.1977 accused Noor Charan was arrested and on 23.07.1977, case property was handed over to CBI by the customs officials.
2.4 On conclusion of investigation, charge sheet was filed in the Trial Court on 29th June, 1978 by the CBI. Admittedly, at that time accused Ashok Soloman, Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 3 ID No. 02403R0002281999 Ramesh Soloman and Pradeep Chand were inside Federal Jail, Minneapolis, USA after being convicted there. Other accused persons namely Ashok Dass, Pradeep Kumar Malhotra, Noor Charan, Mahesh Kumar Sharma, Pannan and Ramesh Kumar Srivastva appeared before the Trial Court. Co accused Ramesh Soloman and Pradeep Chand raised question of double jeopardy on the plea that they had already been convicted for the same offences in USA. Their contentions were rejected by the Trial Court. Consequently, charge was framed and examination of prosecution witnesses commenced. Seven prosecution witnesses were examined during the period from 08.11.1982 to 17.02.1983. Co accused Ashok Soloman arrived in India after serving his term of imprisonment in USA. He was produced before the Trial Court on 04.04.1983. Sanction u/s 188 Cr. PC was obtained by the prosecution and filed in Court on 20.03.1984. Charges were framed afresh against all the accused on 02.08.1984 and trial commenced.
2.5 During trial, co accused Mahesh Kumar Sharma and Noor Charan had expired and accused Pannan was declared proclaimed offender on 14.11.1990. Six accused persons faced trial. Investigation in this case was conducted by two agencies. At the initial stage, Customs Department had investigated the case. As per the case of prosecution, hashish hidden in a consignment of 42 bales of handloom fabric was detected by sniffer dogs at Los Angeles, USA and information in this regard was flashed by Drug Enforcement Administration of USA to the Directorate of Revenue Intelligence in India. On receipt of message from USA, customs authorities took accused Ashok Dass and Pradeep Kumar Malhotra in custody. They recorded their statements u/s 108 of the Customs Act and searched house No.A-172, Defence Colony and house No.7, Padmini Enclave, New Delhi and recovery of hashish and other incriminating material was allegedly made from the said two places. Inspector B.N. Mishra of CBI went to USA and collected official Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 4 ID No. 02403R0002281999 documents in USA showing the complicity of co accused Ramesh Soloman, Pradeep Chand and Ashok Soloman. CBI raided house No.B-51, NDSE-I and made recovery of hashish and other material stored there. Some other places were also searched several other accused namely, Noor Charan, Mahesh Kumar Sharma, Pannan and Ramesh Kumar Srivastva were arrested during the course of investigation.
2.6 Charges were framed under section 120-B IPC read with section 13 Dangerous Drugs Act against all the accused including appellant for conspiracy to export 1296 pounds hashish out of India vide shipping bill No.2551 dated 07.05.1977. Appellant Pradeep Kumar Malhotra was also charged under section 61(1) (A) of Punjab Excise Act for possessing 140.650 kg. of hashish at 7, Padmini Enclave, New Delhi and for recovery of 12 grams of hashish from his residence A-172, Defence Colony, New Delhi. Accused persons pleaded innocence and claimed trial.
3. Points which emerge for determination in this appeal are:
(a) Whether appellant-Pradeep Kumar Malhotra was found in house No.A-172, Defence Colony and on 20.05.1977 and 12 grams hashish and three copies of invoice of M/s New India Exports, the consignee were recovered from there?
(b) Whether appellant-Pradeep Kumar Malhotra led custom officials to house No. 7, Padmini Enclave, New Delhi taken on rent, from where hashish weighing 140.650 kgs. was recovered?
(c) Whether appellant was a party to the conspiracy to export 1296 pounds hashish out of India?
4. In order to establish accusations against accused persons, prosecution examined forty nine witnesses. Brief outline of the testimony of prosecution witnesses is as under:-
4.1 J. C. Sharma (PW-1) joined investigation during search of house No.B-51, NDSE-I, New Delhi. He placed on record search memo (Ex. PW1/A). J. N. Srivastwa (PW-2) joined Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 5 ID No. 02403R0002281999 investigation during the search of house No.B-51, NDSE-I, New Delhi. Vijay Kumar (PW-47) was cross examined by Learned Prosecutor. Smt. Leela Wati (PW-3) landlady had let out house no. B-51 NDSE-I to Mahesh Kumar Sharma. She placed on record lease deed (Ex PW2/1). Roshan Lal Bhandhari (PW-5) , a broker through whom the premises No. B-51, NDSE-I, New Delhi was let out to accused Mahesh Kumar Sharma by Lila Wati (PW-3). Manohar Lal (PW-6) landlord of the premises no. A-277 Defence Colony. New Delhi. He stated that accused Pradeep Kumar Malhotra had come to him with Ashok Dass when premises was let out. He also stated that there was a separate telephone no. 624428 at the first floor.
4.2 C. L. Talwar (PW-8) Superintendent, Customs was member of the raiding party that searched the house no. A-172, Defence Colony led search of 7, Padmini Enclave. He testified that accused Pradeep Kumar Malhotra took the key of the said house from his residence at A-172, Defence Colony and then led the raiding party to the said place. S. J.
Arora (PW-14) officer of preventive branch of Customs, associated two public witnesses with the search i.e. N.C.Gupta (PW-11) living on the first floor of house No. A-172, Defence Colony and Major Madan, resident of the same locality. N. C. Gupta (PW-11) public witness at the time of search of premises no. A-172, Defence Colony, New Delhi alongwith S.J. Arora (PW-14), is witness to the recovery memo (Ex.PW-11/A). He deposed that 12 grams of charas and three carbon copies Ex.PW-11/B-1 to B-3 of an invoice of M/s New India Exports were recovered from a wooden Almirah in the bedroom of the ground floor of the said house in the presence of accused Pradeep Kumar Malhotra.Hari Ram Sharma (PW-13) joined investigation in search of house of Noor Charan in Parmanand Colony and was witness to the seizure memo (Ex. PW13/B) of cable (Ex.PW-13/A) which was recovered from a trunk. Gobind Ram (PW-18) participated in the search of barsati of defence colony house, was witness to the search memo (Ex.PW18/A). 4.3 J. M. Chaudhary (PW-4) Superintendent Customs Preventive in 1977, was witness to the statement (Ex.PW-4/A) of accused Pradeep Kumar Malhotra and statement (Ex.PW-4/B-1 to B-4) of accused Ashok Dass. He deposed that their statements were Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 6 ID No. 02403R0002281999 recorded u/s-108 of The Customs Act and attested by O.P. Chopra. He is also witness to the statement (Ex.PW-4/C) of Jai Nath. N. Dass Gupta (PW-19) Inspector, Customs placed on record report at mark C on the reverse of shipping bill (Ex.PW19/1). He deposed that after thorough checking, consignment was put on the aircraft. O.P. Chopra (PW-20) posted as Inspector Customs (Preventive) deposed that accused Ashok Dass was brought to Customs house on 19-5-77 from a marriage party after he was identified by R.K. Soni and Sharma @ Gogi. He placed on record statement (Ex.PW-20/A) written by accused Pradeep Kumar Malhotra in his presence. M. L. Kapur (PW-22) Superintendent, Customs, Air Cargo Unit, Palam, deposed that after inspection by the committee, consignment was presented before Customs at Jal Warehouse on 07.05.1977 and papers were first presented to him. H. C. Gupta (PW-28) Inspector of customs, examined the consignment at JAL Warehouse at the airport made inspection in the presence of Gogi and Soni. K. L. Marhwa (PW-34) Assistant Collector Customs, placed on record complaint (Ex.PW-34/A) stated that preliminary investigation was made by customs officers on receipt of information about the seizure of hashish concealed in wooden spindles at Los Angles Airport in America.
4.4 Rajinder Kumar Soni (PW-21) working as clearing agent in partnership under the name and style of Goraviza International, cleared one consignment of M/s New India Exports, Rohit House, New Delhi in 1977 and placed on record shipping bill (Ex.PW-19/1) relating to the said consignment. He deposed that two other consignment of the same firm relating to shipping bills (Ex.PW-21/C and PW-21/D) were also cleared by his firm. He testified that the custom officers had come to make enquiry about the consignment and the documents of the consignment were given to him by one Krishan Kumar, who was traced in a marriage party on the same night whose real name was revealed as Ashok Dass. Statements (Ex.PW-21/A and PW-21/B) were written by his partner Vipin Sharma and he signed the same. Vipin Sharma (PW-43) was the clearing agent. He stated that Customs Officers made enquiry about the shipment of 42 bales and that he and his partner Soni had shown Krishan Kumar to them at a marriage party and had written statement (Ex.PW-21/A) Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 7 ID No. 02403R0002281999 in the presence of his partner.
4.5 Ramesh Chander Gosain (PW-7) importer, incharge, godown, ITO Building and deposed that C. L. Talwar deposited three suit cases and two gunny bags in a sealed condition. Kamla Bhandari (PW-12) was looking after 7, Padmini Enclave as attorney of Abha Bhandari. She deposed that the premises in question had been let out by her to one Rajiv Malhotra. She deposed that tenant executed a note (Ex.PW-12/A) which was handed over by her husband to the customs officers vide (Ex.PW-12/B). Shadi Lal (PW-15) cloth merchant identified cloth lying in B-51, NDSE-I, New Delhi as having been sold by him to one "Sharmaji". Sucha Singh (PW-16) deposed that recovered spindles were manufactured by him at the instance of one 'M. Kumar'. C. S. Rawat (PW-17) was a witness to memo (Ex. PW17/A) of slip (Ex. P-28/B to Ex. P-28/B-3). Dinesh Kumar (PW-23) deposed that one small store adjacent to the lift at 1204 Rohit House, 3, Tolstoy Marg, New Delhi was given by him on rent to Noor Charan.
4.6 K. L. Talwar (PW-10) from Reserve Bank of India and he has stated that he allotted code No. to the firm on application (Ex.PW-10/A). Rajeshwar Kaushik (PW-25) handed over bank documents of State Bank of India, Defence Colony to CBI vide memo (Ex.PW25/A). Surinder Kumar (PW-26) placed on record account opening form (Ex.PW-26/A). H.R. Aneja (PW-27) Branch Manager of the State Bank of Bikaner & Jaipur placed on record specimen signature sheet (Ex.PW-27/B), statement of account (Ex.PW-27/C) and pay in slip (Ex.PW-27/D). A. K. Sareen (PW-38) Branch Manager of State Bank of India, Defence Colony deposed that an account in the name of M/s P & B International was opened on 15.12.76. He placed on record account opening form (Ex.PW38/A) which was attested by him.
4.7 Ct. Yad Ram (PW-29) brought the remnants samples form CFSL. K. P. Tripathi (PW-31) Incharge of Malkhana CBI deposed about the deposit of case property and dispatch of samples to CFSL. He produced malkhana register in the Court and Photostat copies of the relevant entries (Ex.PW31A-1 to A-28) and (Ex. PW29/A). ASI Kashi Ram (PW-32) took one packet of sample to CFSL on 1.6.77 along with the forwarding letter vide Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 8 ID No. 02403R0002281999 (Ex.PW32/A). S. N. Jain (PW-9) handed over the application to CBI by vide letter (Ex.PW-9/A). Ram Singh Kohli (PW-30) General Manager Telephones, Delhi deposed that phone no. 624428 was installed in premises no. B-51 NDSE-I, New Delhi on the application of M.K. Sharma. He deposed that an international call was made to U.S.A. from the said telephone on 3.5.77(Ex.PW30/B).
4.8 Vishnu Partap Singh (PW-33) deposed that in his presence specimen signatures of accused Noor Charan were taken on (Ex. PW33/A-1 to A-24). Des Raj Mudgil (PW-35) deposed that in his presence specimen signatures of accused Pradeep Kumar Malhotra were taken vide (Ex. PW35/A-1 to A-12). Prem Singh (PW-37) deposed that in his presence specimen signatures of four persons were taken vide (Ex. PW37/A-1 to A-13; Ex. PW37/B-1 to B-15; Ex. PW37/C-1 to C-17). M. K. Jain (PW-40) handwriting expert placed on record his reports (Ex.PW40/18 and PW40/4). N. C. Verma (PW-42) was a witness to the specimen writings and signatures of Pradeep Kumar Malhotra, Ashok Dass and Roop Chand. Krishan Lal (PW-36) deposed that in the year 1970, he had a tea stall at B-50, New Delhi Estate Part-I (NDSE). Two persons used to live on the ground floor of B-51 N.D.S.E. New Delhi South Extension Part-I, who used to come to his shop for taking tea and bread. One of them was known as 'Shav' but did not remember the name of other person. 4.9 Sh. Brajesh Kumar (PW-39) Addl. Chief Metropolitan Magistrate conducted TIP Proceedings. Hashish was segregated from the spindles and samples were drawn. G. S. Roy (PW-41) was Technical Officer in the Textiles Committee where the consignment was presented for inspection. He placed on record inspection report (Ex.PW-40/9) and certificate (Ex.PW-41/A) and stated that lead seal was put on the consignment after inspection. He stated that consignment was presented on behalf of M/s New India Exports. Application was registered at Serial No.1805 on 21.4.77 in the office of Textile Committee. After inspection by committee, consignment was presented before Customs at Jal Warehouse on 07.05.1977. Papers were presented to N.L. Kapoor (PW-22), who assigned the consignment to H.C. Gupta ( PW-28) for inspection, who on inspection found that the packages contained hand loom fabric as per the declaration. He found that the seal of the Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 9 ID No. 02403R0002281999 Textile Committee on the packages was intact. On the basis of report submitted by H.C. Gupta, consignment was cleared by N.L. Kapoor (PW-22) and consignment was sealed with custom seal No.'6'. Finally, consignment was loaded in the Aircraft in the presence of N. L. Dass Gupta (PW-19), posted as Inspector Customs in the Airport in 1977. Sh. N. L. Dass Gupta checked the seals of customs on packages before loading and deposed that the seals were intact. PW-41 checked the shipping bill (Ex.PW19/1) and airway bill (Ex.PW19/2). Pran Kumar Sharma (PW-45) placed on record sanction (Ex.PW45/A) granted by the Central Govt.U/s 188 Cr.P.C. Praveen Kumar (PW-46) could not identify the person , whose account was introduced by him at State Bank of India, Defence Colony . 4.10 Inspector N. P. Tiwari (PW-44) investigating officer verified the existence of M/s P & B International. R. N. Kaul (PW-48) investigating officer posted as DSP/CIU/N. C. Branch, CBI, New Delhi placed on record letter (Ex. PW48/A) for seeking opinion. He sent samples to CFSL vide letter (Ex. PW48/B and Ex. PW48/C). B. N. Mishra (PW-49) investigating officer deposed that after the search of B-51 NDSE-I, he got secret information about accused Pannan was loitering in the area. He recovered the keys of the said house from him. On interrogation of Pannan, PW-9 came to know that Mahesh Kumar Sharma was residing at B-74 Defence Colony. He placed on record copy of confessional statement (Ex. PW49/G-1) made by accused Ashok Solomon on 11.08.1977 in case no. 4-77- Criminal-81 united states of America Vs. Ashok Soloman & others and also certified copy of confessional statement (Ex. PW49/G-2) made by accused Ramesh Solomon and Pradeep Chand in the said case at US. He placed on record (Ex. PW49/G-4) transcript of preliminary hearing held before Magistrate J. Earlcudd on 31st May,1977 in case no. 428-77-01502M against Ashok Solomon & others in united states District Court, IV Division. He placed on record (Ex.PW49/H-1 to Ex. PW49/H-10) certified copies of documents obtained from US. PW-49 deposed that he brought a sample of hashish weighing 98 grams in sealed condition from USA alongwith letter Ex.PW49/C.
5. Statement of appellant Pradeep Kumar Malhotra was recorded u/s 313 Cr. P. C. He pleaded innocence and false implication. He denied that he floated a firm P & Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 10 ID No. 02403R0002281999 B International and opened an account in the State of India in the name of the said firm. He denied that he ever resided at A-172 Defence colony, New Delhi. About the statements made under the customs Act, he stated that the same were not voluntarily made and was given dictation and made to write statement under pressure. He denies that he was present as A-172 Defence Colony at the time of search or he had taken premises 7 Padmini Enclave on rent. He denied that he took key of 7 Padmini Enclave from his residence in Defence Colony or led the raiding party to that premises. He denied that he gave any specimen writing. He stated that he was tortured by custom officials.
6. Sh. Upadhyay, Ld. counsel for appellant submitted that the Customs officers had no authority to investigate an offence under Punjab Excise Act. Even otherwise, they had not obtained any authorization from senior officers to conduct the search or to arrest the accused persons. Searches conducted by the customs were in violation of the provisions of the customs Act and Punjab Excise Act. Section 47 of the Punjab Excise Act provides that a Magistrate upon satisfaction, may issued a warrant of search or a warrant of arrest but no such warrants were obtained; section 50 of the Punjab Excise Act provides the procedure relating to searches but the searched were made in complete violation of the procedures established; section 53 of the Act requires that every officer in charge of the police station shall take charge and keep in safe custody all articles seized under the act which may be delivered to him and shall allow the excise officer to take samples and affix seal on them but there was violation of these requirements. It is submitted that Learned trial court has not considered that the violation of the provisions of Punjab Excise Act goes to the root of the case and rendered the case of the prosecution doubtful and unreliable.
7. Learned counsel for appellant argued that statements of co accused Ashok Dass made to custom authorities was not voluntary and was obtained under Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 11 ID No. 02403R0002281999 coercion. It is submitted that Learned Trial Court committed an error in admitting statement of co accused as the same was hit by Section 10 and Section 24 of Evidence Act and violative of Article 20, sub-clause(3) of Constitution of India. It is submitted that recording of a statement by Custom Officer u/s 108 Customs Act was without jurisdiction as no adjudication proceedings were pending and PW-4 had no authority to record statement u/s 108 Customs Act. Learned counsel for appellant submitted that search and seizure were not conducted before independent witnesses. There is no evidence of exclusive possession of appellant of premises no. A-172 Defence Colony and - 7, Padmini Enclave and no evidence is there regarding picking of the the Keys for 7,Padmini Enclave. Keys and lock were not produced or exhibited in the Court. It is submitted that neither tenancy of appellant with premises no. A-172, Defence Colony was proved nor there was evidence that appellant was having any control of premises no.7, Padmini Enclave.
8. It is contended that samples and seals after use remained with the custom officers and important witnesses i.e. custom house guards and M.P.Singh Custom warehouse incharge were not examined to testify that during the time case property remained in their custody, it was intact or was not tampered with. There were discrepancies in the handing over memo (Ex.PW7/A). It was urged that case was transferred to CBI on the 21.5.77 where as the case property was handed over only after more than two month on the 23.7.77. As per testimony of R.C.Gosain (PW-7) property was handed over to K.P.Tripathi of CBI where as PW-8 says it was handed over to Shri B.N.Mishra, Inspector CBI at that time.
9. Sh. Upadhyay, further contended that there is no mention of CFSL form in the Panchnama and CFSL form was never deposited in the custom house Malkhana. It is argued that there is delay of more than two months to hand over the case property to CBI and Delay of more than 5 months in sending the samples to Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 12 ID No. 02403R0002281999 CFSL and there are discrepancies regarding 7, Padmini Enclave Samples. Only 3 samples out of 3 suit cases and 2 hand bags out of 144 packets (Ex. PW7/A) were taken. There is discrepancy in the statement of custom officers (PW-8) & (PW 20) regarding place of Panchnama and weigment of property. Samples & seals remained with the Custom Officer and Person who took the samples to the CFSL were not produced and examined to testify that as long as the samples were in his possession they were intact. It is argued that there was difference in weight of samples (Panchnama showed 3 samples of 100 gms where as some sample of 25 grams were sent to CFSL) and difference in color of samples in recovery and CFSL report). It is argued that there was no comparison with US sample of 98 gms with Defence colony and Padmini enclave samples and only B-51, samples were compared with the sample from the USA report which show 'may be similar resin content ' not definite . Letter to CBI from CFSL Ex.PW49/F-4 is in response to the CBI letter soliciting comparison report of two samples out of 57 samples of B-51 South Extension recovery with 98 gms sample brought from USA vide (ExPW 49/C). It is submitted that the two samples of Hashish A-31 & A-46 have been analysed and compared with the sample no. 58 and the result of the analysis reveals that all the three samples viz A-31,A-46 and 58 may be "all similar type with respect to their resin content. Hope this will serve your purpose ." On the side of the printed matter is the endorsement by Sh. R.N.Kaul Supd. CBI,which says "may be not fine." It is submitted that this itself conveys that the samples don't match with the samples of US allegedly brought by PW-49.
10. Learned counsel submitted that indisputably, there are two chapter of the prosecution story. First, the consignment movement from 07.05.1977 till 13.05.1977 (India to USA) and then, from 13.05.1977 to 20.05.1977 from Los Angeles to Minneapolis, USA. Consignment was checked by the Textile Committee Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 13 ID No. 02403R0002281999 officer and Custom Cargo Officer at the Airport. There is no evidence to prove that the alleged consignment containing hashish exported to USA, was 'same' which had been apprehended at USA. According to FIR (Ex.PW 34/A & Ex.PW 49/A), it was "1800 pounds" of hashish which was seized at Los Angeles, whereas, the CBI case is only for "1296 pounds". He submitted that there is a difference in number of bales. It is submitted that it is not clear whether consignment was seized at Los Angeles or at Minneapolis? Whereas, the prosecution evidence is that the consignment was delivered on the 17.05.1977 and on the 18.05.1977 airlifted to Minneapolis. Learned counsel wondered as to how, it was the same consignment and what were the goods removed from the godown. It is urged that there is no mention of 'Spindles' in (Ex.PW-34/A) and FIR (Ex.PW39/D) and there is no mention of 'Sniffer Dogs' in (Ex.PW34/A), the first complaint to CBI by Customs on the 21.05.1977 and in (Ex.PW49/A), the FIR which were most important documents and foundation of the entire case of the prosecution. 'Sniffer Dogs' may smell but they cannot see inside the consignment and see spindles as mentioned in the prosecution story. It is submitted that as per the sequence of events submitted by the prosecution the seizure at Minneapolis on 21.05.1977 that means it was 22nd in India then how the arrest was made on the 19th and 20th of May 1977.
11. It is submitted that as per shipping bill and invoice-5846 meters of fabric was there, whereas, according to PW-41, 9559 meters of fabric was inspected, which shows that PW-21 and PW 43 were the culprits. In the statements (Ex.PW-21/A and Ex.PW 21/B), there is no mention of picking up Krishan Kumar or Ashok Das from any marriage party. Infact, as per PW-21 and PW-43 they were brought face to face with someone called Ashok Dass at the Custom House ,by the custom officers. It is urged that the alleged conspiracy is hit by section 10 of the Indian evidence Act. The statements were taken when they were in custody and after the alleged conspiracy Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 14 ID No. 02403R0002281999 was complete on 07.05.1977. Statement (Ex.PW4/A) shows about 12 gms recovery of hashish and nothing about the alleged copy of three invoices of New India Exports (Ex. PW11/B1 to B3 and Ex. PW11/B-1 to B-3), it is submitted that copies of invoice were planted upon appellant by custom officers with 12 gms of charas at A
-172 defence colony.
12. Learned counsel for appellant urged that no link is established between Pradeep Kumar Malhotra and the consignment and no one named him or linked him with the said consignment and his no link is established with co-accused Ashok Dass . PW-21 and PW 43 could not recognize Krishan or Ashok Dass. (Ex.PW21/A and B) does not speaks about picking of Krishan or Ashok Dass from a marriage party. No witness has deposed that Ashok Dass was going to airport for consignment in question and accused Paua was acquitted on this count. He contended that sample brought from USA vide (Ex. PW49/C) do not conclusively match with the samples of recovery from B-51 South Extension and there is no Link of consignment documents airway bill, shipping bill, invoice etc cited by the prosecution or any other document of export with any documents of USA. There is no documentary proof or evidence or witness produced from the USA to prove that documents pertained to the said consignment or if they were matching with the consignment allegedly sent from India on the 07.05.1977 or not.
13. Next, it is argued that the manner of examining the petitioner under section 313 Cr.P.C. is bad in law. The questions put to the petitioner are not supported by evidence on record and questions were precisely designed to provide missing links to the case of the prosecution by trapping the accused persons to commit mistakes while answering and questions are in a round about manner and lengthy. Learned counsel submitted that as per law, the questions u/s 313 should be simple, straight, and to the point conveying the circumstance to the accused . Learned counsel Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 15 ID No. 02403R0002281999 argued that no question u/s 313 Cr. P. C. was put regarding the possession or control on the A-172 Defence Colony and 7 Padmini Enclave premises and no question regarding who took the samples of Defence colony and Padmini Enclave recovery to the CFSL. There was no question regarding Mahesh Kumar Sharma and Mahesh Kumar Sharma being the resident of B-51, South Extension I or the premises being in his possession or control. No question was put regarding recovery of 140.650 kgs of charas from Padmini Enclave.
14. Learned counsel appearing for appellant argued that no question was put regarding seizure of 1800 pounds hashish. No question is put regarding Mahesh Kumar Sharma and his residence at B-51, South Extension or B-74 Defence Colony or the premises being in his possession or control. Question no. 74 is a mischievous question regarding me going to the airport along with PW-21 and PW-43. Whereas, there is not a single evidence or suggestion anywhere in this regard in the evidence. Answer to Q- 89 and 91 states that he was beaten and tortured by customs officers. Appellant Pradeep Malhotra never gave any voluntary statement and he was threatened. He argued that answers to Q-108, Q-109 and Q-110 clearly states that Pradeep Malhotra was beaten and falsely implicated. He was tortured and also mentions about the beating and torture by CBI that false case was registered by CBI against him. Q-115 states that K.P.Tripathi (PW-31) was Malkhana-in-charge from 9-2-78 to 9.2-80. As the case pertains to May 1977. In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. He urged that in a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 16 ID No. 02403R0002281999 matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. It is argued that the circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration.
15. Learned counsel submitted that there is no evidence on record that the search was done before PW-11, who says that he was in the lawn and keys have not been produced in the court . Regarding the rent receipts, no witness has been examined and the documents have not been proved. No question was put regarding exclusive possession by the appellant in both the premises. It is submitted that Learned Trial court has not appreciated the testimony of hostile witnesses in accordance with the law laid down by Supreme Court of India. Wherever the hostile witnesses have supported the defence, the learned trial court has rejected their testimony. In that regard, Learned counsel submitted that It is the case of the prosecution that on the basis of disclosures made by Ashok Dass and Pradeep Kumar Malhotra, 140.650 kg. of hashish was recovered on the 20.05.1977. He referred documents (Ex.PW34/A & Ex.PW 49/A) and submitted that it can not be taken as disclosure statement of Pradeep Kumar Malhotra. Who said what and when is not mentioned any where. Learned counsel submitted that Premises-B-51, South Extension I and B-74, Defence Colony,New Delhi are not proved to be the residence of Mahesh Sharma or in his possession or control. During search and seizure, CBI had broken open the doors and even the witnesses to the seizure were from 6-7 km away from near the CBI office and were the stock witnesses as after 23.05.1977, they were recalled again on the 06.07.1977 for the fabric check with the PW-15. No one identified Mahesh Kuamr Sharma and search memo do not bear their name. Landlord of the defence colony premises was not produced and Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 17 ID No. 02403R0002281999 examined and keys and possession was given to the landlord/power of attorney of both the premises.
16. To sum up, it is argued that all the aforesaid facts would indicate that there was no conspiracy to export hashish, as alleged. Recoveries are not proved and it is not proved that the said consignment was the same as seized in the US. No document or witness has proved that the it was the same consignment, so it can not be said that there was a conspiracy and that appellant Pradeep Kumar Malhotra had no nexus with the alleged consignment.
17. In support of his submissions, Learned counsel placed reliance upon following cases: Sunderlal Kanaiyalal Bhatija V/s State of Maharashtra & Ors. Decided on 31.03.2010 ; Nirmal Singh Pehlwan v/s Inspector Customs, Custom House Criminal Appeal No9.1857 of 2010; Noor Aga v/s State of Punjab 2008 (3) JCC Narcotics 135; S.Fernandez V/s State 1952 Calcutta High Court and Raju Premji v/s Customs NER Shillong 2009(3); Hannan vs State Of Nct Of Delhi on 11 April, 2013 (DHC); State Of Rajasthan vs Daulat Ram decided on 23 January, 1980; Hari Singh v/s State Delhi High Court 1990 ; Custom v/s Jorawar singh Mundy, Delhi High Court 2013 ; James Eazy Franky vs D.R.I 2012 (3) JCC 81; Noor Aga Vs. State of Punjab and Anr.; Datu Ram v/s State 1996 JCC 263 and Balwinder Singh vs State decided on 28 July, 2000 Delhi High Court. In Om Prakash @ Baba v/s State of Rajasthan (2010)1 SCC (Cri) 369; State of Punjab v/s Malkait singh (2010) 1 SCC (Cri.) 571; State of Punjab v/s Gurnam Kaur 2009 (2) JCC 73; Mangu Ram v/s State of Punjab 2009 (4) CCC (HC) 243 and State of Orissa v/s Rajeshwar Patra (2004)10 SCC (Criminal) 1871; Inspector of Customs Akhinoor v/s Yashpal (2009) 4 SCC 769 ; Jacob Lawson v/s State 1996(2) CCC 331 Delhi (HC); Ranvir Yadav v/s State of Bihar (2009) 3 SCC (Cri.) 92; Jarnail Singh v/s State of Punjab 2009(1) CCC (HC) 206; John Pandian v/s State ( 2011 ) 3 Supreme Court Cases Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 18 ID No. 02403R0002281999 ( Cri.) 558; Vinayak v/s State of Maharashtra and Rakash v/s State of Maharashtra 1984 SCC (Cri) 605 ; Lennart Schussler and Another v/s The Director of Enforcement 1970 SCC (cri.) 73; Aghnoo Nagesia vs State Of Bihar 1966 AIR 119, Abubucker Siqqique and ANR VS The State with criminal appeal no. 552 of 2008, Kaja Nizamuddin. Vs The State appeal NO. 1271 OF 2009 and Shri Irfan Ali vs State decided on 29 October, 1968.
18. Per contra, Sh. Matta, Learned Special Public Prosecutor for CBI submitted that the premises of P.K. Malhotra at A-172, Defence Colony were searched by duly authorized officer. S.J. Arora (PW 14) vide panchnama (Ex. PW 11/A) who deposed that search was conducted on the directions of Shri Marwah, Assistant Collector- (Preventive), Customs. Learned Special PP submitted that as far as recovery from A-172, Defence Colony, PW 38 proved the account opening form of M/s P&B International, (Ex. PW 38/A). Appellant P.K. Malhotra, did not dispute his address as A-172, Defence Colony either before the Superintendent of Customs while making statement or before the trial court. Sh. N. C. Gupta (PW-11) identified Pradeep Kumar Malhotra in whose presence search was conducted. There is no cross- examination by the accused on these points. Bank account opening form shows that same address of Pradeep Kumar Malhotra is mentioned therein. This address is also stated by him in his statements before the Custom Officers, while giving his specimen handwriting and signatures (Ex. PW37/C). It is submitted search resulted in recovery of 12gm of hashish. Premises No. 7, Padmini Enclave was searched by Sh. C. L. Talwar (PW-8) which resulted into recovery of 140.650Kgs of hashish (Ex PW 8/A) pursuant to the disclosure (Ex. PW20/A) of appellant. After the seizure, appellant tendered his voluntary statement u/s 108 of the Customs Act before the Superintendent Customs on 21.05.1977.
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19. It is argued that provisions of Dangerous Drugs Act, 1930 relating to search and seizure were duly complied with and appellant failed to rebut the case of prosecution either by way of cross-examination or by way of leading any defence evidence. Section 23 of Dangerous Drugs Act, 1930 empowered Custom Officers, to search without warrants and Section 26 of Dangerous Drugs Act, 1930 required the officers to assist each other and Section 38 of Dangerous Drugs Act, 1930 provided for the application of Customs Act. Investigation was initiated by the Custom Department on the information received from US Drugs Enforcement Agency. It is submitted that Section 32 of Dangerous Drugs Act, 1930 creates a statutory presumption against the accused that he has committed the offence unless and until the contrary is proved and if he fails to account satisfactorily for the possession of drugs recovered and seized from his control and possession, he would be guilty.
20. Sh. Matta drew attention of the Court towards testimony of witnesses and read them to show that statements u/s 107 & 108 of Customs Act were corroborated with the recovery of hashish. Section 108 of Customs Act does not require any written summons to be sent to the offender. Statement (Ex.PW4/A) was recorded by Shri J.M Chaudhary (PW-4), the then Superintendent of Customs, who was a Gazetted officer and accused failed to substantiate his allegation that the aforesaid statement was dictated by the officer or that the was tortured, by leading any evidence. No retraction has been brought on record by the appellant and as far as the competency of the officer to record statement is concerned, it could be recorded at any time and place. It is submitted that a non-gazetted officer was not required u/s 108 to issue any written summons. Statements of PW21 & PW43 were recorded u/s 107 & 108 Customs Act (Ex.PW21/A) & (Ex.PW21/B). Both PW21 and PW43 were not cross examined regarding identifying Krishan Kumar @Ashok Dass, as the person who had given them shipping documents of consignment of M/s New Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 20 ID No. 02403R0002281999 India Exports , wherein US Authorities recovered huge quantity of hashish. It is urged that the question regarding statements of appellant (Ex. PW20/A, Ex. PW4/A & PW4/D), were duly put to the convict P.K. Malhotra. He had not disputed that the same were written by him and appellant failed to lead any evidence in support of the said allegation.
21. It is argued that as far as the movement of the case property and samples is concerned, the same was duly proved by the prosecution by production of Malkhana Register containing relevant entries (Ex. PW 29/A and Ex. PW 31/A-1 to A-28). PW 7, the custom official who handed over the case property vide memo (Ex. PW 7/A) to CBI duly identified signature of both K.P. Tripathi (PW 31) and Shri B.N. Mishra (PW
49). Entries relating to recovery from Defence Colony, three invoices (Ex. PW 11/B1 to B3) and the samples of recovery from Padmini Enclave were duly entered in malkhana register (Ex. PW 31/A-1 to A-28). Reports received from CFSL (Ex. PW 49/F1 to F4) were duly proved, wherein it is specifically mentioned that the samples were received intact with the facsimile of seal from the CBI and the same were sent back to CBI alongwith its reports. There is nothing in the cross-examination regarding tampering of the sample and the movement of the samples by the accused. Alleged discrepancies pointed out by the appellant were not found either during the cross-examinations and no doubt was thrown by way of leading defence evidence. It is submitted that as such, neither there are discrepancies in the prosecution case nor the contentions now raised by the accused are tenable at this stage.
22. Learned Special PP argued that questions regarding statements u/s 107 & 108 of Customs Act were duly put to P.K. Malhotra vide questions No.47, 89 and 91. Question regarding possession and control of A-172, Defence Colony and 7, Padmini Enclave were duly put to him vide questions No.16, 23 and 51-56.
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ID No. 02403R0002281999
Complaint (Ex. PW 34/A) filed by Assistant Collector, Customs to CBI on the basis of which a case was registered by CBI and after conducting the investigation and collection of evidence, the charge sheet was filed. It is submitted that Question regarding recovery from B-51, NDSE, the premises of Mahesh Kumar Sharma, were duly asked vide questions No.12, 25-44, 105 & 106. Question regarding recovery from B-74, Defence Colony, the premises of Mahesh Kr. Sharma, duly asked vide questions No.18.Question regarding recovery from B-51, NDSE, the premises of Mahesh Kr. Sharma, duly asked vide questions No.12, 25-44, 105 & 106.
23. It is pointed out that the statements recorded u/s 107 & 108 of Customs Act led to the question No.74; however, in response to the same, the appellant showed ignorance. The answers in response to Q-89, 90, 91, 108, 109 and 110 are vague and bald allegations without any material on record to corroborate the same as the appellant failed to lead any defence evidence. PW-31 in his statement specifically deposed that he was posted as Malkhana incharge from 09.02.1977 to 09.02.1980. Reliance was placed by Learned Special PP upon cases reported as State of U.P. vs. M.K. Anthony, AIR 1985 SC48; State represetned by Inspector of Police vs. Saravanan & Anr. AIR 2009 SC152 and Vijay@ Chinee vs. State of M.P. ( 2010 ) 8 SCC 191; Shyamal Ghosh v. State of W.B. (2012) 7 SCC 646. In State v. NMT Joy Immaculate 2004(2) JCC 1097; State of U.P. v. Munesh (2012) 9 SCC 742 ;
"Santosh kumar Singh v. State through CBI (2010) 3 SCC (Criminal) 1469"; Raj Kumar Singh @ Raju @ Batya vs State of Rajasthan May, 2013 ; State Of Punjab vs Hari Singh And Others 2009 Division Bench Supreme Court; Avtar Singh and Others vs. State of Punjab (2002 (7) SCC 419); Masalti v. State of U.P. AIR 1965 SC202 Raghubir Singh v. State of U.P. AIR 1971 SC 2156; R. Shaji vs. State of Kerala AIR 2013 SC 651; Phool Kumar vs. Delhi Administration AIR 1975 SC 905; State of Rajasthan v. Bheru Lal 2013 III AD (Criminal ) (S.C.) 383 and Baijnath and Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 22 ID No. 02403R0002281999 Ors. v. State 2013 (2) JCC 71; Mohinder v. State of Haryana 2013 II AD (CRI.0 (S.C.)
588.
24. This Court does not consider it necessary to refer each and every citation as it will make the order unnecessarily lengthy. In nutshell well settled legal may be noted.
25. As regard conspiracy there has to be a prima-facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; anything said, done or written by any one of them in reference to their common intention will be evidence against the other, before he entered the conspiracy or after he left it; and it can be used against a co-conspirator and not in his favour. It is "not necessary that all the conspirators must know each and every detail of the conspiracy, device, techniques common goal, division of performances in the chain of actions with one object to achieve the real end of and be interested in unity of object and purpose, plurality of means sometimes even unknown to one another amongst the conspirators. All means adopted and illegal acts committed in furtherance of the object, without the knowledge of other, will not affect the culpability of those others." and conspiracy is hatched in secrecy and it is impossible to adduce direct evidence of the same and it can be inferred from acts or illegal omission committed by the conspirators in pursuance of a common design. Conspiracy has to be proved by leading substantive evidence. A systematic role played by the each accused has to be highlighted and each circumstance has to be proved beyond reasonable doubt and such circumstances proved, must form a chain of events from which the only irresistible conclusion of guilt of accused can be safely drawn and no other hypothesis is possible.
26. Statement made by an accused at a time when he was not under arrest, the bar of Section 24 to 27 of Evidence Act would not operate nor would the provisions Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 23 ID No. 02403R0002281999 of Article 20 (3) of the Constitution can be attracted. A person being interrogated during investigation under Customs Act a not a person accused of any offence within the meaning of Article 20(3) of the Constitution and whatever is stated by appellant and Ashok Dass to the Custom Authorities was substantially corroborated by subsequent recoveries and seizures and relevant evidence cannot be excluded on the ground that it was obtained under an illegal search and seizure and FIR need not be encyclopaedic as it is just an intimation of occurrence of an incident and it need not contain all facts related to the incident.
27. Legal position is well settled that all incriminating material circumstances must be put to an accused while recording his statement under Section 313 of the Code, but if any material circumstance has been left out that would not ipso facto result in the exclusion of that evidence from consideration unless it could further be shown by the accused that prejudice and miscarriage of justice had been sustained by him. It would be unsound to lay down as a general rule that every witness must be examined. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact.
28. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may got but one innocent martyr shall not suffer is a false drama. Only reasonable doubts belong to the accused. Otherwise, any practical system of justice will then break down and lose credibility with the Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 24 ID No. 02403R0002281999 community. The evil of acquitting a guilty person light heartedly goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons, it is true to say that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent." In short, our jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic.
29. Law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible or difficult to be led. Duty on the prosecution is to lead such evidence which it is capable of leading having regard to facts and circumstances of the case. In our perception, it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Efforts should be made by Courts to see that criminal justice is salvaged despite such defect in investigation. Courts should bear in mind the time constrains of the police officers in the present system, the ill equipped machinery they have to cope with , and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every cases.
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30. While appreciating the evidence of witnesses, minor discrepancies on the trivial matters which do not affect the core of the case of prosecution do not prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which do not in any way corrode the credibility of a witness should be ignored. Court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses or whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witness. The endeavour of the Court is to find the truth.
31. I have given my anxious thoughts to the submissions advanced at bar and after making a scrutiny of material on record, on the anvil of tests noticed above, this Court finds no merit in the arguments advanced by the Learned counsel for appellant.
32. Present case against appellant primarily relates to the recovery of hashish from the premises of Pradeep Kumar Malhotra at 7, Padmini Enclave (140.650 Kgs) and the recovery of 12 gm of hashish from A-172 (Ex. PW11/A) , Defence Colony (12 grams), in the presence of P. K. Malhotra, and further recovery of hashish from B-51, NDSE (138.780 KGS.) in India and documents relating to export of hashish from the possession of appellant besides the fact that USA Drugs Enforcement Authorities had recovered huge quantity of 1296 Pounds hashish concealed in Spindles from the premises at Minneapolis and for which co-accused were prosecuted and convicted at USA.
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33. Prosecution has placed relevant evidence on record to prove the ownership of premises no. B-51, NDSE by co accused Mahesh Kumar Sharma and recovery of huge quantity of 138.780 kg of hashish and packing material as well as 57 woolen spindles vide search memo (Ex. PW1/A) pursuant to information given by Ashok Dass, which proves that premises no. B-51, NDSE-I was being used for storage and packing of hashish in wooden spindles and consignment of M/s New India Export vide shipping bill (Ex. PW19/1) reached Los Angles on 13.05.1977 was detected having hashish hidden inside the spindles. Surveillance was kept by drugs control authority of USA and its control delivery was given and then consignment was shipped from Los Angles to Minneapolis on 18th May, 1977 and delivery was given to Ashok Soloman , who was arrested in USA for violation of Drug Rules and act in force and convicted on 2nd December 1977 in USA.
34. Prosecution has placed on record overwhelming evidence which is sufficient to prove the complicity of the accused Pradeep Kumar Malhotra and most important circumstance is, recoveries affected at his instance on 20.5.77 in his presence. It has been established beyond reasonable doubt that the appellant was found in H. no. A-172, Defence Colony, which house was searched by customs on 20.5.77 and 12 grams of hashish vide memo (Ex.PW11/A) as well as three invoices (Ex. PW11/B to B-3) of M/s New India Exports the consignee of spindles of fabric having hashish were recovered. It is proved on record that the appellant led the custom official to house no. 7 Padmini Enclave and from the said house, hashish weighing 140.650 kgs. was recovered at his instance vide memo (Ex. PW11/A).Evidence led by prosecution is cogent. There is substantive corroboration of the statements made by appellant (Ex. PW4/A) and co accused (Ex.PW4/E-1) u/s 108 Customs Act by subsequent recoveries and seizures. It is noteworthy that accused Ashok Dass and appellant pretended to be strangers to each other, but their association was clearly Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 27 ID No. 02403R0002281999 brought out on record by the evidence of Manohar Lal (PW-24) , who was admittedly the landlord of Ashok Dass and according to him, appellant had brought Ashok Dass to him. It has been observed in the impugned judgment that though in his cross- examination , PW-24 feigned ignorance about the house number of the appellant but gave the approximate location of his residence. Trial Court found no reason to reject the testimony of Manohar Lal. It was rightly pointed out that he had no bias whatsoever against Pradeep Kumar Malhotra and so he could not depose falsely to implicate him. Apart from the statement of Manohar Lal, there is documentary evidence of links between the two accused. Around the time, the first floor of A-277, Defence Colony was let out by Manohar Lal to Ashok Dass, an account in the name of M/s P & B International was opened in the Defence Colony Branch of State Bank of India. The account opening form (Ex. PW38/A) and pay-in-slip (Ex. PW38/B) for the amount of Rs. 15,000/-, which was deposited in the said account. Address of P&B International is shown as A-172 , defence Colony in the account opening form and names of partners are shown as P. K. Malhotra, Ashok Das and Mrs. Bharti Dass. Bharti Dass was admittedly wife of accused Ashok Dass and account was opened on 15.12.1976, that is about four months from the date the consignment was sent and hashish detected. It has not at all been explained by appellant that why any other person would, at that time open an account in the bank in the names of the two accused and wife of co accused Ashok Dass. Similarity of three names could not be a mere coincidence. Even if, Pradeep Kumar Malhotra was not residing in A-172, Defence Colony, he was admittedly having a 'nexus' with that premises because his mother was admittedly residing there. Rent receipt (Ex. PW40/12) for the month of March and April 1977 and expert report (Ex. PW40/19) confirming signatures of appellant is on record. It is not a mere chance or coincidence that the address of A-172 , Defence Colony was given in the account opening form. Shipping Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 28 ID No. 02403R0002281999 bill no. 2551 (Ex. PW9/1) related to the consignment of M/s New India Exports, which was inspected in the presence of Soni (PW-21) and Gogi (PW-43) and cleared by the clearing agent R. K. Soni (PW-21). Consignment comprised of 42 bales (packages) containing 5846.6 meter handloom fabric, shipped to USA by Japan Airlines Flights (JAL), recovery of three invoice (Ex. P11/B-1 to B-3) of M/s New India Export from A-172, Defence Colony further establishes satisfactory link and role played by appellant in the conspiracy in question. Expert opinion (Ex. PW49/F-1) to Ex. PW49/F-4) shows that sample taken from recovered hashish was 'hashish'. Ashok Dass, in his statement (Ex. PW4/E-2) had attributed specific role of appellant-Pradeep Kumar Malhotra apart from appellant's own statement u/s 108 Customs Act lends assurance to the case of prosecution which has otherwise been established cogently.
35. To conclude, this Court finds the evidence of various established facts noted above, taken together form a chain of circumstances, from which existence of the requisite principal facts can be legally inferred and presumed. On a critical and careful analyses of the evidence of all prosecution witnesses, it is found that despite lengthy cross-examination nothing has been brought out which may in any way discredit their testimony at all. Discrepancies and shortcoming pointed out by Learned counsel for appellant do not go to the root of the matter. Established facts are found to be incompatible with the innocence of the appellant and overt acts on record prove common design and active participation of appellant. These witnesses had no reason to falsely implicate the appellant. When the testimony of witnesses and the broader probabilities are considered as a whole, witnesses have stood the test of cross-examination. In view of the forgoing reasons, this Court finds no illegality or infirmity in the impugned order as regards the finding of the guilt of the appellant by the Learned trial Court. This Court finds that learned Trial Court has Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 29 ID No. 02403R0002281999 rightly convicted the appellant for the charges punishable u/s 61 (1) (A) Punjab Excise Act and 120-B IPC r/w Section 13 Dangerous Drugs Act. No interference is therefore, called for , as far as conviction of appellant is concerned.
36. Having upheld conviction of the appellant , I have heard him in person as well as Learned counsel appearing for appellant on the point of sentence. Learned Counsel has prayed for taking a lenient view as regards quantum of sentence. Appellant is about 61 years of age, having wife and two children. Appellant is not a previous convict and no other case is pending against him. Offence was committed in the year May 1977 and appellant remained in custody for a period of 110 days during trial. It is submitted that judgment was delivered by the Learned Trial Court in 1992 i.e. after 15 years and now appeal is pending since 1992, since more than 21 years. It is submitted that appellant has regularly appeared during trial and during the pendency of appeal and that there has never been any delay in trial or appeal due to appellant. It is submitted that due to the prolonged trial , appeal did not get any regular job and had to take part time assignments only. Appellant was 24 years of age when this case started and now, he is 61 years old. He is stated to be a chronic patient of hypertension, diabetes, thyroid and other illnesses. It is submitted that such a protracted trial and pendency of appeal for 36 years is in violation of Articles 21 of the Constitution of India. It is humbly submitted that appellant has suffered physically, mentally and economically due to this case and he is a law abiding citizen having roots in society. He is serving the society by teaching and serving the orphans and other needy youth and women from humble back ground through his training and educative programs . It is submitted that after his release on bail, he was married in the year 1979 and was blessed with two sons and he has imparted education to them and now, both the sons are well settled in life. He has trained more than 12,000 youth by training them in managerial competencies and Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 30 ID No. 02403R0002281999 he is a member of various professional spiritual bodies and a trustee of an NGO Manav Mandir Foundation , an orphanage. In support, Learned counsel for appellant referred Sukhmal Chand vs State 2010 (4) JCC 2742; Durga Dass vs State of H.P. AIR 1973 SC 1379; Pashora Singh & Anr. vs State of Punjab 1993 CriL. J. 1053; Dharampal vs Statt 2000 Cril L J. 5060; Surender Singh & ors. vs The State 2001 Cri. L. J 3126 and Rajiv Narula vs State 162 (2009) DLT 688.
37. In Sukhmal Chand Jain's case (supra), incident had occurred in the year 1991. Appellant was convicted in the year 2004 and while hearing criminal revision , our Hon'ble High Court noted that since, the trial had spread over 18 years , therefore, no purpose shall be served by requiring the petitioner, who was 54 years of age to undergo remaining portion of sentence. Therefore, sentenced was reduced for a period already undergone by him. In Dharampal's case (supra), incident had taken place in the year 1975 and the appellant was convicted in the year 1977 by the Court of Learned ASJ and while disposing of the appeal in the year 2000, our Hon'ble High Court observed that appellant had been facing prosecution for more than 25 years, who he had already undergone part of the sentence, therefore, while upholding the conviction, his sentence was reduced for a period already undergone by him. Similarly, in Surender Singh's case (supra), incident occurred in the year 1985, wherein appellant had been convicted and sentenced for a period of three years in the year 1992 and while, disposing of the appeal in the year 2001, it was observed by our High Court that appellant had undergone ordeal of trial for 15 ｽ years, keeping in view that appellant were well settled in the society , it was held that no purpose would be served in requiring the appellant to undergo remaining portion of sentence at the belated stage, therefore, while upholding conviction, sentence was reduced for a period already undergone by him.
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ID No. 02403R0002281999
38. In the instant case, trial and prosecution of appellant prolonged for more than for 36 years and the appellant who was 24 years of age has now crossed the age of 60 years. Admittedly, he is not involved in any other criminal case and by now, he is not only settled in the mainstream of the society but also, he has reformed himself and turned out to be a good citizen of the society. He is involved in imparting training and educating youth and engaged in social service. Appellant has already paid a fine of Rs. 10,000/- imposed upon him and has undergone sentence for a period of 110 days . Having regard to the totality of facts and circumstances, this Court is of the considered view that no useful purpose would be served by requiring the appellant to undergo the remaining portion of the sentence, at this belated stage. Learned Special Prosecutor for State has not brought to the notice of the Court any adverse or aggravating circumstance against the appellant. Thus, this Court finds that it is a fit case for reduction and modification of sentence.
39. In the result, in view of peculiar facts and circumstances of the case, as noted above, this appeal is accordingly disposed of by upholding the impugned judgment qua the appellant on merits but reducing the substantive sentence to the period already undergone by the appellant and enhancing the fine imposed. Now, appellant is directed to deposit a total sum of Rs.50,000/- (Rs. 25,000/- for each of the two count of charges instead of Rs. 5,000/- each). Amount of Rs. 10,000/- which is stated to have been already deposited by appellant in the Trial Court shall be adjusted in the amount of fine to be now deposited by the appellant.
40. Trial Court record be sent back alongwith a copy of his order.
41. Appeal file be consigned to Record Room.
announced in the
open Court
on 28th November, 2013 (Vinay Kumar Khanna)
ASJ-04 & Spl. Judge (NDPS) South East,
South-East, Saket Court/New Delhi
Pradeep Kumar Malhotra vs CBI (CA No. 32/2012) 32