Delhi District Court
Sc No. 43A/09 Dri vs Tarsem Singh on 16 July, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Sh R.Roy
Intelligence Officer
Directorate of Revenue Intelligence
Head Quarters
New Delhi.
V E R S U S
Tarsem Singh
S/o Late Sh Gurcharan Singh
R/o Village & PO Thakkarpura,
Tehsil Patti, District Taran Taran,
Punjab.
SC No. : 43A/09
U/S : 21 NDPS Act
Computer ID No.02403R0190092009
ORDER ON SENTENCE
Present: Sh Vikas Gautam proxy counsel for SPP for DRI.
Convict in JC with counsel Sh N.S.Bhullar.
After having convicted the accused for the offences
U/S 21(c) and 29 of the NDPS Act vide my judgment dated
16.07.2012 arguments have been heard today as advanced by Sh
Vikas Gautam, Ld proxy counsel for Ld SPP for DRI and Sh
N.S.Bhullar, Ld counsel for the convict on the point of
sentence to be awarded to the convict. The submissions made
by the convict himself have also been heard.
2. It has been submitted on behalf of the prosecution
SC No. 43A/09 DRI Vs Tarsem Singh
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that the maximum term of imprisonment be imposed upon the
convict and he does not deserve any leniency from this court
as he had been found guilty of possessing a commercial
quantity of Heroin. The offences punishable U/S 21(c) and
29 of the NDPS Act, which have been proved against the
convict, carry a minimum term of rigorous imprisonment for
a period of 10 years extending up to 20 years each and also
a fine of not less than Rs 1 Lac and extending up to Rs 2
Lacs each.
3. On the other hand, it is submitted on behalf of
convict that he is aged around 52 years and is having the
liability to maintain his wife and two minor daughters and
one son aged about 18 years, who is still studying. It is
also submitted that the convict is a poor person and is a
driver by profession and hence request has been made for
sentencing him to the minimum terms of punishment.
4. I have thoughtfully considered the above
submissions being advanced on the point of sentence. As per
the prosecution story also, the convict was a driver of the
vehicle involved in this case and the vehicle was owned by
some other person, though he has been found to be in
conscious possession of the above Heroin. No previous
involvement of the convict in any such case has been brought
on record on behalf of DRI nor it has been their case that
the convict belongs to any establish gang or group of
offenders dealing in contraband substances.
SC No. 43A/09 DRI Vs Tarsem Singh
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5. Therefore, keeping in view the age, family
background and all other attending circumstances, the
convict is being awarded the minimum sentence of rigorous
imprisonment for a period of 10 years each and a fine of Rs
1 Lac each for the abovesaid offences U/S 21(c) and 29 of
the NDPS Act. In case of non payment of fine he shall
further undergo simple imprisonment for a period of six
months each. Both the above sentences shall run concurrently
and the period of custody already undergone by him is
allowed to be set off in terms of the provisions of Section
428 Cr.P.C. Let him to undergo the above sentence as per
law.
6. A copy of the judgment and the order on sentence be
supplied to the convict free of cost.
7. The case property be also confiscated and disposed
of as per law, after the expiry of the period of limitation
for filing of the appeal and subject to the outcome of any
appeal to be filed against this judgment and order on
sentence.
File be consigned to the record room.
Announced in the open
court on 20.07.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 43A/09 DRI Vs Tarsem Singh
4
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Sh R.Roy
Intelligence Officer
Directorate of Revenue Intelligence
Head Quarters
New Delhi.
V E R S U S
Tarsem Singh
S/o Late Sh Gurcharan Singh
R/o Village & PO Thakkarpura,
Tehsil Patti, District Taran Taran,
Punjab.
SC No. : 43A/09
U/S : 21 NDPS Act
Computer ID No.02403R0190092009
Date of institution : 29.06.2009
Date of reserving judgment : 09.07.2012
Date of pronouncement of judgment : 16.07.2012
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence (hereinafter referred to as DRI) through Sh R.Roy, Intelligence Officer, against the accused Tarsem Singh for the offences punishable U/S 21/25/29 of the NDPS Act, 1985 on allegations that on 02.01.2009 at about 5.00 PM, a secret information was received by Sh Inderjeet Singh Sahni, Intelligence Officer, from some reliable source that two SC No. 43A/09 DRI Vs Tarsem Singh 5 persons would be carrying some narcotic drugs on their person or concealed in a white colour Tata Sumo Vehicle bearing registration no. PB 02 X 6373 for delivering the same to some person in Delhi and the above two persons/vehicle would be crossing Singhu Border at around 2.00 AM on 03.01.2009. The above information was reduced into writing as Ex. PW2/A and was put up before Sh Pankaj K Singh, Deputy Director and he had discussed the information with the complainant Sh R.Roy and had directed him to take suitable action thereon.
2. Two public witnesses were called by the DRI Officers in their office and they were apprised about the above information and were also shown a search authorization Ex. PW2/A for search of the said vehicle. Thereafter, a team of the DRI Officers, led by the complainant and accompanied by the two public witnesses, had reached at the G.T.Karnal Road, near the Lavanya Banquet Hall at about 1.30 AM on 03.01.2009 and had kept a watch on the vehicles coming into Delhi from the Singhu Border side. Due to fog the vehicles were moving very slowly and at about 2.30 AM the officers had noticed the above Tata Sumo Vehicle coming from the Singhu Border side and two persons were found sitting in the said vehicle. The vehicle was signalled to stop but the driver of the vehicle had accelerated its speed and it was chased by the raiding team in their official vehicle and after covering a distance of about one kilometer, the above Tata Sumo had taken a U-Turn and had started proceeding back towards Singhu Border at a high speed. After sometime the SC No. 43A/09 DRI Vs Tarsem Singh 6 vehicle had suddenly stopped near the ' Y adu Greens' situated at the G.T.Karnal Road and both the occupants of the vehicle, one of whom was wearing a turban, had come out of the vehicle and had made an attempt to escape. The person wearing the turban, i.e. the accused Tarsem Singh facing trial herein, was apprehended after a short chase and scuffle, but the other person had managed to escape from the spot taking advantage of the darkness and the dense fog.
3. It is alleged that the accused on enquiry had disclosed the name of the other person as Shera S/o Late Sh Pargat Singh, who was also a resident of the village of the accused. After the introductory session between the accused and the members of the raiding team, including the panch witnesses, the accused was told about the above secret information and was also shown the above search authorization and asked if he was carrying any narcotic drugs on his person or in the above vehicle, to which the accused had replied in negative. Since, the accused was not literate, the contents of the above search authorization were read over and explained to him and on being again asked about the presence of any narcotic drugs on his person or in the above vehicle, the accused had again replied in negative. Since, the place of interception of the accused was a busy road, with the consent of the accused the above vehicle and the accused were brought to the parking area of the building at IP Estate, New Delhi in which the office of the DRI was located.
SC No. 43A/09 DRI Vs Tarsem Singh 7
4. In the parking area of that building the accused was served with a notice U/S 50 of the NDPS Act Ex. PW4/A by the complainant explaining him in vernacular that he had a right to exercise the option of the search of his person or vehicle before a Gazetted Officer or a Magistrate and in response to the said notice the accused had offered the search to any officer of DRI. Thereafter, a systematic examination of the above Tata Sumo Vehicle was conducted in the presence of the panch witnesses and the same had resulted into the recovery of eight cloth packets, having similar rubber stamp markings, concealed in a specially created cavity behind the left side tail light of the said vehicle, after removing the tail light assembly. Some documents were also recovered from the dash board of the said vehicle and then all the above packets and documents etc., alongwith the accused and the panch witnesses, were taken to the 7th Floor Office of the DRI in the said building. However, nothing incriminating could be recovered in the personal search of the accused conducted in the office of the DRI.
5. It is alleged that the above eight packets on examination and opening were further found to contain heat sealed transparent polythene packets and the same further contained some off white colour granular substance from which a pungent smell was emanating. The packets were given markings as X1 to X8 for the purposes of identification and a small quantity of the substance of all the packets was tested with the help of a Narcotic Drug Detection Kit SC No. 43A/09 DRI Vs Tarsem Singh 8 individually and same had tested positive for Heroin. The gross weight of the above eight packets was found to be 7.981 KG and the net weight of the Heroin of these packets to be 7.896 KG. All the above packets, vehicle and the documents etc. were seized for violation of the provisions of the NDPS Act.
6. Two representative samples of 5 Grams each were taken out from each of the above packets and the same were given corresponding markings as X1A and X1B to X8A and X8B. The above samples were further packed in sixteen separate white colour paper envelopes and were given the same markings and were then sealed with the DRI Seal No. 10 over a paper slip bearing the dated signatures of the complainant, the accused as well as the panch witnesses. The contents of the above eight packets were re-packed in the same packings and were then further kept in stitched white cloth bags and were given the same markings as X1 to X8 and the same were also sealed in the same manner. These packets of the remaining Heroin were then further kept in a metal trunk and the same was further wrapped with white cloth and sealed in the same manner. A test memo in triplicate for the purposes of the chemical analysis was also drawn at the spot and a facsimile of the above DRI seal affixed thereon. A panchnama Ex. PW7/A in detail regarding the above proceedings was also prepared and the same was also signed by all the above persons and the contents of the panchnama were also explained to the accused as well as the panch witnesses and a facsimile of the above seal also SC No. 43A/09 DRI Vs Tarsem Singh 9 affixed thereon. Photocopies of the above markings appearing on the above cloth packets containing Heroin, Ex. PW7/B1 to PW7/B8, were also made as annexures to the above panchnama.
7. It is also alleged that subsequently in pursuance of the summons dated 03.01.2009 Ex. PW7/F issued by the complainant, the accused had also made a voluntary statement U/S 67 of the NDPS Act Ex. PW4/B before the complainant in which, besides disclosing his personal and family details, he had admitted his apprehension and recovery of the above Heroin from the above vehicle in the above manner and also the other search and seizure proceedings. It was also disclosed in his above statement, inter-alia, by the accused that the above vehicle belonged to one Sh Pargat Singh and he had been driving the said vehicle as a driver for the last about two years as a taxi and he was being paid a salary of Rs 1800/- per month. He had also disclosed therein that the above Shera, who was also a resident of his village, was known to him since childhood had met him on 01.01.2009 and had told him to accompany him to Delhi on 02.01.2009. On 02.01.2009 the above Shera had come to his house at about 1.00 PM with a bag and had informed him that the above bag contained eight packets of narcotic drugs, which were to be carried to Delhi by concealing the same in his vehicle and thereafter, they both had concealed the above packets behind the back light of the said vehicle and had left for Delhi from his residence at about 2.00 PM with the said vehicle. He had further disclosed therein that the above false cavity behind the back light of his vehicle was SC No. 43A/09 DRI Vs Tarsem Singh 10 got made by him at Shera' s instance and the owner of the said vehicle was not aware about the same and previously also he and Shera had brought ten packets of Heroin from Punjab to Delhi and the same were delivered by above Shera to some person in Delhi and Shera had paid him Rs 10,000/- for the said trip, out of which Rs 3000/- were towards the cost of the fuel, Rs 3000/- were to be given to the owner of the vehicle and Rs 40000/- were kept by the accused himself. He had also disclosed that he was to get Rs 10,000/- for this trip also.
8. The statements U/S 67 of the NDPS Act of the above two panch witnesses were also recorded regarding their participation in the proceedings of this case. During investigation conducted by the DRI Officers, it was found that the above vehicle was infact registered in the name of one Sh Harjinder Singh and the statements of the above Sh Harjinder Singh and one Pargat Singh S/o Sh Surjit Singh were also got recorded through the Amritsar unit of the DRI and it had transpired that the above vehicle was purchased in partnership between both of them, but after the above vehicle had met with some accident, the possession of the vehicle was given to Sh Pargat Singh in some settlement between him and Sh Harjinder Singh, though the vehicle had continued to be registered in the name of Sh Harjinder Singh. Both the above persons had, however, expressed their ignorance about the transportation by or recovery of the above contraband substance from the said vehicle, though Sh Pargat Singh had stated that the above vehicle was in the SC No. 43A/09 DRI Vs Tarsem Singh 11 custody of his driver Tarsem Singh, i.e. the accused herein at the relevant time. Though the residential premises of the accused Tarsem Singh and the above Shera were also raided, but nothing incriminating was recovered in such search. Since the above Shera could not be apprehended during the investigation, a complaint for the abovesaid offences was ultimately filed against the accused for the abovesaid offences in this court on 29.06.2009.
9. Cognizance of the abovesaid offences was taken by this court on 09.07.2009 and a prima facie case for the offences punishable U/S 21(c) and 29 of the NDPS Act, pertaining to the possession and being part of a criminal conspiracy to import into Delhi the above quantity of Heroin was also found to be made out against the accused vide order dated 03.11.2009 and hence a charge for the above said offences was framed against the accused on the same day.
10. It is necessary to mention herein that during the pendency of the trial of this case, it was brought on record on behalf of the accused that the above Shera was confined in judicial custody in Amritsar Jail in some other case and on being called upon, the DRI Officers had also moved one application in the concerned court seeking permission to examine Shera in this case, but since the above Shera had refused to give any statement, he could not be examined and his statement could not be recorded regarding the seizure of the contraband substance of this case.
SC No. 43A/09 DRI Vs Tarsem Singh
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11. The prosecution/DRI in support of its case has
examined total 13 witnesses on record and their names and the purpose of examination is being stated herein below:-
12. PW1 Sh B.K. Banerjee was working as an appraiser of DRI at the relevant time and he had issued the search authorization Ex. PW1/A in the name of the IO/PW7 Sh R.Roy for search of the above vehicle. The above seal of DRI issued in this case was also given to the IO/PW7 by him vide entry Ex. PW1/A in the seal movement register. Subsequently, the IO/PW7 Sh R.Roy had also submitted to him the report Ex.
PW1/A regarding the execution of the above search authorization and also the report U/S 57 of the NDPS Act Ex.PW1/D. This witness had also sent a telegram Ex. PW1/C to the relatives of the accused about his arrest in this case and also issued letters Ex. PW1/E and Ex. PW1/F seeking some information from the Amritsar Unit of DRI regarding the documents recovered from the above vehicle and also received the replies Ex.PW1/G and Ex. PW1/H regarding the same. He had further sent another letter Ex.PW1/J to the Amritsar Unit regarding some enquiry about the above Shera.
13. PW2 Sh Inderjit Singh Sahni is the person who had reduced the above secret information in writing as Ex. PW2/A.
14. PW3 Sh Lakhi Ram was posted as I/C, Valuable Godown, New Customs House when the IO/PW7 Sh R.Roy had deposited the sealed parcels of the case property of this SC No. 43A/09 DRI Vs Tarsem Singh 13 case with him in intact condition on 05.01.2009 and PW3 had made his endorsement regarding the deposit of the same on the inventory/deposit memo Ex. PW3/A and also the entry no. 24 Ex.PW3/B in the concerned Valuable Godown register.
15. PW4 Sh Ram Kanwar was posted as Tax Assistant in the DRI Office at the relevant time and he was made to join the investigation of this case by the IO/PW7 Sh R.Roy at about 5:00 AM on 03.01.2009 in the parking area of the DRI building. He has stated that since the accused was able to understand only the Hindi language and was not able to write any language, on the request of the accused, he had written the reply of the accused on the notice U/S 50 of the NDPS Act Ex.PW4/A and had also subsequently written the statement U/S 67 of the NDPS Act Ex. PW4/B of the accused and explained the concepts thereof to the accused.
16. PW5 Sh K.K. Sood was posted as Assistant Director in the DRI Office at the relevant time and he was handed over the sealed parcels of the case property and samples of this case, alongwith the test memos, by the IO/PW7 Sh R.Roy on 03.01.2009 for safe custody and subsequently on 05.01.2009, he had handed over the sealed parcels of the samples packets to the IO, alongwith the test memos, vide forwarding letter Ex.PW5/A for depositing the same with the CRCL and the sealed parcels of the case property were also handed over by him to the IO/PW7 Sh R.Roy on the same day for deposit thereof in the Valuable Godown and he had further countersigned the inventory/deposit memo thereof, SC No. 43A/09 DRI Vs Tarsem Singh 14 which is Ex.PW3/A, in this regard. On 06.01.2009, he had also got deposited the above vehicle in the CWC Godown at Narela vide letter Ex.PW5/C through an official of DRI.
17. PW6 Sh V.P. Bahuguna was the Assistant Chemical Examiner in the CRCL on 05.01.2009 and he had received 8 sealed parcels of samples of this case on that day, in intact condition, on the instructions of his senior officer Sh S.C.Mathur, Chemical Examiner, and had issued the acknowledgment receipt Ex.PW6/A in this regard. After the samples were registered and alloted in his name, the same were kept by him in the strong room and were taken out on 19.02.2009 and were analyzed till 20.02.2009 by him, under the supervision of Sh S.C. Mathur and with the assistance of Sh Vinod Kumar, Chemical Assistant, and the report Ex. PW6/B was prepared by him. He has stated that all the samples had tested positive for Diacetylmorphine and the percentage/purity thereof was found varying between 79% - 88%. He has also proved on record the report of analysis given in Section-II of the test memo as Ex. PW6/C.
18. PW7 Sh R.Roy is the complainant/investigating officer of this case and he in his statement made in this court has almost deposed on the lines of the complaint and of the prosecution story regarding the manner in which the accused was apprehended and the above contraband substance was recovered in pursuance of the above secret information Ex. PW2/A. He has also identified the accused as well as the remaining case property and samples of this case, SC No. 43A/09 DRI Vs Tarsem Singh 15 alongwith his signatures as well as the signatures of the accused and the panch witnesses appearing on different documents.
19. PW8 Sh Pankaj K Singh was posted as Deputy Director of DRI and he is the person to whom the secret information Ex. PW2/A was put up by PW2 Sh Inderjeet Singh Sahni and PW8 had made his endorsement thereon and had directed the IO/PW7 to act upon the same.
20. PW9 Sh Hari Om is one of the two public witnesses joined by the IO in the above proceedings of this case. He is a TSR driver and was joined from the ITO area and he has participated in the search and seizure proceedings and has also identified the accused as well as his signatures on different documents.
21. PW10 Sh Harjinder Singh is the registered owner of the abovesaid Tata Sumo vehicle and he has stated that though the vehicle was purchased in his name in partnership with one Sh Pargat Singh/PW11, but subsequently the possession of the vehicle was given to Sh Pargat Singh, who is his relative, though the vehicle continued to be registered in his name. He has also stated that subsequently he came to know that the vehicle was given by Sh Pargat Singh to the accused as driver.
22. PW11 Sh Pargat Singh is the actual owner of the above Tata Sumo vehicle and was given the custody of the SC No. 43A/09 DRI Vs Tarsem Singh 16 vehicle by PW10, as stated above. He has stated that the accused was engaged by him as a driver on the said vehicle, which was being plied as a taxi and on the date of incident the vehicle was taken by the accused out of the jurisdiction of District Taran Taran, Punjab without his knowledge and instructions and he had subsequently come to know that the above vehicle was impounded in Delhi in a case of Heroin.
23. PW12 Sh Ramesh Sharma was working as a Senior Intelligence Officer in the Amritsar Unit of DRI and he had only forwarded the panchnama proceedings regarding the search of house of the accused in his native village in Punjab to the DRI Officers in Delhi on 06.09.2009 vide letter Ex. PW12/A and also the statements Ex. PW10/A and Ex. PW11/A respectively of PW10 Sh Harjinder Singh and PW11 Sh Pargat Singh vide his letter Ex. PW1/G dated 25.06.2009 regarding the enquiry conducted about the above vehicle. On the same date he had also sent one other letter Ex. PW1/X to his Delhi counterpart regarding the enquiry conducted about the above Shera.
24. PW13 Sh Tarsem Lal was working as an Inspector Customs in Amritsar and on the directions of his senior officer, he had conducted search of the house of accused in his native village in Punjab and had prepared the panchnama Ex. PW13/A, vide which nothing incriminating was recovered in the said search.
25. After the conclusion of the evidence of the DRI all SC No. 43A/09 DRI Vs Tarsem Singh 17 the incriminating evidence brought on record was put to the accused in his statement recorded U/S 313 Cr.P.C. and the same was claimed by him to be incorrect. He has also claimed himself to be innocent and to have been falsely implicated in this case. Though he has admitted that he was working as a driver on the above vehicle owned by one Sh Pargat Singh for the last about two and half years prior to his apprehension in this case, but he has claimed that the above contraband substance was not recovered from his possession or at his instance. He has stated in his above statement that he used to park the vehicle in the evening/ night, after completion of his duties, at his residence and used to pick it on the next morning and on 02.01.2009 his above vehicle was hired by the above Shera, who was a resident of his village, for Rs 6500/- for coming to IGI Airport as Shera had told him that he had to receive some relatives at the Airport. He has also stated that the above Shera was carrying one black colour suitcase with him, which was kept in the dickey of the vehicle, and they had left Amritsar at about 12.00 Noon/1.00 PM on that day and he was apprehended by some DRI Officers and he had immediately stopped the vehicle on giving a signal by the above officers. He also claims that he and Shera were both taken to DRI Office, alongwith the car, and they both were confined there and though he was subsequently implicated in this case, but the above Shera was let off by the DRI Officers. He has further claimed that in the custody of the DRI Officers he was physically beaten up and his signatures were taken forcibly on so many documents and he had also subsequently retracted SC No. 43A/09 DRI Vs Tarsem Singh 18 his alleged admission of guilt vide his application Ex. PX.
26. I have heard the arguments advanced on behalf of the prosecution as well as the accused and have also gone through the evidence led by the prosecution and the other record of the case file, including the written submissions filed by Sh Satish Aggarwal, Ld SPP for DRI and Sh N.S.Bhullar, Ld counsel for the accused.
27. The first contention of Ld defence counsel is that the prosecution has not produced in this court any record pertaining to the receipt of the above secret information nor any DD entry has been filed on record to show the departure of the members of the raiding team of DRI Officers from their office to the spot and back from the spot to the office. In this regard it is observed that the secret information received in this case has been duly reduced into writing by PW2 Sh Inderjeet Singh Sahni as Ex. PW2/A and this document has been duly proved on record during his statement. The time of reducing the above information in writing, as given in the above document, is 5.00 PM on 02.01.2009. It is also proved on record from the depositions of PW2 as well as PW8 Sh Pankaj K Singh that the above information was put up by PW2 before PW8, who was his immediate superior officer, and vide his endorsement made on the above information, which also stands proved on record, PW8 had directed the IO/PW7 Sh R.Roy to act upon the above information. The time of making the above endorsement on the said information is recorded on the information itself as SC No. 43A/09 DRI Vs Tarsem Singh 19 5.45 PM. There is no cross examination either of PW2 or of PW8 conducted by or on behalf of the accused and in the absence thereof the entire depositions and the above documents proved on record in their statements have gone unchallenged and unrebuted and the reduction of the said information in writing in itself is an evidence of receipt of the same. No further record or register regarding the receiving of the same is required to be maintained by any provision of the NDPS Act or the Rules framed thereunder and the provisions of Section 42 of the NDPS, which are attracted in this case, stand duly complied with.
28. As far as the argument of Ld defence counsel regarding the non maintenance of the Daily Diary registers is concerned, it is again observed that no such registers are required or expected to be maintained by the DRI Officers, which is a specialized agency in the matters of investigation of sensitive cases in the field of revenue theft and other allied matters. The judgment in case of Pradeep Kumar Vs State 39 (1989) Delhi Law Times 456 being relied upon by Ld defence counsel on this aspect has no application in the present case. Similarly, the non production of the log book of the official vehicle used by the DRI Officers in the raid proceedings can also be considered to be not material and can be safely ignored.
29. The next contention of Ld defence counsel is that the accused was allegedly apprehended from near the Singhu Border but no search or seizure proceedings were conducted SC No. 43A/09 DRI Vs Tarsem Singh 20 at the spot and in view of the above the case of the prosecution becomes doubtful and accused is entitled to be acquitted on this ground alone. It is observed that the vehicle of the accused in pursuance of the above secret information was intercepted by the DRI Officers at around 2.30 AM on 03.01.2009, i.e. in the night of 2 nd and 3rd January 2009, and the above interception was done at GT Karnal Road, which is a national highway. The above spot being a public place could never have been conducive for conducting the detailed search and seizure proceedings. It can also not be ignored that it was almost midnight of the month of January, which is the season of extreme winter in India and it has also come on record that there was a dense fog and darkness on the road at that time and even one occupant of the above vehicle had managed to escape from the spot. Hence, there is nothing wrong if the DRI Officers had offered to the accused to accompany them, alongwith the vehicle, to their office for the detailed search and seizure etc. and the accused had also accepted this request. The IO/PW7 as well as the public witness Sh Hari Om/PW9 have both specifically deposed in this regard and this fact is even found reflected in the notice U/S 50 of the NDPS Act Ex. PW4/A given to the accused. Hence, simply because the detailed search and seizure proceedings have not been conducted at the spot and the same have been conducted in the parking area or the office premises of the DRI, the same cannot be viewed suspiciously and cannot be made a ground for acquittal of the accused, if the evidence of the prosecution witnesses is otherwise found to be consistent, SC No. 43A/09 DRI Vs Tarsem Singh 21 corroborative and trustworthy in nature.
30. The next contention of Ld defence counsel is that the timings of issuance and return of the seal of DRI used in this case have not been recorded in the copy of the entry of the Seal Movement Register proved on record. It has come on record in the depositions of PW1 Sh B.K.Banerjee as well as the IO/PW7 that the seal of DRI used in this case was issued by PW1 to the IO/PW7 and the same was used and returned back by the IO/PW7 to PW1. The relevant entry of the Seal Movement Register has also been proved on record as Ex. PW1/K and as per this document the above seal was issued on 02.01.2009 and same was returned on 03.01.2009. The recording of the timings of issuance or return of the above seal in the said register is nowhere required or considered to be material, unless there are any substantial allegations of misuse of the same or tampering with the parcels of the case property or samples of the case. PW1 was not even cross examined by or on behalf of the accused on the above aspect or on any other aspect nor any suggestion has been given to the IO/PW7 that the seal was not so issued to or returned by him or was ever misused. In the absence of that this argument of Ld defence counsel is found to be merit less.
31. Another contention of Ld defence counsel is that the mandatory provisions of Section 50 of the NDPS Act have not been followed in this case because the notice U/S 50 of the NDPS Act given to the accused is not proper as neither SC No. 43A/09 DRI Vs Tarsem Singh 22 the same was given to the accused in the language known to him nor his alleged reply given on the above notice offering his search by the accused to an officer of DRI was actually given by the accused and the same is a fabricated reply. It is his argument that the accused deserves to be acquitted on account of violation of the mandatory provisions of the Section 50 of the NDPS Act.
32. In this context, it is observed that first of all the above notice U/S 50 of the NDPS Act, which has been proved on record by the IO/PW7 as Ex. PW4/A, was not mandatorily required to be given to or served upon the accused because it is now well-settled that the provisions of Section 50 of the NDPS Act are attracted only when the recovery of the contraband substance is effected from the ' person ' of the accused and the same are not applicable when the contraband substance is recovered from a suitcase, briefcase, bag or thaila etc. being carried by the accused. In this case, admittedly, the recovery of the contraband substance, i.e. Heroin, has not been effected from the ' person ' of the accused but it has been effected from a cavity behind the left tail light assembly of the above Tata Sumo vehicle being driven by the accused and hence, the provisions of Section 50 of the NDPS Act are held to be not applicable and no such notice was legally required to be given to the accused. Reference in this regard can be made to the cases of State of H.P. Vs Pawan Kumar 2005 (4) SCC 350, Madan Lal Vs State of H.P. 2003 Crl.L.J 3868 and Ajmer Singh Vs State of Haryana - 2 010 (2) SCR 785 (Crl. Appeal SC No. 43A/09 DRI Vs Tarsem Singh 23 No. 436/09). Therefore, any alleged discrepancy in the said notice is not bound to adversely affect the case of the prosecution.
33. Though the Ld defence counsel has relied upon the judgments in cases of Customs Vs Mohd Bagour 2012 (1) JCC (Narcotics) 1, Nirmal Singh Pehlwan @ Nimma Vs Inspector, Customs, Customs House, Punjab I (2012) SLT 526, Harun Rasid Vs State of West Bengal & Anr. 2005 (3) Crimes 221, Lachhu @ Laxminarayan & Ors. Vs Union of India 2004 (4) Crimes 1, Narcotics Control Bureau Vs Sukh Dev Raj Sodhi AIR 2011 Supreme Court 1939 and Bijay Vs State (G.N.C.T of Delhi) III (2011) DLT (Crl.) 703, Dilip and Anr. Vs State of MP (2007) 1 Supreme Court Cases (Cri) 377, Vijaysinh Chandubha Jadeja Vs State of Gujarat 2011 Cri. L. J. 680 etc. but it is observed that the above judgments are of no help to the case of the accused as either because these are not found to be applicable in this case or the same are contrary to the judgments of the Hon' b le Apex Court as referred to in the preceding paragraph.
34. It has been deposed both by the IO/PW7 as well as the public witness PW9/Sh Hari Om that after his apprehension, the accused had disclosed during the enquiry that he was not able to write and he was only able to put his signatures. It has also been deposed by them that the contents of the above notice Ex. PW4/A were explained to the accused and the reply of the accused to the said notice, in SC No. 43A/09 DRI Vs Tarsem Singh 24 which he had offered his search before an officer of DRI, was written on the above notice on the request of the accused himself by PW4 Sh Ram Kanwar and the depositions of PW4 also duly corroborate the depositions of the other two witnesses in this regard. Hence, even otherwise, the argument of Ld defence counsel that the accused was not told about his right under the abovesaid provisions or had not given the above reply are found to without any force or merit.
35. Another contention of Ld defence counsel is that the prosecution has not been able to prove on record the complete chain regarding the safe deposit of the case property and samples in this case and even the timings of the deposit of the case property in the Valuable Godown are not proved on record and further there is also a delay in deposit of the case property in the Valuable Godown as the parcel of the case property was prepared on 03.01.2009 and the same was deposited in the Valuable Godown on 05.01.2009.
36. In this regard, it is observed that it has specifically come on record during the depositions of the IO/PW7 Sh R.Roy and PW5 Sh K.K.Sood that after the seizure of the above contraband substance and completion of the panchnama proceedings, the sealed parcels of the case property and samples of this case were deposited by the IO/PW7 with PW5 Sh. K K Sood for the safe custody, alongwith the test memos. It has further come on record in their testimonies that on 05.01.2009 the sealed sample parcels of SC No. 43A/09 DRI Vs Tarsem Singh 25 this case, alongwith the test memos, were handed over by PW5 to the IO/PW7 for depositing the same with the CRCL for chemical analysis and it also stands proved on record during the depositions made by the IO/PW7 as well as PW6 Sh V.P.Bahuguna that the above test memos and the sealed sample parcels, which are stated to be eight in number, were deposited there in the CRCL office in intact condition, having been received by PW6 vide acknowledgment Ex. PW6/A of even date, on the instructions of his senior officer Sh S.C.Mathur. PW6 has also stated specifically that he had also checked the impressions of the seals with the facsimile thereof given on the test memos and after receipt, the samples were registered in the CRCL by the registration clerk in his presence and then taken to Sh S.C.Mathur, who had alloted the sample packets to him. He has also stated further that the above sample packets were then kept by him in the strong room in the presence of Sh S.C.Mathur and the same were taken out of the strong room for analysis on 19.02.2009, in the presence of Sh S.C.Mathur, and he had again checked the seals of the packets and the same were found to be in intact condition. The samples were analyzed by him, under the supervision of Sh S.C.Mathur and with the assistant of Sh Vinod Kumar, Chemical Assistant, on 19th and 20th February 2009 and the same had tested positive for the presence of diacetylmorphine and the percentage thereof was found to be ranging between 79% to 88%.
37. PW5 has also stated that on 05.01.2009 itself he had handed over the case property to the IO/PW7 Sh. R. Roy SC No. 43A/09 DRI Vs Tarsem Singh 26 for depositing the same in the Valuable Godown, New Customs House. The IO/PW7 has also stated that on the above day he was handed over the case property in sealed condition by PW5 for deposit and he had deposited the same in the above Godown vide deposit memo Ex.PW3/A, which is duly proved on record and is also counter-signed by PW5. The depositions of the above witnesses regarding the deposit of the parcel of the case property in the Valuable Godown in intact condition are also duly corroborated by the depositions of PW3 Sh. Lakhi Ram, Inspector Valuable Godown and the endorsement made by him on the said memo and further by the relevant entry no.24 of the Valuable Godown register made by him, which is also proved on record as Ex.PW3/B. It has further been deposed specifically by PW3 that during the period the case property remained in his custody in the Valuable Godown, it was in intact condition. No tampering with the parcels of the duplicate samples or of the remaining case property was also noticed at the time of production of the parcels thereof during the trial for identification by the IO/PW7.
38. The depositions made by the above material witnesses of the prosecution story on the above aspects are found to be duly corroborated by the documents proved by them on record and also rule out any possibility of tampering with the parcels of the samples of the case property at any stage. The reliance upon the judgment in case of Hari Singh Vs Govt. of NCT of Delhi 2010 (114) DRJ 323 by Ld defence counsel is misplaced as in that case the SC No. 43A/09 DRI Vs Tarsem Singh 27 witnesses have deposed differently about the impressions of the seals affixed on the parcels. The argument of Ld defence counsel regarding the non-mentioning of the timing of deposit of the case property in the Valuable Godown is also meritless. The judgment of Hon' b le Rajasthan High Court in case of Jagdish & Anr. Vs The State of Rajasthan 2011 Crl. L.J. 3407 being relied upon by Ld. defence counsel on the point of not giving of the seal to any public witness is also not helpful in view of a judgment of our own High Court in case of Siddiqua Vs NCB 2007 (1) JCC (Narcotics) 22.
39. The IO/PW7 Sh R. Roy and PW9 Sh Hari Om are the two material witnesses of the prosecution story who have proved the factum of recovery of the above contraband substance from the above vehicle being driven by the accused. The identity of the accused as driver of the above vehicle stands duly proved on record from the depositions of both the above witnesses. It is also deposed by both the above witnesses that the above packets containing heroin were found concealed in a special cavity made behind the left side tail light of the above vehicle and were recovered therefrom in the search of the above vehicle conducted by the IO/PW7. The depositions made by both the above witnesses regarding the recovery of the above packets from behind the assembly of the left tail light of the said vehicle are also found consistent and corroborative in nature. Even otherwise, the accused during the course of trial or in his statement U/S 313 Cr.P.C. has not challenged the facts that he was not driving the above vehicle or that SC No. 43A/09 DRI Vs Tarsem Singh 28 the above contraband substance was not recovered from the cavity behind the left tail light of the above vehicle and his case is that the above recovery was not effected in his presence or the above cavity was made by the above Shera with the consent and knowledge of the owner of the said vehicle/PW11 Sh Pargat Singh.
40. Nothing material could be extracted out by Ld defence counsel during the cross-examination of the above two witnesses to disprove the factum of recovery of the contraband substance from the said vehicle. The oral depositions made by the above two witnesses are also found duly corroborated by the contents of the panchnama Ex. PW7/A, which was prepared by the IO/PW7 Sh R.Roy and which contains the details of the proceedings conducted by him and is also found to be signed by the IO/PW7 himself, the accused as well as the two panch witnesses, including PW9 Sh Hari Om. It also bears the facsimile of the above seal of DRI used in this case and photocopies of different markings of the above cloth packets have also been made as Annexures to the above panchnama and have been identified on record as Ex.PW7/B1 to Ex.PW7/B8. The documents recovered from the above vehicle at the time of its search have also been identified by the IO/PW7 Sh R.Roy during the trial as Ex.PW7/C1 to Ex. PW7/C13.
41. Since the prosecution has successfully established the recovery of the above contraband substance from the above vehicle in possession of and being driven by the SC No. 43A/09 DRI Vs Tarsem Singh 29 accused, now it is to be seen whether the above possession of the accused of the above said substance can be termed to be a ' c onscious possession' of the said substance or not or whether the accused was aware regarding the presence of the above contraband substance having been concealed in the above said vehicle or not. The law on this aspect is that once an accused is found to be in possession of a contraband substance under the NDPS Act, he is presumed to be having the requisite culpable mental state to posses the same and the onus lies upon the accused in such a case to account for his possession satisfactorily. Sections 35 and 54 of the NDPS Act are relevant on this aspect Section 35 of the NDPS Act prescribes as under:
Presumption of culpable mental state :- In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation :- In this section " culpable mental state " includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
SC No. 43A/09 DRI Vs Tarsem Singh 30 Section 54 of the NDPS Act lays down as under:
54. Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of-
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.
42. The judgment of the Hon' b le Supreme Court in the case of Abdul Rashid Ibrahim Mansuri, (Supra) being relied upon by the Ld defence counsels is a leading judgment on the subject as it not only lays down the standard of proof for an accused to discharge the onus placed upon him for proving the absence of such mental state or knowledge SC No. 43A/09 DRI Vs Tarsem Singh 31 regarding the possession of a contraband substance, but it also lays down the modes in which such a burden can be discharged. The relevant extracts of the above judgment are being reproduced herein below:
21. " No doubt, when the appellant admitted that narcotic drug was recovered from the gunny bags stacked in the auto-rickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in sub-section (2) as " beyond a reasonable doubt " . If the Court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal.
However, if the Court entertains strong doubt regarding the accused ' s awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt dispelled. Even so, it is for the accused to dispel any doubt in that regard. "
22. " The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that appellant could not have had the knowledge or the required intention, the burden SC No. 43A/09 DRI Vs Tarsem Singh 32 cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. "
43. Reference here can also be made to the observations made by the Hon' b le Supreme Court in case of Madan Lal & Anr. Vs State of Himachal Pradesh 2003 (3) JCC 1330:
" Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. "
44. Now, it is to be seen if from the evidence led on record by the prosecution the above culpable mental state of the accused to possess the above contraband substance is established on record or not. In this regard, it is observed that besides the seizure of the above contraband substance from the above vehicle in possession of the accused, there is also a statement U/S 67 of the NDPS Act Ex. PW4/B of the accused on record, which was tendered by the accused before the IO/PW7 and was reduced into writing by PW4 Sh Ram Kanwar, in response to the summons Ex. PW7/F served upon the accused. Both the above documents have SC No. 43A/09 DRI Vs Tarsem Singh 33 been duly proved on record during the statements of PW4 Sh Ram Kanwar and the IO/PW7 himself.
45. It is now well settled that a statement U/S 67 of the NDPS Act is admissible in evidence as the same is made prior to the arrest of the accused and if the same is found to be voluntary the same can also be acted upon by the court and can be made the sole basis of conviction of the accused. However, if such a statement has been subsequently retracted by the accused, then it is not prudent to solely act upon the same for the conviction of the accused unless it has been corroborated by some other independent evidence. Whether the statement of an accused in such a case has been made voluntarily or not and what effect has to be given to such a statement, in the light of the subsequent retraction thereof, are again the questions to be considered by the court in the given facts and circumstances of a particular case. Reference in this regard can be made to some of the judgments in cases of Raj Kumar Karwal Vs Union of India & Ors. (1990) 2 SCC 409; Kanhaiya Lal Vs Union of India 2008 (1) AD (Crl.) (SC) 277 : 2008 (1) JCC (Narcotics) 23; Francis Stanly @ Stalin Vs Intelligence Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124; Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC) and Noor Aga Vs State of Punjab & Anr. 2008(9) Scale 681 etc. wherein the legal propositions pertaining to the admissibility and relevance etc. of such a statement have been considered by their Lordships.
SC No. 43A/09 DRI Vs Tarsem Singh 34
46. Though it has been submitted on behalf of DRI that in view of the judgment in case of Kanhaiya Lal, (Supra) the subsequent retraction made by the accused should not be considered unless and until the same has been proved on record as per the provisions of the Evidence Act, but the above view no longer holds good in the light of some subsequent judgments in cases, some of which have been mentioned above.
47. The stand of the accused regarding his above statement U/S 67 of the NDPS Act Ex. PW4/B dated 03.01.2009 is that the same was not made by him voluntarily and the same was also subsequently retracted by him vide another written statement, which is Ex. PX on record. On perusal of the case file the exact date of filing of the above retraction statement Ex. PX on record is not clear. The accused was apprehended in this case in the night of 02.01.2009 and 03.01.2009 at about 02:30 AM. As per the evidence brought on record the panchnama proceedings were concluded at about 11.00 AM on 03.01.2009. The summons Ex. PW7/F given to the accused were for his appearance before the IO/PW7 at 11:30 AM on that day and the accused was formally arrested in this case vide arrest-cum-jamatalashi memo Ex. PW7/L and time of his arrest as per the above memo is 06:00 PM on 03.01.2009.
48. After his medical examination etc, the accused was produced before the Ld Duty MM on 04.01.2009 and was remanded to judicial custody till 16.01.2009. As per the SC No. 43A/09 DRI Vs Tarsem Singh 35 record available in the court, no retraction statement of the accused was filed on that day. A perusal of the above undated retraction statement Ex. PX of the accused shows that the same was subsequently written when the accused was in jail no. 4., Tihar. No forwarding letter of the jail superintendent of the above jail is also on record to show that the same was forwarded or sent to this court from the jail by the accused immediately after he was remanded to judicial custody on 04.01.2009. Hence, the possibility as per the record is that the above retraction statement of the accused was filed in this court only on 16.01.2009, though there is also no mention of filing of the above retraction statement in the order of this court extending the judicial custody of the accused on that day further till 30.01.2009. The reply of the DRI to the above retraction application is dated 23.04.2010 and it is even not clear from the record as to when a copy of the above retraction application of the accused was given to Ld SPP for DRI for filing reply to the same.
49. Therefore, it appears from the record, as stated above, that the retraction statement of the accused Ex. PX was filed on record on 16.01.2009 and hence, there is a delay of about 13 days in filing the above retraction application. The disclosures made by the accused in his statement U/S 67 of the NDPS Act Ex.PW4/B regarding his family members and other personal details could only have been in the knowledge of the accused himself and the incorporation of the above details in his above statement SC No. 43A/09 DRI Vs Tarsem Singh 36 is a strong evidence to show the voluntariness of the said statement. The above statement of the accused has been written in the handwriting of PW4 Sh Ram Kanwar and it has already been discussed that the above document stands duly proved on record and it has also been deposed by PW4 that the contents of the above statement were read over to the accused in vernacular and the accused had signed the above statement only after understanding the contents of the same and the same was found to be correct according to what was narrated or dictated by the accused to the IO/PW7 Sh R. Roy.
50. On the other hand, the retraction statement Ex. PX of the accused is found to be written in English language, which is not known to the accused and this statement has been simply marked as Ex. PX during the course of recording of the statement U/S 313 Cr.P.C. of the accused. No evidence has been led on behalf of the accused on record as to in whose handwriting the above statement of the accused has been written and further whether or infact the same was written at the instructions or dictation of the accused, and even though the formal proof of the above said retraction statement on record as per the provisions of the Evidence Act is no more required, the accused was certainly required to bring some evidence as to who had written the above statement and further about the contents thereof, as it is not in the handwriting or in the language known to or understood by the accused. Hence, the above retraction statement Ex. PX of the accused is practically of no use or SC No. 43A/09 DRI Vs Tarsem Singh 37 help to this court and the same can only be said to have been made on some legal advise given to the accused while he was in judicial custody.
51. Apart from the evidence led on record by the prosecution regarding the recovery of the above contraband substance from the above vehicle of the accused, the contents of his statement U/S 67 Of the NDPS Act Ex.PW4/B also corroborate the case of the prosecution regarding the recovery of the said contraband substance from the above vehicle being driven by the accused. The depositions of PW11 Sh Pragat Singh also duly corroborate the case of the prosecution regarding the above vehicle being in the exclusive custody and possession of the accused on 02.01.2009 and PW11 has also stated specifically on record that the above vehicle was taken by the accused outside the jurisdiction of the District Taran Taran, Punjab against his instructions. The statement of accused Ex. PW4/B regarding his being a driver under PW11 Sh Pargat Singh for the last about 2½ years on the above said vehicle is also corroborated by the depositions of PW11. Moreover, the accused during the course of trial or in his statement U/S 313 Cr.P.C. has not challenged or disputed the fact that he was in possession of the above vehicle on that day and he had brought his vehicle to Delhi at the relevant time, with the above Shera.
52. The accused in his above statement Ex. PW4/B had not only admitted his apprehension with the above vehicle, SC No. 43A/09 DRI Vs Tarsem Singh 38 the search and seizure etc of the above contraband substance and the proceedings conducted with regard to the same, but he had also stated therein that on 01.11.2009, one person named Shera, who was a resident of his village, had met and had told him to go to Delhi with him on 02.01.2009. He had also stated about the age, parentage and physical descriptions etc. of the above Shera who was his childhood friend. As per the disclosures made by him in the above statement, the above Shera had come to his residence on 02.01.2009 at about 01:00 PM with a black colour bag and Shera had told him that the above bag was containing 8 packets of Narcotic Drugs, which were to be taken to Delhi after concealing in the above vehicle. It is also found recorded in his above statement that thereafter he and the above Shera had concealed the above packets of drugs behind the back side light of his vehicle and they both had left for Delhi in the above vehicle at about 02:00 PM.
53. It is further found recorded therein that the registered owner of the above vehicle is one Harjinder Singh and the above vehicle was purchased by the above Harjinder Singh in partnership with one Sh Pargat Singh/PW11 and presently the above vehicle was in possession of the above Sh Pargat Singh. His above disclosures have been duly corroborated during the investigation made subsequently and also from the depositions made by the above Sh Harjinder Singh/PW10 as well as PW11 Sh Pargat Singh in court. Hence, the evidence led by the prosecution on record regarding the recovery of SC No. 43A/09 DRI Vs Tarsem Singh 39 the above contraband substance from the above vehicle being driven by the accused stands duly corroborated by the contents of his statement Ex. PW4/B of the accused U/S 67 of the NDPS Act, which is found to be made voluntarily. The contents of the above statement Ex. PW4/B of the accused not only prove the possession of the above contraband substance by the accused, but also that the above possession was a conscious possession.
54. Though, the Ld defence counsel has relied upon the judgments in cases Directorate of Revenue Intelligence Vs Moni & Anr.2010 (1) JCC 251, NCB Vs Aziz Ahmad 2010 (1) JCC (Narcotics) 6 and Kamaljeet Singh Vs H.K.Pandey (Intelligence Officer NCB) 2005 (3) JCC (Narcotics) 220, but it is found that the above judgments are not helpful to the case of the accused as in case of Moni & Anr. and Aziz Ahmad (Supra) only the sole retracted disclosure statements of an accused were available for conviction whereas in the present case besides the statement U/S 67 of the NDPS Act, the evidence regarding the possession of the contraband substance is also there. In the case of Kamaljeet Singh (Supra) the confessional statement of the accused was exculpatory in nature and not inculpatory, whereas in the present case the statement Ex.PW4/B of the accused is found to be inculpatory in nature. Even, the judgment in case of Satnam Singh Vs Sate of Punjab 2010 (4) JCC (Narcotics) 181 being relied upon by Ld defence counsel is found to be not applicable to the facts and circumstances of this case as SC No. 43A/09 DRI Vs Tarsem Singh 40 the entire incriminating evidence showing the possession of the contraband substance of the accused has been put to him in his statement U/S 313 Cr.P.C. and it is also not the contention of Ld defence counsel that any such material facts were not put to him in his above statement.
55. There are certain other factors also which show that the accused was aware regarding the presence of the above contraband substance in his above vehicle. As stated above, the above contraband substance was recovered from a cavity behind the left side tail light of the above vehicle driven by the accused and it is also admitted by the accused himself, as well as proved on record, that the accused was working as a driver on the above said vehicle for the last about 2 and 2½ years. It is not the case of the accused that he had handed over the custody of the above said vehicle on 02.01.2009 or immediately prior to that to any other person or the above Shera, which might have furnished them an opportunity to conceal the above contraband substance in the said vehicle. The above Shera was only a passenger in the said vehicle who had hired it for coming to Delhi and there is nothing to even show on record that the custody of the above vehicle was with PW11 Sh Pargat Singh at the relevant time, who was the owner of the above vehicle. No suggestions have been given on behalf of the accused to the IO/PW7 Sh R.Roy as to when and how the above special cavity in the said vehicle was created or that the above cavity of the vehicle was created or the heroin concealed therein, without the knowledge of the SC No. 43A/09 DRI Vs Tarsem Singh 41 accused and only one vague suggestion was given to PW11 Sh Pargat Singh that the above fake cavity was created by the above Shera with his knowledge and consent and further that PW11 had given the above vehicle to the above Shera, which suggestions were denied by PW11 to be wrong. The above suggestions given to PW11 are found to be even contrary to the submissions made by the accused in his statement U/S 313 Cr.P.C. as the accused has nowhere stated in his above statement that the above vehicle was hired by the above Shera from PW11 Sh Pargat Singh or that the above cavity was created in the vehicle by Shera in collusion with PW11. Rather, in his above statement, he has stated that the vehicle was hired by the above Shera from him on payment of hire charges of Rs 6500/-. Further, though, in his above statement U/S 313 Cr.P.C. he has also claimed that he used to park his vehicle near his house in the evening/night, after completion of his duty, and used to pick it on the next morning, but he has nowhere specifically stated that the above contraband substance might have been concealed in the said vehicle by someone while it was so parked unattended.
56. Again, it is also specifically deposed by the IO/PW7 as well as PW9 that when the above vehicle driven by the accused was signaled by them to stop, the driver of the vehicle had speeded it up and the same was chased by the members of the raiding team of DRI in their official vehicle. It is also there on record in their statements that the above vehicle of the accused had then taken a U-
SC No. 43A/09 DRI Vs Tarsem Singh 42 turn after travelling about 1 km and had started running back towards Singhu Border and had suddenly stopped near Yadu (Yadav) Greens. It has also been specifically deposed by the IO/PW7 that both the occupants of the vehicle had come out of the vehicle and one of them was wearing a turban and both had made an attempt to escape from the spot taking advantage of the dense fog, but the accused was apprehended by the DRI team though the above Shera had managed to escape from the spot despite the fact that he was chased by the DRI officers. No specific suggestion has also been given to the IO/PW7 Sh R.Roy or PW8 to the effect that his above depositions are false or that the above vehicle driven by the accused was not so chased and intercepted or that the accused had not made any attempt to escape from the spot. In the absence of that the depositions made by the IO/PW7 in this regard are liable to be accepted and acted upon and the conduct of the accused in making an attempt to run away from the spot in itself is an evidence to show that he was aware that the above contraband substance was kept concealed in the said vehicle.
57. Moreover, in terms of the provisions of Sections 35 & 54 of the NDPS Act, the onus of proving that he had no knowledge of the presence of the above contraband substance in the said vehicle was placed upon the accused himself and he was liable to furnish some satisfactory explanation to show that he was not aware about the same or to explain his possession of the above contraband substance, which he had SC No. 43A/09 DRI Vs Tarsem Singh 43 failed to do so. As stated above, no defence evidence has been led by the accused on record and even during the cross-examination of the prosecution witnesses, nothing material could be extracted by Ld defence counsel from them to show or prove that the possession of the accused of the above contraband substance was not a conscious possession. Hence, it can be said that the prosecution has established on record that the above possession of the contraband substance by the accused was a conscious possession.
58. In the case of Madan Lal and Anr., (Supra) being relied upon on behalf of DRI, the contraband substance was recovered from a steel ' doloo' kept in a bag in the vehicle which was occupied by five persons and after discussing the provisions of Sections 35 and 54 of the NDPS Act and the relevant law on the subject, their Lordships had come to the conclusion that in the factual scenario of that case, not only the possession but the conscious possession has been established as it has not been shown by the accused-appellants that their possession was not conscious in the logical background of Section 35 and 54 of the Act. In the case of Dharampal Singh Vs State of Punjab 2010 (10) SCALE 229 also the contraband substance was recovered from a gunny bag being transported in the dickey of a car driven by one accused/appellant and having the other accused/appellant as an occupant thereof, it was held that both the appellants were in conscious possession of the above contraband substance, in view of the provisions of Section 35 and 54 of the above Act. In one other case SC No. 43A/09 DRI Vs Tarsem Singh 44 of Bahadur Singh Vs State of Haryana (2010) 4 Supreme Court Cases 445 also the recovery of six bags each containing 32 KG of Poppy Husk was effected from the premises of a room of the petitioner, which was opened by the key provided by the petitioner, and the petitioner/accused was held to be in conscious possession of the above contraband substance.
59. One another contention of Ld defence counsel is that there is difference in weight of the samples of the above contraband substance taken by the IO/PW7 and sent for analysis at CRCL and those actually examined in the CRCL office. However, on perusal of the record this submission of Ld defence counsel has not been found to be correct as no such difference in weight of the samples is observed from the record. As per the prosecution case eight samples of 5 gms each were sent to CRCL and the same were examined vide test report Ex.PW6/B and Ex. PW6/C (Section-II of test memo). No weight of the above samples, as taken at the time of start of the testing, is found to be given in the above test report Ex.PW6/B and the weight given in the said report is only the gross weight of the remnants of the samples taken after the analysis of the samples were over. Simply because there is a difference in the weight of such remnants of the samples, it can not be presumed that the samples sent for analysis in CRCL were also having different weights as the above difference in the weight of the remnants of the samples may always be due to the fact that different quantity from each sample packet was subjected to and consumed during the analysis.
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45
60. It is also one of the arguments of Ld defence
counsel that the prosecution has failed to prove its case against the accused beyond reasonable doubts and the accused is entitled to be acquitted giving benefit of doubt. In this regard, he has also relied upon a judgment in case of Jagdish & Anr. Vs State of Rajasthan 2012 (1) JCC (Narcotics), but it is now well stated that every type of doubt raised by the defence can not be made the basis of acquittal of the accused and the doubts being raised by the accused should also be reasonable doubts. The standard of proof required from the prosecution in such a case was discussed by the Hon' b le Supreme Court in the case of Iqbal Musa Patel Vs State of Gujarat Crl. Appeals No. 1331-1332 of 2009 decided vide judgment dated 12.01.2011, as relied upon on behalf of DRI wherein the following observations were made by their lordships:
13. That brings us to the question whether the appellants could be given the benefit of doubt having regard to the nature of the evidence adduced by the prosecution against them. We do not think that the appellants have made out a case for grant of any such benefit. It is true that the prosecution is required to establish its case beyond reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable SC No. 43A/09 DRI Vs Tarsem Singh 46 style in Miller Vs Minister of Pensions (1947) 2 ALL ER 272:
" That degree is well settled. It need not reach certainly, but it must carrying a high degree of probability.
Proof beyond reasonable does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence ' of course ' , it is possible but not in the least probable, ' the case is proved beyond reasonable doubt....
It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. "
14. Reference may also be made to the decision of this Court in Sucha Singh & Anr. Vs State of Punjab (2003) 7 SCC 643 where this Court has reiterated the principle in the following words:
" ..... Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion SC No. 43A/09 DRI Vs Tarsem Singh 47 and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh Vs Satpal Singh AIR 1990 SC 209).
Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial, if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape.
Proof beyond reasonable doubt is a guideline, not a fetish. "
61. In the instant case the prosecution is found to have proved on record the guilt of the accused beyond reasonable doubts because the evidence led on record doesn ' t create any reasonable doubts in the mind of the court regarding the trustworthiness of the same. Hence, the accused can not be acquitted on this ground. It has also been argued by Ld defence counsel that the other public witness Sh Ashok Girdhar could not be examined by the prosecution as he was reported to be not traceable at his given address and this fact makes the case of the prosecution to be doubtful, but the above argument of Ld SC No. 43A/09 DRI Vs Tarsem Singh 48 defence counsel also does not hold any ground as one public witness Sh Hari Om/PW9 already stands examined on record and he had corroborated the case of the prosecution and the depositions of the IO/PW7 on all material particulars.
62. Though, the Ld defence counsel has also relied upon some other judgments, but the same have been either found to be not relevant in the given facts and circumstances of this case or in view of the prepositions of law as laid down in the judgments already discussed by this court.
63. In the test report Ex. PW6/B, the purity percentage of diacetylmorphine in the 8 samples of heroin is stated to be ranging between 79% to 88% and going by the above purity percentage, the percentage/purity weight of the heroin contained in the above packets recovered from the possession of the accused comes to about 6.600 KG. Under the NDPS Act only 250 Grams of the heroin has been prescribed to be a commercial quantity and hence even this quantity of heroin on purity basis is found to be more than 26 times of the above prescribed commercial quantity of the above substance.
64. In view of the above discussions, it is held that the prosecution has successfully proved its charges framed against the accused for the offences punishable U/Ss 21 (c) and 29 of the NDPS Act pertaining to the possession and being part of a criminal conspiracy with the above Shera to deal in contraband substances and to import the above SC No. 43A/09 DRI Vs Tarsem Singh 49 quantity of heroin into the State of Delhi from the State of Punjab. The accused is accordingly held guilty and is convicted for the above said offences. Let he be heard on the quantum of sentence.
Announced in the open
court on 16.07.2012 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 43A/09 DRI Vs Tarsem Singh