Delhi District Court
Ncb vs . Ajay Pratap Singh on 27 August, 2015
NCB Vs. Ajay Pratap Singh
IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS:
PATIALA HOUSE COURTS: NEW DELHI
SC No. 104/08
ID No. 02403R0640902006
Narcotics Control Bureau
Through: Shri Ajay Kumar
Intelligence Officer,
Narcotics Control Bureau, New Delhi
Versus
1 Ajay Pratap Singh
S/o Sh. Yogender Pratap Singh
R/o 179, Naurangabad,
Lakhimpur, Kheri, U.P.
2 Triloki Singh
S/o Sh. Jaymal Singh
R/o Nuarangabad
Lakhimpur, UP
(Already convicted)
3 Ashok Kumar
S/o Sh. Chotey Lal Prasad
V &PO Valmiki Nagar
Distt. Betia, Tehsil Baghan
Bihar
(Already convicted)
Date of Institution : 06.12.2006
Judgment reserved on : 18.08.2015
Date of pronouncement : 27.08.2015
SC No. 104/08 Page No. 1 of 31
NCB Vs. Ajay Pratap Singh
JUDGMENT
1. The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer (IO) Sh. Ajay Kumar has filed the present complaint against the aforementioned accused persons u/s 20 r/w section 29 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act).
2. Briefly stated, the facts that can be culled out from the assertions made in the complaint and the documents filed therewith are as follows :
(a) On 22/6/2006 at 0800 hours, Superintendent R.R. Kumar received a secret information that three persons namely Ashok Kumar Jaiswal, Ajay Pratap Singh and Triloki Singh would be coming near Dr. Karni Singh Shooting Range at Suraj Kund, Tuglakabad road at around 1400 hours in a black colour Scorpio bearing no. UP31K 4455 to deliver huge consignment of Charas to some trafficker.
(b) The information was reduced into writing and was put up before Zonal Director, NCB who directed to take necessary action. Sh. R.R. Kumar, Superintendent issued search authorization in favour of Sh. Ajay Kumar, IO and also gave him directions to search the vehicle after interception. Sh. Ajay Kumar, IO constituted a raiding team consisting of Intelligence officers of NCB namely Sh. P.C. Khanduri, Sh. Manoj Kumar, Sh. Raj Kumar Yadav, Sh.
N.S. Yadav, Sh. Akhilesh Kumar, Sh. Hemant Kumar, Havaldar Sh. Jagdish Chander and Sh. Malkiat Singh, driver which reached the aforementioned spot SC No. 104/08 Page No. 2 of 31 NCB Vs. Ajay Pratap Singh at about 1:00 p.m. At the said spot, IO Ajay Kumar requested few persons to join the raiding party and only one person namely Madan Lal Aggarwal voluntarily agreed to do so.
(c) Thereafter all the members of the raiding team alongwith the independent witness Madan Lal Aggarwal mounted surveillance and started waiting for black colour Scorpio vehicle. At about 2:00 p.m., one black colour Scorpio car was seen coming from Suraj Kund Road and stopped at the gate of Dr. Karan Singh Shooting Range. The said vehicle was being driven by one person and two persons were sitting on the rear seat. The two persons who were sitting on the rear seat got down from the said car and started waiting for someone but when nobody approached them for sometime, they again sat inside the vehicle and were about to leave and at this point, they were intercepted by the NCB team.
(d) The NCB officers then disclosed their identity and the secret information, to the said suspects upon which the said three suspects revealed their names as Triloki Singh (driver), Ajay Pratap Singh and Ashok Jaiswal. Thereafter, they were then informed about the secret information and were apprised about their legal rights and were issued notices U/s 50 of NDPS Act and were made to understand that they have a legal right to be searched before a Magistrate or a Gazetted Officer. They however refused to exercise the said rights and wrote their refusal on the notices itself and thereafter their search was conducted by the NCB officials but nothing incriminating was recovered SC No. 104/08 Page No. 3 of 31 NCB Vs. Ajay Pratap Singh from their person. Thereafter, the search of Scorpio car was conducted and nine white plastic bags from the back side of the Scropio car were recovered which on opening were found to contain black solid substance wrapped in brown/yellow colour tape.
(e) On testing the said substance with the help of Field Testing Kit, it gave positive result for charas. The total weight of the recovered substance came out to be 246 kg. Two samples of 25 gm each were drawn out from each of the nine packets and were kept in separate envelopes and were given marks A1, A2, to I1 and I2. The remaining substance was kept in the same white colour bag from which it was recovered and a parcel was prepared and mark A to I were given. The parcels and the samples were duly sealed and paper slips having dated signature of the IO, panch witness and the accused persons were pasted on them. The Scorpio Car was also taken into possession. Temporary RC was also recovered from the dash board of the car which was also taken into possession. A test memo in triplicate was also prepared at the spot. All the parcels and RC were taken into possession through recovery memo.
(f) Summons u/s 67 NDPS Act was then issued to the accused persons and in pursuance of the same, they accompanied the NCB officials to their office and tendered their statement admitting their complicity in the present case. The accused persons were thereafter arrested and their personal search was conducted.
SC No. 104/08 Page No. 4 of 31 NCB Vs. Ajay Pratap Singh
(g) The case property along with samples and test memo was deposited with the Malkhana Incharge.
(h) Summons were also issued to the independent witness and in pursuance of the same, he appeared in the NCB office and tendered his voluntary statement.
(i) Special reports u/s 57 NDPS Act regarding the search and seizure of contraband and arrest of accused persons were submitted by the IOs to their immediate superior officers.
(j) During further investigation, the samples of recovered substance were sent to CRCL for analysis and after receiving the report of the Chemical Examiner that the samples have tested positive for charas, the present complaint was filed.
3. On the basis of the material on record, Ld. Predecessors of this Court, vide order dated 14/8/2007, framed charges against all the accused persons for the offence under sections 29 NDPS Act and section 20 (b) (ii) (C) NDPS Act and accused Ajay Pratap Singh was separately charged also for the offence under section 25 of the NDPS Act to which the accused persons pleaded not guilty and claimed trial. As per record, during the prosecution's evidence, accused Ajay Pratap Singh absconded and proceedings u/s 82/83 Cr.P.C were initiated against him and vide order dated 07.01.2009 he was declared Proclaimed offender. He was subsequently arrested in this case but before the arrest of this accused, the other two accused namely Triloki Singh and Ashok Kumar were SC No. 104/08 Page No. 5 of 31 NCB Vs. Ajay Pratap Singh convicted by my Ld. Predecessor Court vide judgment and order on sentence dated 23.04.2010 which has been upheld by Hon'ble High Court of Delhi vide order dated 15.07.2015.
4. The prosecution in order to prove its case against accused Ajay Pratap Singh has examined 11 witnesses.
5. PW1 Sh. Ajay Kumar IO, PW3 Sh. P.C. Khanduri IO, PW4 Sh. Akhilesh Kumar Mishra IO, PW5 Sh. Manoj Kumar Aggarwal and PW9 Sh. H.K. Pandey, IO all members of the raiding team have deposed on similar lines and have reiterated the assertions made in the complaint. The search authorisation warrant issued in favour of PW1 has been exhibited as Ex. PW1/A. Notices u/s 50 NDPS Act given to all the accused persons, test memo and recovery memo prepared have been exhibited as Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/H and Ex.PW1/G respectively. The summons issued to accused persons u/s 67 NDPS Act and statements tendered by them have also been duly exhibited. The seizure report u/ 57 of the NDPS Act put up before Superintendent has been exhibited as Ex.PW1/M. PW3 Sh. P.C. Khanduri, IO has also proved the entry in malkhana register Ex.PW3/A. He has also deposed that on 26/6/2006 sample mark A1 to I1 were issued by him to Sh. R.R. Kumar for forwarding the same to CRCL. Statement of accused Ajay Pratap recorded u/s 67 of the Act has been exhibited as Ex.PW3/B. Arrest memo and arrest report submitted to the Superintendent have been duly exhibited. The case property and the samples were also duly produced before SC No. 104/08 Page No. 6 of 31 NCB Vs. Ajay Pratap Singh the court and were duly exhibited during the depositions of the aforementioned witnesses.
6. PW2 Sh. R.R. Kumar has proved the secret information received by him as Ex.PW2/A and the fact that he had issued a departmental seal of Narcotics Control Bureau DZU 1 to IO Ajay Kumar and that entry to this effect was made by him in the seal movement register. According to this witness, the said seal was returned to him by IO Ajay Kumar at 1130 hours on the same day and that a corresponding entry with respect to the same was again made by him in the seal movement register. The relevant entries have been exhibited as Ex.PW1/N. This witness has further deposed that on 26/6/2006, he had forwarded the sample and test memos to CRCL through Driver Bhuvnesh Kumar. The relevant entries have been exhibited as Ex.PW2/E. The arrest reports have also been duly proved by this witness as Ex.PW2/B, Ex.PW2/C and PW2/D.
7. PW6 Sh. S.K. Mittal, Chemical Examiner and PW8 Sh. K.K. Singh, Lab Assistant, CRCL have inter alia deposed that on the instruction of Sh. S.K. Mittal, Chemical Examiner PW8 had received nine sealed samples on 26/6/2006 for which he had issued receipt Ex.PW6/A. The samples in question were examined by Sh. T.C. Tanwar, Chemical Examiner under the supervision of PW6 Sh. S.K. Mittal and the said witness has proved the chemical analysis report prepared by him in this regard as Ex.PW1/N. SC No. 104/08 Page No. 7 of 31 NCB Vs. Ajay Pratap Singh
8. PW7 Sh. Bhuvnesh Kumar has inter alia deposed that he had taken the samples of the present case to CRCL on 26/6/2006 and had deposited the same with Sh. K.K. Singh, Lab Assistant, CRCL Pusa and the receipt issued by the said officer of CRCL has been exhibited as Ex.PW6/A.
9. PW10 Sh. Avnish Kumar, IO has deposed that on 22/6/2006, Sh. P.C. Khanduri IO and Sh. A.K. Mishra IO had recorded statements u/s 67 NDPS Act of accused Ajay Pratap Singh and Ashok Kumar respectively before him and he has proved the said statements as Ex.PW3/B and Ex.PW10/A respectively. This witness has inter alia deposed that he had arrested accused Ashok Kumar. Arrest cum jamatalashi memo has been exhibited as Ex.PW10/B.
10. PW11 Sh. Madan Lal Aggarwal, the panch witness who is stated to have witnessed the entire recovery proceedings at the spot, has supported the version put forward by the Investigating Officer. He has also deposed that in pursuance of the summons Ex.PW1/L served upon him he had appeared in the office of the NCB and had tendered his statement Ex.PW11/A.
11. The entire incriminating evidence was put to the accused Ajay Pratap Singh and his statement u/s 313 Cr.PC was recorded. In the said statement, the accused has inter alia stated that he was not at all apprehended by the NCB on 22/6/2006 and according to him on this date infact he was present in Lakhimpur, U.P at his shop at Mela Road. As per the version put forward by the accused that he used to run a business of distribution and whole selling of SC No. 104/08 Page No. 8 of 31 NCB Vs. Ajay Pratap Singh fertilizers and pesticides and that on 22/6/2006 while he was sitting in his shop at about 3:004:00 p.m. in the afternoon he received a call on his mobile from a person who introduced himself as an official of the NCB and informed him that his vehicle Scorpio had been caught in Delhi and that some contraband had been recovered from the said vehicle and that he must report to the office of NCB, Delhi on 23/6/2006 at 10:00 a.m. for enquiry. Accused has further stated that he thereafter immediately called his father who was posted as a Gazetted Officer at Bareilly and thereafter proceeded from Lakhimpur to Lucknow and then took a train Gorakhnath Express from Lucknow at 8:30 p.m. and reached Delhi at 7:30 a.m. on 23/6/2006. He has further sated that on reaching NCB office, three NCB officials Sh. P.C. Khanduri, Sh. Manoj Aggarwal and Sh. Ajay Kumar informed him that they had caught hold of Ashok Kumar and Triloki Singh and his Scorpio vehicle and charas had been recovered from the said vehicle. According to the accused that he informed the NCB officials that he had given the said vehicle on hire to one Raj Kumar Vajpayee and also provided them a copy of the said agreement but the three officials told him that they will let him go only when he paid them Rs. 20 lakhs. As per the version put forward by the accused in his statement he had also seen the Raj Kumar Vajpayee present in a nearby room in the NCB office and he had seen the the NCB officials talking to him. He has further stated that when he told the NCB officials that he cannot arrange for a payment of Rs. 20 lakhs, they started beating him and that thereafter he was made to sign SC No. 104/08 Page No. 9 of 31 NCB Vs. Ajay Pratap Singh many documents and also wrote his refusal u/s 50 NDPS Act and some portion of his statement purportedly tendered u/s 67 NDPS Act. According to the accused he had narrated the aforementioned facts in an application/retraction statement and had given the statement to his Counsel Ms. Monica who had represented him at that time and the said Counsel had asked him that she had filed the said retraction before the Court.
12. In support of his version the accused has produced his father Sh. Yogendra Pratap Bahadur Singh and one advocate Notary Public, Civil Court, Lakhimpur Kheri, U.P. in the witness box. DW1 Sh. Yogendra Pratap Bahadur Singh in his deposition has inter alia deposed that on 22/6/2006 when he was posted as District Agriculture Officer, Bareily, U.P., he had received a telephonic call from his son Ajay Pratap Singh that the vehicle Scorpio in question which had been given by his son on hire had been intercepted in Delhi with some incriminating material and that he being the owner of the vehicle is being asked to come to Delhi. This witness has further deposed that he advised his son to go to Delhi along with the copy of the hire agreement and that his son thereafter informed him that he will be going to Delhi by Gorakhdham Superfast Express. He has further informed that he kept trying mobile phone of his son after 12 noon on 23/6/2006 but that he was not picking up his mobile and that on 24/6/2006 he received a call from Ajay Sharma, an officer of NCB who informed him that his son has been arrested in a drug case. He has then further gone on to depose that he then reached Delhi SC No. 104/08 Page No. 10 of 31 NCB Vs. Ajay Pratap Singh on 25/6/2006 and after coming to know from his son that he had been forced to sign many documents at the NCB office, he engaged a lawyer and handed him over the original documents including hire purchase agreement vide which his son had given the Scorpio vehicle in question on hire to Raj Kumar Vajpayee. He has then also inter alia deposed about the injuries that were received by his son, the accused while he was in Tihar Jail and as per his version it is the coaccused in the present cases who along with another Tihar jail inmates had attacked his son and had given him injuries on his cheek for which 85 stitches had to be put on his cheek. As per this witness he had lodged complaints to various authorities with respect to the attack on his son and he has placed on record the copies of the said complaints.
13. DW2 Sh. Bansi Dhar Singh, Advocate Notary Public Civil Court has inter alia deposed that the hire agreement ExDW1/A had been provided by him on the instructions of Ajay Pratap Singh and Raj Kumar Vajpayee. He has further deposed that both the said persons had signed on the said agreement in his presence and he thereafter notarised the said agreement and made an entry on the annual register of notary public maintained by him.
14. After the conclusion of the prosecution and the defence evidence Ld. SPP for NCB Sh. B.S. Arora and Ld. Defence Counsel Sh. Y.K. Saxena have advanced final arguments.
15. Ld. SPP for the NCB has submitted that the depositions of the prosecution witnesses have more or less remained unrebutted with respect to the search SC No. 104/08 Page No. 11 of 31 NCB Vs. Ajay Pratap Singh and seizure proceedings and his contention therefore is that the prosecution has been able to prove beyond reasonable doubt that the contraband had been recovered from the accused persons including accused Ajay Pratap Singh.
16. On the other hand, Ld. Defence counsel Sh. Y.K. Saxena has submitted that Hon'ble High Court of Delhi in the appeal of accused Triloki Singh and Ashok Kumar has already dealt with a number of arguments and hence he is not re agitating those points and he has restricted himself to the following main contentions:
(a) There is non compliance of section 42(2) of the NDPS Act. As per section 42(1) NDPS Act, any information received by an officer empowered has to be reduced into writing and as per section 42(2) of the Act, a copy thereof has to be sent to the immediate superior within 72 hours which it is alleged, has not been done in the present case. He has relied upon two authorities in support of this contention i.e. M. Prabhulal Vs. Assistant Director of DRI 2003 SCC (Crl.) 2024 and Kishan Chand Vs. State of Haryana AIR 2013 SC 357.
(b) As per the case of the prosecution itself and as per the recovery memo also Ex.PW1/G, the proceedings at the spot continued from 02.00 PM till 05.30 PM and the accused were served notice u/s 67 NDPS Act with direction to appear in the office of NCB at 06.30 PM but PW10 Sh. Avinash Kumar, IO who recorded the statement of accused Ajay u/s 67 NDPS Act deposed in the court that he was produced before 12 O'clock or it may be upto 2 O'clock.SC No. 104/08 Page No. 12 of 31
NCB Vs. Ajay Pratap Singh Hence it is submitted that either statement of this witness is false or the contents of the seizure memo are false because the abovesaid time cannot be reconciled. In support of this contention, he has relied upon Radhey Shyam vs. Union of India Crl. Appeal No. 828/2008 decided on 26.09.2012 by Hon'ble Supreme Court of India.
(c) The testimony of the public witness PW11 Sh. Madal Lal Aggarwal is completely unreliable and his full of contradictions and hence no reliance can be placed on his deposition. It is pointed out that he identified the accused Ajay Pratap Singh as the driver of the vehicle whereas as per the case of the prosecution he was sitting on the back seat of the vehicle. Further as per him, all the three accused persons had got down from the vehicle and after the seizure of contraband two packets were drawn whereas as per the case of the prosecution, only two accused had got down from the vehicle and in total 18 packets were drawn from the entire contraband.
(d) After the alleged recovery of the contraband at the spot, the sampling was not done by the NCB officials correctly and as per their own guidelines and it would vitiate the entire proceedings. It is stated that in total nine bags were recovered and each bag was having several packets of the material and the NCB officials did not take out sample from each of those packets and PW1 has admitted that the sample was taken from the corner of the solid substance which cannot be said to be representative sample drawn from each packet. SC No. 104/08 Page No. 13 of 31 NCB Vs. Ajay Pratap Singh
(e) The report of Chemical Expert has also been challenged on the ground that requisite test 5.5.2.8 test for differentiation between Bhang, Ganja and Charas as prescribed under the working procedure manual of narcotics issued by Directorate of Forensic Science, Govt. of India was not conducted by the Chemical Expert and hence such a report is itself doubtful and cannot be relied upon by the prosecution. In support of this contentions, he has relied upon Gaunter Edwin Kitchen Vs. State of Goa 1993 SCC (Crl.) 803 and Dilip Vs. State 2010 (4) JCC (Narcotics) 619.
(f) Section 25 of the NDPS Act would not be applicable against accused Ajay Pratap Singh and section 25 of the said Act is applicable only in those cases where the owner or occupier of the vehicle knowingly permits it to be used for the commission of offence under this Act by any other person which is not in the present case. He has relied upon Sarkaria Vs. State of MP 1991 Crl.L.J. 1925 and Koli Trikam Jivraj Vs. State of Gujarat AIR 1969 Gujarat 69.
(g) Ld. Counsel for the defence has relied upon certain other authorities :
• Ram Singh Vs. CBN 2011(11) SC 347 • DRI Vs. Raj Kumar Mehta 2011 (3) JCC Narcotics 156 • CBN Vs. Bahadur Singh 2011(1) JCC (Narcotics) 59 • Sunil Kumar vs. State 2011(1) JCC Narcotics 63 • Eze Val Okeke Vs. NCB 116(2005) DLT 399. SC No. 104/08 Page No. 14 of 31 NCB Vs. Ajay Pratap Singh
17. In rebuttal, Ld. SPP for NCB Sh. B.S. Arora has submitted that there is complete compliance of section 42(2) of the Act and although the secret information was received by an Superintendent level official namely Sh. R.R. Kumar and although it was not required for him to send a copy of the same to his superior official but still he brought it to the notice of the Zonal Director who was his immediate superior and received his signature on the secret information itself. Regarding discrepancies in the depositions of PW10 Sh. Avnish Kumar, IO NCB and PW11 Sh. Madan Lal Aggarwal, he has argued that these witnesses have been examined after about six years of the incident in question and these small contradictions are bound to occur when the witnesses are examined after so long and this would not discredit the case of the prosecution. It is further argued that the accused has taken contradictory defence in his bail application during trial which falsifies his defence. On the issue of sampling, it is stated that the guidelines of NCB were duly followed while taking out the samples from the contraband and in totality, the prosecution has been able to prove its case beyond reasonable doubt. It is further stated that both the coaccused namely Ashok Kumar and Triloki Singh were earlier convicted by this court and their sentence has been upheld by the Hon'ble High Court of Delhi vide order dated 15.07.2015.
18. In the present case PW2 Sh. R.R. Kumar Superintendent, NCB had received secret information on 22.06.2006 that three persons namely Ashok Kumar Jaiswal, Ajay Pratap Singh and Triloki Singh would be coming near Dr. Karni SC No. 104/08 Page No. 15 of 31 NCB Vs. Ajay Pratap Singh Singh Shooting Range at Surajkund, Tughlakabat at around 1400 hours in a black colour Scorpio bearing no. UP 31K 4455 to deliver huge consignment of charas to some trafficker and he reduced this information into writing which has been proved as Ex.PW2/A. He brought this information to the attention of the Zonal Director whose signature is at point B on Ex.PW2/A.
19. As far as recovery of contraband from the accused is concerned, the members of the raiding team PW1 Sh. Ajay Kumar IO, PW3 Sh. P.C. Khanduri, IO, PW4 Sh. Akhilesh Kumar Mishra IO, PW5 Sh. Manoj Kumar Aggarwal and PW9 Sh. H.K. Pandey, IO have described the search and seizure proceedings that took place at the spot, in detail. It has been proved that in pursuance to secret information, the members of the raiding party reached at the spot where at 02.00 PM one black colour Scorpio bearing no. UP 31K 4455 was seen coming from Surajkund Road which stopped at the gate of Dr. Karni Singh Shooting Range and the said vehicle was being driven by one person and two persons including accused Ajay Pratap Singh were sitting on the rear seat. Accused Ajay Pratap Singh and Ashok Kumar who were sitting on the rear seat got down from the said vehicle and started waiting for someone but when nobody approached for sometime, they again sat inside the vehicle and were about the leave and at this point, they all were apprehended by NCB team. After compliance of the mandatory requirement under the Act, the search of the vehicle was conducted which resulted in recovery of nine bags which were SC No. 104/08 Page No. 16 of 31 NCB Vs. Ajay Pratap Singh containing packets of black colour solid substance wrapped in brown/yellow colour tape. The said substance when tested with the help of Field Testing Kit, gave positive result for charas and the total weight of the substance came out to be 246 Kg. The case property and the samples were sealed using the paper slips with the seal of NCB DZU 1 and were taken into possession vide recovery memo Ex.PW1/G. The proceeding bears the signatures of all the accused persons as well as witness Madan Lal Aggarwal.
20. The fact that after seizure, the case property was kept in safe custody has been proved by PW3 Sh. P.C. Khanduri, IO who was also working as Malkhana incharge in NCB, DZU, Delhi and he deposed that the entire case property and the test memo in triplicate were deposited with him in the malkhana and the entry to this effect was made in the malkhana register and the copy of the same is Ex.PW3/A.
21. PW1 Sh. Ajay Kumar, IO and PW3 Sh. P.C. Khanduri, IO respectively furnished report u/s 57 NDPS Act on 23.06.2006 regarding the recovery and seizure of 246 Kg of charas and the arrest of accused Ajay Pratap Singh to the Superintendent Sh. R.R. Kumar and the reports have been proved as Ex.PW1/M and Ex.PW2/B which bear the signature of the Superintendent, which have been identified by him during trial.
22. The deposition of PW7 Sepoy Bhuvnesh Kumar makes it clear that samples drawn out from the recovered substance in the proper custody were taken to CRCL, Pusa, Delhi for examination vide forwarding letter Ex.PW2/F and he SC No. 104/08 Page No. 17 of 31 NCB Vs. Ajay Pratap Singh brought back the receipt of CRCL which is Ex.PW6/A.
23. PW6 Sh. S.K. Mittal, the then Assistant Chemical Examiner at CRCL, New Delhi has proved that the samples received had tested positive for charas and he has proved his report which is Ex.PW1/N which bears his signatures at point A.
24. The testimony of the prosecution witnesses is trustworthy and believable and nothing has emerged in the crossexamination of aforesaid witnesses which cast doubt on the veracity of the statement or to impeach their creditworthiness.
25. The accused has taken a defence that he was not at all apprehended by the NCB officials on 22.06.2006 from the spot but rather at that time he was present in his shop at Lakhimpur, UP where he received a call of some NCB official informing that his vehicle Scorpio had been caught in Delhi and he must report to the office of NCB and when he reached Delhi on the next day i.e. on 23.06.2006, he was falsely implicated in this case. He further took the defence that he had given the said vehicle on hire to one Rajkumar Vajpayee vide hire agreement Ex.DW1/A which was notarized by DW2 Sh. Bansi Dhar Singh, Advocate, Notary Public.
26. On the other hand, Ld. SPP for the NCB has pointed out that accused has taken contradictory defence in his bail application mark Z moved on 23.08.2006 and thereafter during trial. It is stated that in his bail application mark Z accused did not take the plea of alibi and rather explained the SC No. 104/08 Page No. 18 of 31 NCB Vs. Ajay Pratap Singh circumstances in which he was apprehended by the NCB officials at the spot whereas during trial he has taken the plea of alibi and this in itself falsifies the defence of the accused. Ld. defence counsel has controverted the same by stating that if wrong facts are mentioned in the bail application by the previous counsel, the accused cannot be made to suffer for the same. In support of the same he has relied upon an authority titled as Koli Trikam Jivraj Vs. State of Gujarat AIR 1969 Gujarat 69 .
27. If accused is taking the plea of alibi, the onus was on him to prove the same. In my view, he has miserably failed to prove the same. Even if it is accepted that accused Ajay Pratap Singh had given the vehicle in question on hire to Sh. Rajkumar Vajpayee under hire agreement Ex.DW1/A, this in itself would not be sufficient to prove the fact that he was not apprehended from the spot. As stated above, there is cogent and convincing evidence of the prosecution witnesses proving his presence at the spot alongwith other accused in the Scorpio vehicle which was found containing contraband in question. His father is an interested witness who has been examined as DW1. Although it is correct that an undertrial cannot be made to suffer for the negligence of his counsel but the defence taken in the bail application mark Z dated 23.08.2006 cannot be said to be the negligence of the previous counsel. Nothing has been brought on record to show that the defence taken by the earlier counsel while moving the said bail application was not on the instructions of the accused. The contradiction in the defence of the accused as discussed above also to some SC No. 104/08 Page No. 19 of 31 NCB Vs. Ajay Pratap Singh extent goes against the accused himself. In nutshell, the accused has failed to prove his defence.
28. Coming to the contention of Ld. Counsel for the defence regarding non compliance of section 42(2) NDPS Act, it is stated that this contention has no merit. It is argued by Ld. SPP for NCB that in the case of M. Prabhulal (Supra) the gazetted officer himself conducted the search and seizure proceedings and arrested the accused but in the present case a gazetted officer i.e. Sh. R.R. Kumar, Superintendent received the secret information and he directed Sh. Ajay Kumar, IO to take the necessary action and even in these circumstance, it was not necessary for him to comply with section 42 (2). In my view this is only an academic exercise and it is not required to be gone into by this court because as per the case of the NCB PW2 Sh. R.R. Kumar, Superintendent after reducing the secret information into writing which is Ex.PW2/A brought it to the attention of the Zonal Director whose signature is at point B on this document. There is no merit in the contention of Ld. Counsel for the defence that section 42(2) of this Act required him to send a copy thereof to the Zonal Director and not simply to get his signature on the information. As per the case of the NCB the Superintendent shared the information with the Zonal Director who also countersigned on the information. The requirement of sending a copy to the official superior u/s 42(2) of the Act is to ensure that the information is brought to the notice of the official superior and it has been so done in the present case. If the defence had SC No. 104/08 Page No. 20 of 31 NCB Vs. Ajay Pratap Singh any doubt about the same, they could have summoned the Zonal Director in their defence but it has not been opted by them. Hence it is clear that there is complete compliance of section 42(2) of the Act.
29. Regarding the discrepancies in the statement of PW10 Sh. Avnish Kumar, IO and PW11 Sh. Madan Lal Aggarwal (public witness), it is relevant here to state that the crossexamination of PW10 Sh. Avnish Kumar, IO and examination of PW11 Madan Lal Aggarwal took place after about six years of the incident. In Bhogin Bhai Hirji Bhai Vs. State of Gujarat AIR 1983 SC 753 it has been held by Hon'ble Supreme Court that by and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. Both the said witnesses have broadly supported the case of the prosecution. The mere fact that PW10 Sh. Avinish Kumar, IO stated in his crossexamination that the accused were produced at 12 Noon or by 02.00 PM, when it was not possible as investigation on the spot had not yet ended, will not be sufficient in itself to disbelieve the case of the prosecution as a whole. Similarly PW11 Sh. Madan Lal Aggarwal though identified accused Ajay Pratap Singh as the driver of the vehicle, whereas as per the case of the prosecution he was sitting on the rear seat, would not be sufficient to throw the entire case of the prosecution. He has identified accused Ajay Pratap Singh as one of the person who was apprehended at the spot among the other accused persons. It has been recently held in Madhu @ Madhuranatha and Anr. Vs. State of Karanataka AIR SC No. 104/08 Page No. 21 of 31 NCB Vs. Ajay Pratap Singh 2014 SC 394 that it is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. The court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. In the present case, the discrepancies in the testimony of the abovesaid two witnesses do not go to the heart of the matter and shake the basic version of the prosecution case.
30. The argument of the defence questioning the sampling procedure of the NCB has also no merit. Although PW1 Sh. Ajay Kumar, IO has admitted in his crossexamination that all the packets were not opened by him completely but from the corner of each of the packets, little substance was taken out for making the samples but that in itself would not be sufficient to say that representative samples were not drawn from each packet. Even if from the corner of each of the packet, little substance was taken but the chemical expert has found all the samples positive for charas. If the samples did not adequately represent the entire material, as argued by Ld. Counsel for the defence, the chemical expert's report should have been negative atleast with respect to some of the samples. The menace of narcotic drug and psychotropic substances has SC No. 104/08 Page No. 22 of 31 NCB Vs. Ajay Pratap Singh ruined and is ruining generations and this problem is required to be taken very seriously. Such frivolous arguments questioning the sampling, in the face of adverse chemical report in respect of nine samples, require strong judicial rejection.
31. The argument of the defence challenging the forensic expert's report is also without merit. The authority of Dilip (supra) relied upon by Ld. Counsel for the defence is of no help to him. In the said case the question before the Hon'ble Division Bench was whether the percentage of THC in a sample of charas can by itself be determinative of the purity of the sample and whether such test is relevant or necessary for the purpose of considering the grant of bail etc. It is not the question here at all. Further it has been held in the said case itself that there are a number of testing procedures to arrive at a conclusion as to whether the contraband is cannabis or not. Some of the testing procedures including 5.5.2.8 test are indicated in the working procedure manual of narcotics issued by the Directorate of Forensic Science, Govt. of India but there are several other tests including thin layer chromatography, gas liquid chromatography, high performance liquid chromatography and mass spectrometry technique, etc. In the present case Sh. S.K. Mittal, Assistant Chemical Examiner, CRCL, Delhi conducted macroscopic, microscopic, chemical and chromatographic examination and came to the conclusion that the samples in question were charas. His report has been proved as Ex.PW1/N. Hence the argument of the defence in this SC No. 104/08 Page No. 23 of 31 NCB Vs. Ajay Pratap Singh regard sans merit.
32. Accused Ajay Pratap Singh in his statement u/s 67 NDPS Act has admitted his complicity in the commission of the offence. He admitted that coaccused Ashok had promised him good return in case he allows his money and vehicle to be used for transporting charas and at the relevant time he knew that charas was being transported in the vehicle in question, when they were apprehended by the NCB officials. The said statement has been proved by Sh. Prem Khanduri, IO and Sh. Avnish Kumar, IO as Ex.PW3/B. It is settled law that the statement of accused recorded u/s 67 NDPS Act by the officials of NCB prior to the arrest of the accused is admissible in evidence. It has been so held in Kanhaiyalal Vs. Union of India (2008) 4 SCC 688, M. Prabhulal Vs. Assistant Director of Revenue Intelligence (2003) 3 JCC 1631 and Rehmatullah Vs. NCB (2008) 3 JCC (Narcotics) 174. There is nothing in the crossexamination of the witnesses that the said statement of the accused was recorded under any threat, pressure or coercion and hence the said statement pass the test of voluntariness and truthfulness and hence the same is admissible in evidence. Although this statement was subsequently retracted by the accused but it has been held in State Vs. Navjot Sandhu @ Afasan Guru (2005) 11 SCC 600 that a retracted confession may form the legal basis of conviction if the court is satisfied that it was true and voluntarily made. In the present case, as discussed above the statement of accused has passed this test. SC No. 104/08 Page No. 24 of 31 NCB Vs. Ajay Pratap Singh
33. It is further argued by Ld. Counsel for the defence that section 25 of the NDPS Act is applicable only in those cases where the owner or occupier of any conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act but it is not so in the present case and hence accused Ajay Pratap Singh cannot be convicted for the said offence. I agree with this contention of Ld. Counsel for the defence. In my view, section 25 NDPS Act envisages those conditions where the owner or occupier of any house, room, enclosure, space, place, animal or conveyance is different from the person who is the actual user of the same for the commission of the offence under this Act. The words 'by any other person' in section 25 are very material. If the owner or occupier knowingly permits such place or conveyance to be used by any other person for the commission of offence under this Act, only then section 25 would come into play. In the present case accused Ajay Pratap Singh is himself the registered owner of vehicle no. UP 31K 4455 from which the recovery was effected and hence the ingredient of section 25 NDPS Act are not satisfied and hence he is acquitted for the offence u/s 25 NDPS Act.
34. As far as charge of conspiracy is concerned, it is relevant here to state that the direct evidence is seldom available in such cases. It has been held by Hon'ble Supreme Court of India in Kehar Singh vs State (Delhi Admn.) AIR 1988 SC 1883:
SC No. 104/08 Page No. 25 of 31
NCB Vs. Ajay Pratap Singh "Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquiry whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Not it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
35. In the present case as discussed above there is recovery of 246 Kg of charas from the possession of all the three accused persons and the inculpatory statement of all the accused recorded u/s 67 NDPS Act would aid in proving the charge u/s 29 NDPS Act.
36. In view of the above, it is proved that accused Ajay Pratap Singh alongwith co accused Ashok Kumar and Triloki Singh (already convicted were party to the criminal conspiracy in acquiring/possessing and trafficking charas and in pursuant thereto they were found in possession of the same. Prosecution has been able to prove its case beyond reasonable doubt with regard to the same. SC No. 104/08 Page No. 26 of 31 NCB Vs. Ajay Pratap Singh
37. In view of the above, accused Ajay Pratap Singh is convicted for the offence u/s 29 NDPS Act and also u/s 20(b)(ii)(C) NDPS Act.
38. The accused has not furnished bond u/s 437A Cr.PC inspite of directions of the court dated 14.08.2015.
39. Let the accused be heard on the point of sentence on 31.08.2015. Announced in the open court on 27th day of August, 2015 (Deepak Garg) Special Judge NDPS : New Delhi Patiala House : New Delhi SC No. 104/08 Page No. 27 of 31 NCB Vs. Ajay Pratap Singh IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI NCB Vs. Ajay Pratap Singh SC No. 104/08 ORDER ON SENTENCE Present: Sh. Mohit Arora, proxy counsel for SPP for NCB.
Convict Ajay Pratap Singh from JC.
Defence counsel Sh. Y.K. Saxena, Advocate.
Vide judgment dated 27.08.2015, the accused Ajay Pratap Singh was convicted for the offence punishable u/s 20(b)(ii)(C) and u/s 29 of NDPS Act.
I have heard Ld. Counsels for both the sides on the point of sentence.
Ld. SPP for the NCB has argued that since the convict has been convicted for the possession of commercial quantity of charas which is a narcotic drug within the meaning of NDPS Act, he does not deserve any leniency and he should be imposed the maximum punishment.
On behalf of convict, it is stated by Ld. Counsel Sh. Y.K. Saxena that the convict belongs to a respectable family and his father had retired as a gazetted officer. It is further stated that he has old aged parents and his father has recently undergone heart bypass surgery. It is further stated that his wife and two children are completely dependent upon him and in view of the same, minimum sentence be awarded on the convict as prescribed under the law. SC No. 104/08 Page No. 28 of 31 NCB Vs. Ajay Pratap Singh On the question of sentencing, it will be useful to refer to an authority of Hon'ble Supreme Court of India reported in State of Uttar Pradesh Vs. Sanjay Kumar (2012) 8 SCC 537 in which the sentencing policy has been explained in paragraph 21 which reads as under:
"21. Sentencing Policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. By introducing more uniformity and consistency into the sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes. Sentencing policies are needed to address concerns in relation to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality, as followed in various judgments of this Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats."SC No. 104/08 Page No. 29 of 31
NCB Vs. Ajay Pratap Singh It is relevant here to state that this convict alongwith his coaccused Triloki Singh and Ashok Kumar was facing trial but in the middle of trial, he stopped appearing and he was declared proclaimed offender by the court. Subsequently, he was arrested and his trial began. In view of the same, in my view, he does not deserve any leniency and the minimum sentence prescribed under the law.
In view of the above, after considering the facts and circumstances, for the offence u/s 20(b)(ii)(C) NDPS Act, the convict is sentenced to RI for 12 years and fine of Rs.1 lac. In default, SI for 6 months. Further, for the offence punishable u/s 29 of the NDPS Act, the convict is further sentenced to RI for 12 years and fine of Rs.1 lac. In default, SI for 6 months. Both the sentences shall run concurrently. Fine not paid. Benefit of section 428 Cr.PC is given to the convict and the imprisonment already undergone by him shall be set of against the substantive period of sentence awarded to him.
Case property is confiscated to NCB and the same may be disposed of after the expiry of the period of the appeal/revision.
Copy of the judgment and the sentence be given to the convict free of cost.
Copy of the order be sent to Jail Superintendent for compliance. Announced in the open court on this 31st day of August, 2015 (Deepak Garg) Special Judge NDPS : New Delhi SC No. 104/08 Page No. 30 of 31 NCB Vs. Ajay Pratap Singh Patiala House : New Delhi SC No. 104/08 Page No. 31 of 31