Delhi District Court
Sc No.63A/08 Dri vs . Lal Mohammad & Anr. on 4 August, 2016
1
IN THE COURT OF SHRI A.K.KUHAR
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
S.C. No. 63A/08
u/s 20 (b) (ii) (C) & 29 NDPS Act
Shri Gurjit Singh, ....Complainant
Intelligence Officer,
Directorate of Revenue Intelligence,
New Delhi.
VERSUS
1. Lal Mohamad ....Accused no. 1
S/o Late Sh. Jal Mohamad
R/o V&PO Bela, P.S.-Ramgarhwa,
District Motihari, Bihar.
2. Anil Kothari Jain ....Accused no. 2
S/o Late Sh. Narender Singh Kothari
R/o 1858, Outram Lane,
Kingsway Camp, Delhi.
Computer ID No. : 02403R0887062008
Date of institution : 20.10.2008
Date of reserving judgment : 04.07.2016
Date of pronouncement : 04.08.2016
Decision : Convicted.
JUDGMENT
BRIEF FACTS OF THE CASE 1.0 Sh. Madan Singh, Intelligence Officer, Directorate of Revenue Intelligence (DRI) (HQ), New Delhi, received a secret information on 24.04.2008 at about 7:00 pm that one off white colour Mahindra Bolero bearing registration no. BR 04C 7286 would be reaching near Gurudwara, Siraspur, G.T. Karnal Road, New Delhi, at around 10:40 am 24.04.2008 having some narcotic drugs concealed therein and a clean shaven man in his sixties would come to collect the delivery of narcotic drug from the vehicle. This SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
2information was put up before Deputy Director, DRI (HQ), who directed Sh. Gurjit Singh, Intelligence Officer (I.O.), DRI (HQ), to take necessary action. Pursuant thereto a team of DRI officers was formed and two public witnesses were called at around 7:45 pm to DRI Office, 7th Floor, D-Block, I.P. Bhawan, I.P. Estate, New Delhi who also joined the team. The team reached the spot at around 9:30 pm and kept discreet watch on the vehicles. At 10:40 pm, an off white colour Mahindra Bolero no. BR 04C 7286 was seen coming from Mukraba Chowk side and stopped in front of Gurudwara adjacent to bus stop. The vehicle was occupied by only its driver. Soon thereafter, an old clean shaven man accompanied by two young persons approached the vehicle and sat into the vehicle. As soon as the vehicle started moving, the DRI officers intercepted the vehicle. The DRI officers introduced themselves to the occupants and the driver of the vehicle. Identity of the driver was disclosed as Lal Mohammad (accused herein). The clean shaven person, who had come to the spot introduced himself as Anil Kothari Jain (accused herein). Two persons accompanying Anil Kothari introduced themselves as Mohan Lal Jat @ Manmohan and Ramesh Kumar. Sh. Gurjit Singh, I.O. informed the occupants of the vehicle about the secret information of having narcotic drugs in their possession. They were asked whether any narcotic drug concealed in the vehicle in question. They were also shown the search authorization issued under section 41 NDPS Act, 1985 for the search of the vehicle. All the four occupants of the vehicle denied that any narcotic drug was concealed in the vehicle in question. 1.1 Since the place of interception was a busy area being a highway, thus not considered appropriate for thorough search, therefore, the occupants of the vehicle were informed that search the vehicle would be conducted at DRI office, D-Block, I.P. Estate, New Delhi. The vehicle was escorted along with its occupants to the SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
3office of DRI where a notice under section 50 of NDPS was served to both the accused and other occupants before conducting the search. They were explained that they have a legal right to get their vehicle /persons searched in the presence of a Gazetted officer or a Magistrate but they opted for their search by any officer of DRI. 1.2 Thorough examination of the vehicle was conducted and it was found that a false cavity has been created in its floor which could be accessed through a removable metal plate fixed below the rear seat of the vehicle secured to the floor with nuts and bolts. After the metal plate was removed by opening the nuts and bots, the false cavity was found containing 151 packets covered with brown coloured masking tape. From the dashboard of the car, a certificate of registration was also recovered, which showed that the vehicle stands transferred in the name of one Mohd. Kalamuddin on 13.07.2007 by the District Transport Authority, Chhapra. 1.3 All the occupants of the vehicle and 151 packets recovered from the false cavity of the vehicle were taken to the 7 th floor office of DRI in Drum Shape Building, for detailed examination. Each packet was containing a resinous brownish black semi solid substance giving a pungent odour. This substance was covered with a layer of colorless transparent polythene sheet and further, covered with red colour transparent polythene sheet and further wrapped with brown colour paper and finally secured with brown color masking tape. A small quantity of the substance was drawn from each of the 151 packets and tested with the help of Narcotics Drug Detection Kit supplied by Hindustan Antibiotic Ltd. The test gave positive indication for the substance to be Hashish, a narcotic drug. These 151 packets were divided into ten (10) lots, 9 lots containing 15 packets each and the 10 th lot containing the remaining 16 packets. Thereafter, weighment of all 151 recovered packets and substance therein was conducted. The gross weight of SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
4the packets was found to be 153.378 Kg. and the net weight of the substance was 151.340 Kg. All 151 packets containing resinous brownish black semi solid substance giving a pungent odour was seized. The 10 lots were placed in metal cannisters, which were marked I to X. Seized drug in the containers was mixed so as to make it homogeneous after which two representative samples each weighing 25 gms were drawn from each of the seized lots. These samples were marked I-A & 1-B, II-A & II-B, III-A & III-B, IV-A & IV-B, V- A & V-B, VI-A & VI-B, VII-A & VII-B, VIII-A & VIII-B, IX-A & IX-B, X-A & X- B corresponding to the lot from which they were drawn. The samples were kept individually in zip locked small polythene packets, which were further placed in yellow colour paper envelopes. Thus, in all 10 samples were drawn in duplicate, which were sealed with the seal of Directorate of Revenue Intelligence-10. The 10 metal cannisters in which the seized substance was kept were wrapped with white colour cloth and sealed with the seal of DRI number 10.
1.4 A test memo in triplicate for the samples drawn was prepared, which was signed by both the accused, complainant and the panch witnesses as well as by Sh. Ramesh Kumar and Sh. Mohan Lal Jat occupants of the vehicle. A facsimile of DRI seal no. 10 was appended on test memo. A panchnama was prepared and a facsimile of DRI seal no. 10 was also put on the same. 1.5 Pursuant to the summon dated 25.04.2008 issued by Sh. S.K. Sharma, Senior Intelligence Officer (S.I.O.), Lal Mohammad appeared before him and tendered his statement under section 67 of NDPS Act, wherein he admitted the recovery and seizure of narcotic drug and stated, inter-alia, that he had carried 151 packets of Hashish in the Bolero vehicle at the instance of one Ramu from Raxaul Taxi Stand and he was to wait near Bypass, Siraspur, near Gurudwara where a person around 60 years of age would come to SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
5collect the drug and in lieu of this, he would be paid Rs. 5,000/- by the said Ramu on his return to Raxaul Taxi Stand. He also stated that he carried 151 packets of Hashish (Charas) concealed in Bolero vehicle and Ramu gave him Rs. 3,500/- for his expenses and he reached G.T. Karnal Road Gurudwara, Siraspur and on 24.04.2008 at 10:40 pm a man aged about 60 years came along with two young persons and sat in vehicle and as soon as he was about to start the vehicle the officers of DRI had apprehended them. 1.6 In response to the summons dated 25.04.2008 accused Anil Kothari tendered his voluntary statement under section 67 of NDPS Act wherein he admitted his previous involvement and conviction for smuggling of Hashish from Pakistan to India. He also admitted about his apprehension and consequent search of the Bolero Vehicle and recovery of contraband substance. 1.7 Statements under section 67 of NDPS Act were also tendered by Sh. Mohan Lal Jat and Sh. Ramesh Kumar. However, they denied their knowledge about the contraband substance.The accused Anil Kothari Jain also stated in his statement under 67 NDPS Act that they knew nothing about his dealing in drugs. 1.8 The accused namely Lal Mohammad and Anil Kothari Jain were arrested in the present case and after their medical examination were produced before the Court.
1.9 In the follow-up action search of the residential premises of Anil Kothari Jain was also conducted at Arihant Farms, Khera Kalan and the search of the residential premises of the accused Lal Mohammad was also conducted. However, nothing incriminating was found except that from Arihant Farm a car was recovered make Opel Astra no. DL 3CJ 4259 in which the drugs was to be kept as per the statement of Anil Kothari Jain . 1.10 In response to the summons, the panch witnesses namely Ganga Ram and Jai Singh appeared before Sh. Gurjit Singh, SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
6I.O. on 28.04.2008 and 26.04.2008 respectively and tendered their statements under section 67 of NDPS Act. The report of seizure and arrest under section 57 NDPS Act was submitted by Sh. Gurjit Singh to Sh. S.K. Sharma, S.I.O. on 26.04.2008.
1.11 The further follow-up action revealed that the registration no. BR 04C 7286 in fact was the registration number of a Trailer and not of Mahindra Bolero vehicle. It was also found that Mohd. Kalamuddin in whose name the vehicle stands transferred as per the registration certificate, was not available as his address was not complete.
1.12 The case property ,samples and test memo were deposited with Sh.K.K.Sood Asstt. Director for safe custody. The case property along with the packing material was deposited by Sh. Gurjit Singh, I.O. with Sh. Dharam Bir Sharma, Incharge Valuable Godown, New Customs House, New Delhi, on 28.04.2008, and on the same date Sh. K.K. Sood, Assistant Director, handed over ten representative samples to Sh. Jagdish Rai, Stenographer, Grade-I, DRI (Hqs.), New Delhi, along with forwarding letter and test memo for onward transmission to Central Revenue Control Laboratory (CRCL), New Delhi, for chemical analysis. The samples and the test memos in duplicate were handed over to Sh. Sukhdev Singh, Lab. Assistant, Grade-II, CRCL against acknowledgement. 1.13 Vide the report dated 02.06.2008, Sh. V.P. Bahuguna, Assistant Chemical Examiner and Sh. S.C. Mathur, Chemical Examinar CRCL opined that on analyses, the test samples gave positive test for Charas having purity percentage between 6.4 to 7.9 T.H.C. 1.14 In the statement under section 67 of NDPS Act tendered by the accused Anil Kothari, he had stated that on 20.04.2008, he had received a call from a person named Giani, who gave reference of one Gill, who was earlier known to him. The said Giani informed SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
7him that an Open Astra car bearing registration no. DL3CJ4259 was parked in the parking of Hanuman Mandir, Karol Bagh with the keys of the car inside. The said Giani also informed that a person would be arriving in Bolero vehicle with a Bihar number plate with Hashish concealed therein and the accused Anil Kothari had to take this vehicle to his farmhouse and after removing the drug from the Bolero vehicle, it was to be shifted to said Opel Astra car. The accused had further stated that he sent his driver Ramesh to Karol Bagh to bring the vehicle to Arihant Farm. During further investigation this Opel Astra car, bearing registration no. DL3CJ4259 was recovered from Arihant Farm, Kherakalan, Delhi on 25.04.08 by Sh. Jyothimon Dethan, Intelligence officer. From the documents recovered from the car, the nexus of the car was established with one Gerardo Morante Mendez, resident of Food Residency Apartment, Ardee City, Sector 57, Gurgaon. During the investigation, search was conducted at this house, but nothing incriminating was found. However, Mrs. Jennet Chinboi, the wife of said Gerardo Morante Mendez was examined, who tendered her statement under section 67 of NDPS Act. She stated that her husband was from Spain and he had told her in December, 2007 that one Pedro, one of his old acquaintances had interest in his car Opel Astra bearing registration no. DL3CJ4259. Her Husband left for Capetown, South Africa. The said Mr. Pedto met her in the first week of April, 2008 alongwith one Mr. Malhotra and a Sikh gentleman, who was a mechanic who came to see the car. 1.15 During further investigation, the said mechanic namely Inder Jeet Singh tendered his statement under section 67 of NDPS Act and he stated that he accompanied Mr. Pedro to Ardee City, Gurgaon to examine the Opel Astra car. He also stated that he knew Virender Kumar Malhotra, for whom he had repaired the vehicle. He stated that the vehicle was repaired by him and it was SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
8taken away by Mr. Malhotra. He furnished the telephone number of Mr. Malhotra to the DRI officials. Therefore, the statement of Mr. Pedro as well as Mr. Virender Kumar Malhotra, resident of 450, Third Floor, Mukherjee Nagar, was also recorded. Mr. Malhotra had also stated in the statement under section 67 of NDPS Act that he had brought the car from Gurgaon which he had sold to one Vassi. However, during the investigation the said Vassi could not be contacted.
1.16 During the further investigation, it was revealed that Mr. Vassi used mobile no. 09701806348 and 09847940219, which were issued to one Sheikh Mohsin Mohammad Rashid Ahmad, resident of Secundrabad on 04.02.2008 and Mirza Ikram Ahmad Baig, resident of Nijamabad respectively. The details of mobile no. 9849740219 allegedly used by Mr. Vassi as per statement of Sh. V.K. Malhotra revealed that calls had been made to Delhi Service Provider Mobile No. 9990669384, from this number. 1.17 This mobile No. 9990619384 was issued by Ms. Sehas Enterprises, Outram Lane. Sh. Harminder Singh, its owner tendered statement under 67 of NDPS Act and informed that this number was issued to one Vickey, who was introduced by one of his old regular customer, who was identified as accused Anil Kothari Jain by Sh. Harminder Singh.
1.18 During the investigation, the communication was received from Sh. Rahul Sharma, DIG of Police, CBI, EOW, Mumbai dated 08.07.08, addressed to Joint Director (G.I). DRI, New Delhi, confirming that accused Anil Kothari has been convicted in a case S.C. No. 363/98 in CBI case RC4/E/98/Mum. and that the accused was released on parole on 19.11.02 for 30 days as informed by the Superintendent Prison, Yerwada, Pune, Maharashtra, vide his message YCP/PF/581/08 dated 11.07.2008.
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
9
1.19 The complaint was filed for trial of accused Lal
Mohammad and Anil Kothari Jain for the offences under section 23, 25 ,20 and 29 of NDPS Act, 1985. Since it was claimed that accused Anil Kothari Jain has been convicted previously in FIR No. RC-4/E/98 dated 16.06.1998 of CBI, EOW, Mumbai, for offences under NDPS Act, his trial for the offence under section 31A of NDPS Act was also prayed. My learned predecessor took cognizance of the offences on 20.10.08 and vide order dated 01.05.09, framed charges against the accused Lal Mohammad and Anil Kothari Jain for the offence under section 29 and 20 (b) (ii) (C) read with section 29 of NDPS Act. However, my learned predecessor vide the said order observed that there was nothing to substantiate the allegations for the offence under section 23 and 25 of the NDPS Act as there was no evidence of importing and exporting any narcotic drug outside India. This finding was not challenged by DRI. Accused Anil Kothari Jain was also charged for offence under section 31A of NDPS Act as there was allegation of his previous conviction under NDPS Act.
1.20 This order dated 01.05.09 was challenged before the Hon'ble High Court by accused Anil Kothari Jain and vide order dated 29.05.09, the Hon'ble High Court directed that the matter be heard afresh and thereafter, the order be passed in accordance with law.
2.0 Accordingly, arguments on charge were heard again by my learned predecessor and vide order dated 18.12.09, the accused Lal Mohammad was charged for offence under section 20
(b) (ii) (C) of NDPS Act and also under section 29 read with section 20 (b) (ii) (C) of NDPS Act. The accused Anil Kothari Jain was charged for offence under section 20 (b) (ii) (C) of NDPS Act and also under section 29 NDPS Act read with section 20 (b) (ii) (C) of NDPS Act. Both the accused had pleaded not guilty to the SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
10respective charges and claimed the trial.
2.1 Since there was mention in the complaint that accused Anil Kothari Jain has been previously convicted under NDPS Act for dealing in narcotic drug in commercial quantity in FIR No. RC- 4/E/98 dated 16.06.1998 by the Special Judge (NDPS), Greater Mumbai vide judgement dated 22.02.01 my learned predecessor stated this fact to the accused no. 2 without framing a formal charge by specifically observing that during the trial, the previous conviction would not be referred to by the prosecution, nor any evidence be adduced as per provisions of section 236 of Cr.P.C. PROSECUTION EVIDENCE 3.0 To prove its case qua both the accused, the prosecution has examined following witnesses:
3.1 PW1 is Sh. Madan Singh. He had received the secret information Ex. PW1/A, on 24.04.2008 and put up the same before PW5 Shri Pankaj K. Singh to whom he was bound to report directly being the senior officer of the intelligence cell. 3.2 PW2 is Sh. S.K. Sharma, SIO, DRI. He had issued the DRI seal to PW7 Shri Gurjeet Singh on 24.04.2008 after making an entry in the seal movement register (Ex. PW-7/Z9) which was returned on 25.04.2008. Though he admitted in cross-examination that he did not mention time of handing over and taking over of the seal in the register. He had also given the intimation to the wives of both the accused persons vide telegrams Ex. PW2/B and Ex. PW2/C respectively. He has also proved the report under Section 57 of NDPS Act, 1985 regarding recovery, seizure and arrest of both the accused persons etc. vide document, Ex. PW2/A, submitted by Sh. Gurjeet singh, I.O. on 26.04.2008. He had also issued the summon Ex. PW2/D to accused Lal Mohammad for his appearance and in pursuance to said summons, the accused No. 1 tendered his voluntary statement, Ex. PW2/E, which was reduced SC No.63A/08 DRI Vs. Lal Mohammad & Anr.11
into writing by Shri Ramesh (one of the occupants of the vehicle). 3.3 PW3 is Sh. Sukhdev Singh, Lab Assistant, CRCL, New Delhi. He had received ten sample packets brought by PW8 Shri Jagdish Rai on the direction of PW14 Sh. S.C. Mathur after confirming that seals on sample packets were intact and diarised them vide Dy. No. 116 dated 28.04.2008 and issued the acknowledgement Ex. PW-3/A. He had also received the forwarding letter and test memo along with the above samples. 3.4 PW4 is Sh. D.P. Saxena, IO DRI. He has proved the summon, Ex. PW4/A, issued to Sh. Ramesh, one of the occupants of the Bolero car, pursuant to which he tendered his statement Ex. PW4/B in his own hand, admitting the recovery of 151.340 Kg. of contraband and also preparation of panchnama. 3.5 PW5 is Sh. Pankah K. Singh, Deputy Director. He is the officer before whom the secret information, Ex. PW1/A was put by PW1 Sh. Madan Singh and after discussion with Sh. Madan Singh and his senior officer, he had given the directions to Sh. Gurjeet Singh to take immediate steps. He had also issued the search warrant, Ex. PW5/A for the search of the vehicle in question in favour of Sh. Gurjeet Singh. He has deposed that in hierarchy. SIO is the immediate superior official to any Intelligence Officer, but for intelligence cell, the Intelligence Officer reports directly to the Deputy Director.
3.6 PW6 is Sh. Ajay Bhasin, IO, DRI. He was working as Tax Assistant in DRI (HQ), New Delhi in April, 2009 and had written the statement tendered by Sh. Mohan Lal Jat Ex. PW6/A under section 67 of NDPS Act on the dictation of Sh. Mohan Lal in the presence of PW7, Sh. Gurjeet Singh, I.O.
3.7 PW7 is Sh. Gurjeet Singh, IO, DRI. He is the complainant cum seizing officer. He deposed that on 24.04.2008 Sh. P.K. Singh, Deputy Director, DRI, informed him regarding the SC No.63A/08 DRI Vs. Lal Mohammad & Anr.12
secret information and directed him to take immediate action. He formed a team and collected the search authorization, Ex. PW5/A qua the vehicle bearing no. BR04C7286 and also collected the DRI seal from Sh. S.K. Sharma, SIO, DRI. He also called two panch witnesses for joining the raiding team before leaving the office. Thereafter, the raiding team reached at the Gurudwara, near Siraspur at G.T. Karnal Road, Delhi and kept a watch for the vehicle in question. The officers noticed one vehicle bearing registration No. BR04C7286 at about 10:40 pm near the bus stand opposite Gurudwara, Siraspur at G.T. Karnal Road and one person was seen sitting on the driver seat. At the same time, one person in his sixty's with two young persons approached the vehicle. The said old person had conversation with the driver of the vehicle for some time. Thereafter, they all entered in the vehicle. As soon as the vehicle started moving, the same was intercepted by the officers. The officers disclosed their identity to all the four occupants of the vehicle. Thereafter, on enquiry all the four occupants disclosed their identity as Lal Mohammad (driver of the vehicle), Anil Kothari Jain, Mohan Lal Jat and Ramesh Kumar. The officers asked them regarding concealment of any narcotic drugs, to which all of them denied. Thereafter, PW-7 apprised them regarding the specific information which was received by the officers of DRI. The search warrant was shown to all the occupants of the vehicle. Since the place of interception was a highway and was not suitable for conducting the search proceedings, therefore, the said vehicle alongwith its occupants was escorted to the DRI office. After reaching the ground floor of the DRI office Notices under Section 50 of NDPS Act, 1985, Ex. PW7/Z4 to Z7 were issued to all of them to which they replied that any officer of DRI could conduct the search of their person and vehicle. Thereafter, the search was conducted which resulted in the recovery of 151 packets which were secured SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
13with brown adhesive tape and concealed in the false cavity, which was secured by nut and bolts beneath the rear seat of the vehicle. The RC of the vehicle in the name of one Kalamuddin was also recovered. Thereafter, all the 151 packets, all the four occupants of the vehicle and the documents were escorted to the 7 th Floor of Drum Shape building, where the office of Directorate of Revenue intelligence is situated, for examination. After reaching there a small quantity of the recovered substance was taken out from all the packets and tested separately and found positive for Hashish. Thereafter, the above 151 packets were divided into nine lots containing 15 packets each and one lot containing 16 packets. On weighment net weight was found 151.340 Kg. and gross weight was 153.378 Kg. He drew two samples of 25 grams each from each of the 10 lots and put them in a zip lock pouchs which were further put in paper envelopes. The packets were sealed with the seal of Directorate of Revenue Intelligence-10. One paper slip having signatures of both the panch witnesses and all the four occupants of the vehicle was affixed on each envelope. The remaining contraband of ten lots which were kept in a container were wrapped in a white cloth and were individually sealed with the seal of DRI-10 and one paper slip having the signatures of panch witnesses and the four occupants of the vehicle was also pasted on each packet. The packing material was also seized and sealed with the DRI seal and paper slip. PW7 then prepared the test memo in triplicate which was signed by all the occupants of the vehicle. After sealing the case property and samples, the same were handed over to PW11 Shri K.K. Sood along with test memos for safe custody. He had prepared Panchnama Ex. PW7/Z3 and inventory of goods seized and detained vide Ex. PW7/Z-2. 3.7.1 Thereafter, on 25.04.2008 in pursuance of summons Ex. PW7/B, accused Anil Kothari tendered his voluntary statement, SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
14Ex. PW7/A. He had also issued the summons Ex. PW7/C to Mohan Lal Jat, one of the occupants of the vehicle tendered his statement, Ex. PW6/A. He had also arrested both the accused persons vide arrest memos, Ex. PW7/D and E respectively. On 26.04.2008, he prepared Report under section 57 of NDPS Act and submitted to Sh. S.K. Sharma, SIO, about seizure of 153.34 Kg. of Hashish and arrest of accused. He proved the said report as Ex. PW2/A. He had also issued the summons to both the panch witnesses namely Ganga Ram and Jai Singh, Ex. PW7/F and Ex. PW7/H, in pursuance to which they tendered their statements on 28.04.2008, Ex. PW7/G and Ex. PW7/I respectively, in which they had disclosed the entire incident regarding recovery and seizure of the above contraband. 3.7.2 In pursuance of search warrant, Ex. PW-7/J, PW7 had conducted the search of the residence of Mr. Gerrardo Morante situated at Residency Apartment, Ardee City, Sector-52, Gurgaon and prepared panchnama, Ex. PW7/K. During the search, nothing incriminating was recovered. He also issued summon Ex. PW7/L to Ms. Janet Chinboi wife of Mr. Gerrardo Morante, who appeared and tendered her voluntary statement, Ex. PW7/M, in which she had disclosed how the Opel Astra car was taken away from her house by Mr. Pedro, friend of her husband accompanied by PW16 Shri Inderjeet Singh and one Mr. Virender Malhotra. He deposed that in pursuance of summon Ex. PW7/M, Mr. Pedro appeared and tendered his statement in his own hand, Ex. PW7/O, in which he stated that he went to Mr. Gerrardo's house alongwith one Mr. Inderjeet Singh and Virender Malhotra to purchase the vehicle and the said vehicle was taken away by Mr. Malhotra for its inspection by the mechanic and he told that the vehicle needs expenses to set in order so Mr. Pedro told Mr. Malhotra that the vehicle could be sold as it required lot of expenses.
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
15
3.7.3 He further deposed that in response to summon Ex.
PW7/P, Shri Inderjeet Singh appeared and tendered his statement, Ex. PW-7/Q, in which he had confirmed the fact as deposed by Mr. Pedro and he had also disclosed the address of Mr. Virender Malhotra. He further deposed that on the strength of search warrant PW7/R the residential premises of Sh. Virender Malhotra was searched but nothing incriminating was recovered. Sh. Virender Malhotra appeared in response to summon under section 67 of NDPS Act and tendered his statement Ex. PW7/U, in his own handwriting and tendered one receipt Ex. PW7/U1 which shows that the above Opel Astra car was purchased by one Vassi on 21.04.2008,. Sh. Virender Malhotra also tendered his statement, Ex. PW-7/W on 09.06.2008. He had also surrendered the photocopy of passport of Mr. Vassi.
3.7.4 He further deposed that in pursuance to summon Ex. PW7/X, Sh. Harminder Singh appeared and tendered his voluntary statement Ex. PW7/Y, in which he had stated that the SIM card of mobile no. 9990669384 was issued by him to one Vicky son of Sh. Tek Chand resident of 170, Outram Lane, GTB Nagar, Delhi vide documents collectively PW13/A. In his statement, he had also stated that the said Vicky had visited his shop for purchasing the above mobile number with one of his regular customers, who introduced Vicky as his servant and he had also identified the photocopy of the photograph of the said regular customer. It is pertinent to mention here that the said Harminder Singh had identified accused Anil Kothari in the Court as the same person, who had accompanied the said Vicky.
3.7.5 This witness has proved the test memos, Ex. PW7/Z and Z1. He also proved the deposit memo, Ex. PW7/Z2, Panchnama Ex. PW7/Z3, Notices under Section 50 of NDPS Act, 1985 issued to accused Lal Mohammad and Anil Kothari Ex. PW7/Z4 and Z5, SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
16Notices under Section 50 of NDPS Act issued to Ramesh and Mohan Lal Jat are Ex. PW7/Z6 and Z7. He has also proved the complaint, Ex. PW7/Z8, copy of seal movement register, Ex. PW7/Z9 and R.C. of the vehicle, Ex. PW7/Z10. This witness has also identified the entire case property i.e. paper slip, steel containers and substance therein, remnant samples and duplicate samples. 3.8 PW8 is Sh. Jagdish Rai, Stenographer, DRI (HQ). He had taken the ten sealed sample packets to the office CRCL on 28.04.08, which were handed over to him by Sh. K.K. Sood, Assistant Director (PW11) who was the custodian of the case property and both sets of samples, alongwith one forwarding letter (Ex. PW8/A) and test memo (Ex. PW7/Z) in duplicate. He had deposed the sample packets and documents with CRCL and obtained the acknowledgement Ex. PW3/A. 3.9 PW9 is Sh. D.B. Sharma, Inspector Incharge Valuable Godown at New Custom House, New Delhi. He has proved the deposit memo Ex. PW7/Z2, vide which he had received the case property in intact conditions on 28.04.2008. He has also given the acknowledgement on the above deposit memo in token of receiving the case property in intact conditions. He has also made the entry in Valuable Godown Register Ex. PW9/A . 3.10 PW10 is Sh. Jyothimon Dethan, I.O. DRI. He conducted the search at Arihant Farms, Khera Kalan, Delhi on the strength of search warrant (Ex. PW10A) issued by Sh. K.K. Sood, Assistant Director). During search one Opel Astra Car bearing Registration No. DL 3CJ 4259 was found in the premises. He deposed that the key of the car was provided by Sh. Aklesh Kumar Rai, brother in law of accused Anil Kothari, who arrived at the spot during the search. During search of the said car six documents were recovered. The above car and the documents (Ex. PW10/B1 to B6) were seized vide panchnama Ex. PW10/B. SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
173.11 PW11 is Sh. K.K. Sood, Assistant Director, DRI. He has stated that on 25.04.2008 Sh. Gurjeet Singh had handed over the sealed pullanda of the case property and ten sample packets in duplicate with seal intact alongwith test memo in duplicate to him for safe custody. On 28.04.2008, he had handed over the case property in intact conditions alongwith deposit memo Ex. PW7/Z2 to Shri Gurjeet Singh for depositing the same in the valuable Godown at New Customs House, New Delhi. He had also handed over the ten sample packets in intact conditions alongwith forwarding letter Ex. PW8/A and test memo Ex. PW7/Z in duplicate to Shri Jagdish Rai (PW8) for depositing the same in the office of CRCL. He has also issued the search warrants Ex. PW11/A qua the residence of accused Anil Kothari. He has also proved the execution report Ex. PW11/B thereof. He has also issued the search warrants Ex. PW10/A qua the Arihant Farms pertaining to accused Anil Kothari and he has proved the execution report Ex. PW11/C thereof. He has also identified the panchnama Ex. PW10/B and the documents seized by the above panchnama Ex. PW10/B2 to B-6 as the same were shown by Sh. Jyothiman to him.
3.11.1 He had also issued letters to the Assistant Commissioner, Motihari Bihar Ex. PW11/D for follow-up action. He had also written a letter, Ex. PW11/E to the ADG, DRI, Chennai qua Giani and one person by the name of Vassi as their names had figured during the statement of accused Anil Kothari Jain. Reply to this letter received vide Ex. PW11/J. He also wrote a letter Ex. PW1/F to Idea Cellular regarding the mobile No. 9990669384, which was replied vide Ex. PW11/K. He has also proved the letter Ex. PW11/L written to CBI, C.G.O. Complex, New Delhi and Ex. PW11/M, which was written to Sh. Rahul Sharma, DIG, CBI, Mumbai. 3.12 PW12 is Sh. Ram Kanwar, TA DRI, New Delhi. He had written the statement of Sh. Ganga Ram, panch witness, Ex. PW7/G SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
18on 28.04.2008 at his request in the presence Sh. Gurjeet Singh, IO, DRI.
3.13 PW13 is Sh. Ajit Singh, Assistant Nodal Officer, Idea Cellular. He produced copy of subscriber application qua mobile No. 9990669384 alongwith documents submitted by subscriber for allotment of the number. He had submitted the documents collectively Ex. PW13/A to DRI alongwith the CDR for the period April, 2008 collectively Ex. PW13/B. He has also produced the certificate under section 65B of Indian Evidence Act, Ex. PW13/C. As per documents the above mobile number was allotted to Sh. Vickey son of Sh. Tek Chand, resident of 173, Qutram Line, GTB Nagar, Delhi.
3.14 PW14 is Sh. S.C. Mathur, Chemical Examiner, CRCL. He had received ten sample packets, forwarding letter and test memo in duplicate from Sh. Jagdish Rai, Steno, DRI, and allotted the same to Sh V.P. Bahuguna, ACE, CRCL, New Delhi. At his instruction, Sh. Sukhdev Singh (PW3) had issued the receipt in token of receiving ten sample packets in intact conditions. Sh. V.P. Bahuguna had analysed all the ten samples and found to be of charas.He deposed that the test report Ex. PW14/A was issued under his signatures as well as signatures of Sh. V.P. Bahuguna. The Short Analyses Report was also given in the Section (ii) of the test memo Ex. PW7/Z. 3.15 PW15 is Sh. K.S.V.V. Prasad, Deputy Director, Chennai. He had furnished the call details vide letter Ex. PW11/J regarding two mobile number mentioned in the letter of Directorate of Revenue Intelligence dated 10.06.2008. As per record the mobile numbers were found registered in the name of Shaik Mohsin and Mirza Akram Ahmed Baig and the call detail record of the mobile number are collectively marks as 15 A and 15B respectively.
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
19
3.16 PW16 is Sh. Inderjit Singh. He had brought Opal
Astra Car from Gurgaon on the request of Sh. Virender Malhotra and they were accompanied by one Pedro. The said vehicle was left at the residence of Sh. Virender Malhotra and on the next day he had repaired the same. Thereafter, the said vehicle remained with Sh. Virender Malhotra. He proved his statement Ex. PW7/Q . 3.17 PW17 is Ms. Janat Chinboi Munluo, wife of Sh. Gerardo Mandez. Her husband was the owner of Opel Astra Car no. DL3CJ4259 and Mr. Pedro was the friend of her husband. Mr. Pedro had shown some interest in their Opel Astra Car. Therefore, he had taken the above car with him from her house at Residency Apartment ARDEE City, Sector-52, Gurgaon for survey test. At that time Sh. Virender Malhotra and one Sikh gentleman, introduced as a mechanic, also accompanied him. She had also tendered her statement Ex. PW7/M in pursuance of summons Ex. PW7/N. It is pertinent to mention here that the above Opel Astra Car was later on seized by Sh. Jyothimon, IO. Directorate of Revenue Intelligence from Arihant Farms of accused Anil Kothari.
3.18 PW18 is Sh. Harminder Singh. He is the person who had sold the SIM card in the name of one Vicky son of Sh. Tek Chand and he had also proved the photocopy of documents collectively Ex. PW13/A i.e. the customer application form having the rubber stamp of his shop/firm and driving license in the name of Vicky. He has further stated that the Vicky had come to his shop for purchasing the mobile number with his regular customer, who had introduced the said Vicky as his servant. He had also identified the said regular customer as accused Anil Kothari. He had also tendered his statement Ex. PW7/Y, in pursuance of summon Ex. PW7/X. 3.19 PW19 is Dr. Meenakshi Kamal, CMO, RML Hospital. She had conducted the medical examination of both the accused SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
20persons on 25.04.2008 and found that there were no fresh external injury mark on their body and all vitals were stable. She has proved the MLCs Ex. PW19/A and 19/B respectively qua both the accused persons.
3.20 PW20 is Ms. Laxmi, Record Clerk, RML Hospital. She had identified the MLCs dated 26.04.2008 qua both the accused persons which were issued under the signature of Dr. Alok Upadhyay, who left the service of the Hospital.
3.21 PW21 is Sh. Niwas Sharma, Clerk DTOP, Chapra, Bihar. He brought the original record of the vehicle in question having no. BR04C7286 and as per the record the said vehicle stands registered in the name of Sh. Arvind Kumar and Sh. Sanjay Kumar since 15.09.2005. He has proved the date of registration of the vehicle and the copy of the same is Ex. PW21/A. He also deposed the said vehicle is a trailer.
STATEMENT OF ACCUSED 4.0 The incriminating evidence in the statement of witnesses was explained to both the accused persons when they were examined under section 313 Cr.P.C. The accused Lal Mohammad has stated that he was given the vehicle Bolero by one Ramu at Raxol, Bihar and was told to take the vehicle to the place near Gurudwara and accordingly he had brought the vehicle at the noted placed where his co-accused Anil Kothari reached with two other persons to take delivery of the Bolero vehicle from him and they all were apprehended by the officers of DRI in plain clothes. He further stated that they all were taken to DRI office and confined in a room. He claimed that the driver Ramu had never disclosed to him that packets of Hashish were concealed in the car and he was not aware about the concealment of the packets in the vehicle. He also claimed that he was not known to co-accused Anil Kothari previously. He also claimed that no packet was recovered SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
21from the vehicle in his presence and no proceedings were conducted in his presence. His signatures were taken on various blank and written documents. He also did not give any statement to DRI officers.
4.1 This accused in fact had admitted that he was apprehended alongwith the co-accused in the Bolero vehicle from near Gurudwara Bus Stand and they all were taken to DRI office from the spot. His only defence is that he was not aware that some contraband had been concealed in the vehicle.
5.0 In his statement under section 313 Cr.P.C., accused Anil Kothari Jain has stated that he has no acquaintance with co- accused Lal Mohammad. He claimed that he has been falsely implicated in the present false case by the officers of DRI and signatures were taken on some blank papers as well as some semi- written papers. He submitted that he was compelled to write substantial part of his statement under torture, coercion and inducement. He submitted that he was lifted from his residence in the presence of his wife. He further submitted that he had retracted from the statement, which was written by him under dictation of officers of DRI. He had placed on record his retraction statement as Mark A. 6.0 Although both the accused had preferred to lead evidence in defence but the accused Lal Mohammad did not lead any evidence while accused Anil Kothari had examined three defence witnesses.
6.1 DW1 is Smt. Sushila Kothari, wife of accused Anil Kothari. She has deposed that on the intervening night of 24- 25.04.2008, at about 1:30 AM, two persons came to their house at 1858, Second Floor, Outram Lane, Delhi and inquired about her husband. When she told them that he is taking rest they forcibly entered into their house. They were followed by 5-6 persons in SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
22plain clothes. They took away her husband on the pretext of some inquiry. They also took alongwith them their driver Ramesh, one Mr. Manmohan, who was a friend of accused from Rajasthan. She informed about the incident to her daughter who also reached there at about 5:30/6:00 AM. At about 10:00 AM on the same day, some officers again came and conducted the search of their second floor house, but nothing incriminating was found. At that time, she was informed that her husband has been detained under the NDPS Act. This witness has also placed on record the reply received in response of two RTI applications, one from Ghaziabad Development Authority, Ghaziabad and another from SDM, Seema Puri, District- North East. They were placed on record as Mark DW1/2. 6.2 DW2 is Ms. Bhavna Kothari. She deposed that in February, 2008 her parents had come to Delhi and were staying at 1858, Second Floor, Outram Lane, New Delhi. She deposed that on 25.04.2008 at about 3:30 AM, she received a call from her mother who informed her that her father had been taken away by some officers alongwith driver Ramesh and an acquaintance of her father namely Manmohan. She reached at the house at Outram Lane, Delhi at 5:00/6:00 AM. She deposed that at about 10:30 AM/11:00 AM, some officers had come to the house and conducted a raid, but nothing incriminating was found.
6.3 DW3 is Mohan Lal. He has deposed that he knew accused Anil Kothari, who is a resident of Jodhpur, Rajasthan and deposed that on 22.04.2008, he had visited accused in Delhi at his residence at Outram Lane. He deposed that he stayed with the accused for about three days and on the night of 24.04.08 at around 1:30 AM the accused was taken awy by some persons to a multi- story building along with him where they were confined in separate rooms and brutally beaten. He further deposed that he was forced to sign various written and blank papers.
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
23
7.0 It is pertinent to note that Mohan Lal Jat DW3 is the
person, who was apprehended alongwith the accused and his statement under section 67 of NDPS Act was also recorded vide Ex. PW6/A. During cross-examination he was confronted with his statement Ex. PW6/A and he admitted his signatures appearing on each page of the statement though he denied that he ever gave any such statement and also that his signatures were obtained on blank papers.
8.0 I have heard the arguments of the Ld.Special Public Prosecuter for DRI, Sh. S.S. Das, learned counsel for accused Anil Kothari Jain and Sh. S.K. Saxena, Amicus Curie for accused Lal Mohammad. I have perused the evidence on the record and the documents carefully. Ld.SPP for DRI and Ld. Counsel for accuesd Anil Kothari Jain have filed written submissions as well. 9.0 The learned Special Public Prosecutor for DRI has submitted that the case has been proved beyond reasonable doubt. It is submitted that the secret information received has been proved on record by PW1 Madan Singh as Ex. PW1/A. The information was assigned to Gurjeet Singh, Intelligence Officer (PW7). He argued that a team of officers of DRI was formed along with two panch witnesses and they apprehended both the accused along with contraband concealed in the Bolero car. It is submitted that all the statutory compliances have been adhered to. The vehicle has been searched pursuant to the search authorization taken by Sh. Gurjeet Singh (PW7). The recovery has been proved beyond reasonable doubt. PW7 has been duly corroborated by other witnesses examined during the trial. There is no material to suggest false implication of the accused persons. He also argued that the contraband recovered was initially tested with the Drug Detection Kit and tested positive for Hashish. It is submitted that the samples taken were sent to CRCL and as per the report of CRCL, Ex. PW4/A, SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
24the samples were found to be of Charas. He also submitted that the samples have been kept in the safe custody of PW11 Sh. K.K. Sood and the samples have been received in the CRCL duly sealed thus ruling out any tampering with the samples. It is stated that the accused Anil Kothari has taken contradictory stand in his defence. While defence witness say that he was lifted from his residence at Outram Lane but the accused in his retraction application Mark A had taken the plea that he was lifted by the DRI officers from his Arihant Farm, Kherakalan, Delhi. It is submitted that the accused Lal Mohammad in his statement under section 313 Cr.P.C. has not denied his apprehension from the spot alongwith Bolero car and the accused Anil Kothari, though he denied recovery of contraband. He argued that prosecution witnesses have proved recovery of contraband from the vehicle in question. There is no motive for prosecution witnesses to depose against accused falsely. There is no allegation of any enmity or prejudice against them. 10.0 The learned counsel for the accused Lal Mohammad has argued that it is a false case and the prosecution has not been able to establish that the accused had any "knowledge" about any contraband in the vehicle Mahendra Bolero. He argued that the accused Lal Mohammad had simply brought the vehicle from Raxol, Bihar at the instance of one Ramu and he had to deliver the same to some person at Delhi. He argued that since the accused Lal Mohammad was not having any knowledge about the contraband in the Bolero vehicle, he could not be attributed "conscious possession" of the contraband.
11.0 Learned counsel for the accused Anil Kothari has argued that the secret information Ex. PW1/A is not the complete information as per the statement of PW1 as PW1 has admitted that he had noted down only the important points. He also argued that two independent witnesses namely Jai Singh and Ganga Ram SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
25allegedly joined at the time of alleged recovery have not been examined and the prosecution has dropped both these witnesses. He submitted that the information sought through RTI has confirmed that these witnesses namely Jai Singh and Ganga Ram were not residing at the given address. It was also argued that there has been non-compliance of the statutory provisions. He argued that the officials who have been part of the raiding party have neither been named in the complaint nor cited as witnesses. He submitted that S.K. Sharma was examined as PW2, has not stated even a single word about being a member of the raiding party while PW7 Sh. Gurjeet Singh had mentioned in his statement that Sh. S.K. Sharma, SIO was a member of the raiding team. It is submitted that the case of DRI rests upon the solitary statement of PW7 with regard to alleged recovery. It is submitted that the apprehension of the Bolero vehicle at the spot is highly doubtful as there is contradiction in the statement of PW7 with regard to arrival of this vehicle at the spot and he also argued that presence of Anil Kothari is also doubtful. He submitted that as per the case of DRI Anil Kothari was served a notice under section 50 of NDPS Act after arrival at the DRI building on 24.04.2008. However, the notice placed on record Ex. PW7/Z5 bears the signatures of Anil Kothari with the date underneath as "25.04. 2008" while the notice served to the accused Lal Mohammad Ex. PW7/Z4 bears the date "24.04.08". It is also argued that despite examination and recording of statement of Mohan Lal Jat and Ramesh Kumar under Section 67 NDPS Act, they have not been examined by the DRI. He also submitted that the case property and the samples have been kept in the DRI office from 24.04.2008 to 28.04.2008 and there is no explanation why the samples were not sent immediately after seizure. There are chances of tampering with the case property and samples when they remained with the DRI officers in the office of DRI. He has SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
26relied upon the following judgments:-
(i) Inderdev Yadav & Ors. vs. State, CRL A 545/2011 & Crl. MB No. 209/2014.
(ii) Bahadur Singh vs. State of Madhya Pradesh, 2002 (1) JCC 12.
(iii) Makhan Singh vs. State of Haryana, 2015 (3) LRC 47 (SC).
(iv) Kishan Chand vs. State of Haryana, 2013 (3) LRC 212 (SC).
(v) Jaswinder Singh vs. State of Punjab,2011 (2) JCC (Narcotics)98.
(vi) Surender @ Sudama vs. State of Haryana, 2010(3) JCC (Narcotics) 131.
(vii) Mohd. Irfan vs. DRI, 2013 (9) LRC 133 (Del).
(viii) Basant Rai vs. State, 2012 (7) LRC 20 Del.
(ix) Sunil Kumar vs. State, 2011 (1) JCC (Narcotics).
(x) Edward Khimani Kamau vs. NCB, 2015 (8) LRC 313 (Del).
(xi) Peeraswani vs. State of NCT of Delhi, 2007 (2) JCC [Narcotics]
80.
(xii) D.N. Pandey vs. State of U.P., AIR 1981 Supreme Court 911.
(xiii) NCB vs. Gurnam Singh & Anr., 2013 (8) LRC 342 (Del).
(xiv) State of Rajasthan vs. Gurmail Singh, CRL. A. No.1179 of 1999.
(xv) Ritesh Chakravarti vs. State of M.P., 2007 (1) JLJ 239. (xvi) Emma Charlotte Eve vs. NCB, 2000 (2) JCC [Delhi] 331. (xvii) Phuman Singh & Anr. vs. State of Punjab, 2006 (3) JCC [Narcotics] 188.
(xviii) Eze Val Okeke vs. N.C.B., 2005 (1) C.C. Cases (HC) 72. 12.0 The learned Special Public Prosecutor had filed written arguments in rebuttal and he relied upon following judgment in support of his submissions:-
(i) Sucha Singh vs. State, SCC (2003) 3 JCC 1320 (ii) State of Haryana Vs. Asha Devi, CR Appeal No. 1953/2009. (iii) Chand Singh vs. The Narcotics Control Bureau 2016 (1) JCC (Narcotics) 1 (iv) Sunil Kumar Yadav vs. NCB--Crl. Appeal No. 944 of 2010 SC No.63A/08 DRI Vs. Lal Mohammad & Anr. 27 decided on 18.03.2014 (Delhi High Court). (v) K.R. Vengadeswar vs. The Narcotics Control Bureau--Crl.
Appeal No. 830/2010 decided on 10.01.2014 (Delhi High Court)
(vi) Vijender Singh vs.Directorate of Revenue Intelligence--Crl.
Appeal No. 108/2012 decided on 08.04.2013.
(vii) Lydia Ninglianting vs. Directorate of Revenue Intelligence--Crl.
Appeal No. 770/2011 decided on 05.02.2016 (Delhi High Court).
(viii) Delias Christophe Guy Jeans vs. Customs, 2004 (3) JCC 1747.
(ix) Kulwinder Singh & Anr. vs. State of Punjab--2015 Law Suit (SC)
433.
(x) Ajmer Singh vs. State of Haryana CR Appeal No. 43601-2009 (SC).
(xi) State of Punjab vs. Lakhwinder Singh & Anr., 2010 (3) JCC (Narcotics) 142.
(xii) Ambrose Ihecherobi Okeke vs. D.P. Saxena, Intelligence Officer & Anr., 2013 (3) JCC (Narcotics) 115.
13.0 The case of DRI is based on the statement of PW7 Gurjeet Singh, who along with team of DRI officials and panch witnesses had apprehended both the accused with the vehicle make Mahendra Bolero bearing no. BR04C7286 on 24.04.08 at about 10:40 PM. Although he was accompanied by officers of DRI and two panch witnesses, but those members of the team from DRI are not examined and the panch witnesses namely Ganga Ram and Jai Singh also could not be examined as they could not be served with the summons of the Court as they were not found residing at the addresses. Thus, it is a case, which is based on the solitary statement of PW7 Gurjeet Singh and the Court is burdened with the onerous task of scrutiny of his statement and to ascertain, if he is receiving any corroboration from other evidence on the record and SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
28also whether his statement is of a character on which implicit reliance can be placed.
14.0 At the outset, it may be stated that plurality of evidence is not the requirement of law. Statement of solitary witness can be believed and formed basis of conviction, if it is found reliable, trustworthy, cogent and consistent. The Hon'ble Supreme Court in the case Namdev vs. State of Maharashtra, (2007) 14 SCC 150, has observed that the legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It was further held that a conviction can be recorded on a solitary statement also.
15.0 PW7 Sh. Gurjeet Singh has acted on the direction of Sh. Pankaj Kumar Singh, Deputy Director, DRI, on the basis of secret information received by PW1 Sh. Madan Singh. The secret inforamtion has been proved as Ex. PW1/A by Sh. Madan Singh, who had put up the same before Sh. Pankaj Kumar Singh, the Deputy Director of DRI. Sh. Pankaj Kumar Singh had appeared as witness as PW5, who has supported the statement of PW1 that the secret information received by Sh. Madan Singh, I.O., was put up before him. The counsel for the accused Anil Kothari submitted that as per the provisions of Section 42 (2) of NDPS Act, the information was to be put up before the 'immediate superior officee' and Sh. Madan Singh being an Intelligence Officer, his immediate official superior could be Senior Intelligence Officer. The learned counsel for accused also argued that the compliance with the provisions of Section 42 (1) and 42 (2) of NDPS Act is mandatory. He relied upon the judgment in Kishan Chand vs. State of Haryana (Supra), Peeraswani vs. State of NCT of Delhi (Supra) and Phuman Singh & Anr. vs. State of Punjab (Supra). He argued that the information Ex. PW1/A is not registered or numbered or entered in any register in the office of DRI, nor it is the complete account of the SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
29information allegedly received by Sh. Madan Singh (PW1). Learned Special Public Prosecutor on the other hand had submitted that the information has been received and noted by PW1 Sh. Madan Singh, which he conveyed to his senior officer Sh. Pankaj Kumar Singh, Deputy Director, DRI. With regard to the numbering and registration of the secret information in any register he submitted that there is no such requirement of law.
15.1 There is no doubt that requirement of section 42 of NDPS Act is mandatory. In the case, Kishan Chand vs. State of Haryana (Supra), the Hon'ble Supreme Court has relied upon the judgment in Karnail Singh vs. State of Haryana, (2009) 8 SCC 539 and emphasized the need of recording information in writing and sending the same to the immediate official superior before any action is taken by an officer receiving the information. In the present case, PW1 deposed that he received the information, which he reduced into writing immediately, although in the cross- examination, he had stated that he had noted down salient features of the information received by him, but the perusal of the secret information Ex. PW1/A would show that it contained all the necessary details which could be required to take any action. So far as numbering and registering the secret information is concerned, there is no statutory requirement under the NDPS Act or the Rules framed there under nor any other enactment has been pointed out which necessitates that the information has to be entered in any such register. Section 42 (1) of NDPS Act emphasizes reducing of the information into writing. The information received by PW1 Sh. Madan Singh was reduced into writing immediately after the receipt and it has been conveyed to Sh. Pankaj Kumar Singh (PW5) immediately without any wastage of time and it was duly endorsed by PW5. During his examination, PW5 Sh. Pankaj Kumar Singh has clarified that Sh. Madan Singh (PW1) was administratively SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
30subordinate to him and was bound to report any intelligence received by him. In the cross examination, he explained that in the hierarchy, the SIO is immediately superior officer of any intelligence officer but for Intelligence Cell the intelligence officer reports directly to the Deputy Director. In view of this clarification being given by PW5 with regard to the compliance of section 42 (2) NDPS Act, which has gone un-rebutted no violation of section 42 (1) and 42 (2) of NDPS Act has been found.
16.0 Sh. Gurjeet Singh was assigned a secret information Ex. PW1/A for necessary action. First, he collected the DRI seal from Sh. S.K. Sharma, Senior Intelligence officer, DRI, who was the custodian of the seal at the relevant time. Since a vehicle was to be searched, so he also obtained search authorization Ex. PW5/A from Pankaj Kumar Singh, Deputy Director, for the search of vehicle no. BR04C7286. He formed a raiding team of DRI officials and also associated two public persons, who joined him in the raid. They all proceeded to the place mentioned in the information in official vehicle. He deposed that at 10:40 PM, they had noticed the vehicle no. BR04C7286 in question driven by the accused Lal Mohammad. After some time, the accused Anil Kothari Jain also came there with two young persons. They had conversation with the driver of the vehicle and thereafter they entered into the same and as the vehicle started moving, it was intercepted by them. He further deposed that the occupants of the vehicle were disclosed about the identity of the officers of DRI and about the information regarding concealment of narcotic drug in the Bolero car. He further deposed that the place of interception was a highway and was not suitable for search proceedings. Therefore, the occupants of the Bolero car were escorted to the office of DRI. He also deposed about the service of Notice under section 50 of NDPS Act to accused Lal Mohammad vide Ex. PW7/Z4 and to accused Anil Kothari Jain vide Ex. PW7/Z5.
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
31Thereafter, he conducted the search of the vehicle and recovered 151 packets concealed in the false cavity of the vehicle and secured with brown adhesive tape. This false cavity was created beneath the rear seat of the vehicle and was secured with nuts and bots. Thereafter, he deposed that he took out a small quantity from each of the 151 packets and tested separately on the Drug Detection Kit, which gave positive sign of presence of Hashish. For the purpose of taking representative samples, he divided 151 packets into 9 lots containing 15 packets each and one lot containing 16 packets. He also conducted the weighment of the substance recovered in 151 packets. He took out two samples of 25 gms each from the 10 lots and put in a zip lock pouch and in paper envelopes. After putting a mark thereon, all the packets were sealed with the seal of Directorate of Revenue Intelligence-10. One paper slip bearing his signature and also the signature of the panch witnesses and all the four occupants was affixed underneath the seal on the envelopes. Remaining contraband substance of 10 lots, was kept in containers, which were wrapped in white cloth and individually sealed with the seal of DRI with a paper slip having the signatures of both the panch witnesses and all the four occupants. He also deposed that he prepared test memos in triplicate, which was also signed by all the occupants of the vehicle. After this seizure, he prepared a panchnama Ex. PW7/Z3, on which both the panch witnesses and all the four witnesses, which including the accused had signed. He further deposed that after sealing the case property and samples, it was handed over to Sh. K.K. Sood, Assistant Director, DRI (PW11) for safe custody alongwith test memos. Despite a long and exhaustive cross-examination, the statement of PW-7 could not be impeached in any manner. The defence counsels have argued that this solitary statement can not be relied upon in absence of corroboration from independent witnesses, who have been withheld from the Court.
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
32
17.0 The learned counsel for the accused had argued that the
panch witnesses allegedly joined with the DRI team have not been examined. The prosecution/DRI case has been challenged on the ground of non-examination of these witnesses namely Sh. Ganga Ram and Sh. Jai Singh, who had been joined as panch witnesses by PW7 Sh. Gurjit Singh during the seizure and search proceedings. It was argued that in the absence of the examination of these witnesses, the deposition of PW7 Sh. Gurjit Singh cannot be believed as it is not corroborated by any independent evidence. It was also argued that none of the members of the raiding party has been examined by the prosecution/DRI.
18.0 As per the case of the prosecution/DRI, PW7 Sh. Gurjit Singh had associated two panch witnesses namely Sh. Ganga Ram and Sh. Jai Singh, who had accompanied the DRI team to the spot. PW7 Sh. Gurjit Singh had categorically deposed that the panch witnesses alongwith DRI team were introduced to occupants of the vehicle and these panch witnesses were present at the time of service of notices under section 50 of NDPS Act upon the accused, which have been duly signed by the panch witnesses also. He also deposed that these panch witnesses had remained present in the office of DRI till 25.04.2008 and he had served summon to the panch witness Sh. Jai Singh on 25.04.08, in response to which Sh. Jai Singh appeared on 28.04.08 and tendered his statement under section 67 of NDPS Act vide Ex. PW7/I. He deposed that he had called Sh. Ganga Ram on 26.04.08 when summon was served upon him, in response to which he appeared on 28.04.08 and tendered his statement under section 67 of NDPS Act, which was reduced to writing by Sh. Ram Kanwar, Tax Assistant (PW12). He has also explained that the summon under section 67 of NDPS Act could not be served on the panch witness Sh. Ganga Ram on 25.04.08 as he was in a hurry. Therefore, he asked him to appear on 26.04.08 when SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
33he served the summon on him. A panchnama Ex. PW7/Z3 was prepared and it bears the signatures of Sh. Ganga Ram and Sh. Jai Singh as well.
19.0 In view of the deposition of PW7 and the documents, which are placed on record, which bear the signatures of panch witness Sh. Ganga Ram and Sh. Jai Singh, it can be said that statement of PW7/I.O. receive due corroboration from the documents which have been prepared during the proceeding and which bear the signatures of the panch witnesses. PW7/I.O. has duly identified their signatures on these documents. PW12 Sh. Ram Kanwar has also deposed that he had reduced to writing the statement tendered by panch witness Sh. Ganga Ram under section 67 of NDPS Act. In the cross-examination of PW7/I.O. and PW12, nothing has come to make the joining of two panch witnesses during the investigation to be doubtful.
20.0 The counsel for the accused submitted that non- examination of these two panch witnesses amounts to withholding of the evidence from the Court. It has been noticed that Sh. Ganga Ram and Sh. Jai Singh had furnished their addresses at the time of recording of the statement under section 67 of NDPS Act. Sh. Ganga Ram was, therefore, summoned at the address mentioned by him as 15, Sunder Nagri, N-Block, New Delhi and Sh. Jai Singh was summoned at the address, House No. 10, Sector-5, Vaishali, Ghaziabad. Both these witnesses were summoned for 30.09.11. However, the report was received that they are not residing at the address mentioned in the summon. Therefore, the service of these two witnesses was directed through I.O. and they were summoned for 14.11.11 at the same address. However, this time again the same report was received duly attested by IO. Due to non- availability of these witnesses at the given address they were dropped by the prosecution on 03.11.11.
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
34
21.0 The learned counsel for the accused Anil Kothari had
argued that non-examination of the independent witnesses is fatal to the prosecution. He refers to the case Inderdev Yadav & Ors. vs. State (Supra) in support of his argument. The learned Special Public Prosecutor on the other hand has relied upon the judgment in K.R. Vengadeswar vs. The Narcotics Control Bureau (Supra), Vijender Singh vs. Directorate of Revenue Intelligence (Supra), Kulwinder Singh & Anr. vs. State of Punjab (Supra) and Ambrose Ihecherobi Okeke vs. D.P. Saxena (Supra), to support the argument that non-examination of these panch witnesses is not fatal to the prosecution when they are not found available at the given address. In the case of K.R. Vengadeswar vs. The Narcotics Control Bureau (Supra), it was observed that if a witness gives a wrong address, consequently it is not possible to produce him in the witness box, no adverse inference against the prosecution can be drawn on account of not examining such a witness. Similar view was expressed in the case of Vijender Singh vs. Directorate of Revenue Intelligence (Supra). In the case of Kulwinder Singh & Anr. vs. State of Punjab (Supra), the Hon'ble Supreme Court has observed as under :
"That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record, the court finds that the case put forth by the prosecution is trustworthy. When the evidence of official witnesses are trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence."
22.0 Hence, simply because the panch witnesses Sh. Ganga Ram and Sh. Jai Singh could not be examined on account of their non-availability at address furnished by them, the statement of prosecution witnesses cannot be discarded. No presumption or SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
35inference can be drawn to the effect that they both were fake witnesses introduced by PW7/IO Gurjit Singh.
23.0 The statement of PW7 Gurjit Singh/IO cannot be discarded on the ground of his official status, but in the absence of the examination of panch witnesses, the Court is required to scrutinize his statement cautiously. In the case State of Haryana vs. Mai Ram (2008) 8 SCC 292, it was held that:
"The prosecution's case cannot be held to be vulnerable for non-examination of persons, who were not official witnesses and if the statement of official witnesses corroborate, the proceedings conducted, the case of prosecution cannot be disbelieved. So the main question is whether the evidence of official witness suffers from any infirmity."
24.0 PW7 Sh. Gurjit Singh has categorically deposed that he accompanied with the officials of DRI and panch witnesses had reached Gurudwara Siraspur, G.T. Karnal Road. He had noticed the Mahendra Bolero vehicle bearing no. BR04C7286 at 10:40 PM near bus stand, with one person (later on identified as accused Lal Mohammad) sitting on the driver seat. He also deposed categorically that a person in his 60s (later on identified as accused Anil Kothari Jain) approached the vehicle with two young persons (they were identified as Mohan Lal Jat and Ramesh Kumar). As soon as they entered into the vehicle and the vehicle started moving, the DRI officials intercepted the vehicle. He deposed that the occupants were explained about the information and the place of interception being highway, the vehicle alongwith occupants was brought to the office of DRI for search, where he served Notice under section 50 of NDPS Act to all the occupants. He searched the vehicle and from the false cavity created under the rear seat of the vehicle, he recovered 151 packets, which were found containing Hashish. Despite and lengthy and exhaustive cross-examination of the SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
36witness, nothing could be extracted, which could affect his testimony with regard to apprehension of accused with vehicle in question and the subsequent recovery of 151 packets concealed in false cavity created in vehicle car which were found containing Hashish. The learned counsels for accused have assailed the statement of PW7 on the ground that he is sole witness of the recovery and has not received any corroboration from any independent source. I have already observed that non-cross- examination of panch witnesses namely Sh. Ganga Ram and Sh. Jai Singh, is not sufficient to discard the statement of PW7 Sh. Gurjit Singh. So far as the corroboration to his statement is concerned the documents prepared by him and duly signed by the panch witnesses and the accused persons, lend sufficient corroboration to his statement. The learned counsels for accused have argued that PW7 cannot be believed because he was not aware about the registration number of the vehicle used by DRI officials to reach the spot. He was not aware about the driver of the said vehicle. He could not give the details of the members of raiding team and he also could not place the log book of the vehicle used. Although there are minor deficiencies in the statement of PW7 here and there, but they are not on the material aspect and do not adversely affect the credibility of his statement, particularly when there are no allegations of enmity or prejudice against him. In the case of Sumit Tomar vs. State of Punjab (2013) 1 SCC 395, the Hon'ble Supreme Court had observed that conviction can be based solely on the testimony of official witnesses and in the absence of any animosity between accused and the official witnesses, there is nothing wrong on rely on their testimony and accepting the same to make it the basis of conviction. In the present case also nothing has come in the statement of PW7 which could even suggest that he was inimical towards the accused persons or was harboring any SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
37prejudice towards them.
25.0 The production of the log book and detail of the government vehicle used by DRI officers for conducting the raid and the examination of other members of the raiding team was not mandatory though if produced the same would have provided additional corroboration and support to the other evidence on the record. In the absence of this evidence still PW7 has been duly corroborated by documentary evidence brought on the record leaving no room for doubt about the recovery of contraband substance from the Bolero vehicle in which accused were apprehended.
26.0 Not only the statement of PW7 is being supported by the documentary evidence like panchnama Ex. PW7/Z3, the inventory of goods and articles seized and detained Ex. PW7/Z2, service of Notice under section 50 of NDPS Act Ex. PW7/Z4 to Z7, the statement of accused Anil Kothari Jain Ex. PW7/A and statement of accused Lal Mohammad PW2/D also provide necessary corroboration to the statement of PW7. In K. Hasim vs State of Tamil Nadu (2005) 1 SCC 237, it was held that corroboration need not be direct evidence that the accused committed the crime, it is sufficient if it is merely circumstantial evidence of his connection with the crime. Therefore corroboration need not be on each and every point .
27.0 The counsels for the accused had argued that the statement tendered by the accused cannot be taken as evidence against the accused as it was not voluntary. The law with regard to the confessional statement made by an accused under section 67 of NDPS Act is well settled. Such a statement is admissible in evidence and it can be acted upon by the Court, if it is found to have been made voluntarily that is without any threat etc. As it is made prior to formal arrest of the accused it is not hit by the provision of section SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
3824 to 27 of Indian Evidence Act. However, if the statement tendered under section 67 of NDPS Act is later on retracted by accused then Court has to act cautiously and has to look into entire facts and circumstances to find out if the confessional statement of the accused was made voluntarily or not. The view taken in the case Kahaiya Lal vs. State (2008) 4 SCC 668 with regard to the admissibility of the statement under 67 of NDPS Act has taken a shift in the case Union of India vs. Bal Mukund 2009 (2) JCC (Narcotics 76). The present legal position is that a retracted confessional statement is considered a very piece of weak evidence and it should not solely be made the basis of conviction of the accused in the absence of any material corroboration thereof as a rule of prudence.
28.0 Coming to the facts of the present case, the accused Anil Kothari Jain and Lal Mohammad have tendered their statement under section 67 of NDPS Act. The accused Anil Kothari Jain retracted the statement vide his retraction statement mark A dated 26.04.08 stating therein that his statement was taken by force. The accused Lal Mohammad has not retracted his statement tendered under section 67 of the NDPS Act. The accused Lal Mohammad in his statement under section 67 of NDPS Act Ex. PW2/D has inter-alia stated that on 21.04.08, he met one Ramu at Raxol Taxi Stand, who told him that on 22.04.2008, he had to take Bolero vehicle concealing 151 packets of Hashish (Charas) to Delhi and has to wait near bypass Siraspur near Gurudwara where a person around 60 years of age would approach him and would remove the drug from the vehicle. He further stated that he was instructed to return to Raxol Taxi Stand where he would be paid Rs. 5,000/- for the work. He further has stated that on 22.04.08 at 7:00 AM, he reached Raxol Taxi Stand where he met Ramu, who was present with a white colour Bolero vehicle bearing registration no. BR04C7286. He was paid Rs.
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
393,500/- for his expenses and he drove the vehicle alongwith 151 packets of Hashish/Charas and he reached G.T. Karnal Road, Gurudwara, Siraspur via Motihari-Gapalganj-Gorakhpur-Lucknow- Sitapur-Rampur-Bareili-Gaziabad. He reached the spot on 24.04.08 at 10:40 PM. He has also stated that a man aged about 60 years accompanied by two young boys approached him and sat in his vehicle and at that time the officers of DRI apprehended them. He further stated that they were taken to DRI office alongwith the vehicle. They were informed that they can have their search in the presence of a Gazetted Officer or a Magistrate and thereafter the search of the vehicle was conducted, which led to the recovery of 151 packets containing Hashish from the specially made cavity underneath back seat, which was opened by the DRI officials with the help of tools.
28.1 This statement of accused Lal Mohammad has not been retracted except that in his statement under section 313 Cr.P.C., he denied his knowledge that he was carrying contraband in the vehicle. In his statement under section 313 Cr.P.C. in response to question no. 7, he has stated that he was sitting in the Bolero vehicle near bus stand opposite Gurudwara. In response to question no. 8, he denied that the accused Anil Kothari alongwith Mohan Lal Jat and Ramesh had sat in this vehicle, but he admitted that they had come to the spot in a vehicle. He also admitted that they were apprehended when they were having conversation. He also admitted that they were all taken to DRI office from the spot. The answers of an accused in response to questions under section 313 Cr.P.C. is not evidence as such but it can always be taken into consideration in the trial against him. The statement tendered by the accused Lal Mohammad under section 67 of NDPS Act Ex. PW2/D coupled with the statement under section 313 Cr.P.C. provide due corroboration to the statement of PW7 that the accused were SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
40apprehended alongwith Bolero vehicle near the Bus Stand, Gurudwara, Siraspur on 24.04.2008 at 10:40 PM.
29.0 The accused Anil Kothari Jain in his statement, while referring to a person named Giani and told that on 20.04.08, he had received a call from Giani, who gave reference of one Gill, who was earlier known to him. The accused Anil Kothari further stated that on the asking of the said Giani, he had sent his driver Ramesh to the parking area of Hanuman Mandir, Karol Bagh, from where he had picked-up Opel Astra car bearing registration no. DL3CJ4259 and brought the same to Arihant Farm, Khera Kalan. He also stated that he had received the information from the said Giani about the arrival of the drug and as per instructions of Giani, he was to take the delivery of the drugs and store it till the said Giani could take the said consignment from him. He further stated that on 24.04.2008 at 9:45 PM. He alongwith his driver Ramesh and a boy namely Mohan Lal Jat @ Manmohan had reached Gurudwara, Siraspur when at 10:40 PM the vehicle Mahindra Bolero bearing registration no. BR04C7286 reached at the spot. He stated that he had to take the said vehicle to Arihant Farm, but as soon as they sat in the vehicle, they were apprehended by the officers of DRI. He also stated that they were taken to DRI office alongwith the car, where 151 packets were recovered from the cavity of the car which were tested as Hashish. He also stated that Ramesh and Manmohan were not aware that drugs were to be transported in the vehicle. He also stated that he was to be paid Rs. 30,000/- for storing the consignment of Hashish.
29.1 This statement was retracted by accused Anil Kothari on the ground that it was obtained by force as he was beaten by the DRI officials. However, there is nothing on record to show that he was having any physical injury to support his contention that it was obtained under force. The facts which he had stated in the SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
41statement under section 67 of NDPS Act could not be known to any person as they are his personal details and the details of his family and about his occupation. The MLCs of accused Ex. PW19/B dated 25.04.08 and 26.04.08 do not show any fresh injury on the person of the accused. Therefore, in absence of any evidence to show that statement under section 67 of NDPS Act was not made voluntarily and was obtained under force or coercion, despite retraction of the statement Ex. PW7/A, it is admissible. Though it is a weak piece of evidence. The law is settled that the statement tendered under section 67 of NDPS Act can be used as corroborative piece of evidence. In my considered view, the statement of the accused Lal Mohammad Ex. PW2/D coupled with his statement under section 313 Cr.P.C. and the statement of accused Anil Kothari Jain Ex. PW7/A provides support and corroboration to the deposition of PW7 Sh. Gurjit Singh with regard to the apprehension of the accused and the subsequent search of the vehicle on the basis of a search warrant and recovery of 151 packets concealed in false cavity created in a Bolero vehicle.
30.0 The deposition of PW7 finds further corroboration from the statement of PW5 Sh. Pankaj Kumar Singh, who deposed that the information Ex. PW1/A was put up to him by Sh. Madan Singh (PW1) and he had thereafter given direction to Sh. Gurjit Singh for immediate steps. He has also corroborated PW7 that the search warrant for the vehicle make Bolero no. BR04C7286 was also issued by him vide Ex. PW5/A. PW2 also corroborated the statement of PW7 Sh. Gurjit Singh, when he deposed that he had handed over the DRI seal to Sh. Gurjit Singh on 24.04.08 after making an entry in the Seal Movement Register Ex. PW7/Z9. Therefore, sufficient corroboration to the statement of PW7 is received from the documents on the record, from the statement under section 67 of NDPS Act tendered by the accused persons, the statement of SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
42accused Lal Mohammad under section 313 Cr.P.C. and depositions of other prosecution witnesses. PW7 Sh. Gurjit Singh is though the sole witness of seizure of the contraband substance, but his deposition made in the Court is found to be trustworthy and convincing and on the basis of his statement this Court has no hesitation to hold that 151 packets weighing 1 Kg. Each were recovered from the false cavity of the Bolero vehicle no. BR04C7286, in which both the accused were apprehended near the Bus Stand, Gurudwara Siraspur, G.T. Karnal Road. 31.0 Learned counsel for accused Anil Kothari had argued that statement of PW7 Sh. Gurjit Singh alone cannot be relied upon as that would be prejudicial to the accused. He submitted that the statement of PW7 suffers from various discrepancies and also shows lack of a diligent investigation. He submitted that the statement of PW7 in the examination-in-chief and his cross-examination is discrepant on account of the apprehension of the Bolero vehicle and occupants thereof. In his examination-in-chief, he stated that the DRI team had noticed the Bolero vehicle near Bus Stand opposite Gurudwara Siraspur at 10:40 PM, but in cross-examination he stated tht he noticed the vehicle coming from Delhi side, Mukaraba Chowk. Therefore, it is not clear whether PW7 had noticed the vehicle in question while it was parked or it came to the sopt in their presence. The learned Special Public Prosecutor countered this argument stating that what is important, is that DRI officials had spotted the vehicle in question alongwith its occupants from which, thereafter, contraband substance has been recovered. Such minute discrepancy as pointed out by the defence counsel, is of no consequence. It is to be noted that the vehicle has been apprehended near the Bus Stand, Gurudwara Siraspur on a National Highway, where there is always a heavy traffic. The fact that the DRI team had noticed the car and apprehended its occupants, is SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
43already proved beyond doubt from other material evidence on the record and the accused Lal Mohammad has, rather admitted about their apprehension at the Bus Stand, Gurudwara Siraspur. Therefore, this discrepancy pointed out by the defence counsel does not go to the root of the matter.
32.0 The learned defence counsel has also argued that the investigation officer also did not inquire about the route, which was taken by accused Lal Mohammad to arrive at Delhi from Raxol at Nepal border. In reference of this argument the attention needs to be drawn to the statement of accused Lal Mohammad Ex. PW2/D wherein he has explained the route, which was taken by him from Raxol to Delhi.
33.0 The learned defence counsels have also taken objection to the service of Notice under section 50 of the NDPS Act, firstly on the ground that it has not been served properly and secondly, its service on the accused Anil Kothari is found doubtful. It is submitted that as per PW7, they arrived at DRI office and prepared the Notice within 7-10 minutes of arrival. The Notice issued to accused Lal Mohammad Ex. PW7/Z4 bears date 24.04.08 while the Notice issued to accused Anil Kothari Ex. PW7/Z5 bears the dated 25.04.08 under signature, which means that the Notice was not served at the time as claimed by the DRI officials and it has been manipulated later on. So far as the service of Notice under section 50 of NDPS Act is concerned, settled position of law, is that compliance of section 50 of NDPS Act is not required to be made when the search of a vehicle is required to be conducted and compliance of section 50 of NDPS Act, therefore, is insisted upon in case where search of an apprehended person is to be carried out. Reference can be made to the judgment in the case of Madan Lal vs. State of Himachal Pradesh (2003) 7SCC 465.
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
44
34.0 In the present matter, the information (Ex. PW1/A) was
received that vehicle make Bolero bearing no. BR04C7286 would be arriving with narcotic drug. On the basis of this information, PW7 had obtained search authorization under section 41 of NDPS Act and conducted the search of the vehicle, therefore, the compliance with the provision of section 50 of NDPS Act was not mandatory. Still, the Notices have been served upon both the accused and minor discrepancy with regard to the date under the signature of accused Anil Kothari Ex. PW7/Z5 is not of much value. One cannot ignore the fact that the proceedings have been conducted in the middle of the night, the vehicle with occupants was apprehended at 10:40 PM at Gurudwara Siraspur. It must have taken considerable time to arrive at DRI office from the place of apprehension and it could be that by the time the notice was served upon the accused Anil Kothari it was a past mid-night. Therefore, much importance can not be given to this issue.
35.0 The counsel for the accused had also argued that no investigation qua the source of supply and recipient of contraband had been conducted. Further, there was no telephonic conversation between the accused Lal Mohammad and Anil Kothari and there was no investigation with regard to the ownership of the vehicle in question. In this regard, one cannot ignore the fact that accused have been found in possession of narcotic drug. An investigation with regard to the source of supply and recipient would have given more strength to the case of DRI, but in the absence of such investigation, the evidence of recovery of narcotic drug from accused cannot be ignored. So far as conversation between accused Lal Mohammad and Anil Kothari is concerned, one cannot lose sight of the fact that it is not a transaction which is done in a legal manner. The person, who indulge in such activity would take care to conceal identity as well as one's movements. Accused Anil SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
45Kothari in his statement under section 67 of NDPS Act has stated that in this field, they are not known by their real names and they use code names in conversation. Therefore, merely because the accused were not found in possession of their mobile phones showing their conversation with each other, would not be a ground to disbelieve the evidence of prosecution. So far as the investigation with regard to vehicle is concerned, statement of PW21 Sh. Shriniwas Sharma is relevant, who was clerk in District Transport Office, Chapra, Bihar. He had produced the record pertaining to the registration no. BR04C7286 and he informed that the registration no. BR04C7286 is of a Trailer. Thus, his statement has conveyed that the vehicle used by the accused Lal Mohammad was bearing a fake registration number plate. Accused Lal Mohammad in his statement Ex. PW7/D had stated that this vehicle was handed over to him by one Ramu at Raxol. To whom this vehicle, therefore, belongs was not as material for the purpose of this case.
36.0 The learned counsels for accused claim false implication, but were unable to point out any motive on the part of DRI officials to falsely implicate the accused by implanting such a huge quantity of drug. It is not believable that DRI officials would implicate innocent persons in such a huge recovery of narcotic drug when there is no allegation of enmity, ill will or prejudice against them. The DRI officials were not known to any of the accused prior to the incident. In the case of State of Punjab vs. Balwant Rai (2005) 3 SCC 164, the Hon'ble Supreme Court has held that question of implanting a huge quantity of drug does not arise. 37.0 The learned counsel for accused Lal Mohammad has argued that no liability can be attached to the accused as the accused had no knowledge about the concealment of drug in the vehicle. He submitted that in his statement under section 313 SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
46Cr.P.C., the accused Lal Mohammad had admitted about his apprehension with the vehicle alongwith the occupants and how he had traveled from Nepal border to Delhi at the instance of one Ramu. He had completely denied knowledge about the concealment of drug in the vehicle.
38.0 Sections 35 and 54 of NDPS Act raise statutory presumption of conscious possession where the physical possession of contraband has been established. Section 35 of NDPS Act provides that Court shall presume the existence of culpable mental state in any transaction for an offence under this Act, although the accused can lead a defence to prove that he had no such mental state. Section 54 of NDPS Act, inter-alia, provides that the accused is presumed to have committed an offence under the Act in respect of any narcotic drug etc. if the accused fails to account satisfactorily for the possession thereof. In case Chand Singh vs. NCB (supra), it has been held that where physical possession of the contraband has been established then law raises statutory presumption of conscious possession. Once the prosecution has established physical possession of the contraband, then it would be for the accused to rebut the presumption of "conscious possession". It has been held in the case of Dharampal Singh vs. State of Punjab (2010) 9 SCC 608, that once possession is established the court can presume that accused had culpable mental state and have committed the offence. In the case of Madan Lal vs. State of H.P. (2003) 7 SCC 465 also it has been observed that once a possession is established, the person who claims that it was not the conscious possession has to establish it, because how he came to be in possession is within his special knowledge. In the present case not only the possession has been proved by the complainant/DRI, but the circumstances also establish that accused Lal Mohammad had knowledge of concealment of drug in the SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
47vehicle and thus, he was in conscious possession of the same. 39.0 The accused Lal Mohammad has claimed that he was not having any knowledge but except this bald defence he has not placed any material on record documentary or otherwise to rebut the presumption. The circumstance in which he had brought the vehicle could raise suspicion in the mind of even a layman. The accused Lal Mohammad admittedly brought the vehicle from Raxol to Delhi without any passenger and without any goods therein. Apparently there was no indication to the accused why he was coming to Delhi with an empty vehicle. These are the circumstances which could have raised doubt in the mind of the accused. Moreover, when the physical possession has been proved the said presumption can not be rebutted on a bare denial of knowledge.
40.0 The learned counsels for the accused have also assailed the prosecution case on the ground that true representative samples have not been taken and thus, a prejudice has been caused to the accused persons. It was argued that 151 packets have allegedly been recovered, however, instead of taking sample from each packet only 10 samples have been taken by the Intelligence Officer PW7 Sh. Gurjit Singh. The defence counsels have referred to the judgment in the case of Basant Rai vs. State (Supra) and Edward Khimani Kamau vs. NCB (supra) to support their submissions that when the samples have not been taken from each packet, no presumption can be drawn that each packet contained contraband substance. The learned Special Public Prosecutor on the other hand has submitted that the IO divided 151 packets which were of equal shape and size and content into 10 lots. Thereafter, he had taken samples in duplicate from the each of the said lot. Prior to that he had taken a small quantity from each of the 151 packets to test the contents with Drug Detection Kit, which had SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
48tested positive for Hashish. He submitted that there is no illegality committed by PW7 in drawing of representative samples. He has relied on the judgment Chand Singh vs. NCB (Supra). 41.0 PW7 has deposed that after the recovery of 151 packets, he had taken a small quantity from each packet for testing while tested positive for Hashish. Thereafter, he divided 151 packets in ten lots, nine lots of 15 packets and one lot of 16 packets. He had taken the representative samples from each lot after mixing the contents thereof for drawing the samples. There are specific guidelines issued by Narcotic Control Bureau, Ministry of Home Affairs, Government of India and the Standing Order (Instructions) no. 1/88 dated 15.03.1988 prescribes a detailed procedure for taking sample. The procedure so provided permits "bunching" of packages where the number of packages recovered is very large. The standing order no. 1/88 dated 15.03.1988, inter-alia provides that when the packages/ containers seized, are of identical size and weight, bearing identical markings and the contents of each package are of similar colour, texture and give identical results on colour test by the Test Kit, conclusively indicating that packages are identical in all respect, the same may be carefully "bunched" into lots of 10 packages/containers. For sampling purpose, these lots will be considered as one unit. A small quantity of substance will be taken out from each of the packages of the lot, mixed thoroughly to make the mixture homogeneous from which two representative samples will be drawn. The procedure adopted by PW7 in drawing the samples is as per these guidelines.
42.0 In Chand Singh vs. NCB (Supra), a similar argument was raised that samples drawn from the seized contraband were not representative since they were not drawn as per the proper procedure. In the said case, seven gunny bags were recovered containing 20 packets each and one packet containing 28 packets SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
49making 148 packets in all seven gunny bags. NCB official had taken two samples from each gunny bag totaling to 14 samples. The Delhi High Court opined that there was no irregularity in drawing of the samples. It was observed that it is a matter of practice rather than a point of procedure or law. The judgment in the case Basant Rai vs. State (Supra) was discussed and was distinguished. The facts of the present case are more akin to the facts in the case Chand Singh vs. NCB (Supra). Moreover, the samples drawn by the PW7 are as per the guidelines. In the case of Sumit Tomar vs. State of Punjab (Supra), the contents of two bags were mixed and thereafter, the samples were taken. The defence took a plea that it was gross irregularity in drawing the sample. However, the Hon'ble Supreme court did not accept the argument observing that mixing of the contents of two bags did not cause any prejudice. 42.1 Therefore, no prejudice has been caused by the manner in which the samples have been drawn in the present case and the case of the prosecution cannot be thrown on the basis of argument that the samples were not drawn appropriately.
43.0 The samples sent to the CRCL have been examined under the supervision of Sh. S.C. Mathur, Chemical Examiner (PW14). As per the test report Ex. PW14/A issued by Sh. S.C. Mathur and the short analysis report given on the test memo Ex. PW7/Z, the samples had tested positive for Charas. As per the report, the THC (tetrahydrocannabinol) content in the samples I-A to X-A ranged from 6.9% to 7.9%.
44.0 In a case under NDPS Act, the prosecution has to establish that there was no tempering with the seal and the samples till they reached CRCL for chemical examination. The learned counsel for the accused had argued that as per the case of the complainant/DRI, the contraband has been seized on 25.04.08, however, the samples have been sent to the CRCL on 28.04.08 and SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
50the case property was also deposited with the Valuable Godown, Customs House on 28.04.08. Therefore, there are chances of tempering with the case property and the samples and further PW14 has admitted that the facsimile of the seal on the sample was not complete, which also add to the doubt about the tempering of the samples. In this regard, the learned Special Public Prosecutor had argued that panchnama Ex. PW7/3 was prepared on 25.04.08 and the samples of the case property could not be deposited on 26.04.08 and 27.04.08 being Saturday and Sunday. It was argued that New Customs House and the CRCL remain closed on Saturdays and Sundays. He also argued that the case property and samples had remained in the custody of Sh. K.K. Sood, Deputy Director (PW11). During this period, he had kept the samples and the case property with him under lock and key. He also submitted that PW9 Sh. D.B. Sharma, Incharge Valuable Godown, New Customs House has categorically deposed that he received the case property vide deposit memo Ex. PW7/Z2 in intact condition on 28.04.08. PW3 Sh. Sukhdev Singh, a Lab Assistant, CRCL received 10 samples packets brought by PW8 on 28.04.08 and he found the seal on the sample packets in intact condition. He also checked the impression of the seal on the test memos and thereafter he had issued an acknowledgement receipt to Sh. Jagdish Rai, who had brought the samples.
45.0 PW14 Sh. S.C. Mathur, Chemical Examiner, CRCL, also deposed that on 28.04.08, he had received 10 sealed yellow colour envelopes alongwith test memo with a forwarding letter. In the cross-examination, he stated that he had compared the seal with the specimen seal available on the test memo. Although in the facsimile of the seal appearing on the test memo Ex. PW7/Z, some words were missing. However, he stated that in case the seals are not readable they return the sample but in this case, the samples SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
51were not returned on this ground. PW11 Sh. K.K. Sood, was handed over the case property and the samples for safe custody and he deposed that he kept the sample packets with test memo in his room under lock and key for safe custody. He also deposed that on 28.04.08, he handed over case property to Sh. Gurjit Singh (PW7) for deposit at Valuable Godown, New Customs House and on the same date, he sent 10 sample packets with test memo to CRCL through Sh. Jagdish Rai. Nothing adverse has come in the cross- examination of this witness to suggest that there was any tempering with the case property and the samples when they remained in his custody. He stated in the cross-examination that 26.04.08 and 27.04.08 were Saturday and Sunday. Thus, he has given explanation why sample sent on 28.04.908. PW8 Sh. Jagdish Rai had taken the sample packets alongwith test memos and the forwarding letter issued by Sh. K.K. Sood and has deposited the same with CRCL. In the cross-examination, he categorically denied the suggestion that the samples and the documents in the case were tempered with.
46.0 Thus, from the evidence as discussed above, it is clear that there was no tempering with the case property or the samples and the seal there on. It may also be noted that when the case property was produced in the Court, the seals were found intact. 47.0 The accused have been charged for the offence under section 29 of NDPS Act as well which, inter-alia, provides that whoever abets the commissions of offence punishable under the NDPS Act or is a party to a criminal conspiracy to commit an offence would be punishable with the punishment provided for the offence. 48.0 In the present case, the accused Lal Mohammad has transported the contraband in the Bolero vehicle bearing a fake registration number as BR04C7286 from Raxol to Delhi. He was simply carrying of narcotic drug with the direction to handover the SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
52drug to a person, who was unknown to him to deal in narcotic drug. His only role was to transport the drug from Raxol to Delhi, nothing more or nothing less. Similarly, the role assigned to Anil Kothari was to collect the narcotic drug and store, if required. Both the accused were not known to each other. They have not had any meeting of mind and they performed their respective part on instruction of some other persons. Therefore, they can be liable only for the act committed by them. Though incidentally both were found together in the Bolero vehicle in which the narcotic drug was concealed to their knowledge. Section 29 of NDPS Act, therefore, would not be attracted against them. When the DRI officials had apprehended them in the Bolero car no. BR04C7286 they had the knowledge that narcotic drug was concealed in the vehicle. The accused Lal Mohammad had transported the drug with the knowledge. Thus, he was in conscious possession thereof. Accused Anil Khothari approached accused Lal Mohammad knowing that Lal Mohammad had brought the narcotic drug in the vehicle in question of which he was to take possession and transport it further to his Arihant Farm, Khera Kalan and keep in the car make Opel Astra bearing no. DL3CJ4259, which he had collected from the parking lot of Hanuman Mandir, Karol Bagh at the instance of one Giani, who was named by the accused Anil Kothari in his statement under section 67 of NDPS Act Ex. PW7/A. 49.0 It is pertinent to mention here that the nexus of the accused Anil Kothari with the entire transaction is also established from the fact that this Opel Astra Car bearing no. DL3CJ4259 has been recovered from Arihant Farm, subsequent to the statement of the accused Anil Kothari Jain Ex. PW7/A. PW10 Sh. Jyotimon Dethan had conducted the search at Arihant Farm, on the basis of search warrant issued by Sh. K.K. Sood, Assistant Director. He found the car no. DL3CJ4259 at the Arihant Farm premises and the key of the SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
53car was provided to him by one Alkesh Rai, who happens to be relative of accused Anil Kothari Jain. The statement of PW10 in this regard could not be impeached in cross-examination. 50.0 Therefore, the accused Lal Mohammad and Anil Kothari Jain have both indulged in illicit trafficking of narcotic drug as defined in section 2 (viii b) of NDPS Act. Such an illicit trafficking is prohibited by section 8 (c) of NDPS Act. The trafficking of the narcotic drug has been made punishable under section 20 of NDPS Act. Quantity of narcotic drug involved in the present case is more than 151 Kg and as per the Notification specifying the small and commercial quantity under the NDPS Act, 1 Kg. of Charas, Hashish Extract and Tincher of Cannabis is a commercial quantity. Therefore, both the accused have committed the offence under section 20 (b) (ii) (C) of NDPS Act. Both the accused are therefore, held guilty and convicted accordingly.
51.0 Bail bonds furnished on behalf of both accused under section 437A Cr.P.C. stand discharged.
52.0 Let they be heard on the point of sentence.
Announced in the open Court on (Ajay Kumar Kuhar)
04th August, 2016 Special Judge (NDPS)
South District: Saket
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
54
IN THE COURT OF SH. AJAY KUMAR KUHAR,
SPECIAL JUDGE (NDPS), SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
S.C. No. 63A/08
u/s 20 (b) (ii) (C) NDPS Act
Shri Gurjit Singh, ....Complainant
Intelligence Officer,
Directorate of Revenue Intelligence,
New Delhi.
VERSUS
1. Lal Mohamad ....Accused no. 1
S/o Late Sh. Jal Mohamad
R/o V&PO Bela, P.S.-Ramgarhwa,
District Motihari, Bihar.
2. Anil Kothari Jain ....Accused no. 2
S/o Late Sh. Narender Singh Kothari
R/o 1858, Outram Lane,
Kingsway Camp, Delhi.
Computer ID No. : 02403R0887062008
Date of Judgment : 04.08.2016
Date of order on sentence: 10.08.2016
ORDER ON SENTENCE
1.0 Convicts Lal Mohammad and Anil Kothari Jain have been
held guilty and convicted for the offence under Section 20 (b)(ii)(C) NDPS Act, 1985.
2.0 I have heard the submissions on the point of sentence from learned SPP for DRI and the learned counsels for the convicts and the convicts also in person.
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
55
3.0 I have taken into account all the mitigating and
aggravating circumstances of the case.
4.0 Learned counsel for convict Lal Mohammad submitted
that he is an old man, suffering from multiple diseases. He has social responsibilities, three of his daughters are married and one daughter is still unmarried. He has no previous criminal record. He has already been in custody for more than 8 ½ years. Therefore, a prayer for lenient view has been made.
5.0 Learned SPP has submitted that convict Lal Mohammad has been transporting narcotic drugs and no leniency need to be shown to him.
6.0 Learned counsel for convict Anil Kothari Jain has submitted that he is suffering from terminal ailment. He is an old man, more than 65 years of age. He has already been in custody for the last more than 8½ years. He submitted that his wife is a patient of diabetes and severe orthopedic problem. He is having four daughters, one of the daughter is still unmarried. Therefore, a prayer is made for awarding a minimum sentence.
7.0 Learned SPP has prayed for a maximum punishment. She submitted that Section 31-A of NDPS Act is attracted for enhanced punishment. She submitted that the conduct of the convict does not call for any leniency. She informs the Court that convict Anil Kothari Jain had been convicted earlier by a Special Judge, Greater Mumbai and he was undergoing the sentence. He was granted parole and he jumped parole and when he was on parole, he committed this offence. Therefore, the convict does not require any lenient view.
8.0 Convict Lal Mohammad has no previous record of criminal involvement. The record of the case would show that he was simple a carrier of the drugs and in all probabilities, because of his poverty he has indulged in this act. Therefore, keeping in mind SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
56his physical condition, his background , he is awarded the following sentence.
(a) The convict Lal Mohammad is sentenced to 10 years of rigorous imprisonment and further sentenced to
pay a fine of Rs. 1 Lac u/s 20 (b) (ii) (C) and in default of payment of fine, he shall undergo SI for one year. 9.0 So far as convict Anil Kothari Jain is concerned, Section 31 A of NDPS Act is attracted in this case on account of his previous conviction. There has been an amendment in the Section 31 A of NDPS Act vide NDPS (Amendment) Act 2014 whereby in case of subsequent conviction for offences mentioned in clause 1 (a) of Section 31 A of NDPS Act, the accused would be liable for punishment which shall not be less than punishment specified in Section 31 or with death.
10.0 Section 31 of NDPS Act provides that for a subsequent conviction, an accused shall be sentenced to Rigorous Imprisonment for a term which may extend to one and one-half of the maximum term of imprisonment and a fine, which shall extend to one and one-half of the maximum amount.
11.0 Clause (2) of the Section 31 of NDPS Act provides that where a minimum term of imprisonment and minimum amount of fine is prescribed, then a minimum punishment shall be one and one-half of the minimum term of imprisonment and one and one- half of the amount of fine.
12.0 I have considered the prayer of convict Anil Kothari Jain for leniency. His medical condition is apparent from the record. He is suffering from multiple ailments. However, at the same time his conduct of jumping parole and then again committing the same offence is a factor which goes against him.
13.0 Considering all the facts and circumstances of the case, the provisions of Section 31 A of NDPS Act, convict Anil Kothari Jain SC No.63A/08 DRI Vs. Lal Mohammad & Anr.
57is sentenced as under:
(a) The convict Anil Kothari Jain is sentenced to 15 years of rigorous imprisonment and further sentenced to pay a fine of Rs. 3 Lac u/s 20 (b) (ii) (C) and in default of payment of fine, he shall undergo SI for 1½ years for the offence.
14.0 Benefit of Section 428 Cr. PC be given to both the convicts.
15.0 Case property be confiscated to DRI/State and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgment, if any, or the orders of the Appellate Court, as the case may be.
16.0 Copy of the judgment and order on sentence be supplied to all the convicts, free of cost.
17.0 File be consigned to record room after all the necessary compliances.
Announced in the open Court on (Ajay Kumar Kuhar)
10th August, 2016 Special Judge (NDPS)
South District: Saket
SC No.63A/08 DRI Vs. Lal Mohammad & Anr.