Himachal Pradesh High Court
Unknown vs Narcotics Control Bureau on 26 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No.526 of 2017 a/w Cr. Appeal Nos.558 & 645 of 2017 and Cr. Appeal Nos.45 & 290 of .
2018.
Reserved on: 18th September, 2023 Decided on:_26th September, 2023 __________________________________________________________
1. Cr. Appeal No.526 of 2017 of Mortaza Hassan Ali Sheikh ....Appellant Versus Narcotics Control Bureau rt ....Respondent ____________________________________________________________
2. Cr. Appeal No.558 of 2017 Moti Ram ....Appellant Versus Narcotics Control Bureau ....Respondent ____________________________________________________________ 3. Cr. Appeal No.645 of 2017 Riyaaz Ali ....Appellant Versus Narcotics Control Bureau ....Respondent ____________________________________________________________ 4. Cr. Appeal No.45 of 2018 Lubna Sheikh ....Appellant Versus Narcotics Control Bureau ....Respondent ____________________________________________________________ ::: Downloaded on - 26/09/2023 20:35:31 :::CIS -2- 5. Cr. Appeal No.290 of 2018 Sadik Bedabi Abdul Sayyad & Anr. ....Appellants Versus .
Narcotics Control Bureau ....Respondent Coram Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? No of For the appellant(s): Mr. Rajiv Jiwan, Sr. Advocate with Mr. Manoj Pathak, Advocate for rt appellant in Cr. Appeal No.526 of 2017.
Mr. Balwant Singh Thakur, Advocate for the appellant in Cr. Appeal No.558 of 2017.
Mr. Manoj Pathak, Advocate, for the appellant in Cr. Appeal No.645 of 2017.
Mr. Bhupinder Singh Ahuja, Advocate for the appellant in Cr.
Appeal No.45 of 2018.
Mr. Ajay Kochhar, Sr. Advocate with Mr. Vivek Sharma and Mr. Anubhav Chopra, Advocates, for the appellant in Cr. Appeal No.290 of 2018.
For the respondent(s): Mr. Ashwani Pathak, Sr. Advocate with Mr. Dev Raj, Advocate, in all the appeals.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 26/09/2023 20:35:31 :::CIS -3- Tarlok Singh Chauhan, Judge Since all these appeals arise out of a single judgment rendered by the learned Special Judge, therefore, .
they were taken up together for arguments and are being disposed of by a common judgment.
2. All the appellants have been convicted.
of Appellants, namely, Sadik Bedabi Abdul Sayyad, Fakhrunnisa Abdul Rahim, Lubna Sheikh and Moti Ram rt have been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (Rupees one lac) each for commission of offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act (here-in-after referred to as 'NDPS Act') whereas the appellant, namely, Mortaza Hassan Ali Sheikh has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (Rupees one lac) for the commission of offences punishable under Sections 20, 29, 27-A, 27-B and 60 of the NDPS Act, and appellant-Riyaaz Ali has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ::: Downloaded on - 26/09/2023 20:35:31 :::CIS -4- Rs.1,00,000/- (Rupees one lac) for the commission of offences punishable under Sections 20, 29 and 27-A of NDPS Act and in default thereof all the convicts have been .
directed to undergo simple imprisonment for one year.
3. Since, the parties do not dispute that the case as set out by the Narcotics Control Bureau (for short 'NCB') has been correctly enumerated by the learned Special of Judge, therefore, the same is extracted, as such, from the judgment and reads thus:-
rt "3. On 26.07.2015, PW-13 Shri Karamvir Singh Intelligence Officer, NCB Sub Zonal Mandi received a secret information from reliable sources that five persons namely Murtaza Hassan Ali Sheikh, Riyaaz Ali, Sadik Bedabi Abdul Sayyad, Lubna Shekh and Fakhrunnisa Abdul Rahim came from Mumbai to purchase huge quantity of Charas and have been staying in rooms No.205, 206 and 208 in Hotel Zarim, Manali, District Kullu, H.P. which was reduced into writing and the same is Ext.PW-7/A and endorsement Ext.PW-7/B was made on it. It is alleged that it has also been learnt that accused Murtaza Ali Sheikh along with Riyaaz Ali have departed from Manali at about 7:00 a.m. on 26.07.2015 for Chandigarh in vehicle No.MH-14-DA-1132 for Mumbai from Chandigarh Airport through Jet Airways flight ::: Downloaded on - 26/09/2023 20:35:31 :::CIS -5- departure time 6:20 p.m. while remaining three persons are still in the said hotel. It is alleged that on passing such information by PW-13 Karamvir Singh to PW-7 Sh. Kuldeep Sharma, Superintendent NCB, .
Chandigarh, Sh. Kuldeep Sharma directed PW-13 Karamvir Singh to constitute a team and carry out search of hotel rooms of Zarim Hotel, Manali immediately. At about 10:30 a.m. NCB team comprising of PW-13 Karamvir Singh, Intelligence Officer alongwith PW-10 A.C. Malla, Intelligence of Officer, PW-5 Mr. Sumit Sepoy, Mr. Surjeet Singh Sepoy, PW-2 Mr. Mahesh Barwal Sepoy and Mr. Vijay, Driver were rushed to Manali and reached PS, Manali rt and requested SHO Police Station, Manali, District Kullu, H.P. for police assistance vide request letter Ext.PW-13/A. It is alleged that a Brass Seal bearing impression of "NARCOTICS CONTROL BUREAU-CHD- 4" was issued to PW-10 A.C. Malla, Investigator for safe custody, which was to be used for sealing purpose during search and seizure operation as and when required. At about 1:00 p.m., PW-13 Karamvir Singh alongwith NCB team and two lady police Constables, namely, Santosh and Dayawanti reached Hotel Zarim and divulged the information with the Manager of Zarim Hotel, Manali, H.P. Before searching the Hotel Zarim, PW-13 Karamvir Singh Investigator associated two independent witnesses namely Sh. Balwinder Singh and Harbans Lal and information regarding drug trafficking was divulged to them and the need to know basis and both the witnesses were requested ::: Downloaded on - 26/09/2023 20:35:31 :::CIS -6- verbally and in writing vide notices Ext.PW-8/A and Ext.PW-8/B to witness the process of search and seizure, to which they voluntarily agreed to accompany the NCB team as independent witnesses.
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PW-13 Karamvir Singh Intelligence Officer along with NCB team, lady police officials and two independent witnesses entered Room No.206 of Zarim Hotel and found one male person alongwith two ladies present in the room. On asking them, they disclosed their identities as accused Sadik Bedabi Sayyad Abdul, of Lubna Shekh and Fakhrunnisa Abdul Rahim of Mumbai. It is alleged that PW-13 Karamvir Singh Intelligence Officer introduced himself, police officials rt and independent witnesses and his team to them and informed the said accused that they had information regarding drugs trafficking and that the NCB team wanted to search the hotel room. It is also alleged that before conducting the search, PW-13 Karamvir Singh Intelligence Officer offered his search alongwith NCB team and both the independent witnesses to the said accused present there, which was declined by them (aforesaid accused persons) and thereafter PW-13 Karamvir Singh Intelligence Officer served notices under Section 50 of the NDPS Act to the said accused persons Ext.PW-13/B, Ext.PW-13/C and Ext.PW- 13/D after explaining them the provisions of Section 50 of the NDPS Act and were given opportunity that if they wanted that their search could be conducted before any Gazetted Officer or any Magistrate, which was declined by them and they gave their approval for ::: Downloaded on - 26/09/2023 20:35:31 :::CIS -7- search by the NCB team verbally. Thereafter, NCB Team started searching Room No.206 in the presence o independent witnesses and during search of Room No.206, two big size suit-cases were found which were .
related to accused Sadik Bedabi Sayyad Abdul, Lubna Sheikh and Fakhrunnisa Abdul Rahim and on opening the same, our packets wrapped by dark brown coloured tape were found from both the suit- cases. On removal of tape, four packets containing dark bron coloured substance in different shapes like of small round pieces, chapatinuma pieces and finger shape were found in transparent polythene. Accused Lubna rt Sheikh and Fakhrunnisa disclosed that substances are charas weighing approx. 20 Kgs., which were purchased by Mortaza Hassan Ali Sheikh 2-3 days ago against payment of 34 lac. And the same was to be carried by them to Delhi via VOLVO Bus and they also disclosed that Mortaza Hassan Ali alongwith his driver Riyaas Ali had left to Chandigarh at about 6/7 a.m. and the information to this effect was given to PW_7 Sh. Kuldeep Sharma, Superintendent, NCB Chandigarh. It is alleged that small portion of suspected material from each items was taken out by PW-10 Sh. A.C. Malla and the tests were conducted by him with the help of drug detection kit separately and on testing, it answered positive for charas/Hashish and the said packets were weighed with electronic machine on the spot, which was found 19.980 Kgs. In total and taken into custody by PW-13 Karamvir Singh vide seizure memo Ext.PW-8/L in the presence of the ::: Downloaded on - 26/09/2023 20:35:31 :::CIS -8- independent witnesses, accused Sadik Bedabi Sayad, Lubna Sheikh and Fakhrunnisa Abdul Rahim and both the witnesses signed the same alongwith PW-13 Karamvir Singh in the presence of each other.
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Thereafter, eight representative samples two from each packet of 25 grams each were drawn from all the recovered substance in the presence of the independent witnesses and the accused present there, packed them separately in transparent polythene pouches and were heat sealed and placed in separate of white paper envelopes and on opening the side of every envelope a white paper slip was pasted, which sealed with four seals of NARCOTICS CONTROL rt BUREAU-CHD-4 and again kept in markine cloth bag and each bag sewed properly, i.e. four lots Ext.PW-
8/K, Ext.PW.8/K-3, Ext.PW.8/K-6, Ext.PW.8/K-9 and same were taken into possession. It is alleged that on opening samples i.e. Ext.PW.8/J-1, Ext.PW.8/J-2, Ext.PW.8/J-3, Ext.PW.8/J-4, Ext.PW.8/J-5, Ext.PW.8/J-6, Ext.PW.8/J-7, Ext.PW.8/J-8, polythene wrappers Ext.PW.8/J-9, Ext.PW.8/J-11, Ext.PW.8/J- 13, Ext.PW.8/J-15, Ext.PW.8/J-17, Ext.PW.8/J-19, Ext.PW.8/J-21, Ext.PW.8/J-23, charas Ext.PW.8/J- 10, Ext.PW.8/J-12, Ext.PW.8/J-14, Ext.PW.8/J-16, Ext.PW.8/J-18, Ext.PW.8/J-20, Ext.PW.8/J-22, and Ext.PW.8/J-24 were found. Thereafter packing material Ext.PW.8/K-17 and two suit-cases Ext.PW.8/K-13 and Ext.PW.8/K-15 were also packed in markine cloth and sealed in separate parcels with four seals of NARCOTICS CONTROL BUREAU-CHD-4 ::: Downloaded on - 26/09/2023 20:35:31 :::CIS -9- and taken into possession. On opening Ext.PW.8/K, Ext.PW.8/K-3, Ext.PW.8/K-6, Ext.PW.8/K-9, polythene bags Ext.PW.8/K-1, Ext.PW.8/K-4, Ext.PW.8/K-7 and Ext.PW.8/K-10 and charas .
Ext.PW.8/K-2, Ext.PW.8/K-5, Ext.PW.8/K-8 and Ext.PW.8/K-11 were found. Similarly, on opening of Ext.PW.8/K-12 and Ext.PW.8/K-14, brief cases Ext.PW.8/K-13 and Ext.PW.8/K-15 were found and on opening Ext.PW.8/K-16, packing material Ext.PW.8/K-17 were found. Test memos in triplicate of Ext.PW.13/E were prepared in the presence of the accused persons and both the independent witnesses on the spot. It is also alleged that PW-13/F on the spot rt and sample/facsimile of NARCOTICS CONTROL BUREAU-CHD-4 was put on the panchnama and test memo, which was read over and explained to accused Sadik Bedabi Abdul Sayyad, Lubna Sheikh and Fakhrunnisa by PW-13, who signed it after understanding its contents to be correct and thereafter the said accused, independent witnesses and PW-13 Karamvir Singh appended their signatures on Panchnama. The seal of NARCOTICS CONTROL BUREAU-CHD-4 was returned by PW-13 Karamvir Singh to PW-10 A.C. Malla after completing all the proceedings as per law. It is also alleged that on 26.07.2015, accused Sadik Bedabi was apprised about the legal provisions and his legal rights under Section 67 of the NDPS Act and notice under Sections 67 of the NDPS Act Ext.PW-13/G, who tendered his voluntary statement under Section 67 of the NDPS Act ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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before PW-13 Karamvir Singh I.O. in his own handwriting with his free will and signed it, which is Ext.PW.13/H. On the basis of recovery and voluntary confessional statement under Section 67 of the NDPS .
Act, accused Sadik Bedabi was arrested after explaining him the grounds of his arrest vide arrest memo Ext.PW.13/J and his Jama Talashi was also conducted vide memo Ext.PW.8/M and information of his arrest was given to his sister through telephone vide arrest information report Ext.PW-13/K. On the of basis of recovery and voluntary confessional statement under Section 67 of the NDPS Act Ext.PW.2/A Fakhrunnisa was also arrested after explaining her the rt grounds of arrest vide arrest memo Ext.PW.4/B and Jama Talashi of accused Fakhrunnisa was conducted vide Ext.PW.4/C and information of her arrest was given to her relatives through telephone vide arrest information report Ext.PW-13/L. Thereafter, on the basis of recovery and voluntary confessional statement under Section 67 of the NDPS Act Ext.PW.2/B, accused Lubna Sheikh was also arrested after explaining her grounds of his arrest vide arrest memo Ext.PW-4/E Jama Talashi of accused Lubna Sheikh was also conducted vide memo Ext.PW.4/F and information of arrest was given to her relative through telephone vide arrest information report Ext.PW.13/M. Accused Sadik and other accused vide their voluntary statements disclosed that Mortaza Ali Sheikh have arranged the consignment of 19.980 Kgs. charas. The statements of witnesses Balwinder Singh and Harbans ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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Lal under Section 67 of the NDPS Act Ext.PW.8/E and Ext.PW.8/G were also recorded by them in their own handwriting in the presence PW-13 Karamvir Singh. Subsequently on 26.07.2015, the official of NCB .
Chandigarh had also laid Naka at Toll Plaza, Ropar-
Chandigarh road, Ropar, Punjab and apprehended accused Mortaza Hassan Ali Sheikh and Riyaaz Ali alongwith their vehicle bearing No.MH-14-DA-1132 and also recovered as sum of Rs.3,70,000/- being sale proceeds of the contraband from their possession vide of recovery memo Ext.PW-7/C in the presence of the witnesses. Accused Mortaza Hassan Ali Sheikh and Riyaaz Ali were issued notices under Section 67 of the rt NDPS Act Ext.PW.9/A and Ext.PW.9/B and after reaching the NCB Office, Chandigarh and there notices under Section 50 of NDPS Act were issued to both these accused, which are Ext.PW.9/C and Ext.PW.9/D. Thereafter accused Mortaza Hassan Ali Sheikh and Riyaaz Ali made their voluntarily confessional statement under Section 67 of the NDPS Act before Investigating Officer Sh. Sachin Guleria, which are Ext.PW.9/E and Ext.PW.7/F thereby admitting the manner and factum of the above recovery and their past and future roles in the transaction and thereafter they were also arrested vide arrest memos Ext.PW-7/D and Ext.PW-7/G and thereafter Jama Talashi of both these accused was conducted vide memos Ext.PW.7/E and Ext.PW.7/H and thereafter information of arrest of both these accused was given to Sh. Shama Sheikh as per memo ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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Ext.PW.9/F. Accused Mortaza Hassan Ali Sheikh and Riyaaz Ali were also got medically examined at Chandigarh vide application Ext.PW.9/G and Ext. PW.9/J, receipts/MLCs of hospital are Ext.PW.9/H .
and Ext.PW.9/K. Accused Mortaza Hassan Ali Sheikh and Riyaaz Ali disclosed that the contraband was sourced from accused Moti Ram alias Nad and Churu Ram son of Baghi Ram of Malana. Accused Mortaza Hassan Ali Sheikh has also disclosed that he was in touch with co-accused Moti Ram telephonically and of personally on his mobile Nos.98169-59763, 88941- 19481 and 88946-43666 and with accused Churu Ram on his mobiles No.98822-94323, 88944-76451 rt and 94166-95575 from his mobile No.97697-42046. Thereafter accused Mortaza Hassan Ali Sheikh and Riyaaz Ali were brought from NCB Chandigarh on transit remand by Investigating Officer Sachin Guleria and produced before learned Judicial Magistrate 1st Class, Manali on 28.07.2015. On 27.07.2015, a notice under Section 67 of the NDPS Act, copy of which is Ext.PW-10/A was served upon accused Moti Ram and for recording his statement. On 28.07.2015, accused Moti Ram was apprised about his legal provisions and his legal rights under Section 67 of the NDPS Act and accused Moti Ram tendered voluntary statement under Section 67 of the NDPS Act Ext.PW-9/L which was recorded by PW-10 Sh. A.C. Malla at the request of accused Moti Ram in presence of PW-9 Sachin Guleria with his free will and without influence. It is alleged that accused Moti Ram admitted the manner ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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and factum of recovery of 19.980 Kgs. charas seized by NCB Officers and he was accordingly, arrested vide arrest memo Ext.PW-10/B after explaining the grounds of his arrest and his Jama Talashi was also .
conducted vide memo Ext.PW-10/C and information of his arrest Ext.PW.10/D was given to his family member through telephone. Accused Moti Ram vide his aforesaid statement disclosed that he came in contact with accused Mortaza Hassan Ali Sheikh through Churu Ram alias Tehna Dy Pradhan Malana of in the year 2012 and since then he had delivered charas to Mortaza Hassan Ali Sheikh. Accused Moti Ram also disclosed that during the month of July, rt 2015, accused Mortaza Hassan Ali Sheikh called him on his mobile No.98169-59763 and 88941-19481 and asked him to arrange 15 Kgs. charas and he subsequently arranged 14 Kgs. charas with the help of accused Dhani Ram and Deva Ram of Malana and delivered the same to accused Mortaza Hassan Ali Sheikh nearby the bridge ahead Manali Bus Stand on 24.07.2015 against payment of Rs.23 lac. It is also alleged that thereafter notices under Section 67 of NDPS Act were given to your co-accused Churu Ram Ext.PW.10/E, Dhani Ram Ext.PW.10/K and Deva Ram Ext.PW.10/O with the direction to join the investigation. Accused Dhani Ram and Deva Ram during investigation on 12.08.2015 made their voluntary statements under Section 67 of the NDPS Act Ext.PW.10/M and Ext.PW.10/S before PW-10 Sh. A.C. Malla disclosing therein that they do not know ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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Mortaza Hassan Ali Sheikh, but they had sold contraband to him through their friend accused Moti Ram. Accused Dhani Ram and Deva Ram were also arrested on 12.08.2015 after explaining them the .
grounds of arrest vide memos Ext.PW-10/N and Ext.PW-10/P and their Jama Talashi was also conducted vide memo Ext.PW.10/O and Ext.PW.10/U and information of their arrest were given to their relatives through the mobile phones supplied to them vide arrest information Ext.PW.10/P and PW-10/V. of The medical examination of accused Dhani Ram and Deva Ram were also got conducted at Civil Hospital, Manali, rt vide applications Ext.PW.10/W and Ext.PW.10/Z and their medical slips Ext.PW.10/X and Ext.PW.10/Z-1 and MLCs Ext.PW.10/Y and Ext.PW.10/Z-2 were obtained. PW-13 Sh. Karamvir Singh I.O. gave information under Section 57 of the NDPS Act to the Superintendent, NCB Chandigarh regarding arrest of accused Sadik Bedabi Abdul Sayyad, Fakhrunnisa Abdul Rahim and Lubna Sheikh and the said information is Ext.PW-7/J and also by Sh. A.C. Malla vide Ext.PW-7/M regarding accused Dhani Ram and Deva Ram. On 28.07.2015 four sample packets marked asA-1, which is Ext.PW-8/J-1 B-1, which is Ext.PW.9/J-3, C-1 which is Ext.PW.7/J- 5 and D-1, which is Ext.PW.7/J-7 alongwith two copies of test memos having facsimile impression of the seal NARCOTICS CONTROL BUREAU-CHD-4 were sent to Chandigarh for onward dispatch to me CRCL, New Delhi. The Superintendent, NCB Chandigarh has ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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further sent the said sample sealed packets to Chemical Examiner, C.R.C.L. Pusa Road, New Delhi vide letter dated 28.07.2015 Ext.PW-5/A through PW- 5 Sh. Sumit Kumar, who deposited the same with the .
Chemical Examiner, C.R.C.L. New Delhi vide receipt No.132 dated 29.07.2015 and the receipt is Ext.PW- 5/B. On 30.07.2015 the Lot A Ext.PW.8/K, Lot B Ext.PW./K-3, Lot C and Lot D Ext.PW.8/K-9, Lot-E Ext.PW.8/K-12 and Lot F Ext.PW.8/K-14 and Lot P Ext.PW.8/K-16 and four samples i.e. Lot A-2 Ext.PW-
of 8/J-2, Lot B1 Ext.PW.8/J-4, Lot C-2 Ext.PW.8/J-6, Lot D-2 Ext.PW.8/J-8 were handed over to PW-9 Sachin Guleria I.O. for further deposit with officer in- rt charge of Godown NCB Chandigarh for keeping safe custody, who issued a Godown receipt vide entry No.17/2015 dated 30.07.2015 Ext.PW-7/K. During investigation, it was revealed that mobile numbers 98169-59763, 88941-19481 and 88946-43666 were used by accused Moti Ram and out of the three mobiles numbers the SIM card for the mobile No.98169-59763 was issued by M/S Bhushan Communication, Main Bazaar, Bhuntar in the name of Lal Singh and on verification it has been found fake and notice of the same was given to Vijay Bhushan vide Ext.PW.10/Z-7, who gave statement Ext.PW.10/Z-8 and similar notice was given to Deepak Kumar vide notice Ext.PW.10/Z-5 and his statement was recorded vide Ext.PW.10/Z-6 and one notice was also given to Lal Singh, the copy of which is Ext.PW.10/Z-9. It has been revealed that mobile ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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No.88941-19481 was owned by Smt. Suari Devi and used by accused Moti Ram and owner of mobile No.889464366 was owned by Daulat Ram of Malana. During further investigation, it has been revealed that .
mobile No.8894476451 and 98166-95575 were issued by accused Churu Ram and on physical verification, it was found that the SIM cards of these numbers were issued on fake ID proof and it has also come to light that mobile No.97697-42046 was used by accused Mortaza Hassan Ali Sheikh for making contacts with of other accused of Malana and on verification this number was issued in the name of Smt. Shama Murtaza Sheikh of Mumbai and Shama Murtaza rt Sheikh made statement Ext.PW.10/Z-4 in the presence of witness LHC Daya Devi of PS, SV & ACB, Mandi, H.P. on 05.01.2016 on notice given to her copy of which is Ext.PW.10/Z-3. During investigation, on analysis of phone calls and contacts with Mortaza Ali Sheikh and from his confessional statement Ext.PW.7/F, it revealed that accused Moti Ram alisas Nada and Churu Ram of Malana arranged charas to main kind accused Mortaza Hassan Ali Sheikh and others. The CAF Ext.PW.1/B and ID of Shama Sheikh Ext.PW-1/C from mobile numbers of accused Moti Ram and Churu Ram are annexed with CDRs Ext.PW1/D and Ext.PW-1/E of 97697-42046 used by accused Mortaza and certificate issued by Nodal Officer Vodafone under Section 65-B of Indian Evidence is Ext.PW-1/A and mobiles No.98169-59763, 88941-19481 and 88946-43666 were issued by ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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accused Moti Ram and mobile numbers 88944-76451 and 98166-95575 used by accused Churu Ram, the CAFs of which are Ext.PW-11/A, Ext.PW-11/D, Ext.PW-11/G, Ext.PW-11/K and IDs are Ext.PW-
.
11/B, Ext.PW-11/E, Ext.PW-11/H and Ext.PW-11/L and the CDRs are Ext.PW-11/C, Ext.PW-11/F, Ext.PW-11/J, Ext.PW-11/M and Ext.PW-11/N and certificate issued by Nodal Officer of Bharti Airtel under Section 65-B of Indian Evidence Act is Ext.PW- 11/O. On analysis of call details of all the above of mentioned mobile numbers, it has been revealed that accused Mortaza Hassan Ali was a main king pin and was running a drug syndicate in the area of Mumbai rt and he was also in touch with other main suppliers of Charas, namely, accused Moti Ram and Churu Ram.
It is alleged that notice under Section 67 of the NDPS Act, copy of which is Ext.PW-10/E, was issued to accused Churu Ram on 31.07.2015 and 10.08.2015 for joining the investigation, but Churu Ram never joined investigation, nor produced any clarification before PW-10 A.C. Malla. The involvement of accused Churu Ram was also found in the present case and thereafter an application U/S 72, 73 Cr.P.C. Ext.PW- 10/F was moved before learned Judicial Magistrate 1st Class, Manali, on which warrant, copy of which is Ext.PW-10/H was issued, on which PW-10 A.C. Malla made his report Ext.Pw-10/J and thereafter order Ext.PW-10/G was passed and accused Churu Ram was declared as proclaimed offender. It is alleged that on 01.01.2016, a letter Ext.PW-3/A was sent to ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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Assistant Manager (Transport), H.P Tourism Office, Manali requesting to provide passenger manifesto of Volvo Bus on 26.07.2015, and passengers list was issued by PW-3 Roop Lal Thakur, which is Ext.PW-
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3/B, in which accused Sadik Bedabi, Fakhrunnisa and Lubna Sheikh booked seats for going to Delhi ith the consignment of contraband. During investigation PW-10 A.C. Malla took record of Rooms No.205, 206 and 208 of Hotel Zarim, Manali from PW-6 Sh. Nishant co-owner/Manager, copy of which is Ext.PW-
of 6/A. During investigation PW-13 Sh. Karamvir Singh has taken the copy of Godown register from PW-7 Sh. Kuldeep Sharma, copy of which is Ext.PW-7/O and rt PW-7 Kuldeep Sharma received the report of CRCL, New Delhi Ext.PW-7/L and sent the same to PW-10 Sh. A.C. Malla vide letter Ext.PW-7/M. During investigation Intelligence Officer PW-13 Karamvir Singh made inventory Ext.PW-13/Z2 under Section 52-A of the NDPS Act. On receipt of report from CRCL Delhi Ext.PW-7/M and on completion of investigation present complaint was filed in the Court against the accused persons to face trial under Sections 20, 27-A, 27-B, 29 and 60 of the NDPS Act."
4. Appellants were supplied copies of the complaint and documents annexed therewith. Upon consideration thereof, a prima facie case was found and consequently charges under Sections 20, 27-A, 27-B, 29 and 60 of the ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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Act were framed separately against the appellants, who pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution .
examined twelve witnesses in all. Thereafter, appellants were examined under Section 313 Cr.P.C., in which they pleaded not guilty by taking specific defence that no charas was recovered from them and they have been falsely of implicated in this case. They claimed that Sadik Bedabi and two Burka Nashin women were picked up by the rt officials, who were in plain clothes from Bus-Stand Manali when they were waiting for thier bus and were taken to some hotel where they were detained. The appellants neither stayed in Hotel Zarim nor drugs were recovered from their possession. Appellant-Moti Ram examined DW-1 Tek Singh Negi in his defence. Other appellants did not lead any evidence in their defence.
6. The learned Special Judge convicted the appellants in the aforesaid manner and aggrieved thereby, they have filed the instant appeals.
7. Learned counsel for the appellants, other than ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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the appellant Moti Ram in Criminal Appeal No.558 of 2017 have addressed common arguments, primarily raising therein five points:
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1. Prosecution has failed to link the report of FSL Exhibit PW-7/L with the samples produced in the Court and the link evidence is totally missing.
2. Prosecution could not prove on record of that appellants Fakhrunnisa Abdul Rahim, Lubna Sheikh and Sadik rt Bedabi Abdul Sayyad were there in Hotel Zarim Manali.
3. Evidence on record belies the case of the prosecution that any recovery was effected from Hotel Zarim.
4. There has been non-compliance of Section 42 of the NDPS Act.
5. Statements recorded under Section 67 of the Act not admissible.
8. Prosecution has failed to link the report of FSL Exhibit PW-7/L with the samples produced in the Court and the link evidence is totally missing:
8(i). At the outset certain admitted facts need to be noticed. It is the admitted case of the parties that ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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provisions of Section 52-A of the Act had not been complied with. It is further not in dispute that the entire bulk of the alleged contraband was also not sent for chemical analysis .
and only four samples of 25 grams each were sent, vide samples marked as A-1, B-1, C-1 and D-1. It is also the case of the prosecution that the sampling was done by the Investigating Officer after the seizure. It is also the of prosecution's case that there was no Malkhana in office of NCB Sub Zone Mandi. Lastly, it is the case of the rt prosecution that the case property came to be deposited in the Godown of NCB office at Chandigarh only after four days on 30.07.2015.
8(ii). In order to substantiate the first submissions Mr. Ajay Kochhar, learned Senior Counsel assisted by Mr. Vivek Sharma and Mr. Anubhav Chopra, Advocates, would contend that it is the admitted case of the prosecution that the case property at the first time came to be produced in the Court on 16.03.2017 during the deposition of PW-8 Balvinder and the same was found to be having two seals of Narcotic Control Bureau and two seals of laboratory in ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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all the samples produced in the Court i.e. A-1, A-2, B-1, B-
2, C-1, C-2, D-1, D-2.
As per the further case, samples of 25 grams .
each were taken vide A-1, B-1, C-1 & D-1 and sent for chemical analysis, whereas samples A-2, B-2, C-2 and D-2 were admittedly were not sent to the laboratory analysis then how the seals of the laboratory appear on the samples of is clearly a mystery.
Here, it shall be apt to reproduce the relevant rt portion of the statement of PW-8, which reads as under:-
"Sample Mark A-1, A-2, B-1, B-2, C-1, C-2, D-1, D-2 all the samples are sealed with two seals each of Narcotic Control Bureau and two seals of laboratory."
8(iii). It is the admitted case of the prosecution that the case property was sent to the Zonal Office Chandigarh only on 30.07.2015 and entry to this effect was made in the godown register Ext.PW-7/K at 11:00 a.m. PW-7 Kuldeep Sharma admitted that case property was sent to him on 30.07.2015 meaning thereby that PW-7 Kuldeep Sharma was not in the possession of ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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the case property on 28.07.2015.
Once that be so, obviously, the prosecution has failed to prove how the case property was sent through PW-
.
5 Sumit Kumar on 28.07.2015.
It needs to be observed here that a futile attempt was made by the Investigating Officer-PW-13 Karamvir Singh to depose that on 28.07.2015 the case property was of sent by him through PW-7 Kuldeep Sharma for further transmission to laboratory. This assertion is of no help to rt the case of prosecution in the absence of the statement of PW-7 Kuldeep Sharma being corroborated and further in absence of there being any other evidence to show how and through whom the case property was sent to PW-7.
Further there is no explanation as to where the case property remained from 26.07.2015 to 30.07.2015 when it was deposited in the godown of NCB vide Ext.PW-
7/K and godown register Ext.PW-7/O especially in view of the admitted factual position on record that there was no Malkhana in Sub Zone Mandi office of NCB.
8(v). In addition to the aforesaid, the prosecution has ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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not been able to prove as to how and in which the case property was sent for chemical analysis vide letter Ext.PW-
5/A on 28.07.2015, that too, by PW-7 Kuldeep Sharma to .
PW-5 Sumit Sepoy when admittedly there is no reference in the statement of PW-7 Kuldeep Sharma of having received the samples which were allegedly further transmitted by him. Rather there is no evidence on record regarding any of prosecution witness having brought the samples A-1 to D-1 and handing over the same to PW-7 Kuldeep Sharma.
rt 8(vi). There is also variation in the weight of contraband allegedly apprehended and deposited in the godown of NCB at Chandigarh. As per the case of the prosecution eight samples of 25 grams each were prepared by PW-13 Karamvir Singh, meaning thereby that contraband weighing 200 grams was used for sampling.
The total quantity apprehended is alleged to be 19.980 Kgs and in case eight samples were prepared out of this quantity, the remaining quantity should have been 19.780 kgs.
But, in the godown receipt Ext.PW-7/K and ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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godown register Ext.PW-7/O total quantity which has been shown to be deposited was 19.930 Kgs. As per the above said documents Lot-A, Lot-B, Lot-C were containing 5 Kgs .
of charas and Lot-D was containing 4.930 Kgs of charas.
If that was not enough, the quantity so deposited otherwise is also contrary to the case of prosecution. The prosecution case in the complaint, more of particularly, in para Nos.15 & 16 thereof, is that eight representative samples (02 from each packet) of 25 grams rt each were drawn and the same were marked as A-1, A-2, B-1, B-2, C-1, C-2, D-1 and D-2 respectively and the remaining bulk weighing 19.780 grams were packed in Lot-
A, Lot-B, Lot-C and Lot-D, which is contrary to their own documents.
In this regard, it would be necessary to refer to the relevant portions of the statements of the concerned witnesses:
PW-9 Sachin Guleria (Intelligence Officer) stated that the case property was handed over to him by the Intelligence Officer at Mandi Office. There was no ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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Malkhana at Sub Zone Mandi.
PW-10 Amar Chand Malla stated that he had not brought the seal on that day as he kept the same in .
office. He had only one seal and the same was used in every case. He admitted that the seal pertained to Zonal Office Chandigarh. He admitted that as soon as any alleged contraband is recovered, the same is kept in the of Malkhana in safe custody and as soon as possible the same is produced before the nearby Judicial Magistrate rt for procuring samples and taking order of destruction for rest of the contraband. Self-stated, that it was not a practice earlier and they did not keep the case property in nearby Police Malkhana and in case of nearby police station the case property was deposited in the nearby Police Station. He admitted that the case property was not deposited within a period of 72 hours in Malkhana at Chandigarh. He admitted that as per para 28 of the Field Office Book, the seized contraband was required to be deposited in the Malkhana at the earliest opportunity after the seizure and also admitted that the distance ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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between Manali could be covered in Govt. vehicle within 8-9 hours.
PW-13 Karamvir Singh stated that no record .
was kept in the Sub Zone or in the Zone Office with regard to safe custody of seals, which were used in Narcotic cases. Self-stated that it remained in safe custody of the Superintendent of the concerned Zone and the seal was of kept in safe custody of the Superintendent of the Sub Zone and at that time Shri Kuldeep Sharma was the rt Superintendent of the Sub Zone. He further stated that he cannot assign any reason as to why he had not deposited the case property within 24/48 hours in the godown/Malkhana at NCB Zonal Office, Chandigarh.
Sampling was done by PW-13 without following the provisions of Section 52-A of NDPS Act which came into existence on 01.05.2014.
In the recovery memo Ext.PW-8/L quantity shown to have seized has been written as 1.19.980 Kgs.
which is contrary to case of prosecution.
8(vii). Moreover, in the recovery memo Ext.PW-8/A, ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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the quantity shown to have been seized had been written as 19.980 Kgs. which is contrary to the case of the prosecution and also contradicts the prosecution's case.
.
Confronted with all the aforesaid submissions the counsel for the Narcotics Control Bureau has failed to offer any explanation save and except to state that the discrepancy in the quantity of the contraband could be of there on account of a typographical error.
8(viii). Apart from the above, it would be noticed that it rt was PW-13 Karamvir Singh, who drew the samples in this case without following the procedure envisaged under Section 52 A of the NDPS Act. From what has been discussed above, a grave suspicion is created about the prosecution's case as the action of PW-13 Karamvir Singh in drawing samples was contrary to Section 52-A of the NDPS Act and in coming to such conclusion, we are duly supported by a very recent judgment of the Hon'ble Supreme Court in Bothilal Versus The Intelligence Officer Narcotics Control Bureau 2023 (6) Scale, 377, more particularly, the findings recorded in paragraphs ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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No.15 & 16 thereof, which read as under:
"15. Admittedly, PW-2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic .
covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel of appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion is created about the prosecution's case as this action by the PW2, rt was contrary to Section 52-A of NDPS Act.
16. In paragraphs 15 to 17 of the Mohanlal's case, it was held thus:
"15. It is manifest from Section 52A(2) include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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the list of samples so drawn."
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no .
sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of rt samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
.
(emphasis added) Thus, the act of PW-2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that the substance recovered of was contraband.
9. Prosecution could not prove on record that appellants Fakhrunnisa Abdul Rahim, Lubna rt Sheikh and Sadik Bedabi Abdul Sayyad were there in Hotel Zarim Manali:
9(i). The specific case of the prosecution is that PW-13 Karamvir Singh after receiving a secret information constituted a raiding party and thereafter went to Hotel Zarim Hotel, Manali and made a recovery of contraband from Room No.206 occupied by the said three appellants.
However, the documents and oral evidence clearly belie such version of the prosecution.
It shall first be relevant to make a note of the relevant entry Ext.PW-6/A of the Guest/Tourist/Visitors' Register Zarim Hotel, which shows that Rooms No.205, 206 ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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& 208 had been booked in the name of one Mr.Abbas Hussain, LIG Colony, 114 NB Nagar, Mumbai and his phone numbers have been entered in the Register. We may .
now refer to the depositions of the relevant witnesses PW-6 Nishant, PW-8 Balwinder, PW-10 Amar Chand Malla and PW-13 Karamvir Singh (I.O.).
9(ii). Now adverting to the testimony of PW-6 Nishant, of it would be noticed that he deposed that CCTV cameras were installed in the Hotel and also stated that the rt photocopies of the identity card of every guest were obtained at the time of checking in the hotel and kept in record. No such record was ever taken by the Investigating Agency for the reasons best know to them. In his deposition this witness has admitted that efforts were made by the Investigating Agency to tamper with the record.
There was no entry in the record of hotel that any of the appellants ever stayed in the said hotel. But, to the contrary, the record of hotel showed that some person in the name of Abbas Hussain had stayed in the hotel rooms at the time when the Investigating Agency allegedly ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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visited the hotel.
Further, it has also surfaced from the evidence that the person staying in Rooms No.205, 206 & 208 had .
checked out from the Hotel on 27.07.2015 and at the time when the Investigating Agency allegedly visited the hotel, one Deepak Basak was occupying the said room i.e. Room No.206.
of This witness further admitted that at serial No.195 of Ex.PW-6/A Room No.206 had been interpolated rt with 207 and the same was not initialled and further admitted that photocopy of valid photo ID of every hotel guest/customer was obtained at the time of check-in in the hotel and kept in record.
This witness further admitted that there was no entry of any of the appellants in the hotel record and also deposed that in column No.7 number 6 had been altered in number 5 by making a cutting and admitted that there was also cutting in column No.6 in the time.
9(iii). PW-8 Balvinder deposed that Abbas Hussain had booked the hotel on telephone. He stated that identity ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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proof of the guests who visited the hotel was taken in the hotel and admitted that the persons who were residing in Room Nos.205, 208, 206 had checked out from the hotel .
on 26.07.2015 at 7:00 a.m. He denied to recognize Abbas Hussain, who resided in Room Nos.205, 208 and 206, in the hotel.
This witness further stated that as per Ext.PW-
of 6/A appellants, namely, Murtaza, Sadik, Riyaaz, Fakhrunnisa, Lubna never stayed in Hotel Zareem. He rt further stated that he had taken CCTV footage of the hotel but the same was damaged and he did not take CCTV footage again from hotel and also not made any reference in the complaint regarding taking CCTV footage.
9(iv). PW-10 Amar Chand Malla, deposed that he had checked the hotel register and photo identity register on that day, however, he did not take into possession any photo identity of the persons staying in the hotel.
This witness further stated that there was no record pertaining to stay of Sadik, Lubna Sheikh and Fakhrunnisa in the Hotel Register Ext.PW-6/A." He further ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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stated that in Ext.PW-6/A in red circle 206 had been overwritten as 207 and he had not taken into possession any bills and payment vouchers pertaining to payment by .
various guests in the hotel on the relevant days.
This witness further stated that record pertaining to stay of guest in hotel Zarim on the relevant day was in the name Abbas Hussain who was a Muslim. He of further stated that mobile number of Abbas Hussain was also mentioned in the column of name and address of rt relevant register of the hotel.
9(v). PW-13 Karamvir Singh deposed that as per above statements they had disclosed about the name of some Abbas. As per Ext.PW-6/A at Sr. No.193, the name of Abbas Hussain as written in column No.1 was staying in Room Nos.205, 206 & 208. He stated that he had not inquired about the identity of Abbas Hussain who was staying in the said Room No.206.
9(vi). This assumes importance because it was never the case of prosecution that the identity of the person staying in Room Nos.205, 206 & 208 was fake.::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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9(vii). From what has been noticed above, we find that a serious doubt is cast upon the prosecution's case regarding the alleged recovery that too from the appellants .
more particularly in the manner as alleged by the prosecution.
9(viii). Similar were the facts in Bothilal's case (supra), wherein the bag containing the alleged contraband was of recovered from the room occupied by accused No.6, whereas the prosecution's case was that accused No.1 was rt staying in Room No.213 of Himalaya Lodge, Triplicane, Chennai and he was to receive 5 Kgs. of Heroin from accused Nos.2 and 3, who were staying in Room No.211 of Hotel Blue Star International, Chennai. The accused No.4 was staying in Room No.303 of Hotel Surya Periamet, Chennai where PW-2 Maheshwar Barwal and other members of party entered.
The case of the prosecution that after PW-2 Mahesh Barwal Sepoy and others members of party entered in the room, they called upon all the four appellants who were present there to disclose whether they ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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were in possession of the contraband. The further case of the prosecution that it was appellant No.1 who showed a blue coloured bag from which recovery of about 5 Kgs of .
Heroin was made. It was not the case of the prosecution that the appellant No.1 was carrying the bag with him and that was in his custody as observed above. The bag was in fact recovered from the room occupied by the appellant of No.4. It was in such circumstances, the Hon'ble Supreme Court held that the case of the prosecution was not free rt from suspicion and that the prosecution had not proved its case beyond all reasonable doubt. It is apt to reproduce the relevant observations as contained in Para Nos.17 & 18, which read as under:-
"17. Even according to the prosecution's case, as can be seen from the version of PW2, accused no.1 (appellant in Criminal Appeal No.1185 of 2011) was staying in room no.213 of Himalaya Lodge, Triplicane, Chennai. He was to receive 5 kilograms of heroin from accused no.2 and accused no.3 (appellant in Criminal Appeal no.451 of 2011). Accused nos.2 and 3, according to the case of the prosecution, were staying in ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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room no.211 of Hotel Blue Star International, Chennai. It was accused no.4 who was staying in room no.303 of Hotel Suriya, Periamet, Chennai where PW2 and other members of her .
party entered. The case of the prosecution is that after PW2 and others entered the room, they called upon all the four accused who were present there to disclose whether they were in possession of the contraband. The prosecution's of case is that accused no. 1 showed a blue coloured bag from which the recovery of about 5 kilograms of heroin was made. It is not the case rt of the prosecution that accused no.1 was carrying that bag with him or that it was in his custody. The bag was in the room occupied by accused no.4. Thus, it cannot be said that the contraband was found in the custody of accused no.1. At the highest, it was found in the room occupied by accused no.4. We may note here that accused no.4 has been convicted by the High Court only for the offence punishable under Section 30 of the NDPS Act which is for the offence of making preparation to do or omitting to do anything which constitutes an offence punishable under the provisions of Sections 19, 24 and 27A. The prosecution has not produced any evidence to show that the contraband was brought to the ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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room of the accused no.4 by the other three accused persons or anyone of them. It is not the case that the room of accused no.4 was in possession of accused nos. 1 to 3 who were .
staying in different hotels.
18. Therefore, in our view, the case of the prosecution is not free from suspicion. The prosecution has not proved beyond a reasonable doubt that the appellants in these two appeals of were in possession of the contraband or that they brought the contraband to the hotel room of the rt accused no.4."
10. Evidence on record belies the case of the prosecution that any recovery was effected from Hotel Zarim:
10(i). As noticed from the aforesaid discussion and otherwise admitted by the prosecution witnesses that the appellants were not staying in Zarim Hotel and therefore the prosecution's case that the recovery was effected from the said hotel is belied by the documents of the prosecution itself, which show that the recovery was effected from Hotel Zareen at Village Malana and not from Zarim Hotel Manali.
Be it stated that there is no dispute that Malana and Manali are two places, whereas Malana is a village ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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while Manali is a town and both of them though in Kullu District and are 100 kilometers apart.
The documents are Ext. PW-7/D and Ext.Pw-
.
7/G which are the arrest memos of the appellants Mortaza and Riyaaz. These documents show that they have been arrested consequent upon the recovery/seizure of 19.980 kg of charas recovered from the possession of Lubna, of Fakhrunnisa and Sayad Sayeed at Hotel Zareen, Malana Village, District Kullu.
rt Similarly documents Ext.PW-9/A and Ext.PW-
9/B which are the notices given to the above said appellants before recording of their statements under Section 67 of NDPS Act also show that the recovery has been effected from Lubna, Fakhrunnisa and Sayad Sayeed at Hotel Zareen, Malana Village, District Kullu.
The oral evidence is contrary to the documentary evidence for which there is no explanation on record by the prosecution. Further PW-7 Kuldeep Sharma and PW-10 Amar Chand Malla also admitted that documents on file show/prove that the contraband was ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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recovered in Hotel Zareen, Village Malana, Kullu.
10(ii). PW-7 Kuldeep Sharma has admitted to have mentioned the above said fact in memo Ext.PW-9/A and .
Ext.PW-9/B. PW-7 Kuldeep Sharma has stated that as per the memo Ext.PW-9/A and 9/B, he had mentioned regarding the recovery of 19.980 Kg charas from the possession of Lubna, Fakhrunnisa and Sayyad at Hotel of Zareen Malana Village, Kullu.
10(iii). Further PW-7 Kuldeep Sharma has admitted the rt above said fact and stated that it was correct that in memo Ext.PW-7/D and Ext.PW-7/E there is reference of information that recovery of 19.980 kg charas at Hotel Zareen, Malana Village, Kullu.
10(iv). PW-10 member of the raiding party also admitted that there are documents on the file which show/prove that the charas weighing 19.980 kgs. have been recovered from Hotel Zareen, Village Malana District Kullu and not in Manali, 10(v). Otherwise also the oral evidence belies the recovery from Hotel Zareem, Manali. PW-2 Mahesh Sepoy ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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and PW-5 Sumit Sepoy who were the members of the raiding party have not uttered a single word about visiting of the team at Hotel Zareem or any recovery from the .
possession of the three appellants from Room No. 206.
10(vi). The contradictions and omissions appearing in the statements of other witnesses also falsify the case of the prosecution. PW-4 LC Santosh Kumari stated that the of NCB team visited the Police Station at 1:00 p.m., they started from police station at 1:30 PM, reached hotel rt Zareem at 1:45 to 2:00 P.M and the manager of the hotel was not associated as a witness by NCB team to whom information was disclosed. She further stated that the room was checked at about 2:15 PM and notices under Section 50 were issued which were not computerized and NCB took photographs of all the proceedings. Her statement was contradicted by the documentary evidence of notice under Section 50 of NDPS Act which is computerized document and other evidence on record.
PW-13 Karamvir Singh stated that he started writing panchnama at 1:00 PM which could not have been ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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written at that time as according to PW-4 LC Santosh Kumari they were in police station at that time and started from the Police station at 1:30 p.m. and checked the room .
at 2:15 p.m. As per statement of PW-13 Karamvir Singh they reached hotel at 1:00/1:30 p.m. and thereafter he went to the reception and the information was divulged to PW-8 Balvinder Manager of the hotel and after associating of him and Harbans Lal, they went to Room No. 206. He further claimed that when he reached hotel PW-8 Balvinder rt was sitting in the reception with further deposition that he was neither called by him nor by the staff.
PW-8 Balvinder contradicted both PW-4 LC Santosh Kumari and PW-13 Karamvir Singh. He stated that when NCB team came to Hotel he was in Manali Bazar and reached the hotel at about 1-1:30 p.m. when he was called by the NCB staff.
The statement of PW-8 Balvinder and PW-13 Karamvir Singh that Balwinder PW-8 was associated a witness to the seizure was contradicted by PW-4 LC Santosh Kumari who categorically stated that manager of ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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hotel was not associated as a witness by the NCB team to whom the information was divulged.
The claim of PW-13 Karamvir Singh to have .
started writing panchnama is unpalatable as it is always written after the seizure of the contraband and by that time neither any seizure was made nor the NCB team was present in the Zareem Hotel. He further admitted that of when an article or contraband during the raid or the search is seized, firstly the seizure memo is prepared and rt thereafter the panchnama is prepared which is mandatory.
No photograph has been placed on record of the proceedings as has been stated by PW-4.
Otherwise also the statement of PW-4 on this score of clicking photographs of proceedings was contradicted by PW-8 Balvinder by stating that no photograph was clicked by anyone in the hotel on the relevant date.
Footage of CCTV cameras and the bills or payment vouchers would have been best evidence which is missing in present case.::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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10(vii). PW-4 LC Santosh Kumari, PW-8 Balvinder PW-
10 Amar Chand Malla and PW-13 Karmvir Singh categorically admitted in their statements that the hotel .
was situated in a thickly populated area. Once that be so, then we are at a complete loss to understand as to why the NCB did not associate independent witnesses when they were readily available and why only the selected witnesses of were associated.
11. There has been non-compliance of Section 42 rt of the NDPS Act.
11(i). Admitted case of the prosecution is that it is the case of prior information. Further, as per the case of the prosecution the information was received by PW-13 Karamvir Singh and after reducing the same in writing (Ext.P-7/A) was transmitted to the superior officer PW-7 Kuldeep Sharma.
Though, the prosecution has claimed to have complied with the provisions of Section 42 of the NDPS Act but the evidence on record demonstrates that it was a paper work done later on to comply with the provisions of Section 42(2) of NDPS Act and practically no such ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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compliance was done. The relevant witnesses are PW-7 Kuldeep Sharma and PW-13 Karamvir Singh and the relevant documents are Ext.PW-7/A and PW-7/B. .
There was no averment in the complaint that how this information was sent by PW-13 Karamvir Singh to PW-7 Kuldeep Sharma except a passing reference of para 3 of the complaint that on passing the said information of PW-7 Kuldeep Sharma directed PW-13 Karamveer Singh (IO) to constitute a team and carry out search of the hotel.
rt In the evidence on record contradictory versions have appeared which make the case of the prosecution doubtful that any such compliance was made.
11(ii). PW-7 Kuldeep Sharma stated that document Ext.PW-7/A was seen by him after about one week as well as when it was put before him at Manali. Ext.PW-7/B was received by him at Chandigarh on 26.07.2015. He received these documents through Dak and produced before him on 26.07.2015. He further stated that it was correct that whenever any document was sent through FAX machine, the FAX machine received the sender's number on FAX ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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machine. Self-stated that sometimes it did not appear.
Ext.PW-7/B is the FAX copy of the typed portion of Ext.PW-7/A. Ext.P-7/B was received by around 09:30 a.m. .
This witness further stated that it was correct that whenever prior information regarding contraband was received then the said information was divulged by issuing notice under Section 50 of the NDPS Act before taking of search of accused. He also stated that it was incorrect that since there was no prior information regarding carrying of rt contraband by the appellants that is why both documents Mark-C and Mark-D are totally silent regarding that information which was earlier received by him.
11(ii). PW-10 Karamvir Singh stated that it was correct that Ext.PW-7/A did not disclose by which mode the same was allegedly sent to the PW-7 Kuldeep Sharma and further stated that Ext.PW-7/A was computer generated.
He did not take any certificate under Section 65-B of the Evidence Act pertaining to control and operation of the computer where it was generated.
This witness further stated that he had sent ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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information through FAX from Mandi with regard to secret information to his superior officer. It was correct that whenever a FAX was sent, the telephone number of the .
sending machine and telephone number of the receiving machine come on the print out when the report was obtained by pushing the button on FAX machine. It was correct that there was no phone number on Ext.PW-7/B of pertaining to sending and receiving of secret information through FAX.rt This witness also stated that it was correct that it was a mandatory requirement when notice under Section 50 of the NDPS Act was served the prior information had to be mentioned in the notice.
11(iv). The above evidence shows that the claim of the prosecution that the information was transmitted to the superior office is farce as the copy placed on record is not a FAX copy and had there been any such information transmitted to superior officer PW-7 Kuldeep Sharma at least the reference of the same should have been there in the alleged notices issued under Section 50 of the NDPS ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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Act. Another fact which belies non-compliance of Section 42 (2) of the Act is that in the reports sent to superior officer in compliance to Section 57 of the Act placed on .
record are silent of having received any information or its further transmission to his superior officer. No evidence has been placed on record by producing the record of sending machine or receiving machine of said information.
of The fact that the admission of PW-7 Kuldeep Sharma of having seen the information after a week cannot be lost rt sight.
11(v). Thus, it stands duly established that there has been a violation of the provisions of Section 42 as well as 50 of the NDPS Act. From the aforesaid discussion, it can be conveniently be concluded that the prosecution has not complied with either Section 42 of the NDPS Act.
12.. Statements recorded under Section 67 of the NDPS Act not admissible:
12(i). Since, statement under Section 67 of the Act is not admissible, therefore, the appellants Lubna Sheikh, Fakhrunnisa Abdul Rahim and the co-appellants could not ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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have been arraigned as accused on the statement of the other accused Lubna Sheikh and Fakhrunnisa. It would be noticed that co-appellant Mortaza Hassan Ali Sheikh etc. .
arraigned as accused on the alleged statement of the appellants Lubna Sheikh and Fakhrunnisa Abdul Rahim recorded under Section 67 of the Act on the pretext of they being in touch with Moti Ram on his mobile No.98169- of 59763, 88941-19481 and 88946-43666. The question regarding admissibility of statement under Section 67 of the rt Act too has been considered in Bothilal's case (supra) and the same while to be inadmissible in view of the earlier decision rendered by three Hon'ble Judges of the Hon'ble Supreme Court in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC, Page-1. It shall be apt to reproduce the relevant observations as made in Bothilal's case, in paragraphs No.10 to 12, which read as under:
"10. Though the two independent witnesses were not examined before the Court, their statements were marked as Exhibits P-19 and P-71. A perusal of the impugned judgment of the High Court shows that it was held that the ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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conditions prescribed by Section 53A of the NDPS Act were not fulfilled and therefore, these two statements were inadmissible. The High Court believed the testimony of PW-2 and PW-4 .
to PW-7 and held that the confessional statements of the accused could be taken as corroboration for the evidence of official witnesses.
11. Paragraphs 15.1 and 158.2 of he majority of view in Tofan Singh's case, read thus:
"158. We answer the reference by stating: rt 158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are " police officers" within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."
12. Admittedly, the confessional statements were made by the accused to an officer empowered under Section 53 of the NDPS Act and hence, in view of the bar of Section 25 of the Evidence Act, the confessional statements will have to be kept out of consideration."
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12(ii). In addition to the above, it would be noticed that even in the statement under Section 67, the name of appellant-Murtaza is nowhere found and the name of some .
Abbas Hussain and one Mustaffa has been mentioned as has been admitted by PW-10 Amar Chand Malla.
Unfortunately, the learned Special Judge has not at all taken into consideration the aforesaid points and of has erred in convicting the appellants, namely, Sadik Bedabi Abdul Sayyad, Lubna Sheikh, Riyaaz Ali, Mortaza rt Hassan Ali Sheikh and Moti Ram.
Appellant Moti Ram's Case 13(i). Now as regards the appellant Moti Ram, there is practically no link evidence connecting him with the alleged offence as this appellant has not at all been identified by any of the prosecution witnesses i.e. PW-9 Sachin Guleria (Intelligence Officer), PW-10 Amar Chand Malla and PW-13 Karamvir Singh (Investigating Officer). Rather they made no efforts whatsoever to get Moti Ram indentified whose name alleged to have been disclosed by the other appellants. It would further be noticed that even during the course of the ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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trial no efforts were made by the prosecution to get Moti Ram identified by Murtaza so as to establish his identity firmly leaving no scope of doubt. No independent witness of .
Village Malana has been associated or examined to establish the identity of Moti Ram to be the same as disclosed by Murtaza and this assumes importance because as many as five persons by the same name Moti of Ram.
13(ii). Itrt needs to be noticed that as per the prosecution story Moti Ram was using mobile numbers 98169-59763, 88941-19481 and 88946-43666 to talk with Mortaza, but none of these phone numbers was registered in the name of appellant-Moti Lal. Mobile No.98169-59763 belonged to Lal Singh, 88941-19481 belonged to one Suara and 88946-43666 belonged to one Daulat Ram and unfortunately prosecution has not examined any of these persons so as to establish that appellant-Moti Ram had been using their numbers to talk to appellant-Mortaza.
13(iii). That apart, it would be noticed that it is the prosecution story that appellant-Moti Ram had sourced ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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charas from co-accused Dhani Ram and Deva Ram to deliver the same to Mortaza and were arraigned as accused Nos.7 and 8, respectively before the learned Special Judge, .
but they were acquitted by the Court below. Once that be so, then obviously the story of the prosecution regarding the role of appellant-Moti Ram falls like a pack of cards and in such circumstances, he could not have been found of guilty of sourcing charas to be supplied to Murtaza.
13(iv). In addition to the above, the statement under rt Section 67 was otherwise inadmissible for the reasons as already stated above. Moreover, confession made by an accused could not have been treated as substantive evidence against co-accused. For it is settled that a confession can only be used to lend assurance to other evidence against other co-accused. That apart, confession of a co-accused is a evidence of very weak type. It does not indeed come within the definition "evidence" contained in Section 3 of the Evidence Act. In drawing such conclusion, we are duly supported by a judgment of the Hon'ble Supreme Court in case Surinder Kumar Khanna Versus ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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Intelligence Officer, Directorate of Revenue Intelligence, (2018) 8 Supreme Court Cases 271, more particularly the observations made in paras No.10 to 12 .
which read as under:-
"10. In Kashmira Singh v. State of M.P., this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. R. 1949 SCC Online PC 12: (1948-49) 76 IA and laid down as under:
of "8. Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way rt the confession of an accused person can be used against a co- accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. R. 1949 SCC Online PC 12: (1948-49) 76 IA (SCC OnLine PC) '...It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-
examination.' Their Lordships also point out that it is 'obviously evidence of a very weak type. ... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities'.
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They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in "support of other evidence". In view of these remarks, it would be pointless to cover .
the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness of who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except insofar as he is rt corroborated?
9. In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty where he said that such a confession can only be used to "lend assurance to other evidence against a co-accused "or, to put it in another way, as Moopan, In rell: (SCC OnLine Mad) Reilly, J. did in Periaswami Moopan, In re: 1930 SCC OnLine Mad 86 '...the provision goes no further than this- where there is evidence against the co-
accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.' ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the .
confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to of act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in rt aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
11. The law laid down in Kashmira Singh was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar wherein it was observed:
"12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the .
said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty10 a confession can only be used to of "lend assurance to other evidence against a co- accused". In Periaswami Moopan, In rell Reilly, J., observed that the provision of Section 30 goes not rt further than this: (SCC OnLine Mad) "...where there is evidence against the co-
accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence."
In Bhuboni Sahu v. R.9 the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC) *... a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to .
proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.' It would be noticed that as a result of the of provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is rt considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of M.P.8 where the decision of the Privy Council in Bhuboni Sahu case .
has been cited with approval."
12. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused."
of
17. We are fully conscious of the provisions of Section 54 of the NDPS Act which raises a presumption rt that the accused have committed the offence under this Act unless and until the contrary is proved and provides a reverse burden of proof upon the co-accused. However, in the instant case, it would be seen that the prosecution has failed to establish the foundational fact to establish the case against the appellants, with regard to the commission of the offence so as to shift the burden on to the accused to prove their innocence.
18. In Gorakh Nath Prasad Versus State of Bihar, (2018) 2 Supreme Court Cases 305, it was held in paragraph 5 that "a reverse burden of proof lies upon the accused, contrary to the normal rule of criminal ::: Downloaded on - 26/09/2023 20:35:31 :::CIS
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jurisprudence for presumption of innocence unless proved guilty. However, this rule shall not dispense with the requirement of the prosecution to having first establish a .
prima facie case, only whereafter the burden will shift to the accused." A mere registration of a case under the Act will not ipso facto shift the burden on the accused from the very inception. Compliance with statutory requirements of and procedures shall have to be strict and the scrutiny stringent. If there is any iota of doubt the benefit shall have rt to be given to the accused.
19. Thus, the aforesaid discussion leads to only one conclusion that the prosecution has failed to prove its case even against this appellant-Moti Ram.
Unfortunately, here again, it needs to be observed that the learned trial Court has erred in convicting him as also the other appellants little realizing that harsher the punishment the stricter the proof.
20. In such circumstances, we cannot sustain the conviction of the appellants in these appeals. Accordingly, the appeals are allowed and the impugned judgment is set-
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aside and the appellants are acquitted of the offences alleged against them.
21. In view of the provisions of Section 437-A .
Cr.P.C., all the accused persons, appellants herein, are directed to furnish personal bonds in the sum of Rs.50,000/- with one surety each of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, of which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against rt this judgment or on grant of the leave, the accused persons, appellants herein, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
22. Records be sent back.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) Judge September 26, 2023 (Shivender) ::: Downloaded on - 26/09/2023 20:35:31 :::CIS