Delhi District Court
Ncb vs . Hamidullah And Ors. on 22 November, 2012
NCB Vs. Hamidullah and Ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 02/11
ID No. 02403R0002572011
Narcotics Control Bureau
Through Sandeep Kumar Sharma,
Intelligence Officer, NCB, New Delhi
Versus
1) Hamidullah
S/o Sh. Fazlul Haq
R/o Kabul De Afghanan,
Kabul, Afghanistan
2) Rahis Abdul Wahid,
S/o Sh. Makhdom Mohd. Esa,
R/o 1709A/4, Gobind Puri Extension
Kalkaji, New Delhi 110 019
Date of Institution : 12.01.2011
Judgment reserved on : 19.10.2012
Date of pronouncement : 22.11.2012
JUDGMENT
1. The Narcotics Control Bureau (hereinafter referred to as NCB) through its Intelligence officer (IO) Sandeep Kumar Sharma, has filed the present complaint against the aforementioned accused persons u/s 21 SC No.02/11 page 1 of 79 NCB Vs. Hamidullah and Ors.
(c), 23 (c), 28 & 29 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as the NDPS Act).
2. Briefly stated the averments made in the complaint filed against the accused persons are as follows:
(a) A proposal was received from the Deputy Minister of Counter Narcotics, Islamic Republic of Afghanistan regarding transferring of 4 kg. of heroin in two suitcases through Kabul International Air port as a controlled delivery to India by two confidential sources of Afghanistan. The competent authority u/s 50 A of the NDPS Act i.e. the Director General, NCB vide its letter dated 14/7/2010 accorded the sanction for undertaking the controlled delivery in India for catching the alleged recipients. The then officiating Director General, NCB, Yogesh Deshmukh intimated and discussed the said operation with the Superintendent, NCB Sh. Y.R. Yadav, who then on the instructions of Yogesh Deshmukh, issued search authorisation in favour of Akhilesh Kumar Mishra, IO to carry out the search of two suitcases that were being brought to India by the two confidential sources of Afghanistan on 16/7/2010.
(b) On 16/7/2010 at 1140 hours Akhilesh Kumar Mishra collected the seal of NARCOTIC CONTROL BUREAU DZU3 from Y.R. Yadav, Superintendent and at 1230 hours a raiding team, consisting of Akhilesh SC No.02/11 page 2 of 79 NCB Vs. Hamidullah and Ors.
Kumar Mishra, S. Mandal, Pankaj Dwivedi, G.S.Bhinder, Sanjay Rawat, S.K. Sharma, all IOs, Sepoy Ram Niwas, Sepoy Maninder and Sepoy Dinesh and Sudhir Kumar left the NCB, DZU office under the overall supervision of Yogesh Deshmukh and Y.R. Yadav in three official vehicles being driven by drivers Rajbir, Malkeet and Jai Prakash. After reaching the IGI airport Terminal No. 2 Arrival hall, surveillance was mounted inside and outside the airport. The flight carrying the confidential sources namely PAM Airflight no. PM 219 from Kabul landed at the airport at about 0430 p.m. Two undercover agents namely Wais Mohd. and Mujibu Ur Rehman accompanying the secret informers were met inside the airport by Y.R. Yadav Superintendent and the said undercover agents disclosed that some person was to receive them outside the airport and to take delivery of the suitcases and that if no one would come to receive them at the airport, they were instructed to stay in a nearby hotel.
(c) Thereafter the NCB team followed the undercover agents outside the airport but no person came to receive the said agents or to take the delivery of the heroin. After sometime the agents along with their sources took a taxi which was followed by the NCB raiding team. The agents and the sources then checked into the Hotel Saptgiri, Room no. 212 at first floor, Mahipalpur, near Radisson Hotel. At about 9:45 p.m. an SC No.02/11 page 3 of 79 NCB Vs. Hamidullah and Ors.
Afghani having a muffler around his neck wearing pathani suit approached the reception and asked about the undercover agents and thereafter went to room no. 212 and after a while came out to the ground floor reception accompanied by one of the sources who had come to see him off. According to the assertions made in the complaint, this Afghani looking person had also been sighted by the NCB officers at the arrival hall of the airport when the undercover agents were waiting for the person who had to take the delivery of the suitcases.
(d) After the informer went back to his room, the NCB team then intercepted that person who revealed his name as Hamidullah. He was asked about his purpose of visit. On enquiry, he revealed that he had come to take delivery of some suitcases from the persons who were staying in room no. 212 of the hotel and that he was going back to get money to pay those persons against the bags. Hamidullah was then taken back to the room no. 212 where the undercover agents were found present and Hamidullah pointed towards the two bags lying in the corner of the room as the ones that he had to make the payment for.
(e) The search authorisation was then shown to the accused as well as to the undercover agents and they were informed that the NCB team is suspecting that the suitcases contained heroin and that Hamidullah has a legal right to insist that the inspection of the suitcases be done in the SC No.02/11 page 4 of 79 NCB Vs. Hamidullah and Ors.
presence of a Magistrate or a Gazetted Officer. Since Hamidullah refused to exercise the said right, the search of two suitcases was then conducted and both the suitcases were found to contain clothes and miscellaneous articles. The walls of the suitcases were then checked for concealment and the bottom of the suitcases were then torn opened and found to conceal one black colour polythene each. Each of the polythene was then found to contain off white colour powder weighing 2 kg. Two samples A1, A2 and B1, B2 each of 5 gm. were taken out from the powder found in each of the polythenes. The samples and the remaining heroin were then converted into parcels and duly sealed with the seal of NARCOTICS CONTROL BUREAU DZU 3. The seizure memo and the test memo were also prepared. All the proceedings were concluded at about 0130 hours on 17/7/2010.
(f) G.S. Bhinder, IO then served summons u/s 67 NDPS Act upon the accused Hamidullah and instructed him to appear in the office of NCB forthwith. Pursuant to the said summons, accused Hamidullah voluntarily accompanied the NCB officials to the office of the NCB.
(g) On reaching the NCB office, the case property was deposited with the malkhana incharge and the seal was also returned to Y.R. Yadav. Accused Hamidullah then tendered his statement u/s 67 NDPS Act before G.S. Bhinder and the same was written by Pankaj Kumar Dwivedi on the SC No.02/11 page 5 of 79 NCB Vs. Hamidullah and Ors.
dictation of Hamidullah. In the said statement he disclosed that Rahis Wahid had instructed him to go to the airport and receive his guests. According to him, Abdul Wahid had also given him a telephone number of Afghanistan to collect information about the guests. He further stated that since the aforesaid persons came late outside the airport, suspecting that police or other agency might have intercepted them, he did not approach them at the airport and kept on watching them secretly. As per his statement he then made a call to Afghanistan from where he was directed to follow them but that he however went to accused Rahis Wahid and informed him that he did not meet the guests. Rahis Wahid then told him that on his mobile 7503704560 a person would inform him in which hotel the guests were staying and that thereafter he did receive a call on his mobile phone and was informed that the guests are staying in room no. 212 hotel Saptgiri, Mahipalpur. He further stated that he was then taken by accused no. 2 Rahis Wahid in his car to the said hotel who also gave him 100 USD and instructed him to bring the aforesaid guests to his hotel namely Central Guest House Nizamuddin. Accordingly he went to room no.212, met the guest with earlier fixed code "kya Kabul ka sim laye ho" and made him talk on his mobile to Afghanistan. He then told them to accompany him with the suitcases to the hotel but the guest refused and asked him to bring Rs.10,00,000/ for the delivery of the SC No.02/11 page 6 of 79 NCB Vs. Hamidullah and Ors.
suitcases. He in his statement also disclosed the residential and shop address of Rahis Abdul Wahid.
(h) Consequent to the recovery of 4 kg. of heroin and the disclosure of facts by accused Hamidullah, he was then arrested by the IO G.S. Bhinder for having committed offence u/s 21, 23 and 29 of the NDPS Act and then produced before the court on 18/7/2010 and remanded to judicial custody.
(i) On 17/7/2010, Sanjay Rawat, IO issued summons u/s 67 NDPS Act to both Mujibul Rehman and Wias Mohd, pursuant to which the said agents gave their statements before the NCB officials.
(j) Y.R. Yadav, Superintendent was informed about the arrest of accused Hamidullah who then forwarded the information of the arrest of Hamdiullah to the Ministry of External Affairs.
(k) On 19/7/2010 the test memos along with samples were sent to the CRCL and thereafter on 27/7/2010 S.K. Sharma submitted a report before Y.R. Yadav that as per his surveillance accused Abdul Wahid is likely to come to his house and therefore Y.R. Yadav issued a search authorisation u/s 41 (2) of the NDPS Act in favour of Akhilesh Mishra to search of the residence of Abdul Wahid. Akhilesh Mishra then with Y.R. Yadav and other NCB officials went to the residence of Abdul Wahid at Govind Puri Extension where he was not found available. Thereafter in SC No.02/11 page 7 of 79 NCB Vs. Hamidullah and Ors.
presence of his wife his house was searched but nothing incriminating was found therein.
(l) Summons u/s 67 of the NDPS Act were then issued to accused no. 2 on 27/7/2010 directing him to appear in NCB office forthwith (it is not mentioned in the complaint where was the said summons served upon him). Abdul Wahid then appeared in the NCB office and tendered a statement inter alia disclosing therein that he had been in the business of trafficking of drugs from 1980 onwards and that infact he was also arrested in one or two cases of NDPS Act even earlier on being found in possession of 7 kg. of smack. After disclosing the said facts he however requested that he needs rest.
(m) Another summons were then issued u/s 67 of NDPS Act upon him and he was directed to again appear in person for his further examination at 1400 hours on 28/7/2010. Pursuant to the said summons he again appeared before the NCB officials and thereafter gave a statement admitting his complicity in the offence in the present case. He categorically stated that he had instructed accused Hamidullah to go to the hotel Saptgiri to collect the suitcases in which 4 kg. of heroin was recovered.
(n) Permission was then taken from the Court to confront accused Hamidullah with accused Abdul Wahid and after the grant of said SC No.02/11 page 8 of 79 NCB Vs. Hamidullah and Ors.
permission accused Hamidullah was brought to the NCB office and confronted with accused Abdul Wahid. The accused no. 1 then again gave another statement identifying accused Abdul Wahid as the person who had instructed him to bring the suitcases from hotel Saptgiri.
(o) The accused persons were also then confronted with call detail records of mobile phones having numbers 7503704560 and 9582076006 which had been recovered from them respectively and their signatures were taken on the said call detail records. The said call detail records revealed that both the accused persons were being controlled from Afghanistan and were taking directions from the traffickers at Afghanistan.
(p) On the basis of the material recorded during investigation accused Abdul Wahid was also arrested and during further investigation on 27/7/2010 the persons namely, Chander Prakash and Karim were also summoned and their statements were also recorded u/s 67 of the NDPS Act. Y.R. Yadav, Superintendent also wrote a letter to the Regional Passport Office with respect to the passport issued to accused Abdul Wahid. The counterpart of NCB, Delhi i.e. Afghanistan officials were informed about the arrest of the accused persons and they were also informed about the call detail records. The Afghanistan authorities were requested to identify the traffickers in Afghanistan and inform the NCB, SC No.02/11 page 9 of 79 NCB Vs. Hamidullah and Ors.
Delhi. The Superintendent of Police, EOU, New Delhi was also enquired with respect to the earlier case of accused Abdul Wahid . Consequent to receiving the report from the CRCL that the seized substance was heroin only, the present complaint was filed.
3. On the basis of material on record, charges were framed by the Ld. Predecessor of this court vide order dated 12/5/2011, against the accused persons for having criminally conspired with a person sitting at Palawan, Afghanistan to import 4 kg. of heroin in two suitcases from Kabul into India and it was held in the said order that prima facie the accused persons are liable to be tried for the offences punishable under section 29 r.w.s 23 (c) r.w.s. 28 of the NDPS Act. In order to prove the said charges against the accused persons, Hamidullah and Rahis Abdul Wahid, the prosecution has examined 19 witnesses in all.
4. PW8 Sh. Akhilesh Kumar Mishra, PW4 Sh. Sanjay Rawat, PW9 Sh. G.S. Bhinder, PW16 Sh. Sandeep Kumar Sharma, PW17 Sh. Pankaj Kumar Dwivedi and PW3 Sh. Y.R. Yadav, all Intelligence Officers and the Superintendent NCB respectively, all being members of the raiding team have deposed on similar lines and have reiterated the assertions made in the complaint. The search authorisation warrant issued by PW3 in favour of PW8 has been exhibited as Ex. PW3/1. The SC No.02/11 page 10 of 79 NCB Vs. Hamidullah and Ors.
relevant pages of the Seal Movement Register vide which the departmental seal is deposed to have been issued by PW3 in favour of PW8 has been exhibited as Ex. PW3/2. The seizure memo prepared by this IO has been exhibited as Ex.PW8/1. The copy of the test memo has been exhibited as Ex. PW8/2. As per the depositions of PW9 Sh. G.S. Bhinder and PW17 Pankaj Dwivedi, the summons issued to both the accused persons u/s 67 NDPS Act and the statements tendered by them have also been duly exhibited. The seizure report and arrest report of the accused persons u/s 57 of the NDPS Act put up before PW3 have been exhibited as Ex.PW3/4, ExPW3/11and ExPW3/10 respectively. The search authorisation warrant issued by PW3 in favour of PW8 for the search of the house of accused Abdul Wahid at Kalkaji has been exhibited as Ex. PW3/7 and the seizure memo prepared in respect of certain documents seized from the said house has been exhibited as Ex.PW8/4.
5. PW1 Sh. Yogesh Deshmukh has inter alia deposed that he was the Incharge Directorate General, NCB for the period 12/7/2010 to 17/10/2010 and that he had accorded sanction u/s 50 A of the NDPS Act for undertaking the controlled delivery from Afghanistan through Govt. functionaries. The said sanction has been exhibited by this witness as SC No.02/11 page 11 of 79 NCB Vs. Hamidullah and Ors.
ExPW1/2. He has also inter alia deposed that he had instructed Sh. Y.R. Yadav, Superintendent to take necessary action in this regard and that on 16/7/2010 a team of NCB officials was instructed to go to the Delhi Airport and take necessary action. According to the deposition of this witness he was also present along with the raiding team at the Airport.
6. PW2 Sh. Vijay Kumar Shahasane, Assistant Director (Operations) NCB has merely deposed that on 3/8/2010 he had forwarded the issuance of LOC against accused Rahis Abdul Wahid to the Director Zonal, NCB.
7. PW5 Ms. Meenakshi Gupta and PW6 Sh. Ajay Sharma, Chemical Examiners have proved the chemical analysis report with respect to the samples A1 and B1 deposited with the C.R.C.L. and the same has been exhibited as Ex. PW5/1. As per their depositions, the samples in question were examined by PW6 Sh. Ajay Sharma under the supervision of PW5 Ms. Meenakshi Gupta and had tested positive for diacetylmorphine.
8. PW7 Sh. Rajbir Singh, Sepoy has deposed that on 16/7/2010 he was driver of maruti van No. DL9CQ 3009 and had gone to IGI airport from his office at about 1240 p.m. He has further deposed that at about 4:45 p.m. he had followed a taxi with the NCB officials and had reached at Saptagiri hotel at NH8. This witness has further deposed that on SC No.02/11 page 12 of 79 NCB Vs. Hamidullah and Ors.
19/7/2010 he had carried the sample packets to the C.R.C.L. on the instructions of Sh. Y.R. Kumar, Superintendent, NCB. The acknowledgment issued in his name by C.R.C.L. has been exhibited as Ex. PW3/13.
9. PW10 Sh. Shishir Malhotra, Nodal Officer from Aircel Ltd. has inter alia deposed that during investigation, on the request by NCB ExPW10/B, the computerised record of the phone having cell no. 7503704560 had been given by the Aircel Ltd. to the NCB.
10. PW11 Sh. Israr Babu, Nodal Officer from Vodafone Pvt. Ltd. has produced before the court the call detail records of the telephone number 9582076006 for the period 1/7/2010 to 28/7/2010 and the same have been exhibited as ExPW11/1. The said witness has also produced the customer application forms with respect to the said number and as per the said forms ExPW11/3 and ExPW11/4, the aforementioned phone was subscribed in the name of one Janinder Kumar.
11. PW12 Sh. Raj Singh, Assistant Passport Officer, Regional Passport Office, Bhikaji Cama Place has produced before the court certain passport records and the correspondence entered between the NCB and the passport office with respect to accused Rais Abdul Wahid and the same have been exhibited as ExPW3/17, ExPW12/1 and SC No.02/11 page 13 of 79 NCB Vs. Hamidullah and Ors.
ExPW12/2.
12. As per the deposition of PW13 Karim, he was working as a helper in the house of the accused Rais Abdul Wahid in the year 2011 and that sometime in the year 2011 at about 6:00 p.m., 56 persons had come to the house of his employer and had asked the wife of his employer for her passport and had also searched the house. He has also stated that he was instructed by the said persons that he has to come to the office of the NCB at R.K. Puram to give a statement. As per the deposition of this witness he had been asked about his employment with the accused and he had also gone to the NCB office and tendered his statement ExPW8/7.
13. PW14 Sh. Chandra Prakash Chhabra, is the public witness who is stated to have witnessed the house search proceedings at H.No. 1709A/4, Govindpuri Extension, Kalkaji, New Delhi. He has supported the version put forward by the Investigating Officer and has identified his signatures on the search authorisation ExPW3/7, search memo ExPW8/4. He has also deposed that in pursuance of the summons Ex. PW8/8 served upon him he had appeared in the office of the NCB and had tendered the statement Ex. PW4/4.
14. PW15 Sh. C.S. Rai, IO NCB has inter alia deposed that he had delivered the summons u/s 67 of the NDPS Act to accused Rais Abdul Wahid at his shop in Nizamuddin and the said summons have been SC No.02/11 page 14 of 79 NCB Vs. Hamidullah and Ors.
exhibited as ExPW15/1.
15. PW18 Sh. Asif Jalal, Superintendent of Police, CBI has inter alia deposed that on the receipt of an inquiry from the NCB, he had informed them that the accused Abdul Wahid was also earlier involved in one CBI case registered in 1983. The communication exchanged between the CBI and the NCB has been exhibited through the deposition of this witness as ExPW3/15, ExPW3/16 and ExPW18/1.
16. PW19 Sh. Wais Mohd. is the undercover agent from Afghanistan and he has inter alia deposed that on 16/7/2010 he along with his partner Mujib ur Rehman and two other secret informers had come to New Delhi for conducting the controlled delivery of 4 kg. of heroin. He has more or less deposed on similar lines as the other members of raiding team. In particular he has deposed that after the secret informers and he and his partner had checked in hotel Saptgiri, one of the secret informers told him that he is going out of the hotel to make a call from a PCO to the person who was supposed to take the delivery of the contraband. He has further deposed that the secret informer after making the said call came back and informed him that he had given the address of the hotel, room no. to the said person and had also instructed him to bring the money for the contraband. This witness has also identified the accused Hamidullah as the Afghani person who had come to Saptgiri Hotel and was SC No.02/11 page 15 of 79 NCB Vs. Hamidullah and Ors.
apprehended by the NCB officials. As per his deposition he had witnessed the entire search and seizure proceedings and that on 19/7/2010 he and his partner had also gone to the NCB office for tendering their statements. The statement tendered by this witness and that tendered by his partner Mujib ur Rehman have been exhibited as ExPW4/2 and ExPW8/3 respectively. He has also stated that since his partner Mujib Ur Rehman did not know English, he (witness) had typed his statement as per his dictation.
17. The entire incriminating evidence was put to both the accused persons and their statements were recorded u/s 313 Cr.PC. In the said statements, both the accused persons have stated that they have been falsely implicated and that they were forced to give their statements u/s 67 NDPS Act admitting their guilt therein.
18. I have heard Ld. SPP Sh. Rajesh Manchanda and the Ld. Defence counsels Sh. S.S. Dass and Sh. Y.K. Saxena. Written submissions have also been filed on record by the said Ld. Counsels. According to Ld. SPP, the prosecution has been able to prove by leading cogent evidence that both the accused persons Hamidullah and Rais Abdul Wahid were associated with the delivery of the contraband. He has pointed out that not only the NCB officials but PW19 Wais Mohammad, an official of US embassy in Kabul has clearly deposed that it was accused Hamidullah SC No.02/11 page 16 of 79 NCB Vs. Hamidullah and Ors.
who had initially come to the airport and had thereafter come to hotel Saptgiri to take the delivery of the contraband in question. It is also the contention of Ld. SPP that apart from the deposition of prosecution witnesses, the statements tendered by the accused persons u/s 67 NDPS Act also proves their complicity in the present case.
19. Ld. Defence Counsels Sh. S.S. Dass and Sh. Y.K. Saxena have however submitted that the entire case of the prosecution is concocted and that the discrepancies in the deposition of the prosecution witnesses amply prove that both the accused persons have been falsely implicated in this case. On behalf of accused Abdul Wahid, Ld. Counsel Sh. Dass has stated that none of the prosecution witnesses have deposed even in their examination in chief that it was accused Abdul Wahid who had come to hotel Saptgiri to take the delivery of the contraband and his contention is that merely on the basis of the statements tendered by the accused persons u/s 67 NDPS Act, the accused Abdul Wahid cannot be at all convicted in this case. He has also submitted that the confessional statement of the coaccused Hamidullah cannot be used as substantive evidence against accused Abdul Wahid in view of the judgment delivered by the Hon'ble Supreme Court in the case titled as U.O.I. vs. Bal Mukund & Ors. 2009 (2) JCC (Narcotics) 76, wherein it has been made clear by the Hon'ble Supreme Court that confessional statement of SC No.02/11 page 17 of 79 NCB Vs. Hamidullah and Ors.
a coaccused cannot be used as substantive evidence against other co accused in the absence of independent corroboration and he therefore submits that since the prosecution has not succeeded in bringing on record, corroborative evidence against accused Rais Abdul Wahid , that it was at his instance that Hamidullah had come to hotel Saptgiri to take delivery of the contraband, the mere statement of accused Hamidullah cannot be used as substantive evidence against accused Rais Abdul Wahid. Ld. Counsel Sh. Dass has also submitted that even otherwise the answers given by the prosecution witnesses during their cross examination amply show that the purported statements of the accused persons recorded u/s 67 NDPS Act are not their voluntary statements and his contention is that therefore no reliance can be placed upon the same. In this regard he has relied upon the judgment of the Hon'ble Supreme Court NoorAga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135. Ld. Defence counsel Sh. S.S. Das has also pointed out that though the prosecution has tried to project before this court that the accused Abdul Wahid was willfully concealing himself and evading to join the investigation and that despite the efforts of the prosecution the summons u/s 67 NDPS Act could not be served upon him before 27/7/2010 and that infact a Look Out Circular (LOC) was also issued against him, the evidence on record shows that even the said contention SC No.02/11 page 18 of 79 NCB Vs. Hamidullah and Ors.
of the prosecution is incorrect. He has pointed out that when PW3 Y.R. Yadav was cross examined in this regard, though he deposed that during the period 18/7/2010 to 26/7/2010 the IO S.K.Sharma had been deputed to keep surveillance on the residence of Abdul Wahid and that he had made a report with respect to the same, when he was asked by the defence to point out the said report from the judicial record, he admitted that there was no such report filed. Ld. Defence Counsel Sh. S.S. Dass has further contended that both PW3 Y.R. Yadav & PW16 S.K. Sharma have admitted that no raid was conducted either at the residence of Abdul Wahid or his shop during the period 18/7/2010 to 26/7/2010 and that their mere deposition is that no activity/movement of accused Rais Abdul Wahid was noticed around his premises or his shop during the said period. According to the Ld. Counsel the aforementioned depositions therefore clearly show that there is no evidence produced by the prosecution on record to show that the accused Abdul Wahid was absconding. He has also pointed that, on the contrary, on behalf of the accused a certified copy of order sheet passed in suit no. 419/01 titled as Ashiya Begum & another vs. Abdul Wahid has been filed to show that accused Abdul Wahid had infact appeared in Tis Hazari Courts on 21/7/2010 and that therefore it cannot be believed at all that he was evading or was absconding. Ld. Defence Counsel has also submitted that SC No.02/11 page 19 of 79 NCB Vs. Hamidullah and Ors.
there is no reason given by the Investigating Agency as to why they did not allow the accused Hamidullah to leave the hotel Saptgiri and thereafter follow him to identify the person from whom he would have collected the money. According to Ld. Counsel the investigating agency could have easily nabbed Hamidullah after he had collected the suitcases. His submission is that the investigating agency merely wanted to have a scapegoat for an unsuccessful operation and therefore falsely implicated Abdul Wahid in this case. According to the Ld. Defence Counsel the aforementioned circumstances show that the investigating officials initially had no material whatsoever against the accused Abdul Wahid and that only after 910 days of the alleged apprehension of the accused Hamidullah did the investigating agency concoct the entire case against Abdul Wahid and forcibly picked him up from his shop and that is why the addresses of accused Abdul Wahid had to be squeezed in and interpolated in the purported statement of Hamidullah. He has also pointed out that though as per the prosecution Abdul Wahid had on his own appeared in the NCB office in the evening of 27/7/2010 after being served with the summons u/s 67 NDPS Act, their own witness PW17 has stated categorically that he had seen the accused Abdul Wahid in the office of NCB in the morning of 27/7/2010 and that this discrepancy belies the version of the prosecution. Apart from the aforementioned SC No.02/11 page 20 of 79 NCB Vs. Hamidullah and Ors.
contentions, in the written submissions filed, Ld. Defence Counsel has given in detail the various discrepancies in the deposition of the prosecution witnesses, which according to him throw a grave doubt on the case of the prosecution.
20. Sh. Y.K. Saxena, counsel for accused Hamidullah has inter alia made the following contentions:
(a) The prosecution has not placed any proposal or any correspondence from the Deputy Minister of Counter Narcotics, Islamic Republic of Afghanistan and therefore their mere averment that the present case is a case of controlled delivery cannot be believed. It has been contended that the terms and conditions or the modalities of the controlled delivery have not been disclosed by the prosecution either to the court or to the accused persons and that therefore the prosecution has deliberately withheld the material facts in this case and that therefore their case should not be believed. It is the contention of the defence counsel that as per the provisions of section 123 and 124 of the Evidence Act all official communication has to be placed before the court except those for which privilege has been claimed on the ground that disclosing the said communication will be against the interest of public at large and the in the present case there is not a whisper in the complaint or in the deposition of any of the prosecution witness that the communications received from the SC No.02/11 page 21 of 79 NCB Vs. Hamidullah and Ors.
Deputy Minister of Counter Narcotics are privileged documents.
(b) Even if it is assumed for the purpose of arguments that present is a case of controlled delivery, the provisions of section 50A of the NDPS Act have been violated in as much as no officer empowered or authorised u/s 50 of the NDPS Act has undertaken the controlled delivery.
(c) There has been no compliance of section 42(2) of the NDPS Act in as much as room no. 212 of Hotel Saptgiri was allegedly searched after 10.30 PM i.e. after the sun had set and that in the absence of any search authorization none of the NCB official had any right or authority to enter the said hotel room, which is not a public premises. It has been pointed out by the Ld. Defence counsel that Hon'ble Supreme Court in its judgment pronounced in the case titled as Mohinder Kumar vs. State of Panajim, Goa 1998(8) SCC 655 has held that a hotel room is not a public premises. It is also the contention of the defence counsel that the prosecution has not brought any credible evidence on record to show that room no.212 was in fact booked in the name of the undercover agent or secret sources and that since no hotel official has been produced in the witness box there is no reason for this court to believe that room no.212 had been booked by the secret informers/agents.
(d) Various contradictions in the evidence of the prosecution witnesses point out that neither the accused Hamidullah was present at the airport SC No.02/11 page 22 of 79 NCB Vs. Hamidullah and Ors.
nor in the room no.212 of hotel Saptgiri.
(e) No reliance can be placed upon the statement of accused Hamidullah allegedly tendered by him u/s 67 NDPS Act in as much as the same has not been recorded in the language known to the accused and that the crossexamination of PW Pankaj Dwivedi and G.S. Bhinder shows that they had written the statement on their own.
21. In rebuttal, Ld. Counsel Sh. Manchanda has submitted that as per the provisions of section 50A of the NDPS Act, the Director General of the NCB is authorized to undertake the controlled delivery or to authorize some other person on his behalf to do so. He has pointed out that PW Yogesh Deshmukh was the Officiating Director General NCB on 14.07.2010 and that vide Ex.PW1/2 Sh. Deshmukh had authorized the Zonal Director, NCB to take necessary action with respect to the controlled delivery and that further the Zonal Director had authorized Sh. Y.R. Yadav, Superintendent to undertake the controlled delivery. Ld. Counsel Sh. Manchanda has also submitted that there has been no contravention of section 42(2) NDPS Act, for the senior most officials of NCB were present in the hotel and that there was no requirement to issue search authorization in favour of any of the IO of the NCB. He has submitted that the officials present at the time of search were of the rank of gazetted officer and that even otherwise room no.212 that was SC No.02/11 page 23 of 79 NCB Vs. Hamidullah and Ors.
searched was the room booked for the secret agents themselves and that therefore there was no requirement of issuance of any search authorization for the said room. He has pointed out that the hotel bills of room no.212 have been duly proved by the prosecution and the said bills fortify the contention of the prosecution that the said room was booked by the secret agents only. He has also submitted that even otherwise as per the case of the prosecution the heroin was kept in the two suitcases which were to be delivered and therefore it was the suitcases that were to be searched and not the room and that the prosecution has proved on record the search authorization issued for the search of the said suitcases. In the alternative, it has also been contended that a hotel room is a public premises as laid down by the Hon'ble Supreme Court in its judgment pronounced in the case titled as Ganga Bahadur Thapa Vs. State of Goa reported in (2000) 10SCC 312 and the said judgment has not be overruled till date. According to Ld. Counsel Sh. Manchanda, the fact that the accused Hamidullah was present in the hotel room is sufficient to have a presumption against him that it was he who was to take the delivery of the contraband and the onus was therefore upon him to prove that he had not come to take the delivery of any contraband. According to Ld. SPP, the call detail records of both the accused persons are ample evidence to show that both of them have conspired to deal in illicit SC No.02/11 page 24 of 79 NCB Vs. Hamidullah and Ors.
trafficking of drugs and that the said call records are also corroborated by the statements tendered by the accused persons themselves u/s 67 of the NDPS Act. In support of his contentions, Ld. SPP has relied upon the following judgments:
(i) Ram Singh vs. Central Bureau of Investigation (2011) 11 SCC 347
(ii) Kanahiyalal Vs. Union of India (2008) 4 SCC 668
(iii) Thoti Manohar Vs. State of Andhra Pradesh (2012) 7 SCC 723
(iv) Tilak Raj vs. State 1999 (49) DRJ 18
(v) Vijayee Singh and Ors. Vs. State of U.P. (1990) 3 SCC 190
(vi) Devender Pal Singh vs. State of NCT of Delhi & Another (2002) 5 SCC 234
(vii) Abdul Rashid Abrahim Mansuri Vs. State of Gujarat (2000) 2 SCC 513
(viii) Custom Vs. Konan Jeans (2012) 186 DLT 379
(ix) Siddiqua Vs. NCB 2009 (93) DRJ 386
(x) Gita Lama Tamang Vs. State (GNCT) of Delhi 2007 (93) DRJ 813
22. I have given careful consideration to the submissions made by the Ld Counsels. I will first of all consider the objections taken by the Ld. SC No.02/11 page 25 of 79 NCB Vs. Hamidullah and Ors.
Defence Counsels with respect to the non compliance by the investigating agency of certain provisions of the NDPS Act. The first of these objections is with respect to section 42 NDPS Act. Ld. Defence Counsels have contended that though the search of the room no. 212 in hotel Saptgiri was conducted after sun set, no search authorisation was obtained by the Investigating Officer Akhilesh Kumar and that neither did he record the reasons for his belief that obtaining such search warrant would result in giving an opportunity for the concealment of evidence of of the commission of an offence or the escape of the accused. In the considered opinion of this court the provision of section 42 of the NDPS Act have no applicability to the facts of the present case. Present is not a case where an officer of the NCB received a secret information that contraband was concealed in any building, conveyance etc. but present is a case where the officers of the NCB were fully aware about the presence of the contraband in the room no. 212. The whole intention of the legislature in enacting the provision of section 42 of the NDPS Act were that when an officer superior in rank to a peon, sepoy or constable of the Department of Central Exercise, Narcotics, Customs, Revenue Intelligence who is empowered in this behalf by the Central or the State Government receives, an information with respect to an offence being committed in contravention of the provisions of NDPS Act, he should SC No.02/11 page 26 of 79 NCB Vs. Hamidullah and Ors.
reduce the same into writing and inform his immediate superior of the same and only thereafter proceed for any search and seizure proceedings, so that the possibility of a false implication of an accused is ruled out. The Constitutional Bench of the Hon'ble Supreme Court in its judgment delivered in case titled as Karnail Singh vs. State of Haryana reported in 2009 (4) JCC (Narcotics) 170 held that since the NDPS Act prescribes stringent punishment, a balance must be struck between the need of law and the enforcement of such law on the one hand and the protection of citizen from operation in injustice on the other. In the present case once the NCB had itself allowed the controlled delivery of the contraband in India and the Director General of the NCB was aware that contraband was brought into India concealed into two suitcases, in the considered opinion of this court there was no requirement for the Investigating Officer Akhilesh Mishra to have obtained a search authorisation warrant for the search of the room no. 212. Further the raiding team consisted of Y.R. Yadav, a Gazetted Officer, who as per the provisions of section 41 of the NDPS Act is himself empowered to search a premises whether during day or night if he has an information that an offence is being committed in contravention of the provisions of the NDPS Act. The Hon'ble Supreme Court in two of its judgments pronounced in the cases reported as Union of India Vs. Satrohan SC No.02/11 page 27 of 79 NCB Vs. Hamidullah and Ors.
2008(8) SCC 313 and M Prabhu Lal Vs. The Assistant Director, DRI JT 2003 Suppl. (2) SC 459 has held that where a Gazetted Officer himself receives some information and thereafter himself conducts the search and seizure proceedings, the provisions of section 42 NDPS Act are not required to be complied with. In both the judgments, Hon'ble Supreme Court has observed that it is clear from the language of sub Section (2) of Section 42 NDPS Act that it applies to an officer contemplated by subsection (1) thereof and not to a Gazetted officer contemplated by subsection (2) of section 41 NDPS Act. The Hon'ble Supreme Court has also observed that a Gazetted officer has been differently dealt with, under the provisions of NDPS Act and more trust has been reposed in him. It has been laid down by the Hon'ble Supreme Court that where a Gazetted officer himself receives the secret information and conducts the search, seizure and arrest proceedings, pursuant thereto, the legislature has reposed faith in him and therefore, he is not required to reduce the secret information into writing and then inform his superior. This court is of the considered opinion that in view of the principles laid down in the aforementioned judicial dicta, it is also to be held that on receipt of an information contemplated in section 41 and 42 of the NDPS Act, a Gazetted Officer is not required to obtain a search authorisation from his superior, before proceeding to search a SC No.02/11 page 28 of 79 NCB Vs. Hamidullah and Ors.
premises whether by day or night. This court is therefore of the considered opinion that the contention of the defence with respect to the non compliance of section 42 of the NDPS Act is not to be upheld in the facts and circumstances of the present case.
23. The second objection of the defence is that the failure of the prosecution in not producing the alleged proposal received by them for controlled delivery from the counterpart of NCB in Afghanistan is fatal to their case. It has been pointed out by the Ld. Defence counsels that they have specifically crossexamined PW1 and PW19 with respect to the said proposal and that it has been suggested to PW1 Yogesh Deshmukh that the said proposal has been deliberately not produced during trial for it did not contain the names of the accused persons. It has also been pointed out that PW19 Wais Mohammad has also stated in his cross examination that the controlled delivery was sanctioned by the Supreme Court of Afghanistan and that therefore the non production of the said proposal during trial has seriously prejudiced the accused persons for they have been denied the opportunity to examine whether the said proposal mentioned any such sanction given by the Supreme Court of Afghanistan or not. It is the contention of the defence that if the proposal did not mention any such sanction, PW19 would have been proved to have deposed falsely in this regard. It is also the submission of Ld. SC No.02/11 page 29 of 79 NCB Vs. Hamidullah and Ors.
Defence counsel Sh. Y.K. Saxena that the prosecution did not claim any privilege or exemption with respect to the said proposal during trial and that now at the stage of final arguments Ld. SPP for NCB cannot be allowed to seek any such privilege. It has also been pointed out that even otherwise the said proposal is not a document covered by either section 123 or 124 of the Indian Evidence Act and therefore no exemption can be granted to the prosecution for the non production of the said proposal. It has been pointed out by the defence that PW1 Yogesh Deshmukh, the public officer who could have claimed privilege from disclosing the said proposal has not claimed any such privilege. It has been pointed out that this witness in his crossexamination when asked about the said proposal has merely stated that the said proposal is still lying in his office file and that he does not remember whether a copy of the said proposal was collected from him for filing the same in the court. In other words, he has not taken a stand that the said proposal could not have been filed before the court. It is the submission of the Ld. Defence counsel that the provisions of section 124 make it very clear that a public officer would not be compelled to disclose the communication made to him in official confidence, when he considers that the public interest would suffer by the disclosure. In other words, the privilege granted by this section is to be claimed by the official concerned only.
SC No.02/11 page 30 of 79
NCB Vs. Hamidullah and Ors.
24. In rebuttal, the contention of the prosecution in this regard is that since the said proposal was a confidential document, it is not required to be placed before the court. Though initially Ld. SPP had not referred to any particular provision of law as per which the prosecution is entitled to claim exemption from producing the proposal of the controlled delivery from any country, before this court, he subsequently taking a que from the contentions of the defence has relied upon section 124 of the Evidence Act to contend that as per section 124 of the Evidence Act, no public officer can be compelled to disclose the communication made to him in official confidence, when he considers that the public interests would suffer by the disclosure and that therefore PW1 Yogesh Deshmukh, the then Officiating Director General of NCB, a public officer could not have been compelled to produce during trial the communication received by him from the Government of Afghanistan. He has also submitted that even if the said public officer has not specifically claimed any privilege, this court can itself hold that since the said proposal contained the names of the secret agents and the disclosure of the said names in public could have endangered their lives, the prosecution cannot be forced to put the said proposal in the public domain. He has also pointed out that pursuant to the directions of this court, the said proposal had in fact been shown to this court and that this SC No.02/11 page 31 of 79 NCB Vs. Hamidullah and Ors.
court has been satisfied that infact such a proposal was received by the NCB from the Government of Afghanistan.
25. With respect to the aforementioned contention, it is suffice to state that though the defence is right in contending that the prosecution cannot be allowed to claim any privilege under 124 of the Evidence Act, keeping in view that PW1 Yogesh Deshmukh did not claim any such privilege, however now that the said proposal has been shown to this court during the course of final arguments, this court is of the considered opinion that no prejudice can be stated to have been caused to the accused persons by not supplying them a copy thereof or by not disclosing the contents thereof in public during trial. It is to be noted that PW1 has specifically stated in his crossexamination that the proposal had not stated the names of the accused persons and that neither the Narcotics Department of Afghanistan nor the NCB, Delhi was aware of the names of the suspects, who would come to take the delivery of the contraband. After the inspection of the said proposal, the said statement of PW1 is found to be correct by this court and therefore no prejudice can be said to have been caused to the accused persons by the non production of the said document for the only contention of the defence was that the proposal is not being produced for it would show that it did not contain the names of the accused persons. No doubt the said SC No.02/11 page 32 of 79 NCB Vs. Hamidullah and Ors.
proposal did not have reference to any sanction granted by the Supreme Court of Afghanistan, it will be relevant to note that PW19 in his cross examination has not stated that he had seen the proposal sent by the Government of Afghanistan to NCB Headquarters. He has merely deposed that he has seen some documents wherein it was mentioned that the controlled delivery of two suitcases containing 4 Kg of heroin was to take place in India and that the said documents were from the Supreme Court Judges, Ministry of Interior, Kabul. It is being rightly contended by the Ld. SPP for NCB that the prosecution cannot be saddled with the duty of producing the said documents, which this witness saw in Afghanistan. The fact of the matter that it cannot be doubted that the NCB had received a proposal from its counterpart in Afghanistan and only pursuant thereto the Officiating Director General NCB Yogesh Deshmukh issued the document Ex.PW1/2.
26. The next contention made by the defence with respect to the non compliance of provisions of NDPS Act is with respect to the provisions of section 50 A NDPS Act. Ld defence counsels have submitted that PW1 Yogesh Deshmukh though being the Incharge Director General was authorized to undertake controlled delivery, he could not have further delegated the said powers to Y.R. Yadav, Superintendent NCB or to Akhilesh Kumar Mishra, IO NCB in view of the provisions of section SC No.02/11 page 33 of 79 NCB Vs. Hamidullah and Ors.
50A of the NDPS Act and therefore the Superintendent Y.R. Yadav or Akhilesh Kumar did not have the authority to undertake controlled delivery and any recovery , if any, effected and apprehension made pursuant to such illegal exercise of power stands vitiated. They have pointed out that as per the deposition of PW1 Yogesh Deshmukh, he was the Incharge Director General of NCB from the period of 12.07.2010 to 17.10.2010 and that during the said period he was also the Zonal Director NCB and that vide Ex.PW1/2, he being the Officiating Director General NCB had authorized himself i.e. the Zonal Director NCB to further undertake the controlled delivery. Now the argument of the defence is that though this official Officiating as Director General NCB could have authorized the Zonal Director NCB to undertake controlled delivery, he could not have as the Zonal Director, NCB further delegated the power of undertaking to the Superintendent or to the Intelligence Officer of NCB and further the evidence on record points out that even the said sub delegation has not been done in writing or orally by PW1 Yogesh Deshmukh in as much as both PW1 and PW3 Y.R. Yadav, Superintendent, NCB on being specifically crossexamined in this regard have merely stated that PW1 had a discussion with PW3 with respect to the controlled delivery. Thus the contention is that mere discussion cannot be equated with any subdelegation of powers or authorization as SC No.02/11 page 34 of 79 NCB Vs. Hamidullah and Ors.
required by section 50A of the NDPS Act. On the other hand, Ld. SPP for NCB has submitted that though Yogesh Deshmukh being the Director General NCB has vide Ex.PW1/2 authorized himself being the Zonal Director to undertake controlled delivery, he could have also as per law, have straightaway authorized Y.R. Yadav Superintendent to undertake the said delivery. He has also contended that there is no prohibition laid down in section 50A against the subdelegation of power of undertaking controlled delivery by the officer authorized by the Director General of NCB nor is there any requirement that the said subdelegation should have been in writing. In the alternative, he has pointed out that the evidence led by the prosecution on record clearly proves that Yogesh Deshmukh was present both at the IGI airport as well as at Hotel Saptgiri and therefore his contention is that the controlled delivery did take place under his supervision only and therefore there has been no violation of section 50A of the NDPS Act.
27. To appreciate the contentions made by the Ld. Counsels it will be relevant herein to note the provisions of Section 50 A of the Act. The same lay down that:
The Director General of Narcotics Control Bureau constituted under subsection (3) of section 4 or any other officer authorised by him in this behalf, may, notwithstanding anything contained in this SC No.02/11 page 35 of 79 NCB Vs. Hamidullah and Ors.
Act, undertake controlled delivery of any consignment to
(a) Any destination in India;
(b) A foreign country, in consultation with the competent authority of such foreign country to which such consignment is destined, in such manner as may be prescribed.
28. The term controlled delivery refer to in the said provision, has been defined in section 2(viib) to mean the technique of allowing illicit or suspect consignments of narcotic drugs, psychotropic substances, controlled substances or substances substituted for them to pass out of, or through or into the territory of India with the knowledge and under the supervision of an officer empowered in this behalf or duly authorized under section 50A with a view to identify the persons involved in the commission of an offence under this Act.
29. The aforementioned provisions make it clear that that the controlled delivery has to take place with the knowledge and the supervision of the Director General of NCB or by an officer authorised by him. Now in the present case it cannot be disputed that PW1 Yogesh Deshmukh did have the knowledge of the controlled delivery. However whether the controlled delivery actually took place under his supervision SC No.02/11 page 36 of 79 NCB Vs. Hamidullah and Ors.
or not is a question which is to be examined. The word supervision means to make sure that the activity being supervised is done correctly and properly. Though this court does completely agree with the Ld. SPP that in the present case PW1 Yogesh Deshmukh was fully empowered being the officiating Director General of NCB, to have authorised another officer to supervise the controlled delivery and that there is no prohibition in this regard, however the fact of the matter is that PW1 himself has not at all deposed that he had authorised any other person to undertake the controlled delivery. His deposition is categorical that he being the officiating Director General of NCB had authorised himself i.e. the Zonal Director to undertake the controlled delivery. In his cross examination he has categorically stated that he had only orally authorised the Superintendent Y.R. Yadav to issue the search warrants for search of the suitcases. Thus there is no statement made by him that he had authorised Y.R. Yadav to undertake the controlled delivery. Neither has PW Y.R. Yadav stated that he was given any such authorisation. His mere deposition is that Yogesh Deshmukh had discussed with him the proposal of controlled delivery received from Afghanistan. The alternative contention of Ld. SPP that Yogesh Deshmukh was himself present both at the airport and at the Saptgiri hotel will also have to be tested by the evidence led by the prosecution in this regard. There are seven witnesses SC No.02/11 page 37 of 79 NCB Vs. Hamidullah and Ors.
examined by the prosecution namely, PW1 Yogesh Deshmukh himself, Superintendent NCB PW3 Y.R. Yadav, PW4 Sanjay Rawat, PW8 Akhilesh Kumar Mishra, PW9 G.S. Bhinder, PW16 S.K.Sharma and PW17 Pankaj Kumar Dwivedi, who as per the case of the prosecution were all present at the airport and at the Hotel Saptgiri. As regards PW1 Yogesh Deshmukh, in his examination in chief, the mere deposition of this witness with respect to his presence at the airport is "as a moral support with the team and it being a very sensitive operation, I had also gone to the airport on the same day. I was informed that the team from Afghanistan has gone to the hotel Saptgiri in Mahipalpur after not succeeding at the airport. In the evening, the team had arrested one Mr. Hamid. He was arrested after the completion of the search which went upto 01.30 AM on 17.07.2010."
When he is questioned about certain facts regarding the events at the airport, he has deposed that he had left for the airport at about 01.30 or 02.00 PM and then had remained at the Delhi airport for 45 hours but that he is not aware whether the undercover agents were subjected to xray/physical checking/sniffing of the luggage, baggage etc. He has also stated that he is not aware by whom it was decided at the airport to go to SC No.02/11 page 38 of 79 NCB Vs. Hamidullah and Ors.
hotel Saptgiri and that he was informed by his Superintendent that the undercover agents had proceeded to hotel Saptgiri. He has then completely contradicted the averments of the complaint by stating that as far as he knows the undercover agents had pre planned to stay at hotel Saptgiri. The kind of aforementioned answers given by him hardly inspire enough confidence to hold that he was positively present at the airport and therefore it will be very relevant at this stage itself to consider what the other members of the raiding team have to state about the presence of Yogesh Deshmukh at the airport. The second high ranked official of the raiding team namely Y.R. Yadav in his examination in chief does not at all state that Yogesh Deshmukh had proceeded with the NCB team to the airport. When questioned in this regard, in his cross examination this is what he has to state.
" I do not remember as to at what time Mr. Yogesh Deshmukh reached the airport on 16/7/2010. I also do not remember as to till what time Mr. Deshmukh remained present at the airport. Vol. As he was standing separately. I do not know when I reached the airport whether Sh.
Deshmukh was already present there or not. It was at about 4:30 p.m. that Sh. Deshmukh gave me a telephonic call that he had reached the airport. ... He did not give me call before leaving."
SC No.02/11 page 39 of 79
NCB Vs. Hamidullah and Ors.
30. Thus as per this witness he even did not meet Yogesh Deshgmukh before 4:30 p.m. at the airport and he was only telephonically informed by Deshmukh only at 4:30 p.m. that he had reached the airport. In sharp contrast to this deposition, is the deposition of PW8, Akhilesh Mishra - the official in whose favour the search authorisation warrant was issued and who was the main seizing officer. Though he also does not state in his examination in chief that Yogesh Deshmukh had accompanied the NCB team to the airport, in his cross examination he deposes "At least 1012 NCB officials had gone in three govt. vehicles (referring to the airport). The briefing of the team was done in the parking area of the airport once the entire team assembled in the parking lot. The briefing was done near the premium parking .... In the said briefing our Zonal Director Mr. Deshmukh, Y.R. Yadav, G.S. Bhinder, S.K. Sharma, Sanjay Rawat were there.... The breifing was done by the Zonal Director for about 10 minutes. He briefed about the procedure of controlled delivery, flight no., number of passengers coming and method of apprehending the person who would come to receive the consignment..... I, Zonal Director, Superintendent Y.R. Yadav and some other officials entered the airport after the briefing."
SC No.02/11 page 40 of 79 NCB Vs. Hamidullah and Ors.
Thus according to this witness not only Yogesh Deshmukh was present at the airport, he had briefed all the members of the team and had even entered the main airport building along with him and Y.R. Yadav. Now if this deposition is taken to be correct then it will have to be assumed that despite the briefing done by Yogesh Deshmukh and his entering the airport along with Y.R. Yadav, Y.R. Yadav could not see him and had to be telephonically informed about his reaching airport at 4:30 p.m. It is also interesting to note that the other members of the raiding team who PW1 Yogesh Deshmukh is stated to have briefed have no knowledge about the said briefing. PW4 Sanjay Rawat on being questioned in this regard has categorically stated that there was no briefing in person done at the airport and that he does not even remember which of the NCB officials had in particular informed him that a controlled delivery is to take place at the airport on 16/7/2010. Similarly when PW9 G.S. Bhinder is questioned in this regard he does not utter a word that Yogesh Deshmukh was present at the airport or that he was briefed by him. On the other hand he has categorically stated that no briefing was given to him at the airport and that none of the NCB officials met him at the airport though all of them were in close proximity with each other. PW16 Sandeep Kumar Sharma, another Intelligence Officer who was also SC No.02/11 page 41 of 79 NCB Vs. Hamidullah and Ors.
assertedly present at the spot has stated that he had seen only Mr. Yadav and Akhilesh Mishra entering the airport building and that he cannot say at what time Yogesh Deshmukh came to the airport. He is however categorical in stating that he did not meet Mr. Deshmukh at the airport nor does he remember if any briefing was done by Mr. Deshmukh to the members of the team. PW17 Pankaj Kumar Dwivedi is also clear that he was briefed only in the NCB office and no briefing had taken place at the IGI airport.
31. As regards the presence of Sh. Yogesh Deshmukh at Hotel Saptgiri, it is interesting to note that this witness in his examination in chief has not stated at all that he had gone to the said hotel. His mere deposition, as narrated hereinabove is that he was informed that the team from AFghanistan had gone to the hotel Saptgiri after not succeeding at the airport. There is not a word in the examination in chief of this witness that he had also gone to the hotel in question and that in his presence the apprehension of the accused Hamidullah took place followed by the search and seizure proceedings. However, in the crossexamination, he has deposed that it was at about 07.00 PM that he had reached hotel Saptgiri. Further when this witness is specifically asked that from where was the accused Hamidullah apprehended, he has deposed that he was only in overall supervision of the operation and was present for moral SC No.02/11 page 42 of 79 NCB Vs. Hamidullah and Ors.
support and therefore he cannot tell whether the accused Hamidullah was apprehended from the reception are of the hotel or from a room therein. He then further categorically added that the accused Hamidullah was definitely not apprehended from the reception area a deposition which is completely contrary to the entire case of the prosecution. On further questioning, he has also deposed that he did not visit any room of the hotel. PW3, has however on the contrary deposed in his cross examination that Sh. Deshmukh visited room no.212 (the room where the undercover agents were staying and where the accused Hamidullah had allegedly gone to meet the secret informer and later on had got recovered the suitcases in question) twice once between 09.3010.00 PM and then between 1111.30 PM.
32. The only inference that can be drawn from the aforementioned discussion of the depositions of the members of the raiding team is that the deposition of PW1 Yogesh Deshmukh that he was present both at the airport and the hotel cannot be taken as the gospel truth and is in fact very doubtful.
33. No doubt it can be argued that even though the prosecution may not have been able to sufficiently prove that the controlled delivery took place as per the provisions of Section 50 A r.w.s. 2 (vii b) of the NDPS Act, it is a mere irregularity and that it does not vitiate the apprehension SC No.02/11 page 43 of 79 NCB Vs. Hamidullah and Ors.
of the accused and the recovery of the contraband, however an appreciation of the evidence led to prove the charges against the accused persons is also not found sufficiently credible by this Court.
34. The charge against the accused persons is that they had conspired to illegally import into India 4 Kg of Heroin from Afghanistan and the evidence that is being relied upon to prove the said charge is as follows:
(a) The accused Hamidullah came to hotel Saptgiri to receive the delivery of 4 Kg of heroin from the secret informers who had been allowed by the NCB to enter India with the said contraband in two suitcases.
(b) The said accused on being intercepted and apprehended by the NCB, admitted that he had come to take the delivery of the said heroin and had pointed out to the suitcases that he had come to take the delivery of and thereafter tendered a statement u/s 67 NDPS Act disclosing therein that his coaccused Rahis Abdul Wahid had sent him to take the said delivery.
(c) The statement tendered by the accused Abdul Wahid u/s 67 NDPS Act admitting therein that he had sent his coaccused Hamidullah to take the delivery of 4 Kg of heroin that was imported by him.
(d) The evidence in the nature of Call detail records of the mobile phones of both the accused persons which show that the said two SC No.02/11 page 44 of 79 NCB Vs. Hamidullah and Ors.
accused persons had been in touch with a person in Afghanistan who was the supplier of the said heroin.
35. Now coming to the first incriminating fact against the accused persons namely that accused Hamidullah had come to hotel Saptgiri to take the delivery of the contraband, it is clear from the evidence produced on record that accused Hamidullah did not actually take the delivery of the suitcases containing the contraband nor did any of the witnesses produced by the prosecution actually hear the conversation that took place between him and the secret informers. Neither the secret informers nor the undercover agent, Mujibur Rehman have been produced in the witness box to prove that the accused had demanded the delivery of the suitcases from the secret informers. The argument of the Ld. SPP for the prosecution, however is that once the prosecution has proved that accused Hamidullah had gone to room no.212 of hotel Saptgiri, where the secret informers were lodged, there is a presumption to be drawn against him as per section 35 and 54 of the NDPS Act that he had come to take the delivery of the contraband and the onus was upon him to have rebutted the said presumption. His contention is not only has the accused failed to furnish any reason for having come to the said hotel, but on the contrary has admitted his guilt in the statement tendered by him u/s 67 NDPS Act. According to Ld. SPP, the mere fact SC No.02/11 page 45 of 79 NCB Vs. Hamidullah and Ors.
that none of the witnesses have been able to give direct evidence with respect to the conversation between accused Hamidullah and the secret sources does not help the case of the defence at all, for the presence of the accused Hamidullah in the room no.212 shows that the accused had made an attempt to take the delivery of 4 Kg of Heroin and this is precisely the charge for which he is facing trial and therefore the fact that neither the accused took delivery of the contraband nor was he heard asking for the said delivery, are relevant for the determination of the guilt of the accused persons. Ld. SPP has pointed out that all the prosecution witnesses have consistently deposed that accused Hamidullah came to the reception of hotel Saptgiri at 09.45 PM, went to room no.212, came out of it accompanied by one of the secret informers, was intercepted at the reception area and on the said interception admitted having come to the hotel to take the delivery and then took the NCB team officials to room no.212 and pointed out the suitcases of which he had come to take the delivery.
36. With respect to the aforementioned contention of Ld. SPP, it is to be first of all noted that it is not the case of the prosecution that the accused Hamidullah was found in possession of any contraband and therefore in the considered opinion of this court no presumption can be drawn against the accused Hamidullah u/s 54 of the NDPS Act for the SC No.02/11 page 46 of 79 NCB Vs. Hamidullah and Ors.
said presumption comes into play where an accused has been found in possession of contraband and he fails to account for the said possession satisfactorily. Further as regards section 35 & section 54 of the NDPS Act the Hon'ble Supreme Court in its judgment pronounced in Noor Agha's case (supra) has held as follows:
" Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused and also place burden of proof in this behalf on the accused; but a bare perusal the said provisions 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."
SC No.02/11 page 47 of 79
NCB Vs. Hamidullah and Ors.
37. Now let us examine whether the prosecution has been able to prove beyond reasonable doubt, the aforementioned facts relied upon by the Ld. SPP against accused Hamidullah. (It will be relevant herein to clarify that during trial the term 'secret informers' has been used by the witnesses to denote those persons who had come to make the actual delivery of the contraband and the term 'undercover agents' has been used to refer to the two officials Wias Mohammad and Mujibur Rehman, two officials from Afghanistan who were accompanying the secret informers.) In this regard, it will be first of all relevant to consider whether it has been proved that accused Hamidullah came to hotel Saptgiri at 09.45 PM and at the outset it will be very relevant to consider the testimony of PW7. PW7 Rajbir Singh has deposed in his examination in chief that on 16.07.2010, he was the driver of the Maruti van bearing no. DL NCQ 3009 and that on this date he had gone to IGI airport at about 12.30 PM and thereafter at about 01.30 PM, he had followed a taxi with NCB officials and had reached hotel Saptgiri at NH8. Now this official in his crossexamination has stated that it was accused Hamidullah who had hired a taxi from the airport and he had followed this taxi upto Mahipalpur hotel which was at the border and that thereafter accused Hamidullah had left the taxi and gone inside hotel SC No.02/11 page 48 of 79 NCB Vs. Hamidullah and Ors.
Saptgiri and then the NCB officials also had gone inside the hotel following accused Hamidullah. Now if the deposition of this witness is taken to be true, then clearly the version of the events placed before this court falls flat on his face. The contention of Ld. SPP for NCB however is that this official is a mere driver and that his job was to concentrate on the road and not to observe as to who were the occupants of the taxi that he was following. Ld. SPP has submitted that looking into the status of the witness, the facts mentioned by this witness in his crossexamination should not be given much importance by this court, keeping in view that the other high ranked officials of NCB have consistently deposed that from the airport it was the Afghani secret informers and the undercover agents who were followed from the airport. According to Ld SPP, this court should not at all doubt the version of the prosecution that accused Hamidullah had been apprehended when he had come to take delivery of the contraband from the Afghani secret informers. He has pointed out that as many as seven Intelligence Officers including high ranked officials namely the then Zonal Director and Officiating Director General Of NCB, Sh. Yogesh Deshmukh, the Superintendent, Sh. Y.R.Yadav have stepped into the witness box and have deposed on oath the events that led to the arrest of the accused. He has also pointed out that PW19 an Afghan official had also supported the case of the SC No.02/11 page 49 of 79 NCB Vs. Hamidullah and Ors.
prosecution and therefore his submission is that the testimony of a mere driver should not be made a ground for discarding the entire case of the prosecution. On the other hand Ld. Defence Counsels have submitted that since the entire case of the prosecution is concocted by its high ranked officials and a mere driver of the NCB was not aware of the same, he could not support the story of the prosecution and that perhaps that is the reason that the Ld. SPP has dropped from the list of witnesses the other two drivers who had allegedly taken the NCB officials to the airport.
38. Now if one agrees with the Ld. SPP that because PW7 is mere a driver and his job was to concentrate on the road and therefore he may not have noticed correctly who were the occupants of the taxi, then it is not understandable as to why did the Ld. SPP chose not to reexamine this witness and suggest to him that he may not have correctly noticed the occupants of the taxi that he was following. Though this witness was reexamined by Ld. SPP for the NCB as he had mentioned wrongly in his crossexamination that the malkhana incharge was Akhilesh Kumar Mishra and in his reexamination, he corrected the said statement by stating that it was Sanjay Rawat who was the malkhana incharge at the relevant time, no question was put on behalf of the prosecution that he had wrongly stated that he had followed accused Hamidullah to the hotel SC No.02/11 page 50 of 79 NCB Vs. Hamidullah and Ors.
in question. Further it is indeed difficult to accept that this driver would have only wrongly observed the occupants of the taxi when his other depositions namely that Y.R. Yadav and Akhilesh Kumar Mishra had gone inside the airport at about 02.00 PM, the other officials Sh. Pankaj, Sh. Vikas, Sh. Sanjay Rawat had remained outside the airport, the flight in question had come at 04.30 PM and that two other vehicles of NCB bearing no. CH01G5143 and DL12C1168 were also at the airport all indicate that he had a keen sense of observation. The testimony of PW7 Rajbir Singh is also very relevant if one takes into consideration the material contradictions between the depositions of the prosecution witnesses with respect to the time that the NCB team officials and the Afghanistan secret informers and undercover agents left the airport and reached the hotel Saptgiri. Apart from PW3 Y.R. Yadav, all other members of the raiding team in their crossexamination have more or less stated the time of leaving the airport at about 55.30 PM. According to Pw4 Sanjay Rawat, the entire raiding team left the airport at 05.00 PM. PW8 Akhilesh Mishra in his crossexamination has stated that it was at about 06.00 PM that the NCB officials who were following the undercover agents reached the hotel Saptgiri. PW9 G.S. Bhinder has stated that the flight in question had arrived at 04.30 PM and that the raiding team came out from the airport within 3040 minutes of the SC No.02/11 page 51 of 79 NCB Vs. Hamidullah and Ors.
arrival of the flight and that though he does not remember exactly at what time the raiding team and the undercover agents reached the hotel, according to him the airport was about 5 KM from the hotel. Similarly PW16 Sandeep Kumar Sharma in his examination in chief itself has stated that the flight from Kabul came at about 04.30 PM and at about 05.10 Pm, he was informed that the secret agents have boarded a taxi and that all the NCB officials have to follow the said taxi. In his cross examination he has specifically deposed that it was approximately about 05.35 PM that the raiding team reached Saptgiri Hotel. PW17 similarly in his crossexamination has deposed that he remained at the airport till about 05.00 PM only. He has also stated that one of the NCB officials told him at about 05.00 Pm to follow the persons who had come from Afghanistan. Now if the said depositions of all these witnesses is taken to be correct then the same are found totally inconsistent with the depositions of PW3 Y.R. Yadav and PW19 Wias Mohammad. According to Y.R. Yadav, he had remained inside the airport for about 23 hours and had reached the hotel Saptgiri between 8:009:00 p.m. and that he and the other NCB team officials had reached the Saptgiri hotel simultaneously with the four Afghani agents. PW19 Wias Mohd., on the other hand has deposed that he along with his colleagues had reached hotel Saptgiri between 0708.00 PM. Thus according to both these SC No.02/11 page 52 of 79 NCB Vs. Hamidullah and Ors.
witnesses it was certainly not before 7:00 p.m. that the raiding team had reached the hotel Saptgiri. It is in view of this discrepancies between the statements of the two sets of officers, discussed hereinabove that the testimony of the driver PW7 Rajbir Singh becomes very relevant and infact points out that the prosecution has not presented a correct version of the events before this court. The said inference is strengthened by another document placed on record namely, a hotel bill, ExPW16/2, which according to the prosecution was issued by the hotel Saptgiri against the charges for the room 212 booked by the Afghani officials and was paid for by the NCB. Now a perusal of the said bill shows that two guests by the name of Mahmood and Mohd. Rafi had arrived in the hotel Saptgiri on 16/7/2010 at 1730 hours. Though Ld. defence counsels have vehemently contended that the said hotel bill cannot be at all assumed to have been for the room booked by the Afghani officials for none of the NCB officials have been able to confirm whether the names of the Afghani secret informers were Mahmood and Mohd. Rafi and on the contrary when the witness PW19 Wias Mohd. is confronted with the said names he is categorical in stating that he has never heard these two names and that he was aware of the names that the secret informers were to use in India and that he had intimated the same to the NCB officials, even if the stand of the prosecution with respect to the said bills is taken SC No.02/11 page 53 of 79 NCB Vs. Hamidullah and Ors.
to be correct, then it is they who have been unable to explain as to how the arrival of the said two secret informers in the hotel Saptgiri is stated to be 5:30 p.m. As narrated hereinabove both Y.R. Yadav and PW19 Wias Mohd. have been categorical in stating that since the flight in question had landed only at 4:40 p.m. and almost one and a half hours were taken to clear the immigration and check out formalities, they had reached the hotel much after 5:30 p.m. It cannot be lost sight of that it is own case of the prosecution that the accused Hamidullah was seen at the airport itself by some of the officials and PW19 and that this accused in his statement tendered under 67 NDPS Act had disclosed that he was present at the Airport and he knew one of the secret informers namely Mahmood and that he had seen him and three other persons at the airport but that he had not approached them because he got apprehensive due to their late arrival that the police might be following them. Though the NCB officials have categorically denied that they made any effort to follow Hamidullah despite they having a grave suspicion on him, the testimony of PW7 infact points out that perhaps accused Hamidullah was followed by the NCB officials, when he failed to act as per their expectations. Indeed it is not the duty of this court to make any surmises or conjectures in this regard however it is the duty of this court to observe that the prosecution has not disclosed the true facts to the Court.
SC No.02/11 page 54 of 79
NCB Vs. Hamidullah and Ors.
39. The reason why this court has serious doubt over the version put forward by the prosecution is that all the material witnesses produced by the prosecution have given discrepant statements with respect to very material aspects of this case. Though Ld. SPP has very vehemently contended that this Court must not give undue importance to minor discrepancies between the depositions of the various prosecution witnesses for when the number of witnesses is huge there are bound to be some inconsistencies between their depositions. In support of this contention he has relied upon the judgment of the Hon'ble Supreme Court pronounced as Thoti Manohar's case (Supra judgment mentioned at sl. no. (iii) of the list filed by the Ld. SPP) In the said judgment Hon'ble Supreme court has laid down that while appreciating evidence, a court must not attach much significance to minor discrepancies which do not shake the basic version of the prosecution case. With respect to the said contention of the Ld. SPP, suffice is to state that this court is conscious of the fact that it is not every discrepancy or inconsistency that entitles an accused to benefit of doubt however in the present case, the discrepancies which have come to the fore have shaken the very basic version of the prosecution. In the considered opinion of this court in the present case when there is no direct evidence that accused Hamidullah had demanded to take delivery SC No.02/11 page 55 of 79 NCB Vs. Hamidullah and Ors.
of the suitcases containing the contraband, it was very necessary for the prosecution to have proved beyond reasonable doubt the entire chronology of events namely the following of the Afghani officials by the NCB to hotel Saptgiri, checking in of the secret informers and undercover agents at hotel Saptgiri, the coming of Hamidullah to the said hotel and thereafter the manner in which he was apprehended.
40. As narrated hereinabove, the version of the prosecution with respect to the arrival of the NCB officials along with the Afghani officials at the hotel Saptgiri in the manner asserted by the prosecution cannot be believed. Now let us consider whether the deposition of witnesses is consistent atleast with respect to the coming of the accused Hamidullah in the reception area and then going to the room of the secret informers. On behalf of the defence all the prosecution witnesses were consistently questioned as to how the accused Hamidullah came to know that the afghani persons who had come with the contraband had checked in the hotel Saptgiri and in this regard it will be relevant to note that PW19 Wias Mohd. has alone categorically deposed that one of the secret informers had told him that he is going to make a call on a telephone number (Ld. SPP has contended that though in the examination in chief this witness could not recollect the said number, the same finds mention in the statement tendered by him u/s 67 of the NDPS Act, ExPW4/2 and SC No.02/11 page 56 of 79 NCB Vs. Hamidullah and Ors.
that the said number is the same which was found in possession of Hamidullah). He has also deposed that the secret informer after making the said call had told him that he had made the call and had given the address of the hotel and the room no. to the alleged recipient and at the point of time that this information was relayed by the secret informer to him (PW19), he was standing outside the hotel along with NCB officials. However yet again this deposition of this witness is not supported by the NCB officials who were allegedly present inside and outside the hotel. PW1 Yogesh Deshmukh in his cross examination in this regard has deposed that though he does not know as to how Hamidullah reached the hotel and that as far as he remembers he was told by the Superintendent Y.R. Yadav that the undercover agents had talked to some Afghan officials in Afghanistan. He has also however stated that he is not aware that the undercover agents had talked over telephone to any person other than the Afghani officials. PW3 Y.R.Yadav, when questioned in this regard has deposed that though he had seen the four afghan agents using their telephone between the period they reached the hotel and before Hamidullah reached the hotel he cannot state to whom were those calls made. Thus neither in his examination in chief nor in his cross examination does this witness state anything to the effect that one of the secret informers had gone outside the hotel and had made a call to SC No.02/11 page 57 of 79 NCB Vs. Hamidullah and Ors.
accused Hamidullah. The main investigating officer Akhilesh Mishra also in his cross examination has categorically deposed that the Afghan sources/ informers never talked to any of the accused persons over the telephone on the date of the incident. Though he has deposed at one point that one or two of the afghani officials had gone outside the hotel, according to his deposition the Afghani persons had informed the NCB officials at about 9:00 p.m. that they had conveyed their room number to their controllers in Afghanistan. PW G.S. Bhinder has also specifically deposed that Afghani officials were talking on their mobile phones during the period that they came from the airport and till the time Hamidullah met them at the hotel, none of the Afghani officials left the hotel after reaching there and before accused Hamidullah came to the hotel. Though Ld. SPP for NCB has vehemently contended that even if the NCB officials have failed to throw any light on this issue, the deposition of Wias Mohd. is clear that accused Hamidullah was made a call from a PCO by one of the secret informers informing him about their having checked into the hotel Saptgiri and that is how he had reached the hotel, it is very interesting to note that though the call detail records of the phone allegedly being used by accused Hamidullah have been placed on record, no effort was made on behalf of prosecution to point out as to which of the calls received in the said mobile could have been from a SC No.02/11 page 58 of 79 NCB Vs. Hamidullah and Ors.
PCO. Ld. SPP for NCB was at pains to explain as to why no investigation was carried out in this regard and why is the prosecution shying away from disclosing the said PCO number to this court. His argument yet again, was that there is one local number being reflected in the call detail records of the mobile used by accused Hamidullah and that this court can presume that the same was made from a PCO.
41. Though the Ld. SPP has not relied on any provision of law in support of his aforementioned contention, it will be now worthwhile to examine whether the prosecution has been able to at least prove that accused Hamidullah had come to the hotel at 9:45 p.m. and had asked from the receptionist for the room no. 212. Now as per the depositions of PW8 Akhilesh Kumar, Y.R. Yadav, G.S. Bhinder and Sanjay Rawat, all of them were present in the reception area when the accused Hamidullah came there. However, though according to Akhilesh Kumar and Y.R. Yadav accused Hamidullah had spoken to the receptionist for about 57 minutes and had asked for the room 212, G.S. Bhinder has specifically deposed in his cross examination that he alongwith Y.R. Yadav and Akhilesh Kumar Mishra were present at the reception area when Hamidullah entered in the hotel and that he did not notice accused Hamidullah speaking to anybody, neither the NCB officials nor anybody in the hotel and went from the reception to the hotel room directly.
SC No.02/11 page 59 of 79 NCB Vs. Hamidullah and Ors.
Further though PW19 Wias Mohd. has also stated in his evidence that he was present along with the NCB officials in the reception area when accused Hamidullah came there, none of the NCB officials have stated about his (PW19's )presence along with them. On the contrary, PW4 Sanjay Rawat has deposed in his cross examination that when NCB officials took Hamidullah to room no. 212, four persons (referring to undercover agents and the secret informers) were already present there. It is also not understandable as to why the prosecution has chosen not to examine any hotel official, in particular, the hotel receptionist, to prove that accused Hamidullah in fact had come to Saptgiri hotel on 16/7/2010 at 9:45 p.m. and had asked the receptionist for the room no. 212 or to prove the hotel bills placed on record by the prosecution. It is also to be noted that though according to PW19 Wias Mohammad, when accused Hamidullah was taken to room no.212 after his apprehension, the secret informers were not present as they had gone away so as not to reveal their identity and so that Hamidullah could be satisfied as to why the secret informers were not arrested, the depositions of Akhilesh Kumar, G.S. Bhinder and Sanjay Rawat indicate that according to them the secret informers were present at the time of search and seizure proceedings. The main Investigating Officer Akhilesh Mishra has categorically deposed in his cross examination that the Afghani officials as well as the SC No.02/11 page 60 of 79 NCB Vs. Hamidullah and Ors.
secret sources had disclosed to them that Hamidullah had come to their room about 10 minutes back to collect the said suitcases and had pointed out towards Hamidullah. G.S. Bhinder has deposed in his examination in chief itself that he was informed by Akhilesh Kumar Mishra that he had got a secret information about some contraband which been kept inside the suitcases and a notice u/s 50 NDPS Act was served to the accused Hamidullah and he was informed that if he so desires, his search or the search of the suitcases can be conducted in the presence of a Magistrate or a Gazetted Officer. He has then gone on to depose that the secret sources also denied the search in the presence of Magistrate or a Gazetted Officer. In other words according to this witness the secret sources were present in the room. Similarly Sanjay Rawat has deposed in his crossexamination that room no.212 was occupied by four persons when NCB officials took Hamidullah in that room and that the said persons and the undercover agents stayed in the room till 01.30 AM.
42. It is also relevant to mention herein that at one point of time Ld. SPP Sh. Manchanda had tried to contend that since PW19 Wias Mohd. had written the statement of Mujibur Rehman on his dictation and he has proved the said statement before this court, the same can be read against the accused persons and that therefore this court does have before it the evidence that accused Hamidullah had asked for the two suitcases from SC No.02/11 page 61 of 79 NCB Vs. Hamidullah and Ors.
the secret informers. With respect to the said contention, firstly this court is of the opinion that since Mujibur Rehman has not himself stepped into the witness box and therefore an opportunity to cross examine him has not been granted to the accused persons, his purported statement given to the NCB cannot be read against the accused persons. Secondly, the said statement being relied upon by the prosecution can however be read in favour of the accused persons. Now as per this statement when the secret informers asked Hamidullah to pay Rs. 10 lakhs to them, he made a call to Afghanistan and made the secret informer talked to some person in Afghanistan and thereafter he agreed to come back again with Rs. 10 lakhs. Thus as per this statement during the time accused Hamidullah was in room no. 212 he had made a single call to Afghanistan. However the call detail records of the mobile number being allegedly used by accused Hamidullah shows that atleast four calls were received on his mobile between 9:40 p.m. to 10:18 p.m. Here again Ld.SPP had first submitted that this court can make a presumption that perhaps accused Hamidullah was not able to connect to Afghanistan and therefore may have made 34 calls, but when it was pointed out to Ld. counsel that these calls were incoming he did not press further the point that the statement of Mujibur Rehman be read. However this court cannot ignore the fact that the call detail records of the mobile allegedly SC No.02/11 page 62 of 79 NCB Vs. Hamidullah and Ors.
used by accused Hamidullah does not support the version of events asserted by the prosecution and if it is considered in conjunction with the other facts discussed hereinabove, a grave doubt does arise on the case of the prosecution.
43. Another aspect which though may not be very material in isolation but is at the same relevant if considered in conjunction with other lacunae in the case of the prosecution is with respect to the version of the prosecution that the accused Hamidullah did not take the delivery of the contraband because he was told by the secret informers that they would not hand him over the suitcases containing the contraband till he pays them an amount of Rs. 10 lakhs. All the prosecution witnesses have been cross examined on this issue by the defence and it is rightly pointed out on behalf of the defence that none of them have been consistent in their reply. PW3 Y.R. Yadav when questioned in this regard has deposed that the Afghani officials at the airport had informed him that they would hand over the suitcase containing the contraband at the airport though they did not tell him the amount of money that they would receive from the alleged recipient. However, as per Akhilesh Mishra the Afghani officials had told him at the airport that the alleged recipient was to bring Rs.10 lacs as the consideration of the suitcases. Now a very interesting fact to be noticed at this stage is that as per the deposition of Y.R. Yadav SC No.02/11 page 63 of 79 NCB Vs. Hamidullah and Ors.
it was Mujibul Rehman, the Afghani police official who had discussed with him, at the airport all the details of the operation. This official however as per PW19 Wias Mohd. did not know how to converse in Hindi or in English. To explain the said discrepancy Ld. SPP for NCB has again taken the aid of a presumption and has submitted that this court must make a presumption that Wias Mohd. must have been translating whatever was being spoken by Mujibul Rehman. Even if this court does accept this contention of the Ld. SPP, it remains unexplained how the main investigating officer Akhilesh Mishra became aware at the airport itself that the alleged recipient was to get an amount of Rs. 10 lakhs for the contraband when as per this witness it was only Y R Yadav who was communicating with the Afghani officials and Y.R. Yadav has categorically stated that he was not informed at the airport that the alleged recipient was to get Rs. 10 lakhs. Further if the contention of the Ld. SPP is that it was PW19 Wias Mohd. who was translating everything that was said by Mujibul Rehman at the airport, then obviously this witness would have known that the alleged recipient was to get Rs. 10 lakhs for taking delivery of the contraband. This witness is however categorical in stating in his cross examination that Mujibur Rehman had not told him how much amount was to be brought by Hamidullah. This witness has also stated that it was known that the recipient would be an SC No.02/11 page 64 of 79 NCB Vs. Hamidullah and Ors.
Afghani national and here again he is contradicted by Akhilesh Mishra who has deposed that the nationality of the alleged recipient was not known at all. Ld. Defence Counsels have also pointed out that it also cannot be ignored that two of the witnesses of the prosecution namely, G.S. Bhinder and Sanjay Rawat have stated in their examination in chief itself that the accused before them had disclosed that he was going back from the hotel without taking delivery of the suitcases, because he had run short of money. In other words according to them accused Hamidullah had not disclosed that he was to bring Rs. 10 lakhs to take the delivery of the suitcases.
44. All the aforementioned discrepancies discussed hereinabove clearly indicate that the version of prosecution cannot be believed to be the true narration of the facts as they occurred, for if the version of the prosecution was indeed true, its witnesses would not have contradicted each other on material aspects. In the judgment pronounced by the Hon'ble Delhi High court in a case titled as Gurcharan Singh Vs. State reported in 1993 JCC 254, it has been clearly held by the Hon'ble Court that a condition precedent for the prosecution to prove the guilt of the accused is to first prove that its case is plausible and probable and is a true narration of facts and did happen in the way and manner as it is asserted to have taken place. The Hon'ble Delhi High Court has SC No.02/11 page 65 of 79 NCB Vs. Hamidullah and Ors.
categorically held that in case the prosecution fails in this primary duty, the courts need not go any further and need not make any more enquiry in as much as the said case is liable to be dismissed on this short ground alone.
45. Ld. SPP has then contended that the statements tendered by the accused persons u/s 67 NDPS Act can be made the sole basis for declaring them guilty. In support of his contention he has in particular referred to the judgment of the Hon'ble Supreme Court pronounced in the case tiled as Ram Singh vs. Central Bureau of Narcotics reported in (2011 ) 11 SCC 347. He has also pointed out that in another case tiled as Kanahiya Lal vs. Union of India, the Hon'ble Supreme Court has held that in case an accused takes a plea that the statement given by him u/s 67 NDPS Act was not voluntary, then the onus is upon him to prove the said plea. In rebuttal, as stated herein above the Ld. Defence Counsels have contended that no reliance can be placed upon the purported statements tendered by the accused persons u/s 67 of the NDPS Act as the evidence on record has amply shown that the same were not the voluntary statements tendered by the accused persons. In support of their contention Ld. Defence counsel have in particular relied upon the judgments of the Hon'ble Supreme Court pronounced in the SC No.02/11 page 66 of 79 NCB Vs. Hamidullah and Ors.
cases of Bal Mukand and Noor Agha (Supra).
46. I have gone through all the judicial dicta referred to by the Ld. Counsels. No doubt the Hon'ble Supreme Court in its various judgments pronounced in NDPS cases that have been relied upon by the Ld. SPP has held that a statement given by an accused u/s 67 NDPS Act is admissible in evidence and can be used for determining the guilt of an accused however at the same time the Hon'ble Supreme Court has also cautioned that a court must be satisfied that the said statement was given voluntarily and that before acting solely on confession, as a rule prudence, a court must look for some corroboration. The Hon'ble Supreme Court in its judgments pronounced in cases titled as Union of India Vs. Bal Mukund (supra) and Noor Aga Vs. State of Punjab and Anr. (supra) respectively has clearly held that the purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement. In Bal Mukund's case, the Hon'ble Supreme Court observed that the authorities under the NDPS Act can always show that the accused had not been formally arrested when his statement was recorded u/s 67 of the NDPS Act and that therefore a court while weighing the evidentiary value of such a statement should not lose sight of the ground realities. Further in para 28 of the said judgment the SC No.02/11 page 67 of 79 NCB Vs. Hamidullah and Ors.
Hon'ble Supreme Court has reiterated that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. The Hon'ble Supreme Court in the said case also made it clear that the observations made by it in Kanhaiya Lal Vs. Union of India (2008) 4SCC 668, (a judgment relied by the prosecution to contend that it is under no obligation to prove that the statement tendered by an accused was voluntary) was passed in view of the peculiar facts in the said case namely that no crossexamination of a material witness was conducted with respect to statement tendered by the accused. In Noor Aga's case, the Hon'ble Supreme Court has clearly held that whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. In another case titled as Francis Stanly Vs. NCB reported in (2006) 13 SCC 2010 the Hon'ble Supreme Court has cautioned that a confession asserted to have been recorded under the NDPS Act must be made subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act.
47. Now in the present case a perusal of record shows that both accused Hamidullah and Rais Abdul Wahid have retracted the statements SC No.02/11 page 68 of 79 NCB Vs. Hamidullah and Ors.
tendered by them u/s 67 NDPS Act during the judicial remand proceedings itself. As per record on 29/7/2010 when both the accused persons were produced from judicial custody they gave statements before the Ld. Predecessor of this court that they had been beaten and tortured and that their signatures were taken on blank papers. Thus it is clear that the accused persons retracted the statement purportedly given by them during the stage of remand itself and that present is not a case where the accused persons for the first time retracted the said statements at the stage of recording of their statements u/s 313 CRPC, which was the case before the Hon'ble Supreme Court in Ram Singh's case (Supra). Further it is also to be noted that both PWs Pankaj Kumar Dwivedi and G.S. Bhinder have been cross examined at length by the Ld. Defence Counsels and their deposition that the accused persons had given their statements voluntarily have been duly questioned by the defence, unlike case in Kanahiya Lal's case where the Hon'ble Suprme Court had observed that no cross examination was done on behalf of the defence of a witness who had categorically deposed before the court that the accused had made a confession before him.
48. Further in the present case as per the evidence led on behalf of the prosecution on 17/7/2010 accused Hamidullah after his apprehension gave a voluntary statement u/s 67 of the NDPS Act before PW9 G.S. SC No.02/11 page 69 of 79 NCB Vs. Hamidullah and Ors.
Bhinder and the said statement was reduced into writing by PW17 Pankaj Kumar Dwivedi. The said statement has been exhibited as ExPW9/2. This accused also then after his arrest, during NCB remand is deposed to have given another statement ExPW4/3. Similarly, accused Rais Abdul Wahid is deposed to have tendered two statements u/s 67 NDPS Act one on 27/7/2010 and the other on 28/7/2010. The said statements have been exhibited as ExPW17/1 and ExPW9/5. In none of the aforementioned statements has it been recorded that the accused were informed that they have a right to remain silent. Both PW G.S. Bhinder and Pankaj Kumar Dwivedi have also admitted in their cross examination that they had not informed the accused persons that they have a right to remain silent. It cannot be disputed that on the dates that the accused persons purportedly gave the statements ExPW9/2, ExPW17/1 and ExPW9/5, they were in the custody of NCB though not formally arrested. Accused Hamidullah, as per the own version of the prosecution was taken away from Saptgiri Hotel on 16/7/2010 at about 1:30 a.m. in the night to the NCB office. Though PW G.S. Bhinder has deposed in his cross examination that accused Hamidullah was not in custody when he was in the NCB office on the intervening night of 1617 July, 2010 and that he had not restricted him not to leave the NCB office, it is indeed ludicrous on behalf of the prosecution to assert that the Court must believe the aforementioned SC No.02/11 page 70 of 79 NCB Vs. Hamidullah and Ors.
testimony of G.S. Bhinder. The evasive answers given by this witness and PW17 Pankaj Dwivedi make it clear that this accused was restrained in the office of the NCB after his apprehension from the Saptgiri Hotel and would have not chosen on his own to spend one night in the custody of NCB. Pankaj Dwivedi on being specifically questioned in this regard had evasively deposed that he does not remember who produced Hamidullah before him in NCB office on 17/7/2010 and where was he after the recording of the said statement. Similarly as regards accused Rais Abdul Wahid both the witnesses were questioned where this accused was in between the period that he tendered his statements on 27/7/2010 and 28/7/2010. PW Pankaj Kumar Dwivedi in his cross examination has deposed that after the statement of accused Rais was recorded on 27/7/2010 he left him to rest as he was an old man but that he cannot state whether he remained at the NCB office or he left the NCB office. This witness has also refused to state whether the accused was kept in a lock up at the NCB office or whether he was allowed to leave for his home. He has also refused to reveal whether he himself had issued a summon to this accused directing him to appear again on 28/7/2010 or not. He though did state that a summon was issued, he could not remember where was the service of the said summon made, whether at the residence of this accused or at the NCB office. Similarly G.S. Bhinder SC No.02/11 page 71 of 79 NCB Vs. Hamidullah and Ors.
does not also seem to remember how the accused Rais Abdul Wahid was served for the two dates and whether he remained in the NCB office even after tendering his statement on 27/7/2010. Keeping in view the evidence on record and the kind of answers that have been given by PW G.S. Bhinder and PW Pankaj Kumar Dwivedi, there is no doubt in the mind of this court that both these accused persons were in the custody of the NCB at the time when they were interrogated u/s 67 NDPS Act. It is therefore clear that both these accused persons were deprived of a very important right, namely to be informed that they have a right to remain silent. Thus in view of the pronouncement made by the Hon'ble Supreme Court in Bal Mukund's case, the statements purportedly tendered by the accused persons cannot be accepted to be their voluntary statements.
49. It also cannot be lost sight of that most of the three statements are written in chaste Hindi. Admittedly both the accused persons are Afghan nationals. Both of them have taken a plea that though they can speak broken Hindi, they cannot read or write Hindi. When G.S. Bhinder was questioned whether he knew if the accused Hamidullah was able to read and understand the proceedings being conducted by the NCB officials, his reply was that accused Hamidullah had informed him that he could not read. Similarly Pankaj Kumar Dwivedi on being questioned in this regard had deposed in his cross examination that accused Hamidullah did SC No.02/11 page 72 of 79 NCB Vs. Hamidullah and Ors.
not know how to read or write Hindi. He then also volunteered to state that the accused was however speaking Hindi but that he does not remember whether accused Hamidullah was also speaking Farsi or Urdu. He then went on to state that accused Hamidullah has given his statement in mixed form i.e. some words in Hindi and some words in some other language, but that he does not remember which was the said other language. This witness when confronted with the statement ExPW9/2 was unable to point out any word other than Hindi in the said statement. The answers given by both these witnesses make it clear that the accused Hamidullah could not read or write Hindi & could not have dictated the entire purported contents of the statement ExPW9/2. Similarly the answers given by these witnesses with respect to accused Rais Abdul Wahid also make it amply clear that this accused also did not know how to read or write Hindi. Infact as per Ex17/1 & Ex9/5, this accused had written some portions of the said statements in his own handwriting, but the portion written by him in Ex17/1 is in Urdu and the portion written by him in Ex9/5 is in English. Though it is understandable that the NCB officials were not expected to write in Urdu, they could have very well have written the statement of this accused in English, when it was disclosed to them that this accused could read and write English. There is absolutely no explanation forthcoming from the prosecution as to why SC No.02/11 page 73 of 79 NCB Vs. Hamidullah and Ors.
statement of this accused was not written in English and why did the NCB officials chose to write his statement in Hindi, a language he could not read or write. It is also not understandable that if this accused was able to write English, why was he not allowed to his statement in his own handwriting.
50. PW17, Pankaj Kumar on being questioned in this regard has evasively deposed in his crossexamination that he does not remember that this accused wrote some portion of his statement recorded on 28.07.2010 in English . PW G.S. Bhinder on being questioned in this regard has stated that he came to know on 28.07.2010 that the accused could write English but according to him, the accused still did not write his own statement because he requested him (G.S. Bhinder) to write his statement. This witness is however, unable to explain why he chose to write the said statement in Hindi and not in English more so when he came to know that accused Abdul Wahid could write and read English. In Noor Aga's case the Hon'ble Supreme Court held that an inference that the accused was subjected to duress and coercion could be drawn from the fact that though the accused was an Afghan National, his statement had use of technical terms , the knowledge of which could not be attributed to him. In the present case also, words like dhara, panchnama have been used in the statements of the accused persons , the use and SC No.02/11 page 74 of 79 NCB Vs. Hamidullah and Ors.
knowledge of which could not be attributed to them. Ld. Defence Counsel Sh. S.S. Dass has placed on record a copy of order passed by Hon'ble Delhi High Court in Criminal L.P.192/2009 has observed that if the statement of an accused is written by the NCB officials despite the fact that the accused was in a position to write, the said statement cannot be stated to be beyond suspicion. The manner in which addresses of Abdul Wahid have been put in a squeezed form in the purported statement ExPW9/2 and the time period between the recording of the said statement and the apprehension of accused Abdul Wahid do indicate that the Ld. Defence Counsels may not be wrong in contending that the statements purportedly tendered by the accused persons were infact prepared by the NCB officials as per their own convenience. It will also be relevant herein to state that one of the contention of Ld. SPP for NCB is that the statement given by accused Abdul Wahid cannot also be doubted for it contained the facts of his earlier involvement, which could not have been known to the NCB officials. A similar contention infact was also made on behalf of the prosecution before Hon'ble Supreme Court in Noor Agha's case. While dealing with the said contention Hon'ble Supreme Court clearly held that only because certain personal facts known to an accused are written in his statement, the same by itself would not lead to the conclusion that they were free and voluntary. In SC No.02/11 page 75 of 79 NCB Vs. Hamidullah and Ors.
view of the discussions hereinabove this court is of the considered opinion that the statements purportedly tendered by the accused persons u/s 67 of NDPS Act cannot be expected to be their voluntary statement and therefore no reliance can be placed upon them.
51. Coming now to the last incriminating piece of evidence that has been relied upon by the prosecution against the accused persons, the same are the call detail records of two mobile phones allegedly recovered from the accused persons. According to the Ld. SPP the said call detail records show that both the accused persons were in touch in with a number in Afghanistan and that therefore this fact shows that both of them had conspired to import heroin. I am afraid that the said contention of the Ld. SPP is completely unacceptable to this court for the mere fact that both the accused persons were in touch with the same person in Afghanistan can hardly lead to the inference that they were conspiring to import heroin from the same source, more so when the NCB has not produced a shred of evidence before this court to show to whom the said number in Afghan belonged to. Infact if the accused persons were in conspiracy with each other then at least there would have been calls made between them but strangely the call detail records shows that not a single call was made from the mobile number allegedly recovered from the accused Rais Abdul Wahid to accused Hamidullah or vice versa. It will SC No.02/11 page 76 of 79 NCB Vs. Hamidullah and Ors.
be relevant herein to mention that along with the complaint a document was filed at page 117 and as per a statement made by PW8 Akhilesh Kumar Mishra, in his examination in chief, the same is a chart showing the complicity of the accused persons and their connections with their source in Afghanistan. However when this witness is questioned as to whether the NCB at any time had made any investigation with respect to the so called source in Afghanistan, not only this witness but all the NCB officials have categorically stated in their cross examination that no information could be gathered till date about the said asserted source of the accused persons in Afghanistan. Further though as per the said document both the accused persons had been making calls to one person "Palawan" in Afghanistan, none of the prosecution witnesses have been able to shed any light on the said term "Palawan" used in the said document. They are even unable to state whether the term Palawan refers to a place or a person in Afghanistan. According to PW19 Palawan only means a wrestler and he is also therefore unable to explain the importance of the said chart. In view of the aforementioned depositions of the prosecution witnesses it can hardly be held that the prosecution has been able to prove the charge that both the accused persons had criminally conspired with a person sitting at Palawan, Afghanistan to import 4 kg. of heroin into India.
SC No.02/11 page 77 of 79
NCB Vs. Hamidullah and Ors.
52. The entire aforementioned discussion, in the opinion of this court shows that none of the circumstances relied upon by the prosecution against the accused persons can be said to have been proved by them beyond reasonable doubt. The purported statements given by the accused also cannot be held to be their voluntary statements. To recapitulate, the failure of the prosecution to explain satisfactorily the deposition of PW7, the inconsistencies between the depositions of the members of the raiding team, the reasons for not producing any employee of the hotel and not investigating the incoming calls being reflected in the call detail records of the mobile allegedly used by Hamidullah, all in conjunction, throw a grave doubt on the case of the prosecution. In a case where no public witnesses have been joined, the accused persons could have proved that a false case had been hoisted upon them by only pointing out discrepant statements made by the prosecution witnesses on material aspects of its case and in the considered opinion of this court they have succeeded in doing so.
53. In the present case, this court is constrained to hold that the prosecution has not come forward with the true narration of facts and the evidence brought on record makes it clear that the case of the prosecution is fraught with doubts and therefore it cannot be held that the prosecution has been able to prove its case against the accused persons beyond reasonable SC No.02/11 page 78 of 79 NCB Vs. Hamidullah and Ors.
doubt. The Hon'ble Supreme Court has in its judgment pronounced in case titled as Premchand Vs. Union of India reported in 1981 SCC(Crl.) 239, has insisted that in the administration of criminal law, the means that the prosecution agency adopts to secure the conviction of a criminal must also be as good as the ends. In the case titled as State of Punjab vs. Baldev Singh reported in (1999) 6 SCC 172 the Hon'ble Supreme Court has observed that indeed in every case the end result is important but the means to achieve it must remain above board and the remedy cannot be worse than the disease itself. The Hon'ble Supreme court has cautioned that legitimacy of the judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice which cannot be permitted. In view of the discussion hereinabove, this court is therefore of the considered opinion that the accused persons are entitled to be given benefit of doubt for the prosecution has failed to prove its case against them beyond reasonable doubt. As such the accused persons are therefore hereby acquitted of the offences that they have been charged with.
Announced in open court (Anu Grover Baliga)
On: 22nd November, 2012 Special Judge: NDPS
New Delhi
SC No.02/11 page 79 of 79