Delhi District Court
Cbn vs . Sandeep Kumar on 3 August, 2015
CBN Vs. Sandeep Kumar
IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS:
PATIALA HOUSE COURTS: NEW DELHI
SC No. 34/11
ID No. 02403R0064052011
Central Bureau of Narcotics
Through: Shri M.K. Gupta,
Superintendent,
Central Bureau of Narcotics, New Delhi
Versus
Sandeep Kumar
S/o Sh. Omprakash
R/o Village Johalbulena,
P.S. Adampur, Distt. Jalandhar, Punjab
Date of Institution : 18.08.2011
Judgment reserved on : 25.07.2015
Date of pronouncement : 03.08.2015
JUDGMENT
1. The Central Bureau of Narcotics (herein after referred to as CBN) through its Intelligence officer (IO) Sh. M.K. Gupta has filed the present complaint against the aforementioned accused u/s 23 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act).
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2. Briefly stated, the facts that can be culled out from the assertions made in the complaint and the documents filed therewith are as follows :
(a) On 30/3/2010, Sh. M.K. Gupta, Superintendent, CBN received an information from Sh. S. Murugan, Inspector, CBN Headquarters Office, Gwalior that one parcel bearing no. 3217435723 destined to Spain is lying in the office of Aramex India Pvt. Ltd, Mahipalpur Extension, New Delhi and the parcel is suspected to contain heroin .
(b) Sh. M.K. Gupta, Superintendent discussed the information with Narcotics Commissioner, Gwalior on telephone and prepared a note in this regard. Thereafter on the instruction of Narcotic Commissioner a raiding team consisting of officials of CBN namely, himself, Sh. S.K. Sachdev, Sh. Rakesh Verma, Sh. Kapoor Singh and driver proceeded from CBN office in official vehicle and reached the office of Aramex India Pvt. Ltd. Mahipal Pur Extension, New Delhi. On reaching the said office, Sh. M.K. Gupta Superintendent met Sh. Harihar Thakur and Sh.
Devendra Negi, both employees of Aramex India Pvt. Ltd. and the said officials then produced the suspect parcel. On request of Sh. M.K. Gupta, Superintendent Sh. Harihar Thakur and Sh. Devendra Negi agreed to join as independent witnesses to the search proceedings of the parcel.
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(c) On the parcel sender's name was found mentioned as Sandeep Kumar, Ludhiana, Punjab and the receiver's name was found mentioned as Louis Galo, Barcelona, Spain and the description of goods was also found mentioned as shoes and traditional haar. During investigation it was also revealed that the parcel was sent by M/s Overseas Logistics Pvt. Ltd, Bhikaji Cama Place to Aramex India Pvt. Ltd. The parcel in question was thereafter opened and was found to contain one polythene, on which 'action executive showroom' was inscribed, containing eight pair of ladies chappal having stickers of Sleek Collections and five traditional haars of different designs. Thereafter sole and heel of chappals were cut opened and one khaki colour small polythene sachet was recovered from sole of the each chappal and two small khaki colour polythene sachets were recovered from heel of the each chappal. In all 16 polythene packets were recovered from the sole of chappals and 32 small packets were recovered from the heel of the chappals.
(d) Thereafter all the above 48 polythene packets were weighed and were found to be of 500 grams. All these 48 polythenes were cut open and found to contain brownish powder which on testing gave positive test for heroin. The powder was weighed and its net weight came out to be 460 grams. Two samples of 5 grams each were drawn out from the recovered heroin and were put separately in two polythene sachets and SC No. 34/11 Page No. 3 of 35 CBN Vs. Sandeep Kumar were then further kept in white paper envelopes and the same were given marks A and B and the polythene containing the remaining substance was then converted into a cloth parcel. All the 48 empty polythene sachet were kept in a white polythene sachet and the same was converted into a cloth parcel.8 pairs of ladies chappal and five traditional haars were also packed in the carton of parcel and further sealed in white polythene sheets. The parcels and the samples were duly sealed. Panchnama was also prepared at the spot.
(e) The case property along with samples and test memo was deposited with the Malkhana Incharge. Report under Section 57 NDPS Act with respect to the search and seizure was submitted by Inspector S.K. Sachdev to the Superintendent Sh. M.K. Gupta.
(f) Pursuant to the summon u/s 67 NDPS Act issued to panch witness Sh. Harihar Thakur, he appeared before the CBN office and tendered his voluntary statement stating therein that the parcel in question had been booked through M/s Overseas Logistic Pvt. Ltd. Bhikaji Cama Place, New Delhi and also handed over photocopy of PAN card as ID proof of Sandeep Kumar which was sent by M/s Overseas Logistic Pvt. Ltd. at the time of booking of parcel.
(g) Pursuant to the information given by Sh. Harihar Thakur the officials of CBN reached at the office of M/s Overseas Logistics Pvt. SC No. 34/11 Page No. 4 of 35 CBN Vs. Sandeep Kumar Ltd. and met Sh. Manoj Gupta, Director of M/s Overseas Logistics Pvt. Ltd. and recorded his statement u/s 67 NDPS Act in which he stated that M/s Overseas Logistics Pvt. Ltd. was the franchisee of M/s Aramex Company and his company is also having their own franchises at Ludhiana by the name of Alliance Overseas Logistics and that the parcel in question was received in their office from the abovesaid Ludhiana office for further delivery.
(h) A letter was sent to Income Tax Office for providing the documents submitted by accused Sandeep Kumar at the time of issuance of Pan card and in pursuance to the letter Income Tax Office provided the relevant documents.
(i) Thereafter on 03/04/2010 a raiding team consisting of officials of CBN reached the office of M/s Alliance Overseas Logistics, Dhyan Singh Complex, near bus stand Ludhiana and met Sh. Ramandeep Singh and Sh. Ravi Maurya who informed that the parcel in question was booked by Sandeep Kumar on 29/3/2010 and handed over relevant documents to CBN officials.
(j) On 12/4/2010 on being receipt of information regarding apprehension of Sandeep Kumar by Punjab Police under NDPS Act the matter was discussed with the Narcotics Commissioner and on 13/4/2010 a raiding party reached the PS Division 5, Ludhiana and recorded SC No. 34/11 Page No. 5 of 35 CBN Vs. Sandeep Kumar statement of accused. Sh. Ravi Maurya, employee of M/s Alliance Overseas Logistics was called at the PS and he identified the accused as the person who booked the parcel in question. Thereafter the accused was arrested.
(k) During the course of investigation, statements of various witnesses were recorded and the samples along with test memos were sent to the CRCL, New Delhi for testing. After receiving the report of the Chemical Examiner that the samples gave positive test for diacetylmorphine, the present complaint was filed.
3. On the basis of the material on record vide order dated 21.02.2012, charge was framed against the accused that he had booked the parcel from Ludhiana and had attempted to export heroin through parcel which were seized by the NCB on 31.03.2010 and hence had committed offences punishable under sections 21(c), 23 r/w section 28 of the NDPS Act to which the accused pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case has examined 25 witnesses.
5. PW1 Sh. M.K. Gupta, PW4 Inspector S.K. Sachdev, PW5 SI Rakesh Verma have deposed about the search and seizure proceedings conducted by them at the office of the Aramex India Pvt. Ltd. The information alleged to have been received by PW1 from Inspector S. SC No. 34/11 Page No. 6 of 35 CBN Vs. Sandeep Kumar Murugan, CBN, Gwalior has been exhibited as Ex.PW1/A. The panchnama, site map of the spot, copy of malkhana register regarding deposit of case property have been exhibited as Ex.PW1/B, Ex.PW1/D and Ex.PW1/F respectively. PW1 has deposed that he being Superintendent was also working as Malkhana Incharge in CBN and that in the present case, the entire case property along with the seal used by seizing officer PW4 were deposited with him in the Malkhana and he had made an entry to this effect in the Malkhana register. He has also deposed that samples mark A along with forwarding letter was sent to CRCL through PW5 SI Rakesh Verma. According to this witness he had made relevant entries in the register. The relevant pages of the malkhana register containing the said entries has been exhibited as Ex.PW1/F. The forwarding letter has been exhibited as Ex.PW1/G. The statement tendered by the accused u/s 67 NDPS Act before PW4 Inspector S.K. Sachdev on 13/4/2010 has been exhibited as Ex.PW4/C. PW4 has also deposed that he had submitted seizure report u/s 57 NDPS Act and the same has been exhibited as Ex.PW1/E. Statement of witnesses u/s 67 of NDPS Act have also been duly exhibited as per the deposition of these witnesses. The case property and the samples were also duly produced before the court and were duly proved and exhibited SC No. 34/11 Page No. 7 of 35 CBN Vs. Sandeep Kumar during the depositions of said witnesses. He has proved that on the basis of the chemical and chromatographic examination, the sample in question had tested positive for heroin.
6. PW2 A.K. Maurya, Assistant Chemical Examiner has inter alia deposed that the sample in question deposited with the CRCL, were examined by him under the supervision of Sh. S.C. Surana and the said witness has proved the chemical analysis report prepared by him in this regard as Ex.PW2/C.
7. PW3 S. Murugan, Inspector, CBN, Gwalior has inter alia deposed that on 30/3/2010 he had received an information through email in Hindi stating that "aaj Delhi Aramex company se heroin Spain ko juti me daal kar ja rahi hai and it was also having the reference number "raat ko site par dekh sakte hain". According to this witness he searched the information on internet and the reference number was tracked and thereafter he passed the information to his superior Sh. Sujit Roy, Superintendent, CBN, Gwalior in writing. This witness has further deposed on the direction of Mr. Sujit Roy he passed on the information to Sh. M.K. Gupta, Superintendent Preventive and Intelligence Cell, New Delhi. The information has been exhibited as Ex.PW3/A. SC No. 34/11 Page No. 8 of 35 CBN Vs. Sandeep Kumar
8. PW6 Sh. Ramandeep Singh, owner of the M/s Alliance Overseas Logistics, Ludhiana has inter alia deposed that in March, 2010 some officers from the department of narcotics had visited his office and inquired him about one parcel which as booked by his company. According to this witness after verifying from computer records he informed them that the parcel was booked by one Sandeep Kumar and that the said Sandeep Kumar had also earlier booked three parcels on 25/3/2010 for abroad. This witness has further deposed that he had supplied the photocopy of the invoice, manifest, copy of PAN card of Sandeep Kumar, airway bill to CBN officials. This witness has also deposed that he had tendered his statement Ex.PW4/A.
9. PW7 Sh. Harihar Thakur and PW8 Devender Negi, panch witnesses who are stated to have witnessed the entire recovery proceedings, have supported the version put forward by the Investigating Officer and have identified their signatures on the panchnama. PW7 has also deposed that he had appeared in the office of the CBN and had tendered his statement Ex.PW1/H. These witnesses have also proved original airway bill, photocopy of PAN card of accused, manifest which was received by them from Overseas Logistics Pvt. Ltd, invoice of parcel in question and other documents as Ex.PW7/A to Ex.PW7/F4.
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10.PW9 Ms. Alpna Gupta has deposed that at the relevant period she was posted as Inspector in CBN, Delhi and had recorded the statement of 910 persons namely Ms. Renu Bakshi, Sh. Kuwar Dharam Raj, Sh. Ramesh Chander, Sh. Naval Kishore, Sh. Vikram Singh, Sh. Tej Singh, Sh. Ramesh Gahlot, Sh. Bal Kishan and Ms. Jyoti Rana. The statements of abovesaid persons have been duly exhibited. This witness has further deposed that during investigation she along with other CBN officials visited the house of Sh. Ramesh Gahlot where one Chris was residing and also proved the panchnama Ex.PW9/A in this respect.
11. PW10 Sh. Jai Kishan has deposed that in the year 2010 some officers from narcotics section had visited his house bearing no. 243A, Pole No. 46, Village Nawada and inquired from him whether he had rented his house and showed him a photocopy of PAN card. This witness has further deposed that he had never let out the house to the person whose photograph is appearing in photocopy of PAN card Ex.PW1/K1. This witness has also deposed that he had tendered his statement Ex.PW1/K.
12.PW11 Ms. Vinda Mahadik, Manager, UTI Technology Services has deposed that in April 2010 on receipt of letter Ex.PW1/M from Central Board of Direct Taxes dated 07/04/2010 regarding issuance of one PAN card she had furnished copy of application form of Sandeep Kumar, SC No. 34/11 Page No. 10 of 35 CBN Vs. Sandeep Kumar matriculation certificate, photocopy of electricity bill and rent receipt. These documents have been proved as Ex.PW11/A to Ex.PW11/B3.
13.PW12 Sh. Manoj Gupta, Director M/s Overseas Logistics Pvt. Ltd. has deposed that in the month of March, 2010 some officials from the Narcotics Section had visited his office and inquired about one parcel which was sent by his company to M/s Aramex India pvt. Ltd. This witness has further deposed that his company is agent of M/s Aramex India Pvt. Ltd. and the parcel in question was received by his company from M/s Alliance Overseas Logistics, Ludhiana and was destined to Spain. This witness has also deposed that he had tendered his statement Ex.PW1/I and also identified his signature on the documents which were forwarded to M/s Aramex India Pvt. Ltd. by his company.
14. PW13 Sh. Deepak, Nodal Officer from Vodafone Mobile Services Ltd. has produced before the court, the original application forms along with ID proof pertaining to mobile number 9953202349, 9999514062, 9999514056 and 9711481976 and the same have been exhibited as Ex.PW13/A to Ex.PW13/D. This witness has also deposed that initially the phone number 9711481976 was issued in the name of Mr. Tej Singh and thereafter the same was transferred in the name of Sandeep Kumar on the request of Mr. Tej Singh. The said witness has also produced the SC No. 34/11 Page No. 11 of 35 CBN Vs. Sandeep Kumar CDRs of mobile number 9953202349 and 9711481976 and same have been exhibited as Ex.PW1/Y and Ex.PW13/G respectively.
15.PW14 Ms. Renu Bakshi is the public person in whose name the mobile no. 9953202349 was found subscribed. As per the deposition of this witness she had never applied for the said number at all and though the customer application form Ex.PW13/A has her photograph affixed on it and is also accompanied with a copy of her driving license, as per the deposition of this witness somebody filled up the form in her name and had misused her photograph and driving license.
16.PW15 Sh. Kunwar Dharamraj Singh Jain has deposed that he used to run a mobile shop and used to sell mobile instruments and SIM card/mobile numbers to his customers. As per the deposition of this witness he had issued one mobile number 9953202349 to one Ms. Renu Bakshi. This witness has also deposed that he had tendered his statement Ex.PW1/N in this regard which was reduced into writing by Ms. Alpana.
17. PW16 Sh. Ramesh Chand has deposed that he used to run a mobile shop and used to sell mobile instruments and SIM card/mobile numbers to his customers. As per the deposition of this witness he had issued two mobile numbers in the name of Sh. Naval Kishore and Sh. Vikram. According to this witness at the time of issuance of mobile the customer SC No. 34/11 Page No. 12 of 35 CBN Vs. Sandeep Kumar had submitted the application form along with photographs and ID proof and thereafter he had issued the mobile numbers to those persons. This witness has also deposed that he had tendered his statement Ex.PW1/O in this regard.
18. PW17 Sh. Vikramjeet Kumar @ Vikram is the public person in whose name the mobile no. 9999514056 was found subscribed. As per the deposition of this witness he had never applied for the said number at all and though the customer application form Ex.PW13/C has his photograph affixed on it and is also accompanied with a copy of his driving license, as per the deposition of this witness somebody filled up the form in his name and had misused her photograph and driving license.
19.PW19 Sh. Ramesh Gehlot has deposed that on 15/4/2010 some officers from narcotics section had visited his house and inquired from him about premises no. 8, Om Vihar, Phase IA, New Delhi. According to this witness he had rented the rooms of the said premises to 56 persons and accused Sandeep along with one Sh. Jagdish also used to reside in the said room. This witness has further deposed that the CBN officials had also questioned him about one Chris and he had informed them that he had also rented out one room in another premises WZ72, Om Vihar, SC No. 34/11 Page No. 13 of 35 CBN Vs. Sandeep Kumar Phase IV to Chris. According to this witness he accompanied CBN officials to both the aforementioned premises and in his presence the tenanted room of Sandeep was searched but nothing incriminating was found therein. This witness has also deposed that he had tendered his statement Ex.PW1/S.
20.PW20 Kapoor Singh, Driver has inter alia deposed that on 30/3/2010 on the directions of M.K. Gupta, Superintendent he had left the office of CBN along with the raiding team and had reached at Mahipalpur and had dropped the raiding team at that place and had thereafter remained with the vehicle. This witness has further deposed that after completing the proceedings they cam back at about 12:30 AM. He has proved the relevant entry at page no. 10 of logbook of the vehicle as Ex.PW20/A.
21. PW21 Sh. Neeraj Kumar, Additional Commissioner, Income Tax has deposed that on the request of the officials of CBN regarding verification of one one pan card he had taken out the said inquiry from the computer system of Income Tax Department and had sent a letter Ex.PW1/L to UTI TSL to furnish the relevant information to the Superintendent, CBN.
22.PW22 Sh. Naval Kishore is the public person in whose name the mobile no. 9999514062 was found subscribed. As per the deposition of this witness he had never applied for the said number at all and though the SC No. 34/11 Page No. 14 of 35 CBN Vs. Sandeep Kumar customer application form has his photograph affixed on it and is also accompanied with a copy of his Voter I card, as per the deposition of this witness somebody filled up the form in his name and had misused her photograph and Voter I Card Ex.PW22/A. This witness has also deposed that he had tendered his statement Ex.PW1/P.
23.PW23 Sh. Ravinder Maurya is the employee of Alliance Overseas Logistics, Ludhiana. This witness has deposed that on 3/4/2010, 34 persons had come to his office and asked about a particular parcel of which they intimated him the airway bill number. According to this witness he had checked the records and informed CBN officials that the parcel was booked by one Sandeep Kumar on 29/3/2010. According to this witness he had also informed them that the said parcel had been consigned to the office of Overseas Logistics in New Delhi. This witness has further deposed that on 13/4/2010 on receipt of a call from PS Division no. 5 Ludhiana he reached the PS and identified accused Sandeep as the same person who booked the parcel with him. This witness has also deposed that he had tendered his statements Ex.PW4/B, Ex.PW4/D and Ex.PW1/V.
24.PW24 Sh. Sujit Roy, Superintendent CBN, Gwalior has deposed that on 30/3/2010 Sh. Selva Murugan, Inspector submitted a written SC No. 34/11 Page No. 15 of 35 CBN Vs. Sandeep Kumar information Ex.PW3/A before him. According to this witness he discussed the information with Narcotics Commissioner who directed him to pass over the information to Superintendent, Preventive and Intelligence Cell, Delhi for necessary action.
25.PW25 Sh. Balkishan Gahlot has deposed that he is owner house bearing no. 243A, First floor, Pole No. 46, Village Nawada, Uttam Nagar. According to this witness he had let out the house to Ms. Jyoti Rana W/o Sh. Suryaveer Singh who resided there for about 22.5 years and the rent receipt Ex.PW4/G2 which was shown to him by CBN officials was never issued by him and the electricity bill no. 289526 however pertained to his premises but it was not having his signatures. This witness has also deposed that he had tendered his statements Ex.PW1/T.
26.After the conclusion of prosecution evidence, statement of accused was recorded u/s 313 Cr.PC in which all the incriminatory facts and circumstances appearing in evidence against the accused were put to him, which have been denied by him in toto. He stated that he has been falsely implicated in this case by the CBN officials at the behest of Punjab Police officials.
27. I have heard final arguments which have been advanced by Sh. Satish Aggarwala, Ld. Senior SPP for CBN and Sh. Sanobar Ali, Ld. Defence SC No. 34/11 Page No. 16 of 35 CBN Vs. Sandeep Kumar counsel and I have carefully perused the entire record.
28.As stated above, as per the case of the prosecution, Sh. M.K. Gupta, Superintendent, CBN received an information from Inspector S. Murugan, CBN, Headquarter office, Gwalior to the effect that a parcel bearing no. 3217435723 destined to Spain and lying at M/s Aramex India Pvt. Ltd, Mahipalpur Extension, New Delhi was suspected to be concealing heroin and in pursuance of the same, on the instructions of senior officials a raiding team was prepared which went to the office of M/s Aramex India Pvt. Ltd. where the officials of the said company produced the said parcel before the officials of CBN which on opening was found containing eight pairs of ladies chappal of different designs. One ladies chappal was cut opened from portion of sole and heal and one small polythene pouch was recovered from the sole of the chappal and two small polythene pouches were recovered from the heal of the chappal and in the similar manner remaining chappals were also cut opened and were found containing the same number of packets as above and thus in all, 48 packets were recovered containing brownish powder which on Field Testing Kit gave positive indication for heroin and the net weight of the substance was found to be 460 gm. The said powder was mixed homogeneously and two samples of 5 gm each were drawn and kept in two separate polythene pouches and further kept in two separate white SC No. 34/11 Page No. 17 of 35 CBN Vs. Sandeep Kumar paper envelopes which alongwith the remaining substance was converted into cloth pullandas and sealed at the spot and subsequently deposited in malkhana. Inspector S.K. Sachdev prepared report u/s 57 NDPS Act regarding the recovery of the above contraband and put up the same before Superintendent. The sample was sent to CRCL for chemical analysis and the result of CRCL expert shows that the said sample gave positive result for diacetylmorphine i.e. heroin.
29.Inspector S. Murugan, CBN, Gwalior has proved that on 30.03.2010 he had received secret information that heroin was being smuggled to Spain by concealing in shoes in a parcel bearing reference no. 3217435723 through Aramex courier company, Delhi and this information has been proved as Ex.PW3/A. As far as the recovery of contraband from the said parcel is concerned, the members of the raiding team, PW1 Sh. M.K. Gupta, Superintendent, PW4 Inspector S.K. Sachdev and PW5 SI Rakesh Verma have described the search and seizure proceedings in detail that took place at the spot i.e. at the office of Aramex India Pvt. Ltd, Mahipalpur Extension, New Delhi. Their statement has been corroborated by the panch witnesses i.e. PW7 Sh. Harihar Thakur and PW8 Sh. Devender Negi both of whom are the officials of Aramex India Pvt. Ltd. The fact that after seizure, the case property was produced before the officer empowered u/s 53 NDPS Act in compliance of SC No. 34/11 Page No. 18 of 35 CBN Vs. Sandeep Kumar provisions of 52 and 55 of NDPS Act has been proved by PW1 Sh. M.K. Gupta, Superintendent who was also working as Malkhana incharge in the CBN who made an entry to this effect in the malkhana register and the copy of the same is Ex.PW1/F. PW4 Inspector S.K. Sachdev has proved that report u/s 57 NDPS Act Ex.PW1/E regarding seizure of heroin was submitted to the Superintendent Sh. M.K. Gupta who was his superior. The deposition of PW5 SI Rakesh Verma makes it clear that sample drawn out from the recovered substance in the proper custody was taken to CRCL, Delhi for examination. PW2 Sh. A.K. Maurya, Assistant Chemical Examiner, CRCL has proved that the sample examined by him had tested positive for diacetylmorphine. The testimony of the said prosecution witnesses is trustworthy and believable and nothing has emerged in the crossexamination of the said witnesses which casts doubt on the veracity of their statements. It is further proved that all the mandatory and statutory requirement were complied in respect of the said recovery of contraband.
30.Now the question arises whether the prosecution has been able to prove that it was accused Sandeep Kumar who had booked the said parcel in question.
31. As narrated above, the parcel in question bearing no. 3217435723 was seized by the raiding team consisting of the officials of CBN at the SC No. 34/11 Page No. 19 of 35 CBN Vs. Sandeep Kumar premises of Aramex India Pvt. Ltd. in the presence of panch witnesses Sh. Harihar Thakur and Sh. Devender Negi both of whom were the officials of the said company. The original airway bill which was affixed on the said parcel/carton has been proved as Ex.PW7/A. Copy of the said airway bill which was taken out from the computer system of Aramex India Pvt. Ltd. has been proved as Ex.PW7/B. Copy of PAN card of the consignor which was furnished as identity document is proved as Ex.PW7/C. The manifest which was received by Aramex from Overseas Logistics Pvt. Ltd. and the invoice of the said parcel have been proved as Ex.PW7/D and PW7/E respectively. All the said documents i.e. airway bill Ex.PW7/A, copy of PAN card of the consignor Ex.PW7/C and invoice of the parcel Ex.PW7/E are in the name of Sandeep Kumar and they bear his signatures. The copy of the PAN card Ex.PW7/C also carries his photograph and Permanent Account Number BFLPK8164E.
32.During investigation it was known that Aramex India Pvt. Ltd. had received the said parcel from Overseas Logistics Pvt. Ltd. and the director of the said company Sh. Manoj Gupta has been examined as PW12 who has confirmed the same. He further deposed that the said parcel was received by his company from M/s Alliance Overseas Logistics, Ludhiana, Punjab and he has proved his statement recorded u/s 67 NDPS Act which is Ex.PW1/I. SC No. 34/11 Page No. 20 of 35 CBN Vs. Sandeep Kumar
33.PW23 Sh. Ravindra Maurya @ Ravi, employee of Alliance Overseas Logistics, Ludhiana, Punjab has correctly identified accused Sandeep Kumar in court as the person who had booked the parcel in question with him on 29.03.2010. He has further deposed that the accused had furnished copy of his PAN card as identity document alongwith the said parcel and the said copy is Ex.PW7/E and on the basis of the same, he prepared airway bill which is Ex.PW7/A. It is further deposed that the said parcel was sent to the office of Overseas Logistics, New Delhi for its further transmission. He further deposed that his statement u/s 67 NDPS Act was recorded by the officials which has been proved as Ex.PW4/B.
34.The statement of this witness is corroborated by Sh. Ramandeep Singh, owner of Alliance Overseas Logistics, Ludhiana who has been examined as PW6. The witnesses of the prosecution have been crossexamined at length but there is nothing in their crossexamination to impeach their creditworthiness.
35.In relation to the documents regarding issuance of the said PAN card of accused Sandeep Kumar, prosecution has examined PW11 Ms. Vinda Mahadik, Manager, UTI Technology Services who brought in court the original application form of Sandeep Kumar for issuance of PAN card and copy of matriculation certificate, copy of electricity bill and rent receipt furnished alongwith the said application and these documents SC No. 34/11 Page No. 21 of 35 CBN Vs. Sandeep Kumar have been proved as Ex.PW11/A to Ex.PW11/B3. The original application form for issuance of PAN card was seen and returned by the court. Accused Sandeep Kumar in his statement u/s 313 Cr.PC has admitted his signature on the application form for issuance of PAN card Ex.PW11/A and has further admitted the matriculation examination certificate Ex.PW11/B1 as belonging to him. He has taken a defence that he never applied for any PAN card and in the month of JanuaryFebruary, 2009, he wanted to migrate to England as one of his brother was living there and for this purpose he contacted one agent namely Resham who promised him to get a visa for England and in that regard he used to obtain his signatures on many applications/forms on the pretext that the same had to be submitted to the embassy. In my view, the defence taken by the accused remains unproved as he has not led any evidence to prove the same. The assertions of the accused are bald in nature and the same have not been substantiated by him in any manner.
36.As far as issuance of PAN card of the accused is concerned, statement of one Ms. Jyoti Rana @ Nisha Sharma w/o Sh. Suryaveer Singh has been recorded by the officials of CBN u/s 67 NDPS Act and the same has been proved as Ex.PW1/U by PW1 Sh. M.K. Gupta, Superintendent and PW9 Inspector Alpna Gupta. The said Jyoti Rana admitted in her statement that she came in contact with Sandeep through her SC No. 34/11 Page No. 22 of 35 CBN Vs. Sandeep Kumar acquaintance Rajender Resham and she admitted that she was instrumental in the issuance of the PAN card to Sandeep and she had furnished copy of electricity bill of her previous address in support of the application form of Sandeep for issuance of PAN card. Although the said Jyoti Rana has not been examined in court but the fact that her statement was recorded u/s 67 NDPS Act has been proved by PW1 Sh. M.K. Gupta, Superintendent and Inspector Alpna Gupta. Infact accused Sandeep Kumar in his statement u/s 67 NDPS Act which has been proved as Ex.PW4/C has admitted that he knew said Ms. Jyoti Rana w/o Sh. Suryaveer Singh and he used to work for her and it was she who used to smuggle contraband abroad in parcels through him. He further admitted that he used copy of his PAN card for booking the parcel in question and earlier also he had booked many parcels containing contraband for being sent abroad on the basis of his PAN card.
37. It is settled law that statement of persons recorded u/s 67 NDPS Act by the officials of CBN are admissible in evidence. It has been so held in Kanhaiya Lal Vs. Union of India (2008) 4SCC 688 and M. Prabhulal Vs. Assistant Director of Revenue Intelligence (2003) 3JCC 1631. There is nothing in the crossexamination of the witnesses that the said statement of the accused was recorded under any threat, pressure or SC No. 34/11 Page No. 23 of 35 CBN Vs. Sandeep Kumar coercion and hence the said statement pass the test of voluntariness and truthfulness and hence the same is admissible in evidence. As stated above, in the said statement, accused Sandeep Kumar has admitted his complicity in the commission of the offence in question. It is relevant here to state that for the sake of argument even if we exclude the statement of accused Sandeep Kumar recorded u/s 67 NDPS Act from consideration, there is sufficient other evidence on record also as discussed hereinabove to connect him with the offence in question.
38.It is argued by Ld. Counsel for the defence that accused never applied for PAN card in question and the prosecution has miserably failed to connect him with the said PAN card. It is further argued that the accused never lived at H.No. 243A, First floor, Pole no. 46, Village Navada, Uttam Nagar, New Delhi i.e. the address mentioned on the application for issuance of PAN card of accused and the fact that he never resided on this address has been confirmed by PW10 Jai Kishan who is the landlord of the said premises. This contention is controverted by the Ld. APP for CBN. In my view, there is no merit in this contention of the defence. The accused in his statement u/s 313 Cr.PC has admitted his signature on the application for issuance of PAN card Ex.PW11/A. Although he stated that the same was got signed by the agent to whom he had asked to get his visa made but as stated above, this defence has not been proved on SC No. 34/11 Page No. 24 of 35 CBN Vs. Sandeep Kumar record. Accused Sandeep in his statement u/s 67 NDPS Act has admitted his association with Jyoti Rana and the fact that earlier also he had smuggled the contraband out of India on her instructions and he had used the cop of the PAN card for the same clearly shows that the issuance of PAN card in his name was well within his knowledge. Further the said Jyoti in her statement u/s 67 NDPS Act has admitted that it was she who got her PAN card made by furnishing certain documents like electricity documents and rent receipt of her previous residence. Copy of matriculation certificate filed with his application for issuance of PAN card has been identified by the accused as his certificate, in his statement u/s 313 Cr.PC. From the above, it is clear that the issuance of PAN card in question was well within his knowledge and the manner in which it was issued and in these circumstances, it is irrelevant if he was personally not residing at the said address although the said Jyoti Rawat who got the said PAN card made, has been proved to be residing on the said address as a tenant. Hence this contention of the defence has no merit.
39.It is further argued that the signature of the accused on relevant documents i.e. airway bill, invoice and copy of the PAN card were not in sent to the handwriting expert for comparison with the signature of the accused and hence it cannot be said that the said documents bear the SC No. 34/11 Page No. 25 of 35 CBN Vs. Sandeep Kumar signature of the accused. It is controverted by Ld. SPP for CBN who states that in the circumstances of the case, it was not required and hence the signature in question were not sent to the handwriting expert for comparison. In my view, the court has to see the quality of evidence and not the quantity of evidence. The factum of booking of the parcel by accused Sandeep has been proved by PW23 Ravinder Maurya @ Ravi, employee of Alliance Overseas Logistics, Ludhiana, Punjab who correctly identified the accused in court as the person who had booked the parcel in question with him on 29.03.2010. He further deposed that he could remember about him as he was lame with one leg. His statement has been corroborated by Sh. Ramandeep Singh, the owner of the said courier company who has deposed on the basis of the records. Further the copy of PAN card of the accused which was used as identity document with the said parcel has also got linked with the accused and the issuance of the said PAN card has also been got linked with the accused. In these circumstances, it was immaterial if the signature of the accused on the documents in question were not got compared through the handwriting expert with the signature of the accused.
40.It is further argued by Ld. Counsel for the defence that as per the case of the prosecution itself the CCTV was installed in the premises of Alliance Overseas Logistics, Ludhiana, Punjab but the prosecution did not collect SC No. 34/11 Page No. 26 of 35 CBN Vs. Sandeep Kumar the CCTV footage of the said place of 29.03.2010 showing the entry of accused in their office for booking the said parcel. In my view, there is no merit in this contention as well because PW6 Sh. Ramandeep Singh, owner of the said courier at Ludhiana has deposed in court that at the relevant time, the CCTV in his office was not working. Hence reasonable explanation has come on record that in what circumstances, the CCTV footage have not been taken by the investigating agency and moreover there is sufficient other material on record to connect the accused with the offence and hence this contention has no merit.
41. It is further argued by Ld. Counsel for the defence that in order to show the conduct of the accused, the prosecution has filed copies of some more airway bills of different parcels which were allegedly sent by him but he states that some of the said airway bills are not in his name and they are in the name of one Sanjeev Kumar and further it is stated that some of them are even of the date after his arrest in the present case. This is controverted by Ld. SPP for CBN. In my view, for the purpose of the present case, this court is only limiting to the evidence collected by the prosecution in respect of parcel bearing no. 3217435723 and the documents relevant for the said parcel and the prosecution has not been able to produce much evidence to show that the other parcels in respect of which certain documents have been filed were also sent by accused SC No. 34/11 Page No. 27 of 35 CBN Vs. Sandeep Kumar Sandeep Kumar. The mere fact that there may be some discrepancy of the name and date in the airway bills of the other parcels filed by the prosecution to show the conduct of the accused, it does not mean that the same would be sufficient to see the evidence of the prosecution with doubtful eyes even in respect of the documents pertaining to the parcel in question.
42.It is further argued by the defence that in the circumstances of the case, it was essential that the Test Identification Parade (TIP) of the accused must have been conducted as per rules and the TIP of accused in PS Ludhiana by Sh. Ravinder Maurya, employee of Alliance Overseas Logistics, Ludhiana, Punjab is no identification in the eyes of law. I agree with the contention of Ld. Counsel for the defence that the TIP at the police station by the witness was not proper. However it has consistently been held by Hon'ble Supreme Court in a number of cases that what is substantive evidence is the identification of the accused in court by a witness and that the prior identification in a test identification parade is used only to corroborate the identification in court. Holding of TIP is not the rule of law but rule of prudence. Normally the identification of the accused in a TIP lends assurance so that the subsequent identification in court during trial can be safely relied upon. However, in the absence of such TIP, the identification in court can in given circumstances is relied SC No. 34/11 Page No. 28 of 35 CBN Vs. Sandeep Kumar upon if the witness is otherwise trustworthy and reliable. The law of this point is well settled and succinctly laid down in Ashok Debbarama Vs. State of Tripura (2014) 4SCC 747 and also in Satwantin Bai Vs. Sunil Kumar and Anr. 2015 V AD SC 114. This rule, in my view, would also apply where the TIP conducted during investigation of the case is not proper or is irregular in any manner as has happened in the present case. Hence this contention of the defence is meritless.
43.It is further argued by Ld. Counsel for the defence that the prosecution is heavily relying on the statement of Jyoti Rana recorded u/s 67 NDPS Act but she has not been examined in court and hence the case against the accused is not proved. It is controverted by the Ld. SPP for CBN. In my view, there is no merit in this contention as well. The recording of the statement of Jyoti Rana u/s 67 NDPS Act has been proved by PW1 Sh. M.K. Gupta, Superintendent and PW9 Inspector Alpna Gupta. Moreover, as discussed above, accused Sandeep has also admitted in his statement u/s 67 NDPS Act that he knew the said Jyoti Rana very well and he himself used to work for her and she used to smuggle the contraband out of India through him. In his said statement, accused has admitted his complicity in the commission of the offence and the said statement is admissible in evidence as held in Kanhaiya Lal (Supra) and M. SC No. 34/11 Page No. 29 of 35 CBN Vs. Sandeep Kumar Prabhulal (Supra) and Rehmatullah Vs. NCB (2008) 3 JCC (Narcotics) 174. In view of the above, non examination of the said Jyoti Rana in the present case is not very material in the circumstances of the case.
44.It is further argued by Ld. Counsel for the defence that PW23 Sh. Ravi Maurya, employee of Alliance Overseas Logistics Pvt. Ltd. is the stock witness of the prosecution and hence his testimony in court does not carry much value. This contention is vehemently opposed by the other side. It is argued by Ld. SPP for CBN that this accused was earlier arrested by police in case FIR No. 151/10, PS Division 5, Ludhiana under provisions of NDPS Act and the mere fact that Sh. Ravi Maurya was also a witness in the said case is not a ground to say that he is the stock witness of the prosecution. I agree with the contention of Ld. SPP for the CBN. If accused had booked some other parcel containing contraband through the same Ravi Maurya of Alliance Overseas Logistics, Ludhiana and he is arrested in the said case and the police in the said case examines Ravi Maurya, it cannot be said that he is the stock witness of the prosecution simply because this witness had booked more than one parcels on the asking of accused. As discussed above, the testimony of this witness has been found to be trustworthy and reliable and there is SC No. 34/11 Page No. 30 of 35 CBN Vs. Sandeep Kumar nothing on record to discredit his creditworthiness and hence this contention is also rejected.
45.Ld. Counsel for the defence is relying on authority of Hon'ble Supreme Court titled as UOI Vs. Bal Mukund & Ors. Crl. Appeal No. 1397 of 2007 date of judgment 31.03.2009 to contend that the accused cannot be convicted only on the basis of his statement recorded u/s 67 NDPS Act. The ratio laid down in the said judgment is well settled however this case would not apply to the facts and circumstances of the present case. In the said case it was retracted statement of the accused and the court found out the circumstances that the statement of accused was in the form of interrogation and hence it was not voluntary but in the present case it is not so. As discussed above, the statement of accused in the present case passed the test of voluntariness and truthfulness and hence it is admissible in evidence. At the cost of repetition, it is relevant here to state that even if the statement of accused u/s 67 NDPS Act is excluded from consideration, there is sufficient other evidence on record to connect him with the offence in question.
46.In view of the above, the prosecution has been able to prove beyond reasonable doubt that it was accused Sandeep Kumar who had booked the parcel in question which was recovered by the investigating agency SC No. 34/11 Page No. 31 of 35 CBN Vs. Sandeep Kumar on 30.03.2010 from the office of M/s Aramex India Pvt. Ltd, Mahipalpur Extension, New Delhi which was found containing 460 gm of heroin and it was bound for Spain and he was in possession of the said contraband and he attempted to export the same out of India. Hence he is convicted for the offence u/s 21(c) and u/s 23(c) r/w section 28 of NDPS Act.
47. Bond u/s 437A Cr.PC in the sum of Rs.25,000/ with one surety of like amount has already been furnished on behalf of the accused and the same is on record. It shall remain valid for six months.
48.Let the accused be heard on the point of sentence on 04.08.2015. Announced in the open court on this 3rd day of August, 2015 (Deepak Garg) Special Judge, NDPS New Delhi SC No. 34/11 Page No. 32 of 35 CBN Vs. Sandeep Kumar IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI NCB Vs. Sandeep Kumar SC No. 34/11 ORDER ON SENTENCE Present: Sh. Satish Aggarwala, SPP for CBN.
Convict Sandeep Kumar from JC.
Defence counsel Sh. Sanobar Ali.
Vide judgment dated 03.08.2015, the accused Sandeep Kumar was convicted for the offence punishable u/s 21(c) and u/s 23(c) r/w section 28 of NDPS Act.
I have heard Ld. Counsels for both the sides on the point of sentence.
Ld. SPP for the NCB has argued that since the convict has been convicted for the possession of commercial quantity of heroin which is a narcotic drug within the meaning of NDPS Act and hence he does not deserve any leniency and he should be imposed the maximum punishment.
On behalf of convict, it is stated by Ld. Counsel Sh. Sanobar Ali that he is handicap from one leg and is a young man of 32 years and is unmarried. It is further stated that as per the witness PW2 Sh. A.K. Maurya, SC No. 34/11 Page No. 33 of 35 CBN Vs. Sandeep Kumar Chemical Examiner, CRCL, the purity percentage of the recovered heroin was 1.4% W/W and hence lenient view may be taken by the court.
Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is the imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which crime is done. There is no straight jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
In view of the fact that the convict is a young man of 32 years and is handicap from one leg, imposition of minimum sentence as prescribed u/s 21(c) and u/s 23(c) r/w section 28 of NDPS Act would be sufficient in the present case.
In view of the above, after considering the facts and circumstances, for the offence u/s 21(c) NDPS Act, the convict is sentenced to RI for 10 years and fine of Rs.1 lac. In default, SI for 6 months. Further, for the offence punishable u/s 23 r/w section 28 of the NDPS Act, the convict is further sentenced to RI for 10 years and fine of Rs.1 lac. In SC No. 34/11 Page No. 34 of 35 CBN Vs. Sandeep Kumar default, SI for 6 months. Both the sentences shall run concurrently. Fine not paid. Benefit of section 428 Cr.PC is given to the convict and the imprisonment already undergone by him shall be set of against the substantive period of sentence awarded to him.
Case property is confiscated to CBN and the same may be disposed of after the expiry of the period of the appeal/revision.
Copy of the judgment and the sentence be given to the convict free of cost.
Copy of the order be sent to Jail Superintendent for compliance. Announced in the open court on this 4th day of August, 2015 (Deepak Garg) Special Judge NDPS : New Delhi Patiala House : New Delhi SC No. 34/11 Page No. 35 of 35