Delhi District Court
Sc No. 18A/08 Dri vs Manjinder Singh on 14 February, 2013
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IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Sh Devender Singh
Intelligence Officer
Directorate of Revenue Intelligence
Delhi Zonal Unit
New Delhi.
V E R S U S
Manjinder Singh
S/o Sh Avtar Singh
R/o VPO Sammipur
PS Lambra
District Jalandhar
Punjab.
SC No. : 18A/08
ID No. : 02403R0242242008
U/S : 21 & 27A NDPS Act
Date of institution : 02.04.2008
Date of reserving judgment : 08.02.2013
Date of pronouncement of judgment : 14.02.2013
Decision : Acquitted
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence (hereinafter referred to as DRI) through Sh Devender Singh, Intelligence Officer, against the accused Manjinder Singh for commission of the offences punishable U/S 21 & 27A of the NDPS Act, 1985.
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2. The brief facts of the case are that on
06.10.2007 an intelligence was gathered by PW1 Sh Diwakar Joshi, also an Intelligence Officer of DRI, through reliable source that a person named Manjinder Singh carrying narcotic drugs would be coming in a Bolero Jeep No. PB 10 BQ 1684 at HP Petrol Pump, Mahipal Pur, Near Raddisson Hotel, New Delhi, at about 10 PM on that day. The above intelligence was reduced into writing by him as Ex. PW1/A and the same was put up by him before his senior officer, Sh Sanjay Bansal/PW2 who had directed PW9 Sh N.D.Azad to immediately organize a team for surveillance and interception of the above person, alongwith the contraband substance.
3. It is alleged that two public witnesses were called in the office of the DRI situated in the Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi at about 6 PM and a team of the DRI Officers, alongwith the public witnesses, had left their office at about 8 PM and had reached at the abovesaid petrol pump at about 9 PM. A surveillance was mounted at the spot and at about 10.30 PM one Bolero Jeep bearing the above registration number had come at the abovesaid petrol pump and the same was immediately intercepted and on enquiry the identity of the driver of the above Jeep was revealed as the accused Manjinder Singh, who is the resident of Village Sammipur in District Jalandhar, Punjab.
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4. The accused was apprised about the above
intelligence and was asked if he was carrying any narcotic drugs with him and though he had initially denied the same, but on persistent questioning he had admitted that he was carrying approximately 5 KG of Heroin concealed in a greenish colour VIP suitcase, which was lying in the dickey of the above Jeep. A notice U/S 50 of the NDPS Act Ex. PW11/B was given to the accused at the spot and in response to the above notice the accused had given a written reply on the said notice in his own handwriting to the effect that he did not require any Magistrate or a Gazetted Officer for the search proceedings and the same can be taken by any officer of DRI. It is also alleged that the accused had further stated that since the above place of his interception was not safe for carrying out the detail searches and other proceedings, he had requested the DRI Officers for taking him to some secured place and hence the accused, alongwith the abovesaid vehicle and public witnesses, was escorted to the above office of the DRI.
5. The above greenish colour VIP suitcase found in the above Jeep driven by the accused was opened and searched there and it was found to contain some clothes. However, on careful examination of the said suitcase, it was noticed that the bottom and upper cover of the said suitcase was abnormally thick. On removing the rivets of the false top and bottom of the suitcase, one packet each was found to be concealed in the top as well as the bottom SC NO. 18A/08 DRI Vs Manjinder Singh 4 of the above suitcase and these two packets were found to be wrapped with brown colour adhesive tapes. The above packets were marked as Mark A and B respectively for identification purposes and on removal of the adhesive tapes thereof, it was found that both the packets contained some off white colour powder/granules and a pinch of the above substance of both the packets was tested with the help of a UNO Field Drug Kit and the same had given a positive indication for the presence of Heroin. The gross weight of these packets was found to be 2.438 KG and 2.346 KG and the net weights of the substance contained therein to be 2.430 KG and 2.338 KG respectively and thus the total net weight of the above Heroin of the two packets came to be 4.768 KG. The personal search of the accused was also conduced and the same had led to the recovery of a cash amount of Rs 1,98,000/- and one mobile phone no. 9855716003, make Nokia 1100, alongwith one Sim No. 891146000010630447 of M/S Spice Communications.
6. Thereafter, three representative samples of 5 Grams each were drawn out of the above packets and the same were correspondingly marked as Mark A1, A2 & A3 and B1, B2 & B3 respectively. These samples were then put in separate transparent polythene pouches, which were stapled and correspondingly marked, and then kept in separate paper envelopes and sealed with the DRI seal, over a paper slip each pasted on the said envelopes and bearing the signatures of the seizing officer, the accused as well as SC NO. 18A/08 DRI Vs Manjinder Singh 5 the panch witnesses. The remaining substance/Heroin of the above two packets was put back in the same packets and these packets were stapled and then put in separate paper envelopes and sealed with the same seal and similar paper slips bearing the signatures of the above persons were also pasted on each of these envelopes. The packing material, i.e. brown adhesive tapes, were kept in a separate paper envelope and a separate parcel thereof was also prepared and sealed in the same manner. Separate parcels of the above currency amount and mobile phone were also prepared and sealed similarly. These five parcels of the remaining case property and its packing etc. were then further kept into a steel trunk, which was wrapped with white cloth and sealed in the similar manner. Another cloth parcel of the above suitcase of the accused was also prepared in the same manner. All the above contraband substance, alongwith its packings and concealment material, and the above Bolero Jeep recovered in this case were seized for violation of the provisions of the NDPS Act.
7. During the course of rummaging of the Bolero Jeep, some documents, i.e. one registration certificate, one insurance certificate, one pollution certificate and three NHAI Toll Plaza slips of different numbers and places were also recovered and the same were also taken into possession for the purposes of the investigation. One detailed panchnama Ex. PW11/A was also prepared with regard to the above proceedings and the same was also signed by SC NO. 18A/08 DRI Vs Manjinder Singh 6 all the above persons. The seizing officer has also prepared the test memos regarding the drawing of the above samples and a facsimile of the above seal of DRI used in this case was also affixed on the panchnama as well as on the test memos.
8. It is further alleged in the complaint that in response to the summons U/S 67 of the NDPS Act Ex. PW11/C served upon the accused, the accused had also appeared and had tendered his voluntary statement Ex. PW11/D under the above provisions before the seizing officer in which, besides disclosing his personal, family and other details, he had specifically admitted his apprehension from the above spot on the above date, time and in manner and also the recovery of the above contraband substance from the above suitcase found in his possession from the abovesaid vehicle. He had also disclosed, inter-alia, therein that he used to hire his above vehicle to Prima Centre, Jalandhar; that the owner of the stand used to send his vehicle on hire to one Bittoo; that the above Bittoo had gone in his above vehicle to Raddisson Hotel and Haveli Hotel 4-5 times and the above Bittoo had also taken his mobile number and used to call him at hotel as and when he was in need of the vehicle. It was further disclosed by the accused in his above statement that on 06.10.2007 the above Bittoo had called him at about 1 PM at BMC Chowk, Jalandhar and had given him the above VIP suitcase and Rs two lacs and had told him to go to Delhi and deliver the above suitcase and SC NO. 18A/08 DRI Vs Manjinder Singh 7 cash amount near Raddisson Hotel HP Petrol Pump to a man who was to arrive there to take the above delivery; that the accused was promised to be paid Rs 6000/- as charges for the above delivery and he was also paid Rs 500/- for the payment of toll tax and he had further taken out Rs 2000/- from the above cash amount of Rs two lacs for diesel purposes and on that day he had left Jalandhar for Delhi at about 2 PM in his above vehicle for delivery of the above consignment and cash amount to the above person, as per the instructions of the above Bittoo, and he was apprehended subsequently by the DRI officers before he could deliver the above consignment. However, the accused was not able to tell any contact number or address etc. of the above Bittoo as he stated that the same were not given to him by the Bittoo.
9. Since the accused appeared to have committed offences punishable U/S 21 and 27A of the NDPS Act, he was arrested by the DRI officers in this case vide arrest-cum- jamatalashi memo Ex. PW11/E and he was got medically examined vide MLC Ex. PW11/F, vide application Ex. PW9/A, and after his medical examination he was produced in the court and remanded to judicial custody and the intimation of his arrest was given to his wife vide letter Ex. PW9/B. One report U/S 57 of the NDPS Act Ex. PW9/E regarding his arrest and seizure of the above contraband substance was also given by the seizing officer to his superior officer. Some follow up action was also requested by the officers of SC NO. 18A/08 DRI Vs Manjinder Singh 8 DRI in Delhi to their counterparts in Ludhiana, Punjab and in that follow up action the residential premises of the accused in his native village in Punjab were also raided, but nothing incriminating was recovered in the said raid. No trace of the above Bittoo could also be found.
10. The enquiries conducted with regard to the above mobile number 9855716003 found in possession of the accused had revealed that the above mobile phone of M/S Spice Communications was in-fact issued on the fake identity of one Sh Sanjeev Kumar Sharma/PW16, a resident of Jalandhar, Punjab and it was further found that his identity document, i.e a copy of his driving license, which he had given at the time of obtaining one other mobile number 9855290067 of M/S Spice Communications was in-fact misused by someone for obtaining the above mobile number found in possession of the accused, which was stated to be sold by M/S Aggarwal Associates, Lal Bazar, Jalandhar, a dealer of M/S Spice Communications, though the other mobile number 9855290067 was taken by Sh Sanjeev Kumar Sharma through M/S Batra Sons, which were also a dealer of the above service provider. The statements of the concerned persons of the above firms and also of one M/S Kayson Telecoms, Mandi, Fatonganj, Jalandhar were also recorded during the investigation in this regard. Two of the above six samples drawn out of the above contraband substance recovered from the accused were got deposited with the CRCL for testing, alongwith the test memos, and the case property was SC NO. 18A/08 DRI Vs Manjinder Singh 9 deposited in the Valuable Godown of New Customs House. Vide the test reports dated 11.12.2007 Ex. PW5A and PW5/C both the above samples Mark A1 and B1 had tested positive for the presence of diacetylmorphine and vide a subsequent report Ex. PW6/A dated 04.03.2008 the remnants of the above samples were opined to be having 60.4% and 57.7% purity of diacetylmorphine and ultimately a complaint for the commission of the abovesaid offences was filed by the above complainant in this court.
11. The complaint was filed in this court on 02.04.2008 and cognizance of the abovesaid offences was taken on the same day. A prima facie case for commission of the abovesaid offences was also found to be made out against the accused vide order dated 06.10.2008 and charges for the abovesaid offences were also framed against him on the same day.
12. The prosecution/DRI in support of its case has examined total 18 witnesses on record and their names and the purpose of their examination is being stated herein below:
13. PW1 Sh Diwakar Joshi, Intelligence Officer, is the concerned officer of DRI who had gathered the above intelligence, reduced into writing as Ex. PW1/A and had put up the same before his senior officer.
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14. PW2 Sh Sanjay Bansal, the then Joint Director, is the concerned senior officer to whom the above information Ex. PW1/A was put up and who had directed for further action on the said information.
15. PW3 Sh Dharambir Sharma was the Custodian of the Valuable Godown, New Customs House on 08.10.2007 when the two sealed parcels of the case property of this case were deposited with him by the seizing officer Sh K. Shashi Bhushan (hereinafter referred to as the IO) in intact condition and he had made an endorsement in this regard on the deposit memo Ex. PW3/A.
16. PW4 Sh Jaiveer Singh, Lab Assistant of CRCL, had received the above two sealed sample parcels of this case, alongwith the test memos, from an official of DRI in intact condition on 08.10.2007 and had issued the acknowledgment/receipt Ex. PW4/A in this regard. He has stated that thereafter the samples were diarized and were handed over to Sh J.S.Aggarwal in intact condition. He has also stated that on 24.01.2008 the remnants of the above samples were again received by him from Sh Devender Singh of DRI for determination of the purity percentage thereof and he had also issued one acknowledgment/receipt Ex. PW4/B in this regard and had handed over the samples after diarizing to Sh S.C.Mathur in intact condition.
17. PW5 Sh V.P.Bahuguna, Assistant Chemical Examiner SC NO. 18A/08 DRI Vs Manjinder Singh 11 of CRCL, was alloted the above two samples of this case on 06.11.2007 for analysis and analysis thereof was started by him on 10.12.2007, under the supervision of Sh S.C.Mathur, Chemical Examiner, and vide reports Ex. PW5/A and PW5/C, which are also counter-signed by Sh S.C.Mathur, it was reported by him that both the above samples had answered positive for the presence of diacetylmorphine and he had also given the report in Section II of the test memos Ex. PW5/B and PW5/D in this regard.
18. PW6 Sh B.Ram, Assistant Chemical Examiner of CRCL, was alloted the remnants of the above two samples on 20.02.2008 for determination of the purity/percentage of the diacetylmorphine therein by Sh S.C.Mathur, Chemical Examiner and the analysis of the above remnants was started by him on 27.02.2008 and the purity percentage of the diacetylmorphine was given in the test report Ex. PW6/A, which is also counter-signed by Sh S.C.Mathur.
19. PW7 Sh Devender Singh is the complainant of this case and he has deposed regarding the filing of the complaint Ex. PW7/B in this court. He has also stated that on 24.01.2008, on the instructions of Sh N.D.Azad, he had taken the remnant of the above two samples to CRCL for their quantification analysis and had taken the same vide forwarding letter Ex. PW7/A given by Sh N.D.Azad and the same were deposited there vide acknowledgment/receipt Ex.
PW4/B.
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20. PW8 Sh Pramod Kumar, Head Havaldar of DRI, had taken the above two sample parcels initially on 08.10.2007 to CRCL vide forwarding letter Ex. PW8/A and had deposited the same with PW4 Sh Jaiveer Singh vide acknowledgment/receipt Ex. PW4/A.
21. PW9 Sh N.D.Azad, SIO of DRI, was instructed by PW2 Sh Sanjay Bansal to form a team of officers for keeping a surveillance and apprehension of the accused named in the secret information Ex. PW1/A and accordingly he had formed and sent a team for the said purpose. He had also issued/signed letter Ex. PW9/A for medical examination of the accused, letter Ex. PW9/B intimating about the arrest of the accused to his wife, letters Ex. PW9/C and PW9/D to his counterparts in Ludhiana for some follow up action and he had also received the information U/S 57 of the NDPS Act Ex. PW9/E from the IO/PW11 and one letter Ex. PW9/F from DRI Ludhiana. He had also counter-signed the deposit memo Ex. PW3/A of the case property, issued forwarding letter Ex. PW9/G for deposit of the samples in CRCL and authority letter Ex. PW8/A in favour of PW8 for depositing the same, letter Ex. PW9/H to Nodal Officer of M/S Spice Communications requiring some information about the above mobile phone and received a communication Ex. PW9/J from him, letter Ex. PW9/K and reminder Ex. PW9/L to DRI Ludhiana for some follow up action and had marked one letter Ex. PW9/M to the complainant for further investigation, which was received from DRI Ludhiana.
SC NO. 18A/08 DRI Vs Manjinder Singh 13 Subsequently he had also sent the above remnants of samples for their quantification test vide letter Ex. PW7/A and reminder Ex. PW9/N on the above subject and had also received the quantification test report Ex. PW9/O in response to the same.
22. PW10 Sh Sanjay Kumar, Tax Assistant of DRI, had only issued the above seal of DRI used in this case to the IO/Sh K. Shashi Bhushan vide entry at serial no. 53 of the seal movement register Ex. PW10/A.
23. PW11 Sh K. Shashi Bhushan is the main investigating and seizing officer of this case. He has deposed in detail on the above lines of the prosecution story pertaining to the apprehension of the accused, recovery of the above contraband substance and the other proceedings of seizure and sealing etc. conducted by him and the documents prepared with regard to the same. He has also identified the accused as well as the entire case property in the court.
24. PW12 Sh P.S.Gulati, the then Assistant Director of DRI had only sent the reminders Ex. PW12/A and PW12/B to their counterparts in Ludhiana seeking some information about the above Sanjeev Kumar Sharma in whose name the above mobile no. 9855716003 recovered from the accused was subscribed. He had also received one letter Ex. PW9/M in this regard.
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25. PW13 Sh S.J.S.Chug, an SIO of DRI Ludhiana had made some enquiries from the Raddisson Hotel, Jalandhar regarding the stay of the above Bittoo in the said hotel, as disclosed by the accused in his statement U/S 67 of the NDPS Act, and he had also raided the residential premises of the accused vide panchnama Ex. PW13/A, but nothing incriminating was recovered in the said raid. Subsequently, he had also recorded one statement U/S 67 of the NDPS Act Ex. PW13/C of Sh Avtar Singh, the father of the accused, which was tendered in response to the summons Ex. PW13/B and reduced into writing by the nephew of Sh Avtar Singh who had accompanied him at that time. He had subsequently forwarded the above documents to DRI Delhi vide his letter Ex. PW9/F and had also recorded the statements Ex. PW13/D and PW13/E of Sh Vishal Batra of M/S Batra Sons, statement Ex. PW13/F of Sh Kanav Mahendru of M/S Kayson Telecoms, statement Ex. PW13/G of Sh Deep Kumar of M/S Aggarwal Associates regarding the above mobile phone numbers and had forwarded the same to Delhi DRI office vide his letter Ex. PW13/H.
26. PW14 Sh Surjit Singh is the Nodal Officer of M/S Idea Cellular Ltd. and he has deposed regarding the subscription/allotment of the mobile number 9855716003 by their company in the name of the above Sh Sanjeev Kumar Sharma and has produced on record the certified copies of the Subscription Application Form thereof and the ID document of the subscriber as Ex. PW14/A (collectively) and SC NO. 18A/08 DRI Vs Manjinder Singh 15 had also identified the signatures of Sh Y.S.Bains, the previous employee of their company, on letter Ex. PW9/J vide which the computer generated call detail records Ex. PW14/D (collectively-consisting of 36 pages) was furnished to the DRI. He has also identified the signatures of the above official on another letter Ex. PW14/E vide which the Subscription Application Form pertaining to the above number was forwarded to DRI and has stated that the record pertaining to the calls of the above period are now not available/stored with their company as per the DOT guidelines, being beyond the period of one year, and he has also produced one letter of an officer of his company as Ex. PW14/B in this regard.
27. PW15 Sh Kanav Mahendru, proprietor of M/S Kayson Telecoms, has only deposed that his above proprietorship firm was a distributor of M/S Spice Communications at that time and the above two mobile numbers, i.e. 9855716003 and 9855290067, were sold by them through their dealers and he had also made one statement Ex. PW13/F in this regard during the investigation and had also tendered some documents alongwith the same, which were collected from the dealers.
28. PW16 Sh Sanjeev Kumar Sharma is the subscriber of the mobile number 9855290067 and he has stated that the above number of M/S Spice Communications was taken by him through one Batra Showroom at Jalandhar and he had given SC NO. 18A/08 DRI Vs Manjinder Singh 16 copy of his driving license Mark PW16/C at the time of its subscription and he had never taken or used the other mobile number 9855716003. He has also stated that during investigation he had tendered one statement Ex. PW16/A in this regard and he has identified his signatures on the Subscription Application Form Ex. PW16/B.
29. PW17 Sh Vishal Batra is the proprietor of M/S Batra Sons and he has also stated that he had sold one mobile number 9855290067 to PW16 Sh Sanjeev Kumar Sharma, but he had not sold the above mobile number 9855716003. He has also deposed about the tendering his statement Ex. PW17/A and the documents Ex. PW13/D in this regard during the investigation.
30. PW18 Sh Deep Kumar is the proprietor of M/S Aggarwal Associates, Jalandhar and he has stated that though the Subscription Application Form of mobile no. 9855716003 sold in the name of the above Sanjeev Kumar Sharma appears to be bearing the seal in the name of their firm, but the same does not belong to them and the signatures appearing on the same are also not his signatures. He has also stated about giving one statement Ex. PW13/G in this regard.
31. After the conclusion of the prosecution evidence, the statement U/s 313 Cr.P.C. of the accused was recorded and all the incriminating evidence brought by the SC NO. 18A/08 DRI Vs Manjinder Singh 17 prosecution on record was put to the accused in his above statement and the same was simply denied by the accused to be incorrect. It has been stated by the accused in his above statement that the above panch witnesses are fake and planted witnesses as they do not exist at all and he had not made any statement U/s 67 of the NDPS Act and the same was rather dictated by the DRI officers. It was also stated by him that he was made to write it forcibly and it was also subsequently retracted by him. It is his case that he has been falsely implicated in this case and no recovery of heroin was effected from him or at his instance and all the proceedings were done forcibly and he had already apprised this court about the same in his above retraction application written in Punjabi language as he is not conversant with Hindi or English language and cannot write the above languages, but he can write it only after seeing the printed or written material. He has also submitted that the mandatory provisions of NDPS Act were not complied with by the DRI officers in this case. Though initially he has also chosen to lead evidence in his defence, but subsequently he has not examined on record any witness in his defence.
32. I have heard the arguments advanced by Sh Satish Aggarwal, Ld SPP for DRI and Sh Tanvir Ahmad Mir and Sh M.K. Chaudhary, Ld counsels for the accused and I have also gone through the entire record of this case, including the written submissions filed on behalf of the parties.
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33. The evidence led on record and the rival
arguments addressed by Ld counsels for the parties can be broadly discussed and appreciated under the following heads:-
VIOLATION OF THE PROVISIONS OF SECTION 50 OF THE NDPS ACT AND THE GENUINENESS OF THE WRITTEN NOTICE SERVED UNDER THE ABOVE SECTION
34. It has been held time and again by their lordships of the Hon'ble Supreme Court as well as of different High Courts that the provisions of Section 50 of the NDPS Act are mandatorily to be complied with and the accused has a legal right to be apprised of that in case he wants then his search can be conducted in the presence of a Gazetted Officer or a Magistrate for any contraband substance. However, it is also now well settled that the above provisions are not required to be complied with in case the recovery of a contraband substance has not to be effected from the 'person' of the accused, but the same has to be or has been effected from some luggage, briefcase, suitcase or bag etc being carried by the accused. Reference in this regard can be made to the judgments in cases of State of H.P. Vs Pawan Kumar 2005 (4) SCC 350, Madan Lal Vs State of H.P. 2003 Crl. L.J. 3868 and Ajmer Singh Vs State of Haryana-2010 (2) SCR 785 (Crl. Appeal No. 436/09) etc. Since in the instant case, the above heroin was not being carried by the accused on or SC NO. 18A/08 DRI Vs Manjinder Singh 19 recovered from his 'person', but the same was being carried and transported in a bag kept in the dickey of the above vehicle, it is held that Section 50 of the NDPS Act has got no applicability to the facts and circumstances of this case and the judgment in case of Vijaysinh Chandubha Jadeja Vs. State of Gujrat 2007 (1) SCC 433 being relied upon by Ld defence counsels is not applicable to the facts and circumstances of this case.
35. However, when the evidence of the prosecution is scrutinized to test its veracity regarding the service of the above notice, it it found that there are various discrepancies in the prosecution evidence which apparently suggest that the notice U/s 50 of the NDPS Act Ex. PW11/B allegedly given to the accused at the spot is a fake document, which has not come into existence at the alleged time and rather the same was created and manufactured subsequently. This gives a serious blow to the trustworthiness of the prosecution story, even though the above notice was not legally required to be served in this case.
36. As discussed above, the team of DRI officers, allegedly accompanied by the two panch witnesses, had reached at the above place of apprehension of the accused, i.e. at the HP Petrol Pump, Mahipal Pur, Near Radisson Hotel, New Delhi, well in advance of the expected time of arrival of the accused at the said place. The IO/PW11 Sh SC NO. 18A/08 DRI Vs Manjinder Singh 20 K. Shashi Bhushan is the only witness examined by the prosecution who has specifically made detailed depositions on record regarding the manner of apprehension of the accused, though PW7 Sh Devender Singh in his cross examination has also made a whisper of his being present at the above time. As per the depositions made by the IO/PW11 they had reached the spot at about 9.00 PM and as per his depositions made in his cross examination they had left their office at about 8.30/9.00 PM and he has not given the time of their arrival at the spot. However, he has stated therein that the distance between the spot and their office was about 15 Kms. The expected time of arrival of the accused at the spot was at about 10.00 PM on the above date, i.e. 22.00 hours on 06.10.2007, as mentioned in the above information reduced into writing as Ex. PW1/A and according to the IO/PW11, the accused had reached there at about 10.30 PM. However, in the above notice Ex. PW11/B the time of apprehension of the accused from the above spot is mentioned as 11.30 hours today, i.e. on 06.10.2007, which means 11.30 AM on that day. Though it can appear that the words 'hours' might have been written due to some mistake instead of the words 'PM', but even the time of 11.30 PM is not according to the prosecution story as the IO/PW11 has stated the time of apprehension of the accused to be about 10.30 PM.
37. Again, only the notice U/s 50 of the NDPS Act was given at the spot and after taking his alleged reply to the SC NO. 18A/08 DRI Vs Manjinder Singh 21 said notice, containing his refusal for the above right to be search in the presence of the above officers, the accused was brought to the office of DRI, DZU, which admittedly was at a distance of about 15 Kms from the spot. Taking the time of travel from the spot to their office, the DRI team could not have reached their office before 12.00 mid-night if the above time of 11.30 PM mentioned in the notice Ex. PW11/B is taken to be true. Further, the IO/PW11 has himself stated in his cross examination that they had remained at the spot only till about 11.30 PM, which again suggests that the above time of 11.30 PM mentioned in the notice is not correct as a substantial time might have been consumed in conducting some oral enquiries from the accused and also in service of the above notice upon him and in taking his reply to the same.
38. It is further observed that the IO/PW11 during his cross examination has stated that he had information only about the name of the accused, type of the vehicle to be carried by him and the concealment of drugs in the said vehicle and he had no information about any other details of the accused. Even the secret information Ex. PW1/A shows that only the name of the accused, the registration number and make of the above Jeep and the expected time of arrival of the accused at the above spot were mentioned therein. It is clear from the above that the name of the father of the accused, the age of the accused and his complete residential address of Punjab, as mentioned in the SC NO. 18A/08 DRI Vs Manjinder Singh 22 notice Ex. PW11/B, were not in the knowledge of the IO/PW11 or any member of the DRI team or other officer of DRI till the accused was actually apprehended at the spot and he had disclosed the same on enquiry.
39. It is not the case of the prosecution that the above notice Ex. PW11/B was prepared by the IO/PW11 or any other officer of DRI at the spot and his personal particulars were mentioned in the above notice after the same were disclosed to them by the accused. Rather, as per the depositions made by the IO/PW11 in this court, the above notice was not even prepared by him or even in his presence by any other member of the raiding team or DRI. He has also stated that the above notice was given to the accused at the above petrol pump just within about 5/10 minutes of apprehension of the accused and he has also stated that he did not type it and the same was carried by someone else and signed at the spot. His depositions made to the effect that it was 'carried' by someone else apparently suggest that the above typed notice was already with them when they had allegedly reached at the spot, if the above story of prosecution regarding their above visit is believed, and these depositions are further corroborated from his admissions made in his statement that they had not even informed any official of the above petrol pump or Radisson Hotel etc, at the spot about the above secret information nor they had used their offices for any purposes. It is also not the case of the prosecution that SC NO. 18A/08 DRI Vs Manjinder Singh 23 any member of the DRI team had taken any computer with them as the above notice is found to be typed on a computer and the IO/PW11 has also stated on record that he do not even remember as to what material or items were carried by him at the spot and he has also not been able to remember as to whether he was carrying even any IO kit at the spot or not. Again, as per the IO/PW11, the above notice was prepared as a single copy only and it was retained by the accused after service. However, he has not stated on record that any such notice was recovered by him subsequently in the personal search of the accused carried after his arrest in this case. The arrest-cum-personal search memo Ex. PW11/E of the accused also do not show any such recovery of the original notice or a copy thereof in his above search and rather one summons dated 06.10.2007 and a copy of the panchnama and some other articles are shown to have been recovered in such search. It is clear from the above that the above notice Ex. PW11/B is a fabricated document and it appears to have been prepared subsequently in the DRI office and was not given to the accused at the spot, even if the story of the prosecution regarding the apprehension of the accused from the above spot is believed. This aspect also makes the recovery of the above contraband substance from the possession of the accused to be doubtful.
SC NO. 18A/08 DRI Vs Manjinder Singh 24 NON COMPLIANCE OF THE PROVISIONS OF SECTIONS 41 & 42 OF THE NDPS ACT
40. It is also the argument of Ld defence counsels that the mandatory provisions of Section 41 and Section 42 of the NDPS Act have been violated in this case and as a result thereof serious prejudice has been caused to the accused and even if the entire story of the prosecution is believed, the accused is entitled to be acquitted in this case on the above ground alone as the entire search and seizures proceedings conducted in this case stand vitiated. On the other hand, it is the argument of Ld SPP for DRI that there is no violation of any of the above provisions and it is also his argument in alternative that the above sections are not applicable in this case and rather Section 43 of the NDPS Act is applicable in this case.
41. Section 41 of the NDPS Act deals with the powers to issue a warrant and authorization for search of any building or conveyance etc for recovery of such contraband substances. Under sub-section (1) of Section 41 of the above said Act, a Magistrate of a given class has been empowered to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence under the above Act or a warrant for the search of any building, conveyance or a place etc, whether by day or by night, in which he has reason to believe that any narcotic drug or psychotropic substance etc, in respect of which an SC NO. 18A/08 DRI Vs Manjinder Singh 25 offence punishable under the above Act has been committed, or any document or article etc, which may furnish evidence of the commission of such offence, is kept or concealed. Under sub-section (2) of Section 41 of the above Act, a Gazetted Officer of some given departments, including the DRI, as may be empowered in this behalf by a general or special order issued by the State or Central Government, has been empowered to issue an authorization for arrest of such a person or the search of such a building or conveyance etc if he has reasons for belief from his personal knowledge or information given by any person and taken down in writing that any person has committed such an offence or any such narcotic drug or psychotropic substance etc is lying concealed in such a building or conveyance etc and as per this sub-section the above authorization has to be made to any officer subordinate to him but superior in rank to a peon, sepoy or constable etc. In terms of sub- section (3) of the above Section, the officer who issues such warrant or authorization and the officer to whom the same is issued shall both have all the powers of an officer acting U/s 42 of the said Act.
42. Section 42 of the NDPS Act deals with the powers of entry, search, seizure and arrest etc without a warrant or authorization and sub-section (1) thereof provides that if an empowered officer of a given rank, i.e. above the rank of peon, sepoy or constable etc of the departments as stated above, has reasons to believe from his personal SC NO. 18A/08 DRI Vs Manjinder Singh 26 knowledge or information given by any person and taken down in writing that any such narcotic drug or psychotropic substance etc is being transported or concealed in any building or conveyance etc then he can enter into and search such building, conveyance or place etc and seize such drug or substance and he can also detain and search and also arrest, if he thinks proper, any person whom he has reason to believe to have committed an offence punishable under the above Act. However, the above power of search, seizure and arrest can be exercised before sunset and sunrise and for effecting the search or seizure etc between the sunset and sunrise, a search warrant or authorization, as mentioned in Section 41 of the NDPS Act, is required unless, as provided by the proviso to the above sub-section (1), such officer has reasons to believe that a search warrant or authorization cannot be obtained without affording an opportunity for the concealment of evidence or facility for the escape of an offender and in such an urgency he can even effect such search, seizure and arrest etc between sunset and sunrise provided further that he had recorded the grounds of his belief for doing the same. As per sub-section (2) of Section 42 NDPS Act, a copy of the above information or the grounds of belief taken down in writing by such an officer has to be sent by him to his his immediate official superior within 72 hours.
43. In this case, no search warrant from any Magistrate was admittedly obtained by the DRI Officers and SC NO. 18A/08 DRI Vs Manjinder Singh 27 the seizure of the contraband substance of this case has been effected at about 10.30/11.00 PM on 06.10.2007, i.e. after sunset and between sunrise. It is also the admitted case of DRI that no grounds of belief were recorded by the seizing officer of this case, i.e. the IO/PW11 Sh K. Shashi Bhushan, for not obtaining any authorization from his immediate official superior for effecting the above seizure as neither there appeared to be any such urgency, as the secret information was received and reduced as Ex. PW11/A at about 2.00 PM on that day whereas the accused was expected to arrive at the spot at about 10.00 PM, nor the same were required to be recorded as per the prosecution/DRI as the IO/PW11 was already having an authorization given by a superior officer of DRI to effect the above seizure.
44. However, when the provisions of above Sections 41 and 42 of the NDPS Act are appreciated in the light of the evidence led on record, it is observed that the above mandatory provisions stood violated in this case as the alleged authorization which the IO/PW11 was having in this case was not a valid authorization in terms of the said provisions. As per the prosecution case, it is PW1 Sh Diwakar Joshi who had received the above intelligence and he had reduced the same into writing as Ex. PW1/A. There is no doubt with regard to the fact that he is an empowered officer of DRI as he being an Intelligence Officer of DRI has been empowered to act under the above Sections.
SC NO. 18A/08 DRI Vs Manjinder Singh 28
45. Now, if the provisions of Section 42 of the NDPS Act are interpreted, he could have proceeded with the above search and seizure etc during the sunset and sunrise as the information was though not based on his own knowledge, but it was given to him by some other person and was also taken down by him in writing as Ex. PW1/A, as provided by sub- section (1) of the above Section. However, he still needed an authorization from his immediate official superior for effecting the above search and seizure etc if it was in night time, i.e. between sunset and sunrise. But the search and seizure in this case have not been carried out by him and rather the same have been carried by the IO/PW11 Sh K. Shashi Bhushan and hence the authority or authorization of the IO/PW11 to effect the same has to be viewed in terms of the provisions contained U/s 41 of the above said Act and not U/s 42 of the said Act as under this Section, PW1 Sh Diwakar Joshi was not competent enough to authorize the IO/PW11 to act upon the above information. However, there is no doubt with regard to the fact that the above information was put up by PW1 before his official superior, i.e. PW9 Sh Sanjay Bansal, Joint Director, DRI at that time, immediately after it was reduced into writing by PW1, as was provided by sub-section (2) of Section 42 of the NDPS Act.
46. As discussed above, it is only a Gazetted Officer of DRI who could have authorized any of his subordinate officers of a given rank to effect such search and seizures SC NO. 18A/08 DRI Vs Manjinder Singh 29 etc if he had received the information from his own knowledge or given by some other person and reduced into writing. The authorization to effect the above search and seizure of this case has been given by PW2 Sh Sanjay Bansal, who was working as a Joint Director of DRI at that time and as per his endorsement made on the above information, he had directed PW9 Sh N.D. Azad, SIO of DRI, to immediately organize a team for surveillance and interception of the contraband, alongwith the persons involved. Since PW2 had not issued the above authorization contained in the above intelligence report Ex. PW1/A on the basis of his own knowledge, it shall be deemed that he had acted on the basis of information given to him by PW1 Sh Diwakar Joshi and reduced into writing as above. As also stated above, Sh Diwakar Joshi was otherwise an officer of the empowered rank of the DRI who could have legally acted upon the above information, but PW2 had not given the authorization in his name and rather he had directed PW9 Sh N.D. Azad to immediately organize a raiding team.
47. It is also not the case of the DRI that PW9 Sh N.D. Azad, after having been so authorized, had proceeded to effect the above search and seizure of the contraband substance or to apprehend the accused nor the evidence led on record suggests that he was even present at the spot or a part of the raiding team of DRI constituted to effect the above seizure. Rather, the document Ex. PW1/A shows that Sh N.D. Azad had further marked/assigned the above SC NO. 18A/08 DRI Vs Manjinder Singh 30 authority to one Sh Devender Singh, who is stated to be PW7 examined on record of this case. However, the evidence led on record also shows that even PW7 Sh Devender Singh was also neither the seizing officer nor a member of the raiding team of DRI as the seizure of this case was effected by IO/PW11 Sh K. Shashi Bhushan.
48. On perusal of the depositions of PW7 as well as PW9 made on record, it is found that none of them in their examination-in-chief has deposed anything at all regarding their being a part of the raiding team and they both have not even made a whisper regarding any of the proceedings conducted at the spot. PW7 straightway talks of carrying the remnants of the samples to the office of CRCL on 24.01.2008 and has deposed regarding deposit of the same and also the subsequent filing of this complaint case even PW9 only talks about the constitution of the raiding team by him on the directions of his senior officer/PW2 given on information Ex. PW1/A above and also certain other aspects like signing some documents and seeking some information through various letter etc and the deposit of case property etc. PW9 even during his cross examination has clearly stated that he had only formed and supervised the team and he has also explained that by supervision he does not mean that he was a part of the surveillance and raiding team and Sh K. Shashi Bhushan was the leader of the team. He has also admitted it to be correct that he did not personally conduct the search, seizure, enquiry U/s 67 of the NDPS Act SC NO. 18A/08 DRI Vs Manjinder Singh 31 or the arrest of the accused. Though PW7 Sh Devender Singh has vaguely stated it to be correct during his cross examination that he was a member of the team constituted for the interception and seizure of proceedings and he had also assisted the team members in the said proceedings, but his above submissions and claim are only found to be an after thought as had he been a member of the raiding team and had he participated in any of the proceedings at the spot, he could not have forgotten to depose about the same in his examination-in-chief itself. His examination-in- chief was confined only to the above aspects of deposit of remnants of samples and the filing of the complaint and nowhere any leading question was also put to him by Ld SPP for DRI nor he was subjected to any cross examination on the aspect of his being a part of the raiding team and his participation in the above proceedings.
49. As per the practice adopted by the DRI officers, no formal statements U/s 67 of the NDPS Act of the above two official witnesses had been recorded by them, which could have been a circumstance to corroborate the above claim being made by PW7 regarding his participation in the spot proceedings or even by PW9 regarding supervision of the proceedings. Even the signatures of PW7 are not found to be there on the notice U/s 50 of the NDPS Act allegedly served upon the accused at the spot, though the same is allegedly containing the signatures of the IO/PW11, accused as well as the above two public witnesses. The signatures SC NO. 18A/08 DRI Vs Manjinder Singh 32 of PW7 are not even found on the panchnama Ex. PW11/A which was subsequently prepared in the DRI office, though the same is also found to be signed by the above other signatories. Hence, in the absence of their being any material or evidence on record, the bald claim being made by PW7 in his cross examination only or the claim of the IO/PW11 that PW7 was also a member of the raiding team cannot be believed.
50. Further, as per the depositions made by the IO/PW11 in his examination-in-chief, the raiding team even consisted of one other officer of DRI named Mr. Joshi, besides PW7 Sh Devender Singh, and in his cross examination he has given the complete name of the above member to be Sh Diwakar Joshi and has also stated further that one driver was also with them, but the above claim of IO/PW11 is apparently false because even PW1 Sh Diwakar Joshi only talks about the receiving of the above information and reducing the same in writing and in his entire examination he has not made any such claim of being part of the raiding team of DRI or this participation in any proceedings. The above uncorroborated depositions of the IO/PW11 to include the names of PW1 & PW7 as members of the raiding team has not only affected his own credibility but the same also affects the acceptability and credibility of the prosecution story as a whole. It is clear from the above that none of PW1 Sh Diwakar Joshi, PW7 Sh Devender Singh or PW9 Sh N.D. Azad was a member of the above raiding team.
SC NO. 18A/08 DRI Vs Manjinder Singh 33
51. Now coming to the authorization or authority of the IO/PW11 to effect the above search and seizure, it is clear from the above that he was not personally or directly authorized by PW2 Sh Sanjay Bansal to effect the same. Even PW9 Sh N.D. Azad, who was directed to organize a raiding team, has nowhere authorized the IO/PW11 Sh K. Shashi Bhushan to act upon the above information and rather he had written or endorsed the name of PW7 Sh Devender Singh on the said information.
52. It is an argument of Ld defence counsel that since PW9 Sh N.D. Azad was directed to organize a raiding team and take action for seizure of the above contraband substance, he could not have delegated that authority to PW7 Sh Devender Singh or to any other officer of DRI. It is also their argument that even if it is presumed that the above delegation of authority by PW9 in favour of PW7 was a valid delegation, even then since PW7 was not the seizing officer of this case and the seizure has been effected by IO/PW11 Sh K. Shashi Bhushan, the above Section 41 of the NDPS Act stands violated and the above search and seizure etc become illegal.
53. I do agree with the above submissions of Ld defence counsels that the authorization or authority given to an empowered officer by a Gazetted Officer of the above departments, as mentioned under sub-section (2) of Section 41 of the NDPS Act, cannot be further delegated by the SC NO. 18A/08 DRI Vs Manjinder Singh 34 empowered officer as that will frustrate the very purpose for which the above safeguard or provision has been incorporated in the said Act. If the argument of Ld SPP for DRI being made to the effect that the above power can be delegated further is accepted, the same will defeat the very purpose for which such an authorization or authority is being given by the above Gazetted Officer. Though initially the Gazetted Officer appears to be empowered to give that authorization or authority to any of the empowered officers, but any further delegation of the above power or authority by such empowered officer to any other officer appears to be beyond the scope and purview of the above provision. Even if, for a moment, it is accepted that since PW9 Sh N.D. Azad was himself a Gazetted Officer and he could have legally delegated that authority to any of the empowered officers, but even in that case the search and seizure effected by the IO/PW11 Sh K. Shashi Bhushan cannot be justified as the authority, if any, delegated by PW9 was only in favour of PW7 and PW7 being an empowered officer only, and not a Gazetted Officer, could not have further delegated that authority to the IO/PW11 Sh K. Shashi Bhushan as they both were of the same rank of Intelligence Officer, which is not the rank of a Gazetted Officer.
54. Ld SPP for DRI has also raised another argument that even if there was no delegation of authority or authorization in favour of the IO/PW11 of this case, still SC NO. 18A/08 DRI Vs Manjinder Singh 35 the search and seizure of contraband substance should not be termed as illegal as he himself was one of the empowered officers of DRI. However, this argument of Ld SPP for DRI is also not tenable for the reasons that if this interpretation of the provisions of sub-section (2) of Section 42 of the above said Act is accepted then there is no purpose behind giving any such authorization by a Gazetted Officer to any particular empowered officer when all the empowered officers are otherwise legally capable to carry out a search and effect the seizure etc of such contraband substance on their own. Any such interpretation will apparently be against the spirit of the above section and will defeat the very purpose of incorporation of the said provisions in the above Act. Therefore, the entire search and seizure of contraband substance effected in this case can be said to have been effected in extreme violation of the provisions of Sections 41 & 42 of the NDPS Act and in terms of the pronouncements made in various cases by the Hon'ble Supreme Court as well as by different High Courts, the same has certainly caused serious prejudice to the accused and the search and seizure of this case can be held to be illegal and hence, cannot be made the basis of the conviction of the accused. Reference in this regard can be made to the judgment of a three-Judge-Bench of the Hon'ble Supreme Court in case Abdul Rashid Ibrahim Mansoori Vs State of Gujrat (2000) 2 SCC 513 and also of a Constitution Bench in the case of Karnail Singh Vs State of Haryana (2009) 8 SCC 539.
SC NO. 18A/08 DRI Vs Manjinder Singh 36
55. The next alternative contention of Ld SPP for DRI is that instead of Sections 41 and 42 of the NDPS Act, Section 43 of the NDPS Act should be held applicable in this case as the seizure has been effected at a public place and from the above vehicle which was in possession of the above accused and was in transit. He has also referred to some judgments in cases Vijay Kumar Vs. State 1995 Crl. L.J. 2599 (DHC), Mana Singh @ Shana Singh Vs. State of Rajasthan 1999 Crl. L.J. 977 (Raj. HC) and State of Haryana Vs. Jarnail Singh 2004 (2) JCC 1036 SC, but it is found that none of the above judgments is applicable to the facts and circumstances of this case. In case of Vijay Kumar and Mana Singh @ Shana Singh, Supra the contraband substance was not being kept or transported in any vehicle or conveyance etc as per the secret information and even in case of Jarnail Singh, Supra though the same was recovered from a tanker on a public highway, but not only the above vehicle was a public vehicle and in transit, but it was also a case of chance recovery and there was no prior information regarding the arrival of the above vehicle with the contraband substance at the spot and it is in that context that it was held in that said case that it was Section 43 of the NDPS Act and not Section 42 of the said Act which was applicable in that case.
SUMMONS GIVEN TO THE ACCUSED U/S 67 OF THE NDPS ACT, HIS STATEMENT RECORDED UNDER THE ABOVE PROVISIONS AND THE AUTHENTICITY THEREOF SC NO. 18A/08 DRI Vs Manjinder Singh 37
56. It is now well settled and also not disputed by Ld defence counsels that the statements made U/s 67 of the NDPS Act by witnesses as well as the accused persons are admissible in evidence even though the same may be confessional in nature, provided that the same have been made voluntarily and are not the result of any force, coercion or influence etc. It is also well settled that if such a statement of an accused is confessional in nature, then the accused can always retract from the same subsequently and if such a confessional statement has been retracted upon by him, then the court has to look into the entire facts and circumstances of the case to ascertain and find out if the such a statement was made by him voluntarily or not and also the effect of making such a statement and the retraction thereof.
57. As per the prosecution case, after the conclusion of the panchnama proceedings, summons U/s 67 of the NDPS Act Ex. PW11/C were served upon the accused and in response to the same he had appeared before the IO/PW11 and had tendered his voluntary statement under the said provisions, which is Ex. PW11/D on record. As per the panchnama Ex. PW11/A, the above proceedings were concluded at about 6.30 AM on 07.10.2007, whereas the IO/PW11 in his cross examination has stated the time of conclusion of the above proceedings to be 10.00 AM on 07.10.2007. Thus, there is a material contradiction in the above document and the depositions of the IO/PW11 made on record in this regard SC NO. 18A/08 DRI Vs Manjinder Singh 38 and this contradiction becomes more damaging when the same is viewed in the light of the contents of the above summons Ex. PW11/C.
58. As per the summons Ex. PW11/C, the same are dated 06.10.2007 and this is a material circumstance to show that the above document and proceedings were all manipulated in the DRI office as admittedly though the seizure of this case was effected at about 10.30 PM on 06.10.2007, but the above summons were served upon the accused only after the conclusion of the panchnama proceedings, which were concluded on 07.10.2007 only. The above date 06.10.2007 has been written in the summons in carbon at two places, i.e. at the top of the above summons and also at the bottom portion of the summons, and besides the above, the date 06.10.2007 also appears at two other places below the signatures of the issuing officer/IO/PW11 and that of the accused below the receiving of the summons. Again, as per the above document, the time given to the accused for his appearance before the IO/PW11 was 7.00 AM on 07.10.2007, whereas the IO/PW11 in his statement has deposed that the panchnama proceedings were concluded only at about 10.00 AM on 07.10.2007. Hence, the above summons could never have been served upon the accused on 06.10.2007 and the same apparently appears to be a document prepared and manipulated subsequently.
59. The allegedly voluntary statement Ex. PW11/D of SC NO. 18A/08 DRI Vs Manjinder Singh 39 the accused is though admittedly written by the accused in his own handwriting and the same also contains the family details of the accused and also his admissions regarding the recovery of the above contraband substance from his possession etc, but on perusal the above statement is found to be written in a very poor Hindi language and there is no justification on record as to why the accused was not made to tender his statement in a language known to him, i.e. the Punjabi language, in which he was also good in writing. As has also been argued by Ld defence counsels and further submitted by the accused in his statement U/s 313 Cr.P.C, the possibility cannot be ruled out that the accused was forced to copy some dictated statement by the DRI officers and simply because some of the personal and family details of the accused are found incorporated in the said statement, this court should not jump to the conclusion that the same was tendered by him voluntarily as such details could have been easily taken out or extracted out by the DRI officers from the accused and got incorporated in the said statement.
60. Further, though the retraction application in Punjabi language of accused on record has only been marked during the cross examination of the IO/PW11 and the same has not been proved on record as per the provisions of the Evidence Act, but even then the same can be looked into by this court as a circumstance to judge the voluntariness of the previous confessional statement of the accused. Though SC NO. 18A/08 DRI Vs Manjinder Singh 40 Ld SPP for DRI has relied upon one judgment in case of Kanhaiya Lal Vs. Union of India 2008 (1) JCC (Narcotics) 23 that such retraction statement should be proved on record as per the provisions of the Evidence Act and further in case of K.T.M.S. Mohd & Anr Vs. UOI 1992 SCC (Crl.) 572 to the effect that it is for the maker of such a statement to establish that it was involuntary and extracted by illegal means, but the above judgments no longer hold good in view of the subsequent judgments in cases Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC) and Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 etc which are to the effect that such a retracted confessional statement, even though the retraction is not proved in evidence as per law, is a very weak piece of evidence and cannot be made the basis of conviction of the accused in the absence of any independent corroboration thereof.
61. The above retraction statement/application of the accused Mark A on record is found to be addressed to this court and is an undated statement/application and is also not found to be having any endorsement of the court thereon. However, the submissions made by the accused in the said statement to the effect that he had not made any such confessional statement; he was picked up from Jalandhar Bypass in Punjab and brought to Delhi and forged to sign on various documents and write a dictated statement in Hindi language, which he did not even understand, and SC NO. 18A/08 DRI Vs Manjinder Singh 41 which have the effect of retracting his previous confessional statement, has all the effect for this court to scrutinize his previous confessional statement with a great caution and when the above confessional statement Ex. PW11/D made by the accused is examined in the light of the entirety of the facts and circumstances of this case, it does not appear to this court to be a voluntary statement and rather the same appears to have been dictated to him by the DRI officers and got written in Hindi language, which was not the language properly written by the accused as is also clear from his reply written on the notice U/s 50 of the NDPS Act Ex. PW11/B. Hence, the above statement Ex. PW11/D of the accused is held to be not a voluntary statement and it cannot be acted upon as a piece of evidence as it is highly doubtful that the accused might have made the same. Rather, the fabrication of the summons Ex. PW11/E allegedly issued for the recording of the same is a grave circumstance to show that not only the above summons but the above statement of the accused were manufactured and fabricated by the DRI officers in their office while the accused was in their custody and his signatures obtained thereof.
NON EXAMINATION OF THE PUBLIC WITNESSES AND EXAMINATION OF ONLY THE OFFICIAL WITNESSES
62. There is no doubt with regard to the fact that the joining or examination of the public witnesses may not always be necessary and a conviction can be based on the SC NO. 18A/08 DRI Vs Manjinder Singh 42 statement of official witnesses alone, as has been argued by Ld SPP for DRI and as also held in a number of pronouncements, but it is also well settled that for conviction in such a case, the testimony of the official witnesses should be consistent and corroborative and should not suffer from any inconsistencies, contradictions or doubts etc. However, in this case, the depositions made by the IO/PW11 Sh K. Shashi Bhushan are not found to be corroborated by any satisfactory peace of evidence and there are also serious contradictions in the evidence of the prosecution led on record, besides the fabrication of documents as discussed above.
63. As per the prosecution case, two public witnesses namely Sh Raju and Sh Ashok were also joined in this case, prior to the DRI team has left their office for the spot, but the prosecution has failed to examine the above witnesses on record and they both were dropped by them on 14.03.2011 as it was consistently being reported that they were not existing/traceable at their given addresses. Though, the subsequent non examination of the public witnesses by the prosecution could not be held to be fatal for their case, but for this the court should be convinced that any such public witnesses were in-fact joined during the proceedings or the had actually participated in and witnessed the proceedings.
64. Though some of the documents like the notice U/s SC NO. 18A/08 DRI Vs Manjinder Singh 43 50 of the NDPS Act Ex. PW11/B, and panchnama Ex. PW11/A and the documents Ex. PW11/A1 to A5 recovered at the spot are stated to be bearing the signatures of the above two witnesses, but on a careful perusal of such signatures appearing on these documents some material differences are noted in the word structures of the said signatures, which make the very existence or presence of such witnesses at the spot to be doubtful. Again, it is not clear from the evidence as to from where and how these witnesses had arrived or were called in the DRI office as according to the IO/PW11, the above two witnesses were called by Sh N.D. Azad and he had met the above public witnesses in the office first time at about 7.30/8.00 PM only, but PW9 Sh N.D. Azad has not made any such depositions regarding the calling of the above public witnesses by him or even giving directions to any of his subordinate officers to call the said witnesses. It is the admitted case of the prosecution/DRI that no identity or other document pertaining to the above witnesses was taken by the IO/PW11 at that time or even subsequently. No statements of the two public witnesses recorded U/s 67 of the NDPS Act are also a part of record. The IO/PW11 has also not been able to give any description or tell any identification mark of the above two witnesses and hence, in view of the above, there are serious doubts regarding the claims being made by the prosecution even regarding the joining of any such public witnesses.
SC NO. 18A/08 DRI Vs Manjinder Singh 44 PREPARATION OF SITE PLAN AND AUTHENTICITY THEREOF
65. One site plan is also a part of the judicial record and has been brought on record as Ex. PW11/A6 during the cross examination of the IO/PW11 as though it was not proved by the prosecution witnesses, but it was put to the IO/PW11 and has been exhibited as such by the defence. However, since the document belongs to the prosecution, it can be used and read against the prosecution. As per the depositions made by the IO/PW11, this site plan was prepared at the spot, but he has not been able to tell whether it was prepared by him or any other officer of DRI. Since no other officer of DRI who was a part of the raiding team is present before the court, as discussed above, this document could have only been prepared by the IO/PW11 if the story of the prosecution was correct. However, the manipulation of the things and documents is also apparent from this document as the document is titled as 'Site Map of Place of Interception' and is dated 06.10.2007, but strangely enough the signatures of the IO/PW11, the accused as well as of the alleged two public witnesses appearing on this document are all having date 07.10.2007 written below their signatures, whereas this document should have been signed only at the same time of preparation thereof, i.e. at the spot on 06.10.2007.
SC NO. 18A/08 DRI Vs Manjinder Singh
45
ISSUANCE OF SEAL OF DRI
66. As per the evidence brought on record, PW10 Sh Sanjay Kumar was the custodian of the above seal of DRI used in this case and he had issued the above seal prior to the seizure of the above contraband substance while making an entry at serial no. 53 of the seal movement register and a copy of the relevant entry of the above register has also been proved on record as Ex PW10/A. According to this witness, the above seal was issued by him to the IO/PW11 Sh K. Shashi Bhushan, whereas the IO/PW11 has stated that the seal was never issued to or taken by him and rather the same was taken and also returned by PW7 Sh Devender Singh. However, PW7 has not corroborated the above claim of the IO/PW11 and has specifically stated that he had not taken the above seal from PW10 Sh Sanjay Kumar. The above contradiction in the prosecution story is a material contradiction and it shows that the things had not happened the way in which the same are being projected before this court.
67. A perusal of the above entry Ex PW10/A shows that the above seal was issued on 06.10.2007 at about 4:00 pm and the date and time of its return is shown to be 07.10.2007 at 12:00 noon. The signatures of the IO/PW11 appear against the receiving of the above seal and if the depositions of the IO/PW11 regarding the non issuance of the above seal to him are believed, the authenticity of SC NO. 18A/08 DRI Vs Manjinder Singh 46 the above document also comes under serious clouds. Again, it has not been clarified on record as to who had put his signatures against the entry pertaining to the return of the above seal as both the above signatures put in the above entry at the time of issuance and return of the above seal are different signatures. Hence, there is force in the argument of the Ld. defence counsel that the above document was also subsequently manipulated to suit the needs of the prosecution case and it did not come into existence prior to the seizure of the above contraband substance, which in-turn again affects the credibility of the whole prosecution evidence.
CONSTITUTION OF THE RAIDING TEAM
68. As discussed above, there are serious doubts regarding the constitution of the above raiding team of DRI or as to who were the officers of DRI who were the part of the above raiding team. The IO/PW11 has claimed that PW1 Sh Diwakar Joshi and PW7 Sh Devender Singh were also the members of the raiding team and they had also visited the spot for the interception of the accused, but both the above witnesses in their chief examinations have not uttered even a single word on this aspect and have only deposed about some other parts of the prosecution story. Though, PW7 in his cross examination has tried to improve upon and to project himself as a member of the above team, but his above claim has already been doubted SC NO. 18A/08 DRI Vs Manjinder Singh 47 and discarded by this court and besides the reasons discussed above, there are also some other reasons to disbelief the same.
69. According to the IO/PW11, PW7 Sh Devender Singh has assisted him in the entire search, sampling and sealing work and PW7 had also prepared the panchnama, but as per PW7 though he was with the team members till the proceedings of seizure were completed, but he has done nothing and he was only assisting the team members. He has not made any claim regarding physically helping the IO/PW11 in the above sample and sealing work nor he claims to have prepared or typed the panchnama. He has also volunteered in his statement that he did not serve the notice U/s 50 of the NDPS Act nor he had prepared the above panchnama. The IO/PW11 has also claimed that no Gazetted Officer was called by him at the time of the above proceedings as Sh N. D. Azad, a Gazetted officer of DRI, was already present at the time of the above proceedings, but the deposition made by Sh N. D. Azad in this court did not even suggest that he was physically present at the time of conduction of the above panchnama proceedings and he is only making a vague claim of supervising the entire investigation, which cannot be substantiated by any satisfactory evidence. Hence, the very constitution of the above raiding team has become doubtful from the above depositions made by the above responsible witnesses of the DRI, who were entrusted with SC NO. 18A/08 DRI Vs Manjinder Singh 48 the task of taking this prosecution towards conviction.
EVIDENCE REGARDING MOBILE PHONE NUMBER 9855716003 FOUND IN POSSESSION OF THE ACCUSED
70. As per the evidence brought on record in the form of depositions made on record by some of the witnesses, i.e. PW14 Sh Surjeet Singh, PW15 Sh Kanav Mahendru, PW16 Sh Sanjeev Kumar Sharma, PW17 Sh Vishal Batra and PW18 Sh Deep Kumar, it stands proved on record that the above mobile number of M/s Idea Cellular Ltd was got issued in the name of PW16 Sh Sanjeev Kumar Sharma on the basis of his fake identity proof. However, there is no other document or evidence on record to show the location of the accused at the time of his alleged interception in this case or to corroborate the case of the prosecution that the accused was apprehended with the above mobile from the above spot as the sole depositions made by the IO/PW11 in this regard are not found to be convincing. No cell location chart or record pertaining to the above mobile phone has also been proved on record by the prosecution which could have corroborated their version regarding the apprehension of the accused from the above place. Though, some call detail record of the above mobile phone has been exhibited on record during the examination of PW14 as Ex. PW14/D, but the IO/PW11 or any other officer of DRI had not taken any pains during the investigation to obtain any certified copies of the above SC NO. 18A/08 DRI Vs Manjinder Singh 49 record or to get preserved or stored the original record thereof and by the time PW14 was summoned to depose regarding the above record, the original record of the above call details pertaining to the relevant period were stated to be not available with the company, having not been stored/preserved by them as per the DOT guidelines as they were bound to preserve the records only up-to a period of two years. Moreover, no certificate U/s 65 of the Evidence Act has also been produced on record regarding the admissibility or authenticity thereof. Hence, the depositions made by the above witnesses as well as the records proved by the said witnesses are not found to be of any help to the case of the prosecution to secure the conviction of the accused.
DEFENCE OF THE ACCUSED
71. The defence of the accused as set up during the course of trial and during the recording of his statement U/s 313 Cr.P.C. is that he was falsely implicated in this case by the DRI officers and the above heroin was planted upon him. However, the accused has not come up with any specific plea till that time as to how and from where he was picked up by the DRI officers and involved in this case and it is only during the course of arguments that a plea was raised that he was picked up from Ludhiana and subsequently implicated in this case falsely after planting the above heroin upon him.
SC NO. 18A/08 DRI Vs Manjinder Singh 50
72. Ld defence counsels has also drawn the attention of this court towards the contents of the report U/s 57 of the NDPS Act Ex. PW9/E wherein it is mentioned that after his arrest in this case, the accused was produced before the District Magistrate, Ludhiana, who remanded him to J/C. However, the above contents and some other material being pointed out in this case only appears to be the result of some typographical and clerical mistake as is also evident from the contents of the above document Ex. PW9/E itself that the accused was intercepted from the above HP Petrol Pump, Mahipal Pur, Near Radisson Hotel, New Delhi on the above date and time.
73. Further, though the contents of the complaint have also been pointed out by Ld defence counsels to raise an argument that as per the complaint, all the proceedings were done by PW7 Sh Devender Singh, but the same also appear to be due to some mistake on the part of the Ld SPP for DRI while drafting the said complaint and it cannot be given much relevance.
74. Hence, though the defence of the accused as raised in this case is a very weak defence, but even then the argument raised by Ld SPP for DRI cannot be accepted and the accused cannot be held guilty and cannot be convicted in this case simply because he has failed to bring on record some substantial defence as the evidence led by the prosecution on record regarding the recovery of SC NO. 18A/08 DRI Vs Manjinder Singh 51 the above contraband substance from him itself is not found to be convincing and trustworthy.
RECOVERY OF THE CURRENCY AMOUNT OF RS. 1,98,000/- FROM THE POSSESSION OF THE ACCUSED AND THE WEIGHT OF THE CONTRABAND SUBSTANCE
75. It is an argument of Ld SPP for DRI that a huge currency amount of Rs. 1,98,000/- has been recovered from the possession of the accused, hence the case of the prosecution should be believed as this currency amount should not have been planted upon the accused by the DRI officers from their own pocket. He has also argued that even the plantation of the above heroin upon the accused is not possible due to the fact that the heroin recovered in this case was about 2 kg and had valued in crores.
76. As already discussed above, the recovery of the above heroin from the possession of the accused seems to be doubtful as the evidence led on record is not consisting and corroborating and rather the serious discrepancies and manipulations have been observed in the prosecution case and documents brought on the record which make the very apprehension of the accused from the above place with heroin to be doubtful. Even the above amount of Rs. 1,98,000/- involved in this case is not sufficient to fix the responsibility of the accused as a culprit in this case as when the evidence regarding the recovery of SC NO. 18A/08 DRI Vs Manjinder Singh 52 heroin from the possession of accused is being disbelieved, there is no reason as to why the evidence regarding the recovery of the above currency amount from him should be believed. However, it is a different thing that the accused during the course of trial and even during the recording of his statement U/s 313 Cr.P.C. has not claimed the above currency amount to be belonging to him and hence the same may be liable to confiscation under the NDPS Act.
77. The judgments in cases State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, CBI Vs. Ashiq Hussain Faktoo & Ors 2003 (2) JCC 316 and State of Punjab Vs. Ramdev Singh 2004 (1) CC Cases (SC) 23 being relied upon by the prosecution on the point of huge recovery of the contraband substance are held to be not applicable in this case as neither the above discrepancies and manipulations of documents of the prosecution can be termed as minor nor the evidence led of record is found to be convincing and trustworthy.
PRESUMPTIONS OF SECTIONS 35 & 54 OF THE NDPS ACT
78. The next contention of Ld SPP for DRI is that since the accused has been found to be in possession of the above contraband substance as per the prosecution case, the presumption of a culpable mental state in terms of Section 35 of the NDPS Act is available to the SC NO. 18A/08 DRI Vs Manjinder Singh 53 prosecution against him and further in terms of the provisions of Section 54 of the above said Act, he shall be presumed to have committed an offence under this Act as he has failed to account for or explain his possession of the above contraband substance. It has been argued that the onus of proving his innocence lied upon the accused in view of the evidence led on record regarding the recovery of the above contraband substance from his possession. Judgment in case Pawan Mehta Vs. State 2002 Drugs Cases 183 has also been relied upon by him in this regard.
79. However, the above arguments and submissions being made by Ld SPP for DRI are without any merits as the above presumptions contained in the above sections can come into operation only when the evidence led by the prosecution on record regarding the recovery of such contraband substance from the possession of the accused is convincing and trustworthy and these presumptions cannot be resorted to if the evidence regarding recovery of possession is doubtful or under serious clouds as in the present case. Reference in this regard can be made to the celebrated case of Noor Aga Vs State of Punjab & Anr. 2008(3) JCC (Narcotics) 135, wherein the following observations were made by the Hon'ble Supreme Court:-
87. "Section 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on SC NO. 18A/08 DRI Vs Manjinder Singh 54 the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt"
but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
DEPOSIT OF CASE PROPERTY IN VALUABLE GODOWN
80. Besides the above, some other discrepancies and lacunaes in the prosecution story have also been observed, which though independently would not have been much fatal for the prosecution case but have certainly added to its miseries in resulting into the acquittal of the accused when the same are considered with the other defects of the prosecution case. The relevant entry of the valuable godown register has not been proved on record by the prosecution regarding the deposit of the sealed parcels of the case property in the valuable godown of the Customs House, though PW3 has stated that such an entry in the above register was made by him. As per PW3, the case SC NO. 18A/08 DRI Vs Manjinder Singh 55 property was deposited with him in the above godown by the IO/PW11 Sh K. Shashi Bhushan, whereas according to IO/PW11 he does not know as to where the case property was kept by Sh N. D. Azad after he had deposited the same with Sh N. D. Azad and he has also stated that he does not remember whether he had again collected the case property and deposited it in the valuable godown at any stage of the investigation. He also went on to volunteer that he was aware that the case property was deposited in the valuable godown by Sh Devender Singh/PW7. The above contradictions in the prosecution evidence and the non production the valuable godown register has the result of not proving an important and vital link of the prosecution story regarding the safe handing of the case property.
81. In view of the above discussion, it is held that the prosecution has miserably failed to prove its charge and the guilt of the accused for the offences punishable U/s 21(c) of the NDPS Act. It is found that charge for the offence U/s 27A of the above said Act was also framed against the accused which pertains to indulging in financing, directly or indirectly any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of Section 2 of the said Act or harbouring any person engaged in any of the aforesaid activities. No evidence is also found to be there to substantiate the said charge. The accused is, therefore, acquitted of the above charges. Let he be released from custody in this case if he is not SC NO. 18A/08 DRI Vs Manjinder Singh 56 wanted to be detained in any other case.
82. The case property, i.e. the above contraband substance, be also confiscated 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 any appeal to be filed against this judgment.
A bond U/s 437A Cr.P.C. on behalf of the convict has already been furnished on record. Hence, let the case file be consigned to record room.
Announced in the open
court on 14.02.2013 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC NO. 18A/08 DRI Vs Manjinder Singh