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Delhi District Court

Ncb vs . Rakesh Kumar & Ors. on 17 August, 2013

     NCB Vs. Rakesh Kumar & Ors.


IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE 
        NDPS: PATIALA HOUSE COURTS: NEW DELHI

SC No. 61/08
ID No. 02403R0481642007

Narcotics Control Bureau 
Through: Shri Manoj Kumar Aggarwal, 
Intelligence Officer,
Narcotics Control Bureau, New Delhi

                             Versus

1.      Rakesh Kumar
        S/o Sh. Kharak Singh
        R/o Gali No.8, Part­II,
        Mukund Pur, New Delhi 

2.      Sarvesh Kumar Bhatia
        S/o Sh. Dalip Chand,
        R/o A­273, 2nd floor,
        Derawal Nagar, New Delhi

3.      Julien Kanoui
        S/o Sh. Aime Kanoui
        R/o 11, Place Auguste Metivier,
        75020, Paris 20, France
        (Declared Proclaimed Offender vide order dated 19.02.2009)

4.      Gautambhai Gheewala @ NC Gheewala @ LD
        R/o A­31, Laxman Apartments,

     SC No. 61/08                                          Page No. 1 of 73
    NCB Vs. Rakesh Kumar & Ors.


      Andheri West, Mumbai
      (Declared Proclaimed Offender vide order dated 19.02.2009)

Date of Institution    : 19.06.2007
Judgment reserved on  : 24.07.2013
Date of pronouncement  : 17.08.2013

   JUDGMENT

1. The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer (IO) Sh. Manoj Kumar Aggarwal has filed the present complaint against the aforementioned accused persons u/s 20(b)

(ii)(C), 23, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act).

2. Briefly stated, the allegations against the accused persons, as asserted in the complaint, are as follows:

(a) On 31.01.2007, Sh. R.R. Kumar, Superintendent, NCB received a secret information that one Sarvesh Bhatia R/o A­273, 2nd floor, Derawal Nagar, Delhi is indulging in illicit business of huge quantity of charas and is supplying the same to oversees parties alongwith his associates one European named Julian and one Gautambhai Gheewala @ LD of Andheri Mumbai and that they had already booked one container for Canada wherein huge quantity of charas has been concealed and that the said container had left Nhawa Sheva port, Mumbai on 14.01.2007. It SC No. 61/08 Page No. 2 of 73 NCB Vs. Rakesh Kumar & Ors.

was also informed that Sarvesh Bhatia has also taken a godown at village Holambi Kalan, PS Narela on rent from one Naresh Tyagi and in the said godown, which is being looked after by Rakesh, one trusted employee of Sarvesh Bhatia, huge quantity of charas is stocked inside a container that is lying in the godown and that there is also a possibility of recovery of charas from the residential premises of Sarvesh Bhatia and his Wagon R car no. DL 9CA 5859 also usually parked near his residence on the service lane of G.T. Karnal Road, Opposite Derawal Nagar bus stop.

(b) The information was reduced into writing by Superintendent Sh. R.R. Kumar and was put up by him before Sh. A. Shankar Rao, Zonal Director, NCB who directed him to take necessary action. A search authorization was then issued by Superintendent Sh. R.R. Kumar in favour of IO N.S. Yadav to conduct search of the premises of godown at Holambi Kalan and another search authorization was issued in favour of IO Ajay Kumar to conduct the search at the residential premises of Sarvesh Bhatia at A­273, 2nd floor, Derawal Nagar, Delhi and of his car bearing no. DL 9CA 5859.

(c) Thereafter, on the basis of the search authorizations issued, two raiding teams were constituted. One raiding team, constituted by IO Ajay Kumar consisting of IO Vikas Kumar, IO Akhilesh Kumar and Hawaldar Jagdish Singh proceeded from NCB office at 09.30 hours in SC No. 61/08 Page No. 3 of 73 NCB Vs. Rakesh Kumar & Ors.

two official vehicles and reached at about 1035 hours, a service lane behind Derawal Nagar bus stand, near the house of accused Sarvesh. The second raiding team constituted by IO N.S. Yadav consisting of IO Prem Khanduri, IO Raj Kumar, Hawaldar Shiv Rattan and Farash Sudhir Nayak proceeded from NCB office at 0900 hours in two official vehicles and reached at about 1045 hours, the godown of Naresh Tyagi, Village Holambi Kalan, Delhi.

(d) The first raiding team on reaching the spot found one Wagon R car bearing no. DL 9CA 5859 parked in the service lane in question. On the request of IO Ajay Kumar, two persons namely Rampal and Ramu agreed to join the NCB team. At about 1310 hours, one person came from the entry gate of A­Block, Derawal Nagar and opened the Wagon R car and sat on the driver seat and at that moment, the NCB team stopped him and intimated him about the secret information and introduced themselves to the said person. On enquiry, the said person disclosed his name as Sarvesh Bhatia. Thereafter, a notice u/s 50 NDPS Act was served upon him and he was briefed about his legal right to be searched before a Magistrate or Gazetted officer. He however refused to exercise the said rights and wrote his refusal on the notice itself and thereafter his search was conducted by the NCB officials but nothing incriminating was recovered from his person. Thereafter, the search of his car was SC No. 61/08 Page No. 4 of 73 NCB Vs. Rakesh Kumar & Ors.

conducted and four brownish black solid slabs wrapped in khaki tape were recovered from a green polythene kept under the driver seat.

(e) On testing the said substance with the help of Field Testing Kit, it gave positive result for hashish. The total weight of the recovered substance came out to be 870 gm. Two samples of 25 gm each were drawn out from each of the four packets and were kept in separate white polythene packets and the same were further kept inside four separate white paper envelopes and were given marks A­1, A­2, B­1, B­2, C­1, C­2, D­1 and D­2. The remaining substance was kept in the same green polythene from which it was recovered which was wrapped with a white cloth and a parcel was prepared and mark AA was given to it. The parcel and the samples were duly sealed and paper slips having dated signature of the IO, both witnesses and the accused were pasted on them. The Wagon R car was also taken into possession. A test memo in triplicate was also prepared at the spot.

(f) Thereafter, the NCB team alongwith the accused Sarvesh Bhatia went to his house and on the search of the said house, Rs.6,00,000/­ alongwith certain documents were recovered and seized. The same were wrapped in a cloth and the said pullanda was given mark BB. The said pullanda was sealed and paper slip bearing the signatures of accused, IO and witnesses was also pasted on the same. A seizure memo was also SC No. 61/08 Page No. 5 of 73 NCB Vs. Rakesh Kumar & Ors.

prepared in this respect and the same was signed by the accused, IO and the witnesses.

(g) Pursuant to the summons issued to him u/s 67 NPDS Act, the accused Sarvesh appeared before the IO Ajay Kumar on 31.01.2007 and 01.02.2007 and tendered his voluntary statements u/s 67 NDPS Act. In the said statements he inter alia admitted that he had taken the godown, from which the recovery had been made, on rent at the instance of his associate Gautambhai Gheewala @ LD and that he had the knowledge that hashish had been concealed in a container and parked in the said godown and further that he had deputed his employee /driver Rakesh as a chowkidar in the said godown.

(h) Summons u/s 67 NDPS Act were also served upon both the independent witnesses who appeared before the IO and tendered their voluntary statements.

(i) IO Ajay Kumar deposited the case property with the malkhana incharge and filed seizure report u/s 57 NDPS Act before his immediate superior officers.

(j) As regards the second raiding team, on reaching the spot, on the request of IO N.S. Yadav, one public person namely Nafe Singh and one Delhi Police Constable Samarveer agreed to join the NCB team as independent witnesses.

SC No. 61/08 Page No. 6 of 73 NCB Vs. Rakesh Kumar & Ors.

(k) Thereafter, the NCB team entered the godown, the main gate of which was open and thereafter one another big iron gate on knocking was opened by one Rakesh Kumar who introduced himself as the chowkidar of the godown and an employee of Sarvesh Bhatia. The secret information was then disclosed to him and the search authorization was also showed to him. On the search of the godown, one iron container of blue colour, length about 20 feet, height about 10 feet bearing no. XCLU 2266800 was found parked in one side of the godown and on opening the door of the container, it was found vacant from inside. The floor of the said container was found fitted with wooden planks with the help of bolts and on removing one of the planks, some polythene packets were found concealed between the iron floor of the container and the wooden plank. On opening one of the packet, it was found to contain brownish black colour solid substance wrapped in yellow tape.

(l) On testing the said substance with the help of Field Testing Kit, it gave positive result for hashish. Thereafter, all the wooden planks were removed and a large number of polythene packets of four different shapes and sizes were found concealed under each plank. On testing the substance from each packet with the help of Field Testing Kit, it gave positive result for hashish. Thereafter, all the packets were grouped according to their shapes and sizes and were marked as A­1 to A­38, B­1 SC No. 61/08 Page No. 7 of 73 NCB Vs. Rakesh Kumar & Ors.

to B­3, C­1 to C­3 and D­1 to D­2. Two samples of 25 gm each were drawn out from one of the packets of each group and were kept in separate small polythene pouches and were marked as IA­IIA to ID­IID. The remaining substance was kept in four separate white plastic sacks and were marked as A, B, C and D and were tied. The sacks and the samples were duly sealed and paper slips having dated signature of the IO, both independent witnesses and the accused were pasted on the same. A test memo in triplicate was also prepared at the spot. A seizure memo was prepared at the spot and was signed by the accused, independent witnesses and the accused. The wooden planks were kept inside the container and the door of the container was locked and was sealed after pasting the paper slips bearing the dated signatures of IO, independent witnesses and the accused. Since it was not feasible to carry the container at that point of time, the container was kept inside the godown itself and the gate of the godown was locked and keys were taken by IO N.S. Yadav.

(m) Pursuant to the summons issued to him u/s 67 NDPS Act, the accused Rakesh appeared before the IO N.S. Yadav on 01.02.2007 and tendered his voluntary statement u/s 67 NDPS Act in his own handwriting wherein he inter alia admitted that he had the knowledge that the container parked in the godown, of which he was a chowkidar, SC No. 61/08 Page No. 8 of 73 NCB Vs. Rakesh Kumar & Ors.

contained hashish.

(n) Summons u/s 67 NDPS Act were also served upon both the independent witnesses who appeared before the IO and tendered their voluntary statements.

(o) IO N.S. Yadav deposited the case property with the malkhana incharge and filed seizure report u/s 57 NDPS Act to his immediate superior officers.

(p) Both the accused persons were arrested and were got medically examined and separate arrest report of both the accused persons u/s 57 NDPS Act was also filed.

(q) During the course of investigation, the samples of recovered substances were sent to CRCL for analysis and reports were received.

(r) Further, on 02.02.2007 at about 1930 hours, Superintendent Sh. R.R. Kumar received an information that Kanoui Julien, whose name had been revealed in the statement of accused Sarvesh Bhatia given u/s 67 NDPS Act, was arriving on the same day at New Delhi Railway Station from Varanasi at about 2100 hours and that he usually goes to Metropolis Restaurant, Paharganj for dinner. The said information was reduced into writing by Sh. R.R. Kumar, Superintendent and was put up before Sh. A. Shankar Rao, Zonal Director, NCB who directed him to take necessary action.

SC No. 61/08 Page No. 9 of 73 NCB Vs. Rakesh Kumar & Ors.

(s) On the basis of the secret information, a raiding team headed by IO Ajay Kumar and consisting of IO Vikas Kumar and Hawaldar Jagdish Kumar reached Metropolis Hotel, Paharganj and on the request of IO Ajay Kumar, one person namely Bhagwati Prasad joined the raiding team as an independent witness.

(t) At about 2200 hours, one French national with the similar physical appearance as mentioned in the secret information, reached the spot and IO Ajay Kumar introduced himself and the raiding team to the said person and he revealed his name as Kanoui Julien. He was also informed about the secret information and a notice u/s 50 NDPS was served upon him and he was also made aware of his right to get his search conducted before a Gazetted Officer or a Magistrate which he refused and on his search by the NCB officials, nothing incriminating was recovered and a nil recovery memo was prepared.

(u) Pursuant to the summons served upon Kanoui Julien by IO Ajay Kumar, he appeared in the office of NCB and tendered his voluntary statement u/s 67 NDPS Act in his own handwriting. The said accused was arrested and was got medically examined.

(v) Report regarding the arrest of this accused u/s 57 NDPS Act was also submitted by the IO to the Superintendent. During the course of investigation, intimation regarding the arrest of accused was sent to SC No. 61/08 Page No. 10 of 73 NCB Vs. Rakesh Kumar & Ors.

Ministry of External Affairs.

(w) During the course of further investigation, the statements of various persons were recorded and IO N.S. Yadav and Manoj Kumar also visited the premises of N.C. Gheewala at Mumbai. Thereafter, on an enquiry about the container bearing no. XCLU­2266800, it was revealed that the said container was owned by Sh. Gautam @ Nimish Gheewala, Director of M/s Balaji Shipping & Logistic Ltd. Summons were sent to Nimish Gheewala at his residence as well as at his office address at Mumbai which returned back unserved. This accused could not be arrested during investigation and as per order dated 19/2/2009 was declared proclaimed offender by the Predecessor of this Court.

3. As per the judicial record, accused Julian Kanoui, was granted interim bail on medical grounds by the Hon'ble High Court vide order dated 4/8/2008 and thereafter he absconded and was declared proclaimed offender by the Predecessor of this Court vide order 19/2/2009. Thus the trial of this case has proceeded only against the accused persons Sarvesh and Rakesh.

4. On the basis of the material on record, Ld. Predecessor of this Court had framed charges against the said accused persons vide order dated 16.03.2009, for the offences punishable u/s 20 (b) (ii) (C) read with Section 23 and 28 of the NDPS Act for having been found in possession SC No. 61/08 Page No. 11 of 73 NCB Vs. Rakesh Kumar & Ors.

of 1210 kg. of hashish at godown Holambi Kalan, under their occupation and possession and for having conspired with the proclaimed offenders Julian Kanoui and Nimesh Gheewala to export Hashish outside India. As regards accused Sarvesh Bhatia, an additional charge was framed against him u/s 20(b)(ii)(B) NDPS Act to the effect that on 31.01.2007 between 1315 to 1700 hours, 870 gm of hashish was recovered from the Wagon R car under his possession and a sum of Rs.6 lacs were recovered from his house. Both the accused persons pleaded not guilty to the said charges and claimed trial.

5. The prosecution in order to prove its case has examined 21 witnesses.

6. PW17 Sh. R.R. Kumar, Superintendent NCB, DZU has proved the secret information assertedly received by him on 31/1/2007, and the same has been exhibited as Ex.PW14/A. As per the deposition of this witness after receiving the said information he had reduced the same in writing and had also put it before PW14 Sh. A. Shankar Rao, Zonal Director who had then directed him to take necessary action. He has further deposed that pursuant to the said direction of the Zonal Director he had issued search authorization warrants, Ex.PW13/1 and Ex.PW4/1 in favour of Sh. Ajay Kumar and Sh. N.S. Yadav, respectively and had also issued seal of NARCOTICS CONTROL BUREAU DZU1 to Sh. SC No. 61/08 Page No. 12 of 73 NCB Vs. Rakesh Kumar & Ors.

Ajay Kumar and NARCOTICS CONTROL BUREAU DZU 3 to Sh. N.S. Yadav at 0835 and 0830 respectively and entries to this effect were also made by him in the seal movement register. As per this witness, he had signed on the seal movement register with respect to the handing over and return of the seals to and from the IO Sh. Ajay Kumar and Sh. N.S. Yadav. He has then further deposed that on 1/2/2007 and 2/2/2007 Sh. N.S. Yadav and on 2/2/2007 Sh. Ajay Kumar had put before him reports u/s 57 NDPS Act Ex.PW13/A regarding seizure of 1210 kg. of hashish from the container kept in the godown premises under occupation of Sarvesh Bhatia, Ex.PW13/12 arrest of accused Rakesh Kumar and Ex.PW4/18 regarding arrest of accused Sarvesh Bhatia. As per this witness, on 2/02/2007, he had forwarded the samples alongwith two test memos (copies of Test memos Ex.PW17/1 and Ex.PW4/5) to CRCL vide forwarding letter Ex.PW1/1 through PW1 Hawaldar Jagdish Chand. This witness has further deposed that on the same day, he had received an information Ex.PW14/2 and after receiving the information he had reduced the same in writing and had also put the said information before PW14 Sh. A. Shankar Rao, Zonal Director who had then directed him to take necessary action. He has then further deposed that on 5/2/2007, PW Sh. Akhilesh Mishra put before him report u/s 57 NDPS Act Ex.PW7/3 regarding arrest of Julien Kanoui and he intimated the Ministry of SC No. 61/08 Page No. 13 of 73 NCB Vs. Rakesh Kumar & Ors.

External Affairs regarding the arrest of Julien Kanoui vide Ex.PW17/2. According to this witness, he had received two reports Ex.PW3/1 and Ex.PW3/3 in separate envelopes along with remnant samples from CRCL and he had deposited the same in malkhana.

7. PW13 Sh. N.S. Yadav and PW9 P.C. Khanduri being members of the raiding team that had searched the godown in question have deposed about the search and seizure proceedings conducted at the godown at Holambi Kalan. Their depositions are more or less on similar lines and they have reiterated the assertions made in the complaint in this regard. The seizure memo deposed to have been prepared by PW13 after the seizure of 1210 kg. of hashish at the godown in question has been exhibited as Ex.PW13/2. According to this witness, he had deposited the seized drugs in malkhana with PW10 P.C. Khanduri on 1/2/2007 and had returned the seal to Superintendent, NCB. According to him, he had also submitted his execution report on the back page of search authorization which has been exhibited as Ex.PW13/7. PW13 has further deposed that in pursuance to the summons issued by him, accused Rakesh Kumar had appeared before him and had tendered his statement Ex.PW13/9. PW13 has also deposed that he had submitted seizure and arrest reports of accused Rakesh u/s 57 NDPS Act and the same have SC No. 61/08 Page No. 14 of 73 NCB Vs. Rakesh Kumar & Ors.

been exhibited as Ex.PW13/8 and Ex.PW13/12 respectively. PW9 Sh. P.C. Khanduri, apart from deposing about the search and seizure proceedings has also inter alia deposed that on 31/1/2007 he was also working as Intelligence Officer Malkhana Incharge in NCB, DZU, R.K. Puram. As per his deposition, the entire case property and test memo in triplicate and one wagon R bearing no. DL 9CA 5859 were deposited with him in the Malkhana and the entries to this effect in the Malkhana register have been exhibited as Ex.PW4/13. He has further deposed that he had also recorded the statement of Ct. Samarveer, the panch witness to the recovery at the godown. As per the deposition of this witness, he had also written a letter to MLO, State Transport Authority regarding ownership of Maruti Wagon R and the office copy of said letter has been exhibited as Ex.PW8/1 and replies received from MLO have been exhibited as Ex.PW8/2 an Ex.PW8/3. Various summons issued by the IOs PW13 and PW9 to the persons called for enquiry and who tendered their statements u/s 67 of NDPS Act have also been duly exhibited as per the deposition of these witnesses.

8. PW4 Sh. Ajay Kumar, PW16 Sh. Manoj Kumar and PW7 Akhilesh Kumar are the members of the team which had conducted the search and seizure proceedings at the residential premises of accused Sarvesh SC No. 61/08 Page No. 15 of 73 NCB Vs. Rakesh Kumar & Ors.

and had also recovered 870 gm of hashish from his Wagon R car no. DL 9CA 5859. PW4 Ajay Kumar, the main investigating and seizing officer has more or less reiterated the assertions made in the complaint with respect to the recovery made by the team headed by him. The notice u/s 50 NDPS Act deposed to have been issued by this witness to accused Sarvesh Bhatia has been exhibited as Ex.PW4/2. The seizure memo deposed to have been prepared by PW4 after the seizure of 870 gm of hashish from the car in question has been exhibited as Ex.PW4/3. The summons issued by him to the panch witnesses and the accused have been exhibited as Ex.PW4/6 to Ex.PW4/8. This witness has also deposed that after the search and seizure proceedings were completed at the residence of accused Sarvesh, all the seized property along with test memo forms, seizure form were taken into possession by him and on reaching the NCB office the case property except the Wagon R were kept by him in his Almira and seal was deposited with the seal incharge R.R. Kumar. According to deposition of this witness the case property, test memo in triplicate and the samples were deposited by him with Malkhana Incharge Sh. P.C. Khanduri only on 1/2/2007 at 5:35 hours. He has further deposed that pursuant to the summons issued by him accused Sarvesh had appeared before him on 31/1/2007 and had tendered his part statement u/s 67 NDPS Act and the said statement was SC No. 61/08 Page No. 16 of 73 NCB Vs. Rakesh Kumar & Ors.

completed by Sarvesh Bhatia on 1/2/2007 and has been exhibited as Ex.PW4/12. This witness has further deposed that he had arrested the accused Sarvesh Bhatia on 1/2/2007 at 1800 hours vide arrest memo Ex.PW2/16 and then had submitted his arrest report. This witness has further deposed that the panch witnesses had also duly appeared before him on 1/2/2007 and 5/2/2007 and had tendered their voluntary statements Ex.PW4/14 and Ex.PW4/15. PW16 Manoj Kumar has deposed that he was a part of the raiding team that had recovered 870 gm of hashish and in addition he has also deposed about the investigation done by him with respect to the ownership of Wagon R bearing no. DL9CA 5859 and the container from which the hashish had been recovered. He has also deposed about the investigation conducted by him with respect to Gautam Bhai @ Nimesh Gheewala. The summons issued by this witness to various persons called for inquiry u/s 67 NDPS Act and the statements tendered by them have been duly exhibited as per his deposition.

9. PW1 Sh. Jagdish Chand has inter alia deposed that he had taken the samples of the present case to CRCL on 2/2/2007 and had deposited the same with Sh. Bhim Sen, Lab Assistant, CRCL Pusa and the receipt issued by the said officer of CRCL has been exhibited as Ex.PW1/2. SC No. 61/08 Page No. 17 of 73 NCB Vs. Rakesh Kumar & Ors.

10.PW2 Sh. Bhim Sen, Lab Assistant, CRCL has inter alia deposed that on the instruction of Sh. S.K. Mittal, Chemical Examiner he had received eight sealed samples on 2/2/2007 alongwith two test memos and forwarding letter for which he had issued receipt Ex.PW1/2.

11. PW3 Sh. S.K. Mittal, Chemical Examiner has proved the chemical analysis reports with respect to the samples deposited with the C.R.C.L. and the same have been exhibited as Ex. PW3/1 and Ex.PW3/2. As per his deposition, the samples in question were examined by PW15 Sh. R.P. Meena and Sh. Shyam Singh under his supervision and had tested positive for Charas.

12.PW5 Jagdish Ram, daftari in NCB DZU R.K. Puram has inter alia deposed that letters dated 15/16 March, 2007 were sent to MLC State transport Authority Rajpur Road and the entry to this effect was made in dispatch register of postal dak and same has been exhibited as Ex.PW5/1. According to this witness, summons u/s 67 NDPS Act were sent to Gautam Bhai Gheewala and Manish Gheewala by registered post vide entry no. 490 and 495. The photocopy of postal receipts and the relevant entries in the dispatch register have been exhibited as Ex.PW5/3, Ex.PW5/4 and Ex.PW5/2 respectively.

SC No. 61/08 Page No. 18 of 73 NCB Vs. Rakesh Kumar & Ors.

13.PW6 Naresh Tyagi is the owner of the godown from which the recovery of hashish has been allegedly made by the investigating agency and this witness has inter alia deposed that the godown at Holambikalan was in the name of his father and that his parents used to live above the godown and earlier there existed an ice factory in the godown and that after the closing of the said factory, the said godown was leased out to accused Sarvesh Bhatia. As per the deposition of this witness, in the month of November­ December, 2006, one Devender Bansal, a property dealer had introduced the accused Sarvesh Bhatia to him and through the said property dealer, he had leased out the godown in question to accused Sarvesh Bhatia at a monthly rent of Rs.30,000/­. He has further gone on to depose that he had received an advance of Rs.30,000/­ from accused Sarvesh Bhatia and had also given the keys of the godown to him. He has also deposed that on 02.04.2010, he had gone alongwith Devender Bansal to the NCB office where his statement Ex.PW6/3 was recorded. He has also narrated inter alia that on one occasion, accused Rakesh had also come to his office to collect the keys of the godown. Though no rent agreement has been produced on record by this witness, he has stated that a draft agreement had been got prepared by him and he had handed over the same to the property dealer who was to return it after SC No. 61/08 Page No. 19 of 73 NCB Vs. Rakesh Kumar & Ors.

getting the signature of the accused but that the same was not returned to him. This witness has also categorically deposed that on the date of raid that is in January, 2007 it was the accused who had the possession of the godown in question.

14. PW8 Pradeep Anand, MLO South West district, Janak Puri has placed on record the registration records with respect to vehicle no. DL 9CA 5859. As per the records produced by him, one Vikas Babbar S/o Dharamveer Babbar was the last registered owner of the said vehicle and as per the sale certificate issued by the dealer of the said vehicle, copy of which was produced by this witness, the vehicle in question is a Santro car and not Wagon R. The records produced by this witness were duly exhibited as per his deposition.

15.PW10 Girdhar Lal, Clerk from Mumbai Port Trust has inter alia deposed that as per the records maintained by the Mumbai Port Trust, vessel 'Royal Sharawati' container no. XCLU 2266800 had reached Mumbai Port at 1745 hours on 31.08.2005 and had made an exit therefrom at 1100 hours on 11.09.2005 by train.

16.PW11 Kalpesh, an employee of the Container Corporation of India Limited has inter alia deposed that he has been working as an Executive with the said company from 1996 and as per the records maintained with SC No. 61/08 Page No. 20 of 73 NCB Vs. Rakesh Kumar & Ors.

the said company, in response to a letter of NCB dated 03.04.2007 Ex.PW11/2 vide a letter dated 10.04.2007 Ex.PW11/3, Sh. Chaudhary, Chief Manager of the Delhi office of Container Corporation of India Limited had informed the NCB that as per the inland way bill Ex.PW11/4 dated 13.09.2005, the container in question was trans shipped to Mumbai Port Trust via Barge for onwards movement by rail to ICD, Tughlakabad, Delhi.

17. PW12 Vikas Babbar has inter alia deposed that he was the owner of Santro car no. DL 9CA 5859 and had sold the same to one Mohd. Ahmed of Jammu on 25.07.2006 for a sum of Rs.60,000/­. He has placed on record the copies of the sale certificate and other documents, etc. He has also inter alia deposed that he was summoned by NCB vide summon Ex.PW12/6 pursuant to which he had appeared in NCB office on 23.07.2005 and had tendered his statement Ex.PW12/7 before them.

18. PW18 Police Constable Samarveer, the panch witness who is stated to have witnessed the entire recovery proceedings at Godown of Naresh Tyagi, Village Holambi Kalan, Delhi, has supported the version put forward by the Investigating Officer. He has also deposed that in pursuance of the summons Ex.PW13/5 served upon him he had appeared in the office of the NCB and had tendered his statement Ex.PW9/1. SC No. 61/08 Page No. 21 of 73 NCB Vs. Rakesh Kumar & Ors.

19.PW19 Tehni Chhabra has inter alia deposed that in the month of April­ May, 2007, he was called by NCB officials and that they had enquired from him about the car bearing no. DL 9CA 5859. As per the deposition of this witness, he had informed the NCB officials that the said vehicle was registered in the name of one A.N. Batra who had further sold it to Vikas Babbar and that it was accused Sarvesh Bhatia who had provided him the blank papers for the purpose of selling the said car. He has further deposed that he had then handed over the said papers to Vikas Babbar who then had got the said vehicle transferred in his name.

20.PW20 Rahul Ravi, an employee of M/s Logistics Company has merely inter alia deposed that he had received a summon Ex.PW16/15 from the NCB pursuant to which he had tendered his self written statement Ex.PW16/16 before the NCB office on 24.04.2007 and that he had also tendered certain documents Ex.PW16/17 (colly) to the NCB.

21. PW21 Ramesh has inter alia deposed that he used to work with one Virender Kumar Syal, Proprietor of Davis Cornet International at Paschim Vihar as a Computer Operator and that Virender Kumar Syal had introduced him to accused Sarvesh Bhatia. He has further deposed that accused Sarvesh Bhatia had given them some wooden furniture for export but that since the furniture given by him was antique, the Custom SC No. 61/08 Page No. 22 of 73 NCB Vs. Rakesh Kumar & Ors.

Department had asked to obtain a NOC from Archaeological Survey of India. According to him, he had tendered a voluntary statement, Ex.PW13/14 containing the aforementioned facts, before the NCB officials on receiving a summon, Ex.PW9/2.

22.The entire aforementioned evidence was put to the accused persons and their statements were recorded u/s 313 CrPC. Both the accused persons in their statements have inter alia denied their complicity in the present case. Accused Rakesh has inter alia stated that he was not apprehended by the NCB officials from the godown in question and that he had infact being picked up by them from outside the residential premises of accused Sarvesh Bhatia. According to this witness he had worked as a driver for accused Sarvesh Bhatia for 3­4 years but that he had left his services in November, 2006 and that on 30/1/2007 at about 3:00­4:00 PM Sarvesh Bhatia had called him up on his mobile and had requested him that since birthday of his son was to be celebrated on 2/2/2007 and some of his relatives were coming from Mumbai, he should come on 31/1/2007 to take the said relatives in and around Delhi and had further told him that he will adequately pay him for 2­3 days. This accused has further stated that on 31/1/2007 at about 8:00 AM accused Sarvesh Bhatia again called him to confirm whether he is coming to his house or not and that at about 9:00­9:30 AM he reached near the house of accused Sarvesh SC No. 61/08 Page No. 23 of 73 NCB Vs. Rakesh Kumar & Ors.

Bhatia and gave him a call that he was standing by his house and it was at this stage that 3­4 persons came and asked him about his identity. He has further stated that at this time he was cleaning the car of accused Sarvesh Bhatia and the said persons informed him that they are from Delhi Police and there is some accident case is pending against the vehicle that he was cleaning and that he should meet their senior who was sitting in another vehicle. This accused has further stated that thereafter he was taken to a vehicle Tavera which was parked nearby and that three persons were sitting inside the said vehicle and that the names of two of the said persons were later on revealed to him as P.C. Khanduri and R.K. Yadav and that the said officials then started questioning him about some English man and Gautam Bhai Gheewala. As per this accused, despite his telling the said officials that he does not know anything about the said persons, the two officers told him that they knew that he was working for accused Sarvesh Bhatia and was looking after his godown, where huge quantity of charas and ganja was stored and that he was also helping accused Sarvesh Bhatia in his business alongwith one Gautam Bhai Gheewala and one English man. As per this accused, he was then handcuffed and made to sit in a Tavera vehicle for about 2 hours and then was taken to the car parking area of NCB office and made to sit there till evening. He has further narrated that in the evening, SC No. 61/08 Page No. 24 of 73 NCB Vs. Rakesh Kumar & Ors.

he was taken to Metro station Pahargunj on the pretext that he had to identify some English man but that no English Man came to Paharganj on this date and that he was taken back to NCB office at about 11­11.30 PM. According to this accused, it is only then that he met accused Sarvesh Bhatia who was also sitting in the NCB office and that both of them were then put in the NCB lockup and that one employee of NCB namely Shiv Rattan came to tell him that he has to unload bags from a tempo. This accused has alleged that he was then made to unload bags from a tempo and then carry the said bags to the fourth floor of the NCB office and he was made to repeat 5­7 rounds in this regard. He has also deposed that he was continuously being asked about some godown and for the entire day of 01.02.2007, he was kept in a lockup and that on 02.02.2007, he was told to write a statement as per the dictation of NCB officials who had threatened him that in case he does not do as he is told, 8­10 Kg of charas will be planted at his residence and his wife and children will also be arrested.

23.As regards accused Sarvesh Bhatia, this accused in his statement u/s 313 Cr.PC has inter alia taken a plea that he has been falsely implicated in this case at the behest of Gautam Bhai Gheewala with whom he had business transactions. As per this accused, he had a business of car and property dealing and also had a factory in the name of Satyam Stamping SC No. 61/08 Page No. 25 of 73 NCB Vs. Rakesh Kumar & Ors.

Industries which he had set up for manufacturing Electrical laminations and further he used purchase steel coils from Gautam Bhai Gheewala who was an importer of steel and Cargo clearing agent. This accused has further stated that in January, 2006, he had some dispute with Gautam Bhai Gheewala with respect to a 50 ton steel coils consignment and that he had inspected the said consignment at the Mumbai warehouse of Gautam Bhai Gheewala and had approved the same for delivery to him in Delhi. According to this accused, he had paid Rs.10 lacs to Gautam Bhai Gheewala for this consignment however, the consignment that was delivered to him in Delhi was not the one that he had approved and that he was delivered defective material by Gautam Bhai Gheewala for which he received many complaints from his customers. As per this accused, he then demanded that Gautam Bhai Gheewala should return back the amount of consignment to him or that he should deliver the consignment as per his specifications and of better quality. As per this accused, he had suffered a loss of Rs.5­6 lacs due to the faulty consignment but Gautam Bhai Gheewala refused to accede to his requests and threatened him that he has many contacts and that he will get him fixed and it is due to this reason that this accused suspects that it is at the behest of Gautam Bhai Gheewala that he has been implicated in this case. As per this accused, on 31/1/2007, 4­5 persons came to his house at about 11:30 AM and SC No. 61/08 Page No. 26 of 73 NCB Vs. Rakesh Kumar & Ors.

represented themselves to be Income Tax officials and after searching his house and recovering Rs.6 lakhs they took him away from him at about 12.30­01.00 PM on the pretext that he had to identify one person by the name of Julian in Pahargunj. According to this accused despite his telling them that he did not know any such person, they forcibly took him to Pahargunj and the said officials then handed him over to one other official namely N.S. Yadav near Imperial Picture Hall. As per the accused, the said official then took him to India Gate, Taj Hotel Parking, Sarojini Nagar and finally to Safdarjung Enclave and that during the entire time from 01.15­02.00 PM on 31.01.2007 till about 11.00­11.30 PM, N.S. Yadav was alongwith him. This accused has further stated that they had tea in Sarojini Nagar market and had dinner at Rajender Ka Dhaba near Kamal Picture Hall, Safdarjung Enclave and that it is during this time that N.S. Yadav told him that he (the accused) had been called by the Director, NCB and that he should meet him and reach at a settlement. As per this accused, the said official further told him that some contraband had been recovered from a godown that belonged to him and demanded Rs. 1 Crore from him and threatened that in case the said sum is not paid, they will falsely implicate him. As per this accused, despite him telling him that he had nothing to do with the godown in question, he was taken to NCB office at about 11.00­11.30 PM and that SC No. 61/08 Page No. 27 of 73 NCB Vs. Rakesh Kumar & Ors.

thereafter he remained in the custody of NCB officials till 02.02.2007 during which time they pressurized and threatened him and according to the accused the CCTV coverage can show that he was taken to NCB office at 11.00­11.30 PM by N.S. Yadav. This accused has further stated that the NCB officials also made him to sign some blank documents and other documents and made him write various documents under pressure and coercion and that nothing was recovered from him or at his instance. He has further stated that he had given a retraction statement on 15.02.2007 before the Court.

24.No defence evidence was led on behalf of the accused persons and after the statements of accused persons were recorded u/s 313 Cr.PC, Ld. SPP for NCB Sh. Rajesh Manchanda and Ld. Defence counsels Sh. Sanjeev Kumar and Sh. Manoj Kumar advanced final arguments before this court and written submissions have also been filed on record by the said Ld. Counsels.

25.On behalf of the prosecution, Ld. SPP for the NCB has submitted that the deposition of the prosecution witnesses and the documentary evidence proved on record sufficiently prove that the accused persons were apprehended and hashish was recovered in the manner as alleged by the prosecution. According to Ld. SPP, the fact that the independent witnesses have witnessed the entire recovery proceedings and have SC No. 61/08 Page No. 28 of 73 NCB Vs. Rakesh Kumar & Ors.

deposed facts with respect to the same is sufficient to hold that the prosecution has been able to prove its case against the accused persons beyond all reasonable doubts. He has also pointed out that the statements tendered by the accused persons u/s 67 NDPS Act also prove their complicity in the present case. He has also submitted that the prosecution has brought sufficient evidence on record to prove that accused Sarvesh had acted in conspiracy with accused Julien and accused Gautambhai Gheewala @ LD.

26.On behalf of accused Sarvesh Bhatia, Ld. Defence counsel Sh. Sanjeev Kumar has inter alia contended that the entire version put forward by the prosecution, namely that two raiding teams had simultaneously searched the premises of the accused Sarvesh and that of a godown at Holambikalan, is completely concocted and false. It is his submission that if this was infact true then in the natural course of human conduct and in this age of technology/availability of mobile phones, both the raiding teams would have been aware as to what the other raiding team had discovered. He has pointed out that the prosecution witnesses have however taken an unacceptable stand in their evidence that the raiding teams were not aware of each other's activities and this stand according to him is sufficient to lead to an inference that the version of the prosecution is incorrect. It is also been contended by the Ld. Defence SC No. 61/08 Page No. 29 of 73 NCB Vs. Rakesh Kumar & Ors.

counsel that even otherwise the evidence produced on record by the members of the two raiding teams is hardly sufficient to hold the accused Sarvesh guilty of any offence of possessing hashish. It is the submission of the Ld. Defence counsel that the prosecution has miserably failed to prove that the godown from which the charas was allegedly recovered was in the exclusive possession of accused Sarvesh. He has submitted that no rent agreement has been proved on record to show that the accused Sarvesh was the tenant of the said godown and that he had been given the said premises by PW6 Naresh Tyagi. According to Ld. Defence counsel, the testimony of PW6 Naresh Tyagi is not at all credible to hold that the godown in question was given on rent to accused Sarvesh. The testimony of this witness is being challenged by the defence on the ground that the statement of this witness was recorded by NCB two months after the alleged date of the incident and that this person is a bad character (BC) of the area and that at the instance of NCB ,he was arrested on the night of 31.01.2007 by the police by exercising its discretion u/s 107/151 Cr.PC in order to pressurize him to give a statement that the godown had been leased out by him to accused Sarvesh. It has been pointed out on behalf of the defence that this witness in his cross examination has admitted that he was threatened with the prospect of arrest by the NCB officials and and that though SC No. 61/08 Page No. 30 of 73 NCB Vs. Rakesh Kumar & Ors.

there was a draft rent agreement prepared and the same was in the possession of the property dealer, one Devender Bansal who had accompanied him to the NCB office on the day he tendered his statement u/s 67 NDPS Act, the NCB officials had never asked for the same. It is the submission of Ld. Defence Counsel that had this agreement been produced by the investigating agency it would have proved that the premises had not been taken on rent by the accused Sarvesh. As regards the alleged recovery of charas from the Wagon R parked in front of the house of accused Sarvesh, the contention is that the said recovery was never made and that it is only when the investigating agency realised that they may not have a very strong case against accused Sarvesh with respect to the hashish recovered in the godown, did they come up with a plan to show recovery of some contraband from a car parked outside his house. In support of this contention, reliance has been placed upon the malkhana register produced on record by the prosecution which reveals that the deposit of the hashish allegedly recovered from the Wagon R, was made in the malkhana only after the recovery of hashish from the godown was deposited in the malkhana on 01.02.2007. It is also the contention of the Ld. Defence counsel that the accused is also entitled to be acquitted as the prosecution has failed to produce the case property in sealed condition and therefore it cannot be ruled out that there has been a SC No. 61/08 Page No. 31 of 73 NCB Vs. Rakesh Kumar & Ors.

tampering of case property.

27. On behalf of the accused Rakesh, it has been submitted by counsel Sh. Manoj Kumar that the prosecution has miserably failed to prove that this accused had anything to do with the charas that has been allegedly recovered at the godown. Ld. Defence counsel has contended that as this accused has narrated in his statement u/s 313 Cr.PC, he had only worked as a driver for accused Sarvesh for a short period of time and that he was neither the chowkidar of the godown from where the charas was recovered nor he in any manner had aided or abetted accused Sarvesh in acquiring, possessing or storing the charas in the godown in question. It has also been pointed out that the recovery of the charas in godown cannot be believed for one of the panch witnesses has turned hostile in the court and the other panch witness Ct. Samarveer has been proved by the defence to have been lying. He has pointed out that though this Constable had deposed on oath that he was on patrolling on the date of alleged raid in the godown, in reply to an application filed under RTI Act, the concerned authorities have informed that this Constable was not on patrolling duty on the date of the alleged raid. Both the Ld. Defence counsels have also contended that the statements given by the accused persons u/s 67 NDPS Act cannot be relied upon to determine their guilt for both the accused persons have retracted their statements on the SC No. 61/08 Page No. 32 of 73 NCB Vs. Rakesh Kumar & Ors.

earliest available opportunity. In support of their contentions Ld. Defence Counsels have relied upon the following judgments:

● Noor Aga vs. State of Punjab and Anr. 2008 Drug Cases (Narcotics) 352. ● Abdul Rashid Ibrahim Mansuri vs. State of Gujarat 2000 (1) JCC (SC) 287.

28.In rebuttal, Ld. SPP has contended that the statements tendered by the accused persons were their voluntary statements and that the mere retraction of the said statements does not prove that the same were not given voluntarily by the accused persons. Ld. SPP has also vehemently contended that huge quantity of charas i.e. 1210 Kg has been recovered from the godown belonging to the accused Sarvesh and that present is not a case where the version of the prosecution is concocted or false, for there is no possibility for the investigating agency to have planted such a huge quantity of charas upon the accused. In particular, it has been contended by the Ld. SPP that the fact that there was no communication between the two raiding parties does not lead to any inference that the prosecuting agency has acted with any manner. He has pointed out that the recovery made at the godown was so huge that it took the whole of the night for the IO N.S. Yadav to complete the seizure proceedings and therefore it is only when he arrived in the NCB office on the next morning, that he came to know about the arrest of accused Sarvesh. As regards the proof of the exclusive possession of accused Sarvesh with SC No. 61/08 Page No. 33 of 73 NCB Vs. Rakesh Kumar & Ors.

respect to the godown in question, the argument of Ld. SPP is that the accused Sarvesh has admitted the fact that he has taken the premises on rent and therefore the accused cannot take any benefit from the non filing of the rent agreement on record. As regards the presence of the Ct. Samarveer at the spot not being reflected in the records of his department, the contention is that the lapse on behalf of this Constable cannot be a ground to doubt the version of the complainant that he had independently witnessed the raid of the godown in question. In support of his contentions Ld. SPP has relied upon the following judgments:

● Ram Singh Vs. Central Bureau of Investigation (2011) 11 SCC 347 ● Kanhaiyalal Vs. Union of India (2008) 4 SCC 668 ● M Prabhulal Vs. The Assistant Director, Directorate of Revenue Intelligence 2003 (8) AD (SC) 247 ● Raj Kumar Karwal Vs. Union of India & Others (1990) 2 SCC 409 ● Siddiqua Vs. NCB 2009 (93) DRJ 813 ● Gita Lama Tamang Vs. State (GNCT) of Delhi 2007 (93) DRJ 813 ● Custom Vs. Konan Jeans (2012) 186 DLT 379 ● Rekha vs. State NCT of Delhi 159 (2009) DLT 40

29.I have carefully considered the submissions made by both the Ld. Counsels and have gone through the entire record very carefully. As narrated hereinabove, as per the version of the prosecution, there were two teams of NCB officials constituted to conduct raids during the investigation in the present case. One team consisting of PW13 N.S. Yadav, PW9 Prem Khanduri, Raj Kumar, Shiv Rattan Hawaldar and SC No. 61/08 Page No. 34 of 73 NCB Vs. Rakesh Kumar & Ors.

Sudhir Nayak, Farash was assertedly sent to the godown at Holambi Kalan, PS Narela, Delhi and the other team consisting of PW4 Ajay Kumar, Vikas Kumar, PW7 Akhilesh Kumar, PW16 Manoj Kumar, Hawaldar Jagdish Chand, Malkeet Singh and Rajesh Kumar, drivers had gone to the residential premises of accused Sarvesh Bhatia at A­272, 2nd floor, Derawal Nagar, Delhi. Further as per the version of the prosecution there were two recoveries of hashish made ­ one of about 1210 kg of hashish from a container kept in a godown at Holambikalan alleged to be in the exclusive possession of the accused Sarvesh and the second recovery of about 870 gm from a Wagon R car parked in a service lane by the house of the said accused. As regards the recovery at the godown, to substantiate its allegations, the prosecution has produced four witnesses in the witness box ­ two of them being NCB officials namely PW9 P.C. Khanduri and PW13 N.S. Yadav, one of them being a beat constable of the area, PW10 Ct. Samarveer and the fourth being the landlord of the godown namely, PW6 Naresh Tyagi. According to the prosecution, the three members of the raiding team i.e. PW9, PW10 and PW13 have sufficiently proved the recovery of 1210 kg. of hashish from the godown in question and the testimony of PW6 Naresh Tyagi has proved that it was accused Sarvesh who was the tenant of the said godown and was thus in conscious possession of the container parked in SC No. 61/08 Page No. 35 of 73 NCB Vs. Rakesh Kumar & Ors.

the godown and the hashish recovered therefrom. It has been pointed out by Ld. SPP that the said landlord, PW6 Naresh Tyagi has specifically deposed that it was accused Sarvesh who had come to his office in December, 2006 and had taken the godown on rent from him at the rate of Rs.30,000/­ PM and had also paid one month rent in advance to him. As narrated hereinabove, in para 26 of this judgment, the credibility of this witness is being questioned on behalf of the defence, due to his criminal antecedents and the manner in which this witness was examined u/s 67 NDPS Act by the NCB officials, two months after the date of the alleged incident and the failure of the investigating agency to produce on record the draft rent agreement asserted by this witness, to have been prepared.

30.Ordinarily the aforementioned circumstances pointed out on behalf of the defence would have been sufficient for this Court to have doubted the testimony of PW6 Naresh, however this Court finds that the testimony of this witness can be relied upon in view of the other attendant circumstances that have been proved on record. The first and foremost circumstance is the presence of accused Rakesh at godown in question and his informing the NCB officials at the time of the raid itself, that he is a chowkidar of accused Sarvesh. Though Ld. Defence Counsels have contended that this court must not believe the version of the prosecution SC No. 61/08 Page No. 36 of 73 NCB Vs. Rakesh Kumar & Ors.

about the presence of accused Rakesh at the godown and his statement that he was an employee of accused Sarvesh, this Court finds no infirmity in this regard in the evidence of the official witnesses, who were a part of the raiding team that had conducted search and seizure proceedings in the godown in question. As narrated hereinabove two members of the said raiding team have stepped into the witness box namely, N.S. Yadav and P.C. Khanduri. Both of them have categorically deposed that the inner gate of the godown was opened by accused Rakesh and he had informed the raiding team that the godown belonged to accused Sarvesh and that he was his chowkidar. It is to be noted that in the cross examination of PW9 P.C. Khanduri, not a single suggestion has been made to him that his deposition in this regard is incorrect or false or that accused Rakesh was not found present at the godown in question. It is also to be noted that Ct. Samarveer, a police official of the local PS has also confirmed the presence of accused Rakesh at the godown at the time of the raid. Though it has been contended on behalf of the defence that this Constable being in the Delhi Police, at the instance of P.C. Khanduri who was also a Delhi Police official on deputation to NCB, has deposed falsely, not a single suggestion has been put to P.C.Khanduri in this respect. Further though the presence of Ct. Samarveer at the spot has also been questioned by contending that as per a reply filed to an SC No. 61/08 Page No. 37 of 73 NCB Vs. Rakesh Kumar & Ors.

application under the RTI Act, this Constable has not been shown to be on patrolling duty, it is a matter of record that the said asserted reply received under the RTI Act has not been filed before the Court till date nor have any of the prosecution witnesses including Ct. Samarveer been confronted with a copy of the same, during cross examination. In such circumstances the defence cannot be allowed to contend that this Court must not believe the depositions of Constable Samarveer and the NCB officials. In a judgment delivered by Hon'ble Delhi High Court in a case titled as Bilal Ahmed Vs. State 2011(1) JCC (Narcotics) 27 it has been observed that it is a settled legal principle that if the testimony of a witness has to be discredited, the relevant fact should be put to him so that he gets the chance to offer an explanation. It was affirmed by the Hon'ble Delhi High Court that it is absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross­examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, to argue that he is a witness unworthy of credit.

31. In the present case, not only has the defence failed to put its asserted case any of the material witnesses, it has also not brought evidence, which it SC No. 61/08 Page No. 38 of 73 NCB Vs. Rakesh Kumar & Ors.

could easily have to prove its version. As narrated hereinabove, the accused Rajesh in his statement tendered u/s 313 Cr.PC has taken a plea that he was picked up from outside the house of accused Sarvesh and that both he and accused Sarvesh had telephonic conversation with each other on mobile phones, while the accused Rakesh was standing outside the house of accused Sarvesh. However, neither the phone numbers used by the accused persons in this regard, have been divulged to the court nor the accused persons have chosen to summon the call detail records of the said mobile numbers to support their case. Infact as per the jamatalashi memo of accused Rakesh proved on record, no mobile phone was recovered from his possession and the Ld. Counsel for accused Rakesh has suggested to the prosecution witnesses that this accused was picked up from his own residence.

32.It is also relevant to mention herein that though in the written submissions filed by Ld. Counsel Sh. Manoj Sharma, on behalf of accused Rakesh, it has been submitted that the panch witness to the search and seizure proceedings, one Nafe Singh has turned hostile, as per record, this witness infact never stepped into the witness box for his address could not be traced out by the process server. Further as regards the contention of the defence that the prosecution has not proved that accused Rakesh was an employee of accused Sarvesh Bhatia by SC No. 61/08 Page No. 39 of 73 NCB Vs. Rakesh Kumar & Ors.

producing any documentary evidence, this Court has to take into account that ordinarily a person employed as a chowkidar would not have been issued an appointment letter, more so when as per the own case of the defence, the accused Rakesh in the present case had already worked as a driver for accused Sarvesh Bhatia.

33.It is also come to the notice of this Court that the deposition of PW6 Naresh Tyagi that he had given the premises on rent to accused Sarvesh Bhatia is also corroborated by the suggestions put to him by the accused himself (as per record this witness appears to have been cross examined by the accused himself for the presence of his counsel is neither noted in the ordersheet dated 07.04.2010 nor in the cross­examination sheet, by the Ld. Predecessor of this court) and the suggestions put by his Counsel to PW4 Ajay Kumar. During the cross examination of PW4 Ajay Kumar, (the NCB official who had recorded the statement of accused Sarvesh u/s 67 NDPS Act), it was put to him that the accused had informed him that he had business transactions with one Gautambhai Gheewala @ LD of Bombay and that on his request he (i.e. the accused Sarvesh) had arranged the godown for the said Gautambhai Gheewala @ LD and that the rent agreement was to be made in the name of one Sharmaji who was a man of Gautambhai Gheewala @ LD and the rent was fixed for Rs. 30,000/­ PM. The said suggestions not only corroborate a part of the SC No. 61/08 Page No. 40 of 73 NCB Vs. Rakesh Kumar & Ors.

statement of the accused Sarvesh tendered under Section 67 of the NDPS Act, Ex.PW4/12 wherein the aforementioned facts of having arranged the godown from Naresh Tyagi, have been recorded by the accused Sarvesh in his own handwriting, but also clearly corroborate the testimony of PW6 Naresh Tyagi that it was accused Sarvesh who had contacted him and that the rent of the godown was fixed at Rs.30,000/­ PM. Though this Court is conscious of the fact that in a criminal trial a single suggestion thrown by the Defence Counsel to a prosecution witness does not amount to an admission on part of the accused, it is to be noted that the accused himself also has put such suggestions to PW6 Naresh Tyagi. In a judgment dated 18.03.2013 pronounced by Hon'ble Delhi High Court, in a case titled as Razzi Ahmed @ Razzi Vs. State (Crl. Appeal No. 302/2004) took note of the suggestions put by the defence counsel to a prosecutrix that she had been a consenting party to the intercourse and held that such suggestions imply that the accused was not disputing the having of sexual intercourse with the prosecutrix. In the present case also, as narrated hereinabove, it is the own case of the accused Sarvesh put to PW4 and PW6 that he had got arranged the godown for accused Gautambhai Gheewala @ LD which clearly corroborates the deposition of PW6 that he was approached for the lease of the godown by the SC No. 61/08 Page No. 41 of 73 NCB Vs. Rakesh Kumar & Ors.

accused Sarvesh. Ld. Defence counsel Sh. Sanjeev Kumar at the time of final arguments did not seek to challenge the said suggestions and merely took a stand that he was not the counsel of the accused at the time of cross­examination of PW4 and PW6 and therefore cannot explain the putting of such suggestions to PW4 and PW6.

34.This court is also of the considered opinion that merely because Naresh Tyagi is a bad character of the area it is not to be held that he would have deposed false facts in the Court only at the instance of the NCB officials. If he had actually given the premises on rent to Gautambhai Gheewala @ LD, there would have been no reason for him not to state so for neither he nor the NCB officials can be presumed to be acting at the behest of Gautambhai Gheewala @ LD to falsely implicate the accused Sarvesh. This court is mindful of the fact that a public witness, though wholly truthful, is liable to be overawed by the court atmosphere and by the piercing cross­examination that he is subjected to and out of nervousness may fill up details from imagination on the spur of the moment, on account of the fear of looking foolish or being disbelieved and it is for this reason that this court is inclined to accept that this witness has stated an incorrect fact before this court that a draft rent agreement was prepared between him and the accused Sarvesh, for he had never stated such a fact before the NCB officials in his statement given u/s 67 NDPS SC No. 61/08 Page No. 42 of 73 NCB Vs. Rakesh Kumar & Ors.

Act and the said wrong deposition in no way belies his remaining entire deposition. Further though this Court completely agrees with the defence that the conduct of the investigating officials in not recording the statement of this witness for two months is a serious lapse on their behalf, it is well settled law that a wrong committed by an investigating officer should not be made a ground to doubt the testimony of a public witness or to doubt the entire case of the prosecution. If in the present case the investigating officers were insisting for almost two months that PW6 Naresh Tyagi, the landlord of the godown in question must produce a rent agreement with respect to the godown in question to presumably strengthen their case, and which could also be the reason that this witness chose to state before the court that a draft agreement was got prepared, the same speaks about the legal acumen of the investigating officials and does not lead to the conclusion that PW6 Naresh Tyagi has given a completely false deposition before this Court. The investigating officials should have taken into account that in villages many landlords do not, for various reasons, insist upon the execution of a written lease agreement and therefore they should not have insisted Naresh Tyagi to produce a rent agreement with respect to godown in village Holambikalan. In State of Karnataka Vs. K. Yarappa Reddy, AIR SC No. 61/08 Page No. 43 of 73 NCB Vs. Rakesh Kumar & Ors.

2000 SC 185, the Hon'ble Supreme Court has made the following observations:

"It is well­nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating offices ruling the roost. The court must have predominance and pre­eminence in criminal trials over the action taken by the investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."

35.Thus in view of the discussion hereinabove, the deposition of PW6 Naresh Tyagi is found corroborated by the other attendant circumstances on record and therefore this Court does not wish to disbelieve the same only because the investigating officials have failed to satisfactorily explain as to why the statement of this witness was not recorded for almost two months. In the considered opinion of this Court the fact that the godown in question was being looked after/guarded by accused Rakesh, an employee of accused Sarvesh clearly proves that accused Sarvesh was in possession of the same. As regards the recovery of 1210 SC No. 61/08 Page No. 44 of 73 NCB Vs. Rakesh Kumar & Ors.

kg. of hashish from the said godown, no material has been brought on record by the defence to discredit the evidence of the NCB officials who had raided the godown in question. The evidence of the said members of the raiding team does not suffer from any infirmity. The contention of the Ld. Defence Counsel Sh. Sanjeev that since the two raiding teams have admitted that they were not in contact with each other, the said admission is sufficient to lead to an inference that the entire version of the prosecution is incorrect, cannot be accepted. Merely because the members of the raiding team who had apprehended accused Sarvesh from his residence did not inform the other raiding team about the said apprehension is no ground to hold that no raid took place at the godown. Further the fact that PW9 P.C. Khanduri could not give in detail the manner in which the samples and the property were separately sealed in the godown is not a ground to doubt the testimony of the official witnesses. It is to be taken note that the recovery of hashish from the godown was huge i.e. almost 1210 kg. and the sampling and the seizure proceedings took many hours to complete and in such circumstances the members of the raiding team are not expected to remember each and every detail of the procedure. It is also to be taken note of that PW13 N.S. Yadav, the main seizing officer has in detail explained the said proceedings and there is no infirmity pointed out in his deposition with SC No. 61/08 Page No. 45 of 73 NCB Vs. Rakesh Kumar & Ors.

respect to the sampling or seizure procedure. The contention of Ld. Defence counsel Sh. Sanjeev Kumar that some of the bags containing the contraband exhibited in court were found to be tampered with, is also absolutely without any basis. Admittedly the case property consisting of 46 bags was produced in court over a period of four days and it is only in few of the bags that there was a minor variation of weight found between the weight of the bag mentioned in the panchnama and its weight taken in the court. This court cannot ignore the fact that the recovery being huge and the weighing machine used at the spot being different from the one used in the court, there could have crept some discrepancies between the weight of the bags taken at the spot and that taken in the court. In the case titled as Rekha Vs. State NCT of Delhi (supra­ a judgment relied upon by the Ld. SPP), the Hon'ble Delhi High Court also took into account the huge amount of contraband recovered and held that the huge quantity of the contraband recovered rules out the false implication of the accused. As noted hereinabove in the present case also the recovery at the godown is huge and therefore there is no possibility of the NCB officials having planted such a huge amount of hashish on the accused persons to falsely implicate them. Thus in the considered opinion of this court the prosecution has been able to prove that not only 1210 Kg of SC No. 61/08 Page No. 46 of 73 NCB Vs. Rakesh Kumar & Ors.

hashish was recovered from a container lying in the godown in question but further that the said container was in the conscious possession of the accused Sarvesh, he being the tenant of the godown wherein it was found parked.

36.The question now therefore which remains to be examined is whether the accused can be then heard to contend that he had no knowledge of the contents of the said container. The provisions of Section 35 and 54 of the NDPS Act make it clear that once an accused has been found in possession of any contraband of the nature covered within the purview of the NDPS Act, it shall be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act with the culpable mental state required for committing such an offence. The said statutory provisions make it clear that it is for the accused to prove the fact that he had no such mental state with respect to the offence he has been charged with. In as far back as 1973, the Hon'ble Supreme Court while dealing with provisions of section 9 and 10 of the Opium Act, 1878 (which are analogous to provisions of section 35 and 54 of the NDPS Act) held that the prosecution has to only prove that the accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it and it is not necessary for SC No. 61/08 Page No. 47 of 73 NCB Vs. Rakesh Kumar & Ors.

the prosecution to show infact that he had actual knowledge of that which he had. The Hon'ble Supreme Court observed that provisions of section 10 (analogous to provisions of section 54 of the NDPS Act) would become otiose if it were held that prosecution must prove conscious possession before it can resort to the presumption envisaged in the section. More recently, the Hon'ble Supreme Court in its judgment pronounced in a case titled as Madan Lal and Ors Vs. State of HP reported in (2003) 7SCC 465 while considering the provisions of section 35 and 54 of the NDPS Act has clearly held that once the possession of contraband is established, the person who claims that it was not in his conscious possession, has to establish it, because how he came to be in possession is within his special knowledge. It was observed by the Hon'ble Supreme Court in para 27 of the said judgment that Section 35 of the Act gives a statutory recognition of this position because of presumption available in law and similar is the position in terms of section 54 where also presumption is available to be drawn from possession of illicit articles. The aforementioned judicial dicta makes it clear that in the present case it was for the accused Sarvesh Bhatia in this case to prove that he had no knowledge that the container in question contained hashish. As laid down by the Hon'ble Supreme Court in SC No. 61/08 Page No. 48 of 73 NCB Vs. Rakesh Kumar & Ors.

another case titled as Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat 2000(1) JCC (SC)287 an accused can discharge the burden of proof cast upon him u/s 35 and 54 of the NDPS Act by either relying on the materials available in the prosecution evidence or by eliciting answers from prosecution witnesses through cross­examination to dispel any such doubt or by adducing other evidence when he is called upon to enter on his defence. In the present case however a careful scrutiny of the entire evidence clearly reveals that the accused Sarvesh has failed to discharge the said onus by any of the aforementioned means and has failed to prove his defence even by the standards of preponderance of probability. It is relevant to mention herein that when the statement of this accused was recorded u/s 313 CrPC on 5/3/2012 this accused had informed the Court that it is at the behest of Gautambhai Gheewala @ LD that he has been falsely implicated in this case. As per this accused, he had a business of car and property dealing and also had a factory in the name of Satyam Stamping Industries which he had set up for manufacturing Electrical laminations and further that he used to purchase steel coils from Gautam Bhai Gheewala who was an importer of steel and a cargo clearing agent. According to the statement given by this accused, he had purchased a consignment of 50 tonnes steel coils SC No. 61/08 Page No. 49 of 73 NCB Vs. Rakesh Kumar & Ors.

from Gautambhai Gheewala @ LD in January, 2006 and that much of the said consignment had turned out to be defective and that this accused had suffered a loss of Rs. 5­6 lakhs. He had also stated before this Court when he asked for the said amount of Rs.5­6 lakhs from Gautambhai Gheewala @ LD, he had threatened him that he has many contacts and that he can get him fixed. The accused further took a defence that he had never been in the business of arranging containers and that he had no knowledge about the container in question. It is however a matter of record that the accused Sarvesh has not led any evidence to prove the aforementioned defence taken by him. The accused has not produced any records whatsoever or any books of accounts of his business in the name of Satyam Stamping Industries to prove that he had placed an order of 50 ton steel coils upon Gautambhai Gheewala @ LD in January, 2006 and that he had suffered a loss in the said transaction. He did not even summon any employee of his own company/factory to prove the said transaction. On the other hand, the prosecution in order to prove that even on an earlier occasion this accused Sarvesh Bhatia in association of both Julien and Gautambhai Gheewala @ LD (both proclaimed offenders) had exported a consignment of wooden furniture in a container to Canada (which also, as per the unproved assertion of the NCB officials, on apprehension by the concerned authorities was found SC No. 61/08 Page No. 50 of 73 NCB Vs. Rakesh Kumar & Ors.

to contain hashish), has relied on the statements recorded u/s 67 NDPS Act, of two persons namely Virender Sayal and one Ramesh Kumar, an employee of Virender Sayal. The said Ramesh Kumar has also stepped into the witness box and has been examined as PW21 and has categorically identified accused Sarvesh and has deposed in the Court that at the instance of accused Sarvesh, his employer Virender Sayal had exported a consignment of wooden furniture to Canada, in a container provided by accused Sarvesh. He has also affirmed the contents of his statement tendered by him u/s 67 NDPS Act, Ex.PW13/14, wherein he had informed the NCB officials that it was accused Sarvesh Bhatia who had dealt with the Customs Department and the Archaeological Department and had managed to get the consignment of furniture cleared for export, despite the initial objection of the Customs Department that the furniture being exported was antique. In the said statement this witness had also informed the investigating agency that Sarvesh Bhatia had come to the office of ICD, Tughlakabad alongwith one person whom he was referring to as LD (alias name of Gautambhai Gheewala). In the witness box, this person categorically affirmed the aforementioned contents of his statement and further also stated that his employer, Virender Sayal had also tendered a statement before the NCB officials in his presence and he also identified the signatures of Virender Sayal on SC No. 61/08 Page No. 51 of 73 NCB Vs. Rakesh Kumar & Ors.

the said statement, Ex.PW13/13. Though this witness was cross­ examined at length on behalf of the accused with respect to the description of the furniture, the description of the godown of Virender Sayal where the said furniture was stored and various other issues, in the considered opinion of this court, this witness stood the test of cross­ examination and this court finds no infirmity in his deposition. Apart from baldly asserting that this witness has falsely deposed at the behest of NCB, the accused could not give any reason as to why this public witness would depose false facts against him. Infact for the reasons given hereinbelow, this court is of the considered opinion that the veracity of the statement given by this witness is supported by the contents of the statement tendered by Virender Sayal. Though the defence has vehemently contended that the statement of Virender Sayal cannot be read in evidence at all by this court as the said person has not been produced in the witness box by the prosecution, this court is of the considered opinion that the same is relevant and is admissible to the extent that it stands proved in view of the provisions of section 53A of the NDPS Act. Section 53A of the NDPS Act inter alia lays down that a statement made and signed by a person before any empowered officer u/s 53 NDPS Act, during the course of any inquiry by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence SC No. 61/08 Page No. 52 of 73 NCB Vs. Rakesh Kumar & Ors.

under this Act, the truth of the facts which it contains, when the person who made the statement is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of unreasonable delay or expense. Now admittedly the prosecution was unable to produce this person in the witness box for the summons sent to this witness were returned back with an endorsement that he had left his last known address 7­8 years back. Thus this person could not be found during trial and therefore the statement tendered by him is of the nature envisaged by the provisions of section 53A of the NDPS Act. Now to understand the applicability of this Section and the relevancy of the statement given by this person Virender Sayal it will be necessary herein to briefly cull out the investigation carried out by the NCB officials after the apprehension of accused Sarvesh. As per the material on record after the accused Sarvesh in his statement u/s 67 NDPS Act had inter alia revealed that accused Julien was also involved in acquiring and export of hashish, the said accused Julien was apprehended from outside a hotel in Paharganj and a bill of lading, Ex.PW4/23 was recovered from his possession. Thereafter this accused Julien disclosed that vide the said bill of lading, wooden articles of furniture had been exported by him to Canada and that the container for exporting the said furniture had been arranged for SC No. 61/08 Page No. 53 of 73 NCB Vs. Rakesh Kumar & Ors.

by the accused Sarvesh Bhatia. In the said bill of lading Ex.PW4/23 the name of the exporter was mentioned as M/s Davis Cornet International, Paschim Vihar, New Delhi. Summons u/s 67 NDPS Act were then issued by the investigating officials to the proprietor of the said firm namely M/s Davis Cornet International and the said proprietor namely Virender Sayal appeared before the NCB office and gave a detailed statement Ex.PW13/13 in which he inter alia stated that though his name appears as the exporter in the bill of lading, it was accused Sarvesh Bhatia who was the actual exporter. According to the statement of this person, his firm was in the export business and IEC code number 1­050401 had been allotted to his export company and that in September, 2006 he was introduced to Sarvesh Bhatia through a common friend and this person had requested him that he wants to send some furniture items to Canada and he does not own the ICE code and had requested him to send his furniture items through ICE code of M/s Davis Cornet International. Virender Sayal also informed the NCB officials that Sarvesh Bhatia had informed him that he would be paying him Rs. One lakh per consignment and that since he was in need of money and was facing financial difficulty he agreed to the request of accused Sarvesh Bhatia and sent certain wooden furniture items to Canada and that the bill of lading Ex.PW4/23 pertained to the said transaction. He had also SC No. 61/08 Page No. 54 of 73 NCB Vs. Rakesh Kumar & Ors.

informed the NCB officials that he had demanded from accused Sarvesh that he be paid his commission and the expenses to be borne by him, before the export of the consignment and that accused Sarvesh Bhatia had assured him that he would be paid his dues and accordingly on 31.08.2006 an amount of 18,000 $ (equivalent to Rs.8,32,342/­) were credited in the account of his company bearing account number 0794020000380 in the Bank of Baroda, Rajouri Garden, New Delhi through foreign remittance out of which after adjusting his commission and his dues he then gave an amount of Rs. 5,50,000/­ through a banker's cheque dated 9/9/2006 to Sarvesh Bhatia. He further informed the NCB officials that the container for exporting the furniture was provided by Sarvesh Bhatia. Now based on the fact that Virender Sayal has left his last known address and could not be produced in the witness box during trial, the NCB sought to prove the payment of Rs.5,50,000/­ by Virender Sayal to Sarvesh Bhatia by summoning the statement of the bank account of accused Sarvesh Bhatia and for this purpose had filed an application u/s 311 CrPC for summoning an official from the Bank of Baroda to prove that on request of M/s Davis Cornet International, a banker's cheque no. 288156 dated 9/9/2006 for Rs.5,50,000/­ favouring Sarvesh Bhatia was drawn and cleared by them on presentation by Canara Bank, Ashok Vihar. Along with the said application the NCB filed on record a SC No. 61/08 Page No. 55 of 73 NCB Vs. Rakesh Kumar & Ors.

letter issued by the Bank of Baroda stating therein the facts with regard to the above payment. It is a matter of record however that the accused Sarvesh Bhatia himself in reply to the application filed by NCB took a stand that he had infact received a banker's cheque of Rs. 5,50,000 /­ in his bank account at Canara Bank, Ashok Vihar but he took a plea that the said banker's cheque was given to him by Gautambhai Gheewala @ LD and not Virender Sayal. He also admitted the document filed on record along with the application filed by the NCB u/s 311 CrPC. In such view of the matter this Court did not find any necessity to summon a witness from the concerned bank but held that in view of the admission made by the accused Sarvesh Bhatia, the drawing of the cheque in question by M/s Davis Cornet International and its encashment by the accused stands proved. Since the aforementioned application had been filed by the NCB after the statement of the accused was recorded u/s 313 Cr.PC, this Court had recorded an additional statement of this accused u/s 313 CrPC and had given an opportunity to him to state whatever he wished to with respect to the cheque in question. The accused in the said statement denied that he ever had approached Virender Sayal for the purposes of exporting any consignment and took a stand that the said banker's cheque has been given to him by Gautambhai Gheewala @ LD in consideration of his dues and that he had no clue that the same has infact been issued SC No. 61/08 Page No. 56 of 73 NCB Vs. Rakesh Kumar & Ors.

by Virender Sayal.

37. In the considered opinion of this court the stand taken by the accused that the cheque in question had been given to him by Gautambhai Gheewala @ LD in consideration of his dues is completely contrary to the earlier defence taken by him when he was examined u/s 313 CrPC by this Court on 5/3/2012. As narrated hereinabove when this accused was examined u/s 313 CrPC by this Court on 5/3/2012 he had categorically stated that he has been falsely arrested in this case only at the behest of Gautambhai Gheewala @ LD for the said person owed him an amount of Rs. 5­6 lakhs and that when he (the accused) asked him for the same, he i.e. Gautambhai Gheewala @ LD got him falsely implicated in this case. Now if the said version of the accused that the banker's cheque that was given to him by Gautambhai Gheewala @ LD is to be believed then obviously Gautambhai Gheewala @ LD then did not owe any money to this accused and that therefore there were no reasons for him to falsely implicate him in this case. In the considered opinion of this Court the said inconsistent and false answers given by the accused in his statement u/s 313 CrPC clearly make his defence highly improbable and it is to be held that the accused has not been able to rebut the presumption raised against him and it will have to be held that accused Sarvesh had the knowledge that the container in question had hashish concealed in it. SC No. 61/08 Page No. 57 of 73 NCB Vs. Rakesh Kumar & Ors.

Further since the prosecution has also proved by documentary evidence namely the documents Ex.PW16/21 (colly) filed on record by PW16 Manoj Kumar, that the container recovered from the godown at Holambikalan, from which 1210 Kg of hashish had been recovered, had been purchased by Gautambhai Gheewala @ LD on or about 19.09.2006 from M/s Eshyl Services, it has to be held that accused Sarvesh had acted in conspiracy with accused Gautambhai Gheewala @ LD. The prosecution by proving a payment of Rs.5,50,000/­ by Virender Sayal to accused Sarvesh and by producing Ramesh, an employee of Virender Sayal in the witness box has also been able to show that even on an earlier occasion this accused in association with Gautambhai Gheewala @ LD had got arranged a container and had by using the IEC code of another, illegally exported some consignment in a container outside India. It is also a matter of record that an amount of Rs. 6 lacs were recovered from the house of accused Sarvesh and he has not been able to furnish a valid explanation for the same (though he had contended before this Court that the same were received in consideration of a vehicle sold through him, no evidence was brought on record in this regard ). It is also to be taken note of that the accused Gautambhai Gheewala @ LD evaded the summons issued to him by the investigating agency and absconded after the recovery of contraband and arrest of accused SC No. 61/08 Page No. 58 of 73 NCB Vs. Rakesh Kumar & Ors.

Sarvesh and was declared a proclaimed offender by the orders of the court. In the considered opinion of this court, the aforementioned facts proved by the prosecution on record are sufficient to believe that accused Sarvesh had conspired with accused Gautambhai Gheewala to export hashish outside India and pursuant to the said conspiracy, the container in which the hashish was concealed, was procured by Gautambhai Gheewala and was kept in the godown, provided by accused Sarvesh Bhatia. It is well settled law that conspiracy is a matter of inference, to be deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them and that it can be proved by the evidence of surrounding circumstances and by the antecedents and subsequent conduct of the accused persons after the commission of the alleged crime.

38.This court is completely unable to agree with the Ld. Defence counsel that the accused has been able to raise a reasonable doubt in the version put forward by the prosecution. In a judgment pronounced by the Hon'ble Supreme Court in a case titled as Iqbal Moosa Patel Vs. State of Gujarat reported in 2011(1) JCC (Narcotics) 35 it has been observed by the Hon'ble Supreme Court that though it is true that under our existing jurisprudence in a criminal matter, we have to proceed with a SC No. 61/08 Page No. 59 of 73 NCB Vs. Rakesh Kumar & Ors.

presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man and the prosecution is not required to meet any and every hypothesis put forward by the accused. It was further observed that a reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense and must necessarily grow out of the evidence in the case. In the considered opinion of this court, as discussed hereinabove, the hypothesis put forward by the accused Sarvesh namely that he has been implicated in the present case at the behest of accused Gautambhai Gheewala @ LD does not grow out of the evidence in the case and infact the prosecution has been able to prove, beyond reasonable doubt, against accused Sarvesh, the charge of having conspired with proclaimed offender, Gautambhai Gheewala @ LD, to export hashish and of having been found in possession of 1210 Kg of hashish, pursuant to the conspiracy and he has to be held guilty for the same. The mere fact that accused Gautambhai Gheewala @ LD and accused Julien are presently absconding and that the hashish was recovered before even the attempt to export the same could be made, are no grounds, as contended by the defence, to negate the charge of conspiracy against accused Sarvesh.

SC No. 61/08 Page No. 60 of 73 NCB Vs. Rakesh Kumar & Ors.

39.Coming now to the recovery of 870 gm. of hashish from the Wagon R car parked in the service lane by the house of accused Sarvesh, this Court is of the considered opinion that the accused Sarvesh cannot be held guilty with respect to the said recovery due to a very material lacuna in the documentary evidence produced by the prosecution in this respect. As per the version put forward in the complaint and in the evidence led, the search of the residential premises of accused Sarvesh and the car in question was completed by 1700 hours on 31/1/2007. There is a specific averment made in the complaint filed that the 870 gm. of hashish recovered from the car parked near the house of accused Sarvesh, was deposited by Ajay Kumar, IO with the malkhana on 31/1/2007 immediately after he came back to the NCB office. Contrary to the said averment, the relevant page of the malkhana register, proved on record as Ex.PW13/6 shows that the contraband allegedly recovery from the car was deposited in the malkhana on 01.02.2007 after the contraband recovered from the godown at Holambikalan was deposited. Now when PW4 Ajay Kumar, the main seizing officer who had seized the contraband from the car in question was pointed out the said discrepancy, he has deposed that in para 14 of the complaint it is incorrectly mentioned that the case property was deposited immediately after reaching the NCB office. He has deposed that infact on 31.01.2007, the SC No. 61/08 Page No. 61 of 73 NCB Vs. Rakesh Kumar & Ors.

malkhana incharge was not found available in the office and therefore he had deposited the contraband recovered, the test memo form, samples, etc only early in the morning on 01.02.2007 after the arrival of malkhana incharge and that during the intervening period, all the aforementioned articles were kept by him in his own Almirah. Thus, if the deposition of this witness is accepted then despite the statutory provisions of NDPS Act namely section 52, the contraband recovered by Ajay Kumar remained in his custody for the entire period after its alleged recovery till 0535 hours on 01.02.2007. This witness also admits that he had not given in writing to any of the senior officials that he was keeping the case property in his Almirah. He was then confronted with the seizure report dated 31.01.2007 which was prepared as per his own examination in chief on 31.01.2007 at 08.00 PM. The said report has been exhibited as Ex.PW4/9 during the examination in chief of this witness wherein he has inter alia stated that he had submitted the said seizure report u/s 57 NDPS Act, Ex.PW4/9 to his Superintendent on 31.01.2007. Now a perusal of the said report shows that it is mentioned therein that the case property and the samples alongwith test memo in triplicate have been deposited in the malkhana on reaching the DZU office. According to the witness, he has wrongly mentioned the said fact in his seizure report ­ it is indeed very strange that this witness himself is admitting that he has SC No. 61/08 Page No. 62 of 73 NCB Vs. Rakesh Kumar & Ors.

given an incorrect written report to his senior officer and he does not even bother to given the reasons for giving such an incorrect written report. It is relevant to mention herein that the Ld. SPP has contended before this Court that the said lapse on behalf of the investigating official Ajay Kumar should not be given much importance, more so taking into account that it is the accused Sarvesh Bhatia who has been proved to be in the habit of breaking the law. Ld. SPP has pointed out that the prosecution has proved on record that even the Wagon R recovered from outside the house of accused Sarvesh was found to be having a fake registration number. He has pointed out that the deposition of PW8 Pradeep Anand, MLO State Transport Authority has proved that the registration number DL 9CA 5859 found written on the number plate affixed on the Wagon R, was that of a Santro car which as per the transport authority records stands in the name of one Vikas Babbar. The Ld. SPP has also pointed out that the said Vikas Babbar has also appeared in the witness box as PW12 and has deposed before the Court that he was the owner of Santro car no. DL9CA 5859 and that he had sold the same to one Mohd. Ahmad in July, 2006. Ld. SPP has further pointed out that during investigation it was found that the real registration number of the Wagon R car seized in the present case was DL 8CD 8327 and stood registered in the name of one Charanjeet Singh SC No. 61/08 Page No. 63 of 73 NCB Vs. Rakesh Kumar & Ors.

who had tendered a statement Ex.PW16/4 before the NCB officials inter alia stating therein that he had sold his Wagon R car DL 8CD 8327 to accused Sarvesh Bhatia on 5/7/2005 and in this regard had also tendered a delivery receipt Ex.PW16/5. According to the Ld. SPP the aforementioned evidence and material amply show that the accused Sarvesh Bhatia was using a car with a fake registration number only to conceal his illegal activities of dealing in contraband and thus according to him this Court therefore should not doubt the recovery of the contraband from the said car.

40.With respect to the said contention of Ld. SPP, it is a matter of record that the accused in his statement u/s 313 CrPC has admitted that the Wagon R found parked outside his house had a fake number affixed on it. The explanation however given by him is that he being also a car dealer had been approached by Charanjeet Singh with a request that he wants to sell his Wagon R but the ICICI bank had a lien on the same and that he has been unable to pay the hire installments for the last two years and that on such request he had allowed Charanjeet Singh to park the said vehicle near his house and that he further knew that Charanjeet had put the fake registration plate on the same so as to avoid detection and re­ possession by the ICICI bank. He has further stated that Charanjeet Singh has given a false statement before the NCB officials that he had SC No. 61/08 Page No. 64 of 73 NCB Vs. Rakesh Kumar & Ors.

already sold the vehicle to him. In the considered opinion of this Court the explanation of the accused that the fake registration number on the vehicle in question had been put by Charanjeet Singh is not at all acceptable not only because the signature of Sarvesh Bhatia (the accused has not denied the said signature) clearly appear on the delivery receipt Ex.PW16/5 of the Wagon R car, he alone could have put the registration number DL 9CA 5859 on the said Wagon R for he himself has admitted that he had got sold a Santro car by the said number to Vikas Babbar from one A.N. Batra and he alone was in knowledge of the said registration number. However having said so, the fact that the accused Sarvesh Bhatia had put a fake registration number on a vehicle cannot allow this court to ignore the violation of Section 52 of the NDPS Act by the investigating officials. The provisions of said Section inter alia provide that any contraband seized by an investigating officer shall be forwarded without unnecessary delay to either the Officer Incharge of the nearest police station or to an official empowered u/s 53 of the Act. Clearly as per the provisions of the said section, the investigating officer Ajay Kumar was bound to have forwarded the 870 gm. of hashish seized by him to the Malkhana Incharge immediately. No doubt the provision of section 52 of the NDPS Act have not been held to be mandatory, the Apex Court of this country has laid down in its various pronouncements SC No. 61/08 Page No. 65 of 73 NCB Vs. Rakesh Kumar & Ors.

that in cases arising out of the provisions of the NDPS Act, the courts have to take care to see that the safeguards provided in the statute have been scrupulously followed by the investigating agency and that the prosecution in such cases is under a duty to prove satisfactorily and beyond reasonable doubt that the substance recovered from an accused was properly sealed at the spot, preserved in safe custody and then sent for analysis. In a very recent case titled as Kuldeep Singh Vs State of Punjab reported in 2011 Cr. L. J. 2672 where the facts were inter alia that seized bags of contraband sealed at the spot were reopened at the police station for drawing out of samples, it was held by Hon'ble Supreme Court that the entire search and seizure procedure in such facts stands vitiated and the accused is liable to be acquitted. The Hon'ble Supreme court taking note that the case property once sealed was reopened held that the entire search and seizure proceedings stood vitiated. The Hon'ble Supreme court taking note that the case property once sealed was reopened held that the entire search and seizure proceedings stood vitiated. The said judgment though not applicable in the facts of the present case show the importance that the Apex court attaches to the procedures relating to search, seizure and proper custody of contraband in the cases being tried under the NDPS Act. In State of Punjab Vs. SC No. 61/08 Page No. 66 of 73 NCB Vs. Rakesh Kumar & Ors.

Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed".

41. In the present case what this court finds unacceptable is not that the 870 gm of hashish recovered was kept by Ajay Kumar in his own custody but what this court finds disturbing is that this official even submitted a written report u/s 57 NDPS Act to his Superintendent stating therein that he had deposited the case property with malkhana and further when he was asked during his deposition in court, the reason for giving such an incorrect report, he did not give any explanation whatsoever. In case P.C. Khandoori, Malkhana Incharge was not present on the night of 31.01.2007, the correct course of action that should have been followed by Ajay Kumar was either he should have deposited the case property with the Superintendent or he should have informed the Superintendent that he is keeping the case property in a sealed condition in his own Almirah. In view of the fact that Ajay Kumar did not do any of the aforementioned acts has entitled the accused to contend that he has been prejudiced and that the hashish allegedly recovered from him was not preserved in safe custody. Thus this court does not hold the accused Sarvesh guilty with respect to the recovery of 870 gm of hashish SC No. 61/08 Page No. 67 of 73 NCB Vs. Rakesh Kumar & Ors.

allegedly recovered from the Wagon R car in question.

42.This Court will now consider whether the evidence produced in record is also sufficient for holding the accused Rakesh guilty for the offence of having been found in possession of 1210 kg. of hashish. In the considered opinion of this court, the entire evidence produced by the prosecution, except the statement tendered by this accused u/s 67 NDPS Act in no manner proves that this accused was in possession of the godown in question or that he had in any manner aided, abetted or conspired with the other accused persons in acquiring and concealing 1210 kg. in the container in question. As per the own version of the prosecution, this accused was a mere chowkidar in the godown where the aforementioned contraband was recovered. A mere chowkidar cannot at all be stated to be in control or in possession of the premises belonging to his master. He is at the most, a caretaker employed to take care of the premises in the absence of his master. In a judgment titled as Ram Singh vs. Central Bureau of Narcotics (2011) 11 SCC 347 in somewhat similar facts like the present case, the Hon'ble Supreme Court held that a servant cannot be said to be in possession of contraband belonging to his master unless it is proved that he had absolute control over it. Ld. SPP for NCB has however contended that the statement of this accused Rakesh tendered SC No. 61/08 Page No. 68 of 73 NCB Vs. Rakesh Kumar & Ors.

u/s 67 NDPS Act reveals that this accused had been informed by the accused Sarvesh that hashish is concealed in the container in question and therefore his submission is that this accused despite being aware of the contents of the container chose to stand guard over it and therefore it is to be held that he abetted and aided accused Sarvesh in possessing the contraband. I am afraid that the said contention of Ld. SPP cannot be accepted firstly because this Court is of the considered opinion for the reasons given hereinbelow that no reliance can be placed upon the statement tendered by this accused u/s 67 NDPS Act and secondly even in Ram Singh's case, the appellant before the Hon'ble Supreme Court had confessed that his job was to bring the contraband from the house of his master, a hotel owner to the premises of the hotel and despite such a confession the Hon'ble Supreme Court held that he could not be held in conscious possession of the contraband for he could not be stated to be in control of the contraband.

43.As regards the statement tendered by accused Rakesh u/s 67 NDPS Act, no doubt in the judicial pronouncements relied upon by the Ld. SPP, the Hon'ble Supreme Court has held that a statement tendered by an accused voluntarily u/s 67 NDPS Act can be made the sole basis for determining the guilt of an accused, the Hon'ble Supreme Court has at the same time SC No. 61/08 Page No. 69 of 73 NCB Vs. Rakesh Kumar & Ors.

cautioned that a court must be satisfied that the said statement was given voluntarily. The Hon'ble Supreme Court in its judgments pronounced in cases titled as Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab and Anr. reported in (2009)12 SCC 161 and JT 2008 (7) SC 409 respectively has clearly held that the purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement. In Bal Mukund's case, the Hon'ble Supreme Court observed that the authorities under the NDPS Act can always show that the accused had not been formally arrested when his statement was recorded u/s 67 of the NDPS Act and that therefore a court while weighing the evidentiary value of such a statement should not lose sight of the ground realities. Further in para 28 of the said judgment the Hon'ble Supreme Court has reiterated that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. The Hon'ble Supreme Court in the said case also made it clear that the observations made by it in Kanhaiya Lal Vs. Union of India (2008) 4SCC 668, (a judgment relied by the NCB to contend that it is under no obligation to prove that the statement tendered by an accused was voluntary) was passed in view of the peculiar facts in the said case namely that no cross­examination of a material witness was SC No. 61/08 Page No. 70 of 73 NCB Vs. Rakesh Kumar & Ors.

conducted with respect to statement tendered by the accused. In another case titled as Francis Stanly Vs. NCB reported in (2006) 13 SCC 2010 the Hon'ble Supreme Court has cautioned that a confession asserted to have been recorded under the NDPS Act must be made subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act.

44.Keeping the aforementioned principles in mind, this Court does not wish to place make the statement tendered by this accused Rakesh u/s 67 of the NDPS Act as the sole basis for determining his guilt for the said statement was recorded by the NCB while this accused was in their custody right from 31/1/2007 till 2/2/2007 and the accused had retracted the said statement within a few days of him being remanded to judicial custody. There is also no evidence on record to suggest that at any point of time this accused was informed that he has a right to remain silent. It is also relevant to mention herein that at the fag end of the final arguments, Ld. SPP had also taken a stand that both the accused persons when they were produced for the first time after their arrest before the then court of Ld. Duty MM Ms. Ruby Alka Gupta on 02.02.2007, had pleaded guilty and his contention was that the court must take into consideration the said remand order and hold the accused Rakesh guilty SC No. 61/08 Page No. 71 of 73 NCB Vs. Rakesh Kumar & Ors.

on the said plea of guilt. Apparently the said submission was made by Ld. SPP after he inspected the court record and came to know that the said remand order is not present on the judicial record (separate inquiry by the orders of Ld. District and Sessions Judge, Patiala House Courts, has been conducted by the undersigned with respect to the loss of said document and it prima facie has appeared that the Ahlmad of the court of the then Ld. Duty MM had not forwarded the application for remand filed by NCB on which the order of remand was passed by the Ld. Duty MM, to the Ahlmad of the Predecessor of this court). Very interestingly Ld. SPP has also stated that he himself is not sure whether the said plea of guilt was recorded by the Ld. Duty MM in the remand order and that he only recalls that the accused persons on being produced on their first remand had asked for forgiveness from the Ld. Duty MM. It would be worthwhile to note that the said contention namely that the accused persons had pleaded guilty, has not been taken by the NCB right through the trial. In none of the replies filed on behalf of the NCB to the bail applications filed on behalf of accused persons has such a stand been taken. In the considered opinion of this court, the said contention made by the Ld. SPP cannot be given any importance whatsoever to determine the guilt of accused Rakesh.

SC No. 61/08 Page No. 72 of 73 NCB Vs. Rakesh Kumar & Ors.

45.In view of the discussion hereinabove, the accused Sarvesh is hereby held guilty for having been found in possession of 1210 Kg of hashish pursuant to a conspiracy to export the same and thereby having committed an offence punishable u/s 20(b)(ii)(C) read with Section 29 of the NDPS Act while the accused Rakesh stands acquitted of the charges framed against him.

Announced in the open court on this 17th day of August, 2013 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi SC No. 61/08 Page No. 73 of 73