Delhi District Court
Sc No. 51A/08 Dri vs Harpreet Singh & Anr. on 5 October, 2013
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
Sh Devender Singh
Intelligence Officer
Directorate of Revenue Intelligence
Head Quarters, New Delhi.
V E R S U S
1. Harpreet Singh @ Jitar Singh @ Sonu
S/o Sh Daya Singh
R/o Karte Pravan, Kabul, Afghanistan.
Presently residing at Gali No. 4
Krishnapuri, Tilak Nagar
New Delhi.
2. Erfan (Since Absconder)
S/o Sh Mohammad Yunus
R/o Kanay Putula, Kabul City, Afghanistan.
Holder of Afghanistan Passport No. OR 639169
Presently residing at Lajpat Nagar, New Delhi.
SC No.: 51A/08
U/S : 21 & 29 NDPS Act
Computer ID No. 02403R0591992008
Date of institution : 16.07.2008
Date of reserving judgment : 28.09.2013
Date of pronouncement of judgment : 05.10.2013
Decision : Acquitted
SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
2
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence (hereinafter referred to as DRI) through Sh Devender Singh, Intelligence Officer (IO), against the accused Harpreet Singh and Erfan for commission of the offences punishable U/S 21 and 29 of the NDPS Act, 1985.
2. The case of the prosecution, in brief, is that on 14.02.2008, PW4 Sh K.S.Ratra, an Intelligence Officer of DRI had received some secret information at about 8.10 PM that one Sikh person of Afghan origin, aged about 40 years, would arrive in street of Mansaram Park, Uttam Nagar, New Delhi between 10.00 to 11.00 PM on that day, alongwith 6 kg of narcotic drugs, i.e. heroin. PW4 had immediately reduced the above information in writing as Ex. PW4/A and had put up the same before his senior officer/PW12 Sh P.S.Gulati, who had directed the taking of necessary steps on the said information and for mounting a surveillance and interception of the above person.
3. It is alleged that in pursuance of the above directions, a team of DRI officers led by the IO/PW1 SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
3Sh Devender Singh was constituted and briefed about the said information. The IO/PW1 had also called the public witnesses at around 8.30 PM from near the area of CGO Complex, Lodhi Road, New Delhi, where their office was situated, and they were also apprised about the above intelligence and then they all had left the office of DRI at around 8.45 PM and had reached at the above spot at around 9.45 PM.
4. The surveillance was maintained around the streets of the said locality and at about 10.30 PM, they had noticed one Sikh person matching with the description given in the above intelligence and carrying a paper bag in his hand, in one of the streets of the above locality. The above person was intercepted by the DRI team immediately, but before his apprehension he had thrown away the above paper carry bag being carried by him in a drain, which was also picked up and taken into possession by the DRI officers. During the introductory sessions, the identity of the above accused was revealed as the accused no. 1 Harpreet Singh of this case, who had disclosed himself to be a permanent resident of Kabul, Afghanistan and presently residing at the given address of Tilak Nagar, New Delhi.
SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
45. It is alleged that on persistent enquiries by the DRI officers, the above accused had admitted that he was carrying two packets containing about 6 kg of heroin, which were kept in the above carry bag bearing 'lacoste' mark on its body. A notice U/S 50 of the NDPS Act Ex. PW1/A was served upon the accused at the spot, in the presence public witnesses, apprising him about his legal rights of being searched in the presence of a Magistrate or a Gazetted Officer and vide his written reply given by the above accused in his own handwriting on the above notice itself, he had offered his search to the officers of DRI. It was also disclosed by the accused at the spot during the above enquiry that the above packets were given to him by one Erfan (who is accused no. 2 and since absconder) near the Hyatt Regency Hotel at about 9.00 PM and the same were to be delivered by him to some African person at the above spot, as per the instructions of accused no. 2, and the accused no. 2 was also to meet him near the M.D. International Hotel after the above said delivery.
6. Thereafter, the members of the DRI team, alongwith the accused no. 1 as well as the public witnesses, had reached at the above M.D. International Hotel, Arbindo Marg, at about 12.30 AM on 15.02.2008, SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
5i.e. the night of 14/15.02.2008, and they had apprehended the accused no. 2 also from outside the said hotel on the pointing out of accused no. 1. Both the accused persons were then brought to the office of the DRI, alongwith the above seized substance and the panch witnesses, at CGO Complex, Lodhi Road, New Delhi for carrying out the further search proceedings and in the DRI office, the notice Ex. PW1/B was also served by the IO/PW1 upon the accused no. 2 for his search before the above said officers and he had also given a similar reply to the said notice vide which he had also offered his search to the officers of DRI.
7. Thereafter, the search of the above 'lacoste' paper bag carried by the accused no. 1 was conducted by the IO/PW1 and it was found to contain two grey colour cotton 'bhansalis', stitched with coffee colour thread and fitted with black velcro. The above 'bhansalis' were marked A and B and were opened one by one and from 'bhansali' mark A, 4 pouches wrapped with adhesive tapes were recovered and on removing the adhesive tapes on these pouches, some white colour granular/powdery substance was found packed in white polythene pouches in each of the above 4 pouches and the gross weight of the above 'bhansali' was found to be 3.378 kgs. Similarly, 3 pouches containing similar SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
6white granular/powdery substance were also recovered from the other 'bhansali' mark B and its gross weight was found to be 2.876 kgs and the total gross weight of the two 'bhansalis' came to be 6.254 kgs. The net weight of the above granular/powdery substance found in both the 'bhansalis' came to be 3.238 kgs and 2.742 kgs respectively, i.e. 5.980 kgs in total.
8. A pinch of the substance from all the above packets was taken and tested separately with a UN Drug Testing Kit and the same had given positive indication for the presence of heroin. Three representative samples of 5 gms each were also drawn from both the above 'bhansalis' and were given mark A1 to A3 and B1 to B3 respectively. The samples were separately sealed in paper envelopes and even the remaining heroin recovered from the above 'bhansalis' was sealed in two separate envelopes and the envelopes of the samples and remaining heroin were correspondingly marked, after the substance was first put in polythene pouches/bags. The packing material of the above two 'bhansalis' and the above paper bag were also sealed separately in separate envelopes. All the above sealing work was done by using the official seal of DRI and the seals were affixed over paper slips pasted on each of the envelopes, which were bearing the SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
7signatures of the seizing officer, the accused persons as well as the public witnesses. The personal search of accused no. 2 was also conducted and it resulted into the recovery of a Afghanistan passport No. OR 639169 issued at Kabul on 22.08.2007, foreign currency of 5053 US $ and Indian currency of Rs. 8500 and these articles were also seized in this case in a separate envelope in the similar manner. The sealed parcels of the remaining heroin, packing material and currency etc were then kept in a metal box which was also converted into a cloth pullanda and sealed with the same seal of DRI. A detailed panchnama Ex. PW1/C was also drawn at the spot regarding the above proceedings and it was also signed by all the above persons, test memos were prepared and the same seal affixed thereon and a facsimile of the above seal was also affixed on the panchnama. The sealed case property was deposited by the IO/PW1 with PW6 Sh D.B.Sharma, Incharge, Valuable Godown, Customs for safe custody and the sealed sample parcels were sent to CRCL on 15.02.2008 itself.
9. It is also alleged in the complaint that in response to the summons Ex. PW1/G dated 14.02.2008 served upon the accused no. 1, he had tendered his voluntary statement U/S 67 of the NDPS Act Ex. PW1/H SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
8before the IO/PW1 in which he had, inter-alia, admitted his apprehension from the above spot, recovery of the above heroin and all the search, seizure and sample proceedings etc. It was also disclosed by him in his above statement that he had met the co-accused Erfan in the course of his working as a translator for Afghani patients and doctors of Delhi and the co-accused Erfan offered to pay him 200 US $ per trip for delivering consignment packets of Heroin to an African man in the above area of Mansaram Park, Uttam Nagar and the above paper carry bag containing Heroin was also given to him by his co- accused Erfan on 14.02.2008 at about 9 PM at Hyatt Regency Hotel and from there he had taken an auto rickshaw and had reached at the above place for delivery of the above Heroin to the same African person at the said place, as per the instructions of the co-accused Erfan, and he was to get 200 US $ for the said delivery of consignment also. He had further disclosed in his above statement that previously also he had delivered four similar consignments of Heroin to the same African person at the above said place on the instructions of the above co-accused.
10. It is also alleged that in response to the summons Ex. PW4/J dated 15.02.2008 given to the SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
9accused no. 2, he had also tendered a similar statement Ex. PW1/K before the IO/PW1 in which, besides admitting his apprehension and the recovery of the above currency amounts and other facts, he had also made similar disclosures that accused no. 1 Harpreet Singh was working for him for delivery of the consignment of Heroin to the above African person for a monetary consideration of 200 US $ for each delivery and besides delivering four consignments of Heroin previously, he had also given the above consignment of Heroin of this case to the above accused no. 1 for delivery of the same to the the same African person at the above said place. He had also disclosed that he was in the business of supply of heroin to different African nationals and they used to contact him on his mobile no. 9818859662. He had further disclosed in his above statement that he was staying in room no. 4 of the above Hotel M.D. International and the above currency notes recovered from his possession were the sale proceeds of the drugs and even on the last evening, an amount of 80000 US $ was received by him from the above African national for some earlier supplies of drugs and the said amount was kept in his above said hotel room.
11. Since both the accused persons appeared to SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
10have committed offences punishable U/S 21 and 29 of the NDPS Act, they both were arrested in this case on 15.02.2008 itself and were subsequently got medically examined, produced in the court and remanded to custody. The intimations of their arrests were given to their family members and the concerned Ministries and High Commission. The residential premises of the accused no. 1 in Delhi were also raided, but nothing incriminating was recovered in the said raid. However, during the search of the above room no. 404 of Hotel M.D. International of accused no. 2 Erfan, the above currency amount of 80000 US $ was recovered and seized. One report U/S 57 of the NDPS Act Ex. PW1/S was also submitted by the IO/PW1 to his immediate superior officer and the personal particulars of the accused persons were also verified through the concerned High Commission, but it was revealed that they were not registered in the concerned offices of their High Commission in India and even the above Passport of accused no. 2 could not be verified for the same reason. The above mobile number 9818859662 was found to be registered in the name of one Smt Manju Johir, but the summons sent to her at her given address were received back with remarks that no such person was existing there. In the test report of CRCL dated 27.03.2008, both the SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
11samples drawn from the above Heroin were confirmed to be of diacetylmorphine (heroin) having purity percentage of 59.5% and 41.3%. After recording some other statements and completing the formalities of investigation, a formal complaint for the above said offences was ultimately filed against the accused persons in this court by the above IO/PW1.
12. The complaint was filed in the court on 16.07.2008 and cognizance thereof was taken on the same day. The accused no. 2 Erfan was released on interim bail vide order dated 03.10.2008 of the Hon'ble High Court, which was extended further vide order dated 22.10.2008, but he had failed to surrender to custody on expiry of the period of his interim bail and the proclamation/process U/S 82 Cr.P.C was duly executed against him, but no process U/S 83 Cr.P.C could be issued against him for want of his complete address in India and vide order dated 15.12.2009 of this court, the trial of the accused Erfan was ultimately directed to be separated because of his absconding from the proceedings. However, a prima facie case for commission of the offences punishable U/S 21(c) and 29 of the NDPS Act was subsequently found to be made out against accused no. 1 Harpreet Singh vide order dated 29.03.2010 and charges for the SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
12above said offences were also framed against him on the same day.
13. The prosecution/DRI is support of its case has examined total 17 witnesses on record and their names and the purpose of their examination is being stated herein below:
14. PW1 Sh Devender Singh, Intelligence Officer is the investigating officer of this case and he was leading the raiding team which had apprehended both the accused persons from the above said places and had also recovered the above contraband substance. He has deposed in detail on the above lines of the prosecution story in this regard and also regarding the proceedings of the search, seizure and sampling etc. conducted by him. He had also proved various documents prepared by him during the investigation of the above case and has identified the accused, the case property as well as the different signatures appearing on the said documents.
15. PW2 Sh N.D.Azad, Senior Intelligence Officer of DRI at the relevant time had directed the IO/PW1 Sh Devender Singh to constitute a raiding team for acting upon the above secret intelligence and he has also SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
13claimed himself to be a part of the above raiding team which had apprehended both the accused persons and recovered the above contraband substance. After the apprehension of the accused no. 2, he had not participated in any further proceedings of seizure and sampling etc. After the conclusion of the panchnama proceedings he was also handed over the sealed parcels of the case property and samples as well as the test memos by the IO/PW1. On 15.09.2008 he had got deposited the parcels of the case property in the Valuable Godown through the IO/PW1 and the sample parcels in the CRCL through Sh Shiv Raj Singh. He had also countersigned the deposit memo of case property Ex. PW1/T and issued the forwarding letter to CRCL Ex. PW2/B and also the letter Ex. PW2/A for attestation of the signatures of Sh Shiv Raj Singh. He had also issued and proved letters Ex. PW2/C to PW2/F and PW2/K regarding the medical examination and about their arrests, received the report U/S 57 of the NDPS Act Ex. PW1/S from the IO/PW1 on 16.02.2008, sent letters Ex. PW2/G and PW2/H to Nodal Officer of Bharti Cellular Ltd. and FRRO respectively for seeking the call details etc. of the above mobile number and the details of the accused persons and received reply Ex. PW2/J from the office of FRRO.
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1416. PW3 Sh Shiv Raj Singh, a driver of DRI, had taken the above two sample parcels, alongwith forwarding letter and test memos, to the office of CRCL on 15.02.2008 and had deposited the same there vide acknowledgment Ex. PW3/A.
17. PW4 Sh K.S.Ratra, an Intelligence Officer of DRI had received the above secret intelligence, reduced the same into writing as Ex. PW4/A and had put it before his official superior Sh P.S.Gulati. Likewise PW2 Sh N.D.Azad, he has also claimed himself to have subsequently participated in the above raiding team and present at the time of apprehension of both the accused persons, but had not participated in further proceedings.
18. PW5 Sh S.C.Mathur, Chemical Examiner of CRCL has stated that he had received the above sample parcels, alongwith the forwarding letter and test memos, in his office on 15.02.2008 and the same were registered and kept in the strong room. The samples were taken out from the strong room on 27.03.2008 and were handed over to Sh V.P.Bahuguna for analysis and the analysis of the samples were carried out by Sh V.P.Bahuguna in his presence and under his supervision and the final analysis report Ex. PW5/A was issued by SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
15Sh V.P.Bahuguna under his signatures and Sh V.P.Bahuguna had also given the report in Section II of the test memos Ex. PW1/D and PW1/E in this regard. He had also identified the signatures of Sh V.P.Bahuguna on the above reports and also of Sh Sukhdev Singh on the acknowledgment Ex. PW3/A, which were put while receiving the sample parcels on his directions.
19. PW6 Sh D.B.Sharma is the in-charge Valuable Godown who had received the sealed parcels of the case property of this case on 15.02.2008 vide his endorsement made on the deposit memo Ex. PW1/T and he had also made an entry Ex. PW6/A in this regard in the relevant register of the Valuable Godown.
20. PW7 Sh Jung Bahadur Prasad, a Tax Assistant of DRI, had only reduced into writing the statement Ex. PW1/K U/S 67 of the NDPS Act of accused Erfan on 15.02.2008, on the directions of Sh N.D.Azad, and the said statement was tendered by the above accused before the IO/PW1.
21. PW8 Sh A.K.Sinha, Intelligence Officer of DRI, was given the search authorization Ex. PW8/A dated 15.02.2008 by Sh P.S.Gulati, the then Assistant SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
16Director of DRI, for search of the room of accused Erfan in the above hotel and in the said search he had recovered the above amount of 80000 US $ from the said room and had prepared the panchnama Ex. PW8/B and had also submitted his execution report Ex. PW8/C in this regard.
22. PW9 Sh R.N.Singh, another Intelligence Officer of DRI, was given the search authorization Ex. PW9/A for search of the house of the accused Harpreet Singh by Sh Nilank Kumar, the Assistant Director of DRI, and he had prepared the panchnama Ex. PW9/B and submitted the execution report Ex. PW9/C in this regard. However, nothing incriminating was recovered in the said search.
23. PW10 Sh Sukhdev Singh, Lab Assistant of CRCL had only received the above two sealed sample parcels, alongwith the forwarding letter and test memos, vide acknowledgment receipt Ex. PW3/A issued by him in this regard.
24. PW11 Sh Sanjay Kumar, Senior Tax Assistant of DRI, had issued the above seal of DRI used in this case to the IO/PW1 on 14.02.2008 and the same was returned back to him on 18.02.2008 and he had made the SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
17entry Ex. PW1/F in the seal movement register in this regard.
25. PW12 Sh P.S.Gulati, is the then Assistant Director of DRI to whom the above secret information Ex. PW4/A was put up by Sh K.S.Ratra and he had endorsed the same with the directions for acting upon the said information. On 15.02.2008 he had also issued the above search authorization Ex. PW8/A for search of the above hotel room of accused Erfan and the report Ex. PW8/C was submitted to him in this regard.
26. PW13 Sh Nilank Kumar is also an Assistant Director of DRI at the relevant time and he had issued the above search authorization Ex. PW9/A for the search of the house of the accused Harpreet Singh and the report Ex. PW9/C was submitted to him in this regard.
27. PW14 Sh R.K.Singh is the Nodal Officer of M/S Bharti Cellular Ltd. and he has produced on record a copy of the subscriber application form Ex. PW14/A of the above mobile number 9818859662 which was issued in the name of one Ms Manju Johri and he had also earlier furnished the call detail records of the said mobile SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
18number, alongwith his letter, Ex. PW14/C (colly) and has further produced one certificate Ex. PW14/B U/S 65B of the Evidence Act regarding the authenticity of the said record.
28. PW15 Sh Niranjan Barik, PW16 Sh Ram Lochan Yadav and PW17 Sh Manoj Kumar Paul are all the employees of the above Hotel M.D. International and they have deposed regarding the apprehension of the accused Erfan from their hotel and the search and recovery of some currency amount from his room and have also identified their signatures on the above search authorization Ex. PW8/A and panchnama Ex. PW8/B.
29. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record by the prosecution was put to the accused in his statement recorded U/S 313 Cr.P.C. and the same was denied by him either to be incorrect or beyond his knowledge and he has claimed himself to be innocent and to have been falsely implicated in this case. It is his case that no heroin or bhansalis containing heroin were ever recovered from his possession or at his instance and he was picked up by the DRI Officers at about 9.30 PM on 14.02.2008 from outside Uttam SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
19Nagar bus terminal when he had gone there from his residence in Krishna Puri, Tilak Nagar for purchasing some fruits. He claims that he was not carrying any carry bag with him at that time and after being picked up, he was taken by the DRI Officers to their office and he was detained there throughout the night of 14-15.02.2008 and was also subjected to physical and mental torture. He also claims that he was subsequently made to sign various blank papers and was further made to copy one statement/document written in English language and he had copied the same in capital English alphabets, which he was able to write only as he was knowing and understanding only Pashto, Farsi and Gurumukhi languages being an Afghan national and he was not conversant with English and Hindi languages, though he was able to speak and understand Hindi language also. He has also denied the service of the notice U/S 50 of the NDPS Act upon him and has further claimed specifically that his alleged statement U/S 67 of the NDPS Act was not a voluntary statement and he has already retracted the same. He has also denied knowing the co-accused Erfan and it is his case that he came to know him only when they both were taken for medical examination in a hospital and subsequently they were produced in the court for hearings. He has also chosen to lead evidence in his SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
20defence.
30. The accused has examined one witness in his defence. DW1 Dr Uday Kumar Singh is the Medical Officer of DDU Hospital, who had examined the accused on 15.02.2008 vide MLC Ex. DW1/A, on being referred from Tihar Jail vide letter Mark X. Besides the above, two witnesses Sh Sandeep Kumar and Sh Rajpal have also been examined on record during the trial as court witnesses and these witnesses are in-fact the witnesses cited in the list of the prosecution witnesses of DRI, but they were dropped by the DRI earlier in view of the reports being received on their summons that their given addresses were incomplete/not traceable. However, when the matter was at the stage of final arguments, it was brought to the knowledge to this court that the accused had obtained some information under the RTI Act from the SSP Ghaziabad regarding the above witnesses and he had been informed that both the above witnesses were residing at their given addresses. Since, the above witnesses were material witnesses of the alleged seizure of the contraband substance and apprehension of both the accused persons, the court was of the view that their examination on record was essential and hence, an opportunity was given to DRI/prosecution to let this SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
21court know as to whether they were interested in summoning and examining the above witnesses or not, but the DRI appeared to be reluctant in examining the above witnesses and hence, vide order dated 23.04.2013, this court had summoned the above two public witnesses as court witnesses and they both were examined and also cross examined by the prosecution as well as on behalf of the accused. Their testimonies will be discussed in detail and appreciated in the later part of this judgment.
31. I have heard the arguments advanced by Sh Satish Aggarwal, Ld SPP for DRI, assisted by Sh Vikas Gautam, Advocate, and Ms Rajni Singh, Ld counsel for the accused and I have also perused the evidence led and the other record of the case, including the written submissions/ arguments filed on record on behalf of both the parties.
32. It is well settled that the onus of proving its case beyond reasonable doubts is always upon the prosecution and in a case under any enactment like the NDPS Act laying down severe punishments, this onus becomes more high in degree and the duty of the court is to ensure that the provisions of such an enactment are complied with strictly and a higher degree of SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
22assurance is required for convicting the accused. Reference in this regard can be made to the judgment in case of State of Punjab Vs Baldev Singh 1999 Drugs Cases 150 : (1999) 3 SCC 977, wherein it was held that:-
"It must be born in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed".
33. Reference can also be made to the case of Mausam Singh Roy Vs State of WB (2003) 12 SCC 377 wherein also it was held that it is a settled principle of criminal jurisprudence that the more serious the offence is, the stricter is the degree of proof, since a higher degree of assurance is required to convict the accused.
34. When the proposition of laws laid down in the aforesaid cases are applied in this case, it is found that the story of the prosecution and the evidence led on record in support of the same do not meet out the standards laid down in the above said cases so as to believe the case of the prosecution and to make it a basis of conviction of the accused. Besides this, the SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
23very credibility and trustworthiness of the prosecution witnesses is under serious clouds which render the entire evidence led on record to be unworthy of acceptance and being acted upon to base the conviction of the accused. This is so as the evidence laid on record is full of material contradictions, inconsistencies and lacunae which make very apprehension of the accused persons and the recovery of the contraband substance etc. in the given manner to be doubtful.
35. The very basis of the prosecution case is the secret intelligence gathered by PW4 Sh K.S.Ratra and reduced into writing by him as Ex. PW4/A. However, the authenticity of even this document is under doubts and the possibility is there that this document has not come into existence at the time when it purports to have been written and rather it might have been created subsequently. As per the depositions made by PW4 the above intelligence was gathered by him through a telephonic call made by some male person on an EPBX phone installed in his room, but this fact is not found disclosed in the above information Ex. PW4/A. Though this fact could have been ignored in a normal case, but coupled with certain other discrepancies, it makes the above version of the prosecution story to be SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
24doubtful.
36. PW4 has stated on record that at the relevant time and date his immediate senior officer was Sh K.K.Dhasmana, SIO, but the information was submitted by him to Sh P.S.Gulati as at that time Sh K.K.Dhasmana was not in the section and also in view of the crucial time disclosed by the informer in the information. Though, the above information was not strictly required to be put up by PW4 to his immediate official superior as provided by Section 42(2) of the NDPS Act, as the above Section is not found applicable in this case as the information was not regarding the transportation etc. of a contraband substance in any vehicle or conveyance or concealment thereof in any building or closed place, but the above depositions of PW4 certainly affect the credibility of the prosecution evidence because if his above depositions regarding Sh K.K.Dhasmana being not in the section/ office at that time are believed to be true, then there was no occasion for PW12 Sh P.S.Gulati to have marked or assigned the above information to or in the name of Sh K.K.Dhasmana. PW12 has clearly stated on record in his examination that he had directed Sh K.K.Dhasmana to take necessary action for mounting surveillance and interception of the above said person SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
25vide his endorsement made on the said intelligence report Ex. PW4/A, which was made from portion X to X1 of the said information.
37. Further, though as per the depositions made by PW12 Sh P.S.Gulati and his above endorsement made on the said information, the above intelligence was marked or assigned to Sh K.K.Dhasmana for further action, but strangely enough Sh K.K.Dhasmana has neither been examined on record and nor his name was even cited in the list of the prosecution witnesses, though he was an important part and link of the prosecution story. Again, though, the above intelligence was marked to Sh K.K.Dhasmana, but there is no explanation on record from the side of the prosecution as to how Sh N.D.Azad had taken over the task of directing the constitution of a raiding team to act upon the said information because as per the IO/PW1 he was asked and directed to constitute a raiding team by Sh N.D.Azad and even PW2 Sh N.D.Azad has claimed that he had directed the IO Sh Devender Singh to constitute the raiding team for acting upon the above information. He has not been able to explain as to by whom he was authorized to give the above directions or to act upon the said information. In view of the above facts, the very genuineness and SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
26authenticity of this document of the prosecution, which is the root of their case, is seriously doubtful and it appears to be a manipulated document.
38. The next thing to be observed in this case is that all which was conveyed by the alleged informer to PW4 and reduced into writing by him in Ex. PW4/A was that one Sikh person of Afghan nationality, aged about 40 years, would come with approximately 6 KG of narcotic drugs, i.e. heroin, between 10 PM to 10.30 PM in the streets of Mansaram Park, Uttam Nagar, New Delhi and no particular number of any street of the said locality was given or recorded in the said information. Out of the seventeen witnesses examined by the prosecution on record, only three of them, i.e. the IO/PW1 Sh Devender Singh, PW2 Sh N.D.Azad and PW4 Sh K.S.Ratra have claimed themselves to have visited the above spot in pursuance of the said information. However, none of the above three witnesses has been able to tell as to in which particular street of the said locality the above person was expected to arrive or had actually arrived and was apprehended by the members of the raiding team. According to the IO/PW1 the members of the raiding team, alongwith two public witnesses, had reached the above area at about 9.45 PM, but he has not been able to tell as to how many SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
27streets are there in Mansaram Park and he has also stated that he cannot tell as to at which particular place in Mansaram Park they had gone at that time, though it is also stated by him that they were at the end of the main street which enters in the Mansaram Park. He has also stated that though it was night time, but the lights were on outside some of the residential houses and street lights were also on, but he has not been able to tell whether there were any residential houses or shops near the spot of apprehension of the accused or not. Though, he has also stated that they had waited there for about one hour at the spot for the accused, but he has not been able to remember if there were any electricity poles near the spot or not and he has just vaguely stated that the members of the raiding team were standing scattered and someone was standing in the light and someone in the dark.
39. PW2 Sh N.D.Azad has also stated that he had reached the above spot, i.e. Mansaram Park, at about 10 PM and surveillance was kept in the said area and he was standing near a gali in Mansaram Park which is a residential area and there was also a street light where he was standing at the spot, but he was standing there alone though the officers were coming and going SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
28from the place where he was standing and discussing things with him. Even PW4 Sh K.S.Ratra has stated on record that he was standing near the street at Mansaram Park, but it is very difficult to exactly point out the said street. He has also stated that there were certain residential houses and business shops at the said place and he was standing alone at a corner of one street of the Mansaram Park and there was a cluster of streets there having cuts in various directions in the above said locality. It is clear from the depositions made by these witnesses that evidence led on record by the prosecution is not able to pinpoint the exact place or location of the alleged visit or apprehension of the accused Harpreet Singh.
40. It is also observed from the testimonies of the above three witnesses that the IO/PW1 has stated on record that on reaching at the spot they had mounted surveillance and at about 10.30 PM one Sikh person aged about 40 years was seen coming from the side of the street of Mansaram Park and the said person was carrying one paper bag in his hand. He has also stated that on seeing the officials, the said Sikh person had thrown away his hand bag in a side drain and immediately at that time the said person was apprehended and the above bag thrown away by him was SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
29also taken into possession. He has also stated that the accused was physically intercepted by him as well as by all the other members of the raiding team. However, on the contrary, PW2 and PW4 have both stated that in their statements made on record that they were standing alone at the relevant time and they have not claimed to have physically apprehended the accused or recovered the above paper bag containing the contraband substance from the above drain and rather the depositions made by them suggest that they had even not seen the accused carrying or throwing away the above paper bag allegedly containing the contraband substance. PW2 has specifically stated on record that after about half an hour of his taking position there, he had heard the conversation and when he had reached at the place he had found that the officers of the team were apprehending the accused (a Sikh person) and he has even not been able to give the names of the above officers. Though PW4 in his examination in chief has stated that he as well as the other officers had seen the above Sikh person having bag in his hand and the same was thrown away in a side drain (nali) by him, but in his cross examination he also went on to state that he heard the noise of an officer and subsequently ran to that place where he has seen the accused first time, but he do not now SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
30remember the name of the said officer who had actually apprehended the accused. PW4 further claims that the accused had started running before he was apprehended by the DRI team. But no other member of the raiding team has claimed also. The above depositions made by these material witnesses regarding the manner of apprehension of the accused and the place of his interception go to the root of the prosecution story and have an adverse effect on their credibility and also the credibility of the prosecution story as a whole.
41. Further, the very constitution of the raiding team of DRI which had apprehended the accused is not free from doubts. Admittedly, the names of the members of the raiding team are not given or mentioned in the above secret intelligence Ex. PW4/A and when PW12 Sh P.S.Gulati had assigned the above information for action to Sh K.K.Dhasmana, it was certainly left to the discretion of Sh K.K.Dhasmana to constitute the said team. However, as discussed above, Sh K.K.Dhasmana is not a witness in this case and rather Sh N.D.Azad is claiming to had given directions for constitution of the said team. According to PW1/IO the raiding team consisted of himself, Sh Ashwini Lau IO, Sh K.S.Ratra IO and Sh N.D.Azad SIO and some other SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
31officials of the DRI, DZU and as per PW2 the raiding team consisted of himself, IO/PW1 Sh Devender Singh, Sh Parmod Kumar driver and some other officers whose name he was not able to remember. PW4 Sh K.S.Ratra in his entire examination is silent about the constitution of the raiding team and his depositions only suggest that the team was being led by the IO/PW1 Sh Devender Singh and he was directed by his senior officer Sh P.S.Gulati to be a part of the raiding team. Though according to the IO/PW1, PW2 as well as PW4 were both the members of the raiding team and they both have also claimed so in their statements made on record, but strangely enough neither PW2 nor PW4 talks about participation of each other in the above raid.
42. Though the notices U/S 50 of the NDPS Act was given to the accused Harpreet Singh at the spot of his apprehension itself, but the said notice is not found to be signed either by PW2 or PW4 though they both had been allegedly present at the spot at the relevant time of the service of the said notice. Rather, strongly enough. PW2 has stated on record that he does not remember if any other proceedings were conducted in his presence or not (after the apprehension of the accused Harpreet Singh) and he also does not remember if the notice U/S 50 of the SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
32NDPS Act was given to the above accused in his presence or not. Even PW4 claims that the said notice was not served in his presence as immediately after the apprehension of the above accused, the accused was taken away by the members of the raiding team towards their vehicle which was parked nearby. These depositions of senior officers like PW2 and PW4 coupled with certain other contradictions and discrepancies to be discussed hereinafter make the very presence and participation of these witnesses in the raid to be doubtful.
43. Again, the participation of PW2 and PW4 in the raiding team is also made doubtful from their depositions made on record as though they both have claimed to have been present at or near the spot of apprehension of the accused persons, but they have not been able to give any specific answers to the questions put by Ld defence counsel regarding the manner of apprehension of the accused persons and rather they had tried to project as if they were only mute spectators in the proceedings and they were even not interested in the said proceedings. PW2 claims in his examination in chief that he had joined the raiding team being a senior officer and he was present at the time of apprehension of both the accused SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
33persons, and thereafter he had returned back to the office of DRI at CGO Complex, but in his cross examination he has also stated at one stage that he had not accompanied the team of officers for the spot and he had also tried to cover it up by volunteering that he had left the office at a subsequent time, i.e. after about ½ hour of leaving of the team members. He has also stated that after the apprehension of accused Harpreet Singh, he had not asked anything from the accused and he had returned back to his office on the direction of his senior officer Sh P.S.Gulati and no further proceedings were conducted in his presence and he had reached back in his office at about 11.00 PM. His these depositions are contrary to his claim of being present even at the time of apprehension of the other accused Erfan. PW4 also states that after the apprehension of accused Harpreet Singh, the accused was taken away by the IO/PW1 Sh Devender Singh for completing the other formalities as per the provisions of the NDPS Act and he had come back to the place where the official vehicle was parked and started waiting for further directions. He again claims that on the directions of his senior officers, he had also followed the team of officers as well as the above accused to the above hotel where the accused Erfan was arrested and then he again returned back to his SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
34office. The depositions of these witnesses coupled with the absence of their signatures on the above notice make it highly doubtful that they both were a part of any such raiding team allegedly constituted for interception of the accused Harpreet Singh.
44. The next material flaw in the story of prosecution is their evidence regarding the service of notices U/S 50 of the NDPS Act upon the accused persons. As per the prosecution story, the accused Harpreet Singh was apprehended from a street of Mansaram Park and on the basis of the enquiries made from him, the accused Erfan was also subsequently arrested from near M.D. International Hotel on the same day and the notice U/S 50 of the NDPS Act to accused Harpreet Singh was given at the spot itself whereas notice to the other accused was given in the DRI office subsequently. The IO/PW1 has also made specific depositions on record in this regard as far as the service of notice on the accused Harpreet Singh is concerned, but he was not able to remember the place where the notice was served upon the other accused Erfan, i.e. whether it was served at the spot of his apprehension or in the DRI office subsequently. The notice served upon the accused Harpreet Singh has also been proved by him on record as Ex. PW1/A and the SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
35notice given to the other accused Erfan is Ex. PW1/B. However, on perusal of the above notice Ex. PW1/A of accused Harpreet Singh, it is found that this notice is a typed notice and the same could not have been prepared at the spot and even none of the prosecution witnesses has claimed so. Hence, the same could have either been taken to the spot as having been already typed or the same could have been typed subsequently in the DRI office, but the later possibility is more strong as the complete particulars of both the accused persons are found mentioned in these notices and it could have been only after the apprehension of the accused persons as their names and other details were not given in the secret information Ex. PW4/A and were admittedly disclosed to the IO/PW1 by the accused persons at the time of their apprehension only.
45. However, the IO/PW1 has tried to be over smart when during his cross examination, he has stated on record that the typed notice U/S 50 of the NDPS Act was given to the accused at the spot after the information was given to the standby team of their department regarding the interception of the accused and they brought the notice in the typed form at the spot. However, he was not able to remember as to who had given the details mentioned in the above notice to SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
36the standby team for typing the notice and his these depositions at least suggest that he was not the person who had informed the alleged standby team. He was also not able to remember the name of the officer of the standby team who had brought the above typed notice at the spot and he has also admitted that the above facts or story regarding the standby team are not found mentioned in the panchnama. The distance between the spot and their office was stated by him to be around 20 kms.
46. It is also observed from the evidence led on record that neither PW2 Sh N. D. Azad nor PW4 Sh K.S.Ratra in their statements has uttered even a single word regarding any such standby team of DRI in operation at the relevant time and this is despite the fact that PW2 claims to have directed the constitution of the raiding team. Even PW12 Sh P.S.Gulati, who had directed action on the said information in writing, examined subsequently on record is silent regarding any such standby team of DRI and the above facts clearly suggest that the IO/PW1 was telling lie when he had introduced the concept of standby team for the first time on record during his above cross examination and his depositions in this regard can outrightly be rejected and the evidence led on record SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
37can only lead to one conclusion that the above notice Ex. PW1/A was not prepared or had not come in existence at the spot and this document was created or manipulated by the IO/PW1 while sitting in their office. Moreover, even PW2 and PW4 have both not made any claim regarding the service of the above said notice by the IO/PW1 upon the accused Harpreet Singh at the spot in their presence and the said notice is also not found to be bearing the signatures of these witnesses. The above facts give serious blow not only to the credibility of the IO/PW1, but to the case of the prosecution as a whole.
47. The next material discrepancy and contradiction of the prosecution story is regarding the joining of the two public witnesses in the raiding team. According to the IO/PW1 before leaving their office, he had called the two public independent witnesses from the nearby area of CGO Complex, where their office is located, but he was able to remember the name of only one such public witness as Rajpal and was not able to remember the name of the other public witness. Strangely enough, PW2 and PW4 are silent regarding the joining or participation of any such public witnesses in the above raid. Though the two public witnesses namely Sh Rajpal and Sandeep Kumar SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
38were allegedly present at the time of interception of the accused persons from the above spot and the giving of the notice Ex. PW1/A to accused Harpreet Singh at the spot, but the above notice is not found to be signed by any such witnesses. According to the prosecution case, the above two public witnesses had even accompanied them back to their office and had participated in further proceedings conducted in their office regarding the seizure etc of the above contraband substance and the documents like panchnama Ex. PW1/C, arrest memos of accused Ex. PW1/O and PW1/P and test memos PW1/D, PW1/E and PW1/T etc are found to be signed by these witnesses.
48. However, as discussed above, the prosecution has failed to examine the above two public witnesses on record during their evidence led on record and both these witnesses were ultimately dropped on their request as their given addresses were reported to be incomplete/not existing. The above two public witnesses Sh Sandeep Kumar and Sh Rajpal were subsequently examined on record as CW1 and CW2 respectively as the prosecution has not shown enough interest in summoning them as their witnesses, though it was brought on record by the accused that the said witnesses were still existing at their given SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
39addresses.
49. Both the above witnesses have stated on record that they are permanent residents of their given addresses of Village Sadarpur, District Ghaziabad, U.P. and are residing at their given addresses since birth and they had never received any process for appearance from this court, prior to their being summoned as court witnesses vide the above order. CW1 Sh Sandeep Kumar has stated that at the relevant time, i.e. in February 2008, he was working as a peon in FPD department, Paryavaran Bhawan, CGO Complex, Lodhi Road and CW2 Sh Rajpal has stated that he was working as sweeper in the above building and both of them have also stated that they were not permanent employees, but were working for different contractors. They both have stated that on a day in the above month, they were approached in their respective offices by some officer of DRI already known to them and were taken to the office of DRI during the day time and were made to sign and thumb mark on various blank documents. As per CW1, he had signed the documents whereas CW2 claims that he being illiterate had only thumb marked the documents as he do not even know to sign his name. CW1 has also stated that he was told by the above officer of DRI SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
40that it was a government work and he will not have any trouble by signing the above documents.
50. Both the above witnesses were extensively cross examined by the prosecution, but even during their such cross examination, they had not supported the prosecution case of their being joined in the above raiding team of DRI officers which had apprehended the accused persons from the above said places and had recovered the contraband substance in the evening/night of 14.02.2008. Rather, their depositions suggest that they were only made to sign some blank papers in the DRI office during some day time, which might be on 15.02.2008 only, i.e. the next day of the alleged seizure. On being suggested on behalf of Ld SPP for DRI, these witnesses have also specifically denied each and every suggestion given to them regarding their being a part of the above raiding team, interception of the accused persons or the seizure of the above substance or their signing on the said documents at the relevant time of the preparation thereof. They have also specifically denied that they had ever gone to the Mansaram Park area in Uttam Nagar with the DRI officers for any purposes and though they have stated that they had seen the accused Harpreet Singh and one other person SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
41in the DRI office at the time when they were called in the said office for signing the above documents, but they have also stated specifically that no seizure or sampling proceedings etc were carried out in their presence and they had only seen one potli/parcel lying in the office of DRI which contained some substance weighing around 100/150 gms, which was told to them to be drugs.
51. The depositions made by the above two material witnesses of the prosecution story, who though have not been examined by the prosecution as their witnesses, give a serious dent and blow to the credibility of the prosecution story and this coupled with the fact that the prosecution has not taken any interest in their examination on record only leads to an inference that the above witnesses are telling truth and no such public witnesses were ever joined in the alleged raiding team or made to participate in the alleged seizure. Both the above witnesses have also produced on record their election cards of their given addresses and their above addresses were intimated to the accused in a reply furnished to his application under the RTI Act and this fact shows that though these witnesses were cited by the prosecution in their list, but it never wanted to examine these SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
42witnesses and for that the possibility also appears to this court that the the prosecution even got manipulated the reports regarding the non availability of the above witnesses at their given addresses through their process servers. The depositions made by these two witnesses not only disprove their participation in the above raid, search and seizure proceedings etc, but the same make the entire story and evidence of the prosecution to be doubtful and unworthy of being accepted for conviction of an accused in a serious case of NDPS Act and where a minimum punishment of 10 years of rigorous imprisonment has been prescribed for the charges framed against the accused.
52. Besides the recovery of the above contraband substance, the next incriminating evidence of the prosecution against the accused is his alleged statement U/S 67 of the NDPS Act made before the IO/PW1. As per the prosecution case, the above statement Ex. PW1/H was made by the accused voluntarily in his own handwriting and it was tendered in response to the summons Ex. PW1/G served upon him. However, various discrepancies are being observed in the evidence of the prosecution in this regard which lead this court to an inference that even this SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
43statement of the accused was fabricated by the DRI officers.
53. As far as the admissibility of such a statement made by an accused under NDPS Act is concerned, it is now well settled that if such a statement is made by the accused voluntarily, it can not only be acted upon by the court, but it can also be made the basis of the conviction of the accused. However, if such a statement has been subsequently retracted upon by the accused then such a retracted confessional statement of the accused, even though the retraction is not proved in evidence as per law, has been held to be a very weak peace of evidence and it cannot be made the basis of the conviction of the accused in the absence of any independent corroboration thereof. But the entire facts and circumstances of a case are to be looked into for arriving at a conclusion regarding the voluntariness of such a statement and those leading to retraction thereof. Reference in this regard can be made to judgments in cases of Kanhaiya Lal Vs. Union of India 2008 (1) JCC (Narcotics) 23, Raj Kumar Karwal Vs. Union of India & Ors. (1990) 2 SCC 409, Kanhaiya Lal Vs. Union of India 2008 (1) AD (Crl.) (SC) 277:2008 (1) JCC (Narcotics) 23, Francis Stanly @ Stalin Vs SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
44Intelligence Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124, Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC) and Noor Aga Vs State of Punjab & Anr. 2008(9) Scale 681, some of which have been even referred to from both the sides.
54. It is observed from the record that according to the prosecution case and panchnama Ex. PW1/C, the panchnama proceedings had started at around 8.30 PM on 14.02.2008, which is the stated time when the public witnesses had presented them before the IO/PW1, and it had lasted till 10.00 AM on 15.02.2008. The summons U/S 67 of the NDPS Act given to the accused Ex. PW1/G are found to be dated 14.02.2008 and the same had been given for his appearance before the IO/PW1 on 14.02.2008 itself at 11.30 PM. The statement tendered by the accused in response to the said summons is Ex. PW1/H and the same is dated 15.02.2008. It is nowhere clear from the above statement that it was started on 14.02.2008 and it could also not have been possible for the IO/PW1 to have served the above summons upon the accused or to have written his statement under the above provisions till the panchnama proceedings were in progress and the same had concluded only on 10.00 AM on 15.02.2008. Moreover, the time of apprehension of accused Harpreet Singh was only about 10.30 AM on SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
4514.02.2009 and thereafter the DRI officers, alongwith the above accused, had gone to M. D. International Hotel to apprehend the other accused Erfan and they had returned back to their office only thereafter and might have consumed considerable time in the panchnama proceedings and hence the statement of accused Harpreet Singh could never have been fixed for recording at 11.30 PM on that day and it was recorded only after conclusion of panchnama proceedings and this fact is also clear from the contents of his statement Ex. PW1/H itself which refer to the testing, sampling and sealing proceedings. This is the first circumstance which shows that the above summons Ex. PW1/G were as manipulated subsequently and the possibility also becomes that even the above statement Ex. PW1/H was so manipulated.
55. The next thing which is observed regarding the above statement is that that the entire statement has been written by the accused in capital English alphabets and it is the contention of Ld defence counsel that since the accused was an Afghan national, he was well conversant only in Urdu, Pashto and Gurumukhi languages and he was not well conversant in Hindi and English languages, though he could speak and understand Hindi languages. It has also been submitted SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
46that the accused was only familiar with writing English alphabets in capital letters and that is why he was made to copy an already written statement by the DRI officers and seeing the facts and circumstances of this case, the possibility of this case cannot be ruled out that the accused was made to copy an already written statement in capital English alphabets, while incorporating certain personal details. The IO/PW1 has also admitted that he had not even asked the accused to write his statement in Gurmukhi language. Apart from the contents of the above statement, the IO/PW1 failed to collect any further corroborative material during the investigation to substantiate the submissions made by the accused in the said statement. Even no record of any conversation or meetings between him and the other co-accused Erfan was collected or produced on record.
56. Moreover, the accused is already found to have retracted his above confessional statement vide his subsequent retraction application/statement dated 29.02.2008 written in Gurumukhi language (Punjabi language) and the same has been exhibited as Ex. PX on record during his statement recorded U/S 313 Cr.P.C. and an English translated version thereof has also been tendered on record as Ex. PY. In his above SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
47statement, the accused has specifically denied his apprehension from the above spot or the recovery of the above contraband substance and has also claimed to have been physically tortured for extracting the above statement and signing some papers. The above retraction application has been filed by him on record just on the date of next production of the accused in court, after his first appearance subsequent to his arrest, and there is found to be no unreasonable delay on his part in moving of the above retraction application.
57. Further, in his above retraction application, the accused had specifically stated that he was physically tortured by the DRI officers while in their custody after he was picked up from the area of Uttam Nagar and he had also suffered some injuries in the said beatings and was also got medically examined by the Jail Authorities from a government hospital after being remanded to custody. The accused has also summoned and examined one Dr Uday Kumar Singh of DDU Hospital in his defence and this witness has proved on record one MLC of the accused prepared in the said hospital as Ex. DW1/A and has also brought on record a copy of one letter of the Jail authorities for his medical examination as Mark X. SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
4858. According to this witness, the accused was examined in the casualty of the above hospital on 15.02.2008 with an alleged history of assault on 14.02.2008 by the police, as told by the patient himself, and on his physical examination multiple bruises of various sizes were observed on both his arms, back, buttocks, left thigh, left ankle, left knee, left leg, right leg and hands. The depositions of DW1 coupled with the contents of the above MLC clearly show the presence of extensive external injuries on the person of the accused when he was sent to jail after his appearance in court on 15.02.2008 and this also lends support to his submissions that he was tortured by the DRI officers for extracting the above confessional statement and for signing of the various documents. Though one MLC of the accused of RML Hospital dated 15.02.2008 has also been brought on record during the statement of the IO/PW1 as Ex. PW1/Q, but the same has not been proved on record as per the provisions of the Evidence Act and rather in view of the above subsequent MLC Ex. DW1/A on record, the every possibility is that the first MLC of the accused was also got manipulated by the DRI officers from RML Hospital without his actual physical examination as it shows no fresh external injuries on the body of the accused since as per the record SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
49nothing had happened thereafter in which the accused could have suffered such injuries as are mentioned in his subsequent MLC of even date Ex. DW1/A. Thus, the above discussion leads this court to believe that the above statement of accused DW1/H U/S 67 NDPS Act is not his voluntary statement and cannot be used against him.
59. Besides the above, some other discrepancies are also observed in the evidence led by the prosecution on record. According to the prosecution case, the above seal of DRI used in this case was issued to the IO/PW1 by PW11 Sh Sanjay Kumar vide entry in the seal movement register Ex. PW1/F on 14.02.2008 and the same was returned back to him on 18.02.2008 and the time of issuance of the seal stated by him and also mentioned in the above document is 7.00 PM. However, it is found that there is an overwriting in the above entry and it clearly appears to this court that the date of issuance of the seal has been changed from 15.02.2008 to 14.02.2008 in the said entry, which again is a circumstance to show that the documents were created by the DRI officers subsequently and even this document was antidated. Further, though according to the above witnesses of recovery, i.e. the IO/PW1, PW2 and PW4, the co-accused SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
50Erfan was subsequently apprehended on the same day from near M.D. International Hotel, but as per the three official witnesses of the above hotel examined on record as PW15 to PW17, the above accused Erfan was taken away by the DRI officers from the hotel lobby itself. PW15 was working as an accountant in the said hotel at the relevant time and according to him when he had returned for his duties in the morning of 15.02.2008, he was informed by the Duty Manager Sh Ram Lochan Yadav on duty in the previous night that one Afghan guest namely Mr. Erfan was taken away by the DRI officers from the hotel during the previous night. He is a witness of the seizure of the above currency amount of 80,000 US $ from room no. 404 of the accused Erfan vide panchnama Ex. PW8/B signed by him, but he has stated that the currency amount was not counted in his presence. PW16 Sh Ram Lochan Yadav has also stated that when the DRI officers had visited their hotel in a night in February 2008, they had stated that they wanted to meet one Erfan staying in their hotel and they had also taken the above Erfan, who was present in the lobby area of their guest house. Even PW17 claims to have been informed by PW16 on the next day about taking away of the above accused Erfan from their hotel. The depositions made by these three witness regarding the apprehension of accused Erfan SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
51from inside the above hotel and not from outside or near the hotel also effect the credibility of the prosecution witnesses and story.
60. Ld SPP for DRI has also argued that in view of the legal presumptions about the consciousness of possession and the mental state of the accused contained in Sections 35 and 54 of the NDPS Act, the onus lies upon the accused to prove his innocence and the absence of such consciousness to possess the above contraband substance and to explain his possession of the said substance. However, the above arguments and submissions being made by Ld SPP for DRI are without any merits as the above presumptions contained in the above sections can come into operation only when the evidence led by the prosecution on record regarding the recovery of such contraband substance from the possession of the accused is convincing and trustworthy and these presumptions cannot be resorted to if the evidence regarding recovery of possession is doubtful or under serious clouds, as is in the present case. Reference in this regard can be made to the celebrated case of Noor Aga Vs State of Punjab & Anr. 2008(3) JCC (Narcotics) 135, wherein the following observations were made by the Hon'ble Supreme Court:-
SC No. 51A/08 DRI Vs Harpreet Singh & Anr.52
87. "Section 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
61. It is also an argument of Ld SPP for DRI that the defence of false implication taken by the accused is a very weak defence and no evidence has been led by the accused on record in his defence to substantiate the same and hence, the case of the SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
53prosecution should be believed, but this argument also does not hold good as the prosecution has to prove its case against the accused beyond reasonable doubts and it cannot be given any advantage of the weakness of the defence. Simply because the accused has admitted that he was picked up by some persons from the above place, it cannot be taken to be an admission on his part of his guilt or the possession of the above contraband substance.
62. One other contention of Ld SPP for DRI is that huge recovery of heroin weighing about 6 kg has been effected from the possession of the accused and in view of the law laid down in case of State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, the question of implanting of the same does not arise and the prosecution case should be believed. However, as discussed above, the evidence led by the prosecution on record regarding recovery of the above contraband substance is not found to be convincing and the same is highly doubtful and there is also manipulation of various documents visible on record and hence, the accused cannot simply be convicted in this case as the contraband substance shown to have been recovered from him is more than 6 kg in weight because the prosecution has failed to lead on record SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
54some concrete and convincing evidence to show its recovery from the possession of the accused. The above currency amount of 80,000 US$ has also not been directly linked with him during the trial by any satisfactory evidence.
63. In view of the above discussion, it is found that the evidence led by the prosecution on record regarding the recovery of the above contraband substance from the possession of the accused is not convincing enough and is highly doubtful and it cannot be made the basis of conviction of the accused. His alleged retracted confessional statement U/S 67 of the NDPS Act and the alleged statement of his co-accused under the said provision are also very weak pieces of evidence and the very voluntariness thereof is under serious clouds. Apart from the above evidence, no other corroborative evidence has also been led on record to establish the existence of any criminal conspiracy between the two accused to deal in contraband substances or to possess the above quantity of heroin. Though some other points have also been raised and some other judgments cited from both sides, but in view of the above any further discussion about the evidence and case law is not required.
SC No. 51A/08 DRI Vs Harpreet Singh & Anr.
5564. With the result, the accused is being acquitted of the charges framed against him for the above offences punishable U/S 21(c) and 29 of the NDPS Act. The accused is in judicial custody. Let Jail Superintendent be intimated that he is not required to be detained in custody in this case further and can be released. But, however, since he is not an Indian national and is a national of Afghanistan, he be dealt with accordingly as per law.
65. The case property be also confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment and order on sentence.
66. However, the bond U/S 437A Cr.P.C is yet to be furnished by the accused. He is directed to furnish a personal bond in the sum of Rs 25000/- with one surety for the like amount within a week and file be consigned to record room thereafter.
Announced in the open
court on 05.10.2013 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No. 51A/08 DRI Vs Harpreet Singh & Anr.