Delhi High Court
Sp Tripathi Io Ncb vs Yudhister Kumar Alias Y Kumar And Ors on 22 September, 2015
Author: Suresh Kait
Bench: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Delivered on: 22 September, 2015
+ CRL.A. No. 254/1996
SP TRIPATHI IO NCB ..... Appellant
Represented by: Mr. Satish Aggarwala, Advocate.
Versus
YUDHISTER KUMAR ALIAS Y KUMAR AND ORS ..... Respondents
Represented by: Mr. Amit Sharma and Mr. Aditya
Bhardwaj, Advocates for Respondent
No.1.
Mr. Rajeev Gaur, Advocate for
Respondent No.3.
Mr. Rajan Bakshi, Advocate for
Respondent No. 4.
AND
CRL.A. No. 255/1996
SP TRIPATHI IO NCB ..... Appellant
Represented by: Mr. Satish Aggarwala, Advocate.
Versus
AMRIK SINGH AND ANOTHER ..... Respondents
Represented by: Mr. Amit Sharma and Mr. Aditya
Bhardwaj, Advocates for Respondent
No.1.
Mr. Rajan Bakshi, Advocate for
Respondent No.2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. These appeals have been preferred on behalf of the Narcotics Control Bureau, New Delhi, against the common judgment and order dated 06.05.1996 passed by the learned Additional Sessions Judge-cum-
Crl. Appeal Nos. 254-255 of 1996 Page 1 of 32Special Judge, Narcotic Drugs and Psychotropic Substances Court, New Delhi, in Sessions Case No. 179/1988 and Sessions Case No. 7/1990 acquitting the respondents, namely, Yudhister Kumar @ Y. Kumar, Joginder Mohan Malhotra @ Jindo Malhotra, Narinder Pal Singh, Manju Narula, Surinder Mohan Malhotra and Anil Kumar Gandhi (in S.C. No. 179/1988) and respondents Amrik Singh and Kamal Manku @ Paul (in S.C. No.7/1990) for the offences punishable under Section 29 read with Sections 21 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as 'NDPS Act') and respondent Manju Narula for separate offence punishable under Section 21 NDPS Act.
2. Since the aforementioned appeals involve common question of facts and law and arise from the common judgment dated 06.05.1996, therefore, I shall dispose of these two appeals by this judgment.
3. It is noted that Criminal Appeal No.254/1996 is filed challenging the judgment dated 06.05.1996 passed in Sessions Case No.179/1988 arising out of complaint Ex.PW5/C filed by Sh. N.P. Kaushik, Intelligence Officer, NCB, New Delhi, in 1987 and Criminal Appeal No.255/1996 is filed challenging the said judgment passed in Sessions Case No.7/1990 arising out of complaint dated 28.08.1989 Ex. PW5/D against the respondents herein in the court of learned Additional Chief Metropolitan Magistrate (ACMM), New Delhi.
4. Before proceeding further, it is noted that during pendency of the appeals, three respondents, namely, Anil Kumar Gandhi, Joginder Mohan Malhotra @ Jindo Malhotra and Surinder Mohan Malhotra, respondents Crl. Appeal Nos. 254-255 of 1996 Page 2 of 32 in Criminal Appeal No. 254/1996, had expired, thus, said appeal against them had already been abated vide orders dated 30.10.2000, 18.08.2011 and 13.08.2013 respectively.
5. Facts of these cases are that on the basis of specific information, on 18.09.1987, a team of officers of NCB headed by Sh.J.K.Handa (PW1) had searched the residential premises, i.e., 30, Paschim Marg, Vasant Vihar, New Delhi, of deceased respondent Joginder Mohan Malhotra @ Jindo Malhotra and had seized one metal container sealing machine Ex.P- 1A alongwith diaries Ex. P-2A and Ex.P-3A vide Panchnama Ex. PW1/A. At that time, respondent Manju Narula was also present and on enquiries, she disclosed that she had carried 2 packets containing 8 kilograms of heroin, a contraband and a dangerous drug under the provisions of the Dangerous Drugs Act, 1930, from the aforenoted residence of deceased respondent Joginder Mohan Malhotra to her parental house, i.e., 36, Malviya Nagar at about 3.00 or 4.00 AM on that day. Thereafter, the said parental house was searched by a team of NCB Officers headed by Sh.N.P.Kaushik (PW5), who accompanied respondent Manju Narula from the house of said deceased respondent on the same day, i.e., 18.09.1997. Respondent Manju Narula produced two pure ghee tins of 5 kilograms each of the brand names of 'Indana' and 'Milk Food' and one black coloured suitcase. On breaking open the two tins, they were found to contain 4 kilograms and 3.7 kilograms heroin contained in a polythene packet each respectively. A suitcase was found to contain 2 cloth thellies (small pouches of cloth) having 'Urdu' markings and some stars inside a circle each containing 1 kilogram heroin in a polythene packet.
Crl. Appeal Nos. 254-255 of 1996 Page 3 of 326. Accordingly, PW5 drew a set of three samples each from the four packets, which were assigned markings 'I' representing 'Indana Ghee Tin', 'M' indicating 'Milk Food' and 'A' and 'B', to the two cloth packets and were given identification markings, i.e., I-1 to I-3, M-1 to M-3, A-1 to A-3 and B-1 to B-3. All the 12 samples were put in separate envelopes each sealed with NCB Seal No.08 over a paper slip bearing the signatures of two panch witnesses, namely, Radha Krishan (PW3) and his wife Dharma Devi, respondent Manju Narula, her mother Smt. Shanti Devi and of PW5. Two cloth packets containing heroin were transferred into two separate cloth parcels which were similarly sealed. Similarly, the polythene packets containing heroin recovered from two ghee tins were also transferred into two separate cloth parcels after sealing. Two empty ghee tins were separately transferred in two separate parcels after sealing. Thereafter, the four sample marked, i.e., A-1, B-1, I-1 and M-1 were deposited in the office of CRCL, New Delhi on 23.09.1987 alongwith forwarding letter Ex.PW8/B. On analysis by Assistant Chemical Examiner Sh. R.S. Malhotra (PW8) under the supervision of Chemical Examiner Sh. S.C. Johri (PW9), each of the sample was found to be of 'Diacetylmorphine' vide report Ex.PW8/C.
7. Thereafter, NCB Officers brought the deceased respondent Joginder Mohan Malhotra, his brother respondent Surinder Mohan Malhotra and deceased respondent Anil Kumar Gandhi from the house of said deceased respondent to NCB Office. While respondent Manju Narula was similarly brought by complainant Sh. N.P. Kaushik (PW5) from her parental house on the evening of 18.09.1987. After a simultaneous search of house of respondent Yudhister Kumar @ Y. Crl. Appeal Nos. 254-255 of 1996 Page 4 of 32 Kumar on 18.09.1987 by another team of NCB Officers, he was also brought to the NCB Office on the same evening.
8. The house of respondent Narinder Pal Singh was searched on the morning of 19.09.1987 and thereafter, he was also brought to the NCB Office on 19.09.1987 itself. Pursuant thereto, all the respondents named above were interrogated on the nights of 18.09.1987 and 19.09.1987 and they had allegedly given their voluntary statements under Section 67 NDPS Act, giving a vivid account of the conspiracy resulting in the recovery of 9.7 kilograms of heroin from the parental house of respondent Manju Narula.
9. After completion of investigation, the chargesheet was filed. The respondents Yudhister Kumar @ Y. Kumar, Narinder Pal Singh, Manju Narula, Surinder Mohan Malhotra, Amrik Singh and Kamal Manku @ Paul were charged under Section 29 read with Sections 21 and 23 NDPS Act and a separate charge under Section 21 NDPS Act was framed against respondent Manju Narula for being found in possession of 9.7 kilograms of heroin. All the respondents pleaded not guilty and claimed trial. After recording the statements of prosecution witnesses and the statements of the respondents under Section 313 of the Code of Criminal Procedure, 1973, the learned Special Judge came to the conclusion that the prosecution has not been successful in bringing home the charges levelled against the respondents, therefore, acquitted them vide impugned judgment dated 06.05.1996.
10. Being aggrieved, the appellant/NCB challenged the said acquittal judgment by preferring the aforementioned two appeals before this Court.
Crl. Appeal Nos. 254-255 of 1996 Page 5 of 3211. Mr. Satish Aggarwala, learned counsel appearing on behalf of the appellant/NCB submitted that the learned Special Judge committed a grave error in holding that the recovery of heroin from the parental house of respondent Manju Narula was illegal for non-compliance with the provisions of Section 50 NDPS Act as the same was not required because the instant case is of no recovery from personal search. Moreover, the learned Special Judge completely ignored the Panchnama Ex. PW3/A drawn by PW5 and signed by the Panch witnesses, namely, Radha Krishan (PW3) and his wife Smt. Dharama Devi.
12. Mr. Aggarwala submitted that so far as the alleged gap of one hour, i.e., why it took NCB Officers one hour from 4.30 PM when the search at the house of deceased respondent Joginder Mohan Malhotra was concluded and 5.30 PM when the search of parental house of respondent Manju Narula was commenced, is concerned, obviously, some time must have been taken in completing other formalities.
13. He submitted that the learned Special Judge has recorded that the disclosure statement Ex. PW5/A of respondent Manju Narula appeared to have been recorded in the NCB Office and even assuming that the same was recorded at the house of deceased respondent Joginder Mohan Malhotra, there was a discrepancy between the said disclosure and the actual recovery of contraband made from the parental house of respondent Manju Narula, i.e., 9.7 kilograms whereas in her disclosure statement Ex. PW5/A, respondent Manju Narula had stated that she had carried two packets containing 8 kilograms of heroin from the house of deceased respondent Joginder Mohan Malhotra. The said discrepancy occurred as she was not associated with the weighment and packing of heroin, so, she Crl. Appeal Nos. 254-255 of 1996 Page 6 of 32 was not aware of the exact quantity of the same.
14. He further submitted that the learned Special Judge ought not to have permitted the defence to produce a video cassette from their own possession. Moreover, until 18.03.1996, no suggestion was put to any prosecution witness regarding the case property having been shown in the News telecast of Doordarshan in an un-sealed condition.
15. Learned counsel further submitted that the learned Special Judge had rejected the evidence regarding the authenticity of the packets of heroin produced before the Court, which bore NCB Seal No.06 instead of 08, on the ground that either the same were not sealed at the spot in the parental house of respondent Manju Narula or the seals were opened and the packets were resealed was unwarranted. The learned Special Judge had failed to appreciate that the team of NCB Officers headed by PW5 had initially searched the house of deceased respondent Joginder Mohan Malhotra and before concluding the formalities of the search, PW5 alongwith other officials left for the parental house of respondent Manju Narula. Therefore, it was not improbable that the said team also carried with them both the seals noted above in anticipation that they may have to conduct searches at more than one place and accordingly, NCB Seal No. 06 was, inadvertently, used in respect of some of the packets etc. recovered from the parental house of respondent Manju Narula.
16. Mr. Aggarwala submitted that the learned Special Judge had clearly recorded that there was no material on record which could suggest that respondent Yudhister Kumar @ Y. Kumar and two deceased respondents Joginder Mohan Malhotra and Anil Kumar Gandhi were Crl. Appeal Nos. 254-255 of 1996 Page 7 of 32 beaten, tortured or threatened to make their confessional statements. Thus, there was no occasion for the learned Special Judge to reject their statements just because they had retracted their statements. Disclosure statement Ex. PW5/A of respondent Manju Narula was rejected by the learned Special Judge on the ground that the recital was totally incongruous and not in conformity with the truthfulness or the voluntariness of the statement and admittedly five pages and ten lines of the sixth page although signed by her contained no endorsement of Sh.N.P. Kaushik (PW5). However, there is nothing on record to indicate that the said statement was not made voluntarily.
17. He submitted that confessional statement of respondent Surinder Mohan Malhotra was rejected on the ground that no summons were served on him and the same was written by his son, namely, Sanjiv Malhotra and possibility of threat and coercion of implicating his son could not be ruled out and that respondent Surinder Mohan Malhotra had retracted the said statement immediately when he was produced before the Duty Magistrate on 20.09.1987 claiming the statement to be involuntary. Confessional statement of respondent Narinder Pal Singh Ex. PW10/A was rejected by the learned Special Judge on the ground that the same was not voluntary in view of the injuries mentioned vide medical report dated 24.09.1987 prepared by Dr. M.P. Sarangi, Assistant Professor, MAM College, which coinciding with the time, when the said respondent was in custody of the NCB Officers and his claim that he had been mal-treated, beaten, coerced and forced to make statement Ex.PW10/A under the dictation of NCB Officers.
18. Mr. Aggarwala further submitted that there was no reason for the Crl. Appeal Nos. 254-255 of 1996 Page 8 of 32 NCB Officers to falsely implicate the respondents as recovery and seizure memos are there in respect of the contraband, deposition of official witnesses to be believed and non-appearance of public witnesses is immaterial.
19. In support of his submissions qua reliance upon deposition of official witnesses, learned counsel has relied upon the case of Ajmer Singh Vs. State of Haryana, 2010(2)SCALE362, wherein the Apex Court held that:-
"16. The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalwat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of Crl. Appeal Nos. 254-255 of 1996 Page 9 of 32 the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses has rightly come to the conclusion that the appellant was arrested and Charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding.
20. Also relied upon the case bearing Crl. A. No.830/2010 titled as 'K.R. Vengadeswar Vs. NCB' decided by this Court on 10.01.2014
21. On account of submissions for non-joining of public witnesses, the learned counsel has relied upon the case of Nwadika UGO Ben Vs. State 197 (2013) DLT 740, wherein this Court held that:-
"9.Also, non-joining of public/independent witnesses also cannot be said to be fatal to the prosecution's version when it is on record that genuine efforts were made to join such witnesses, but none came forward. The Supreme Court in Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 has held that non joining of independent witness is not fatal to the prosecution case particularly when efforts were made by the investigating party to join public witness but none was willing. The conviction was upheld in that case."
22. Learned counsel has also relied upon the cases of Amrita @ Amritlal Vs. State of M.P. 2004 (1) CC Cases (SC) 220 and CBI Vs. Ashiq Hussain Faktoo & Ors. 2003 (2) JCC 316 and Kulwinder Singh & Anr. Vs. State of Punjab, 2015 Law Suit (SC) 433 etc.
23. On the other hand, learned counsel appearing on behalf of the Crl. Appeal Nos. 254-255 of 1996 Page 10 of 32 respondents while refuting the submissions made by the learned counsel for the appellant/NCB, submitted that all the respondents retracted their statements on 20.09.1987 itself, when they were produced in the court of Duty Magistrate for the first time by the NCB Officers, on the ground that they were forced, tortured or coerced to write the dictated statements at the instance of the NCB Officers. In their statements recorded under Section 313 Cr.P.C., all the respondents have denied the prosecution case in toto and took the plea that they have been falsely implicated in this case.
24. Learned counsel further submitted that the appellants have not complied with the provisions of Section 42(1) NDPS Act which attract the observance of mandatory requirements of Section 50 NDPS Act, which were to be followed before search was conducted. Therefore, the learned Special Court has correctly held that non-compliance of Section 42(1) NDPS Act and the mandatory requirements of Section 50 NDPS Act, especially when the recovery of the narcotic drug was effected in pursuance of alleged disclosure statement, is a debatable question.
25. To support the aforesaid arguments, learned counsel for the respondents relied upon the case of Karnail Singh Vs. State of Haryana 2009 Crl. L.J. 4299.
26. Learned counsel submitted that there are material discrepancies qua sealing of the case property, the sample seized and sealed. As Sh. N. P. Kaushik (PW5) has categorically stated that he had sealed the two tins Ex. P-11 and Ex. P-12 alongwith empty polythene bags from which heroin had been transferred with NCB Seal No.08, over a paper slip bearing the Crl. Appeal Nos. 254-255 of 1996 Page 11 of 32 signatures of the respondent Manju Narula, her mother Smt. Shanti Devi, both panch witnesses, namely, Radha Krishan and his wife Smt. Dharma Devi and of PW5 as well. However, when the said case property was brought before the Trial Court on 10.10.1995, the same bore the NCB Seal No. 06 instead of 08. Therefore, there is no perversity in the finding of the learned Special Judge that the case property was tampered with.
27. Learned counsel further submitted that in catena of judgments, it is held that an appeal against acquittal should only be interfered with if the order of acquittal passed by the learned Trial Court is perverse and absolutely unreasonable having deficiencies of facts or law. Also submitted, since the appellant has failed to show any illegality and perversity in the impugned judgment passed by the learned Special Judge, therefore, the appeals should be dismissed.
28. It is submitted on behalf of the respondent No.3 that as per the settled principles of evidence in Criminal Law, confessional statement of a co-accused cannot be treated as substantive evidence against a co- accused and the same can only be used to lend assurance or support against the accused if there is some substantive evidence on record. However, in the present case, there is no such substantive evidence against the respondent No.3. No recovery was effected from the respondent No. 3. So called confessional statement Ex.PW10/A of respondent Narinder Pal Singh recorded under Section 67 NDPS Act was retracted by him on 20.09.1987 when he was first produced before the Duty Magistrate. Moreover, the learned Special Judge opined that considering the injuries sustained by the respondent, the statement Ex.PW10/A cannot be said to have been a voluntary statement.
Crl. Appeal Nos. 254-255 of 1996 Page 12 of 3229. To support his case, learned counsel has relied upon the case of Narcotics Control Bureau, Jodhpur Vs. Murlidahr Soni & Ors., 2004 (2) JCC 1045, wherein the Apex Court held as under:-
"9. We are in agreement with this finding of the High Court. It is to be noted that even though these accused persons were arrested on 24.9.1994, they were produced before the court only on 27.9.1994 on which date both the accused submitted before the court that they had suffered injuries at the hands of the investigating agency and it is under such physical threat their statements were recorded under section 67 of the Act. The said court had directed a medical examination of these accused on that day itself. The medical report and the evidence of DWs.1 and 2, the doctors who examined them, clearly show that these accused had suffered injuries and Murlidhar Soni had actually suffered a fracture of the 10th left rib. The defence of the prosecution that these injuries might have been suffered by an accidental fall of the accused, cannot be accepted, thus, we are in agreement with the finding of the High Court that the statements of these accused persons have been obtained by the prosecuting agency under duress. It is also to be noted that even according to the prosecution case so far as this respondent is concerned, his only role in regard to the contraband was to take his father on his scooter to the place where they were allegedly arrested. The bundle in question which contained the contraband was carried by Murlidhar Soni and there is no material whatsoever to show that the present respondent had the knowledge that the bundle contained any contraband. In our opinion since the prosecution has not placed any material to show the conscious possession of the contraband by the respondent herein and since Murlidhar Soni is dead, we think the contentions advanced on behalf of the respondent as to the possession of the contraband by the respondent has to be accepted."Crl. Appeal Nos. 254-255 of 1996 Page 13 of 32
30. Also relied upon the cases of Chandrappa & Ors. Vs. State of Karnataka (2007) 4 SCC 415, State of Kerala and Another Vs. C.P. Rao, (2011) 6 SCC 450, State of Rajasthan Vs. Talevar and Another 2011(3) Crimes 61 (SC), State Vs. Ramesh and Others, 2011 (1) JCC 363, State (Govt. of NCT of Delhi) Vs. Girdhari Lal Verma 2011 (3) JCC 1744, Amarjeet Singh and Another Vs. State 1995 Crl.L.J.1623 and Valsala Vs. State of Kerala, 1993 (2) Crimes 267 (SC), etc.
31. I have heard the learned counsel for the parties.
32. Before dealing with the rivalry contentions of the parties, it would be appropriate to refer to Section 42 NDPS Act, as it stood before its amendment by Act 9 of 2001, which is very important for effective adjudication of the present appeals. It reads as under:-
"42. Power of entry, search, seizure and arrest without warrant or authorisation.
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any Crl. Appeal Nos. 254-255 of 1996 Page 14 of 32 document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-
two hours send a copy thereof to his immediate official superior."
Sub-section (2) as replaced by Act 9 of 2001 is extracted below.
Crl. Appeal Nos. 254-255 of 1996 Page 15 of 32"(2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior."
33. It is well established that search and seizure are essential steps in the armory of an investigator in the investigation of a criminal case. The Code of Criminal Procedure in various provisions, particularly, Sections 96 to 103 and Section 165 recognize the necessity and usefulness of search and seizure during the investigation.
34. Sub-section (1) of Section 42 NDPS Act lays down that the empowered officer, if has a prior information given by any person, should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belief. The proviso to Sub-section (1) of Section 42 lays down that if the empowered officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief.
35. Sub-section (2) of Section 42 as it originally stood mandated that the empowered officer who have taken down information in writing or records the grounds of his belief under the proviso to Sub-section (1), Crl. Appeal Nos. 254-255 of 1996 Page 16 of 32 should send a copy of the same to his immediate official superior forthwith. But after the amendment in the year 2001, the period within which such report has to be sent was specified to be 72 hours.
36. It is noted that the Constitutional Bench of the Apex Court in the case of Karnail Singh (supra) while dealing with the issue qua compliance of Section 42 NDPS Act, as has been decided by a three- Judge Bench of the Apex Court in the case of Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat (2000) 2 SCC 513, and Sajan Abrahm Vs. State of Kerala (2001) 6 SCC 692, held as under:-
"1. In the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513, a three-Judge Bench of this Court held that compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham v. State of Kerala (2001) 6 SCC 692, which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue."
37. In Karnail Singh while dealing with the facts of the aforementioned cases and relying upon numerous judgments, the Constitutional Bench of the Apex Court concluded as under:-
"17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements Crl. Appeal Nos. 254-255 of 1996 Page 17 of 32 of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of Sub-
sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping Crl. Appeal Nos. 254-255 of 1996 Page 18 of 32 or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
Thus, as observed in (d) above, to this extent, the provisions of Section 42 NDPS Act are mandatory and contravention of the same would affect the prosecution case and vitiate the investigation.
38. Section 50 NDPS Act prescribes the conditions under which search of a person shall be conducted. Sub-section (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under Sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such gazetted officer or the Magistrate, which reads as under:-
"50. Conditions under which search of persons shall be conducted.Crl. Appeal Nos. 254-255 of 1996 Page 19 of 32
(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female.
1[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]
39. In the case of State of Punjab Vs. Baldev Singh (1999) 6 SCC 172, the Supreme Court considered the importance of due compliance of Section 50 NDPS Act and held as under:-
"28 .....The argument that keeping in view the Crl. Appeal Nos. 254-255 of 1996 Page 20 of 32 growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.
xxxx xxxx xxxx
32. However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on Crl. Appeal Nos. 254-255 of 1996 Page 21 of 32 the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible--it cannot be disregarded by the prosecution except at its own peril.
33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial."
40. The aforesaid view was referred to and reiterated in the case of State of H.P. Vs. Pawan Kumar, (2005) 4 SCC 350. The relevant portion of the same reads as under:-
"26 ...Otherwise, there would be no distinction between recovery of illicit drugs, etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used a very strict view of Section 50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from Sub-section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As Crl. Appeal Nos. 254-255 of 1996 Page 22 of 32 a corollary, there is no warrant or justification for giving an extended meaning to the word "person" occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him."
41. The aforesaid observations of the above Constitution Bench decision in Baldev Singh (supra) and the three Judge Bench decision in Pawan Kumar (supra), clearly highlight the legal requirement of compliance of Section 50 in its true spirit. It will have to be stated that such compliance of the requirement under Section 50 of holding of a search and seizure in the presence of Gazetted officer or a Magistrate, cannot be an empty formality. In other words, the offer to the person to be searched in the presence of a Gazetted officer or a Magistrate, should really serve the purpose of ensuring that there was every bona fide effort taken by the prosecution to bring forth the grave offence of possession of narcotic substance and proceed against the person by way of prosecution and thereby establish the truth before the appropriate judicial forum. In the same breath such a course of compliance of Section 50 would also enable the person accused of such a grave offence to be convinced that the presence of such an independent Gazetted officer or a Magistrate would also enable the person proceeded against to demonstrate that there was no necessity for holding any search on him and thereby persuade the concerned Gazetted officer or Magistrate to protect his fundamental right of freedom, from being unlawfully proceeded against.
42. In other words, the purpose of Section 50 was to ensure that on the one hand, the holding of a search and seizure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police Crl. Appeal Nos. 254-255 of 1996 Page 23 of 32 authorities, while on the other hand to prevent an accused from committing an offence of a serious nature against the society, warranting appropriate criminal proceedings to be launched and in the event of establishing such offence, conviction and sentence to be imposed in accordance with law. Therefore, such a dual requirement of law prescribed under Section 50 cannot be dealt with lightly by the Courts dealing with the trial of such offences brought before it.
43. Admittedly, case of the prosecution is that Sh. J.K. Handa, Intelligence Officer, NCB (PW1) and other officers had reached and searched the house No.30, Paschim Marg, Vasant Vihar, New Delhi, of deceased respondent Joginder Mohan Malhotra on 18.09.1987 on the basis of prior information and on the basis of search authorization which has not been produced on record of the case. It is also admitted case of the prosecution that no option as required by Section 50 NDPS Act was given to said deceased respondent and other respondents who were present in the said house before conducting search leading to the recovery of metal container sealing machine Ex. P-1A and two diaries Ex. P-2A and P-3A. As per the prosecution, Ex.P-1A was used by the accused pesons in sealing the bottoms of the ghee tins Ex. P-11 and Ex. P-12 after they were filled up with 7.7 kilograms of heroin.
44. Thus, the learned Special Judge has correctly observed that Section 42(1) NDPS Act comes into play attracting the observance of mandatory requirements of Section 50 NDPS Act which were to be followed before search was conducted as ruled by the Division Bench of this Court in Amarjeet Singh's case (supra).
Crl. Appeal Nos. 254-255 of 1996 Page 24 of 3245. As regards the issue of discrepancies qua sealing of the case property, the sample seized and sealed is concerned, the learned Special Judge has extensively dealt with the same and recorded that Sh. N.P.Kaushik (PW5) has categorically stated that he had sealed the two tins Ex. P-11 and Ex. P-12 alongwith empty polythene bags from which heroin had been transferred with NCB Seal No.08, over a paper slip bearing the signatures of the respondent Manju Narula, her mother Smt. Shanti Devi, both panch witnesses, namely, Radha Krishan and his wife Smt. Dharma Devi and of PW5 as well. However, when the said case property was brought before the Trial Court on 10.10.1995, the same bore the NCB Seal No. 06 instead of 08. PW5 stated that on 19.09.1987, i.e., a day after he had effected seizure and had sealed the case property, he had put all the four sealed cloth parcels in another card-board box in the office of NCB, which was sealed by him with NCB Seal No.06 over a paper slip bearing only his signatures at about 1.00 PM so that the case property may not get dislocated during storage. However, he could not give any explanation about the two ghee tins Ex. P-11 and Ex. P-12 containing empty polythene packs which were found sealed with NCB Seal No.06 over paper slips Ex. P-9 and Ex. P-10 bearing the signatures of the signatories of Panchnama Ex. PW3/A
46. The learned Special Judge has recorded that Sh. Kaushik (PW5) could not give any explanation as to how the two cloth parcels of ghee tins were found having intact seals of NCB 06 instead of NCB 08 over all the four respective paper slips, i.e, Ex.PI-B, Ex. P3-B, Ex. P-9 and Ex. P- 10 in such a manner that they could not be opened either without tampering with the seals or the paper slips. It is noted that the said Crl. Appeal Nos. 254-255 of 1996 Page 25 of 32 mystery was solved not by the prosecution but by the defence when they played a Video Cassette in the Court on 18.03.1996 in the presence of Senior Special Public Prosecutor Sh. J.S. Arora, all the respondents and their respective counsels for being confronted to PW5, who had to admit that one of the Video clipping shown during the English News telecasting on Doordarshan had not only shown the interview of Sh. B.V. Kumar, the then Director General of NCB but also showed all the respondents standing behind a table on which two packets were shown lying in a suit- case and metal containing sealing machine was also lying near the table. He also admitted that he had seen the Milk Food container lying on the table with something bulging from the top of the container in the film.
47. In view of the above, the learned Special Judge came to the conclusion that the case property of this case was shown on Doordarshan Network either on 19.09.1987 or on 20.09.1987, both during the telecast of Hindi News as well as English News, alongwith all the respondents of the Criminal Appeal No.254/1996 and that too before producing them before the Duty Magistrate in the Patiala House Courts, New Delhi in the afternoon of 20.09.1987. It was noted that the four parcels, i.e., Ex.PI-B, Ex. P3-B, Ex. P-9 and Ex. P-10, having different seals bearing NCB No.06 and bearing signatures of respondent Manju Narula, her mother, two panch witnesses and PW5 all intact could have only two explanations, first, all these four packets were not sealed at the spot, i.e., in the house of respondent Manju Narula on 18.09.1987, second, they were sealed on 18.09.1987 but were opened and unsealed either on 19.09.1987 or 20.09.1987 for being shown to the Doordarshan Team and were resealed with NCB Seal No. 06 on four separate spare paper slips Crl. Appeal Nos. 254-255 of 1996 Page 26 of 32 which must have been obtained on 18.09.1987 while obtaining the signatures of two pancha witnesses and mother of respondent Manju Narula. In both the eventualities, consequence of this exercise was fatal suggesting tempering with the case property. The learned Special Judge recorded that this has also been adversely commented upon by the Division Bench of this Court in the case of Amarjit Singh's case (supra), when similar thing happened at the behest of Smt. Kiran Bedi, then DCP, Incharge of the Police team of the said case.
48. Accordingly, the search and seizure proceedings conducted in the aforesaid house of deceased respondent Joginder Mohan Malhotral were rightly held to be illegally relying upon the case of the Supreme Court titled as Ali Mustafa Abdul Rahman Moosa vs. State of Kerela 1995 (1) CC Cases Page 108.
49. So far as the discrepancies regarding quantum of heroin actually recovered from two ghee tins and as disclosed by respondent Manju Narula in her disclosure statement Ex. PW5/A and the same being not endorsed by PW5 are concerned, the learned Special Judge has widely dealt with the same and correctly held that the entire statement running into 10 pages of respondent Manju Narula was recorded on 3 sittings, two in the late hours of 18.09.11987 and one in the morning of 19.09.1987 in the NCB Office. PW5, in his examination-in-chief, had stated that after associating the two panch witnesses, namely Radha Krishan (PW3) and his wife Smt. Dharma Devi, search of the parental house of respondent Manju Narula was conducted without giving any option to her under Section 50 NDPS Act or without preparing any search warrant. It was at the subsequent stage that PW5 had disclosed that it was the respondent Crl. Appeal Nos. 254-255 of 1996 Page 27 of 32 who had produced the two ghee tins and the suitcase when they were standing in the courtyard or her parents house. Thus, recovery of 9.7 kilograms brown powder alleged to be heroin was effected without any disclosure of the said respondent.
50. In view of the above, the learned Special Judge rightly observed that it was incumbent upon the searching officer armed with an information gather in the house of deceased respondent Joginder Mohan Malhotra to have followed the mandatory requirements of Section 50 NDPS Act as ruled by the Division Bench of this Court in Amarjeet Singh's case (supra).
51. Moreover, case of PW5 and of the prosecution that respondent was not given any option as stipulated by Section 50 NDPS Act, the learned Special Judge declared the entire search and seizure proceedings conducted in the house of respondent Manju Narula also to be illegal as ruled by the Supreme Court in Ali Mustafa's case (supra).
52. The confessional statement Ex. PW5/B of the respondent Surinder Mohan Malhotra was written by his son, namely, Sanjiv Malhotra. When PW5 was questioned as to why and in what circumstances Sanjiv Malhotra son of aforesaid respondent was present in NCB Office on the intervening night of 18.09.1987 and 19.09.1987, he had to cut a sorry figure and stated that he did not enquire. The fact remains that Sanjiv Malhotra son of respondent Surinder Mohan Malhotra was neither an accused nor any enquiry was made from him under Section 67 NDPS Act and yet he was brought and kept during the said intervening night in the NCB Office itself make the statement Ex. PW5/B suspicious and Crl. Appeal Nos. 254-255 of 1996 Page 28 of 32 involuntary as threat and coercion of implicating his son for extracting his statement could not be ruled out. Moreover, respondents have filed their retractions immediately on being produced for the first time before the Duty Magistrate in Patiala House Courts on 20.09.1987 claiming the statements to be involuntary.
53. So far as respondent Narinder Pal Singh is concerned, admittedly, he had been picked up from his house on 19.09.1987, being stated to be partner of respondent Yudhister Kumar @ Y. Kumar, after his house was searched and nothing incriminating was found. He alongwith other respondents was produced before the Duty Magistrate on 20.09.1987, wherein the said respondent had moved an application Ex. PW5/DA alleging that he had been mal-treated, beaten, coerced and forced to make a false confessional statement Ex. PW10/A under the dictation of NCB Officers, which was allowed by the Duty Magistrate. It is claimed by him that he was forced to withdraw the application for medical examination in the judicial lock up with the result he had to move another application before the then ACMM on 22.09.1987 seeking his medical examination. Pursuant thereto, he was examined by Dr. M.P. Sarangi, Assistant Professor, MAM College vide medical report dated 24.09.1987.
54. Thus, the learned Special Judge has rightly rejected the statement Ex. PW10/A on the ground that the same was not voluntary in view of the injuries mentioned vide medical report dated 24.09.1987 which coinciding with the time, when the said respondent was in custody of the NCB Officers and his claim that he had been mal-treated, beaten, coerced and forced to make statement Ex.PW10/A under the dictation of NCB Officers.
Crl. Appeal Nos. 254-255 of 1996 Page 29 of 3255. As regards the respondents Amrik Singh and Kamal Manku @ Paul, who had been prosecuted on the basis of their confessional statements, is concerned, the learned Special Judge has recorded that no cogent evidence was led on record that they were, in fact, intercepted from a room in Hotel Imperial on 27.06.1989. Moreover, it has been proved on record from the official record of Mess Register Ex.DA of 40 th Battalion, CRPF, Jalandhar that both these respondents were detained by the CIA Staff of Punjab Police and they were provided messing facility in the Mess of CRPF, Jalandhar from 19.06.1989 to 22.06.1989 and thereafter brought to Delhi on 23.06.1989.
56. Since the prosecution has not placed any contrary record thereto, the learned Special Judge has rightly not believed the prosecution story. Especially when, prosecution case is that Sh. B.S. Bakshi (PW2) and Sh. D.A. Nistane (PW4) had served summons on the said respondents in the hotel room and the said summons were not produced before the Trial Court.
57. Furthermore, PW2 has not stated that statement Ex. PW2/B of respondent Amrik Singh running into 25 pages in 'Gurmukhi' script was made by him voluntary, without any pressure or coercion. The learned Special Judge took note of the fact that none of the respondents in Criminal Appeal No. 254/1996 had given the parental name or exact address of either of these two respondents. The NCB officers neither have their photographs nor the same were confronted to the other respondents, especially to respondents Yudhister Kumar @ Y. Kumar, Narinder Pal Singh and deceased respondent Joginder Mohan Malhotra.
Crl. Appeal Nos. 254-255 of 1996 Page 30 of 3258. It is pertinent to note that respondent Kamal Manku @ Paul in his statement Ex.PW4/C running into 7 pages had given so many details of his past involvement in narcotic trade in Holland and other countries, which facts could not be in the knowledge of the NCB officers, however, considering the facts and circumstances of the case, the learned Special Judge was of the view that statements Ex. PW 2/B and Ex. PW4/C could not be said to have been made voluntarily.
59. Thus, keeping in mind the overall facts and circumstances of the case, the learned Special Judge has opined that the prosecution has not been successful in bringing home the charges leveled against any of the respondents, therefore, acquitted them.
60. In the case of Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773, the Apex Court has ruled that if two views are possible on the evidence adduced to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. Relevant portion of the same reads as under:-
"26. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains Crl. Appeal Nos. 254-255 of 1996 Page 31 of 32 reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt."
61. The present appeals have been preferred against acquittal of the respondents. Interference in the impugned judgment of acquittal is permitted if the learned Special Judge has ignored the material evidence or misread the material evidence or ignored the statutory provisions. The counsel for the appellant failed to point out the same.
62. Thus, I do not find any infirmity in the finding of the learned Special Judge arrived at after appreciating the testimony of the witnesses and scrutinizing the material on record. Hence, I find no reason to interfere with the impugned judgment dated 06.05.1996 acquitting the respondents.
63. Keeping in view the aforesaid discussion and the fact that the appellant/NCB has failed to point out any perversity or illegality in the impugned judgment. The appeals are dismissed accordingly, with no order as to costs.
SURESH KAIT (JUDGE) SEPTEMBER 22, 2015 Sb/RS Crl. Appeal Nos. 254-255 of 1996 Page 32 of 32