Delhi District Court
1. Ncb vs . 1. Mohd. Yakoob Mir on 27 January, 2010
IN THE COURT OF SH. SANJIV JAIN
SPECIAL JUDGE: NDPS: PATIALA HOUSE COURTS, NEW DELHI
Date of Institution:21.3.2003
Judgment reserved on: 24.12.2009
Date of pronouncement: 27.01.2010
SC No. N99/08
ID No. 02403R0174152004
1. NCB Vs. 1. Mohd. Yakoob Mir
s/o Abdul Gani Mir,
r/o Village Kitriten, P.O. and Tehsil
Bij Behara, District Anantnag,
Jammu &Kashmir
2. Mushtaq Ahmed
s/o Abdul Majid
r/o VPO and Tehsil
Bij Behara, District Anantnag,
Jammu &Kashmir
JUDGMENT
1. The Narcotics Control Bureau (NCB) through its Intelligence officer (IO) Satender Tomer filed a complaint against the accused Yakoob Mir and Mushtaq Ahmad.
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2. Facts emanating from the complaint are that on 20/10/2002 Sh P.L. Verma, Superintendent (DZUNCB) received a secret information that one Yakub has brought some narcotic drugs in a truck no. JK01A 8636 from Anantnag and at present he has parked the truck on G.T. Karnal Road, Toll Tax Post parking near Singhu Border for making delivery of the contraband to someone. The information was reduced into writing and forwarded to Sh. S.D. Sahay, Assistant Director who issued search authorisation in favour of Satender Tomer to conduct personal search / search of the belongings of Yakub Mir.
Two independent witnesses namely Birender and Sagar were joined. The raiding party and panch witnesses reached at toll tax parking, where at 0530 hours the panch witnesses and the officers of NCB spotted the truck. Two persons namely Mohd. Yaqoob Mir and Sajjad Hussain were sleeping on the top of the truck. The officers told them about the information, showed them the search authorization. Notices u/s. 50 NDPS Act were served upon them on which they recorded their refusal. The truck along with the panch witnesses was taken to the NCB office at R.K. Puram, for taking search since the place was not found conducive for search. The invoice of the goods was produced by accused Yakoob Mir which was in the name of Kishan Lal Khanna & Co. Delhi, New Subzi Mandi, Azadpur, Delhi. Sh.Raj Kumar, partner of the firm was contacted who came at the NCB office at about 2 9:00 a.m. All the 620 cartoons of apples were unloaded. On search of roof of cabin of the truck, one gunny bag and one wooden cartoon were found. On checking, the wooden cartoon was found to contain 9 packets A1 to A9 containing brownish semi sold substance. On testing, it gave positive for hashish weighing 18.075 kg. gross. The gunny bag was found to contain 14 packets B1 to B10 and C1 to C4 containing semi solid brownish substance giving positive for hashish weighing 49.950 kg. gross. Two samples of 25 grams each were taken out from three lots of packets and were sealed using the paper slips with the seal of NCB - DZU 2. The truck was also seized. Test memo in triplicate was prepared. On interrogation Yakoob revealed that the seized hashish was to be delivered to one Mustaq who was staying in room no. 102 in Hotel Samir guest house, Ballimaran Delhi. The information was reduced into writing and forwarded to Sh. S.D. Sahay. Search authorization was issued in favour of Mangal Singh. NCB officers reached there where its Manager Sh. Abdul Qyum and waiter Naim were joined as panch witnesses. Accused Mushtaq Ahmad opened the door of room no. 102. The officers told him about the information, showed him the search authorization. A notice u/s. 50 NDPS Act was served upon him on which he recorded his refusal. On search, nothing incriminating was recovered except his I card and some documents. A panchnama was drawn.
Summons u/s. 67 NDPS Act were issued to both of them to 3 appear before NCB office who tendered their statements admitting their roles.
3. Both the accused were arrested on 21.10.02. The consignment of apples was released to Sh. Raj Kumar. The seizing officer and the arresting officer submitted their reports u/s. 57 NDPS Act to the senior officers. The case property was deposited in the malkhana. Statement of panch witnesses were recorded.
The samples alongwith the forwarding letter and test memo were sent to CRCL through Havaldar Devinder Singh. As per report, samples were found to contain charas with THC content 5.4%, 5.3% and 5.2% respectively. After investigation, the accused were sent for trial for offence punishable u/s. 20 (b) (ii) (C) & 29 of the NDPS Act 1985.
4. On the appearance of accused, after complying with the requirements contemplated u/s. 207 CrPC and hearing arguments a prime facie case was made out under section 20 (b) (ii) (C) r.w.s. 29 NDPS against the accused. Charge was framed. They pleaded not guilty and claimed trial.
5. To substantiate its allegations against the accused, prosecution examined as many as seventeen witnesses. 4
PW1 Sh. B. L. Jain, Chemical Examiner analysed the sample and prepared his report ExPW1/1.
PW2 Sh. Sehdev Kumar, Assistant Chemical Examiner received the sample and issued receipt ExPW2/1.
PW3 Sh. Trilok Singh was the member of raiding party. Before him Sajad had tendered his statement ExPW3/A. He arrested the accused Mustaq Ahmad on 21/10/2001 vide memo ExPW3/C, conducted his personal search ExPW3/D and submitted report ExPW3/E u/s 57 NDPS Act.
PW4 Sh. Satender Kumar IO had led the raiding party. He proved the search authorization in his favour ExPW4/1, notice u/s 50 NDPS Act ExPW4/2 given to the Sajjad, notice ExPW4/3 given to the accused Mohd. Yakoob, notice ExPW4/4 given to the Raj Kumar, panchnama ExPW4/5, seized documents ExPW4/6, copy of test memo ExPW4/7, summons u/s 67 NDPS Act ExPW4/8 to Raj Kumar, ExPW4/9 to Yakoob Mir, ExPW4/10 to Sajjad Hussain Shah, ExPW4/11 to panch witness Birender, ExPW4/12 to Panch witness Sagar, entry in malkhana register ExPW4/13 seal movement register ExPW4/14, report u/s 57 NDPS Act ExPW4/15 and ExPW4/16 qua search and seizure, statement recorded u/s 67 NDPS Act of witness Birender, accused Mohd. Yakoob Mir, accused Mushtaq Ahmad, Abdul Kaium Manager of guest house ExPW4/17, ExPW4/18, ExPW4/19, ExPW4/20 and ExPW4/21 5 respectively, freezing order of truck ExPW4/22, report regarding involvement of Mustaq Ahmad ExPW4/23 statement of Sajjad Hussain ExPW4/26 and the complaint ExPW4/27. He identified the case property Ex. P1/1 to P1/15.
PW5 Ct. Devinder Singh had taken the sample to CRCL. PW6 Abdul Kayum was the Manager in Sameer Guest House, where accused Mustaq Ahmad had stayed. He proved search warrant ExPW6/1, notice u/s 50 NDPS Act ExPW6/2, panchnama ExPW6/3, papers recovered from accused Mushtaq Ahmad ExPW6/4 and summon u/s 67 NDPS Act ExPW6/5, entry register ExPW6/6. He had tendered his statement ExPW4/21 before PW4.
PW7 Sh. P.L. Verma was the Superintendent who had received the secret information ExPW7/1.
PW8 Sh. Mangal Dass was the member of raiding party who went to room no. 102, Sameer Guest House. He served the summons on Mushtaq Ahmad ExPW8/1 and submitted execution report ExPW8/2.
PW9 Shahid Hassan, IO had recorded statement of Sajjad Hussain ExPW3/A, ExPW9/1. He stated that in presence of Jyotimon, accused Mustaq had tendered his statement ExPW9/2 and ExPW9/3 recorded by Sajjad.
PW10 Sh. S.D. Sahai was the Assistant Director. He had received the intelligence submitted by PW7, issued search authoirsation and the seal DZU seal no. 2 to PW4. He also issued the seal DZU seal 6 no. 4 to PW8. He proved report u/s 57 NDPS Act regarding arrest of Mohd. Yakub Mir ExPW10/1.
PW11 Sh. Jagmohan Khati IO was the member of raiding party. He had recorded the statement of accused Yakoob Mir ExPW11/1 and ExPW11/2 before Karan Singh. He had arrested the accused Yakub Meer vide arrest memo ExPW11/3.
PW12 Sh. Jyotimon, IO recorded the statement of Raj Kumar ExPW12/1. In his presence, statements of Mushtaq Ahmad and Sajjad Hussain Shah were recorded. He was one of the witness of arrest and jamatalashi of accused Mohd. Yakoob Meer.
PW13 Karan Singh, IO was present when the statement of accused Yakoob Mir was recorded and accused Mushtaq Ahmad was arrested.
PW14 Sh. C.B. Singh was the Superintendent. On 22/10/2002 he had received report u/s 57 NDPS Act regarding arrest of the accused persons ExPW10/1 and ExPW3/E. On 11/12/2002 he had received the chemical test report and made entry ExPW4/13 in the malkhana register.
PW15 Havaldar Shiv Ratan Singh, Havaldar had recorded the statement ExPW15/1 of public witness namely Sagar before Sh. N.K. Chaudhary, IO.
PW16 Sh. Rajesh Kumar, the driver had brought the truck from Singhu Border to NCB office at R.K. Puram.
PW17 Sh. Raj Kumar was Commission agent of the fruits. He 7 proved his statement ExPW12/1 and partnership deed ExPW12/2.
6. Statement of accused Mohd. Yakoob Mir and Mushtaq Ahmad were recorded, wherein they pleaded their innocence and stated that they have been falsely implicated in this case. They did not examine any witness in their defence.
7. I have heard the arguments advanced by Ld. SPP Sh. Rajesh Manchanda for NCB and Sh. F. Haq and Sh. Manish Khanna Ld.counsels for the accused.
8. Ld. counsel Sh. F.Haq for the accused Yakoob Mir vehemently contended that as per the panchnama, the alleged contraband was found on the roof of the cabin of the truck. Accused Yakoob Mir, the driver and the cleaner Sajjad Hussain were sleeping on the top of the truck when it was spotted by the NCB officers. According to PW17 it was Sajjad who had pointed out the contraband to the NCB officers. Then on what basis Sajjad was let off and accused Yakoob Mir was implicated. The prosecution did not examine Sajjad who had tendered his statement u/s 67 NDPS Act and allegedly recorded the statement of Mushtaq though his examination was material in this case. Ld. counsel further contended that it was Sajjad who had brought the contraband but he after conniving with the NCB officers falsely implicated the accused 8 Yakoob. The prosecution did not produce toll tax receipts when the truck th th crossed the border to prove whether it was seized on 19 or 20 as according to PW 13 the truck had come on 19/10/2002. Ld. counsel further contended that the samples were allegedly taken from 3 bundles though as per panchnama 23 bundles were seized. In the absence of chemical analysis in respect of remaining bundles how can it be said that the remaining bundles contained charas as alleged by the prosecution. Ld. counsel stated that accused did not give any statement rather his signatures were obtained on blank papers.
9. For accused Mushtaq Ahmad, Ld.counsel Sh. Manish Khanna strenuously argued that no recovery was effected from accused Mushtaq as the drugs were allegedly recovered from the truck driven by Yakoob Mir. Two witnesses PW6 and PW13 have stated that the things happened on 19/10/2002. Both the witnesses were not declared hostile by the prosecution though as per the prosecution the information was received on 20/10/2002 and the recovery was effected on the same day. Ld. counsel pointed out certain contradictions in the statements of Mustaq, Sajjad, Yakoob Mir and Abdul Kayum to contend that prosecution case is not free from suspicion and their statements are not th voluntary. Yakoob Mir stated that he reached Murthal on 19 when he th called Mushtaq but Mushtaq stated that he had told Vikas on 18 that Yakoob had told him that he was at Murthal. The accused were not 9 given right to silence. The alleged punch witnesses were not examined. PW Abdul Qayum is a stock witness of NCB as he himself has admitted that he had appeared in 23 cases for NCB.
Ld. counsel further argued that no homogeneous mixture was made from all the drugs as per the guidelines. The cartoons of the drugs were not produced in the witness box. The truck was produced in accidental condition and no explanation was given by the prosecution how its front portion was damaged. The confession was got written from Sajjad who could have easily been trapped u/s 35 and 54 of the act. He was not produced as witness though he was a link to prove that what Mustaq allegedly stated was properly recorded. The accused has retracted from his statement. The delay in retraction was because that no confession of the accused was recorded. Only his signatures were taken on blank papers thus the accused took sometime to understand that it may be misused. The confession of both the accused are similarly worded as they had started with the details of their background providing full details of transactions. The accused were tortured by the NCB officials which is also evident from the testimony of PW17 who stated that when the goods were being unloaded the accused Yakoob Mir was tied by the NCB officer on chair with rope. Ld. counsel stated that as per the retracted statement, one Vikas had to pay to Mushtaq so how can it be said that he had to procure full quantity of contraband from Yakoob 10 Mir. The confession of coaccused cannot be used as a substantive piece of evidence without any corroboration. In support of his contention Ld. counsel placed reliance on the cases Alok Nath Dutta and Ors. vs. State of West Bengal 2007 (1) Crimes 321 SC, Noor Aga vs. State of Punjab and Anrs. JT 2008 (7) SC 409, Emma Charlote Eve vs. NCB 2000 (4) RCR (Criminal) 386, Gaunter Edwin Kircher vs. State of Goa (1993) 3 SCC 145, Rita Karoline Kummel vs. Customs and Anothers 82 (1999) DLT 245, Munna Ali vs. State 76 (1998) DLT 250, NCB vs.Murlidhar Soni and Others (2004) 5 SCC 151, Dhruv Kumar Nanjibhai Damo vs.STate of Gujarat 1993 (3) Crimes 831, NCB vs. Shyam Lal 2009 (110) DRJ 53, Francis Stanly vs. IO, NCB 2007 Crl. L.J. 1157, Abid Malik vs. UOI 2009ILRDLH19354.
10. Ld. SPP per contra argued that it is a case of recovery of huge quantity of charas from the truck brought by accused Yakoob Mir. In pursuant to the statement given by Yakoob Mir the raid was conducted at Sameer Guest House in presence of PW6 the hotel manager in room no. 102 from where accused Mushtaq was apprehended who had to take the delivery of hashish from the accused Yakoob. They remained in constant touch with each other during the time the contraband was brought from Anantnag to be delivered to Mushtaq. The prosecution had produced the bag, wooden box and the truck during evidence so all the physical evidence was produced. The samples were drawn from three 11 lots and were sent to the CRCL. The THC was also got determined which is evident from the report dated 9/12/2002 ExPW1/1. The information qua Yakoob Mir was very specific. Both the accused did not know each other from before. They had telephonic conversation. Effort was made to apprehend Amin Zaffar at whose instance the accused got involved in trafficking of charas but he could not be found. Accused Yakoob Mir did not retract from his statement recorded u/s 67 NDPS Act. No plausible reason was given by Mustaq in his retracted statement which was filed after a considerable time. The link witness PW6 has duly supported the case of the prosecution. PW13 was not the witness of seizure. In his presence, statements of Yakoob Mir ExPW11/1 and ExPW11/2 were recorded by PW11 who has duly proved the statements. There is nothing on record to show that the confession was extracted by use of force and threat. The material documents duly support the case of the prosecution. The contradictions pointed out by Ld. counsel are minor and do not touch the root of the matter. All the link witnesses have been examined to rule out the possibility of tampering with the case property. The testimony of prosecution witnesses remained consistent and cogent. So in view of the law laid down in the case M. Prabhulal vs. A.D. DRI 2003 (3) JCC 1631 SC, Rehmatulla Vs. NCB - 2008 (3) JCC (Narcotics) 174, Kanhaiya Lal vs. UOI 2008 (1) JCC (narcotics) 23, Abbas Khan vs. Central Bureau of Narcotics, Crl. Appeal no.101 of 2005, their statements under section 67 are 12 sufficient to base conviction. Further in the instant case, there is enough material to prove the guilt of the accused beyond doubt.
11. I have considered the rival contentions and gone through the voluminous evidence and the documents on record. I have also perused the case laws relied upon by the prosecution as well as the defence.
12. The accused have been charged u/s. 20 and 29 of the NDPS Act. Section 20 reads as whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder Produces, manufactures, possesses, sells, purchases, transports, imports interState, exports interState or uses cannabis shall be punished....
Section 29 provides punishment for abetment and criminal conspiracy. A person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to doing of that thing. Criminal conspiracy is defined u/s. 120A Indian Penal Code which reads as "when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
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13. In the instant case PW7 has deposed that he had received the intelligence ExPW7/1 on 20/10/2002 at 2:30 a.m. that one Yakoob of Anantnag was bringing some narcotics drugs in a truck no. JK01A 8636 from Anantnag and at present he has parked the truck at G.T. Karnal road toll tax post parking near Sindhu border for making delivery of the contraband to someone on 20/10/2002 itself. He had recorded the information in writing and put up before PW10 who directed PW4 to intercept the vehicle along with the team. PW4 was issued search authorization ExPW4/1. He stated that he along with PW3, PW11, PW9 and PW16 had gone to the spot along with the panch witnesses Sagar and Birender where they spotted the truck on which accused Yakoob Mir the driver and one Sajjad Hussain, the cleaner were sleeping. He stated that he showed them the search authorization, told them about the information, offered their search and served the notices u/s 50 NDPS Act apprising them of their legal right to be searched before a Gazetted officer or Magistrate which they refused. This fact was recorded on the search authorization itself vide ExPW4/2 and ExPW4/3. He stated that since it was not possible to search the truck on the highway by taking out the cartons so it was taken to the NCB office by PW16. Both Yakoob Mir and Sajjad along with the panch witnesses also went in the truck where PW17 the Commission Agent whom the delivery of the apple was to be given as per the builty, was called. In his presence the cartons were unloaded and from the top of the roof the 23 packets A 1 to A9, B1 to 14 B10 and C1 to C4 of charas in gunny bag/wooden cartons were recovered. He stated that three lots were made and from each lot two samples of 25 grams each were drawn. The test memo in triplicate was prepared. The case property and the samples were sealed with the seal of NCB DZU2. His testimony is duly supported by PW3, PW11. The seal was issued by PW10 which fact is proved by him. The search proceedings were witnessed by PW17. He had also signed on the panchnama ExPW4/5. The documents were also seized from accused Yakoob Mir vide seizure memo ExPW4/6. The seized contraband was deposited in the malkhana headed by PW14 who made entry in the register ExPW4/13. He also got the samples sent to CRCL through PW5. PW1, PW2, PW5 and PW14 stated that the seal on the samples and the case property remained intact. The case property was also produced in the court which was identified and exhibited as P1 to P15. During evidence, nothing was observed that case property and samples were tampered with in any manner. The report is proved by PW1 who analysed the samples with the assistance of PW2 as per which the samples were in the form of brown colour small irregular pieces i.e. hashish. The percentage of THC in the sample was found to be i. A0 5.4% i. B0 5.3% iii C0 5.2% 15 PW 4 stated that when the panchnama was being drawn, accused Yakoob Mir had disclosed that the recovered Hasish was to be delivered to one Mushtaq who was staying in room no. 102, hotel Sameer Guest House, Ballimaran whom he had contacted on telephone no. 3959597. In pursuant to the intimation given, PW10 authorised PW8 vide ExPW6/1 to conduct the search at the aforesaid guest house where PW8 contacted PW6 the hotel manager, went to the room of the accused Mushtaq Ahmad which was opened by accused Mushtaq himself which fact is proved by PW8 and PW6 in their testimony. PW8 stated that Mushtaq was told about the information and a notice u/s 50 NDPS Act was served on him, however, during search nothing incriminating was recovered. The accused Mushtaq was given summons in pursuant to which he came at the office of NCB tendered his statement u/s 67 NDPS Act incriminating himself as per which he had to supply the contraband to Vikas after taking delivery from Yakoob Mir on the instructions of Amin Zaffar. He had also admitted to have contacted accused Yakoob Mir and Vikas on the above telephone. This fact is also stated by PW6 the hotel Manager who stated that the accused had stayed in the hotel in the aforesaid room and he had called Mushtaq to attend the calls of Vikas and Yakoob Mir. He proved his statement ExPW4/21. He proved the entries on the register ExPW6/6 which were initialed/signed by accused Mushtaq. The reports u/s 57 NDPS Act 16 regarding seizure and arrest were submitted to PW14 which fact is proved by him in his testimony.
14. In the instant case, the bag and wooden box in which the charas was kept were produced in the court which was identified by PW4. The explanation given by the prosecution that since the truck was lying unattended for long, while handling at the time of its production before the court, its front portion was damaged carries weight. To my mind this argument does not turn the corner.
15. Now coming to the contentions, on perusal of the statement of Yakoob Mir ExPW4/9 and ExPW4/18 I find that it was he who had procured the contraband from Amin Zafar. He had to deliver whole of the contraband to accused Mushtaq Ahmad. He had given the room no. and telephone no. of the Mustaq Ahmad which was provided to him by Amin Zaffar. He had contacted accused Mushtaq on telephone on number of times informing him that he has reached Murthal and Sindhu Border. He had also stated that Sajjad did not have any role in the trafficking of contraband nor knew that he was carrying contraband in the truck. The statement of Sajjad was also recorded perusal of which reveals that he did not have any knowledge that the contraband was being carried in the truck. The statement of Yakoob clearly exonerates him in the present case further there is no retraction from the statement by Yakoob Mir at 17 any stage. The said statement contains certain facts/information which could only be revealed by Yakoob Mir on the basis of which further search was conducted in the room of Sameer Guest House in occupation of Mushtaq Ahmad. There is nothing on record to suggest that some force or duress was exercised on the person of Yakoob Mir when he tendered his statement u/s 67 NDPS Act.
16. I agree with the contentions of Ld. SPP that PW13 was not the witness of search or seizure. He was present when the statement of Yakoob Mir was recorded by PW11 who has duly proved his statement. So, no weight can be given to the contentions of Ld. Defence that the truck was caught on 19/10/2002. The secret information, other documents, coupled with the testimony of witnesses of search and seizure go to show that the truck was seized on 20/2/2002 in the morning hours which had reached the Singhu border on 19/10/2002. Non production of toll tax receipt in the present case is not fatal since NCB officers had brought the truck from the border to the NCB office.
17. In the present case PW6 in his examination which was recoded on 27/7/2005 and 15/12/2006 duly supported the case of the prosecution that in his presence the NCB offices had taken the search of the room no. 102, in occupation of accused Mushtaq Ahmad. He stated that summons were given to him as well as to the accused Mushtaq and 18 in pursuant thereto on 21/10/2010 he tendered his statement ExPW4/21. He also proved the entries made in the register ExPW6/6 showing the stay of accused Mushtaq in the aforesaid guest house. He has stated that the aforesaid telephone number was installed at the reception for the guests of the hotel. He has also stated that Mushtaq was called on telephone by Yakoob Mir and one Vikas. He was cross examined on 24/3/2009 on the application u/s 311 Cr.P.C. moved on behalf of the accused. He was tried to be tutored on facts but when he was called by the court, he categorically stated that what he had stated in his statement recorded on 27/5/2005 and 15/12/2006 was the correct one. He stated that he could not understand the questions put to him by Ld. counsel and he was under tremendous strain since her mother was hospitalised. He categorically stated that he was on duty when Yakoob Mir telephoned Mustaq in the guest house and Yakoob had asked him to contact Mushtaq. I find his testimony worth believing.
18. In T. Shanker Prasad Vs. State of Andrha Pradesh 2004 (1) JCC 200 it was held :
In a criminal prosecution, when a witness is cross examined and contradicted with the leave of court by the party calling him, his evidence cannot as a matter of law be treated as washed off record altogether. It is for the judge to consider the fact in each case, whether as a result of such cross examination and contradiction, the witness stands thoroughly 19 discredited or can still be believed in regard to a part of his testimony. If the judge finds that in process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the said witness, accept in the light of other evidence on record that part of his testimony which he found to be credit worthy and act upon it.
19. Though PW6 in his testimony has admitted that he has appeared as witness in 23 cases but, the question is whether this witness can be branded as stock witness. The answer is certainly not, however his testimony would require careful scrutiny. It was held in the case reported in 1989 Crl.L. J. 1181 that evidence of a witness cannot be discarded merely he had acted as panch witness once or twice earlier. In his statement he has given certain details about the accused Mushtaq and his stay in the hotel. He has also stated that accused Mushtaq used to stay in the hotel. Nothing can be inferred from his statement that he was interested in his false implication.
20. As regards examination of panch witnesses namely Birender and Sagar, it has been explained by the prosecution that they are not traceable at the said address despite summons sent. On this account, it cannot be presumed that accused are innocent. There is enough/ample material on record showing their involvement in the alleged incident. In the case of Nathu Singh vs. State of Madhya Pradesh, AIR 1973 SC 2783 it was held that The mere fact that the prosecution witnesses are 20 police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher v. Customs 2004(3) JCC 147.
21. In this case, testimony of PW3, PW4 PW6 PW8 PW11 and PW16 is wholly reliable and trustworthy. Nothing could be brought out in their cross examination to discredit them. Documentary and circumstantial evidence on record corroborate their statement. They had no motive or reason to falsely implicate the accused in this case. In the case of Krishna Mochi & Ors. vs. State of Bihar & Ors. 2002(2) CC Cases (SC) 58 it was held that : It is the duty of the court to separate grain from chaff - when chaff can be separated from grain, it could be open to the court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons - falsehood of particular material witness or material particular would not seclude it from the beginning to end - the maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
22. In Raghuvir Singh (Supra) it was held that prosecution is not bound to produce all the witnesses said to have seen the occurrence. It becomes the duty of the court to make an effort and find out the things. In the case of State v. Kishangopal AIR 1988 SC 2154 it was held that doubts would be called reasonable if they are free from zest for abstract 21 speculation. Law cannot afford any favourite other than truth.
23. As regards examination of Sajjad in the witness box, record reveals that the summons were sent to him but he was not found. The statement of Sajjad was recorded by PW9 in presence of PW12 who has proved the statement. Statement of Mushtaq was recorded by Sajjad before PW12. PW9 has proved the statements of Mushtaq. Hindi version of which was filed with the complaint. Nothing can be inferred from the statement and the testimony of witnesses that it were manipulated to exonerate Sajjad and to implicate Yakoob Mir and Mushtaq falsely in this case.
24. In the instant case, as per the panchnama, 23 packets were recovered. Three lots were made and from each lot, two samples of 25 grams were taken out. None of the witness deposed that the samples were taken from each of the packet and then it were homogeneously mixed and thereafter from that mixture the samples were drawn. There are standing instructions issued by the Narcotics Control Bureau as per which the seized drugs in the packets/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn. Normally it is advisable to draw one sample in duplicate in each packet/container in case of seizure of more than one packet/container. However, when the packet/container seized together 22 are of identical size and weight, bearing identical marking and the contents of each package give identical results on colour test by UN kit, conclusively indicating that packages are identical in all respect/ the packets / container may be carefully bunched in lots of 40 packets/ containers. For each such lot of packets/containers, one sample in duplicate may be drawn. While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package contained of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. This preposition was reiterated in the case of Rita Karoline Kummel (Supra).
25. It is not the case of the prosecution that the packet had identical markings or the contents of each package gave identical results on colour test by UN kit as in the present case no result was filed on the colour test by UN kit allegedly performed by the NCB officers on the spot.
26. In the case of Gaunter Edwin Kircher vs. State of Goa (1993) 3 SCC 145, two pieces of charas one weighing 5 grams and other 7 grams allegedly were recovered from the possession of the appellant. Only the piece weighing 5 grams was sent for chemical analysis. The report of the chemical analysis confirmed that the piece 23 contained charas. In view of failure to send the alleged piece weighing 7 grams for chemical analysis it was held that possession of more than the small quantity of charas is not established beyond reasonable doubt. It was held that in the absence of positive proof that both the pieces recovered from the accused contained charas only, it is not safe to hold that 12 grams of charas were recovered from the accused. The failure to send the other piece has given rise to this inference. It was observed that to obliviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law.
27. In the case of Nathiya and another vs. stated 1992 (1) crimes 537, total 301 bags of charas were seized. Only 31 samples were taken. Prosecution did not give explanation why the samples could not be taken from the other bags. It was held that the bags from which the samples were not taken, cannot be said to contain contraband as claimed by the prosecution.
28. Drawing the analogy from the above referred cases I am of the 24 view that the packets from which the samples were not taken cannot be said to contain charas as claimed by the prosecution. At best, the packets taken from lot (A1 to A9 weighing 2 kg.), (B1 to B10 weighing approx. 4.750 kg.) and (C1 to C4 weighing 2 kg.) from which the samples were taken, would be said to contain charas.
29. In the instant case, percentage of THC was got determined by sending the sample to CRCL which came to A0 5.4%, B0 5.3% and C0 5.2%.
In the case of Union of India vs. Mohd. Yonus Vs. CBI - 2008 (1) JCC (Narcotic) 33, it was held that THC content is a basic factor of actual quantity to Charas. It was cases of recovery of 11 kg. of Charas but considering the THC content, it was not treated as commercial quantity. The THC content was ascertained from hashish /charas to verify whether it comes under commercial quantity or less than commercial quantity. (Also see Union of India vs. Stephen Andreas Hofman 2007 VII AD (Delhi) 486).
30. Drawing the analogy from the case supra after ascertaining the THC, the actual recovery would not come under commercial quantity. It would be the case of less than commercial quantity i.e. 437.25 grams of charas.
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31. Now coming to the statement recorded u/s. 67 of the Act. Hon'ble High Court in the case of Rehmatullah v. NCB (supra) made reference to the judgments concerning the interpretation of section 67 NDPS Act and also referred the case of Raj Kumar Karwal v. Union of India 1991 CrLJ 97 (SC), wherein it was held that such statements made to the officers of the Department of Revenue Intelligence were not hit by Section 25 of the Evidence Act but still the twin tests of voluntariness and truthfulness will have to be satisfied.
In M. Prabhulal v. Assistant Director, supra it has been held that if the confessional statement is found to be voluntary and free from pressure, it can be accepted. This is no doubt true, but it all depends on the facts and circumstances of each case and no hard and fast rule can be laid down in this connection whether a particular alleged confessional statement should be accepted.
32. In the instant case, accused Yakoob Mir did not retract from his statement recorded u/s 67 NDPS Act nor filed any complaint that his statement was recorded under duress. Though PW17 stated that he had seen the accused Yakoob tied with rope when the goods were being unloaded but the accused never complained that he was tied with rope. No such suggestions were put to the other prosecution witnesses who had witnessed the search. In the instant case before his statement was recorded, he was explained the consequences of giving statement and 26 he after understanding tendered his statement ExPW11/1 and ExPW11/2 incriminating himself and Mushtaq. He has given certain information which could only be revealed by him. He has stated that he had taken the contraband from Amin Zafar at Anantnag which he had to deliver to coaccused Mushtaq who has been staying in room no. 102 , Sameer Guest house. The hotel register ExPW6/6 shows that accused Mushtaq had been staying in the said room which fact is also proved by PW6 and PW8. Perusal of statement ExPW4/21 reveals that firstly the accused Mushtaq had stayed in room no. 202 with his friends. After coming from Ajmer, he again came in the said room. When his friends left the hotel, he requested PW6 to give him room no. 102. As per the statement ExPW11/1 of accused Yakoob, the address and telephone no. were given to him by Amin Zaffar when he left with the truck on 16/10/2002. During investigation the same telephone no. was found installed at the guest house. PW6 stated that Yakoob Mir contacted Mushtaq on telephone and he had also called Mushtaq at the reception to attend the call of Yakoob Mir and Vikas.
33. The statements of Yakoob Mir and Mushtaq were recorded on the same day during evening hours by two different officers and so it cannot be said that the statement of one was manipulated after the other. Though the statements find certain words i.e. notice, panchnama, search authorisation, sample, seal but since these words were used by 27 the investigating agency during investigation so coming of these words in their statements were quite possible.
34. On perusal of the statement of Mushtaq ExPW9/2 and ExPW9/3, I find that he has given certain details that he had to take the delivery of the contraband from Yakoob Mir. He had contact with Amin Zaffar . He had to deliver the contraband to Vikas. He had contacted Yakoob Mir and Vikas on phone. He had changed the room from 202 to 102 and made entry in the register ExPW6/6. His retraction came on 1/4/2003. In his retraction he has stated that several lorry transporters who carry apples from Kashmir go back empty to Kashmir. He generally used to contact those transporters to carry his goods. One of such lorry driver who contacted him for shipment was allegedly involved in carrying the contraband material from Kashmir to Delhi. In the instant case it has come on record that both the accused did not know each other from before. Even they did not meet before. Had there been so, the question of Yakoob contacting him on telephone asking him to come with goods for Kashmir would not arise. It appears that it was an after thought retraction. PW9 and PW11 who had recorded their statements were subjected at anvil of cross examination and nothing came from them that it were obtained under threat. Accused Mushtaq was also explained the consequences of giving statement u/s 67 NDPS Act who after understanding tendered his statement ExPW9/2 and ExPW9/3 28 corroborating the facts which were revealed by Yakoob Mir in his statement ExPW11/1 and ExPW11/2. In the instant case, the retracted statement of Mushtaq and that of Yakoob Mir is not the only evidence against him. There is a material evidence in the form of PW6 to establish their complicity. Further the accused have failed to show that the statement made by them is false. They could not point out any fact mentioned thereon is the mere brain waive of the NCB officer.
35. In a case of criminal conspiracy or abetting, the direct evidence is seldom available. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution often relies on evidence of acts of various parties to infer that they were done in reference to their common intention. The conspiracy can undoubtedly be proved by such circumstantial evidence. In the case of Eran Eliav V. State 2008 Drugs Cases (Narcotics) 98 it was observed - Both abetment and criminal conspiracy are fiendishly difficult to establish by virtue of direct evidence, it can be established by indirect or circumstantial evidence which is of an impeccable nature.
36. Ld. counsel argued with vehemence that when accused Mushtaq could not write how he signed his statement. The explanation given by the prosecution that the accused could not write fluently but could sign carries weight since at no stage the accused disputed his 29 signature on the documents.
37. I have gone through the case laws (Supra) relied upon by the defence counsel. Legal preposition is not in dispute that confession can be acted upon but for the said purpose the court has to satisfy itself in regard to (i) voluntariness of the confession; (ii) truthfulness of the confession, (iii) corroboration. In a case of retracted confession, the courts while arriving at the finding of guilt would not ordinarily rely solely there upon and would look forward for corroboration of material particulars. It should be substantially corroborated by other independent and cogent evidences which would lend adequate assurance to the court that it may seek to rely thereupon. The use of the retracted confession against the coaccused stands of different footing from the use of such confession against the maker.
In the case of Vinod Solanki v. Union of India JT 2009(1) SC 1, reference was made to the judgments relied upon by the defence counsel including that of Noor Aga Vs. State of Punjab supra, it was held:
"Burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the 30 voluntary nature of statement or otherwise of a confession which has since been retracted, the court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such.
Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted at a later stage.
38. In the instant case on closer scrutiny of the statements coupled with the evidence, facts and circumstances of the case I find that the information given by the accused corelate them, PW6 has duly corroborated their complicity as accused Yakoob Mir while coming at Murthal and Singhu Border had made a call at the telephone installed at Sameer Guest House and made contact with Mushtaq. Mushtaq had 31 received call from Vikas whom the delivery of contraband was to be given finally. Nothing came in the evidence of witnesses that they had tortured them when their statements were recorded. Nothing material came in the testimony of PW 9 and PW11 to disbelieve them. I do not find any motive with the NCB to falsely implicate the accused. The NCB officers did not know accused Mushtaq from before. Accused Yakoob Mir did not cross examine PW17. Recovery is duly proved by the prosecution.
39. During arguments Ld. counsel referred the case of D.K Basu vs. state of West Bengal (1997) 1 SCC 416 to contend 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. He also referred the case of State of Punjab vs. Baldev Singh (1999) 3 SCC 977. In the instant case when the statements of the accused were recorded, they were not in custody . They were called in the office in pursuant to the summons given u/s 67 NDPS Act. Their arrest was made after the statements and the material collected during investigation. Even otherwise before recording their statements they were explained the provisions of the act and the consequences of giving statement. There is enough direct and circumstantial evidence to show their complicity. It was held in the case Rehmatullah vs. NCB (supra) that section 67 NDPS Act permits the recording of the statement made by the officers of NCB who are not the 32 police officers. At this stage the person concern is not an accused although he may be said to be in custody. But on the basis of statement made by him he could be made an accused subsequently. It has also been held in Pon Adithan V. Deputy Director NCB, Madras (1999) 6 SCC 1 that :
''Even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under Article 20 (3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence.''
40. Ld. counsel during arguments had laid stress on the point how the prosecution had presumed that accused Mushtaq had to take delivery of whole of the contraband from accused Yakoob. During arguments he gave an example i.e. if number of cars come in a lorry and the lorry owner informs a person who has booked a car that the cars have reached, it does not mean that he has to take delivery of all the cars.
41. The example given by the defence counsel in the present case does not hold water. It has come on record that the accused Mushtaq had to take delivery of whole of the contraband which accused Yakoob had brought in the truck. This fact has also come in the statement of 33 accused Yakoob Mir that he had to deliver the contraband to Mushtaq.
42. It is a case of recovery of huge quantity of charas. It is not possible to plant such a huge quantity upon the accused person. Moreover, there is no reason to falsely implicate the accused person. In the case of State of Punjab Vs. Balwant Rai 2005(1) JCC (Narcotics) 103: "The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H.P. 2005(1) Crimes 358 (H.P.) it was observed: "It is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person...... police had no axe to grind in implicating the accused".
43. Under section 54 of the Act ibid, it is presumed that the accused has committed an offence in respect of the narcotic drugs or psychotropic substances if found in possession which he has not satisfactorily explained. The accused Yakoob by preponderance of probabilities of evidence failed to prove that he was not in conscious possession of the same.
44. On considering the facts available on record, the documents, testimony of witnesses after its detailed scrutiny, no doubt is left in my mind that the accused Yakoob Mir had conscious possession of the 34 contraband i.e. charas. He had to deliver it to Mushtaq Ahmad who was party to abetting /procuring of contraband.
45. In the instant case all the procedural safeguards provided under a statute have been strictly complied with. The prosecution has discharged its burden of proving its case against the accused beyond all reasonable doubt. There is no question of conviction of the accused on a misguided suspicion. This case is not based on conjectures or surmises.
46. In the light of above discussions I hold them guilty and convict the accused Yakoob Mir of the offence punishable u/s 20 (b) (ii)(B) of the NDPS Act. I also convict the accused Mushtaq Ahmad of the offence punishable u/s 29 r.w.s. 20 (b) (ii) (B) of NDPS Act. Announced in open court (SANJIV JAIN) th on this 27 day of January, 2010 Special Judge, NDPS Patiala House, New Delhi.
35 IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI SC No. N99/08 NCB Vs. Mohd. Yakoob mir and Ors.
ORDER ON SENTENCE
1. Vide separate judgement dated 27/1/2010, accused Yakoob Mir and Mushtaq Ahmad have been convicted of the offence punishable 20 (b)
(ii)(B) of the NDPS Act and u/s 29 r.w.s. 20 (b) (ii) (B) of NDPS Act. respectively.
2. I have heard Ld. counsel Sh. F. Haq for both the convicts and Special PP Sh. Rajesh Manchanda for NCB on the point of sentence.
3. Ld. SPP has prayed for maximum sentence provided under the Act and submitted that the sentence should be proportionate to the gravity of offence.
4. Ld. Counsel Sh. F. Haq submitted that convicts are young men and do not have criminal antecedents. They have already gone rigor of incarceration for a period of about 7 years, Ld counsel has requested for taking lenient view.
5. I have considered the submissions.
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The Hon'ble Supreme Court in the case of Union of India Vs. Kuldeep Singh 2004 Vol. 2 SCC 590 held :
Imposition of sentence without considering its effect on the social order in many cases may be unreally a futile exercise. The social impact of the crime e.g. Where it relates to offences relating to narcotics drugs or psychotropic substance, which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude by imposing meager sentences of taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offence will be result wise counter productive in the long run and against social interest which needs to be cared for and strengthened by a string of difference inbuilt in the sentencing system. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
6. In the present case, the convicts are involved in the case of trafficking of hashish. The effect of consumption of hashish on the society is disastrous. It eats away the life and vigour in the society. Illegal trade of such a high quantity would have adverse impact on the lives of uncountable persons. Yakoob Mir had brought the Hashish from Anantnag for giving it to Mushtaq Ahmad. Accused Yakoob Mir is aged 37 about 32 years and not a previous convict. His wife and two small children are dependent on him. He was a driver on the truck. He is a poor man. He is in custody since the date of arrest.
7. Accused Mohd. Mushtaq is aged about 35 years and has wife and a son of 10 years. His two sisters are dependent on him. He used to sell old T.V. and refrigerator. He does not have previous involvement in such like case and remained incarcerated for about 7 years.
8. Taking into consideration the totality of facts and circumstances, antecedents and family background of the convicts, I sentence the convict Yakoob Mir to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.25,000/ in default thereof to undergo simple imprisonment for a period of six months. I sentence the convict Mushtaq Ahmad to undergo rigorous imprisonment for the period of six years and nine months and to pay fine of Rs.25,000/ in default thereof to undergo simple imprisonment for a period of six months. They are given benefit of section 428 Cr.P.C. The case property be confiscated to State after expiry of period of appeal or revision. File be consigned to Record Room.
Announced in open Court Sanjiv Jain
th
on this 29 day of January, 2010 Special Judge NDPS : New Delhi
Patiala House : New Delhi
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