Sc No. 71A/08 Dri vs . Sukleshwar Basumatary & Ors. on 24 December, 2014

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Delhi District Court

Sc No. 71A/08 Dri vs . Sukleshwar Basumatary & Ors. on 24 December, 2014

                                     1


                   IN THE COURT OF SHRI M.K.NAGPAL
                ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
                    SAKET COURT COMPLEX, NEW DELHI


         Directorate of Revenue Intelligence
         Delhi Zonal Unit, New Delhi
         Through Sh Alkesh Rao, Intelligence Officer

                                V E R S U S

1.       Sukleshwar Basumatary
         S/o Sh Paniram Basumatary
         R/o Village Jumbuguri
         P.O. Gerua Bazar
         Assam.

2.       Francis L. Hmar @ Muhammed Rashid
         S/o Sh R. Choudhary
         R/o Room No. 3, Neelkanth Apartment
         Kishangarh, Vasant Kunj
         New Delhi.


SC No.: 71A/08
U/S   : 21/23/29 NDPS Act
Computer ID No. O2403R0950272008


Date of institution                      :   28.11.2008
Date of reserving judgment               :   17.12.2014
Date of pronouncement                    :   24.12.2014
Decision                                 :   Both accused acquitted

J U D G M E N T

The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi (hereinafter referred to as DRI) through Sh Alkesh Rao, Intelligence Officer (hereinafter referred to as the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

IO/PW6), against both the above accused persons for commission of the offences punishable U/S 21, 23 and 29 of the NDPS Act, 1985.

2. The facts of the case, in brief, are that on 02.06.2008 at about 6:00 PM, an intelligence was gathered by PW2 Sh K. S. Ratra through some reliable sources that two Indians belonging to North East India would travel in a silver colour Tata Indica car bearing registration number DL 3C AX 4435 towards IGI Airport, New Delhi, in between 9:00 PM to 9:30 PM on that day, alongwith some narcotic drugs, i.e. heroin, concealed in a suitcase. PW2 had immediately reduced the above information into writing as Ex. PW2/A and had put the same before his senior officers, who had called the complainant/IO/PW6 Sh Alkesh Rao and directed him to immediately organize a team and rush to the spot to intercept the persons and the goods.

3. It is alleged that based on the above intelligence, the IO/PW6 had called two public witnesses in their office at around 7:00 PM on that day and requested them to join the possible interception of the above vehicle and the occupants thereof, to which they both agreed. A team of DRI officers, accompanied by the two public witnesses, had then left their office at about 7:15 PM and reached near the CISF check-post outside the IGI Airport and started mounting a surveillance near the said check-post. At about 9:00 PM, the above Indica car SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

was spotted by them near the above check-post and they had intercepted it. The car was found to be occupied by a driver and two other persons, who were seemingly of North East origin, were also sitting in the car. The officers of DRI disclosed their identities to the occupants of the vehicle and the identities of the two North Eastern persons were revealed on enquiry to be the accused Sukleshwar Basumatary and Francis L. Hmar @ Muhammed Rashid and that of the driver as one Rakesh Kumar Nainawat. On enquiry by the DRI officers, the accused persons had though initially denied the possession/transportation of any contraband goods, but on persistent questioning they admitted that one packet containing about 2 KG of heroin was kept in a blue colour zipper suitcase of 'American Tourister' brand lying in the dickey of the said car. It was further revealed by the accused no. 1 that he was going to Kualalumpur by a Malaysian Airlines Flight No. MH-0191 of that day and the above blue colour suitcase was his luggage and the accused no. 2 was accompanying him only to drop him at the airport and was his friend.

4. Thereafter, the IO/PW6 had given separate notices U/S 50 of the NDPS Act Ex. PW6/B, Ex. PW6/C and Ex. PW6/D respectively to the above two accused and the driver of the said vehicle and they all were asked if they required the presence of a Magistrate or a Gazetted Officer for carrying out their searches and in reply to the said notices, all of them are alleged to have SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

expressed their desires in writing, on their respective notices itself, that they did not require the presence of such officers and their search could be conducted by any officer of DRI. They had also requested the DRI officers to take them to any safer place for their search as the above place of their apprehension was not a safe place and it is alleged that, accordingly, all the above three persons, alongwith their above vehicle, the blue colour suitcase and the two panch witnesses, were brought to the office of the DRI situated at CGO Complex, Lodhi Road, New Delhi.

5. After reaching there, the search of the above car of the accused was conducted, in the presence of the public witnesses, and the above blue colour suitcase was recovered from the dickey of the said car and on checking, it was found to contain some old and used cloths only. But on careful examination of the suitcase, it was observed that the bottom of the suitcase was abnormally thick and the screws inside the above bottom were removed and on breaking open the screws of the bottom of the said suitcase, one transparent polythene bag wrapped with brown adhesive tapes was found concealed therein and on opening, the same was further found to contain some off white colour powder giving a pungent smell. On testing with a drug testing kit, the above substance gave positive result for heroin and the gross weight of the above packet was found 2.072 KG and the net weight of the heroin contained therein to be 1.985 KG.

SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

The above heroin, alongwith its packing and the above blue colour zipper bag, were seized for violation of the provisions of the NDPS Act.

6. The IO/PW6 had drawn three representative samples of 5 Grams each out of the above recovered heroin and the same were kept in three separate transparent polythene pouches, which were stapled and marked as A1, A2 and A3 and were then further kept in separate brown colour paper envelopes and sealed with the DRI seal over a paper slip bearing the dated signatures of the IO/PW6, the two panch witnesses and the above three occupants of the vehicle. The remaining heroin was put back in the same polythene bag and then in a yellow colour paper envelope, which was also sealed with the above seal and in the same manner. This sealed packet of remaining heroin was further kept in a steel box, which was also converted into a cloth parcel and sealed in the same manner. A separate parcel of the above blue colour zipper bag was also prepared. The personal search of the two accused and the above Rakesh Kumar Nainawat was also conducted by the IO/PW6 and in the personal search of accused no. 1, his e-ticket passenger itinerary receipt dated 02.06.2008 for the above flight from Delhi to Kualalumpur and also his return flight dated 16.06.2008 from Kualalumpur to Delhi and his passport number G3110202 issued from Guwahati were recovered. However, nothing incriminating was recovered from the personal search of accused no. 2 or Sh Rakesh Kumar Nainawat.

SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

Some documents pertaining to the above vehicle were also recovered from the said vehicle, which are Ex. PW6/E1 to Ex. PW6/E5 on record, and the said car and the documents were also taken into possession for the purposes of investigation. The IO/PW6 had also prepared a detailed panchnama Ex. PW6/E regarding the above proceedings and had further drawn the test memos in triplicate, including the test memo Ex. PW6/P, and a facsimile of the above DRI seal was also affixed on the panchnama as well as on the test memos. The contents of the panchnama were explained to both the accused, the two panch witnesses as well as the above Rakesh Kumar Nainawat and they all had signed the same after understanding the contents thereof, besides signing of the same by the IO/PW6 himself.

7. It is further alleged that in response to the summons Ex. PW6/F dated 03.06.2008 served upon the accused no. 1 Sukleshwar Basumatary, he had tendered his voluntary statement Ex. PW6/G before the IO/PW6 on the same day, in which, besides disclosing his personal details, he had admitted their interception from the above place and with the above vehicle and contraband substance, and also all the subsequent proceedings done regarding the said substance. It was further disclosed by him in his above statement, inter-alia, that his above passport was got issued by him from Guwahati and he had come to Delhi from Guwahati on 02.06.2008 itself at around 4:00 PM by an Air Deccan Flight and he was received at the Delhi Domestic Airport by the accused no.

SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

2 and was taken from there to Sarojini Nagar market in the above Tata Indica car. He had further disclosed therein that the accused no. 2 got down from the car there and went inside the above market and after sometime, he had returned back with the above blue colour zipper bag and kept it in the dickey of the car. From there, he was taken by accused no. 2 to his (accused no. 2's) house at Neelkanth Apartment, Vasant Kunj, New Delhi, where he had taken bath and some food and was also given the above tickets for Delhi to Kualalumpur and return ticket from Kualalumpur to Delhi by the accused no. 2 and he (accused no. 2) further handed him over the above blue colour zipper suitcase and told him that the same was to be delivered to his (accused no. 2's) friend at Kualalumpur in Malaysia. Accused no. 2 had also given him 400 US$ for the above job and then they had left for the airport in the above car, with the above suitcase lying in the dickey thereof, and then were intercepted by the DRI officers at the above check-post. He had further disclosed therein that he was fully aware that about 2 KG of heroin was concealed in the above suitcase and this fact was told to him by accused no. 2 at the time of handing over of the said suitcase to him and he had come to India for doing the above job of carrying the consignment of 2 KG of heroin in the above blue colour zipper suitcase at the instance of a person named Sankar, who contacted him on phone and asked him to go to Delhi and to meet the accused no. 2 for delivery of the above suitcase and Sankar promised him a good amount of money SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

for the said job and Sankar also told him that his travel tickets will be arranged by accused no. 2. On being questioned regarding his previous visits to foreign countries, the accused no. 1 had further disclosed in his above statement that earlier also he came to Delhi on 03.03.2008 and from here he had gone to Malaysia and from there to Senjen (China) on 04.03.2008, at the instance of the above Sankar, and at that time also he carried a suitcase containing 2 KG of narcotic drugs concealed therein with him, which was handed over to him in Delhi by a Manipuri lady named Indira and was further delivered by him in China to some Nigerian National and he got Rs. 30,000/- for the above previous delivery and this time, he was also to get Rs. 25,000/- from the accused no. 2.

8. Similarly, in response to the summons Ex. PW6/H served upon the accused no. 2, he had also tendered a similar statement Ex. PW6/J on the same day before the IO/PW6, in which he had also admitted their interception with the above contraband substance from the above place, besides disclosing his personal details. It was disclosed by this accused in his above statement, inter- alia, that one person named Emmanuel met him around one year back in Delhi, through one of his wife's contact namely Ms Lal Ramngai, and Emmanuel offered him to work for him (Emmanuel) in sending heroin out of India, to which he agreed for the sake of money. It was further disclosed by the accused no. 2 that he had gone to Delhi Domestic Airport on 02.06.2008 to receive accused no. 1, SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

who had called him on his mobile number 9911504020 and met him at the Indigo counter there at about 4:00 PM, at the instance of the above Emmanuel only and from there, they both had gone to Sarojini Nagar market in the above Indica car. He further disclosed therein that he got down from the car at the said market and Emmanuel met him there near a shoe shop and delivered the above blue colour suitcase containing the above drug consignment of 2 KG concealed therein to him, which he kept in the dickey of the car. It was further disclosed by him that from there, they all, including Emmanuel, had started for his residence at Neelkanth Apartment and on the way, Emmanuel got down at Cannaught Place and went to a travel agency office with the passport of accused no. 1 and brought the above tickets for journey of the accused no. 1 from Delhi to Kualalumpur and back to Delhi. From there, they all had then reached at his above residence and there, Emmanuel handed over the passport and tickets of accused no. 1 to him (accused no. 1) and also told him that 2 KG of heroin was concealed in the above suitcase, which was to be carried by him (accused no. 1) to Kualalumpur, Malaysia by the above flight and from there, they all had started for the IGI Airport in the above Indica car, but Emmanuel got down on the way near Priya Cinema. He had further disclosed therein that the above Tata Indica car was called by him from one Ashok of Ashoka Tourist and Taxi Service, Kishangarh, Vasant Kunj and the same was being driven by Rakesh Kumar Nainawat.

SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

9. In response to the summons Ex. PW6/K of even date served upon the above driver Rakesh Kumar Nainawat, his statement Ex. PW6/L U/S 67 of the NDPS Act was also recorded regarding his driving of the above taxi and their interception outside the above airport. However, from the above statements, it was found that the driver Sh Rakesh Kumar Nainawat was not connected or concerned with the above seized substance and hence, he was let off.

10. Since both the accused appeared to have committed offences punishable U/S 21, 23 and 29 of the NDPS Act, they both were arrested in this case on that day itself vide arrest memos Ex. PW6/M and Ex. PW6/N respectively and were also got medically examined from RML Hospital, on a letter Ex. PW8/A given PW8 Sh Ramesh Kumar and, vide MLCs Ex. AD1 and Ex. AD2 respectively, which both have been admitted on record by Ld defence counsels. Thereafter, they were produced in the court and got remanded to judicial custody. The intimations Ex. PW8/B and Ex. PW8/C respectively were also sent by PW8 to the family members of the two accused on that day and one report U/S 57 of the NDPS Act Ex. PW6/O regarding their arrest and seizure of the above heroin was also submitted to PW8 by the IO/PW6 on the same day. The sealed parcels of the case property were deposited by the IO/PW6 with PW3 Sh Dharamvir Sharma of Valuable Godown, New Customs House, New Delhi for safe custody on that day vide deposit/inventory memo of goods Ex. PW3/A and SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

one sealed sample parcel, alongwith duplicate test memos, was also deposited with the CRCL, New Delhi on the same day by PW5 Sh L. S. Rauthan, vide authorization letter Ex. PW5/A given by PW8 and it was received there vide acknowledgment Ex. PW1/A issued by PW1 Sh Jaiveer Singh. In the follow up action, the above residential premises of the accused no. 2 in Neelkanth Apartment were also got searched on that day, but nothing incriminating was recovered therefrom.

11. The residential premises of the accused no. 1 were also got searched through the DRI unit at Guwahati on 17.06.2008 and nothing incriminating was recovered from these premises also. The statement of one Sh Paniram Basumatary, the father of accused no. 1, was also recorded on the above day of search, through one Prabin Kumar Basumatary, wherein he had stated, inter-alia, that his son/accused no. 1 had left his home about five years back and as per their knowledge, he was working in a hotel named City Hut Family Dhaba, Oakland Police Bazar, Shillong and he last visited his house about one month before. On 19.06.2008, the statement Ex. C1 (it is also an admitted document) of one Sh Shyam Pradhan, Sr. Manager of the above restaurant/dhaba was also recorded, in which he deposed that the above accused no. 1 was not attending his duties since 23.05.2008 as he told them that he was going to his house. The statement of one Sh Govind Kumar of the above Ashoka Tourist Taxi Service was also recorded on 20.06.2008, regarding the renting out of SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

the above car through their driver Rakesh Kumar Nainawat and its interception from outside IGI Airport on that day, as he came to know subsequently. Some investigation was also conducted and statements of few persons recorded regarding the issuance of the above e-tickets of the accused no. 1 from Delhi-Kualalumpur-Delhi and it was revealed that the same were booked by M/S Indian Travel Bureau, a sub-agent of M/S Hi Tours (India) Pvt. Ltd., through the main agent M/S Akbar Travels of India Pvt. Ltd. It was further disclosed by the concerned officials of M/S Indian Travel Bureau that the said tickets were got issued by a person, looking like an African, who also produced the original passport of the above accused at the time of issuance of the said tickets and the payments thereof were made in cash, which they further transferred to the above agents. However, he could not provide any further details of the above African person. Some call details of the above mobile phone of accused no. 2 were also collected from the concerned service provider.

12. Vide the test report Ex. PW4/A dated 19.06.2008 of the CRCL, New Delhi, the above sample is reported to have tested for the presence of diacetylmorphine (heroin) with a purity of 60.8 per cent. The above persons namely Sankar, Ms Indira and Emmanuel, as named by the accused persons in their above statements, could not be traced out for want of their complete particulars and hence, could not be interrogated or joined in the investigation. After completing some formalities of investigation, a SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

complaint for commission of the above said offences was ultimately prepared against both the accused persons by the IO/PW6 and filed in the court.

13. The complaint was filed in this court on 28.11.2008 and cognizance of the above offences was taken on the same day. A prima facie case for commission of the offence punishable U/S 29 of the NDPS Act and also U/S 21(c) and 23(c) read with Section 29 of the NDPS Act was also found to be made out against both the accused persons vide order dated 18.03.2009 of this court and charges for the said offences were also framed against them on the same day.

14. It is necessary to mention here that one Philippines National named Ms Bitoren Dolores Fernandez was also intercepted subsequently by the DRI officers from the premises of the Domestic Airport of Delhi on 14.12.2008, on the basis of a secret intelligence, when the above passenger/accused was scheduled to board an Indigo Flight for Hyderabad, and one packet containing heroin was recovered from the luggage of the above accused. The said packet was found weighed 2.106 KG and the net weight of the heroin contained therein was found to be 1.987 KG. During the course of investigation of the above case, it had come on record in the statement U/S 67 NDPS Act made by the above female accused that she had come to India from Hanoi at the instance of one Nigerian person named Mr Kent, with whom she was involved SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

in drug dealings, and as per the instructions of Mr Kent, she had landed at Hyderabad from Hanoi, via Kualalumpur, and contacted Mr Kent's brother in Delhi on a contact number provided to her by Mr Kent and then from Hyderabad she came to Delhi and as per the instructions of the brother of Mr Kent, she had reached at the residence of the brother of Mr Kent at Flat No. T-304, 3rd Floor, Hill View Apartment, and had stayed there and she was supposed to take a consignment of drugs to be given to her by the brother of Mr Kent for its delivery at Hanoi for some monetary considerations. The above air tickets of her journey from Hanoi to India and return back to Hanoi were arranged by the above Mr Kent.

15. It was further disclosed by the above accused Bitoren Dolores Fernandez in the said case that on 13.12.2008, the wife of brother of Mr Kent had taken her to the Delhi Domestic Airport and got issued a ticket for her journey from Delhi to Hyderabad for the above flight dated 14.12.2008 and in the evening of 14.12.2008, another African person named Mr Jan had visited the house of brother of Mr Kent with one bag containing the above packet of heroin already concealed therein and then Mr Jan and the brother of Mr Kent had helped her in packing her cloths in the said bag and had given some instructions to her for taking the above bag with concealed heroin for its onward delivery at Hanoi, but she was subsequently caught at the airport with the above bag/baggage containing heroin.

SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

16. In the follow up action and further investigation carried out in the above case, it had also been revealed subsequently that the above Flat No. T-304, Hill View Apartment was in-fact rented out to one Ms Lal Ramngai Hmar @ Ms Joel Hmar wife of one Emmanuel @ Mr Joel Hmar and the statements of these persons U/S 67 of the NDPS Act, alongwith the statement of the owner/ landlady of the said house, were also recorded in that said case. It was further revealed in the above statements that the above female accused Bitoren Dolores Fernandez @ Dolly had in-fact stayed at the house of the above Emmanuel and Ms Lal Ramngai Hmar and the above Emmanuel was actually the person with whom she had met and had referred to as the brother of Mr Kent and the above bag containing the heroin concealed therein was also handed over to her by the above Emmanuel and one other person named Mr Jan, as stated above. It was also disclosed by the above Emmanuel in his statement recorded in the said case that he had permitted the accused Bitoren Dolores Fernandez to stay at his house and had further given the above drug consignment to her for its delivery at Hanoi only on the instructions of the above Mr Kent, who was his Nigerian friend based in China and by whom he was induced into the drug dealings. Hence, the above Emmanuel (complete name Emmanuel Chilkezie) was also arrested in the said case on 23.12.2008 and a complaint for commission of the offences punishable U/S 21, 23 and 29 of the NDPS Act was filed against him as well as the other accused Bitoren Dolores Fernandez and SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

the above case is also pending in this court and is numbered as SC No. 39A/09, which is also being taken up for disposal alongwith the present case.

17. It was further disclosed by the above accused Emmanuel Chilkezie and his wife/live in partner Ms Lal Ramngai Hmar in their statements made in the above case SC No. 39A/09 that the accused no. 2 Francis L. Hmar @ Muhammed Rashid of this case was in-fact the husband of the real sister of Ms Lal Ramngai Hmar and Ms Lal Ramngai Hmar had also stayed for sometime at the residential premises of accused no. 2 at Neelkanth Apartment, Kishan Garh, Vasant Kunj, New Delhi and even the above accused Emmanuel Chilkezie was visiting the said premises to meet the accused no. 2 of this case. It had further come in their statements recorded in the above case that they both were aware that the accused no. 2 Francis L. Hmar @ Muhammed Rashid was in jail in connection with a seizure of heroin effected from his possession. The accused Emmanuel Chilkezie had further disclosed in his statements recorded in the said case that the consignment of drugs for which the accused no. 2 Francis L. Hmar was arrested and was in jail was actually given to the above accused by him, i.e. the accused Emmanuel Chilkezie, and he had further identified the photograph of accused no. 2 appearing on a driving license, which was recovered during the search of their above rented premises at Flat No. T-304, Hill View Apartment, Mehrauli in the above other case SC No. 39A/09.

SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

18. Based on the disclosures made in the above statements of accused Emmanuel Chilkezie himself in case SC No. 39A/09 and further the disclosures made by the accused no. 2 Francis L. Hmar @ Muhammed Rashid in his statement made in this case that it was in-fact the accused Emmanuel Chilkezie who had met him (accused no.

2) in Sarojini Nagar Market and had given to him the bag containing the packet of heroin concealed therein and which was to be taken by the accused no. 1 Sukleshwar Basumatary of this case to Kualalumpur, the DRI had filed an application dated 16.09.2011 before this court in the above case SC No. 39A/09 seeking appropriate directions from this court for effecting the arrest of the accused Emmanuel Chilkezie in connection with the seizure of this case, which was effected from the accused persons on 02.06.2008 outside the IGI Airport. The above said application was allowed vide order dated 20.09.2011 of this court and subsequently a separate complaint for commission of the above said offences punishable U/S 21, 23 and 29 of the NDPS Act was also prepared and filed against the accused Emmanuel Chilkezie in this court on 04.11.2011 and the above case is also pending in this court vide SC No. 33A/11 and the same is also being taken up for disposal alongwith the present case SC No. 71A/08. However, since these three cases have been tried separately and separate evidence has been led in these cases, the same are being disposed off vide separate judgments.

SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

19. The prosecution in support of its case, i.e. case SC No. 71A/08, has examined on record total 19 witnesses. It is stated herein that the witnesses named Sh Trilok Chand and Sh Sanjay Kumar have both been examined as PW15 and hence, to avoid any confusion, Sh Sanjay Kumar has been renumbered and referred to as PW15- A. It is also stated herein that inadvertently no witness has been examined at serial number 18 and hence, Sh K. K. Dhasmana examined as PW19 is being renumbered and he will be referred to as PW18. It is also stated herein that no fresh document was brought on record and exhibited in their statements and the documents referred to by them were already brought in evidence during the statements of the other prosecution witnesses. The names and the purpose of examination of the above witnesses is being stated herein below:-

20. PW1 Sh Jaiveer Singh, Lab Assistant of CRCL, had only received the above sealed sample parcel, alongwith the duplicate test memos and forwarding letter, vide acknowledgment Ex. PW1/A issued by him and he stated that he received the sample on the directions of Sh S. C. Mathur, Chemical Examiner, to whom he had also handed over the above parcel and documents after receiving the same.

21. PW2 Sh K. S. Ratra, Intelligence Officer of DRI, had received the above information, reduced it into writing as Ex. PW2/A and had put up the same before his SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

senior officer/PW18 Sh K. K. Dhasmana.

22. PW3 Sh Dharamvir Sharma, Inspector and In- charge of the Valuable Godown of the New Customs House, had only received the above parcels of the case property from the IO/PW6 and made his endorsement on the deposit/inventory memo thereof Ex. PW3/A in this regard.

23. PW4 Sh Bhuvan Ram and PW7 Sh S. C. Mathur are the Assistant Chemical Examiner and Chemical Examiner respectively of CRCL, New Delhi and they have also deposed about the receiving of the above sample and the subsequent testing thereof and have further stated that it tested positive for the presence of diacetylmorphine (heroin) and the report Ex. PW4/A was given by them. PW4 has also proved the short analysis report given by him in Section II of the test memo as Ex. PW4/B.

24. PW5 Sh L. S. Rauthan, Intelligence Officer of DRI, had only deposited the above sample parcel, alongwith the duplicate test memos and forwarding letter, with CRCL, vide forwarding letter Ex. PW5/A issued by his senior officer Sh Ramesh Kumar/PW8 in his favour. PW4 has also identified the remnant of the above sample.

25. PW6 Sh Alkesh Rao, Intelligence Officer of DRI, is the complainant and main Investigating Officer of this case and he was heading the above raiding team of DRI, which had apprehended the accused persons from the above SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

place and with the above contraband substance. He has broadly deposed on the above lines of the prosecution story and has proved the various documents of this case, prepared by him in connection with the investigation of the case. He has also identified both the accused persons as well as the case property and samples.

26. PW8 Sh Ramesh Kumar, the then Appraiser of DRI, had counter signed the deposit memo Ex. PW3/A of the case property, gave forwarding letter Ex. PW5/A for deposit of the sample parcel, sent the arrest intimations Ex. PW8/B and Ex. PW8/C of the accused persons to their family members, wrote the above letter Ex. PW8/A for medical examination of the accused persons and also wrote one other letter Ex. PW8/D for obtaining some call details of the above mobile phone of the accused no. 2.

27. PW9 Ms Anju Singh, another Intelligence Officer of DRI, was heading a raiding party constituted for the search of the above house of accused no. 2 at Neelkanth Apartment on 03.06.2008, vide search authorization Ex. PW9/A issued in her favour, and she had prepared the panchnama Ex. PW9/B regarding the above search and submitted one report Ex. PW9/C to her senior officer.

28. PW10 Sh Atul Handa, the then Deputy Director, is the officer, who had issued the above search authorization Ex. PW9/A in favour of PW9. As stated above, nothing incriminating was recovered in the above SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

search.

29. PW11 Sh Pawan Singh is the Nodal Officer of M/S Idea Cellulars and he has stated that vide his letter Ex. PW11/E, he had supplied a copy of the Subscriber Application Form Ex. PW11/A, copy of the identity document Ex. PW11/B of the subscriber and further a copy of the call details of the above mobile phone no. 9911504020 during the investigation of the case, which was found to be in the name of one Muhammed Rashid, i.e. the accused no. 2.

30. PW12 Sh Rakesh Kumar Nainawat is the driver of the above Indica taxi and he has deposed regarding the interception of the above car, the apprehension of the accused persons and seizure of the above contraband substance, his participation in the proceedings thereof and the recording of his above statement U/S 67 of the NDPS Act. He has also identified the accused as well as his signatures appearing on various documents and also the case property.

31. PW13 Sh Govind Kumar is the owner of the above Indica taxi and he has deposed about the renting out of the said car to the accused no. 2, on receiving a phone call from the above accused, and its subsequent interception by the DRI officers, in connection with the above seizure, as he was told by his driver. He has also stated that he tendered his statement Ex. PW6/R in this SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

regarding during the investigation, on receipt of the summons Ex. PW6/Q.

32. PW14 Sh S.G.R. Rizvi, Assistant General Manager of Hi Tour Travels Pvt. Ltd, PW15 Sh Trilok Chand of Indian Travel Bureau and PW16 Sh Vinod Kumar, Regional Manager of Akbar Travels Indian Pvt. Ltd have all deposed regarding the issuance of the e-tickets of the accused no. 1 for his above journeys and it has been stated by them that the same were booked from the office of Indian Travel Bureau, which further booked these tickets through M/S Hi Tour Travels Ltd., who in-turn had booked it through M/S Akbar Tour Travels. They have also deposed about the making of their statements Ex. PW6/X, Ex. PW6/Z1 and Ex. PW6/T & U respectively and tendering of some documents Ex. PW6/Y, Ex. PW6/Z2 and Ex. PW6/V (collectively) respectively in this regard during the investigation of this case.

33. PW15-A Sh Sanjay Kumar, the then Tax Assistant, DRI has deposed regarding the issuance of the above DRI seal to the IO/PW6 by him and its return back to him and he has also made an entry in this regard in the seal movement register at serial no. 63, copy of which has been proved on record Ex. PW6/A.

34. PW17 Sh A. K. Khatri was posted as Additional Director, DRI on the above date and he has stated that the above secret information Ex. PW2/A was put up before SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

him by Sh K. K. Dhasmana and he had given the necessary directions to Sh K. K. Dhasmana to act upon the same, vide his endorsement made on the said information itself.

35. PW18 Sh K. K. Dhasmana is the person before whom the above information was initially put up by PW2 Sh K. S. Ratra and he in-turn had put up it before Sh A. K. Khatri and then, in view of the directions given by Sh A. K. Khatri, he had briefed the IO/PW6 Sh Alkesh Rao to act upon the said information.

36. It is also necessary to mention here that the two public/panch witnesses namely Sh Ram Singh and Sh Shamu joined in the above seizure were not examined on record by the DRI and they both were dropped on 13.10.2011 as it was consistently being reported on their process that their given addresses were either incomplete or not in existence.

37. After the conclusion of the evidence of the prosecution, all the incriminating evidence brought on record by the prosecution was put to both the accused persons in their statements recorded U/S 313 Cr.P.C. and the same was denied by both of them to be incorrect. In almost similar submissions, they both have claimed themselves to be innocent and to have been falsely implicated in this case while submitting that though they both were intercepted from the above place and from the above car driven by Sh Rakesh Kumar Nainawat, but the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

above blue colour suitcase was not recovered from their possession or the said car and the same did not belong to them. They also denied the recovery of any packet of heroin from the said suitcase in their presence or any proceedings conducted with regard to the said heroin.

38. It is their case that they both were not even known to each other and the accused no. 1 Sukleshwar Basumatary had himself booked his above return tickets through a travel agent of Delhi, while he was in Shillong, and the details of the above travel agent were available with him on a visiting card of the said travel agent, which was given to him by his one friend named Ajay working with him in a hotel named Mikasa, Police Bazar, Shillong, Meghalaya and the said visiting card was taken away by the DRI officials. It is also their case that the above Ajay had also provided the reference of accused no. 2 to accused no. 1 to make his short stay in Delhi comfortable during the above journey and it is at the instance of the above Ajay that accused no. 2 Francis L. Hmar had reached there at the airport to receive the accused no. 1 and from the airport, they had directly gone to the residence of accused no. 2 and they had specifically denied the visiting at Sarojini Nagar market or bringing of the above suitcase by the accused no. 2 from the said market. However, the accused no. 2 was not able to recollect the name of his friend, i.e. the above Ajay, on whose reference he had gone to pick up the accused no. 1 from the airport and to bring him at his SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

residence. They have also stated that they were going to the IGI Airport for the above scheduled flight of accused no. 1, when they were stopped by some persons in plain cloths near a CISF check-post, outside IGI Airport and were taken to the DRI office. It is also their case that no proceedings at all were conducted at the spot and in the DRI office also and only their signatures were forcibly taken on various documents and small paper slips, besides they being made to write dictated statements. It is further claimed by them that their alleged statements U/S 67 of the NDPS Act were not made voluntarily and no public persons were accompanying the DRI officers when they had picked them from the above spot. They had also expressed their ignorance regarding the recording of the statements of other persons, except their own, and have further desired to lead evidence in their defence.

39. Two witnesses have also been examined on record during the defence evidence of the accused persons and DW1 is the accused no. 1 Francis L. Hmar himself examined U/S 311 Cr.P.C. and he has tried to substantiate his above defence in his above statement. DW2 Sh Jyoti Kumar Kujur is the Ahlmad of this court and he has brought on record one copy of the test report of the CRCL dated 02.07.2013 as Ex. DW2/A, which was given with regard to the retesting of the samples drawn out of the remaining heroin of this case, which were drawn in the above said case SC No. 33A/11 titled DRI Vs. Emmanuel Chilkezie SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

pertaining to the same seizure. He has also stated that the above samples were drawn in terms of the order dated 26.09.2012 of this court, a copy of which has been placed on record by him as Ex. DW2/B.

40. It is also necessary to mention here that one application dated 29.02.2012 was moved on behalf of both the accused persons during the trial of this case, seeking the drawing of fresh samples for testing out of the remaining case property, i.e. heroin, on the ground of some changes observed in the seized substance during the trial, but the said application was dismissed by this court vide a detailed order dated 07.05.2012 and one of the grounds for dismissal of the above application was that the said application was moved after a considerable delay and after a long gap from the date of seizure of the said substance, i.e. 02.06.2008. However, when a separate complaint was filed against the accused Emmanuel Chilkezie subsequently in respect of the same seizure, which is the subject matter of trial in case SC No. 33A/011, a similar application moved on behalf of the above accused in the said case was allowed by this court vide order dated 26.09.2012 passed in the said case, while observing, inter-alia, that the prosecution against the above accused was initiated by the DRI only in the year 2011, though the above seizure was effected in the year 2008, and there was no unreasonable delay on the part of the said accused in moving the above application. The above order dated 26.09.2012 of this court was even SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

upheld by the Hon'ble High Court in Crl. M. C. No. 4158/2012 decided vide order dated 08.04.2013 and two fresh samples were also drawn out of the remaining heroin in this court on 14.05.2013 and the same were tested in the CRCL, New Delhi vide the above report Ex. DW2/A. Subsequently, this court had also summoned the concerned expert Sh V. K. Sharma, Chemical Examiner, CRCL, New Delhi, on the request of DRI, and he was examined on record as CW1 and was also cross examined by the Ld counsels for both the sides, with reference to his above test report Ex. DW2/A. In this report, the purity of diacetylmorphine (heroin) in these two samples was opined to be 0.20 per cent and 0.41 per cent only.

41. I have heard the arguments advanced by Ms Mala Sharma, Ld SPP for DRI, Sh Kamal J. S. Mann, Ld counsel for the accused persons. I have also gone through the evidence led and the other record of the case, including the written submissions filed on behalf of both the parties.

42. The evidence led on record and the challenges made the prosecution case by the defence can be broadly discussed under the following heads:-

SEARCH AND SEIZURES AND THE PROVISIONS OF SECTION 41 AND 42 OF THE NDPS ACT

43. The first serious challenge by the Ld defence counsel to the prosecution case is on the ground that the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

mandatory provisions of Section 41 and 42 of the NDPS Act stood violated in this case as the search of the above vehicle and seizure of the above contraband substance was not effected by a duly authorized officer, in terms of the provisions contained in the above Sections, and due to the non violation of the said provisions, the entire seizure of contraband substance effected in this case can be termed as illegal and the accused are entitled to be acquitted in this case on this ground only. On the other hand, the contention of Ld SPP for DRI is that there is no violation of the said provisions and the search and seizures were effected by an officer who was duly authorized to act under the above provisions.

44. Before appreciating the above rival submissions being made by Ld counsels for the parties and the evidence led on record, it is necessary to have a glance upon the provisions contained in the above Sections. Section 41 of the NDPS Act deals with the powers to issue a warrant and authorization for search of any building or conveyance etc for recovery of such contraband substances. Under sub-section (1) of Section 41 of the above said Act, a Magistrate of a given class has been empowered to issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence under the above Act or a warrant for the search of any building, conveyance or a place etc, whether by day or by night, in which he has reason to believe that any narcotic drug or psychotropic substance etc, in SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

respect of which an offence punishable under the above Act has been committed, or any document or article etc, which may furnish evidence of the commission of such offence, is kept or concealed. Under sub-section (2) of Section 41 of the said Act, a Gazetted Officer of some given departments, including the DRI, as may be empowered in this behalf by a general or special order issued by the State or Central Government, has been empowered to issue an authorization for arrest of such a person or the search of such a building or conveyance etc if he has reason to believe, from his personal knowledge or information given by any person and taken down in writing, that any person has committed such an offence or any such narcotic drug or psychotropic substance etc is lying concealed in such a building or conveyance etc and as per this sub-section the above authorization has to be made to any officer subordinate to him, but superior in rank to a peon, sepoy or constable etc. In terms of sub- section (3) of the above Section, the officer who issues such warrant or authorization and the officer to whom the same is issued shall both have all the powers of an officer acting U/S 42 of the said Act.

45. Section 42 of the NDPS Act deals with the powers of entry, search, seizure and arrest etc without a warrant or authorization and sub-section (1) thereof provides that if an empowered officer of a given rank, i.e. above the rank of peon, sepoy or constable etc, of the departments as stated above, has reason to believe SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

from his personal knowledge or information given by any person and taken down in writing, that any such narcotic drug or psychotropic substance etc is being transported or concealed in any building or conveyance etc then he can enter into and search such building, conveyance or place etc and seize such drug or substance and he can also detain, search and also arrest, if he thinks proper, any person whom he has reason to believe to have committed an offence punishable under the above Act. However, the above power of search, seizure and arrest can be exercised by him before sunset and after sunrise only and for effecting the search or seizure etc between the sunset and sunrise, a search warrant or authorization, as mentioned in Section 41 of the NDPS Act, is required by him in his favour, unless, as provided by the proviso to the above sub-section (1), such officer has reasons to believe that a search warrant or authorization cannot be obtained without affording an opportunity for the concealment of evidence or facility for the escape of an offender and in such an urgency he can even effect such search, seizure and arrest etc between sunset and sunrise, provided further that he had recorded the grounds of his above belief for doing the same. As per sub-section (2) of Section 42 NDPS Act, a copy of the above information or the grounds of belief taken down in writing by such an officer has to be sent by him to his his immediate official superior within 72 hours. Under both the above Sections 41 and 42 of the NDPS Act, if the source of the information is not the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

personal knowledge of the person receiving it, then the same is required to be reduced into writing.

46. It is the admitted case of the DRI that the IO/PW6 had not obtained any search warrant in this case from any Magistrate for search of the above Tata Indica car, in terms of the provisions contained in sub-section (1) of Section 41 of the NDPS Act, and even no search warrant or authorization in any printed format was also obtained by him from any competent or authorized officer of DRI and rather their case is based on an authorization to effect the above search and seizure, which was given on the secret information reduced into writing as Ex. PW2/A itself. Now it has to be seen whether a valid authorization was there or not in favour of the seizing officer of this case, i.e. the IO/PW6 Sh Alkesh Rao, in terms of the provisions contained in Section 41 and 42 of the NDPS Act or whether the above authorization given on secret information Ex. PW2/A by a senior Gazetted Officer of DRI serves the desired purpose or not.

47. It is clear from a combined reading of the above provisions that the same operate in two different scenarios and that sub-section (2) of Section 41 of the said Act comes into operation when a Gazetted Officer of the departments mentioned therein, including DRI, has reason to believe, either from his own personal knowledge or information given by any person and taken in writing, that the offence given in the said Section has been SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

committed and then he may issue an authorization in favour of any subordinate officer of given ranks, who is superior in rank to a peon, sepoy or constable etc, to effect the above search and seizure and to arrest any person connected with commission of the said offence, whether by day or night time. However, Section 42 of the above said Act comes into operation when an empowered officer of the given departments, who is superior in rank to a peon, sepoy or constable, has reason to believe, either from his personal knowledge or information given by any person and taken down in writing, regarding the commission of the above offence, then he himself can proceed with the above search and seizure etc during the day time, i.e. between sunrise and sunset, without obtaining of any such authorization from a Gazetted Officer of his department, as is mentioned in sub-section (2) of Section 41 of the NDPS Act. However, still if the above search and seizure is to be effected by him during an evening or night time, i.e. after sunset and before rising of the sun, then he will be required to obtain such an authorization or search warrant for conducting the above searches and seizures, unless he has reasons to believe that the same cannot be obtained without affording an opportunity for concealment of the evidence and opportunity for the escape of the offender etc and even in such, he is required to record atleast the grounds of his such belief. The above information, if reduced into writing, or the grounds of his belief, as the case may be, are then to be communicated by such SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

officer to his immediate official superior, as provided in sub-section (2) of Section 42 of the said Act.

48. As per the evidence led on record, the secret information received in this case and reduced into writing as Ex. PW2/A was to the effect that two Indians belonging to the North-East India would travel in the above Tata Indica car towards IGI Airport, in between 9:00 PM to 9:30 PM on 02.06.2008, alongwith narcotic drugs, i.e. heroin, concealed in the suitcase. Since the above information pertained to the transportation of the narcotic drugs, i.e. heroin, kept in a suitcase in a car and further since the expected time of arrival of the above persons at the above spot was between 9:00 PM to 9:30 PM on that day, i.e. after sunset and before sunrise, there is no doubt that in terms of the provisions contained U/S 42(1) of the NDPS Act, a search authorization was required in favour of the IO/PW6 to search the above vehicle and to seize the said substance. However, still in view of the proviso to the above Section, he could have proceeded with the above search and seizure by recording of his reasons of belief that why such a search warrant or authorization could not have been obtained by him. The case of the DRI is that in terms of the directions given by the senior officers in writing on the above information Ex. PW2/A, the IO/PW6 was duly authorized to effect the above search and seizure and the above provisions stand duly satisfied.

SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

49. However, on the appreciation of the prosecution evidence, it is found that the above information reduced into writing by PW2 as Ex. PW2/A was put up by him before PW18 Sh K. K. Dhasmana and PW18 in-turn had further put the said information before PW17 Sh A. K. Khatri and it is PW17, who had given the necessary directions in writing on the said information for interception of the above persons and the goods. It is found that PW17 had again marked back the said information in the name of PW18 Sh K. K. Dhasmana, but the above information is nowhere found to be marked or assigned in the name of the IO/PW6 Sh Alkesh Rao, either by PW17 or by PW18, and even the name of Sh Alkesh Rao is not found to be written on any part of the said information. As per the depositions made by PW18 in this court, after the said information was marked to him by PW17, he had briefed Sh Alkesh Rao about the intelligence and directed him to take the necessary action. However, there is no satisfactory evidence on record in the form of any document to show that any valid authorization was given by any senior Gazetted Officer of DRI in favour of the IO/PW6 Sh Alkesh Rao for effecting the above seizure and any such depositions made by PW18 regarding the giving of any oral authorization or directions to the IO/PW6 to effect the above search and seizure cannot be accepted and held to be a valid authorization in terms of the previous contained in the said Section. Moreover, the giving of such oral directions by PW18 to the IO/PW6 is also not duly substantiated from the record as according to the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

IO/PW6, he was briefed about the information by two senior officers of his department and he was even not able to remember their names. Even otherwise, the alleged oral authorization cannot be said to be in terms of the spirit of the provisions of Section 42 of the NDPS Act. Since the provisions of above sections 41 and 42 of the NDPS Act have been held to be mandatory in various judgments of the Hon'ble Supreme Court, like the judgments in the celebrated cases State of Punjab Vs. Balbir Singh 1994 SC (Crl.) 634, Karnail Singh Vs. State of Haryana (2009) 85 SCC 539 and State of Karnataka Vs. Dondusa Namasa Baddi (2010) 12 SCC 495, and also in various other cases decided by different High Courts, including the case of DRI Vs. Manjinder Singh, Crl. L.P. No. 310/2013 decided on 23.01.2014 by the Hon'ble Delhi High Court, the above seizure can be held to have been effected in violation of the above provisions and is hence illegal and it cannot be made basis of conviction of the accused persons.

RAIDING TEAM AND ITS CONSTITUTION

50. The next flaw in the story of the prosecution case is that the constitution of the raiding team or the members who had participated in the above raiding team is not clear from the evidence led on record. In the panchnama Ex. PW6/E or in the complaint Ex. PW6/Z3, it is not found disclosed as to who were the officers of the DRI, who had left their office on the above date for SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

the spot to intercept the accused persons and the goods and all that which is found to be mentioned therein, is that a team of officers was constituted and it rushed to the spot. Even in the above secret information Ex. PW2/A, only the directions for organizing a team are found to have been recorded and nowhere it is found stated therein as to who were the officers included or to be included in the said team. As stated above, the above secret information was reduced into writing by PW2 Sh K. S. Ratra and this officer was not a part of the raiding team. PW2 had placed the said information before PW18 Sh K. K. Dhasmana and PW18 had further placed it before his senior officer/PW17 Sh A. K. Khatri and even none of these two officers was also a part of above raiding team, as per their depositions made on the record. Apart from the driver of the above vehicle, i.e. PW12 Sh Rakesh Kumar Nainawat, the IO/PW6 Sh Alkesh Rao is the only official witness of the DRI pertaining to the recovery of the alleged contraband substance from the possession of accused and no other member of team of DRI is examined on record or even cited as a witness in the list of the prosecution witnesses.

51. Further, in his examination-in-chief the IO/PW6 has only deposed about the visit of the DRI team to the spot and has nowhere deposed the constitution of the raiding party or as to who were the other officers accompanying him to the spot. However, when he was questioned in this regard during his cross-examination, SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

he went on to state that the team was headed by a superior officer, but he was not able to tell the name of the above superior officer on the ground that he was not able to remember the same. These depositions of the IO/PW6 regarding the heading of the above team by a superior officer are also new to the prosecution case as nowhere in any document of this case, it was mentioned that any such senior or superior officer of the IO/PW6 Sh Alkesh Rao was heading or supervising the above raiding team or was even a part thereof. The two superior officers to him, who are connected with the above information and are examined on record are PW17 Sh A. K. Khatri and PW18 Sh K. K. Dhasmana, but none by them has made any such claim of visiting the above spot. During his cross-examination, the IO/PW6 has also stated that the vehicle of the accused was escorted to their office from the spot by one Mr S. K. Gautam, Intelligence officer of DRI, but even the name of this officer is not found to be disclosed in any document prepared at the spot or in connection with the above seizure. Hence, what was the constitution of the above raiding team or who were the officers who were officers participating in the said team, apart from the IO/PW6 himself, has remained a mystery as no document prepared at the time of above seizure and search etc. is found to be signed by any other officer of DRI, besides the IO/PW6. This discrepancy of the prosecution case also effects the credibility of the prosecution story as in the absence of the examination of any other member of SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

the raiding team, only the testimony of IO/PW6 is left to be appreciated by this court, which is not found to be convincing enough and to be acted upon by this court for different other reasons to be discussed hereinafter.

PUBLIC WITNESSES OF SEIZURE AND THEIR NON EXAMINATION

52. As per the prosecution case, the IO/PW6 had joined two public witnesses namely Ram Singh and Sh Shamu in the above seizure and as per the contents of the panchnama, the complaint as well as the depositions by the IO/PW6, these witnesses were called in the DRI Office at about 7:00 PM and briefed about the above said information and on request of the DRI officers, these witnesses had agreed to join the raiding team. It is only thereafter that the DRI team, accompanied by the above two public witnesses, had left their office for the spot. However, the prosecution was not able to examine the above two public witnesses during the trial as their given addresses were reported to be not existing and ultimately, after repeated attempts made to serve these witnesses, they were dropped by the prosecution.

53. On appreciation of the prosecution evidence, it is found that according to the IO/PW6, the above two witnesses called from the same vicinity, in which the office of the DRI is located. The public witness Sh Ram Singh was a resident of Sewa Nagar and the public SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

witness Sh Shamu was a resident of Madangir (written as Madangiri), New Delhi and the IO/PW6 was able to tell only that one of the two witnesses was from Sewa Nagar area, but he was not able to tell about the other. The IO/PW6 has also admitted on record that he did not make any inquiry regarding the name, parentage and addresses etc. of these witnesses. He has further stated on record that these witnesses remained present in the DRI Office till the end of the panchnama proceedings and as per him, the panchnama proceedings had continued from 9:00 PM, which is the time of interception of the accused persons, till 3:30 AM during the said night. However, he was not able to tell the time, by which the above witnesses might have left the office of DRI and he has even contradicted himself by saying that he was not sure whether they had left prior to 3:30 AM or not. He was also not able to tell as to whether any entry was made in the visitors' register kept at the reception of the DRI office located in the said building, regarding the above visit of the public witnesses to their office. He was also not able to tell as to for what purpose the above two witnesses might have been present in the said area of CGO Complex when they were requested to join the proceedings.

54. Further, no statements U/S 67 of the NDPS Act of the above two witnesses are found to have been recorded by the IO/PW6 or any other officer of DRI during the investigation of this case, regarding their SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

participation in the above seizure of heroin nor any summons served upon them under the said provisions are found to be a part of the judicial record. The IO/PW6 has not even made any such claim regarding serving of any such summons upon the witnesses for tendering their statements about their above participation and hence, apart from the signatures in the names of these witnesses appearing on the above notices and panchnama etc., there is no other evidence on record to show that any such witnesses had in fact participated in the above raid. It is further revealed from the record that the summons to the above witnesses were issued by this court on different dates, through the prosecution/DRI, and at least 4/5 reports regarding the said witnesses are on record and as per these reports, their given addresses were reported to be not existing. Ultimately, these two witnesses were dropped on 13.10.2011, when their summons even could not be served through the IO/concerned officer of DRI. The fact that their given addresses were found to be not in existence makes the very joining of these witnesses in the above raid to be doubtful and this court has serious doubts regarding the credibility of the prosecution case about the joining of these two witnesses and the same also affects the credibility of the IO/PW6 himself.

55. The IO/PW6 has also not collected any evidence regarding the correctness of the addresses or any proof of identification of the said witnesses and in the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

absence of all the above, it is very hard to believe for this court that any such witnesses actually existed or participated in the above raid and the possibility cannot be ruled out that their names were just introduced in the prosecution story, merely to give credibility to the same, and no such witnesses either actually existed or participated in the said raid, as has been submitted by Ld defence counsel and also observed in various other cases investigated by the DRI, where also such witnesses did not turn up for making depositions during the trial mainly due to their addresses being either incorrect or incomplete or not in existence. On this aspect, reference can be made to a recent judgment of the Hon'ble Delhi High Court dated 03.12.2014 in case Ambrose Vs. Director of Revenue Intelligence, Crl. Appeal No. 09/2014, where in similar circumstances, the case of the prosecution was disbelieved and the conviction of the accused arrived by this court for such an offence was set aside by the Hon'ble High court.

STATEMENTS U/S 67 OF THE NDPS ACT OF THE ACCUSED

56. Before discussing anything about the above statements of the accused persons, which are being alleged to be confessional in nature, it is necessary to discuss herein the legal position with regard to the admissibility of such statements. It is now well settled that such a statement made by an accused U/S 67 of the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

NDPS Act is admissible in evidence and can be acted upon by the court if it is found to be made voluntarily. In the case of Raj Kumar Karwal Vs. Union of India & Ors. (1990) 2 SCC 409 it was held by the Hon'ble Supreme Court that a statement U/S 67 of the NDPS Act made by the accused is not the same as a statement U/S 161 Cr.P.C., unless it is made under some threat or coercion etc., this being a vital difference, the same is excluded from the operation of Sections 24 to 27 of the Evidence Act. Even in the case of Kanhaiya Lal Vs. Union of India 2008 (1) AD (Crl.) (SC) 277 : 2008 (1) JCC (Narcotics) 23 it was held by the Hon'ble Apex Court that such a statement made by an accused is admissible in evidence as the same is made by him at a time when he was not under arrest and hence neither the bar of Sections 24 to 27 of the NDPS Act would operate nor the provisions of Article 20(3) of the Constitution would be attracted. Several other judgments of the Hon'ble Supreme Court and of different High Courts are also to the same effect and the only requirement for the court before acting upon such a statement is that the court has to satisfy itself that such a statement was not made under some threat, coercion or influence etc. and was made by the accused voluntarily.

57. However, if such a confessional statement made by an accused is retracted subsequently, then the position is changed and it is well settled that in such a case the court has to look into the facts and SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

circumstances of the case and the above retraction to see if the confessional statement of the accused was in fact made voluntarily or not and the law is that it will not safe for the court to arrive at a finding regarding the guilt or conviction of the accused solely on the basis of such a retracted statement and the same is required to be corroborated by some independent material evidence on record.

58. Though the Ld SPP for DRI has relied upon a judgment of the Division Bench of the Hon'ble Supreme Court in case Kanhaiya Lal, Supra to argue that the retraction of an accused of his confessional statement cannot be looked into and considered by the court unless it is proved on record as per the provisions of the Evidence Act, but the prepositions of law as laid down in the above said case are no longer good and binding in view of some subsequent judgments of the Hon'ble Supreme Court. In the case of Francis Stanly @ Stalin Vs Intelligence Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124 there was no allegation that the appellant himself was found in possession of any narcotics and the allegation was only that he handed over some narcotics to a co-accused and the only evidence against the appellant was the retracted statement of the co-accused and the appellant's own retracted confession and it was held by a division bench of the Hon'ble Supreme Court that it would not be safe to maintain the conviction of the appellant in such a case as an SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

accomplice's evidence is looked upon with suspicion because to protect himself he may be inclined to implicate the co-accused. Reference can also be made to a full bench decision of the Hon'ble Supreme Court in case Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC) wherein it was held that conviction should not be based merely on the basis of a statement made U/S 67 of the NDPS Act without any independent corroboration particularly in view of the fact that such statements have already been retracted. It was also held therein that the confessional statement of a co-accused also could not be used as a substantive piece of the evidence against the other accused. In the case of Noor Aga Vs State of Punjab & Anr. 2008(9) Scale 681 also it was held by a Division Bench of the Hon'ble Supreme Court that the confessional statement of an accused like that the one U/S 108 of the Customs Act is considered to be a very week piece of evidence and it will not be safe to convict the accused on the basis of such a statement though such a statement is technically admissible in evidence and is not hit by Section 25 of the Evidence Act or Article 20(3) of the constitution.

59. Besides the above judgments, there is also another judgment of a Division Bench of the Hon'ble Supreme Court in case Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 and also a recent judgment of a single bench of our own High Court in case DRI Vs Raj Kumar Mehta & Ors.2011 (3) JCC (Narcotics) SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

156. In case of Ram Singh, Supra also it was held by their Lordships of the Hon'ble Supreme Court that though as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made U/S 67 of the NDPS Act, but as of a rule of prudence the court requires some corroboration thereof. In the other case of Raj Kumar Mehta, Supra also it was held by our own Hon'ble High Court that a person cannot be convicted solely on the basis of a confessional statement of the co-accused because a statement of co-accused U/S 30 of the Evidence Act can be used only to lend assurance to other evidence against a co-accused, i.e. it is one more circumstance in the basket of circumstances of the prosecution.

60. It is clear from the above legal discussion that though earlier in the case of Kanhaiya Lal, Supra the view of the Hon'ble Supreme Court was that an accused can be convicted solely on the basis of his statement U/S 67 of the NDPS Act and if he has retracted therefrom his retraction is required to be proved on record as per the provisions of the Evidence Act, but, however, in the subsequent decisions of the Hon'ble Supreme Court and also of the different High Courts there is a shift in the stand and the confessional statement of the accused under the above said provisions is now not to be acted upon to make it the sole basis of the conviction of an accused and even if his retraction on record is not proved as per the Evidence Act, the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

court has to look forward for some independent corroboration of the same as a rule of prudence.

61. Coming to the facts of the present case, the case of the prosecution is that in response to the summons Ex. PW6/F and Ex. PW6/H respectively served upon the above two accused, they had tendered their voluntary statements Ex. PW6/G and Ex. PW6/J U/S 67 of the NDPS Act and in the said statements, they had not only admitted their interception with the above contraband substance from the above place, but had further admitted that they both were aware of the presence of the above concealed contraband substance in the above suitcase, which was to be taken to Kualalumpur by the accused no. 1 by the above flight. It is a contention of Ld SPP for DRI that even though the accused persons had subsequently retracted their above statements, but the retractions are of no consequence as the same are belated and were made on legal advise, whereas the above statements of accused are voluntary in nature and clearly establish the existence of a well knitted conspiracy between the two accused for possessing and exporting the heroin out of India. It is also the contention of Ld SPP for DRI that the incorporation of the personal details of the accused persons in the above statements is in itself a circumstance to show the voluntariness thereof.

62. On appreciation of the prosecution evidence, it SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

is observed that the panchnama proceedings of this case stood concluded only at around 3:30 AM on 03.06.2008, which started from 9:00 PM on 02.06.2008, as per the panchnama Ex. PW6/E. The summons Ex. PW6/F and Ex. PW6/H served upon both the accused persons are dated 03.06.2008 and it is the admitted case of the prosecution that the above summons were served and the statements of the accused recorded only after the conclusion of the panchnama proceedings. It is also observed that the summons served upon the accused no. 1 are for his appearance before the IO/PW6 Sh Alkesh Rao at 6:00 AM and those served upon the accused no. 2 are for his appearance before the above officer for 8:30 AM on 03.06.2008. It suggests that after the conclusion of the panchnama proceedings, the accused persons were made to participate in the proceedings and were enquired in continuity throughout the above night, i.e. the night of 02-03.06.2008, and due to extensive involvement and interrogation for such a long time, they could not have even been in a proper shape of mind to tender the said statements.

63. Though it is being claimed by the IO/PW6 that the above statements were tendered by the accused persons voluntarily and they were free to move in the DRI office during the said period, but the facts and circumstances of the case suggest otherwise. From the above place of their apprehension outside the IGI Airport, they were brought to the DRI office, alongwith SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

their vehicle and the driver/PW12, and the subsequent proceedings of search and seizure were conducted in the DRI office only. It has been clearly admitted by PW12 Sh Rakesh Kumar Nainawat in his statement made in this court on record that he was asked by the DRI officers to remain present in the DRI office and he was further told not to go outside the office and even his mobile phone was kept by them. When this was the condition of a person who was not found to be connected with the above contraband substance or being conscious of the presence of the said substance in the above suitcase being transported in his car, during the enquiry conducted by the DRI officers so far, how the IO/PW6 can be believed in saying that the accused persons were free to move out of the DRI office as per their will during the said period. Hence, even if the accused persons were not technically arrested in this case by the time they had tendered their above statements on record, practically for all purposes, their movements became restricted and they were not free to move out of the custody of the DRI officers and hence, can be said to have been 'arrested' in a broader sense, as has been argued by Ld defence counsel. But still in view of the above legal position discussed above, their statements can be considered if the court is satisfied regarding the voluntariness thereof.

64. However, only because the personal details of the accused persons are found to have been incorporated SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

in the said statements, it is not a ground to conclude about the voluntariness thereof. It cannot be ignored that both the accused persons had retracted from their above statements vide applications sent to this court through the Jail Superintendent during the investigation of the case and it is found that the retraction application of accused no. 1 was forwarded from the jail to the office of DLSA vide letter dated 11.07.2008 and was then forwarded by the DLSA to this court on 18.07.2008. This retraction application also bears the attestation of the jail visiting advocate, besides the thumb impression of the above accused. The retraction application of the accused no. 2 bears the date 16.06.2008 and it was sent from jail to DLSA on 26.06.2008 and further forwarded to this court on 02.07.2008 and though this application does not bear the attestation of a jail visiting advocate, but it also appears to have been drafted by him as it was also forwarded through the office of the DLSA. However, simply because the accused persons had sent their applications through the jail visiting advocate or the office of DLSA, it cannot be presumed that the same are the result of a legal advise. The accused persons have alleged in the said statements that they were tortured, physically as well as mentally, by the DRI officers while they were in their custody and were made to write the above statements under duress and these should not be considered as their voluntary statements. The very fact that their above statements stand retracted on SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

record, the same are to be considered as a very weak piece of evidence and should not be relied upon without any independent corroboration of the contents thereof, in view of the legal position already discussed above. Moreover, there is not found to be any undue delay in sending of the above retraction applications by them, keeping in view the fact that they were confined in jail.

65. Further, the statement Ex. PW6/G of the accused no. 1 is a 9 page statement and the statement Ex. PW6/J of the accused no. 2 is a 10 page statement and even though these have been written by the accused persons themselves in their own handwritings and also incorporate their personal and family details, the accused persons as well as their counsel appear to be right in making a submission that it was very easy for the DRI officers to have incorporated the said personal details in the above statements because the accused persons were already in their custody and have no option to resist or refuse the DRI officers for the same. Many words and portions of the said statements could only have been incorporated in these statements on the dictation of the DRI officers as the accused being laymen could not have been aware about the legal provisions touching upon the said statements or the reasons and consequences of writing of such a statement. These statements also contain very detailed description of the search and seizure proceedings conducted by the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

DRI officers with regard to the above substance and the details of the parcels prepared regarding the said substance and samples and these details could never have been incorporated in the said statements by the accused persons on their own. Once the above substance had already been seized and the proceedings of panchnama conducted with regard to the same, it was very easy for the DRI officers to have got the said details reproduced in the above statements, which appears to have been done in the present case. During the investigation, the IO/PW6 has not made any efforts to collect any independent evidence from any other sources, which could have established the truthfulness of the submissions contained in these statements or could have established the existence of a criminal conspiracy between the two accused to possess or export out of India the above contraband substance.

66. Further, the source from which the above contraband substance was procured by the accused no. 2 and the person to whom it was to be delivered abroad could not be specifically established during the investigation and even some persons named as Sankar and Indira etc in the said statements of the accused could not be traced out. There was also a material contradiction in the above statements made by the accused persons as though in his above statement Ex. PW6/J it was claimed by the accused no. 2 Francis L. Hmar that the suitcase containing the above heroin was SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

given to him by one Emmanuel and Emmanuel had even travelled with them in the said car from Sarojini Nagar market to Neelkanth Apartment, Vasant Kunj, the above Emmanuel had even collected the air tickets of accused no. 1 on the way from Cannaught Place and then he further travelled with them from Neelkanth Apartment upto Priya Cinema, on their way to the IGI Airport, but there was not even a whisper made about the above Emmanuel by the accused no. 1 in his statement Ex. PW6/G. It was further submitted in the statement Ex. PW6/J of the accused no. 2 that the above suitcase and the air tickets of accused no. 1 were delivered to accused no. 1 by the above Emmanuel, though at his house and in his presence, but the accused no. 1 in his statement Ex. PW6/G has claimed to the contrary. This was a material contradiction in their above statements and when both these statements were being made by the accused before the same officer of DRI almost around the same time, it was necessary on the part of the above officer, i.e. the IO/PW6 Sh Alkesh Rao, to have re- examined the accused no. 1 regarding the above contradiction and to record his further/supplementary statement regarding the role played by the above Emmanuel, which he has not done in the present case. The IO/PW6 has also not collected any evidence regarding the previous involvements of the accused persons in the dealing of drugs, as disclosed by them in their above statements, and though some call details and other record of one mobile number 9818813483, which was found SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

to be in the name of accused no. 2, was collected by him during the investigation, but the prosecution has failed to prove as to how the above call detail record Ex. PW11/B (colly) corroborates the existence of any such criminal conspiracy to deal in contraband substances between the above two accused and the other persons and this could never have been done by simply collecting and placing this record in the judicial file. PW11 Sh Pawan Kumar, Nodal Officer of M/S Idea Cellular, examined on record for proving the said record is also not found to be a competent officer to give the certificate Ex. PW11/C U/S 65B of the Evidence Act as he is not a technical person concerned with the storage etc of the said record and even the above certificate Ex. PW11/C on record is not as per the provisions contained in the above Section. Hence, in view of the above, the above retracted statements Ex. PW6/G and Ex. PW6/J made by the accused persons are of no use for the prosecution and cannot be considered into by this court for establishing the guilt of the accused persons and the same even not corroborated by any independent eye witness.

TYPED NOTICES U/S 50 OF THE NDPS ACT AND THE CONCEPT OF A STANDBY TEAM

67. The next challenge to the prosecution case by the defence is on the ground that the falsehood of the prosecution case can be judged from the very fact that though it is being alleged by the prosecution that the above notices U/S 50 of the NDPS Act Ex. PW6/B, Ex. PW6/C SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

and Ex. PW6/D were given to the above two accused and the driver of the above vehicle at the spot of their interception itself, i.e. at the CISF check-post outside the IGI Airport, but it is found that the above notices are not handwritten notices and rather these are typed notices and the same could not have been prepared and served at the spot. It is observed that the admitted case of the prosecution is that as per the secret information reduced into writing as Ex. PW2/A, the intelligence gathered was only to the effect that two Indians belonging to North-East India would be travelling in the above Indica car towards IGI Airport with some narcotic drugs, i.e. heroin, concealed in a suitcase and the names, parentage and other details or even the physical description etc of the above two North-Eastern Indians were not disclosed in the above intelligence received by PW2 Sh K. S. Ratra. However, it has been pointed out by Ld defence counsel, and also observed by this court, that the names, age, parentage and complete residential addresses of all the above three persons are mentioned in the above typed notices. Admittedly, the members of the DRI team were not having any computer, typewriter or printer with them nor it is the case of the prosecution that the members of the raiding team had used any computer or typewriter etc available at or near the spot for typing of the said notices. Hence, the prosecution was required to explain on record as to how the above typed notices containing the personal details of the two accused and the above driver of the vehicle SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

had come into existence.

68. When the evidence led by the prosecution on record is appreciated on this aspect, it is found mentioned in the complaint Ex. PW6/Z3, in the panchnama Ex. PW6/E as well as in the statement made by the IO/PW6 in this court, that when the raiding team of DRI had intercepted the above vehicle at the above place, the officers disclosed their identities to the three occupants of the above vehicle, including the driver of the said vehicle, and on enquiry, the identity of the driver of the vehicle was revealed as Rakesh Kumar Nainawat and the identity of the other two occupants was revealed as Sukleshwar Basumatary and Francis L. Hmar @ Muhammed Rashid. It is also stated therein that on enquiry by the officers, the two North-Eastern persons had though denied the possession/transportation of any contraband narcotic drugs, but on persistent questioning by the officers in the presence of the witnesses, they had admitted that one packet containing about 2 KG of heroin was kept in a suitcase of the given brand lying in the dickey of the car and on further enquiry, the accused no. 1 Sukleshwar Basumatary had also disclosed that he was going from Delhi to Kualalumpur by the above flight and the accused no. 2 Francis L. Hmar was going to drop him. It is nowhere found stated in any document or in the statement of the IO/PW6 on record that the complete personal details of the two accused or the above driver were disclosed by them to the DRI officers at the spot SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

or even asked by the DRI officers from them. No other official member of the DRI team is found to have been examined on record and besides the IO/PW6 himself, the only other witness examined by the prosecution for proving the above seizure from the accused persons is the above driver Rakesh Kumar Nainawat, who has been examined on record as PW12. What to say of deposing about the disclosing of their complete details by them to the IO/PW6 at the spot, this witness has rather claimed that no actual enquiry or proceedings were conducted at the spot and further that no such notices were given to him or the accused persons at the spot and the same were given to them only subsequently in the DRI office.

69. The IO/PW6 in his chief examination was silent as to how the above typed notices could have been found served upon the accused persons at the spot and he has nowhere tried to explain the above discrepancy, perhaps being even unaware of the same by that time. However, when he was questioned in this regard by Ld defence counsel during his cross examination, he went on to state that he had not prepared the said notices at the spot and has further claimed that the same were prepared in the DRI office by someone, on the basis of the details of the accused communicated by some member of the DRI team in the office, and the above typed notices were then brought at the spot by a standby team. Some of the depositions made by the IO/PW6 on this aspect in his cross examination dated 06.12.2010 are being reproduced herein SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

below:-

"I had not prepared the notice u/s 50 at the spot. Vol. the same was prepared in our office by the stand by team on the basis of the particulars already supplied to them by our team member. I do not now remember as to which of my team member had supplied the above particulars to the stand by team.

Probably, the information of the detailed particulars was provided by the team member from his respective mobile phone. The mobile phone was not alloted to me by DRI. I do not know if the mobile phone was alloted to senior officer by DRI. I cannot say if the mobile phone was given to any other IO/officer by the DRI. It is wrong to suggest that no notice u/s 50 was issued to the accused persons at the spot. It is further wrong to suggest that the accused persons were forced to write down their replies on the respective notice. I had not mentioned in the respective notice u/s 50 NDPS Act served to the accused persons as well as driver of the alleged vehicle offering my search or search of the team members or the official vehicle in which the team member visited the spot. It is correct that the reply written by the accused persons on their respective notice were same. I had signed the notice when I served the same to the accused persons at the spot but I do not remember the time today. The stand by team reaches the spot within 45 minutes from the time when the detailed particulars were given to the stand by team. I do not remember the mode adopted by the stand by team in reaching the spot. I do not remember the name of the officer in the stand by team or who had handed over the typed notice to me. The SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

proceedings conducted at the spot of interception were done under the supervision of my superior officer. The notice served was not signed by any other member of the team".

70. It is clear from the above that the IO/PW6 was trying to explain the above typed notices by saying that some member of the raiding team had communicated the personal details of the accused persons and of the above driver to the DRI office from the spot telephonically and the said notices were typed by someone in the office of DRI and then brought to the spot by a standby team, which reached there within 45 minutes from the communication of the said particulars. However, as discussed above, there is nothing on record to suggest that all the details of these persons as mentioned in the above notices came to the knowledge of the DRI officers at the spot itself as it is only mentioned in the documents that their names were revealed by the above persons. Again, the IO/PW6 has not been able to tell as to by which member of the raiding team the said details were communicated to the DRI office nor it is clear from the evidence as to who had typed the said notices. Even the IO/PW6 was not able to tell as to who were the members constituting the above standby team, which he claims to have reached at the spot. Again, the office of the DRI, Zonal Unit is situated at CGO Complex, Lodhi Road, New Delhi and the interception of the accused had taken place outside the IGI Airport and the distance between these two places should be around 18-20 Kms and it is not SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

believable that within 45 minutes of communication of the above particulars, as alleged, the above three notices were typed by someone on computer and then were brought at the spot. Even the IO/PW6 was not able to tell the mode by which the members of the above standby team had reached at the spot. He was also not able to tell as to whether any mobile phone was available or not with any member of the raiding team at the spot.

71. Again, it is also observed on appreciation of the prosecution evidence that the above concept of a 'standby team' was foreign to this case till the above depositions were made by the IO/PW6 in this court as neither in the above panchnama nor in the complaint or any other document of this case, there was any mention of constitution of such a standby team in connection with the seizure of this case. Even the above secret information reduced in writing as Ex. PW2/A does not speak anything about the constitution of such a team and the alleged constitution thereof, if any, can never be said to be having any legal sanctity. It appears to this court that the above concept of a 'standby team' has been shockingly introduced by the IO/PW6 in this prosecution story during his above cross examination simply to get rid of the questions which were being or could have been put to him as to how and where he had managed to get the above notices typed at the spot. Certainly he could not have taken the typed notices with him to the spot because of the fact that the details of the accused were not SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

available with him and because of the above and the other discussion held herein before, the only conclusion which can be drawn from the above lacunae of the prosecution is that even if the case of the prosecution regarding the apprehension of the accused from the above spot is believed, they cannot be believed in saying that the said notices were prepared on the basis of any details of the accused and the above driver, which were communicated from the spot to the DRI office, and the same could only have been and were prepared while sitting in the office of the DRI itself, after the accused were already brought in their office.

72. This is not the only case in which the DRI had introduced the above concept of a 'standby team' in its story at a later stage and such concept was also earlier introduced by them in some other cases of this very court and one of these case was the case of DRI Vs. Manjinder Singh, SC No. 18A/08, which resulted in acquittal of the accused on the above ground, and also on various other grounds, and the said acquittal was even upheld by the Hon'ble High Court in the Crl. L. P. No. 310/2013 titled DRI Vs. Manjinder Singh decided on 23.01.2014. Besides that, this concept of a 'standby team' was also introduced by the DRI during the course of hearing of one bail application of accused Amarjeet Singh, being bail application no. 673/2009, which was decided by the Hon'ble High Court vide order dated 29.05.2009. In that case also, their lordships had entertained serious doubts SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

regarding the service of similar typed notices at the spot and had even directed a high level enquiry by a senior officer of the DRI into the facts and circumstances of the case and though the enquiry report tried to justify the service of such notices with the concept of a standby team, but the said concept was not approved by the Hon'ble High Court and the bail was granted to the above accused vide the above order. The above case had also subsequently resulted in acquittal from this court vide judgment dated 29.10.2014 and the doubts entertained by the Hon'ble High Court regarding the above concept of a 'standby team' and the observations made during the hearing on the above bail application were a major ground for acquittal of the accused persons by this court. Some of the observations made by the Hon'ble High Court during the hearing on the above bail application are being reproduced herein below:-

"33. The CGO complex at Lodhi Road, New Delhi is at least 12 to 13 km from Munirka, 3rd April 2008 was a week day and the time at which the interception took place, was according to the DRI between 1915 hours and 1930 hours. It is now claimed that two officers in the CGO Complex, after being told of the interception sometime after 1915 hours and that too after "persistent questioning of the accused" (after they were intercepted) and after being given the details of the accused including their names, their entire addresses, the vehicle numbers etc. had those details SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

typed out on the notice under Section 50 and had it printed out on the computer and then those two notices were carried by the two officers with the weighing machine and field testing kit on a motorcycle to reach the spot by 1945 hours. Although it was claimed by Mr. Aggarwala that one will be able to cover the distance in 15 minutes. Anyone familiar with the traffic conditions in Delhi and the area in question will know that on a week day between 1900 hours and 2000 hours it is not possible to reach from the CGO Complex, Lodhi Road to the spot on the outer ring road at Munirka within 15 minutes. Further a mere look at the notice under Section 50 would show that it would take a minimum of 10 to 15 minutes, even at the fastest typing speed, to prepare such notices.

If we thereafter calculate the time taken for the DRI officers to travel to the spot, serve the notices on the spot, obtain the endorsements of the two accused thereon on the spot, and thereafter the officers and accused to return to the CGO Complex at Lodhi Road, it is impossible that all this took place by 2030 hours when the panchnama proceedings began. It appears to this Court that this is just not possible.

" 34. The affidavit dated 26th May 2009 of Dr. D.D. Rishi the Additional Director General, DRI has been perused. It sets out in detail the statements made before him by each of the officers who constituted the team which intercepted the two accused. What is significant is that each of the officers states that the interception took place at around 1915 hours.

However none of them actually says that when the back up team consisting of SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

R.M. Singh and A.K. Sinha (both the IOs who left the office of the DRI at the CGO Complex after preparing the notices under Section 50 NDPS Act) actually reached the spot. It must be remembered here that this version of two officers, A.K. Sinha and R.M. Singh, preparing the notices and then travelling to the spot on the motorcycle is stated for the first time in the affidavit dated 26th May 2009 of Dr. D.D. Rishi. There is absolutely no record of these happenings in the records of the DRI. At no point of time earlier i.e. either in the panchnama or in the affidavit filed by IO Devender Singh, these facts were stated. It appears to this Court that this is a desperate attempt to somehow justify the impossible. It is a poor attempt to convince the Court of the notices having been prepared, taken to the spot, served on the accused, there endorsements taken and all of them returning to the CGO Complex and all this taking place between 1915 hours and 2030 hours. Clearly, this kind of an affidavit cannot stand legal scrutiny" .

73. In view of the above discussion, it is held that there are serious doubts in the prosecution case and evidence regarding the service of the above notices U/S 50 of the NDPS Act served upon the accused at the spot and the same go to the root of the case and affect not only the credibility of the IO/PW6 but of the entire prosecution case.

DECREASE IN THE PURITY PERCENTAGE SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

74. The next contention of Ld defence counsel is that though in the first test report of CRCL, New Delhi, which is Ex. PW4/A on record, the purity of heroin in one sample of this case was given as 60.8 percent, but in the subsequent report of testing of the two samples drawn out of the same seized substance, i.e. the remaining heroin of this case, in the connected case SC No. 33A/11 the same has been given to be only 0.20 percent and 0.41 percent. It is his contention that in view of the above huge fall in the purity percentage of the seized heroin, there are serious doubts as to whether the sample tested vide the previous/first report Ex. PW4/A was actually drawn from the above said seized substance or not and the benefit should thereof be given to the accused persons. On this aspect, the contention of Ld SPP for DRI is that the first report Ex. PW4/A is of date 19.06.2008, whereas the second test report is dated 02.07.2013 and thus there was a gap of more than five years between the above two testings of different samples drawn out of the said substance and the above fall or decrease in the purity percentage of heroin can only be attributed to the long gap of time and the other factors which are mentioned in the second report dated 02.07.2013 itself, as the possible reasons for such a fall in purity.

75. As already discussed above, the above retesting of the samples was done in the connected case SC No. 33A/11 titled DRI Vs. Emmanuel Chilkezie which pertained to the same seized contraband substance. A copy of the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

above report has been duly brought on record of this case during the defence of the accused persons as Ex. DW2/A and the originally thereof is available in the file SC No. 33A/11. None of the parties has made any request in this case for summoning any of the concerned experts of CRCL, who had given the above two test reports, to question them on the above aspect of decrease or fall of purity. The test report Ex. DW2/A as such has not been disputed or challenged by the prosecution as it has been given in a connected case of DRI pertaining to the same seizure and the samples tested vide the said report were also drawn in this court in the presence of all the Ld counsels as well as the IO/concerned officer of DRI. This second report Ex. DW2/A contains a note to the following effect:

"Note-Above test result should not be correlated with earlier results, if reported from this laboratory due to following reasons-

(a) Illicit seized NDPS material of natural, semi synthetic in origin i.e. Opium, Charas, Ganja and heroin etc. are non homogeneous in nature hence if resampled, sample variation in contents of active substances will occur.

(b) If re sampling is done after a gap of considerable duration, then great variation in percentage of active content can occur due to following.

(i) Improver storage (fast deterioration of a material will occur due to effect of light, high temperature and humidity).

(ii) Natural product are prone to get infected with bacterial and fungal organisms which causes a change in chemical composition of organic material by decomposition, partly SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

or fully.

Hence, result of this analyses cannot be related with the initial result and therefore has no technical sanctity for comparison purposes."

76. It cannot be ignored that though the above note has been given in a printed format in the above second report Ex. DW2/A, but in view of the above drastic fall in the purity percentage of the heroin from 60.08 percent to 0.20 percent and 0.41 percent, the DRI was duty bound to summon the concerned expert/experts for explanation in this regard. The reasons for such a drastic fall as given in the above report Ex. DW2/A were also required to have been substantiated by any authentic literature or research and simply by mentioning or printing on the said report that the above may be the possible reasons for such a change of percentage, such a huge and drastic fall in the purity percentage of heroin cannot be said to have been satisfactorily explained. Moreover, the above reasons have been given very generally and not specifically and there are also no observations given by the concerned expert as to whether he had noticed any such bacterial or fungal infections etc. in the said samples or any other changes caused by the other reasons reflected in the above report and rather the court is also doubting the reasons as to why such note has been given in the above report by the concerned expert as he was never SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

required by this court to given the same in the report itself and it appears to have been given at the instance of the DRI Officers, in their attempt to explain the above vast difference.

77. It has already been discussed above that both the accused persons were earlier granted bail by this court due to the above fall in the purity percentage and the same was granted in view of the prepositions of law laid down in some cases on this aspect. In the case titled Ram Narain Vs. State 2005 VI AD (Delhi) 245, the accused was granted bail under the NDPS act by the Hon'ble Delhi High Court as the purity of heroin in the re-testing report of the sample taken out of the seized heroin of 1.5 KG was given to be only 0.8 percent as against its earlier purity of 1.08 percent in the first test report and the authenticity of the first sample was doubted. In another case titled Rahul Saini Vs. State 2006 VII AD (Delhi) 531 also, the bail was granted to an accused by the Hon'ble Delhi High Court in view of the considerable difference observed between the purity percentage of the heroin in two test reports of the samples taken out of the seized heroin weighing 1.5 KG as in the first report, it was found to be 54.9% and in the second report it was given as 19.4% only. Hence, in view of the above discussion, it can be held that the above fall in the purity percentage of the heroin in the samples tested vide the above two reports of this case is very huge and material and the same makes the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

authenticity of the sample tested vide the first report to be doubtful and the accused persons can be acquitted on this ground alone.

DIFFERENCE IN WEIGHT OF SAMPLE

78. The next challenge to the prosecution story is on the ground that there is a considerable difference in the weight of the sample taken by the IO/PW6 in this case and that which was received in the CRCL and tested vide the above first report Ex. PW4/A dated 19.06.2008 and because of this difference and discrepancy of weight also, it is highly doubtful that the sample tested vide the above report Ex. PW4/A was taken or drawn out of the heroin allegedly seized from the possession of the accused persons. On this aspect, it is observed that as per the case of the prosecution, the IO/PW6 had drawn three samples of 5 Grams each out of the above seized heroin and these samples were marked A1, A2 and A3 and out of these three samples, one sample Mark A1 was sent to CRCL for testing. As per the above report Ex. PW4/A, the gross weight, i.e. the weight alongwith the polythene pouch, of the sample Mark A1 was 9.08 Grams, as aslo mentioned in the short analyses report Ex. PW4/B on record. It is necessary to mention here that the above samples of 5 Grams each drawn by the IO/PW6 were put in small polythene pouches at the time of preparing samples thereof and it is alongwith the weight of such a small pouch that the gross weight of the samples Mark A1 is SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

mentioned to be 9.08 Grams and even after testing the above sample, the gross weight of the pouch containing the remnant of the said sample is mentioned as 7.2 Grams. In the considered opinion of this court, the small polythene, in which the samples might have been put by the IO/PW6 cannot be said to be weighing around or above 4 Grams each. Again, the weight of the empty polythene pouches was neither taken by the IO/PW6 nor even by the concerned expert despite the fact that the weight of the above sample parcel was claimed in the test memos to be 5 Grams and the gross weight of the sample was found to be 9.08 Grams, i.e. almost double of the sample substance. The above difference in weight of the sample taken and the sample tested in the CRCL vide the above report Ex. PW4/A is another circumstance which makes the genuineness of the above sample to be doubtful and makes it difficult to hold that the above sample was actually drawn out of the above seized heroin of this case. On this aspect also, a reference can be made to the judgment of the Hon'ble Supreme Court in case Rajesh Jagdamba Awasthi Vs. State of Goa, 2005 (I) AD Crl. SCI, wherein the Hon'ble Supreme Court had acquitted the accused due to considerable difference being there in the weight of the samples of charas. A reference can also be made to the celebrated case of Noor Aga Vs. State of Punjab & Anr. 2008(9) Scale 681 being relied upon by Ld defence counsel, wherein due to the discrepancies and differences observed in the weight of the samples, inter-aila the acquittal of the accused was upheld by the Hon'ble Apex SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

Court.

OTHER DISCREPANCIES OF THE PROSECUTION CASE ABOUT SEIZURE

79. As already stated above, out of the 19 witnesses examined by the prosecution on record, only two witnesses pertain to the recovery of the above heroin from the possession of the accused persons and they are the IO/PW6 and PW12 Sh Rakesh Kumar Nainawat, who was driving the above car at the relevant time. Though PW12 was a natural witness of the incident, but on appreciation of his testimony in entirety, it is found that though he supports the prosecution case to the extent of their interception from the above place, but he does not support its case on many material particulars and it seriously affects the credibility of the prosecution case and the evidence led on record. Though he has deposed on record that their above car was intercepted by some officers of DRI in civil cloths at the above place and on the above date, but he simply states that when the accused persons were asked by these persons to get down from the vehicle, the accused started questioning the above officers about the same and they both were made to sit in the vehicle of the above officers and two officers also sat in his vehicle and he was asked to follow the official vehicle. He has also stated on record that in his presence, the above officers had asked from the accused persons about the bag and the accused had only replied that there was nothing in the SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

said bag and in the vehicle and he further claims that in his presence, the accused persons had not disclosed about the contents of the above bag to the said officers and the proceedings at the spot had taken only 2-4 minutes.

80. He has further claimed that thereafter, they had reached the CGO Complex where the DRI office was situated on one upper floor and the bag was taken out of the dickey and taken upstairs, alongwith the accused persons. The accused persons were again questioned there as to where they were going and also about the contents of the above bag and the accused Muhammed Rashid had then told them that the said bag was of his brother in law (jijaji) and his jija was sending the above bag to Malaysia through Sukleshwar Basumatary. The above depositions made by this material witness of the prosecution case falsify the depositions of the IO/PW6 and the prosecution case on the aspects that on persistent enquiry, the accused persons had admitted that 2 KG of heroin was concealed in the suitcase, which was lying in the dickey of the said car and the above admission was made by them during the enquiries conducted at the spot. Further though PW12 has also made some depositions on record regarding the recovery of one packet from the above bag in his presence, but he does not also support the case of the prosecution regarding the service of any notices U/S 50 of the NDPS Act upon the accused persons and upon himself at the spot as he has specifically stated that no such proceedings were SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

conducted and the notices served at the spot and all the proceedings were conducted in the DRI office. He was also allowed to be put a leading question by Ld SPP for DRI and he has also specifically stated in reply to the said question that no such notice was given to him and even no such notices were given to the accused persons in his presence at the spot. He was further permitted to be cross examined by Ld SPP for DRI on the above aspect and even during his such cross examination, he had stood by his above claim of not being served any such notices at the spot and has only stated that the same were given to them in the DRI office.

81. During his cross examination, he has also stated that in the DRI office, he was made to sit, alongwith the above passengers/accused, and thereafter, they were enquired by the officers of DRI and at that time when enquiry was being conducted from them, the DRI officers had got signed some papers from him and the above passengers. He has also stated that he was only 9th class pass and was not well conversant with English language, though he claimed that he can read and write little bit of English language. He has also admitted that he could not understand the contents of the documents signed by him, though he had read the same before signing them. Though, he has identified his signatures on the summons U/S 67 of the NDPS Act Ex. PW6/K served upon him and admitted the statement Ex. PW6/L having been tendered by him in his own handwriting, SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

in response to the said summons, but he also admitted that various portions of the said statements were written by him on the dictation of the DRI officers only. The combined effect of all these is that this witness is not supporting the case of the prosecution in toto and had deviated from the case on various material aspects, the effect of which renders his testimony to be unworthy of being acted upon and to provide a sufficient corroboration to the statement of the IO/PW6 regarding the above seizure from the possession of the accused persons.

82. Besides the above, there are also certain inherent contradictions, inconsistencies and loopholes in the prosecution case. Though the secret information received in this case was to the effect that the above two North-Eastern persons were going to the IGI Airport with some narcotic drugs, i.e. heroin, in a suitcase being carried in the above car and further, the case of the prosecution is also that after the service of the above notices at the spot, the accused persons had disclosed therein that 2 KG of heroin was concealed in the suitcase kept in the dickey of the car and from there the accused persons, alongwith the above driver, car and the suitcase kept therein, were brought to the office of DRI, but there is nothing on record to show that after the factum of concealment of 2 KG of heroin in the above suitcase being transported in the said car has come to the knowledge of the IO/PW6, he had taken any steps to SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

resume or to possess the said suitcase containing the above contraband substance. The evidence led on record suggests as if he had even not tried to check whether the said suitcase was actually lying in the dickey of the car or not or whether it was containing any heroin or not and rather he had straightaway taken the accused persons to their office simply on the basis of their above alleged admission made during oral enquiries regarding the presence of the above contraband substance in the said suitcase and had not taken any pain even to open the dickey of the car to confirm the above fact. This conduct of the IO/PW6 is very unnatural and is to be viewed very seriously.

83. Further, as already discussed above, the constitution of the raiding team or the members who had participated in the said team is/are not clear from the evidence led on record. In the absence of the number of the members constituting the said team being on record, it cannot also be stated as to how many vehicles were involved in the said raid, but if the depositions of the IO/PW6 are to be believed on this aspect, there was only one Qualis vehicle, which was used by the raiding team in its above visit to the spot. No record in the form of any logbook pertaining to the use of the said vehicle or the above visit of the said vehicle has been produced during the evidence in this court nor even the name of the driver of the said vehicle is found to be mentioned or disclosed in any document and the same should not even SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

be expected when even the names of the members of the raiding team are not found disclosed on record. Again, the above secret information is also not found to be entered in any separate record or register and Ld defence counsel is right in making a submission that the same could always have been fabricated at a subsequent stage, as per the convenience of the investigating officer, and there is no concrete evidence to show that this document had come into existence at the initial stage of the case, i.e. prior to the alleged visit of the raiding team to the spot. No duty slip of PW12 Sh Rakesh Kumar Nainawat as a driver on the said vehicle or even no documentary record of hiring of the said vehicle by the accused no. 2 for the above visit has been brought on record. Though it was alleged by the prosecution that the said car/taxi was directly hired by the accused no. 2 by making a call from one mobile number 9818813483, which was reported to be in the name of accused no. 2 by PW11 Sh Pawan Kumar of Idea Cellular, and even some call detail/ownership record of the above mobile number has also been produced in this court as Ex. PW11/D and Ex. PW11/B respectively, but even the above call detail record cannot be said to have been proved as per the provisions of the Evidence Act, despite the furnishing of a certificate Ex. PW11/C by PW11, as the above certificate is also not in accordance with the provisions contained U/S 65B of the Evidence Act as PW11 cannot be said to be a competent officer to verify the genuineness of the above computerized record and to give the above certificate. Even otherwise, the prosecution SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

has failed to highlight and point out the alleged phone number of PW13 Sh Govind Kumar, the owner of the said car, on which the above call might have been made by the accused no. 2. No booking slip of the said vehicle showing the start time and the destination of the above hired vehicle etc was also seized or taken into possession by the IO/PW6 during the investigation of this case. Even the replies given by both the accused on their above notices U/S 50 of the NDPS Act in their own handwritings are found to be exactly same, which is another circumstance to show the fabrication of the said notices and further that either the same were dictated to them or they were forced to copy it from some other paper.

84. One other discrepancy of the prosecution case is that though the above seizure was allegedly effected at a check-post outside the IGI Airport, which was put and manned by the CISF personnel, but the DRI officers had not joined even any official of the CISF in the alleged interception of the accused persons from the above place and had they done so, the prosecution story regarding the apprehension of the accused from the above spot and particularly the inquiries and other proceedings conducted at the spot, regarding the admission of the carrying of 2 KG of heroin by the accused persons in the above said suitcase lying in the dickey of the car and further serving of the above notices U/S 50 of the NDPS Act upon the accused persons and the above driver, could SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

have certainly got a boost and could have been more credible and worthy of acceptance. No reasonable explanation could be furnished on record as to why no such attempt was made by the IO/PW6 Sh Alkesh Rao to join such CISF officials in the above raid and the evidence does not even suggest that he had made any request to any such official to join the proceedings.

85. Though Ld SPP for DRI has argued that there are also the legal presumptions contained U/S 35 and 54 of the NDPS Act operating against the accused, but in terms of the legal propositions laid down in cases Abdul Rashid Ibrahim Mansoori Vs State of Gujrat AIR 2000 SC 821 :

Crl. L. J. 1384(1), an order dated 04.03.2005 of our own High Court in a bail matter No.2338/04 in case Kamaljeet Singh Vs Sh H.K. Pandey (Intelligence Officer, NCB) and Noor Aga, Supra the said legal presumptions can come into operation only when the evidence about recovery of the contraband substance is proved beyond reasonable doubts, which is not in the present case and even no separate defence evidence of the accused is required to be led for rebutting the above presumption.

86. In view of the above discussion, it is held that the prosecution has miserably failed to prove its charges and the guilt of the accused persons for the above said offence beyond reasonable doubts and hence, both the accused are acquitted of the above charges giving benefit of doubt.

SC No. 71A/08 DRI Vs. Sukleshwar Basumatary & Ors.

87. The case property be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgment, if any, or the orders of the appellant court, as the case may be.

88. Their bonds U/S 437A Cr.P.C. are yet to be furnished by the accused persons and hence, the file be consigned to record room only after furnishing the above bonds.



Announced in the open
court on 24.12.2014                                  (M.K.NAGPAL)
                                               ASJ/Special Judge NDPS
                                                   South District
                                                Saket Court Complex
                                                      New Delhi




SC No. 71A/08                                        DRI Vs. Sukleshwar Basumatary & Ors.

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Sc No. 71A/08 Dri vs . Sukleshwar Basumatary & Ors. on 24 December, 2014