Delhi District Court
Sc No.14A/08 State vs . Rohit Goel & Ors. on 1 October, 2015
1
IN THE COURT OF SHRI A.K.KUHAR
ASJ/SPECIAL JUDGE (NDPS), SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
S.C. No. 14A/08
u/s IPC 21 (c)/29 NDPS Act
PS-DRI
Directorate of Revenue Intelligence,
I.P. Bhavan, I.P. Estate,
New Delhi.
VERSUS
1. Rohit Goel
S/o Sh. Vishwa Mitter Goel,
R/o B-Block, Opp. Park,
Bhai Randhir Singh Nagar,
Ludhiana, Punjab.
2. Kouassi Nguessan Williams
S/o Late Mr. Kossi William,
Ivory Coast National,
R/o 25, Macory Street, Abidjan,
Ivory Coast.
Computer ID No: 02403R0284232008
Date of institution : 05.03.2008
Date of reserving judgment : 24.09.2015
Date of pronouncement : 01.10.2015
Decision : Convicted.
JUDGMENT
BRIEF FACTS OF THE CASE 1.0 The brief facts of the prosecution are that on 08.09.2007 at 6:00 pm, a secret information was received by Sh. Madan Singh, IO, Directorate of Revenue Intelligence (hereinafter referred as DRI), New Delhi that a person around 34 years old, around 5ft. 10 inches SC No.14A/08 State Vs. Rohit Goel & Ors.
2tall would bring some narcotic drugs concealed in Opel Corsa bearing no. PB 08AN 6133 for delivery of the said drugs to an African origin person around 36 years of age, 5ft. 10 inches tall who would be coming in Tata Indica car bearing no. DL 4CU 3270 at the main entrance road adjacent to park opposite to House No. 60 of H-3 Block, Vikas Puri, Delhi between midnight and 12:30 am on 09.09.2007. The information was reduced into writing and put up before Mr. Nilank Kumar, Assistant Director (Intelligence), who directed Mr. R. Roy, Intelligence Officer to take necessary action for seizing the contraband goods. The search authorization for search of both the cars, was also issued. On the basis of this information, officers of DRI rushed to the spot, where the complainant associated two panch witnesses at 23.45 hours on 08.09.2007. They were informed about specific information and also shown authorization for search of both the cars. It is further case of DRI that at 12:05 am, a Tata Indica car bearing no. DL 4CU 3270 arrived at the place, being driven by a turban wearing Sikh person (identified as Dilbagh Singh, who was later on discharged by Hon'ble High Court vide order dated 14.05.09 in Crl. Revision No. 517/08) and a person of African origin (the accused Kouassi William) was found occupying the rear seat of the said car which was subsequently parked at the spot on the main entrance road. At around 12.15 am an Opel Corsa car bearing no. PB 08AN 6133 came to spot and it was parked near the said Tata Indica. It was driven by accused Rohit Goel and one lady (namely Santosh Goel, identified as mother of Rohit Goel) was found to be occupying the front seat adjacent to him. It is further case of DRI that accused Rohit Goel, driving the Opel Corsa picked up two black coloured polythene carry bags placed in the rear seat of his car and quickly transferred to rear seat of Indica Car occupied by the accused Kouassi Williams through the open window of the rear door of the car without stepping out of the car. At that point, in SC No.14A/08 State Vs. Rohit Goel & Ors.
3time, officers intercepted both the vehicles. 1.2 It is further case of DRI that the occupants of both cases they were asked whether they were carrying narcotic drugs to which all four replied in negative, thereafter they were informed about the specific information and that in view of specific information their vehicles as well persons have to be searched thoroughly. Since the place of interception being public place where a crowd of people had also gathered by that time, it was not suitable for thorough search of their vehicle and persons, therefore, they were required to accompany DRI officers and panchas to DRI office for which all the four persons agreed. Thereafter, their vehicles were escorted by DRI office. to parking area on the ground floor of Drum Shaped Building, I.P. Bhawan, I.P. Estate, New Delhi. 1.3 On reaching the parking area at 1.30 hours on 09.09.2007 complainant gave Notice under Section 50 NDPS Act to all of them individually. They were explained that they have legal right to get their person and vehicle searched before a Gazetted Officer or Magistrate. A lady officer was also called to the office of DRI. Thereafter, a systematic examination of Tata Indica No. DL 4CU 3270 was conducted which resulted in recovery of two big black coloured polythene carry bags stuffed with some goods inside them, from the rear seat of the car where they had been placed by accused Kouassi William after receiving the same from accused Rohit Goel just before the time of interception. It is further case of DRI that one black polythene carry bag was containing seven cloth packets and other was containing eight cloth packets. All the recovered bags and documents from the vehicles alongwith all accused persons and Smt. Santosh Goel were brought to 7th floor office of DRI for further proceedings. A detailed examination of these 15 packets revealed that these cloth bags were having 4 different types of rubber stamp marking. Each cloth packet was SC No.14A/08 State Vs. Rohit Goel & Ors.
4found to contain one heat sealed transparent polythene packet, which on opening was found to contain off white granular substance emitting sharp pungent smell. All the 15 packets were alphanumerically marked according to the rubber stamp marking. The recovered packets were then marked as W-1 to W-6, X-1 to X-4, Y-1 to Y-4 and Z-1. A small quantity of the off white granular substance from each of 15 packets when tested with Narcotic Drug Detection Kit answered positive test for "Heroin". Total gross weight of 15 packets was found as 15.271 Kgs and net weight as 14.871 Kgs and the same were seized. It is further case of DRI that two representative samples of five grams each were taken and marked as W-A &W-B, X-A & X-B, Y-A & Y-B and Z-A & Z-B and were sealed with seal of DRI seal No. 10. The remaining substance was also repacked and sealed with DRI seal above a paper slip bearing signatures of panchas, accused persons, Smt. Santosh Goel and the complainant. All the 15 bags containing the seized white granular substance were then kept in a steel trunk alongwith two black colour polythene carry bags. The steel trunk was wrapped and stitched with a white cloth and sealed with the DRI seal no. 10. Test memo in triplicate for the sample drawn was prepared, which was signed by accused persons and also by Smt. Santosh Goel in the presence of panch witnesses and the facsimile of DRI seal no. 10 was appended on the same. A panchnama was also drawn by the complainant, which was also signed by accused persons and Smt. Santosh Goel and the panch witnesses. The facsimile of DRI seal No. 10 was also fixed on the last page of panchnama and the seal thereafter, was returned by Sh. B.K. Bannerji, Appraiser, DRI (HQ), New Delhi. It is further case of DRI that entire case property and samples for chemical analysis were handed over by complainant to Nilank Kumar, Asstt. Director, DRI for safe custody after completion of panchnama.
SC No.14A/08 State Vs. Rohit Goel & Ors. 5 1.4 Statement of both accused persons and Mrs. Santosh Goel were also recorded under Section 67 NDPS Act. In the
statement u/s 67 of the NDPS Act accused Rohit Goel admitted the aforesaid recovery and stated that during his stay in Spain, he had met with one Ajay Kumar with whom he became a good friend. He further stated that when he came back to India, he requested the said Ajay Kumar for monetary help for issuance of visa for Spain. He further said that Ajay Kumar offered him a job of handing over of consignment of drug to an African national in Delhi, for which he would be paid Rs. 25,000/- per consignment. Initially he refused the offer. However, about 15 days back (i.e. from the date of apprehension of the accused), he agreed to the offer of the said Ajay Kumar. He received a call on 04.09.2007, pursuant to which he came to Delhi on 05.09.2007 and met a young man about 28/30 years of age, who took him to H-3 Block, Vikaspuri and pointed out the spot near Kothi No. 60 and told that an African origin person shall be awaiting in the night intervening 8th-9th September at 12:30 am in Indica car, to whom the delivery of drug was to be made. He further said that he went back to Ludhiana and on 08.09.07 in the morning, he received a call from the said person, whom he had met in Delhi, who told that he would met him (accused) at Karnal Bypass at 11.45 am with the "stuff". The accused Rohit Goel had further stated that he started from Ludhiana at about 4:30 pm in car no. PB 08AN 6133 along with his mother, who was to go to Pehwa. He met said person at Karnal Bypass at around 11.45 pm and he was handed over two bags containing 15 packets of drug (Heroin), which he delivered to an African national at about 12:10 am, who was in the Indica car and was present at the fixed spot in H-3 Block, Vikas Puri.
1.5 In his statement u/s 67 NDPS Act, the accused Kouassi SC No.14A/08 State Vs. Rohit Goel & Ors. 6
Williams also admitted the recovery of seizure. He stated that he had met one person namely Anil in Chandigarh, with whom he disclosed about his kidney ailment. The said Anil Kumar offered to send him some Heroin for sale at Delhi and he was promised Rs. 12,000/- for each Kilo of Heroin sold. The said Anil Kumar had pointed out the place i.e. House no. 60, H-3, Vikas Puri and told him that a consignment of 15 Kg of Heroin would be sent and asked him to collect the Heroin. Accordingly, the he reached H-3 Block, Vikas Puri in the early hours, where an Opel Corsa car with two occupants came to the spot. He was handed over "Heroin" in two black colour bags of polythene in his rear seat of Indica car. The statement of the driver of Indica car namely Dilbag Singh was also recorded u/s 67 NDPS Act. However, this accused Dilbag Singh was discharged by the Hon'ble High Court vide order dated 14.05.2009 in Criminal Revision No. 517/08.
1.6 A statement u/s 67 of NDPS Act of Smt. Santosh Goel was also recorded, where she denied the knowledge about her son Rohit Goel carrying Heroin in the car. Although, she admitted that on 08.09.07, she had come to Delhi with her son Rohit Goel in a car and that Rohit Goel had handed over two packets from his car to a foreigner (i.e. African person) sitting in the Indica car.
Pursuant to the recovery and seizure of Heroin and the statements recorded u/s 67 of NDPS Act, DRI officials arrested accused Rohit Goel, Kouassi Williams and Dilbagh Singh (later on discharged). They were got medically examined at Ram Manohar Lohia Hospital and produced before the Court.
1.7 On 10.09.07, Sh. Nilank Verma, Assistant Director (G.I.) gave the representative samples marked WA, XA, YA and ZA to Sh. Jagdish, Steno, DRI with a forwarding letter and Test Memo in duplicate and sent the samples to Central Revenue Control Laboratory (CRCL), New Delhi, for chemical analyses. The samples SC No.14A/08 State Vs. Rohit Goel & Ors.
7were received by Sh. Jaivir Singh, Lab Assistant, Grade-II at CRCL. The seized case property along with the packaging material was deposited by Sh. D.P. Saxena with the Valuable Godown, New Customs House on 10.09.07 in intact condition. Till the case property was deposited with valuable Godown, it remained in the office of DRI with Sh. Nilank Kumar under locked and sealed condition without any tampering.
1.8 Sh. Nilank Verma, Assistant Director (G.I.), vide letter dated 10.09.07, requested Joint Director, DRI, Ludhiana to search the residential premises of accused Rohit Goel at B-Block, Opposite Park Bhai Randhir Singh Nagar, Ludiana. Sh. Narender Mohan, IO, DRI, Ludhiana, searched the said premises at 229-B, Bhai Randhir Singh Nagar, Ludhiana, but nothing incriminating was recovered. The residential premises of Dilbag Singh, Driver of Indica car, was also searched, but nothing incriminating was recovered. 1.9 The CRCL report dated 10.12.07, confirmed that the sample mark W-A, Y-A and Z-A were of Diacetylmorphine (Heroin). As regard the sample Mark X1, it was opined that sample did not answer positive test of Diacetylmorphine. As per this report the quantification could not be done for want of standard reference sample of Diacetylmorphine. Therefore, vide letter dated 02.01.08, she K.K. Sood, Assistant Director (G.I.), DIR, New Delhi, requested the chemical examination for conduction of quantitative analysis of samples WA, YA and ZA. The CRCL gave the report dated 04.01.08, as per which the samples found to be of Diacetylmorphine having purity percentage of 60.1%, 64.1% and 61.7%. With regard to the sample Mark X-A, the letter was sent to Central Forensic Science Laboratory (CFSL), Hyderabad along with the sample for quantitative and qualitative analysis. As per the report of CFSL received during the pendency of the trial, the sample did not test positive for Diacetylmorphine.
SC No.14A/08 State Vs. Rohit Goel & Ors.
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1.10 During the investigation, it was found that the vehicle PB
08AN 6133 Opel Corsa Car was in the name of M/s Goel Rubber and Chemical, Sharma Market, Nehru Garden Road, Jalandhar. The Panch witnesses, who were joined in the raid, were summoned and their voluntary statements were recorded u/s 57 NDPS Act. A report u/s 67 NDPS Act regarding seizure of contraband substance and arrest of accused persons was submitted by the complainant to his immediate superior officer Sh. B.K. Bannerji on 10.09.2007. 1.11 After completing the investigation qua the accused persons, the complaint u/s 21 and 29 NDPS Act, 1985 was filed. Cognizance of the offence was taken by my Ld. Predecessor on 05.03.2008.
2.0 After hearing arguments on the point of charge, my Ld. Predecessor framed the charges against the accused persons namely Rohit Goel, Kouassi N. Williams and Dilbag Singh for the offences u/s 29 NDPS Act and Section 21 (c) read with Section 29 NDPS Act, 1985 on 04.06.08 All three accused had pleaded not guilty to the charge and had claimed the trial. The accused Dilbagh Singh challenged the order dated 04.06.08, in Criminal Revision Petition No. 517/08 and Hon'ble High Court set aside the order dated 04.06.08 qua him and discharged him. Therefore, the trial proceeded against Rohit Goel and Kouassi Nguessan William. PROSECUTION EVIDENCE 3.0 The prosecution to prove its case qua the accused has examined following witnesses :
3.1 PW1 is Sh. Madan Singh, Intelligence/Investigating Officer. This witness has deposed that on 08.09.2007 at about 18:00 hours, he had received a specific information, Ex. PW1/A that a person around 34 years, 5 ft. 10 inches tall would bring narcotic drugs concealed in Open Corsa car having registration No. PB-08-
AN-6133 being driven by him for delivery of the said narcotic drug SC No.14A/08 State Vs. Rohit Goel & Ors.
9to an African origin person of around 36 years, 5 ft. 10 inches tall, who would be coming by Indica car having registration No. DL-4C- U- 3270 at main entrance road adjacent to park, opposite H. No. 60, H-3 Block, Vikas Puri, Delhi between 0000/0030 hours on 09.09.2007. He reduced the said information into writing and submitted to his senior officer PW-13 Shri Nilank Kumar, Assistant Director DRI for perusal.
3.2 PW2 is Sh. B.K. Banerjee, Appraiser, DRI. He has deposed that he had issued the DRI seal on 08.09.2007 to Sh. R. Roy and Shri R. Roy returned the said seal on 09.09.2007 and an entry to this effect was made in the seal movement register, photocopy of the same is Ex. PW-2/A (OSR). He has also proved the report under Section 57 of NDPS Act, 1985, Ex. PW2/B, which was submitted to him by Shri R.Roy, I.O., DRI.
3.3.0 PW3 is Sh. R. Roy, I.O., DRI. He has deposed that he had filed the complaint Ex. PW3/A in the discharge of his official duties. On the directions of PW13 Shri Nilank Kumar, he had constituted a team of officers and reached at the address mentioned in the specific information. After reaching there, he called two panch witnesses namely S/Shri Sunil Kumar and Ramesh Kumar at the spot at about 23:45 hours. He apprised them regarding the contents of the secret information and requested them to witness the proceedings, if any, to which both of them agreed. At about 0005 hours on 09.09.2007, one Tata Indica car no. DL-4CU0-3270 arrived at the said place which was driven by one Sikh person and one person of African origin, was sitting on the rear seat of the car. The said car was parked at the main entrance road adjacent to park in H-3 Block. At around 0015 hours an Opel Corsa car bearing registration no. PB-08-AN-6133 arrived at the said place and parked near said Tata Indica car. The said car driven by a man and one lady was occupying the front seat SC No.14A/08 State Vs. Rohit Goel & Ors.
10adjacent to him. The person occupying the driver seat of Opel Corsa car had picked up two black colour polythene carry bags from the rear seat of his car and quickly transferred the same to the rear seat of the Tata Indica car, occupied by the person of African origin through the opened window of the said car. At this stage, the DRI officials intercepted both the aforesaid cars in the presence of two panch witnesses. The occupant of the Opel Corsa car tried to prevent the officials of DRI in stopping his car and started shouting. Due to the shouting the local residents started gathering near the cars. At that point of time, DRI officials introduced themselves to all the occupants of both the cars by showing their I/cards. They also introduced both the panch witnesses to them.
3.3.1 On enquiry, African person disclosed his name Kouassi Nguessan Williams. The driver of Tata Indica car disclosed his name as Dilbagh Singh. The person who was driving Open Coersa car disclosed his name as Rohit Goel and the lady who was sitting with him disclosed her name as Smt. Santosh Goel, Mother of Rohit Goel. This witness has further deposed that he had informed occupants of both cars regarding the specific information available with them and he had showed the search warrants Ex. PW3/B and Ex. PW3/C to them, in respect of both the cars respectively. On enquiry, all the four occupants of cars denied about having any contraband. This witness further deposed that he had informed them that in view of specific information, their vehicles as well as their persons are required to be searched thoroughly. Since the place of their interception was the public place and small crowd already gathered there, it was not possible to conduct the search at the spot, therefore, they had to accompany the DRI officials to their office and I.P. Bhawan, I.P. Estate, Delhi, to which all the four occupants of both the vehicles, agreed.
SC No.14A/08 State Vs. Rohit Goel & Ors.
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3.3.2 Therefore, both the vehicles alongwith both the panch
witnesses were escorted to the parking area on the ground floor of Drum Shape Building, I.P. Estate, Delhi at about 0130 hours. At the ground floor of the said building, notices under Section 50 of NDPS Act, Ex. PW3/D to Ex. PW-3/G were issued to Rohit Goel, Dilbag Singh, Kouassi Nguessan Williams and Smt. Santosh Goel explaining them regarding their legal option to get their person as well as their vehicles searched before a Gazetted officer or a Magistrate to which Rohit Goel, Dilbagh Singh and Kouassi Williams informed in writing that any officer of DRI could conduct the search of their persons and vehicles whereas Smt. Santosh Goel informed in writing that any lady officer could conduct the search of her person and any officer of DRI could conduct the search of the car which was occupied by her.
3.3.3 This witness had further deposed that during the examination of Tata Indica car two big black colour polythene carry bags were recovered from the rear seat of the said car which were kept by accused William after receiving the same from accused Rohit Goel just before the interception of their cars. On further examination, the said black colour polythene bags were found to contain 8 and 7 cloth packets. Thereafter, all the 15 packets alongwith two black colour polythene carry bags alongwith documents recovered from both the cars, occupant of both the vehicle and panch witnesses were escorted to the 7 th Floor of Durm Shape Building, I.P. Bhawan, I.P. Estate, where office of DRI is situated. During personal search of Rohit Goel, Dilbag, William and Smt. Santosh Goel (conducted by a lady officer), nothing incriminating was recovered. However, passport was recovered from the possession of accused William.
3.3.4 He further deposed that all the 15 packets were given the markings for identification purpose as per the description of SC No.14A/08 State Vs. Rohit Goel & Ors.
12rubber stamp marking. The set of six cloth bags having similar rubber stamp markings, were alphanumerically marked as W-1 to W-6. The two sets of 4 cloth bags having similar marking, was alphanumerically marked as X-1 to X-4 and Y-1 to Y-4. The fourth type rubber stamp found on one bag which was marked Z-1. All these bags further contained one more heat sealed transparent polythene packet, which on opening found to contain off-white colour granular substance emanating pungent smell. A small quantity of substance taken out from each packet when tested with the Drug Detection Kit answered positive for heroin. The weighment of each packet was conducted, and all 15 packets weighing 14.871 (approx. net weight) alongwith packing material were seized. Two representative samples of 5 grams each were taken out from each lot after taking out small quantity from each similar cloth bag and kept in small zip locked polythene and marked as W-A and W-B, X-A, X-B, Y-A and Y-B and Z-A and Z-B respectively. In all eight samples were drawn. The remaining powder was also seized and sealed with DRI seal over a paper slip having the signatures of PW3, all the four occupants of the car and both the panch witnesses, after keeping them in white colour cloth bag. He further deposed that the test memo, in triplicate, was also prepared and the facsimile of DRI seal was also affixed on the panchnama as well as test memos. The recovered documents were also taken into possession and panchnama Ex. PW3/H was prepared regarding the interception, search and seizure proceedings. The execution report on search authorization in respect of Indica car and Opel Corsa car was submitted by him to Mr. Nilank Kumar vide Ex. PW3/B-1 and Ex. PW3/C-1 respectively. He has also proved the Annexures to Panchnama as Ex. PW3/H-1 to H-4. He further proved documents recovered from both the cars as Ex. PW3/J and Ex. PW3/J-1 to J-7. The witness has further proved SC No.14A/08 State Vs. Rohit Goel & Ors.
13the office copy of the test memo as Ex. PW3/K and copy of test memo which was received back from CRCL with analysis report as Ex. PW3/K-1.
3.3.5 In pursuance of summons Ex. PW3/L, accused Kouassi William tendered, his voluntary statement Ex. PW3/L1 in his own handwriting and also surrendered his passport Ex. PW-3/L-2.
3.3.6 Pursuant to summon Ex. PW-3/M, Smt. Santosh Goel tendered her voluntary statement Ex. PW-3/M1. 3.3.7 After completion of seizure formality etc., the accused Rohit Goel, Dilbagh Singh (discharged) and Kouassi William were put under arrest on 09.09.2007 vide arrest cum jamatalashi memos Ex. PW-3/N, N1 and N2 respectively. Thereafter, all of them were got medically examined on the request letters Ex. PW3/O1 to O3 respectively, by the doctors of RML Hospital, New Delhi and MLCs Mark A, B and C were issued to this effect. Since the DRI has no lock up facility, therefore, vide letter Ex. PW3/P, all the three accused persons were kept in rahadari at P.S. Daryaganj and all the three accused persons were again got medically examined on the requests letters Ex. PW-3/Q1 to Q3 by the doctors of RML Hospital and MLCs mark D, E and F were issued. 3.3.8 This witness has further deposed that he had submitted the report under Section 57 of NDPS Act, Ex. PW2/D to his superior officer Shri B.K. Banerjee regarding interception, search, seizure and arrest of all the accused persons. He had also issued the summons Ex. PW3/T and PW3/U to the panch witnesses namely Sunil Kumar and Ramesh Kumar respectively. Pursuance to that both the panch witnesses appeared and tendered their voluntary statements Ex. PW-3/T1 and Ex. PW3/U1 respectively in their own handwriting in which they confirmed the fact of their joining to the panchnama proceedings, recovery, seizure and other SC No.14A/08 State Vs. Rohit Goel & Ors.
14incriminating facts. This witness has also identified the entire case property, both sets of samples and vehicles as Ex. P-1 to P-77. 3.4 PW4 is Shri K.K. Sood, Deputy Director, DRI. He has proved the letter dated 02.01.08 Ex. PW4/A vide which the remnant samples were sent back to CRCL for conducting purity test. He had also sent one sample packet duly sealed with the seal of Central Revenues Control Laboratory to CFSL, Hyderabad for identification of the drug contained therein as the CRCL, Delhi had shown their inability to identity the same. He had also proved the letter Ex. PW4/C to the Assistant Commissioner, Central Excise, Jalandhar regarding the ownership of the vehicle in question. 3.5 PW5 is Shri Jaiveer Singh, Lab Assistant, CRCL,New Delhi. He has received the sample packets in the office of CRCL in intact condition alongwith forwarding letter and copy of test memo in duplicate and issued acknowledgement Ex. PW5/A. On 03.01.2008 he had received the remnant samples duly sealed with the seal of CRCL alongwith forwarding letter dated 02.01.2008 and he also issued acknowledgement to this effect. The said documents are collectively Ex. PW5/B. 3.6 PW6 is Shri Gurjeet Singh, I.O. DRI. He has proved the summons dated 09.09.2007 Ex. PW6/A issued to accused Rohit Goel and in pursuance of summons accused Rohit Goel tendered his voluntary statement Ex. PW6/B in his own handwriting. He has also identified the accused Rohit Goel.
3.7 PW7 is Shri S.C. Mathur, Chemical Examiner, CRCL, New Delhi. He has deposed that on 10.09.2007 Shri J.S. Aggarwal, Chemical Examiner Grade-II, had received four sealed sample packets alongwith forwarding letter and test memo in duplicate. The said samples were registered as CLD No. 426 (N) to 429 (N) and were allotted to Mr. L.M. Aggarwal, ACE, CRCL, New Delhi. On 06.11.2007, the aforesaid sample packets were received back from SC No.14A/08 State Vs. Rohit Goel & Ors.
15Shri J.S. Aggarwal and were re-allotted to Shri V.P. Bahuguna (PW-14), who analysed the sample packets under his direct supervision. After analysis the remnant samples were sealed with the seal of Central Cevenues Control Laboratory, Government of India-II and the analysis report Ex. PW7/A was issued under his signatures. The said report also bears the signatures of Shri V.P. Bahuguna. He deposed that sample W-A, Y-A and Z-A found for the presence of Diacetylmorphine (Heroin). The sample packet mark XA was found negative for diacetylmorphine (heroin) and the laboratory in CRCL was not having standard reference of other psychotropic substance and the same was recommended for chemical examination to any CFSL laboratory.
3.7.1 He has further deposed that on 03.01.2008 the remnant sample mark WA, YA and ZA were received back for quantification of diacetylmorphine. The quantification test was conducted by Shri V.P. Bahuguna (PW14) under his supervision. The percentage of Diacetylmorphine found to be 60.1%, 64.7% and 61.7% respectively. The Quantification Report Ex. PW7/C was issued under his signatures.
3.8 PW8 is Shri D.B. Sharma, Inspector Incharge, Valuable Godown, NCH, New Delhi. He was proved that on 10.09.2007 on the instructions of Shri B.B. Batra, Assistant Commissioner, Customs, he had received the case property in the valuable godown vide deposit memo Ex. PW8/A on which he had written the godown entry number. He had also made the corresponding entry in this regard in the valuable godown register, copy of which is Ex. PW8/B and during his tenure in valuable godown the case property was not tampered with and remained in sealed and intact condition.
3.9 PW9 is Shri Jagdish Rai, Stenographer, Grade-I, DRI. This witness has deposed that on 10.09.2007 Shri Nilank Kumar, SC No.14A/08 State Vs. Rohit Goel & Ors.
16Assistant Director directed him to deposit the sealed sample packets in CRCL. He also handed over him the forwarding letter, four sealed sample packets with test memos in duplicate. This witness proved the forwarding letter as Ex. PW9/A. This witness also deposed that he deposited the sealed sample packets with CRCL vide acknowledgement receipt issued in his name by CRCL, which is Ex. PW5/A. 3.10 PW10 is Smt. K.K. Malhotra, Tax Assistant, DRI. This witness has deposed about the recovery, search and seizure. This witness also deposed that she had conducted personal search of Smt. Santosh Goel in complete privacy but she did not recover anything incriminating. She also deposed that after completion of panchnam a proceedings, in pursuance to the summons, Smt. Santosh Goel tendered her voluntary statement under Section 67 of NDPS Act, 1985 before Shri R. Roy and during recording of her statement, she was present there. This witness also deposed that since Smt. Santosh Goel was having pain in her hand and as such she requested her to write down her statement and on her request, she had reduced into writing the statement of Smt. Santosh Goel as per her dictation. This witness also deposed that after completion of the statement, the same was given to Smt. Santosh Goel and after reading the same she put her signature and found that the contents were as per her dictation.
3.11 PW11 is Shri Devender Prasad Saxena, I.O. DRI. He has deposed that he was one of the members of raiding team alongwith Sh. R.Roy, Surjeet Singh, Yogesh Chaudhary and two- three other officers. His statement is on same line as that of PW3. 3.11.1 On 09.10.2007 on the direction of PW13 Shri Nilank Kumar, he had prepared the deposit memo with the assistance of PW3 Sh. R. Roy which was countersigned by Mr. Nilank Kumar. He had deposited the case property in sealed condition in the godown SC No.14A/08 State Vs. Rohit Goel & Ors.
17at New Customs House, New Delhi, with Sh. D.B. Sharma (PW8), who had given the acknowledgement of receiving the case property on the deposit memo Ex. PW8/A. 3.11.2 On 02.2008 on the instructions of PW4 Shri K.K. Sood, he had deposited the three remnant sample packets in the office of CRCL alongwith covering letter Ex. PW-4/A and acknowledgement in this behalf was issued.
3.12 PW12 is Shri Jyothimon. He has proved the summons Ex. PW12/A to Dilbagh Singh driver of Indica car. In response to summons, he appeared and tendered his voluntary statement Ex. PW12/B. He had also submitted the enquiry report Ex. PW12/C regarding the house of accused Kaossi William to the effect that no African person had stayed at the addresses WZ-130 and WZ-137. 3.13 PW13 is Shri Nilank Kumar, Assistant Director, DRI. He has deposed that PW1 Shri Madan Singh had put up the secret information before him and he after perusing the same directed PW3 Shri R.Roy for taking necessary action for the suspected seizure of the contraband and he had given the said instrcutions on the body of information Ex. PW1/A. He had also issued the search warrant Ex. PW3/B and Ex. PW3/C in respect of both the vehicles in question. He has also proved the execution report Ex. PW3/B1 and Ex. PW3/C1. He has also given the intimation of arrest of all the three accused persons vide Ex. PW13/A to 13/C. He had also proved the copies of receipt issued by BSNL regarding giving the telegrams which were collectively Ex. PW13/D. He had also given the intimation of arrest of accused Dilbagh Singh to his office (NDMC) vide letter Ex. PW13/E. He had also deposed that immediately after seizure formalities, the entire case property, samples and test memos were handed over to him by Shri R. Roy for safe custody and on 10.09.2007 he had directed PW11 Shri D.P. Saxena to deposit the case property in valuable godown and on the SC No.14A/08 State Vs. Rohit Goel & Ors.
18same day he had directed PW9 Shri Jagdish Rai to deposit the four sealed sample packets in the office of CRCL alongwith forwarding letter Ex. PW9/A alongwith test memo in duplicate. He has also proved the search authorization Ex. PW3/R with respect to the residential premises of Dilbagh Singh. He has also proved the letter Ex. PW13/F which was written to DRI, Ludhiana for conducting the search of premises of accused Rohit Goel and the report from DRI, Ludhiana was received alongwith the documents which are collectively Ex. PW13/G. He has also proved the report Ex. PW12/C regarding house of accused Kauossi William. 3.14 PW14 is Shri V.P. Bahuguna, ACE, CRCL, New Delhi. He has deposed that on 06.11.2007 the four sample packets which were duly sealed were re-allotted to him by PW7 Shri S.C. Mathur and he had checked the seals on the sample packets and tallied the same with the facsimile on the test memos. He has analysed all the four sample packets and found three samples mark WA, YA, ZA found positive for diacetylmorphine and the sample mark XA did not find positive for diacetylmorphine and the presence of other psychotropic substance could not be determine for want of standard reference sample. After analysis the remnant samples were re- sealed with the seal of CRCL and final analysis report Ex. PW7/A was issued under his signature as well as signature of PW7 Shri S.C. Mathur. He has also proved the section-II of the test memo Ex. PW3/K1. On 03.01.2008 three remnant samples were received back from the office of DRI for quantification test. He has analysed the remnant samples to determine the purity percentage of diacetylmorphine in the remnant samples and after analysis the test report Ex. PW7/C was issued under his signatures as well as under
the signatures of PW7 Shri S.C. Mathur.
Statement u/s 313 Cr.P.C and Defence Evidence
4.0 The incriminating evidence in the statement of the SC No.14A/08 State Vs. Rohit Goel & Ors.
19witnesses was explained to the accused when they were examined u/s 313 Cr.P.C. The accused Rohit Goel has stated in his defence when examined u/s 313 Cr.P.C. that on 08.09.07, he alongwith his mother (Smt. Santosh Goel) had left Ludhiana, Punjab to Pehwa. His mother wanted to take holy dip in the Sarovar at Pehwa. However, on the day, they changed their program and first decided to visit at his Aunt's (of Mausi) house at Punjabi Bagh. When they were at their way to Punjabi Bagh, they were intercepted near Britannia factory on the Ring Road around 10:30/11:00 pm. Those persons introduced themselves as from police department having shown their identity cards. They said that he has caused some accident on the way. Subsequently, he was taken to DRI office. He denied having been apprehended from Vikas Puri with the packets containing Heroin. He further stated that no proceedings in the DRI office conducted and he was made to sign many blank, semi-written and written documents including some small papers slips. He was also forced to write a dictated statement regarding possession of or involvement in dealing of narcotic drug. He further stated that he did not know his co-accused Kouassi Williams and Dilbag Singh (since discharged) prior to this case and had seen them for the first time when he was being taken to police station. He further admitted that the car having registration no. PB 08AN 6133 was in his possession on 08.09.07 and this car is owned by his father's firm.
4.1 In his defence, the accused Rohit Goel has examined Smt. Santosh Goel as DW1, who deposed that on 08.09.07, she alongwith her son Rohit Goel started from Ludhiana at around 4:00/4:15 pm. After performing some rituals at Pehwa, she told her son that she wanted to visit her sister, who resides in Delhi and he should take her to Delhi. Thus, they came to Delhi, but their car was stopped at Britannia Chowk around 11:00/11:15 pm on the SC No.14A/08 State Vs. Rohit Goel & Ors.
20pretext that the car was involved in some accident. She further submitted that they were taken to some building by those persons, where accused Rohit Goel was beaten. She was also made to write something on the paper. She further said that Rohit Goel has never been to Spain and she has never seen co-accused Kouassi Williams earlier. She further stated that Rohit Goel has never visited Delhi during the Months of September, 2007 prior to 08.09.2007. 4.2 The accused Kouassi Williams in his statement under section 313 Cr.P.C. has taken the defence that no Heroin or any contraband was recovered from him. He was picked up from the area of Krishna Park where he was residing when he had gone to market at around 2:30 pm on 06.09.2007 for purchasing food stuffs. He was taken to some office and after about 4 days of her apprehension on 09.09.2007, he was taken to some police station and on next date produced in the Court. He further said that while in the custody, he was physically and mentally tortured and forced to sign some blank, semi-written and written documents. With regard to his statement given to DRI officers, he said that he had already retracted his statement on his first appearance in the Court vide Ex. PA and PB. He also stated that DRI officers had threatened to kill his wife and daughter, who were staying with him in the area of Krishna Park in a rented accommodation.
4.3 Accused Kouassi Williams preferred to examine himself as defence witness u/s 315 Cr.P.C. as DW2. He has deposed that he was picked up from the local market in Krishna Park on 06.09.07, when he was buying some food stuffs. He was taken to seventh floor of the building at I.T.O. Where he was made to write some papers and he was given blows under his foot and under waist and was slapped many times. On 07.09.07, he was put under great mental and physical torture and was threatened that false case will be planted on his family, if he refused to sign the documents SC No.14A/08 State Vs. Rohit Goel & Ors.
21according to their wish. He further said that he had never been to Vikaspuri as stated in the chargesheet and he does know co- accused Rohit Goel and Dilbag Singh (since discharged). He stated that he met co-accused Rohit Goel for the first time in the DRI office. 5.0 I have heard arguments advanced by Ld. Special Public Prosecutor (SPP) for the State, Sh. Rahul Tyagi, Ld. counsel for accused Rohit Goel and Sh. Jitender Sethi, Ld. counsel for accused Kouassi Williams. I have gone through evidence on the record carefully.
Arguments by Ld. Sr. Special PP for DRI :
6.0 The Ld. Special PP has argued that it is a case of recovery of 14.871 Kg. of Heroin. To prove the recovery of Heroin, the prosecution has examined PW3 Sh. R. Roy, the Investigating Officer (IO), PW10 Ms. K.K. Malhotra and PW11 Sh. D.P. Saxena. He argued that the accused have been apprehended on the basis of secret information, which was reduced to writing in terms of mandatory provision of Section 42 of NDPS act. It was argued that pursuant to the directions of the Assistant Director, DRI, a raiding team was formed, in which two independent witnesses namely Sunil Kumar and Ramesh Kumar were also joined at spot. All the members of raiding party had reached the spot. The Indica car came to the spot, in which the accused Kouassi Williams was sitting on the back seat, which was driven by one Dilbag Singh. After some time another car make Opel Corsa, came to the spot driven by accused Rohit Goel. The accused Rohit Goel picked up two polythene bags from his car and transferred them on the back seat of the Indica car without stepping out of the car. Ld. counsel argued that at that very moment, the raiding party apprehended the accused persons and finding that the place was not conductive for further proceedings, both the cars with their occupants, were brought to the office of DRI, I.P. Estate, I.T.O. The search was SC No.14A/08 State Vs. Rohit Goel & Ors.
22conducted, which led the recovery of two bags, with 15 cloth bags therein, which were found containing Heroin. The Ld. counsel for accused has argued that the mandatory provision of Section 50 NDPS Act has been duly complied with. The search was conducted when none of the occupant opted by the search in the presence of Gazetted Officer or Magistrate.
6.1 It is submitted that the samples were taken out from the recovered cloth packets, which were marked WA, WB, XA, XB, YA, YB, ZA, ZB. As per the chemical analysis report, samples Mark WA, YA and ZA gave positive test for Diacetylmorphine having purity of 60.1%, 647% and 61.7% respectively. The Ld. Special PP has further submitted that the statement u/s 67 NDPS Act tendered by both the accused provided support to the prosecution case. The accused have admitted the recovery and seizure of contraband substance from their possession. It is further submitted that in compliance of Section 57 of the NDPS Act, the Intelligence Officer R. Roy submitted the report to the senior officer Sh. B.K. Bannerjee. The Ld. Special PP submitted that the recovery witnesses have been consistent in their statement. There is no material or inherent inconsistency in this case. The accused have not alleged any hostility with the officers of DRI. Thereafter, there is no reason to disbelieve their statement, which is supported and corroborated by the statement of the accused tendered u/s 67 of NDPS Act, which has been tendered by them voluntarily. Therefore, the case of the prosecution stands proved.
Argument by Ld. Defence Counsel for Accused Rohit Goel 7.0 The Ld. counsel for the accused Rohit Goel has assailed the case of complainant/DRI mainly on the following grounds :
a. That DRI has fabricated false evidence and joined fictitious witnesses shown as independent witnesses i.e. Sunil Kumar and Ramesh Kumar. It was submitted that they are the stock witnesses SC No.14A/08 State Vs. Rohit Goel & Ors.23
of DRI. Apart from them, there is no evidence as to who had called them to be the witnesses in the present case;
b. That nothing has been recovered from the possession of Rohit Goel, therefore, one cannot draw presumption of Section 35 and 54 NDPS Act qua the accused Rohit Goel;
c. That the sample of the case property were not drawn at the spot, nor the seizure proceedings were conducted at the spot. d. That the test report qua the quantification/comparison of Heroin in the sample is invalid and it cannot be read in evidence in view of present position of law;
e. That the expert PW14 Sh. B.P. Bahuguna, Assistant, Chemical Examiner, has not informed the Court, the procedure applied for conducting the quantification test;
f. That the confessional statement of the accused is not voluntary as it has been procured under pressure. The language used in the statement is highly technical, which cannot be spoken by a Layman;
g. That no effort was made to conduct search before any Gazetted Officer or a Magistrate. Apart from this, he also pointed out certain discrepancies in prosecution case. It is submitted that prosecution has not produced any documentary proof of departure of raiding party from the office of DRI to the spot. Though DRI official used an official vehicle, but the log book has not been produced. He submitted that there is no iota of evidence to show any conspiracy between the accused persons.
7.1 The Ld. counsel for accused Rohit Goel has relied upon the following judgments in support of his arguments :-
(i) Kuldeep Singh vs. State of Punjab (2011 Crl. L.J. 2672).
(ii) Haji Mohammad Ekramul Haq vs. The State of W.B., AIR 1959 Supreme Court 488.
SC No.14A/08 State Vs. Rohit Goel & Ors. 24 (iii) Law Society of India vs. Fertilizers & Chemicals Travancore Ltd. AIR 1994 Kerala 308. (iv) Gulzar Ali vs. State of Himachal Pradesh (1998) 2 SCC 192 = Manu/SC/0911/1998. (v) Ramesh Chandra Agrawal vs. Regency Hospital Ltd. and Ors. AIR 2010 SC 806 = Manu/SC/1641/2009. (vi) Kishan Lal vs. State of Rajasthan, AIR 1999 Supreme Court 3602
(vii) State of Rajasthan vs Rajaram, AIR 2003 Supreme Court 3601
(viii) Union of India vs. Bal Mukund and Ors., Manu/SC/0515/2009.
(ix) Noor Aga vs. State of Punjab 2008 Drugs Cases (Narcotics) 352 = Manu/SC/2913/2008.
Argument by Defence Counsel to accused Kouassi Williams : 8.0 The Ld. counsel for accused Kouassi William has also assailed the prosecution case on the ground inter-alia that recovery from accused Kouassi William has not been established and there is no material on record to show that accused Kouassi William was in conscious possession with regard to the two polythene bags; that the proceedings of search and seizure are illegal as no proceedings have been conducted at the spot; that the notice u/s 50 of NDPS Act has not been given to the accused at the place of apprehension; that there is no documentary evidence to show that PW3 Sh. R. Roy had handed over the case property and the sample parcels to PW13 Sh. Nilank Kumar. He also argued that investigation is biased and tainted. The complainant/DRI has not produced panch witnesses namely Sunil Kumar and Ramesh Kumar. The Ld. counsel for accused has also taken exception of compliance of mandatory provision of Section 42 and Section 50 of NDPS Act. 8.1 The Ld. counsel for accused Kouassi Williams has relied upon the following judgments in support of his arguments :-
SC No.14A/08 State Vs. Rohit Goel & Ors.
25i. 2006 (3) JCC (Narcotics) 150-Ritesh Chakarvarti vs. State of Madhya Pradesh (Para 25) ii. 32 (1987) Delhi Law Times 1-Rattan Lal vs. State (Para 5) iii. Crl. A. 783/2012 & Crl. M.A. 17117/12-Mohd. Irfan vs. DRI (Page 5-8 & 10,11).
iv. 2012 (3) JCC (Narcotics) 81-James Easyfranky vs. DRI (Para 25, 28, 30, 32, 33,142, 145, 157) v. 1990 C.C. Cases 69 (HC)-Pradeep Kumar vs. State (Para 21,22) vi. 2009 (2) Crimes 171 (SC)-U.O.I. vs. Bal Mukund & Ors. (Para
27) vii. 2008 (3) JCC (Narcotics) 135, Noor Aga vs. State of Punjab & Ors. (Para 98,99, 107) viii. Punjab & Haryana High Court-Criminal Appeal No. 627 DB of 2000 dt. 21.09.04, Raj Kumar vs. State of Punjab (Para 17, 18) ix. 2012 (3) JCC (Narcotics) 138, Basant Rai vs. State (Para 21) x. In the High Court of Delhi, Cr. A. No. 26 of 1974 dt. 19.01.1976 Balwant Singh vs. State (Page 42) xi. 1994 SCC (Cri.) 734, State of A.P. vs. Punati Ramuli and Ors.
(Para5) 9.0 The case of complainant/ DRI is based on the statement of official witness. Although two public witnesses were joined during the raid and subsequent search and recovery proceedings, but they have not been examined in the Court. Had the complainant/DRI examined the public witnesses that could have lend more strength and support to the statement of official witnesses. So far as the evidentry value of the statement of official witness is concerned they carry the same value as any other witness. Their statement can not be looked upon with suspicion just on account of their status. In the present case, the prosecution apart from the SC No.14A/08 State Vs. Rohit Goel & Ors.
26statement of recovery witness and the report of CRCL confirming the presence of Diacetylmorphine in sample, is also relying upon the statement of accused Rohit Goel and Kouassi Williams u/s 67 of NDPS Act, Ex. PW6/A and Ex. PW3/L-1 respectively. Therefore, before considering the statement of official witnesses, it would be appropriate to understand the evidentry value of the statement u/s 67 of NDPS Act tendered by the accused persons.
Statement u/s 67 of NDPS Act 10.0 The position with regard to the admissibility of statement tendered u/s 67 of NDPS Act may be considered here. 10.1 It is now well settled that such a statement tendered under section 67 of the Act by an accused is very much admissible in evidence and the same can also be made the basis of the conviction of an accused, if the same is found to be made voluntary and is truthful. Further, it cannot be equated with the statement of an accused made in custody, even if it is confessional in nature, as the same is made by an accused prior to his arrest in the case and hence, the bar of Section 24 to 27 of the Evidence Act and even Article 20 (3) of the Constitution would not be attracted to such a statement. However, if such a statement is found to be made by an accused under some pressure, coercion or influence etc and is not voluntary then it cannot be believed and acted upon with out some independent corroboration of facts stated therein.
10.2 If the accused subsequently retracts from such a statement, then the court has to look into the entirety of the facts and circumstances leading to the making of the above statement and its subsequent retraction, so as to form an opinion regarding the voluntariness of such a statement and the effect which has to be given to subsequent retraction thereof. However, it is also well settled that such a retracted statement is a weak piece of evidence SC No.14A/08 State Vs. Rohit Goel & Ors.
27and the court should not proceed to base a finding of conviction on the basis of such a retracted statement, unless there is some other independent evidence to corroborate the same. Reference with regard to the above can be made to some of the judgments in cases Raj Kumar Karwal Vs. Union of India & Ors. (1990) 2 SCC 409; Kanhaiya Lal Vs. Union of India 2008 (1) AD (Crl.) (SC) 277; Noor Aga Vs. State of Punjab & Anr. 2008 (9) Scale 681: Union of India Vs. Bal Mukund and othrs. 2009 (2) Crimes 171 (SC); DRI Vs. Raj Kumar Mehta & Ors. 2011 (3) JC (Narcotics) 156.
10.3 In a recent judgment, the Hon'ble Delhi High Court has dealt with the admissibility of the statement u/s 67 NDPS Act in the case Rapheal Vs. Devender Singh (Intelligence Officer, DRI) Crl. Appeal No. 1394/2013 decided on 27.05.15, wherein it has been observed ;
"21. It is trite that a statement under Section 67 of the NDPS Act is admissible in evidence and can be considered by the Court against the accused. It is also settled law that if the same is found to be made voluntarily, then the same can even be made the sole basis of conviction of accused. However, if the same is subsequently retracted by the accused then such a statement cannot be made the sole basis of conviction of accused and independent corroboration is required."
10.4 Ld. counsel for the accused, however, argued that the statement of the accused u/s 67 NDPS Act cannot be used to base the conviction of accused. They have placed reliance on the Noor Aga's case (Supra), Bal Mukund's case (Supra). No doubt there is a slight shift in the manner of appreciation and in the evidentiary value of statement u/s 67 NDPS Act, but even in Bal Mukund's case (Supra), the Hon'ble Supreme Court did not say that the statement tendered u/s 67 NDPS Act cannot be relied upon, though it did not rely upon statement u/s 67 of Act in absence of SC No.14A/08 State Vs. Rohit Goel & Ors.
28corroboration. It was observed, "the court while weighing evidentiary value of such a statement cannot loose site of ground realities. Circumstances attended to making of such statement, should, in our considered opinion, be taken into consideration." Even in Noor Aga's case (Supra), the Court had held, whether the confession was made under duress and coercion and/or voluntarily should be considered having regard to the facts and circumstances of each case.
10.5 Coming to the fact of the present case, the voluntary nature of statement of the accused Rohit Goel and Kouassi Williams is evident from the fact that they have mentioned in the statement their personal details, which the official of the DRI would not be knowing. One factor, which can rob the statement of its voluntary nature, is factum of any pressure, inducement or threat exerted upon the accused to obtain the statement. The Ld. counsels for accused have argued that the statement was obtained by putting the accused persons under tremendous pressure and threat. They were allegedly beaten up by the officials of DRI and no option was left with them, but to write whatever was dictated to them. 10.6 The accused Rohit Goel has given his statement Ex. PW6/B. This statement was given in response to the summons issued vide Ex. PW6/A. The accused Kouassi Williams tendered his statement Ex. PW3/L-1. The Ld. Special PP has submitted that accused were not under arrest and, therefore, not in the custody of DRI when they tendered their statement. He further argued that retracted statement of accused is highly belated and it does now show that there was any pressure or inducement or threat to them. Merely alleging that their statement was dictated to them, cannot dent the genuineness of the proceedings by DRI officers. The accused accused Kouassi Williams has also disowned his statement u/s 67 of NDPS Act Ex. PW3/L-1 without elaborating what pressure SC No.14A/08 State Vs. Rohit Goel & Ors.
29was put upon him. The retraction statement of accused Kouassi Williams Ex. DB refers to some physical discomfort on account of chest pain and loss of sensation. Had the allegations of beating and torture of the accused were correct, they would have taken the plea before the Ld. Magistrate/Special judge when they were produced for the first time. The accused have been medically examined before they were kept in lockup on 09.09.2007 and also before they were produced in the Court on 10.09.07. The MLC of the accused Rohit Goel Ex. PXZ2 and accused Kouassi Williams Ex. PXZ4 dated 10.09.2007 does not show any external injury of any sort. Their MLCs dated 09.09.07 Ex. PXZ1 and PXZ3 respectively also do not show any external injury on their person. Had there been any physical torture to the accused that would have been reflected somehow or other during medical examination of the accused.
10.7 The Ld. counsel for the accused Kouassi Williams has drawn Court's attention to the statement of PW3 Sh. R. Roy, where in cross-examination dated 29.04.2011, he had stated that the accused Kouassi Williams was awake whole night. He argued that keeping a person awake for the whole night and then asking him to write a statement by itself, is an indication of torture and pressure. There is no doubt that PW3 Sh. R. Roy has stated so that accused Kouassi Williams was awake whole night and his statement was recorded at about 8:00 am in the morning, definitely there would be some physical exertion. But even the PW3 Sh. R. Roy, who was the IO himself, was awake the whole night and still he was conducting the proceedings. The Ld. counsel for accused had ignored the statement of PW3 wherein he said that he also did not sleep on that night. So, this argument of the Ld. defence counsel is not found very convincing. When proceedings are being conducted by the investigating agency, the timings became immaterial.
SC No.14A/08 State Vs. Rohit Goel & Ors.
30
10.8 Thus, nothing could be brought or read to show that
statement of accused under Section 67 of NDPS Act, was obtained by force, pressure or under any inducement. However, the accused have retracted their statements, so as an abandoned caution, these statements Ex. PW6/A and Ex. PW3/L-1 can not be used as substantive evidence. However, the statement of the accused Rohit Goel and Kouassi Williams u/s 67 of NDPS Act, can be used as a supporting evidence to the statement of prosecution witnesses, who were part and parcel in the raid, search and recovery. Mandatory Compliance of Section 42 and 50 of NDPS Act 11.0 It was submitted on behalf of the counsel for the accused persons that there is no compliance of the mandatory provision of Section 42 of NDPS Act. The Ld. Special PP on the contrary submitted that the mandatory provisions have been duly complied with. With regard to the compliance of Section 42 of NDPS Act, he submitted that the information received by Sh. Madan Singh (PW1) has been reduced into writing vide Ex. PW1/A. He argued that since information was to effect that contraband would be carried in vehicle, PW3 R. Roy also obtained search authorization of these vehicles for Sh. Nilank Kumar, Assistant Director (Intelligence), DRI.
11.1 Section 42 of the NDPS Act relates to the powers of entry, search, seizure and arrest without warrant or authorization and it provides as under :-
"Power of entry, search, seizure and arrest without warrant or authorization :-
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special SC No.14A/08 State Vs. Rohit Goel & Ors.31
order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open and door and removed any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing of forfeiture under Chapter V-A of this Act; and
(d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
SC No.14A/08 State Vs. Rohit Goel & Ors.
32Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
11.2 It is clear from the provisions of the above said Section, as amended by the Amendment Act No. 9 of 2001, that as per sub- section (1) of the above Section if the empowered officer has a prior information given by any person then he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belief. The proviso to sub-section (1) of Section 42 lays down that if the empowered officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief.
11.3 Sub-section (2) of Section 42 as it originally stood mandated that the empowered officer who have taken down information in writing or records the grounds of his belief under the SC No.14A/08 State Vs. Rohit Goel & Ors.
33proviso to sub-section (1), should send a copy of the same to his immediate official superior forthwith. But after the amendment in the year 2001, the period within which such report has to be sent was specified to be 72 hours.
11.4 In the case of Abdul Rashid Ibrahim Mansoori Vs State of Gujrat (2000) 2 SCC 513 it was held by a three-Judge- Bench of the Hon'ble Supreme Court that the compliance of the provisions of Section 42 of the NDPS Act is mandatory and failure to take down the information in writing by an empowered officer and forthwith sending a report to his immediate official superior would be fatal and the same would cause serious prejudice to the accused. However, in a subsequent case of Sajan Abraham Vs State of Kerala (2001) 6 SCC 692, which was also decided by a three- Judge Bench of the Hon'ble Supreme Court, it was held that Section 42 of the NDPS Act was not mandatory and substantial compliance of the provisions of the above Section was sufficient. In view of the above two conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, the matter was considered by a Constitution Bench of the Hon'ble Supreme Court in the case of Karnail Singh Vs State of Haryana, (2009) 8 SCC 539 and the following propositions were laid down:-
"17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, SC No.14A/08 State Vs. Rohit Goel & Ors.34
before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls from immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-section (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to be official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing SC No.14A/08 State Vs. Rohit Goel & Ors.
35the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
11.5 Section 42 (1) NDPS Act, thus, makes it mandatory for writing down the information. PW1 Sh. Madan Singh, in his statement in the Court has deposed that he received the information on 08.09.07 at about 6:00 pm and he has written the said information in his handwriting and placed the same before Sh. Nilank Kumar, Assistant Director, DRI (HQ). He has proved information Ex. PW1/A on the record.
11.6 With regard to search authorization, PW13 Sh. Nilank Kumar has deposed that he issued search authorization for the search of the cars mentioned in the intelligence report. The search authorization Ex. PW3/B and Ex. PW3/C were issued in the name of Investigating officer Sh. R. Roy. He submitted that the execution report of search authorization was also submitted to him by Sh. R. Roy vide Ex. PW3/B1 and Ex. PW3/C1. This statement of PW13 Sh. Nilank Kumar is also supported and corroborated by PW3 Sh. R. Roy. Therefore, the vehicles/ conveyance have been searched on the basis of search authorization by a competent officer. This is considered as sufficient compliance with the provision of Section 42 of NDPS Act.
11.6.1 The Ld. counsel for accused Kouassi Williams had argued that search warrants/authorization were not issued by PW13 Sh. Nilank Kumar as claimed by him. He referred to the statement SC No.14A/08 State Vs. Rohit Goel & Ors.
36of PW10 Smt. K.K. Malhotra, who was a witness to the search and recovery. In her cross-examination, she has stated that the search authorization Ex. PW3/B was shown to the occupant of the vehicle prior to the service of notice u/s 50 of NDPS Act. She further deposed in the cross-examination that Ex. PW3/B was prepared/ filled in by Sh. R. Roy in her presence in the parking area of the DRI office. It was argued by the Ld. defence counsel that this statement proves that the search warrants were not issued by Sh. Nilank Kumar.
11.7 A single isolated statement of PW10 Smt. K.K. Malhotra in cross-examination cannot make the statement of PW3 Sh. R. Roy PW13 Sh. Nilank Kumar and PW11 Sh. D.P. Saxena redundant. PW3 R. Roy has deposed that the occupant of both the cars were shown the search authorization for the search of their respective cars. The occupants of the cars had also put their signatures on the search authorization. There is no substantive cross-examination of the PW3 on this aspect. PW13 has already said that the search warrants/authorization Ex. PW3/B and Ex. PW3/C were issued by him. In the cross-examination, he deposed that the search authorization was given by him at about 8:00 pm. It means search authorization was issued before DRI left for interception. PW11, who was a member of the raiding party has also deposed that all the occupants of both the vehicles and the public witnesses were shown the search authorization. It, therefore, stands established that before the search of the vehicles was conducted, the search authorization was issued by the Assistant Director, DRI, New Delhi, Sh. Nilank Kumar PW13. The presence of the signatures of the accused persons as well as public witnesses are found duly appended on these search authorization Ex. PW3/B and Ex. PW3/C It is specifically mentioned therein that the search authorization was issued on 08.09.2007 at 8:00 pm, which was valid for 24 hours. So SC No.14A/08 State Vs. Rohit Goel & Ors.
37far as the statement of PW10 Smt. K.K. Malhotra is concerned, one cannot loose sight of the fact that the witness came in the witness box after more than 4 years of the incident. There would be natural variation in the statement of the witnesses when they came for deposition after a long time. In the view of the statement of three prosecution witnesses supported by the documents stating that search authorization was prepared and shown to the occupants of the car and the time of their interception, the solitary statement of PW11 Sh. K.K. Malhotra cannot be given much importance on this issue. Thus, so far as the compliance of Section 42 is concerned, no deficiency has been found.
Section 50 NDPS Act 12.0 The Ld. counsel for the accused have argued that provisions of Section 50 of NDPS Act have not been complied with, which is a mandatory requirement.
12.1 The law concerning the nature of right u/s 50 NDPS Act has been considered by the Hon'ble Supreme Court in the case State of Punjab vs. Baldev Singh (1999) 6SCC 172, it was held that when an empowered officer or a duly authorized officer acting on prior information was about to search a person, it was imperative for him to inform the suspect his "legal rights" u/s 50 (1) NDPS Act of being taken to the nearest Gazetted officer or nearest Magistrate for making the search. In the case of Vijay Sinh Chandubha Jadeja vs. State of Gujarat (2011) 1SCC 609, it was held that it is imperative on the part of empowered officer to apprise the person intended to be searched of his right u/s 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate. It was further observed that failure to inform the suspect about the existence of his said right would cause prejudice to him.
12.2 Coming to the facts of the present case, although no recovery has been effected from the "person" of the accused, still SC No.14A/08 State Vs. Rohit Goel & Ors.
38the DRI officers conducted the search of vehicle and the person of the accused after service of the Notice u/s 50 of NDPS Act. The accused Rohit Goel was served the notice vide Ex. PW3/D. The accused Kouassi Williams was served with a Notice u/s 50 of NDPS Act vide Ex. PW3/F. The contents of the Notice conveyed that the addressee was apprised of his legal right of search before a Gazetted Officer or a Magistrate. The relevant portion of the Notice reads as under :
"You are hereby informed that you have a legal right u/s 50 of NDPS Act, 1985, to get your personal search and search of your vehicle to be conducted in the presence of a Magistrate or a Gazetted Officer, for which you have to give your option in writing."
12.3 Pursuant to this notice being served, both the accused and other occupants of the cars namely Ms. Santosh Goel and Dilbagh Singh (earlier an accused, but later on discharged) gave their reply stating that any officer of DRI can take search of their person and car/vehicle. The Ld. counsel for accused had argued that the accused have nowhere denied or refused to be searched before a Gazetted Officer or a Magistrate. The Ld. counsel for accused Kouassi Williams has argued that even in a case when an option is given to an accused by the IO to be searched and nothing was recovered from the personal search of the accused, the strict compliance of provision of the Section 50 of NDPS Act is mandatory and any lapse in this regard would render the entire search and seizure illegal. In support of this submission, he relied upon judgments in the case of Gurjant Singh @ Janata vs. State of Punjab-2013 (13)SCALE, 295 and Rakesh @ Shankar vs. State-Crl. Appeal No. 663/2010. The judgment in case of Gurjant Singh (Supra) relied by the Ld. counsel, can be distinguished on facts. In this case, the accused had "opted to be SC No.14A/08 State Vs. Rohit Goel & Ors.
39searched" in the presence of Gazetted Officer or a Magistrate. The Investigating Officer called D.S.P. for search of accused in his presence, but later as it learned out that said D.S.P. in fact was not Gazetted Officer. Therefore, the Court opined that the Section 50 NDPS Act was not duly complied with. In the case of Rakesh @ Shankar (Supra), the accused was simply given option of search before Gazetted Officer or Magistrate, he was not conveyed that it was his "legal right" to be searched in presence of Gazetted Officer or Magistrate. However, in the present case, both the accused have declined the option to be searched. They opted to be searched by DRI officials in the presence of Gazetted officer or a Magistrate. 12.4 The requirement of Section 50 (1) of NDPS Act is that the suspect has to be conveyed his "legal right" of search in the presence of Gazetted Officer or a Magistrate, if so desired. The response of the accused may vary from person to person. The duty of the investigating officer is only to convey to suspect his legal right, whether the suspect exercises his right or not and how he responds to the Notice is not in the domain of the investigating officer. In the present case, the Notice has been served upon the accused Rohit Goel and Kouassi William, and they have been specifically informed of their "legal right". Therefore, the provisions of Section 50 of NDPS Act have been duly complied with notwithstanding the fact that the recovery has not been effected from the 'person' of the accused, but from the conveyance. In a recent judgment in Kulwinder Singh vs State of Punjab (2015) 6 SCC 674, where bags containing poppy husk were recovered from truck, the Hon'ble Supreme Court has repelled he contention that non-compliance with Section 50 of NDPS Act vitiates conviction, relying upon judgments in Megh Singh vs State of Punjab (2003) 8 SCC 666 and State of H.P. Vs Pawan Kumar (2005) 4 SCC 350.
SC No.14A/08 State Vs. Rohit Goel & Ors.
40
Public Witnesses
13.0 The Ld. counsel for the accused Rohit Goel has
submitted that prosecution has fabricated false evidence with regard to joining of the public witnesses. It is submitted that no public witness in fact has been joined. The fact that these public witnesses namely Sunil Kumar and Ramesh Kumar have not been produced in the Court, it self suggest that they were fictitious persons. He submitted that the witness shown as Sunil Kumar has also appeared in the case of "DRI vs. Avinder Singh and Others", where he had appeared as "Sunil Sripal". He submitted that the signature of the public witness on the notice u/s 50 of NDPS Act Ex. PW3/D, Ex. PW3/F, Panchnama Ex. PW3/H, test memo Ex. PW3/K-1 and other relevant documents would show that these signatures, matched with the signatures of public witness "Sunil Sripal"
appended by him on the notice u/s 50 of NDPS Act and other documents in the case of DRI vs. Avinder Singh. The Ld. counsel has referred to the certified copy of the record in the case of DRI vs. Avinder Singh placed on record as Ex. PZ collectively. He also submitted that there is no clarity in the evidence of the prosecution as to who had called the public witness on the spot. Yet another fact, which shows fabrication of the evidence is that on the statement recorded u/s 67 of NDPS Act Ex. PW3/T and Ex. PW3/U-1 of punch witness Sunil Kumar and Ramesh Kumar, bear the date of 12.02.2007. The Ld. counsel for the accused Kouassi Williams also argued that joining of witness is not ideal formality and in the present case, though two public witnesses claimed to have been joined, but the evidence shows that no public witness in fact has been joined. He submitted that while on the one hand, PW3 stated that two punch witnesses were brought by some officer in the raiding team, PW1 deposed that Sh. R.Roy (PW3) had called the public witness. He has referred the judgment in the case of R. SC No.14A/08 State Vs. Rohit Goel & Ors.41
Chakraborty vs. State 2006 (3) JCC (NAR) 150 to support his argument that for non-examination of punch witnesses, an adverse inference should be drawn against prosecution. 13.1 The Ld. Special PP on the other hand submitted that there is no dichotomy in the statement of PW11 Sh. D.P. Saxena and PW3 Sh. R. Roy with regard to calling of the public witnesses. PW3 has deposed that on his request, one of the witness of the raiding team has called the public witnesses. PW11 has deposed that PW3 has called the public witnesses. There is no contradiction in the two statements because the public witness have in fact been called by PW3 through a member of raiding team. He submitted that the signatures of public witnesses Sunil Kumar appearing on the notice u/s 50 of NDPS Act do not tally with the signatures of one Sunil Sripal in case of DRI vs. Avinder Singh. It is submitted that there is nothing on record to infer that the signatures appearing on the Panchnama and the notice u/s 50 of NDPS Act in the case of DRI vs. Avinder Singh. Ex. P-Z, are that of Sunil Kumar, the panch witness in the present case. So far as the withholding of the panch witness is concerned, it is submitted by the Ld. Special PP that the witnesses could not be found at the given address. Therefore, no adverse inference can be drawn against the prosecution witness. 13.2 The judicial record will show that the summons were issued to panch witnesses Sunil Kumar and Ramesh Kumar initially for 30.04.2011 when the report was received qua the PW Ramesh Kumar that the address, 256-D, Katwaria Sarai, New Delhi, could not be traced. He was again summoned for 30.05.2011 through the IO of the case. The Investigating Officer R. Roy (PW3) endorsed the report that the address 256-D, Katwaria Sarai, was not traceable. With regard to the public witness Sunil Kumar, the summons were issued on 30.05.2011 at the address A/26, South, Kishan Nagar. It was reported that no person with the name of Sunil Kumar was SC No.14A/08 State Vs. Rohit Goel & Ors.42
residing at the given address. This report has also been endorsed by the Investigating Officer R. Roy. In view of these reports, the witnesses Sunil Kumar and Ramesh Kumar were dropped by Ld. Special PP. Ld. counsel for accused has relied upon the case of Nnadi K. Iheanji vs NCB Crl. A. No. 1416/2010 decided on 04.09.2014 in support of the arguments that when the complainant failed to produce the public witness on account of false address given by the witness, it raises a doubt, whether such a witness exist at all or not. The Ld. Special PP on the contrary relied upon a judgment in case of K.R. Vengadeshwar vs. NCB, Crl. Apeal No. 830/2010 decided on 10.01.2014, in which it was observed by the Hon'ble High Court that no adverse inference can be drawn against the complainant on account of non-examining the panch witnesses. It was observed, if a witness gave a wrong address and consequently it is not possible to produce him in the witness box, no adverse inference against the prosecution can be drawn. 13.3 Though had these Panch witnesses come to the witness box, they would have further fortified the case of the prosecution, but their non-examination is not due to any fault of the prosecution, but for the reason that they are not available at the given address. The fact that two Panch witnesses had joined, stands established from the statement of PW3, PW10 and PW11 and also from the contemporaneous documents i.e. Panchnama and paper slips put under seals affixed on seized case property and sample. They all bear their signatures. A similar situation had come in the case of Sumit Tomar vs. State of Punjab (2013) 1 SCC 395, where one Kaur Singh joined as a witness, was not examined. The Hon'ble Supreme Court held that signatures of Kaur Singh appended on all the memos show that he was present at the time of recovery. It was further held that it was true that prosecution could have examined him, but it was the SC No.14A/08 State Vs. Rohit Goel & Ors.43
stand of the prosecution that in spite of necessary steps taken by issuing summons, he did not appear and for that reason prosecution case can not be thrown out. If the statements of the police officials are reliable and no animosity is established against them by the accused then conviction based on their statement cannot be found faulted with.
13.4 Similarly in the case of Brijesh Kumar Gupta vs. NCB 2014 Crl. Law Journal 4203, which was also a case under NDPS Act, two public witnesses could not be examined as they were not found residing at the given address. A plea was taken that non- examination of these two independent witnesses was fatal, however, this contention was repelled by the Court. 14.0 In the present case, PW3 R. Roy, PW10 Smt. K.K. Malhotra and PW11 Sh. D.P. Saxena, have deposed that the public witnesses Sh. Sunil Kumar and Ramesh Kumar were present during the search, recovery and raid. The contemporaneous documents like Panchnama, notice u/s 50 of NDPS Act, test memo, paper slips used for sealing the polythene, all bear the signatures of Sunil Kumar and Ramesh Kumar. That shows the presence of witnesses in the raiding party at the time of recovery. If the witnesses could not be traced at the addresses, which they gave to the DRI, then no fault can be found with the investigation conducted by DRI. It is common knowledge that generally people show reluctance to join investigation in a case. There is a general tendency to avoid being a part of Court proceeding. If public witness, who joined the investigation, fails to give or intentionally give incomplete address, then it becomes difficult to serve the said person as a witness during the trial. In these circumstances, if the punch witnesses are not produced during the trial, it cannot be considered as an attempt on the part of prosecution, to withhold witness from Court. At the most in such circumstances, one can consider that no public SC No.14A/08 State Vs. Rohit Goel & Ors.
44witness was joined during investigation. The law is well settled that if the testimony of an official witness is found to be trustworthy and reliable then the Court can definitely act upon the statement of official witness.
14.1 Reference can be made of the observation of the Hon'ble Supreme Court in the Ajmer Singh vs. State of Haryana (2010) 3SCC 746 and Kashmiri Lal vs. State of Haryana (2013) 6SCC 595.
14.2 The accused have not levelled any allegation of animosity or prejudice against the official witnesses. There is nothing on record to suggest that officials of DRI intended to falsely implant such huge recovery upon accused. Therefore, there is no reason to disbelieve the statement of official witnesses in the present case. There is no sufficient material to suggest that the public witnesses, who were joined during the investigation, were fictitious persons and were not in existence. In the case Kulwinder Singh vs. State of Punjab (Supra), the Hon'ble Supreme Court has observed that the case of prosecution cannot be rejected solely on the ground that independent witnesses have not been examined, when on the perusal of the evidence on record, the Court finds that the evidence put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason, not to raise the conviction on the basis of their evidence. 14.3 In the case of State (NCT of Delhi) vs. Sunil (2001) 1 SCC 652, the Hon'ble Supreme Court dealt with the evidentry value of the statement of officials witnesses. The Hon'ble Supreme Court observed that, "it is a archaic notion that actions of the police officer should be approached with initial distrust". It was observed that; "If the Court has any good reason to suspect the truthfulness of the record of the police, the Court would certainly SC No.14A/08 State Vs. Rohit Goel & Ors.
45take into account the fact that no other independent witness was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with. 14.4 The same logic should apply to statement of official of DRI. Therefore, the statement of official witnesses recorded during the trial cannot be approached with a suspicion and distrust because the panch witnesses who joined the investigation could not be examined during the trial on account of their non- availability. PW3, PW10 and PW11, who have witnessed the recovery of contraband from the accused can not be disbelieved. The accused could not show anything in their defence that evidence of these official witnesses is unreliable or at least unsafe to be cited upon.
Sample Not Taken on the Spot 15.0 Another ground, on which the prosecution case has been assailed, is that the sample were not drawn on the spot and the search and seizure proceedings were also not conducted at the spot. The Ld. counsel for the accused Rohit Goel has argued that PW3 has admitted that both the cars were not searched on the spot after interception. He referred to the judgment in the case of Kuldeep Singh vs. State of Punjab, 2011 Crl. L.J 2672 and submitted that the non-collection of sample at the initial state of seizure, was a deficiency, which cannot be cured as the entire recovery becomes doubtful. The Ld. Special PP has countered this argument by referring to the judgement in the case of M. Prabhu Lal vs. Assistant Director, DRI, JT 2003 (Supplementary II) SC 459. He argued that in the said case also, the offending truck and the car were apprehended on the road, which were taken to customs house where the seizure of narcotics was effected. The Hon'ble Supreme court did not find anything wrong in this, rather it was observed that there is no illegality by effecting seizure at the SC No.14A/08 State Vs. Rohit Goel & Ors.
46customs department.
15.1 In the present case, it has come in the statement of the witnesses i.e. PW3 and PW11 that when the accused Rohit Goel was intercepted with the car, he alongwith his mother namely Smt. Santosh Goel had started shouting, which made people gathered at the spot. The IO therefore, did not find the place conducive for conducting further proceedings at the spot. In the background of this, the intercepted vehicles and the occupants thereof were taken to the office of DRI for search. In the case of Kuldeep Singh vs. State of Punjab (Supra), the guidelines issued by the Supreme Court is, the sample need to be collected at the "initial stage" of the seizure. In the said case, the contraband was seized and sealed without taking the samples, which were taken later on at the police station by opening the bags which were earlier sealed. In this background, the Hon'ble Supreme Court, observed that non-collection of the sample at initial stage is a deficiency, which cannot be cured.
15.2 Coming to the facts of the present case in hand, one would see, no seizure proceedings were conducted at the place of interception. The carry bags lying in the Tata Indica car, transferred from the car driven by the accused Rohit Goel, were not opened and checked at the place of interception. Therefore, I do not see any deficiency in the investigation on this aspect. The samples have been taken immediately after the case property was seized and the contents thereof were checked in the office of DRI, the chances of tempering with the case property and samples stand ruled out. Conscious Possession 16.0 It was argued by the Ld. counsel for the accused Rohit Goel that nothing has been recovered from his possession. He referred to the statement of PW3 Sh. R.Roy, wherein he admitted the suggestion that from the personal search of the accused Rohit SC No.14A/08 State Vs. Rohit Goel & Ors.
47Goel, nothing incriminating was recovered, nor any contraband was recovered from vehicle no. PB 08AN 6133 (the vehicle driven by accused Rohit Goel). It was submitted by the Ld. counsel that since nothing has been recovered from the personal search and vehicle of the accused Rohit Goel, one cannot draw presumption of culpable mental state and possession u/s 35 and 54 of NDPS Act. The Ld. counsel for accused Kouassi William has also taken the same stand stating that no evidence has been led by the prosecution to prove that accused Kouassi William was having "conscious possession"
with regard to the two polythene bags, even if, the prosecution case regarding recovery of polythene bags from Tata India car is accepted. He referred to the statement of PW10 Smt. K.K. Malhotra, wherein in her cross-examination, she stated that the polythene bags were being kept on the front seat of the Tata Indica car. He also argued that as per the statement of PW11 Sh. D.P. Saxena, there was a distance of 4-5 ft. between the two cars. The Ld. counsel argued that it is humanly not possible, to transfer two bags weighing 15 Kg from one car to another, standing at a distance of 4-5 ft. without any person stepping out of the car. His argument, is therefore two fold, first, the accused was not in 'conscious possession' of polythene bags, second it was not possible to transfer the polythene bags from one car to another, which were standing at distance of 4-5ft.
16.1 Ld. Special PP on the other hand argued that the accused Rohit Goel has admitted in the statement u/s 67 of NDPS Act, Ex. PW6/B that he was handed over the polythene bags at Karnal bypass, Delhi. After reaching the spot i.e. H-3 Block, in front of House No. H-60, Vikas Puri, he transferred the bags to Tata Indica car, which was already parked there. He further submitted that the witnesses have seen the accused Rohit Goel transferring two polythene bags from his car to the rear seat of the Tata Indica car.
SC No.14A/08 State Vs. Rohit Goel & Ors.48
PW3 Sh. R. Roy, in his statement has categorically deposed that the Tata Indica car had come to the spot first, then Opel Corsa car driven by the accused Rohit Goel came later on. After it reached the spot, the driver of the car Opel Corsa, picked up two black colour polythene bags from the rear seat of his car and transferred the same to the rear seat of Tata Indica car, which was occupied by accused Kouassi Williams, without stepping out of the car. Ld. Special PP argued that the accused Rajesh Goel was in possession of contraband of contraband, which he transferred to the car occupied by accused Kouassi Williams. Therefore, the possession of the contraband has changed hands on the spot.
16.2 As per the provisions of Section 54 of NDPS Act once the possession of contraband substance is proved with the accused, all statutory presumption arise would that with accused had committed an offence under the Act in respect of the said contraband substance, unless of course the accused is able to satisfy or accounts for his possession. Section 35 of NDPS Act in such a situation would raise a presumption of the existence of the culpable mental state of the accused, unless the accused proves that he had no such mental state. In terms of section 35 (2) of NDPS Act, the accused will have to prove "beyond reasonable doubt" that he was not having the requisite mental state.
16.3 Thus, possession of the contraband is material to invoke the presumption u/s 35 and 54 of NDPS Act. In the case of Mohan Lal vs. State of Rajasthan (2015) 6 SCC 222, the Hon'ble Supreme Court observed;
"The term "possession" could mean physical possession with animus, custody or dominion for the prohibited substance with animus or even exercise of dominion and control as a result "concealment"."
16.4 It is further observed; "Personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular SC No.14A/08 State Vs. Rohit Goel & Ors.
49location or site at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession."
16.5 Therefore, whether in a particular case, the accused was in possession of a contraband substance, becomes a question of fact. PW3 Sh. R. Roy has deposed that after the Opel Corsa car reached the spot, the driver thereof i.e. the accused Rohit Goel picked up two black colour polythene bags and transferred the same to the Tata Indica car already parked there, in which the accused Kouassi Williams was sitting. Similar, statement has been given by the PW11 Sh. D.P. Saxena. There is no contradictions in the statements of these two witnesses on this aspect. When the vehicles were taken to DRI office, the said two black colour polythene bags were recovered from the Tata Indica car, in which the accused Kouassi Williams was sitting in the back seat. Thus the statement of PW3 and PW11, therefore establish that the possession of the contraband was with the accused Rohit Goel till reached at H-60, H-3 Block, Vikas Puri, and from there the possession was transferred to the accused Kouassi Williams. The knowledge of the accused Kouassi Williams that the polythene bags contained contraband can be logically inferred from the circumstances. His presence at the spot in the odd hours of night waiting for the arrival of the car for transferring of the polythene bags by the occupant of the Opel Corsa car to Tata Indica car, in which the accused Kouassi Williams was sitting, leads to irresistible inference that he was aware and conscious about the contents bags of black colour polythene, which were transferred to this car. The reports of the CRCL have established that the contents of these polythene bags were Heroin. Therefore, it can safely be concluded that accused Rohit Goel was in possession of contraband, which he transferred to Kouassi Williams, the co-accused. This transaction has been SC No.14A/08 State Vs. Rohit Goel & Ors.
50witnessed by the PW3 Sh. R. Roy and PW11, therefore, there is no escape from the conclusion that both the accused were in possession of the contraband substance i.e. Heroin and both are liable for keeping in possession the narcotic substance. 16.6 Once this possession has been proved, the presumption u/s 35 and 54 of NDPS Act as to the culpable mental state and the possession of the illicit article can safely be drawn. The plea of the accused that they were not in possession or conscious possession of contraband substance, is not acceptable.
Test Report 17.0 The Ld. counsels for accused have submitted that the chemical examination report cannot be accepted in view of the statement of PW14 Sh. V.P. Bahuguna, who has admitted that he does not remember as to what method was used for quantification test. The Ld. counsel for Rohit Goel argued that in the absence of any valid report as to the quantification test, any conclusion with regard to quantity of the substance would be based conjuncture and surmises. He argued that Court is not bound to accept the opinion of the expert, which is unsupported by reasons. He relied upon the judgment in Hazi Mohammad Ikramul Haq vs. The Statee-AIR 1959 SC 488, Law Society of India vs. Fertilizers and Chemicals Limited-AIR 1954-Kerala 308, Gulzar Ali vs. State of Himachal Pradesh (1998) 2 SCC 192 and Ramesh Chandra Aggarwal vs. Regency Hospital-AIR 2010 SC 806. 17.1 The Ld. counsel for accused Kouassi Williams had argued that the tampering of the case property and the sample is writ large in the case. He argued that neither in the complaint nor in any documents, it is mentioned that PW3 Sh. R. Roy handed over the case property and sample parcel to PW13 Sh. Nilank Kumar. Secondly, seal used in the case, has not been handed over to alleged public witnesses. Further, there is no memo/record of SC No.14A/08 State Vs. Rohit Goel & Ors.
51handing over of the case property by Sh. R.Roy (PW3) to Sh. Nilank Kumar (PW13). He further submitted that PW13 Sh. Nilank Kumar had admitted that the test memo was prepared on 09.09.2007, which means that it was prepared in the presence of PW13. Therefore, it was not prepared at the spot at the time of search and seizure because admittedly PW13 Sh. Nilank Kumar was not present at the time of search and seizure.
17.2 The Ld. Special PP has countered the arguments of the Ld. counsel for both the parties in this regard. He argued that the four samples WA, YA and ZA were duly sealed with the seal of DRI-10, which were sent to Central Revenue Control Laboratory and tested positive for presence of Diacetylmorphine. The fourth sample XA, which was sent to Central Revenue Control Laboratory, however, answered negative for Diacetylmorphine. The quantification test was done later on and the report in this regard was submitted.
17.3 So far as the taking of the sample is concerned, PW3 has deposed that 15 cloth packets were recovered from the two polythene bags. A set of six cloth bags having similar rubber stamp marking was marked W1 to W6. Two sets of four cloth bags were having similar marking, which were marked as X-1 to X-4 and Y-1 to Y-4. One bag was having different rubber stamp,which was marked as Z-1. He deposed a small quantity of substance was taken out from each packet i.e. all 15 cloth bags which tested positive for Heroin. He further deposed that two representative sample of 5gms each were taken out from each set of the cloth bags, which were marked as WA, WB, XA, XB, YA, YB, ZA and ZB. The samples were sealed with a seal of DRI over a paper slip, which were signed by accused persons and the witnesses. He deposed that the test memo was also prepared, on which the facsimile of DRI seal was also affixed. PW13 Sh. Nilank Kumar has deposed that after the SC No.14A/08 State Vs. Rohit Goel & Ors.
52seizure formalities, the entire case property, samples and test memos were handed over to him by Sh. R. Roy (PW3) for safe custody. He further deposed that on 10.09.07, he directed the PW11 Sh. D.P. Saxena, to deposit the case property in valuable godown and the four sealed sample packets were sent for deposit in the office of Central Revenue Control Laboratory (CRCL) with the forwarding letter through Sh. Jagdish Roy (PW9). PW11 Sh. D.P. Saxena deposed that he deposited the case property in sealed condition in the godown at New Customs House, Delhi with Sh. D.B. Sharma. PW8 Sh. D. B. Sharma, Inspector Incharge, Valuable Godown, corroborates him that he received the case property vide deposit memo Ex. PW8/A in sealed condition and the case property was not tampered with and remained in sealed condition. PW9 Sh. Jagdish deposed that the sealed sample packets with its memo were deposited by him in the Central Revenue Control Laboratory (CRCL) vide acknowledgment Ex. PW5/A. PW5 Sh. Jaivir Singh deposed that he received the sample packets in the office of CRCL in intact condition alongwith the forwarding letter. PW7 Sh. S.C. Mathur deposed that the sealed sample packets with forwarding letter and test memo was received on 10.09.2007. The samples were analysed by Sh. V.P. Bahuguna under his direct supervision. He deposed that the sample vide XA was found negative for Diacetylmorphine. Rest of the samples found positive for Diacetylmorphine. He deposed that the remnant samples were sealed with the seal of "Central Revenue Control Laboratory, Government of India-II". The analyses report PW7/A was also issued under his signatures.
17.3.1 He has further deposed that on 03.01.2008, the remnant samples mark WA, YA and ZA were received back for Quantification Test. The test was conducted by Sh. V.P. Bahuguna under his supervision and the percentage was 60.1%, 64.7% and 61.7 SC No.14A/08 State Vs. Rohit Goel & Ors.
53respectively. The report of quantification is Ex. PW7/C, which was issued under his signatures. The FSL report Ex. PW7/A shows that the sample mark WA, XA, YA and ZA were received in sealed and intact condition and the remnant samples after examination were sealed with the seal of Central Revenue Control Laboratory, Government of India-II. The analysis report Ex. PW7/C with regard to the quantification test shows that WA, YA and ZA were received with seal of Central Revenue Control Laboratory, Government of India-II with the seal intact condition.
17.4 This evidence on the record established beyond reasonable doubt that the samples and the case property were sealed at the spot after seizure, case property was deposited with the Valuable Godown, Customs House in sealed condition. The samples were received in the Central Revenue Control Laboratory in sealed condition with the seal intact. The remnant to sample WA, YA, XA and ZA were sent back with a seal of Central Revenue Control Laboratory, Government of India-II. Since the Quantification Test was not done, PW4 Sh. K.K. Sood, Deputy Director, DRI sent the letter dated 02.01.2008 Ex. PW4/A alongwith remnant samples to Central Revenue Control Laboratory for Quantification Test. These remnant samples have been received by CRCL on the seal of CRCL, Government of India-II, being in intact condition. The entire process does not show any chance of tampering with the seal. Therefore, I do not see any substance in the submissions of the Ld. defence counsel that case property and the samples were tampered with. The Ld. counsel for Kouassi Williams has also argued that sample of case property were not drawn from each packet, therefore, the process of taking sample was defective. To support his arguments, he relied upon judgment in Basant Rai vs State 2012 (3) JCC (Narcotics) 138. The Ld. Senior Special PP has disputed this and relied upon the statement of PW3. In the case of Basant Rai SC No.14A/08 State Vs. Rohit Goel & Ors.
54(Supra), a bag was found containing 8 smaller polythene bags containing black colour substance i.e. charas. The I.O. Took small pieces from each slab and made two sample parcels. This procedure of taking sample was found defective. But in present case, facts are different. Two polythene bags were found containing 15 cloth bags. PW3 has categorically deposed that a small quantity was taken from each of the 15 bags and tested with Drug Detection Kit. So, test has been conducted from each of 15 packets, unlike in Basant Rai's case, and therefore, sample taken from each of the four sets.
17.5 So far as the quantification test report Ex. PW7/C is concerned, it has quantified the presence of Diacetylmorphine in the sample WA, YA and ZA and the percentage was 60.1%, 64.7% and 61.7 respectively. The fourth sample XA, which was sent to Central Revenue Control Laboratory, however, answered negative for Diacetylmorphine. The Ld. Special PP has argued that PW14 in his statement has categorically stated that he had checked the seal of the sample packets, which was found to be intact condition. He deposed that entire process of analyses was conducted in the presence and under supervision of Sh. S.C. Mathur. The final analysis report was issued under his signatures. 17.6 Ld. Counsel for accused Rohit Goel had argued that PW14 Sh. B.P. Bahuguna had not explained how the quantification percentage was arrived at. Therefore, this report Ex. PW7/C cannot be accepted and the Court is not bound to accept the same.
17.7 The Court seeks assistance of an expert to form an opinion on a point of science etc. In the case State of Himachal Pradesh vs. Jai Lal (1994) 7SCC 280, it was held that in order to bring the evidence of a witness as that of expert, it has to be shown that he has made a special study of the subject or acquired a SC No.14A/08 State Vs. Rohit Goel & Ors.
55special experience therein or in other words that he is skilled and had adequate knowledge of the subject.
17.8 Though it is not denied that expert opinion is not binding upon the Court and the Court has to form its own opinion, but there are certain fields where the Court cannot form an opinion without the assistance of an expert. If the expert is having adequate knowledge of the subject, has a special experience on the subject, then there has to be very strong circumstances to disbelieve his evidence. PW15 Sh. V.P. Bahuguna in this case is an Assistant Chemical Examiner in Central Revenue Control Laboratory. He has stated that quantification test is normally done by Gas Chromatography. Though, he was unable to tell the method adopted for quantification test as it was not mentioned in the report Ex. PW7/C. In my view, this one omission to mention the test adopted to conduct the quantification test cannot make the analysis report Ex. PW7/C, a waste paper. This report has been prepared by two scientists, PW14 Sh. V.P. Bahuguna, Assistant Chemical Examiner and PW7 Sh. S.C. Mathur, Chemical Examiner, Grade-I. There is no material on the record to suggest that these two official witnesses have prepared a false report. I do not see any reason to disbelieve their report Ex. PW7/C with regard to the quantification test.
17.9 The Ld. Counsel for both the accused have referred to certain discrepancies in statement of prosecution witnesses. It was argued by the Ld. Counsels that the case of the prosecution is not believable on account of these discrepancies. It was argued that no documentary proof/evidence has been shown to prove that the raiding team had visited the spot as the log book of the official vehicle has not been placed on record. It was submitted that the PW3 Sh. R.Roy, who was the Investigating Officer of the case, was SC No.14A/08 State Vs. Rohit Goel & Ors.
56not even aware about the distance between the DRI office and the place of interception. Not only this, PW3 also does not know the name of the driver, who was driving the official vehicle. It was also submitted that the prosecution was unable to link both the accused persons with the offence. It was submitted by the Ld. Counsel for the accused Kouassi Williams that PW3 Sh. R. Roy has not been conducted any investigation with regard to the residence of accused Kouassi Williams at Krishna Park, Delhi.
17.10 It may be stated that there is no criminal case, which is free from discrepancies here and there. There may be inconsistencies in the prosecution evidence, but it is a short coming, from which no criminal case is free. It is a settled position of law that every type of doubt or question raised by the defence cannot be made basis of acquittal of an accused. It was observed in the case Iqbal Musa Patel vs. State of Gujarat Criminal Appeal No. 1231-1232/2009 decided on 12.01.2011;
"It is true that the prosecution is required to establish its case beyond reasonable doubt, but that does not mean that degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning, in his inimitable style in Miller vs. Minister of Pensions (1947) 2 ALL ER 272:" "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt."
17.11 In the case of Sucha Singh & Anr. vs. State of Punjab (2003) 7 SCC 643, the Apex Court has very nicely commented on such a dilemma faced by Indian Courts by observing;
"If a case is proved perfectly, it is argued that it is artificial, if a case has some flaws inevitable because SC No.14A/08 State Vs. Rohit Goel & Ors.57
human beings are prone to err, it is argued that it is too imperfect."
17.12 The submissions of the defence counsel that prosecution case is not inspiring confidence, cannot be accepted in view of the consistent statement of prosecution witnesses. The witnesses are corroborating each other on all material aspect, there is nothing to doubt. In the Krishna Mochi vs. State of Bihar-2002 (2) CC Cases (SC) 58, the Hon'ble Supreme Court observed that some discrepancy is bound to be there in each and every case. Similarly, in the case of Amrita @ Amrita Lal vs. State of M.P.-2004 (1) CC Cases (SC) 220, it was observed that in every case, some or the other discrepancy is likely to occur and if it does not materially affect the case of prosecution, it has to be ignored.
17.13 Coming to the present case, simply because the log book of the vehicle used by the raiding party, was not produced, does not mean the oral testimony of witness i.e. PW3 Sh. R. Roy, PW10 Smt. K.K. Malhotra and PW11 Sh. D.P. Saxena, should be approached with distrust. Further, if the witness is unable to tell the distance between the place of interception and the office of DRI that does not mean that whatever he has deposed, can be washed of the record. The perusal of the statement of the witness would show that no material inconsistency has been pointed out. It may be that with a more meticulous and scientific approach could have led to a better investigation, but the question before the Court is whether the investigation done by the Investigating Officer and the evidence collected and produced in the Court inspire confidence or not. I have not found any reason to disbelieve the prosecution version of the case.
Defence Evidence
18.0 The accused Rohit Goel had examined PW1 Smt.
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Santosh Goel in his defence. However, her statement as DW1 is contrary to what the accused has pleaded in a statement u/s 313 Cr.P.C. Accused Rohit Goel has stated in the statement u/s 67 of NDPS Act tendered on 08.09.2007, he left Ludhiana along with his mother at about 4:00/4:30 pm for going to Pehwa, Haryana for holy dip. However, on the way, they changed their program and first decided to visit his aunt's house at Punjabi Bagh. He has taken same plea in his statement u/s 313 Cr.P.C. Contrary to this, PW1 Smt. Santosh Goel has stated that on 08.09.2007, she alongwith Rohit Goel came to perform some religious rituals at Pehwa, Haryana. After performing the rituals at Pehwa, she told her son that she wanted to visit her sister at Delhi. On her asking, her son Rohit Goel decided to take her to Delhi and when they came to Delhi, they were apprehended at around 11:00/11:30 pm near Britannia Chowk. As per the, accused, they did not visit Pehwa and had come to Delhi straight, but as per PW1 Smt. Santosh Goel, they had first gone to Pehwa, from there, they came to Delhi. Thus, this is a glaring contradiction in the version of accused Rohit Goel and DW1. Rest of the statement of DW1 is also not sufficient to dislodge the prosecution case.
18.1 As far as accused Kouassi Williams is concerned, he himself appeared as DW2 u/s 315 Cr.P.C. As per his statement as a witness, he was apprehended in the market Krishna Park on 06.09.2007. He has stated in the examination further that he has never been to Vikas Puri and he met the accused Rohit Goel for the first time on 09.09.2007. He filed retraction applications Ex. DA and Ex. DB. However, in these retraction applications, he has stated that on 08.09.2007 in the Vikas Puri area, DRI officers falsely and unauthorisedly arrested him in the case of drug without following mandatory provisions of NDPS Act. Thus, in his statement as DW2, SC No.14A/08 State Vs. Rohit Goel & Ors.
59he stated that he was picked up on 06.09.2007, but in his retraction application, he had stated that he was picked up on 08.09.2007. In his statement u/s 67 NDPS Act recorded, he gave his residential address as WZ 130 or WZ 137 Second Floor, Krishna Park, New Delhi. He had stated that he had resided in a rented house after he came to India on 09.11.2006. During the cross-examination of PW11 Sh. D.P. Saxena, a suggestion was given by accused Kouassi Williams that he was a tenant in House No. 60, H-3 Block, Vikas Puri and the premises was taken on rent in the name of his wife. The accused has taken these two contrary stands in his defence. No evidence has been led to prove any of the contradictory stand. Moreover it is a case of recovery of about 15 Kg of Heroin and to say that such a huge quantity of contraband has been planted upon the accused, prima facie is not acceptable. The defence evidence, therefore, is not found strong enough to dislodge the prosecution evidence. The accused have been a part of a conspiracy to deal in the transportation and supply of the drug i.e. Heroin. There cannot be any direct evidence for such a conspiracy which has to be inferred from the circumstances. The arrival of accused Kouassi Williams in front of House No. 60, H-3 Block, Vikas Puri in the night and the arrival of the accused Rohit Goel in a separate car at the same area for transferring of two black colour polythene bags containing Heroin to the accused Kouassi Williams by itself, is a circumstance, which shows that it was a well planned transaction for transfer and transportation of contraband substance. Both the accused know what they were doing. The both knew that they are part and parcel of the operation of transportation and supplying of drugs.
19.0 In view of the evidence coming on the record and the
discussion above, I have come to the conclusion that the
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prosecution has proved its case against both the accused for the offence u/s 29 of NDPS Act and Section 21 (c) read with Section 29 of NDPS Act against both the accused Rohit Goel and Kouassi Williams beyond reasonable doubts. Both the accused are hereby held guilty for the offence punishable u/s 29 of NDPS Act and Section 21 (c) read with Section 29 of NDPS Act. Both accused convicted accordingly.
Announced in the open Court on (Ajay Kumar Kuhar)
1st October, 2015 Special Judge (NDPS)
South District: Saket
SC No.14A/08 State Vs. Rohit Goel & Ors.
61
IN THE COURT OF SHRI A.K.KUHAR
ASJ/SPECIAL JUDGE (NDPS), SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
S.C. No. 14A/08
u/s IPC 21 (c)/29 NDPS Act
PS-DRI
Computer ID No: 02403R0284232008
Directorate of Revenue Intelligence,
I.P. Bhavan, I.P. Estate,
New Delhi.
VERSUS
1. Rohit Goel
S/o Sh. Vishwa Mitter Goel,
R/o B-Block, Opp. Park,
Bhai Randhir Singh Nagar,
Ludhiana, Punjab.
2. Kouassi Nguessan Williams
S/o Late Mr. Kossi William,
Ivory Coast National,
R/o 25, Macory Street, Abidjan,
Ivory Coast.
Date of Judgment : 01.10.2015
Date of order on sentence : 05.10.2015
ORDER
1.0 Accused Rohit Goel and Kouassi Williams have been held
guilty and convicted for the offence under Section 21(c) NDPS Act, 1985 for keeping in possession heroin in commercial quantity, which is a narcotic substance. They have also been held guilty and convicted for the offence u/s 29 NDPS Act for being party to criminal conspiracy of transportation of heroin, which is a narcotic substance. 2.0 I have heard the submissions on the point of sentence from learned SPP for DRI and the learned counsels for the convicts and the convicts also in person.
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3.0 I have taken into account all the mitigating and
aggravating circumstances of the case.
4.0 Learned SPP has submitted that convicts Rohit Goel and
Kouassi Williams have been found in possession of commercial
quantity of heroin, which was more than 14 Kg. It was argued that considering the gravity of the offence, these convicts be awarded the maximum sentence provided under the Act.
5.0 The convict Rohit Goel has prayed for a lenient view on the ground that he is the only earning member in the family, which consists of two sons; that he has no previous criminal record of conviction. His financial condition is very poor. His father is also suffering from multiple ailments and he is the only son of his parents. 5.1 The convict Kouassi Williams has prayed for a lenient view on the ground that he has no previous criminal record of conviction. His financial condition is very poor. He has three children. There is nobody to support them. It is prayed that a lenient view may be taken.
6.0 I am conscious of the fact that a too harsh sentence and too lenient sentence, both loose its significance. But, there can be circumstances when a lenient view by the Court is justified. It is generally noticed that in such cases where drugs are supplied to consumers, the main drug paddlers go scott free and the conduit used by such paddlers, who are invariably poor people get caught. The harsh punishment provided for offence under the NDPS Act is an indication that offences are to be considered very serious in nature, but while awarding sentence, the court has also to keep in mind, if there is any chance of reformation of the convicts. In the present case the convicts Rohit Goel and Kouassi Williams were the carriers, who became the part and parcel of the conspiracy to deal in the supply and transportation of narcotic and psychotropic substance.
7.0 In view of the facts and circumstances of the case both
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the convicts are sentenced as under :-
(a) The convict Rohit Goel is sentenced to 10 years of
rigorous imprisonment and further sentenced to pay a fine of Rs. 1 Lac, in default to undergo SI for six months for the offence u/s 29 of the NDPS Act. He is further sentenced to 10 years of rigorous imprisonment and further sentenced to pay a fine of Rs. 1 Lac, in default to undergo SI for six months for the offence u/s 21 (c) of the NDPS Act read with Section 29 (c) NDPS Act. Both the sentences shall run concurrently with the benefits of Section 428 Cr.P.C.
(b) The convict Kouassi Williams is sentenced to 10 years of rigorous imprisonment and further sentenced to pay a fine of Rs. 1 Lac, in default to undergo SI for six month for the offence u/s 29 of the NDPS Act. He is further sentenced to 10 years of rigorous imprisonment and further sentenced to pay a fine of Rs. 1 Lac, in default to undergo SI for six months for the offence u/s 21 (c) of the NDPS Act read with Section 29 NDPS Act. Both the sentences shall run concurrently with the benefits of Section 428 Cr.P.C. 8.0 Case property be confiscated to DRI/State and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgment, if any, or the orders of the Appellate Court, as the case may be.
9.0 Copy of the judgment and order on sentence be supplied to both the convicts, free of cost.
10.0 File be consigned to record room after all the necessary compliances.
Announced in the open Court on (Ajay Kumar Kuhar)
05th October, 2015 Special Judge (NDPS)
South District: Saket
SC No.14A/08 State Vs. Rohit Goel & Ors.