Delhi District Court
Sc No. 57A/08 Dri vs Kulbir Singh & Anr on 10 September, 2015
1
IN THE COURT OF SHRI A.K.KUHAR
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
Directorate of Revenue Intelligence
Head Quarters, New Delhi
Through Sh. Jyothimon Dethan, Intelligence Officer
VERSUS
1. Kulbir Singh
S/o Sardar Daljit Singh
R/o H.No. 122, Gurnam Nagar
Sultanwind Road
Amritsar, Punjab.
2. Gurbaaj Singh @ Baaj Singh
S/o Sh Shubeg Singh
R/O V & PO Sangna, Thana Sadar
Tehsil & District Amritsar
Punjab.
Both presently lodged in Central Jail
Tihar, New Delhi.
SC No.: 57A/08
U/S : 21/25/29 NDPS Act
Computer ID No. O2403R0884402008
Date of institution : 02.09.2008
Date of reserving judgment : 02.09.2015
Date of pronouncement : 10.09.2015
Decision : Acquitted.
JUDGMENT
1. The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence, Head Quarters, New Delhi (hereinafter referred to as DRI) through Sh. Jyothimon Dethan, Intelligence Officer, against both the above accused persons for commission of the offences punishable u/s 21, 25 and 29 of the NDPS Act, 1985.
2. The facts of the case, in brief, are that on 08.03.2008 at about 6 am, PW1 Sh Sujeet Kumar received a secret information SC No. 57A/08 DRI Vs Kulbir Singh & Anr 2 from some reliable source that one Hyundai Santro car bearing registration no. PB 02 AG 6882 was parked in the parking lot of New Delhi Railway Station, Pahar Ganj side, and the said car contained some narcotic drugs, concealed in a bag kept inside the car. PW1 had immediately reduced the above information into writing as Ex. PW1/A and had put up the same before his official superior/PW6 Sh Pankaj.K.Singh, who after having discussions with his senior officers had directed the IO/PW2 Sh Jyothimon Dethan to reach at the spot with a team of officers and to take necessary action on the said information.
3. It is alleged that a team of the DRI Officers led by the IO/PW2 had then reached at the above spot at around 7 AM and had identified the above Santro car parked in the above parking lot. Two public witnesses were joined from near the spot, after they were apprised by the IO/PW2 about the above information, and the DRI Officers had started keeping a discreet watch on the said car from a distance. At around 7.40 AM two persons were seen approaching the said car and one of them had tried to open the lock of the car with a key and the other was prepared to get into the front passenger seat of the said car when they both were intercepted by the DRI Officers. The DRI Officers had introduced themselves to both these persons by showing of their identity cards and on enquiry the identity of the above two persons was revealed as the accused Kulbir Singh, a resident of Amritsar, and Gurbaaj Singh @ Baaj Singh, who was also a resident of a village near Amritsar, Punjab. The two public witnesses were also introduced to the accused persons and then both the accused persons were asked as to whether they were carrying any narcotic drugs on their persons or in their above car, to which both of them had replied in negative. They both were then apprised by the IO/PW2 about the above secret information and were again asked regarding any narcotic drugs in SC No. 57A/08 DRI Vs Kulbir Singh & Anr 3 their possession and again they had replied in negative.
4. Thereafter, the IO/PW2 had told both the accused persons that in view of the above secret information their persons as well as the above car were required to be searched and since the above parking lot was a busy and crowded place and was not suitable for conducting the further proceedings, both the accused persons were requested by the DRI Officers to accompany them to their office situated at D-Block, IP Bhawan, IP Estate, New Delhi and they were also escorted to the parking area of the above office of DRI in the above building, alongwith their above vehicle and the two public witnesses. After reaching there, the IO/PW2 had served separate written notices U/S 50 of the NDPS Act Ex. PW2/B and Ex. PW2/C respectively upon the accused persons explaining them that they had a right to get their persons and the above vehicle searched in the presence of a Gazetted Officer or a Magistrate, but vide their written replies given on the said notices itself in their own handwritings, both the accused had offered the search of their persons and the vehicle to any officer of DRI. Thereafter, a systematic search of the above Santro car was conducted in the presence of the accused persons as well as the two public witnesses and the same had resulted in the recovery of a black colour zipper bag, which was having a sticker of 'Binny Bags' affixed thereon and was kept on the floor of the car, between the front and rear seats of the car, towards the left hand side. The above bag was found to be containing 14 cloth bags and each cloth bag was found to contain some off white colour powdery/granular substance in heat sealed transparent polythene packing. Three documents, i.e. one receipt issued by the District Transport Officer, Amritsar in the name of one Sh Bikramjit Singh, a resident of a given address of Amritsar, regarding the transfer of the above Santro car, one insurance proposal of Oriental Insurance Company Ltd. of the said car in the SC No. 57A/08 DRI Vs Kulbir Singh & Anr 4 name of one Sh Gulzar Singh, also a resident of Amritsar, and one pollution certificate of the said car, were also recovered from the dashboard of the said car and the same were resumed for the purposes of the investigation. The abovesaid black colour zipper bag containing 14 cloth bags and both the accused persons and the public witnesses were all then escorted to the 7th floor office of the DRI in the said building for conducting the detailed examination of the above recovered goods and further proceedings.
5. It is also alleged in the complaint that on detailed examination of the above 14 cloth bags, it was found that the above cloth bags were stitched from three sides and were bearing some rubber stamp markings and the said bags were opened from one side and were found to contain a single heat sealed transparent polythene packet each, containing some off white colour granular/powdery substance. The above transparent polythene packets were cut opened one by one and a sharp pungent smell was found coming from the substance contained therein and on testing a pinch of the above substance contained in the said packets separately, with the help of a Drug Detection Kit, the same had tested positive for heroin. Total six different types of rubber stamp markings were found on the cloths of the above packets and these packets were marked as A-1 to A-8, B-1, C-1, D-1 & D-2, E-1 and F-1 for the purposes of the identification, as per the markings appearing on the cloth of these packets. The gross weight of the above 14 packets was found to be 14.396 KG and the net weight of heroin contained therein to be 14.088 KG. However, nothing incriminating was recovered in the personal search of both the accused persons conducted there, except one railway parking ticket of the abovesaid car Ex. PW2/E on record. The above heroin, alongwith its packing material, above black colour zipper bag and the above recovered documents, alongwith the above car, were then all seized for SC No. 57A/08 DRI Vs Kulbir Singh & Anr 5 violation of the provisions of the NDPS Act.
6. The IO/PW2 had then drawn two representative samples of 5 Grams each from each of the recovered packets and these samples were kept in separate small zip lock polythene packets and were numbered correspondingly as A-1A to A-8A & A-1B to A-8B, B-1A & B-1B, C-1A & C-1B, D-1A & D-1B D-2A & D-2B, E-1A & E-1B and F-1A & F-1B and these were then further individually kept in yellow colour paper envelopes, which were also similarly marked and sealed with the DRI seal no. 10 over a paper slip bearing the dated signatures of both the accused persons, the panch witnesses and the IO/PW2 himself. The remaining heroin of the above recovered 14 packets was put back in the same packings and these packets were also then converted into cloth parcels and marked as per the marking given to the original packets and the same were also sealed with the above DRI seal in the same manner. These sealed cloth packets of remaining heroin, alongwith the above black colour zipper bag, were then kept in a metal trunk and it was also converted into a cloth parcel and sealed with the same seal and in the same manner. The IO/PW2 had also drawn a detail panchnama Ex. PW2/D regarding the above proceedings and the contents thereof were explained to all and the same was also signed by all the above persons and a facsimile of the above seal of DRI affixed thereon. Photocopies of the above six different types of markings found on the cloth of these packets, which are Ex. PW2/G1 to G6 on record, were made as annexures to the above panchnama and the above parking slip Ex. PW2/E and the receipt of registration of the said car Ex. PW2/F, which was recovered from the said car, were also pasted on separate papers and these papers as well as the other two documents recovered from the car, which are Ex. PW2/F2 and Ex. PW2/F3 on record, were also got signed from all the above persons. Test memos in triplicate, including the test memos Ex.
SC No. 57A/08 DRI Vs Kulbir Singh & Anr 6 PW2/H and Ex. PW2/H1, were also prepared and a facsimile of the above seal of DRI affixed thereon.
7. It is also alleged in the complaint that in response to the summons Ex. PW2/K dated 08.03.2008, which is the above date of incident itself, the accused no. 1 had also tendered his voluntary statement Ex. PW2/L before the IO/PW2 on the same day in his own handwriting and in the above statement, besides disclosing his various personal and family details and admitting the above recovery of the contraband from them and the entire proceedings conducted with regard to the same, he had disclosed that he was working as a Head Constable with Punjab Police at that time and was posted at Police Lines, Lawrence Road, Amritsar. He had further disclosed therein that about 3-4 years back he had met one person named Harinder Singh in a vehicle and the above Harinder Singh had again met him in the market of Lawrence Road, Amritsar last week and he had told to Harinder Singh that he was in need of some money. Thereupon, Harinder Singh had proposed him that if he carries a bag of narcotic drugs for him (Harinder Singh) in some vehicle and can deliver it in Delhi, in the parking lot outside New Delhi Railway Station where some person will collect the said bag from him, then Harinder Singh will give him Rs 50,000/- for the said job after he (accused) returns back to Amritsar. Harinder Singh had also told the accused that if he (accused) was willing to take any of his friends with him at the time of the above job then his friend will also be paid handsomely. The accused had agreed to the above proposal of Harinder Singh out of greed and thereafter, Harinder Singh told him to reach at the main bus stand Amritsar at 6 PM on 06.03.2008 with some vehicle. The accused had then discussed the above things with his friend/accused no. 2 Baaj Singh, who was residing in a nearby village, and the accused no. 2 had also agreed for the above job and to accompany the accused no. 1 at the time of SC No. 57A/08 DRI Vs Kulbir Singh & Anr 7 the above delivery. It was further disclosed by the accused no. 1 therein that after picking the accused no. 2 on the way from the main road leading towards the above bus stand at around 5.45 PM on 06.03.2008, he had reached at the above bus stand at around 6 PM on that day, in the above Santro car belonging to his brother. The above Harinder Singh was already standing there with a black colour bag and he told the accused no. 1 that the above bag was containing narcotic drugs and was to be delivered in Delhi, in the above parking area, to one person between 7 AM to 8 AM on 08.03.2008 and he had also told the accused the details of the above meeting for delivery. The accused no. 1 had also told Harinder Singh that accused no. 2 was also accompanying him to Delhi and Harinder Singh had promised good money for accused no. 2 also on return. Thereafter, both the accused had left Amritsar immediately in their above car and with the above black colour bag containing narcotic drugs and had reached in the above parking area of the New Delhi Railway Station, towards Pahar Ganj side, at around 3/3.15 AM on 07.03.2008 and had parked the said vehicle there.
8. It was further disclosed by accused no. 1 in his statement that thereafter, they both had rested for sometime at the New Delhi Railway Station and then in the morning hours of 07.03.2008 he had left for seeing some sites of Delhi, while telling the accused no. 2 to keep a watch on the above car, and he returned back at the above railway station in the evening of 07.03.2008 and asked accused no. 2 that now the accused no. 2 can go to have some walk. The accused no. 2 had also then gone for some walk and returned there at about 8.10 PM and thereafter, both of them had remained near the above parking area and had kept a watch on the vehicle by turn. However, when at around 7.40 AM on 08.03.2008, they both were waiting for the above person who was SC No. 57A/08 DRI Vs Kulbir Singh & Anr 8 to take the delivery of the above narcotic drugs and were about to open the door of the above car for sitting therein, they were apprehended by the DRI Officers with the above car and bag of narcotic drugs. It was further disclosed by accused no. 1 that the accused no. 2 was introduced to him about one and half months back by one person named Gopi, who told him that the accused no. 2 had remained in jail with him for sometime and was in need of a job.
9. It is also alleged that in response to the summons Ex. PW9/A dated 08.03.2008 issued by PW9 Sh Gurjeet Singh, the accused no. 2 had also tendered a similar statement Ex. PW9/B before him in Gurmukhi language and in the said statement, besides disclosing his personal details and admitting the above recovery and other proceedings, the accused no. 2 is also alleged to have disclosed that he had earlier worked in some factory but left the said job due to poor salary and then he purchased a truck, after selling his house for rupees three lacs and taking some loan, and since he did not know driving, he had kept a driver on the said truck. He had also disclosed that in October 2007 when the above truck was going to Bangalore from Amritsar, the driver had fled away with the truck and one case U/S 420 IPC was got registered against him by the factory owner, whose goods were loaded in the truck, and he remained in Amritsar Jail for 17 days in the said case. During the above period, he claims to have met the accused no. 1 through some other inmates of jail and even after coming out of the jail he continued to be in touch of the accused no. 1, with the hope that the accused no. 1 will arrange some job for him. It was also disclosed by accused no. 2 in his above statement that on 06.03.2008, the accused no. 1 had called him and told to reach at Amritsar bus stand immediately for going to Delhi for some urgent work and when he had reached outside the above bus stand, he was SC No. 57A/08 DRI Vs Kulbir Singh & Anr 9 told by accused no. 1 that some narcotic drugs were to be taken to Delhi and if he accompanies the accused no. 1 to Delhi, he will get some amount of money and he had agreed to the above proposal of the accused no. 1. At that time the accused no. 1 was having the above Santro car with him and they both had left Amritsar at around 6 PM on that day, alongwith the above narcotic drugs, and had reached Delhi and had parked their above car in the above parking area of New Delhi Railway Station at around 3 AM. He has further disclosed likewise accused no. 1 in his above statement regarding their activities on 07.03.2008 and their subsequent apprehension by the DRI Officers from the above place and with the above car, which was having the above bag of narcotic drugs, in the morning of 08.03.2008.
10. Since both the accused persons appeared to have committed the offences punishable U/S 21/25/29 of the NDPS Act, they both were arrested in this case vide memos Ex. PW2/M and Ex. PW2/N respectively on 08.03.2008 itself and were also subsequently got remanded to judicial custody, after getting them medically examined from RML Hospital vide MLCs Ex. PW11/A and Ex. PW11/B, vide applications Ex. PW2/O and Ex. PW2/P respectively. Intimations of their arrest were given to their relatives vide telegrams Ex. PW7/A and Ex. PW7/B, which were sent vide postal receipts Ex. PW7/C and PW7/D respectively. The residential houses of both the accused persons at Amritsar were also got raided in the follow up action, through the officers of DRI Amritsar Unit, but nothing incriminating could be recovered in the above raids. The arrest of the accused no. 1 was also intimated to the SSP Amritsar and it was subsequently informed by them that he was dismissed from his service. The sealed parcels of A batch of the above 14 samples were got deposited with CRCL New Delhi through PW8 Sh Jagdish Rai on 10.03.2008 vide forwarding letter Ex. PW3/A and against SC No. 57A/08 DRI Vs Kulbir Singh & Anr 10 acknowledgment of CRCL Ex. PW5/A, in intact condition and the sealed parcel of the remaining case property was deposited by the IO/PW2 himself in the Valuable Godown, with PW4 Sh Dharambir Sharma on that very day and PW4 had also endorsed the safe deposit of the above parcel of the case property on its deposit memo Ex. PW2/Q and further made the entry Ex. PW4/A in the Valuable Godown Register. Vide the test report Ex. PW10/A of the CRCL received subsequently, all the above 14 samples had tested positive for the presence of diacetylmorphine (heroin) and the purity percentage thereof was given to be ranging between 48.2% to 78.6%. Some enquiries were also initiated regarding the ownership and the source of purchase of the above Santro car and pending the conclusion thereof and after completing some other formalities of investigation and the recording of statements, a complaint for commission of the abovesaid offences was ultimately prepared and filed by the IO/PW2 against both the accused persons in the court.
11. The complaint was filed against both the accused persons in this court on 02.09.2008 and cognizance of the above offences was taken on the same day. A prima facie case for commission of the offences punishable U/S 29 and 21(c) read with Section 29 of the NDPS Act was also found to be made out against both the accused persons vide order dated 19.02.2009 of this Court and charges for the said offences were also framed against them on the same day.
12. The prosecution in support of its case has examined on record total 11 witnesses and their names and the purpose of examination is being stated herein below:-
13. PW1 Sh Sujeet Kumar, Intelligence Officer of the DRI, is the person who had received the above secret intelligence and, reduced it into writing as Ex. PW1/A and had put up the same before his official superior.
SC No. 57A/08 DRI Vs Kulbir Singh & Anr 11
14. PW2 Sh Jyothimon Dethan, Intelligence Officer of DRI, is the complainant and main Investigating Officer of this case and he was heading above raiding team of DRI, which had apprehended the accused persons from the above place and with the above contraband substance. He has broadly deposed on the above lines of the prosecution story and has proved the various documents of this case, prepared by him in connection with the investigation of the case. He has also identified both the accused persons as well as the case property.
15. PW3 Sh K.K.Sood was working as a Deputy Director in the above office of DRI at the relevant time and he had handed over the above sample parcels and test memos to Sh Jagdish Rai/PW8 on 10.03.2008 for deposit thereof in the CRCL, vide his forwarding letter Ex. PW3/A. He had also countersigned the deposit memo Ex. PW2/Q of the parcel of the remaining case property on the same day when he had handed over it to the IO/PW2 for deposit in the Valuable Godown.
16. PW4 Sh Dharambir Sharma was working as an Inspector and In-charge of the Valuable Godown of the New Customs House on 10.03.2008 when the above sealed parcel of case property was deposited with him in the Valuable Godown by the IO/PW2 and he had made an endorsement regarding receiving of the same in intact condition on the deposit memo Ex. PW2/Q and had also made an entry Ex. PW4/A in the Valuable Godown register in this regard.
17. PW5 Sh Jaiveer Singh, Lab Assistant, CRCL, New Delhi, had received the above 14 sealed sample packets of this case, alongwith the duplicate test memos and the above forwarding letter Ex. PW3/A, from Sh Jagdish Rai of the DRI, on 10.03.2008, on the directions of Sh S.C.Mathur, Chemical Examiner, and had issued the acknowledgment receipt Ex. PW5/A. SC No. 57A/08 DRI Vs Kulbir Singh & Anr 12
18. PW6 Sh Pankaj.K.Singh, is the then Deputy Director of DRI at relevant time and he is the concerned senior officer to whom the above secret information Ex. PW1/A was put up by PW1 and who had directed the IO/PW2 to act upon the same.
19. PW7 Sh S.K.Sharma, a Senior Intelligence Officer of DRI, had issued the above seal of DRI to the IO/PW2 on 08.03.2008, which was also returned back to him on the same day, vide entry Ex. PW2/J of the seal movement register. He also claims himself to be a part of the above raiding team of DRI which had apprehended the accused persons and recovered the above contraband substance. However, he claims that he had participated in the proceedings only till the recovery of the above bag containing 14 packets of heroin from the said car and after the accused persons and the above bag were taken to their 7th floor office, he did not participate in further proceedings due to some other official engagements. He had also subsequently sent the above arrest intimations of the accused and one follow up letter Ex. PW7/E for search of their houses and the above report U/S 57 of the NDPS Act Ex. PW2/V was also submitted to him subsequently by the IO/PW2.
20. PW8 Sh Jagdish Rai is the then Stenographer of DRI who had taken the above sealed sample parcels of this case to the CRCL on 10.03.2008 and deposited the same there, alongwith the duplicate test memos, vide forwarding letter Ex. PW3/A and against acknowledgment receipt Ex. PW5/A.
21. PW9 Sh Gurjeet Singh is also an Intelligence Officer of DRI at the relevant time and he had only issued the summons Ex. PW9/A U/S 67 of the NDPS Act to the accused no. 2 and in response to the same, the above accused had also tendered his above voluntary statement Ex. PW9/B before him.
22. PW10 Sh S.C.Mathur, is the Chemical Examiner of CRCL, Delhi and he has stated that after receiving the above sample SC No. 57A/08 DRI Vs Kulbir Singh & Anr 13 parcels on 10.03.2008, he had allotted the same to Sh V.P.Bahuguna, Assistant Chemical Examiner and the same were kept in the strong room. As per him, the above samples were taken out from the strong room on 03.04.2008 for analysis and the same were carried out by Sh V.P.Bahuguna, under his guidance and supervision, and concluded on 04.04.2008 vide test report Ex. PW10/A and all the 14 samples were found to contain diacetylmorphine (heroin). He had also identified the signatures of his above subordinate in the above test report and also in the Section II report of the test memo Ex. PW2/H1.
23. PW11 Dr Ankur Singhal is the concerned doctor of RML Hospital who had examined the accused persons vide the above MLCs Ex. PW11/A and PW11/B dated 08.03.2008. He has stated that no fresh signs of any external injuries were found on the person of the accused persons at that time.
24. After the conclusion of the evidence of the prosecution, all the incriminating evidence brought on record by the prosecution was put to both the accused persons and the same was denied by both of them to be incorrect. In almost similar submissions, they both have claimed themselves to be innocent and to have been falsely implicated in this case while submitting that they both had come to Delhi from Amritsar in the above Santro car belonging to the brother of the accused Kulbir Singh, alongwith their girl friends named Ms Daljeet Kaur and Ms Kulvinder Kaur respectively and also a son aged around 3-4 years of above Ms Kulvinder Kaur. According to them they had left Amritsar for Delhi in the evening of 06.03.2008 and had reached the above parking area of New Delhi Railway Station and parked their vehicle at around 3 AM on 07.03.2008 and after parking, they had checked in and taken two rooms of hotel M.D. International in Pahar Ganj, but they had to check out of the said hotel at around 11 AM on that day due to SC No. 57A/08 DRI Vs Kulbir Singh & Anr 14 some over charging by the hotel staff. Then they had put their bags and the other clothes in the car and had gone for roaming in Delhi at different places and they all returned back in the parking area at around 8-9 PM on that day and checked in another hotel named Shanti Guest House in that area.
25. It was further claimed by both of them that after spending a night in that hotel, they had checked out of the above guest house at around 9 AM on 08.03.2008 and they were to go to Gurudwara Shri Bangla Sahib and after leaving out their girl friends in some restaurant on a road, they both had come in the above parking area at around 9-10 AM to pick up their above car when they both were intercepted by 20-25 persons who were led by one Sh Gurjeet Singh of DRI, who is PW9 of this case. They claimed that they were hand cuffed, packed in separate vehicles and taken to the 7th floor office of the DRI in a building and the DRI officials had snatched their mobile phones and also a key of the above car from the accused no. 1, and they both were confined there in separate rooms and were subjected to physical as well as mental torture and made to sign a number of blank and written documents. They have also claimed that no public persons were with the DRI Officers when they were picked up by the DRI Officers from the above place and the public witnesses were even not present in the DRI office subsequently. It was further claimed by accused Kulbir Singh that he was forced to write a false and dictated statement by the DRI Officers and his alleged statement was not a voluntary statement. Though, he has admitted that the signatures appearing in his name on various documents were his signatures, but has claimed that the same were either obtained forcibly or on blank papers and the case and the story of the prosecution is false. The accused no. 2 has taken a stand that his above statement Ex. PW9/B was not even in his handwriting and the same was fabricated by Sh Gurjeet Singh on SC No. 57A/08 DRI Vs Kulbir Singh & Anr 15 his own and both of them have specifically denied the recovery of the above heroin from their possession. Both of them have also chosen to lead evidence in their defence.
26. In the defence evidence of the accused persons, they have examined two witnesses on record and DW1 Sh R.K.Singh is the Nodal Officer of Bharti Airtel and he has produced the ownership, call detail and cell location chart record of the mobile number of the accused no. 1 as Ex. DW1/A, DW1/B, DW1/C (collectively) respectively and has also identified the signatures of his predecessor Sh Tarun Khurana on the certificate U/S 65B of the Evidence Act Ex. DW1/D and DW2 Sh Gopal Krishan is the Manager of the above Shanti Guest House and he has produced some record regarding the stay of the accused persons in their hotel as Ex. DW2/A.
27. I have heard the arguments advanced by Ms Mala Sharma, Ld SPP for DRI, Sh Tanvir Ahmed Mir, Ld counsel for accused Kulbir Singh and Sh Nitin Rai, Ld Amicus Curiae for accused Gurbaaj Singh. I have also gone through the evidence led and the other record of the case, including the written submissions filed on behalf of DRI.
28. It was submitted by the Ld. Special PP for DRI that the recovery and seizure of heroin from the possession of the accused has been proved beyond reasonable doubt. It was argued that the accused have admitted in their statement u/s 313 Cr.P.C. that the Hundai Santro Car bearing registration no. PB 02AG 6882, which was parked in the parking lot of New Delhi Railway Station, Pahar Ganj side, belongs to them. They also admitted that they have been apprehended with the said Hundai Santro car when they were sitting in the car. Ld. Special PP argued that the statement of both the accused was recorded u/s 67 NDPS Act. In their statement u/s 67 NDPS Act Ex. PW2/C and Ex. PW9/B, both the accused have SC No. 57A/08 DRI Vs Kulbir Singh & Anr 16 admitted that they had brought the Heroin contained in a black bag from Punjab and kept the same in Hundai Santro car, which was parked by them in the parking lot of New Delhi Railway Station. It was argued that the apprehension of the accused and recovery from the Santro car has been done in the presence of two independent public witnesses, who were joined by Intelligence Officer during the proceedings. The Panchanama Ex. PW2/D has been signed by the independent witnesses as well, which proved their presence at the time of recovery. It was argued by the Ld. Special PP that the statement u/s 67 NDPS Act is admissible against the accused and can be made the sole basis for conviction of accused. It was also argued that the retraction applications of the accused dated 18.03.08 and 20.03.08, are not legal evidence. It was further submitted that Gurbaaj Singh had even moved an application admitting his guilt and on 23.11.09, he moved an application stating that accused Kulbir Singh was innocent. It was argued by the Ld. Special PP that the statement u/s 67 NDPS Act given by the accused persons is voluntary, which fact is proved by the statement of PW11 Dr. Ankur Singhal, who had medically examined the accused vide MLC Ex. PW11/A and PW11/B. These MLCs established no external injury on any part of body of accused persons.
29. It was further submitted that the link evidence is complete in the case. It was argued that PW4 Dharambir, Inspector, Customs Valuable Godown, has deposed that when Sh. Jyothimon Dethan (PW2) had deposited the case property and deposit memo, he checked the condition of case property and found the case property in sealed condition. The seal affixed on the case property, was in intact condition. He also deposed that he tallied the details of particulars written on the sealed case property, which were found in order. It was further argued that SC No. 57A/08 DRI Vs Kulbir Singh & Anr 17 PW5 Jaivir Singh had received the sample packets from Jagdish Rai in intact condition and therefore, he issued the receipt Ex. PW5/A. PW8 had carried the sample with covering letter Ex. PW3/A and deposited the same in intact condition in the CRCL. It was argued that the seal on the sample and the case property have remained intact since the time of their seizure and till the case property was deposited with the Valuable Godown, Customs House and samples were sent to CRCL.
30. It was further argued that the accused had taken a false defence and they examined DW1 Sh. R.K. Singh, Nodal Officer, Bharti Airtel and DW2 Sh. Gopal Krishan, a partner in Shanti Guest House. It was submitted that by the call detail record and the cell location chart submitted by the DW1, it is not established that the mobile phone no. 9878406882 in the name of Kulbir Singh, was with him on 08.03.2008. With regard to the statement of DW2 Sh. Gopal Krishan, it was submitted that the signatures purported to be put by accused Kulbir Singh on the register of Shanti Guest House, must have been put when he had checked in the hotel. It was submitted that it is a common practice that whenever a guest makes an entry in the register of the hotel at the same time, he also sign on the relevant column, which should be filled up at the time of checking out of the hotel. It was submitted that the witnesses have been procured to support a false claim of the accused.
31. With regard to the public witnesses, it was submitted by the Ld. Special PP that the witnesses could not be served, therefore, the complainant thought fit to drop them from the list of witnesses. It was submitted that merely because these public witnesses could not be brought to the Court, the statement of officials witnesses can be ignored. It was submitted that there is no indication of any enmity or prejudice against the official SC No. 57A/08 DRI Vs Kulbir Singh & Anr 18 witnesses. They have no motive to falsely implicate the accused persons. It was argued that 14.088 Kg. of heroin was recovered from the possession of the accused and such a heavy quantity of heroin cannot be planted upon the accused persons.
32. The Ld. counsel for accused Kulbir Singh has argued that the prosecution cannot not escape the responsibility to prove its case beyond reasonable doubts. He has argued that the accused Kulbir Singh was in possession of a mobile phone no. 9878406882, which was a post paid mobile number. It was argued that the last call made from this mobile as per call detail record Ex. DW1/B produced by DW1 was at 7:10 am on 08.03.08. He submitted that this call detail record also shows that a call was made from this mobile number on 07.03.2008 at 1:24 am. The cell location chart Ex. DW1/7 shows that when the call at 1:24 am was made on 07.03.2008, the caller was in the vicinity of Village and Post Office-Nangli Puna. It is submitted that DW1 has proved that the mobile no. 9878406882 was registered in the name of Kulbir Singh as per Subscriber Enrolment Form Ex. PW7/A. The Ld. counsel for accused argued that there is sufficient evidence to show that accused Kulbir Singh was in possession of this post paid mobile phone, but the DRI official has not shown the seizure of this mobile phone from the possession of the accused. He also argued that DW2 Gopal Krishan has produced the record of Shanti Guest House, Ex. DW2/A. As per this record, accused Kulbir Singh was staying in Shanti Guest House and had checked out from the hotel at about 9:00 am on 08.03.2008. The relevant entry with regard to this has been proved by DW2 as Ex. DW2/A. He also argued that the FSL report Ex. PX dated 23.08.2014 has established that the signature appearing at point A on the register Ex. DW2/A, are that of accused Kulbir Singh. It is submitted that the signatures at point A (D-3) on Ex. DW2/A were put by the accused at the time of SC No. 57A/08 DRI Vs Kulbir Singh & Anr 19 checking out from the hotel. He argued that there is no allegation that the accused and the hotel owner were known to each other and the record of the Shanti Guest House have been fabricated by DW2. Therefore, he argued, that in any case the defence evidence led by the accused, even if not proved beyond reasonable doubt, is highly probable defence to counter the prosecution evidence. Thus, making the case of the prosecution doubtful regarding the apprehension of the accused at about 7:40 am from the parking lot of New Delhi Railway Station.
33. The counsel for accused Gurbaaj Singh has assailed the prosecution case on grounds inter alia that the notice u/s 50 NDPS Act was not given at the parking lot; that no search warrant was issued for the search of the vehicle; that no punch witnesses have been examined in the Court; that no photographs of the car and the case property were taken and no site plan has been prepared; that the Investigating Officer (IO) himself is the complainant in the case; that there is no evidence as to who was the member of the raiding team of DRI, which was formed by Mr. Jyothimon, IO; that there has been delay in sending the samples to laboratory and the samples were taken on 08.03.2008 and were sent to CRCL on 10.03.2008. It was also argued by the Ld. counsel that the FSL report Ex. CW1 dated 05.02.2014, has established that the accused Gurbaaj Singh is not a signatory of the questioned signatures Q7 to Q28. Meaning thereby the purported signatures of accused Gurbaaj Singh on the Panchnama Ex. PW2/D, parking slip Ex. PW2/E, test memo Ex. PW2/H, arrest memo Ex. PW2/N and on notice u/s 50 NDPS Act Ex. PW2/C are not that of Gurbaaj Singh. Thus, it makes the entire prosecution case false. Therefore, it was argued that the accused is innocent and has been falsely implicated in the case. It was argued that the recovery of contraband has not been effected from the accused and it has SC No. 57A/08 DRI Vs Kulbir Singh & Anr 20 been falsely implanted upon him to save the person, from whom the recovery actually had been effected.
34. The cardinal principle of the criminal jurisprudence is that the prosecution has to prove its case beyond shadow of reasonable doubts. The another basic principle, which complement this cardinal principle, is that the accused is entitled for benefits of all reasonable doubts. While the prosecution has to prove its case beyond reasonable doubts an accused can establish his defence on the basis of preponderance of probabilities. Keeping these two basic principles in mind the evidence on the record is to be appreciated.
35. The genesis of the prosecution case is in the secret information Ex. PW1/A, received by Surjit Singh (PW1) on 08.03.2008. As per this information, one Hundai Santro car bearing registration no. PB 02AG 6882 was parked in the parking lot of New Delhi Railway Station, Pahar Ganj side, New Delhi, containing some narcotic drug concealed in a bag. The DRI team formed pursuant to this information and on the authorisation of Sh. Pankaj Kumar Singh, Deputy Director, DRI HQ (PW6), reached the spot. The Investigating Officer (PW2) Mr. Jyothimon Dethan joined two public witnesses namely Vinod Kumar and Shivam Sharma at spot. At 7:40 am on 08.03.2008, when the DRI team alongwith the public witness was present in the parking lot of New Delhi Railway Station and keeping a discreet watch on the Hundai Santro car no. PB 02AG 6882, they noticed two persons approaching the car. When they were taking their seat in the car, they were apprehended. The names of those persons were disclosed as Kulbir Singh (A1), son of Sardar Daljit Singh and Gurbaaj Singh (A2), son of Sh. Shubeg Singh. They were informed about the information that narcotic drug is kept in car no. PB 02AG 6882. They were brought to the office of DRI, Indraprastha Estate.
SC No. 57A/08 DRI Vs Kulbir Singh & Anr 21 In the parking lot of said office. They were served with the notice u/s 50 NDPS Act and the search of the vehicle was conducted, which lead to the recovery of the bag, which was found to be containing 14 cloth bags, which contained heroin. Panchnama was prepared. The accused were given a summon to give statement u/s 67 of NDPS Act and their statements were recorded vide Ex. PW2/L and Ex. PW9/B. Subsequent thereto, they were arrested.
36. The learned defence counsels have taken number of pleas in defence to show that prosecution case is not trustworthy and it is a false implication of the accused persons. Contrary to this, the Ld. Special PP has emphasised that the statement of official witnesses particularly PW2 Jyothimon, PW7 S.K. Sharma, proved the apprehension of the accused persons and the recovery of "heroin". PW9 Gurjeet Singh had recorded the statement of accused Gurbaaj Singh Ex. PW9/B and PW2 Jyothimon had recorded the statement of accused Kulbir Singh u/s 67 NDPS Act Ex. PW2/L. These statements u/s 67 of NDPS Act have been relied upon by the Ld. Special PP to corroborate statements of recovery witnesses PW2 and PW7. It is argued that these statements are admissible in evidence. There is no dispute to this preposition of law that statement recorded u/s 67 of NDPS Act are admissible in evidence. There are a catina of judgments in support of this view and the issue is therefore no longer res integra, but statement u/s 67 of NDPS Act has to pass the twin test of "voluntariness" and "truthfulness". The statement of the accused u/s 67 NDPS Act is tested on the touch stone of these two elements. The evidentry value of statement u/s 67 NDPS Act Ex. PW2/L and Ex. PW9/B will be considered later on.
37. The crux of the prosecution case is that on 08.03.2008 at 7:40 am, the accused persons were apprehended when they were sitting in the Santro car no. PB 02AG 6882. The time of SC No. 57A/08 DRI Vs Kulbir Singh & Anr 22 apprehension is very crucial. The prosecution witnesses of recovery and seizure, PW2 Jyothimon and PW7 S.K. Sharma have emphasised that the time of apprehension of the accused is 7:40 am. I would hasten to add here that it was incumbent on the prosecution to establish and prove beyond reasonable doubts the time, place and the manner of apprehension of accused and the subsequent recovery of contraband from their possession. The defence taken by the accused persons is that they have not been apprehended with any contraband as alleged. However, they have admitted that they were apprehended when they were boarding their car no. PB 02AG 6882, which was parked in the parking lot of New Delhi Railway Station.
38. As per the version given by accused in the statement u/s 313 Cr.P.C., they had come to Delhi in the early morning of 07.03.2008 at around 3:00 am alongwith their girl friends and had checked in M.D. Hotel, Pahar Ganj. They checked out from this hotel at about 11:00 am and they checked in hotel namely Shanti Guest House on 07.03.2008 in the evening. They had parked their vehicle i.e. Hundai Santro car no. PB 02AG 6882 in the parking lot of New Delhi Railway Station on the Pahar Ganj side. They had checked out of the hotel Shanti Guest House on 08.03.2008 at 9:00 am and had come to pick up their car at around 9:10 am when they were apprehended by officers of DRI.
39. The accused have led evidence in defence and examined DW1 Sh. R.K. Singh, who was the Nodal Officer at Bharti Airtel. The accused Kulbir Singh has taken a plea that he was having a post paid mobile phone with SIM card of no. 9878406882. When he was apprehended by DRI officers, he was having his mobile phone with him. However, it was destroyed by DRI officers. PW2 when asked about the mobile phone carried by accused Kulbir Singh, he denied that the accused Kulbir Singh was carrying any SC No. 57A/08 DRI Vs Kulbir Singh & Anr 23 mobile phone. Therefore, as per the prosecution case, the accused Kulbir Singh was not carrying any mobile with him. To prove the case in defence and to counter PW2, the accused Kulbir Singh had summoned DW1 R.K. Singh alongwith the record of mobile no. 9878406882. DW1 R.K. Singh had deposed that the mobile no. 9878406882 is in the name of Kulbir Singh, resident of 122, Gurnam Nagar, Akali Colony, Amritsar, Punjab. He produced Customer Application Form duly Ex. DW1/A. He also produced the call detail record of this mobile no. 9878406882 from 01.03.2008 to 08.03.2008 Ex. DW1/B. The cell location chart of this mobile number was also produced on record as Ex. DW1/C. The said certificate u/s 65B of the Evidence Act issued by Sh. Tarun Khurana regarding the authentication of that record was produced as Ex. DW1/D.
40. DW1 has deposed that the mobile no. 9878406882 was in use on 07.03.2008 and 08.03.2008. The last call on this mobile phone was at 7:10:59 am on 08.03.2008. The location of the mobile at 7:10:59 am on 08:03:08 is within the range of tower no. 1171 installed at Hotel Sher-e-Punjab, Til Mandi, Krishan Gali, Mochiyan, Pahar Ganj, Delhi. The cell location chart Ex. DW1/C also shows that on 7.3.2008, the mobile no. 9878406882 was within the range of tower no. 45001 at 1:24:32 am. This tower is installed at House No. 83, Village and Post-Nangli, Delhi. This statement of DW1 proves that the mobile phone no. 9878406882, in the name of Kulbir Singh was in the territory of Delhi on 07.03.2008 in the early morning hours at around 1:24:32 am and on 08.03.2008 at about 7:10 am, this mobile phone was within the range of tower located in Pahar Ganj. It is the case of prosecution as well that accused was in parking area of New Delhi Railway Station, towards Pahar Ganj side. Therefore, this evidence suggest that accused Kulbir Singh was possessing a mobile phone bearing SC No. 57A/08 DRI Vs Kulbir Singh & Anr 24 no. 9878406882 on 07.03.2008 and 08.03.2008. Admittedly, there is no call from this mobile phone after 7:10:59 am onwards. The prosecution has not led, nor it has been able to bring anything on record to prove or suggest that this mobile phone no. 9878406882 was used by somebody else and not by accused Kulbir Singh. If for the sake of argument one accept the plea that this phone may be in use by somebody else, who was with the accused Kulbir Singh, then it must have been reflected in the investigation of DRI that apart from Kulbir Singh and Gurbaaj Singh, there was other person with them for the delivery of the drugs. There is no investigation on this line. Rather the case of the prosecution is that Kulbir Singh and Gurbaaj Singh came from Punjab in the early morning on 07.03.2008 and parked their vehicle in the parking area and kept on roaming around and keeping a watch on the car till 08.03.2008 when they were apprehended at 7:40 am. But in view of the statement of DW1 and the record produced by him, one thing stands established that Kulbir Sing was having mobile phone, which had not been reflected by the officers of DRI in his personal search memo, nor it has been reflected in the Panchnama Ex. PW2/D. Thus, there is a concealment of a fact.
41. The next defence taken by the accused is that they had stayed in Hotel Shanti Guest House on 07.03.2008 and had checked out from Shanti Guest House on 08.03.2008 at about 9:00 am. In support of this plea, they had examined DW2 Gopal Krishan in their defence. DW2 has produced the Guest Register maintained in the Hotel. It is worthwhile to go through the statement of DW2 Gopal Krishan. He has deposed that on 07.03.2008, he was looking after the Reception of Shanti Guest House, Tel Mandi, Pahar Ganj, Delhi. A register is maintained in the Shanti Guest House regarding the entry of names of guests staying in the hotel. He deposed that on 07.03.2008, four persons SC No. 57A/08 DRI Vs Kulbir Singh & Anr 25 namely Kublir Singh, son of Sardar Daljit Singh, Gurbaaj Singh, son of Shubeg Singh, Ms. Dajit Kaur and Ms. Kulvinder Kaur had checked-in in the Guest House at about 9 pm and entry to this effect, was made in the Register by him. He further deposed that these guests checked out from the hotel at 9:00 am on 08.03.2008 against the same entry. He brought the original register. The relevant entry was at serial no. 549 dated 07.03.2008. The copy of the entry is Ex. DW2/A. He deposed that the entry in column no. 12 and column no. 16 pertains to check in and check out of the guest and Kulbir Singh had signed the said columns at point A. He further deposed that the entry in column no. 6 (the residential address of the guest), column no. 7A and column no. 7B were also made by Kulbir Singh in his own handwriting. This witness had identified the accused Kulbir Singh in the Court as well.
42. DW2 has deposed that rest of the columns of the register were filled up by him. In the cross-examination, he categorically denied the suggestion that the departure time of 9:00 am on 08.03.2008 in column no. 14 of the above entry at serial no. 549 and the signatures of Kulbir Singh appearing in column no. 12 and column no. 16 were fabricated.
43. The Ld. Special PP in response to this evidence has argued that DW2 Gopal Krishan has made an unholy attempt to come to rescue of the accused and has proved himself to be 'a friend in need, a friend indeed'. He argued that evidence of DW2 Gopal Krishan does not stand in view of the voluntary statement tendered u/s 67 of NDPS Act by the accused persons.
44. So far as the statement u/s 67 of NDPS Act is concerned, I shall deal with it later on, but at this stage, I would observe that prosecution has not been able to show any "unholy" alliance between the accused persons and DW2 Gopal Krishan. He is an independent witness. There is no law, which says that the SC No. 57A/08 DRI Vs Kulbir Singh & Anr 26 witnesses examined by the prosecution carry a presumption of truth and the witnesses examined by the accused carry a presumption of bias. Witness are the eyes and ear of the Court. They are examined neither in support of the prosecution, nor in support of accused. They are examined to assist the Court to arrive at just decision. They are examined in the interest of justice and not in favour of any party to the litigation.
45. In the entire cross-examination by the Ld. Special PP, nothing could come forward in the statement of DW2 to suggest that he was known to the accused persons or he has been bribed to manipulate the record etc. The Ld. Special PP had argued that as a common practice, a departure entry is made in the guest register of a hotel at the time when the guest enters his particulars at the time of arrival in the Hotel. This is not a convincing argument. It may happen or it may not happen. Even if one agrees that signatures in column no. 16 by Kulbir Singh have been put at the time of check-in in the hotel, still it proved a fact that both the accused had checked in Shanti Guest Hotel on 07.03.2008 at 9:00 pm alongwith two female friends. This by itself is contrary to what prosecution alleged in this case, that the accused came on 07.03.2008 and kept on roaming in the area and keeping a watch on the car, which was parked in the parking lot of New Delhi Railway Station.
46. It was also argued by Ld. Special PP for DRI that the departure time of "9:00 am" on 08.03.2008 in column no. 14 of Register has been manipulated. DW2 has admitted that this entry has been made by him. There is no material to suggest that the accused had ever made contact with this witness to make any alteration in the record. The accused have been in custody since the date of their arrest, so there was no occasion for them to approach this witness. Moreover, the entry made in column no. 14 SC No. 57A/08 DRI Vs Kulbir Singh & Anr 27 against serial no. 549 does not show any cutting or modification and apparently it is made in usual course of business. The register would reflect that the time of arrival and departure of guests in column no. 8 and 14 of the Register has been mentioned against all the entries made in the register. Therefore, simply saying that the entries in the register Ex. DW2/A have been fabricated is no ground to disbelieve the statement of DW2. So, what the statement of DW2 establishes, is that the accused had left the hotel Shanti Guest House, Pahar Ganj on 08.03.2008 at "9:00 am", contrary to prosecution case that accused were apprehended at "7:40 am" in parking area of New Delhi Rail Station.
47. In this case, the accused no. 2 Gurbaaj Singh had claimed that the statement u/s 67 NDPS Act purported to be written by him, is not in his handwriting. He moved an application for comparison of his writing and signatures appearing on the statement u/s 67 NDPS Act dated 08.03.2008 (Ex. PW9/B) with his admitted signatures. This application was allowed and on 01.06.2011, the specimen signatures of the accused Gurbaaj Singh were taken and the contents of the statement u/s 67 NDPS Act dated 08.03.2008 were also dictated to him in the Court, which he wrote. This specimen writing (Mark A) of the accused Gurbaaj Singh taken in the Court to be used as admitted writing, was later on marked as Ex. PZ. He also put his signatures on all the pages of statement Ex. PZ, which were marked as A1 to A8. His separate specimen signatures were also taken and marked 'B'. The statement dated 08.03.2008 Ex. PW9/B was marked as Mark Q and the signatures thereon marked as Q1 to Q4.
48. The statement Ex. PW9/B (Mark Q) of the accused Gurbaaj Singh alongwith his statement and specimen signatures A1 to A8 taken in the Court on 01.06.2011 were sent to the FSL, Rohini, with direction that same be examined by Handwriting SC No. 57A/08 DRI Vs Kulbir Singh & Anr 28 Expert to find out if the handwriting of document mark 'A' and Mark 'Q' and signature on statement Mark Q at point Q1 to Q4 and those appearing on Mark 'A' at A1 to A8 and signature appearing on Mark 'B' are of one and same person. The report dated 05.07.2011 was received, which is Ex. PX/1. As per the report given by Sh. Devak Ram, no definite opinion could be expressed on Q1 to Q4 in comparison with A1 to A8 and S1.
49. Thereafter, the statements of both the accused were recorded u/s 313 Cr.P.C. The accused Kulbir Singh took plea of stay in Hotel Shanti Guest House and examined DW2 Gopal Krishna, Manager of Shanti Guest House to prove that he was staying in the hotel on the night of 07/08.03.2008 and had checked out from the hotel at 9:00 am. The accused Gurbaaj Singh took the plea that the purported signatures on the Notice u/s 50 NDPS Act, his reply to the Notice, his signatures on Panchnama, Test Memo and Arrest Memo, are not his signatures.
50. To meet the defence taken by the accused persons, the DRI/complainant moved an application on 20.05.2015 that the signatures of accused Kulbir Singh appearing on various documents i.e. Notice Ex. PW2/B, Panchnama Ex. PW2/D and other documents, which are his admitted signatures be sent for comparison with his purported signatures appearing in the record of Shanti Guest House Ex. DW2/A. Similarly, it was prayed that since accused Gurbaaj Singh has denied his signatures on the Notice Ex. PW2/C, Panchnama Ex. PW2/D and other documents prepared during investigation. These documents be also sent for expert opinion to compare with the admitted signatures appearing on the record of the judicial file particularly, the signatures appended on the statement u/s 313 Cr.P.C. recorded on 07.11.12. This application was allowed and the FSL report was received.
51. This FSL Report 'Ex. PX' dated 23.08.2013 compared SC No. 57A/08 DRI Vs Kulbir Singh & Anr 29 the admitted signatures of both the accused with the questioned signatures. Following is the finding given in the Report :-
a. With regard to the questioned signatures Q1 to Q4 purported to be of the accused Gurbaaj Singh on his statement u/s 67 NDPS Act dated 08.03.2008 (Ex. PW9/B) compared with his admitted signatures A1 to A8, A60 to A102, it was opined that the person, who wrote Q1 to Q4 also wrote A1 to A8 and A60 to A102. b. The questioned signatures of the accused Kulbir Singh marked as Q5 and Q6, on the guest register of Shanti Guest House Ex. DW2, were compared with his admitted signatures A9 to A-59. It was opined that the questioned signatures Q5 and Q6 were written by the same person, who wrote A9 to A59.
52. Thus, as per the report Ex. PX, the signatures appearing on the guest register of Shanti Guest House, Q5 and Q6 are that of the accused Kulbir Singh.
53. On 07.04.2014, it was observed by the Court that the report Ex. PX/1 (dated 05.07.11) did not compare the handwriting of accused Gurbaaj Singh on the statement u/s 67 Cr.P.C dated 08.03.2008 (EXPW9/B). Therefore, it was again sent to the FSL, Rohini for expert opinion. The report Ex. PY dated 27.06.2014 was given by Sh. Devak Ram. The writing was marked as Q1/1 to Q4/1, it was compared with the admitted writing taken on 01.06.2011 as A1/1 to A8/1 and S1. The handwriting expert gave opinion that both the writings are of the same person. Meaning thereby Gurbaaj Singh had written the statement Ex. PW9/B on 08.03.2008. On 16.09.2014, my learned Predecessor noted that the report dated 23.08.2013 (Ex. PX) was not in consonance with the direction of the order dated 20.05.2013. Pursuant to the direction given in the order dated 16.09.2014 by learned Predecessor fresh specimen signatures of accused Gurbaaj Singh were taken on 24.11.2014 in the presence of Sh. Vijender Singh, Handwriting SC No. 57A/08 DRI Vs Kulbir Singh & Anr 30 Expert, FSL, Rohini. The signatures on the following documents were being disputed by the accused Gurbaaj Singh :
a. Q7 and Q7/1 i.e. the signatures on the Notice u/s 50 NDPS Act and the writing (i.e. reply) on the Notice u/s 50 NDPS Act Ex PW2/C respectively.
b. Q8 to Q13 i.e. signatures on Panchnama Ex. PW2/D. c. Q 14Signatures on the parking slip Ex. PW2/E. d. Q15 signature on receipt Ex. PW2/F1, e. Q16 signatures on pollution certificate Ex. PW2/F2 f. Q17 signatures on Insurance proposal Ex. PW2/F3. g. Q18 signatures on Annexure A dated 08.03.2008 Ex. PW2/G1. h. Q19 to Q25 signatures on Annexure B to E, Ex. PW2/G2 to G6. i. Q26 and Q29 signatures on Test Memo Ex. PW2/H. j. Q27 and Q28 signatures on arrest memo Ex. PW2/N. 54. All these signatures Q7 and Q8 to Q29 and writing
Q7/1were compared with signatures A1 to A8, and A86 to A108,and writing A1/1 to A8/1 which are admitted signatures and writing of the accused Gurbaaj Singh. This time, the report was given by Dr. Vijender Singh, Handwriting Expert, examined as CW1. He proved his report as Ex. CW1 (dated 05.12.14). As per this report, the questioned signatures Q7 to A29 and questioned writing Q7/1, are not written by the person, who had written admitted signatures A1 to A8 and A86 to A108 and the admitted writing A1/1 and A8/1.
55. The crux of this report is that the signatures purported to be that of Gurbaaj Singh on the Panchnama, Notice u/s 50 NDPS Act, Test Memo, arrest memo and the reply given on the Notice u/s 50 NDPS Act, are not written by Gurbaaj Singh.
56. So far as the handwriting expert reports are concerned, there are four reports. First report Ex. PX/1 dated 05.07.2011 compared the writing and signature of accused Gurbaaj Singh on SC No. 57A/08 DRI Vs Kulbir Singh & Anr 31 Ex. PW9/B (statement under section 67 of the Act). As per this report, no definite finding could be given. Next report is Ex. PX dated 23.08.2013. As per this report the person who wrote the questioned signature Q5 and Q6 also wrote the admitted signature A9 to A59. This report establishes that the register of the Shanti Guest House bears signatures of the accused Kulbir Singh. The next report Ex. PY dated 27.06.2014 given by Sh. Devak Ram, says that the writing on statement Ex. PW9/B and the writing on the statement Ex. PZ are of the same person. Meaning thereby the statement Ex. PW9/B is in the writing of accused Gurbaaj Singh.
The last report is Ex. CW1 dated 05.12.2014. This report established that neither the signatures, nor the writing on the notice u/s 50 NDPS pertains to the accused Gurbaaj Singh. Even the signatures on the Annexures (PW2/G1 to G6), Panchnama (Ex. PW2/D), on the Test Memo (Ex. PW2/H) and his arrest memo (Ex. PW2/N) are not made by him. The Report Ex. PX therefore, even if not giving conclusive proof, still provide substantive material to affirm that accused Kulbir Singh had stayed in the Shanti Guest House along with the co-accused Gurbaaj Singh and their female friends on 07.03.2008 and checked out from the hotel on 08.03.2008 at 9:00 am. The Report Ex. CW1 established that the signatures on various documents prepared during the investigation, and the writing purported to be of Gurbaaj Singh, are neither his signatures nor his writing.
57. So, the statement of DW1, DW2 and the report of the handwriting expert makes it doubtful that the accused were apprehended at 7:40 am in the parking lot of New Delhi Railway Station. When there is evidence that the accused Kulbir Singh along with co-accused had checked out at 9:00 am from the hotel Shanti Guest House, Pahar Ganj one cannot believe the prosecution case that the accused were apprehended at 7:40 am.
SC No. 57A/08 DRI Vs Kulbir Singh & Anr
32
The evidence, which the accused persons have led, has
probablised their defence and that itself is sufficient to raise doubt regarding the prosecution case. The accused were not supposed to prove their case beyond reasonable doubt but by preponderance of probability. The evidence lead by them, is either truthful or could be fabricated. There is not an iota of material to suggest that this evidence led by the accused persons is fabricated. Their defence is supported by the evidence of independent witnesses who are unconnected with accused and deposed on the basis of the record maintained in usual course of their business.
58. I would prefer to refer to the observation of Hon'ble Supreme Court in this regard in the case Ravindra Kumar Dev vs. State of Orissa-AIR 1977 SC 170. The Hon'ble Justice Fazal Ali speaking for the bench has observed as under :
"It is sufficient, if accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of Evidence Act as a result of which he succeeds not because he proves his case to the tilt but because probability of the version given by him throws doubt on the prosecution case and therefore, the prosecution can not be said to have established the charge beyond reasonable doubt."
It was further observed;
"It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court."
59. So, the evidence led by accused is contrary to what prosecution has projected. The defence evidence is found convincing.
60. The Ld. Special PP had argued that the statement SC No. 57A/08 DRI Vs Kulbir Singh & Anr 33 recorded u/s 67 of NDPS Act is an admissible evidence against the accused wherein they have admitted their guilt. Therefore, the statement itself proved the case of the prosecution. The statement u/s 67 of the NDPS Act definitely carries an evidential value and it is admissible in the evidence against the maker of the statement. In certain cases, the statement can be made basis of the conviction. However, the statement u/s 67 of NDPS Act has to pass the twin test of "voluntariness" and "truthfulness". If the statement is not voluntary, it cannot be used against the accused. If it is not truthful, it still cannot be used against the accused. In the case Union of India vs. Balmukund-2009 (2) JCC (Narcotic) 76, it was observed that while weighing evidentiary value of such a statement, Court cannot loose sight of ground realities. Circumstances attendant of making a such statement should be taken into consideration.
61. Admittedly, both the accused have retracted from their statement and it is not necessary that they have to prove their retraction beyond reasonable doubt. The statement after retraction definitely loose the evidentiary value. But apart from the retraction, the circumstances surrounding the recovery, seizure of contraband and recording of the statement u/s 67 of NDPS Act would show that the statements are neither truthful nor voluntary. What has been recorded in the statement u/s 67 NDPS Act Ex. PW2/L and Ex. PW9/B,is contrary to what the evidence in defence led by the accused has proved. The defence, which has been put by the accused has been found probable. Thus, the facts stated in statements u/s 67 NDPS Act being contrary to what the defence evidence has proved, the statements loose significance and evidentiary value to a great extent.
62. It was argued on behalf of the Ld. defence counsels that no public witnesses have been joined in the investigation and SC No. 57A/08 DRI Vs Kulbir Singh & Anr 34 the two public witnesses shown, namely Shivam Sharma and Vinod Kumar, are fictitious persons. The Ld. Special PP had argued that these witnesses were joined at the time of recovery and if subsequently they are not found at their given addresses then no adverse inference can be drawn against the prosecution. More over the statement of official witnesses can not be ignored simply because public witnesses could not be examined due to their non availability. This proposition of law is not disputed. It is true that the statement of the official witnesses carry the same strength as of any other witness, but when the public witnesses, who have been part and parcel of recovery and seizure, are not examined, then the statement of official witnesses needs greater scrutiny. The star witness of the prosecution is PW2 Jyothimon, who was assigned the investigation by PW6 Pankaj Kumar Singh, Deputy Director, DRI. PW2 in his cross-examination has said that Sh. Pankaj Kumar Singh, Deputy Director (PW6) had called him telephonically and he reached the office of DRI on 08.03.2008 at 6:15 am. He received the call of Sh. Pankaj Kumar Singh at about 6:00 am on his personal mobile number. Sh. Pankaj Kumar Singh in his cross-examination says that he was not aware whether Sh. Jyothimon was present in his office or not at the time when the information was placed before him at about 6 am Now, if PW2 was not present in the office as per his own statement, then he must have been communicated about the secret information, pursuant to which he came to the office. The secret information has been received by the PW1 Surjeet Singh at 6:00 am. It has been put up before Sh. Pankaj Kumar Singh, who put his signature at point B on Ex. PW1/A at 6:20 am. He endorsed the information to IO Mr. Jyothimon (PW2) for necessary action. If this endorsement was made by Sh. Pankaj Kumar Singh at 6:20 am and PW2 was informed about the information by Sh. Pankaj Kumar SC No. 57A/08 DRI Vs Kulbir Singh & Anr 35 Singh, then obviously he must have been informed about the information after 6:20 am. If that is so, then PW2 could not have reach office at 6:15 am. PW7 Sh. S.K. Sharma, who also claimed to be a member of raiding team, has deposed in the cross- examination that he does not remember at what time Jyothimon reached the office of DRI on 08.03.2008. However, he was definitely present in the DRI office before 6:00 am on the said date. This is in total contrast to what PW2 Jyothimon has deposed regarding his arrival in the office and also the statement of PW6 Sh. Pankaj Kumar Singh.
63. PW7 has deposed that he became a part of raiding team after handing over seal of DRI to Sh. Jyothimon (PW2). As per his statement, the vehicle and the accused were brought to the parking area of DRI office. IO Jyothimon searched the vehicle in his presence and thereafter the recovered 14 cloth bags and the accused were taken to the 7th Floor of the building by IO Jyothimon. He deposed that thereafter he joined some other official work. So before he departed from the place where the investigation was conducted, the only document prepared was a Notice u/s 50 NDPS Act. Neither the Notices Ex. PW2/B and Ex. PW2/C bear signatures of S.K. Sharma (PW7), nor in his statement, he has stated anywhere that any Notice u/s 50 NDPS Act was served upon the accused. This makes his presence with the raiding team highly doubtful. There is no such document on the record, which could suggest the presence of any officer of DRI at the time of alleged apprehension of the accused by PW2. Although in their statement in the Court, PW2 Jyothimon and PW7 S.K. Sharma have named certain officers, who joined the raiding team, but these officers are not witnesses in this case. Neither their names have been mentioned in the complaint nor even in the Panchnama, which otherwise contains all the details. Therefore, the presence of Sh.
SC No. 57A/08 DRI Vs Kulbir Singh & Anr 36 S.K. Sharma in the raiding team is found doubtful. The main issue before this Court was whether the recovery of contraband i.e. heroin has been effected at the time, place and the manner it is projected and whether it has been effected from the possession of the accused. On the one hand prosecution witnesses deposed that the recovery was effected from the accused when they were apprehended at 7:40 am from the parking lot of New Delhi Railway Station alongwith the car no. PB 02AG 6882. On the other hand there is defence evidence which shows that the accused Kulbir Singh and Gurbaaj Singh were in the hotel Shanti Guest House on 08.03.2008 till 9:00 am. Prosecution says that Notice u/s 50 NDPS Act was given to accused Gurbaaj Singh, who replied the same and also put his signatures. The FSL report Ex. CW1 says that neither the reply Q7/1, nor the signatures Q7 pertains to the accused Gurnam Singh. If that is so, who has signed as Gurbaaj Singh and who has written the reply. There is no answer to this query.
64. Thus, in view of the above discussion, I have come to the conclusion that the prosecution has failed to prove its case against accused Kulbir Singh and Gurbaaj Singh beyond reasonable doubt. Both the accused are therefore, acquitted of the charges u/s 29 and 21 (c) read with Section 29 of NDPS Act by giving them the benefit of doubt.
65. The case property (the contraband substance i.e. heroin) be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgement, if any, or the orders of the Appellant court, as the case may be.
66. During the investigation a Santro car bearing registration no. PB 02AG 6882 was seized. As per section 60 of NDPS Act, conveyance used for transportation of contraband is liable to be confiscated. However, both the accused in this case SC No. 57A/08 DRI Vs Kulbir Singh & Anr 37 have been acquitted. Therefore, the Santro Car bearing registration no. PB 02AG 688 be released to its registered owner on execution of bond in the sum of Rs. 70,000/- with an undertaking to restore the possession of this car to the Court, if the order of release of the car is modified or set aside in appeal.
67. Bail bonds u/s 437-A Cr.P.C. on behalf of both accused have been furnished and accepted. The case file be consigned to record room after completion of the necessary formality of digitisation and pagination.
Announced in the open court on 10.09.2014 (A.K.KUHAR) ASJ/Special Judge NDPS South District Saket Court Complex New Delhi SC No. 57A/08 DRI Vs Kulbir Singh & Anr