Delhi District Court
Ncb vs . Praveen Dua And Ors. on 3 November, 2012
NCB Vs. Praveen Dua and Ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 52/05 (renumbered after transfer as 165/08)
ID No. 02403R0597712005
Narcotics Control Bureau
Through Sh. Manoj Kumar Aggarwal
Intelligence Officer, NCB,
Delhi Zonal Unit, Delhi.
Versus
1. Praveen Dua
S/o Sh. M.M.L. Dua
R/o A85, Vivek Vihar, Phase I,
New Delhi
2. S. Jaya Swami,
S/o Sh. S. Venkayya
R/o 162738/F/4, Malakpet,
Hyderabad, AP
3. Dr. Brij Bhushan Bansal,
S/o Sh. Kanhya Lal Bansal,
R/o B50, Kamla Nagar,
Agra, UP
Date of Institution : 15.10.2005
Judgment reserved on : 31.10.2012
Date of pronouncement : 03.11.2012
SC No. 165/08 Page 1 of 60
NCB Vs. Praveen Dua and Ors.
JUDGMENT
1. The Narcotics Control Bureau (hereinafter referred to as NCB) through its Intelligence officer (IO) Manoj Kumar Aggarwal, has filed the present complaint against the accused persons u/s 21, 22, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as the NDPS Act).
2. The allegations against the accused persons which can be culled out from the averments made in the complaint filed against the accused persons and the documents annexed thereto are as follows:
(a) An information was received from US, DEA through NCB Headquarters that one Dr. Brij Bhushan Bansal R/o. B50, Kamla Nagar, Agra is indulging in large scale of smuggling of prescription drugs falling under the category of Narcotic Drugs and Psychotropic substances to US and other countries. On the basis of the said information, Sh. A. Shankar Rao Zonal Director, NCB prepared a report and constituted teams from the Delhi Zonal Unit for searches at the residence/godown premises of Brij Bhushan Bansal at three locations in Agra and at one location at Delhi i.e. at the godown/premises of of one Praveen Dua, an alleged associate of Brij Bhushan Bansal. The details of three other residence/offices of daughter of Brij Bhushan Bansal at Jaipur which fell under the jurisdiction of Zonal Unit Jodhpur were sent to Zonal Director, SC No. 165/08 Page 2 of 60 NCB Vs. Praveen Dua and Ors.
Jodhpur for necessary action.
(b) It was decided by A. Shankar Rao that a team to be headed by Manoj Kumar, IO was to raid the premises of Praveen Dua at 87Kallu Mohalla, Garhi, East of Kailash, New Delhi and on 19.04.2005 Sh. R.R. Kumar, Superintendent, DZU issued search authorization u/s 41 (2) of the NDPS Act with respect to the said premises in favour of Manoj Kumar Aggarwal.
(c) In pursuance of the search authorization Sh. Manoj Kumar Aggarwal, IO along with other NCB officials reached the abovesaid premises and on the request of IO, two persons namely Sh. Vijay Kumar and Sh. Santosh Tiwari agreed to join the raiding party. Thereafter NCB officials along with two public persons went to the abovesaid premises and the gate of the basement of the said premises was opened by accused Praveen Dua, who was running a courier agency under the name and style of M/s Renaissance Courier Pvt. Ltd. at the said premises. He was shown the search authorization and intimated the purpose of the visit of the NCB officials. He was also issued a notice u/s 50 NDPS Act and was informed that he has a legal right to be searched in the presence of a Gazetted officer or a Magistrate.
(d) As the accused Praveen Dua gave in writing that he did not require the presence of any Gazetted officer/Magistrate, the search of his SC No. 165/08 Page 3 of 60 NCB Vs. Praveen Dua and Ors.
premises was conducted by the NCB team only and the said search resulted in the recovery of 57 cardboard boxes containing narcotics drugs and psychotropic substance i.e. Diazepam 16,58,000 nos. (12.405 kg.), Alprazolam 13,29,000 nos. (1.816 kg.), Zolpidem 3,26,400 nos. (3.264 kg.), Codeine 64,720 nos. (1.8521 kg.). Since the accused Praveen Dua could not produce any documentary evidence for the lawful possession of the said drugs, the same were seized.
(e) The drugs were taken out from the cardboard boxes and put in plastic bags/parcels and given mark A to X. Two strips of ten tablets each were taken out randomly from each parcel and two sample parcel envelopes containing 10 tablets each were prepared from each parcel and were given mark A1,A2 to X1, X2 respectively. Paper slips having the signatures of panch witnesses, the accused and the IO were pasted on the aforementioned parcels and envelopes prepared and pasted on the parcels and envelops and the same were sealed with the seal of Narcotics Control Bureau, DZU3. Test memo and panchnama were also prepared by the IO.
(f) Accused Praveen Dua was thereafter served with summons u/s 67 NDPS Act and he gave a voluntary statement admitting therein the fact of possession of drugs. He also interalia disclosed that the seized material belonged to accused Dr. Brij Bhushan Bansal which was to be sent SC No. 165/08 Page 4 of 60 NCB Vs. Praveen Dua and Ors.
abroad by his courier and that accused Brij Bhushan Bansal used to send the consignment of medicines in cartons to him through one Rajkumar Chauhan of AV Xpress Courier, Agra which he used to receive around midnight personally. Accused Praveen Dua also revealed that he was aware that sending medicines abroad in this manner was illegal and as such he had rented a separate premises at 87, Kallu Mohlla, Garhi, East of Kailash, exclusively for the purpose of storing the packets sent by accused Brij Bhushan Bansal and used to charge him about six times his normal rates. He further admitted that he had received Rs. 65 lacs as his service charges from Dr. Brij Bhushan Bansal by way of thirteen self cheques out of which he got encashed eight cheques amounting to Rs. 40 lacs and the remaining 5 cheques of Rs. 25 lacs were lying with his friend Punit Ahuja. On the basis of the said statement and the recovery of drugs, since the accused appeared to have committed offences under the provision of NDPS Act he was arrested.
(g) The case property along with samples and test memo was deposited with the Malkhana Incharge and on 21.04.2005 the samples along with test memos were sent to the C.R.C.L, New Delhi for testing.
(h) Summons u/s 67 NDPS Act were issued to Sanjeev Behl, one of the other Directors of M/s Renaissance courier Pvt. Ltd. and pursuant to the summons he appeared before the NCB officials and inter alia stated SC No. 165/08 Page 5 of 60 NCB Vs. Praveen Dua and Ors.
that he was not aware that accused Praveen Dua was doing any illegal activity along with Dr. Brij Bhushan Bansal and that no amount allegedly paid by Dr. Bansal was ever deposited in the account of the company.
(i) On 27.04.2005, Mehmood Qureshi, Field Executive of M/s Renaissance Courier Pvt. Ltd. delivered five cheques in the NCB office and informed the NCB officials that on 27.04.2005 itself, Punit Ahuja, a friend of Praveen Dua had come to the courier office and had brought 5 cheques of Rs. 25 lakhs and Sh. Sanjeev Behl had told Qureshi that since the cheques do not belong to the courier company, the same be delivered at the NCB office. Vikas Kumar, IO NCB took over the cheques surrendered by Qureshi.
(j) On 28.04.2005 Rajkumar Chauhan, Proprietor of M/s AB Xpress was summoned by NCB and he inter alia gave a statement before the NCB that he had been sending parcels from Agra to Delhi on behalf of Dr. Brij Bhushan Bansal for the last 810 months to the address of M/s Renaissance Courier Pvt. Ltd, 62, Sant Nagar East of Kailash but for the last one month on the directions of Praveen Dua the parcels, cardboard boxes consigned by Dr. Brij Bhushan Bansal were being delivered at 87, Kallu Mohalla, Garhi, East of Kailash, New Delhi.
(k) Since Dr. Brij Bhushan Bansal was in judicial custody in some other case registered under NDPS Act in Agra, on 28.04.2005, the SC No. 165/08 Page 6 of 60 NCB Vs. Praveen Dua and Ors.
Special Court for NDPS Cases, Agra was approached and permission was sought to examine Dr. Brij Bhushan Bansal in judicial custody. Dr. Bhushan however did not give any statement due to his alleged physical and mental condition.
(l) Since the seized drugs contained the tablets under the brand name PEACE (10,98,100 tablets) and ALP1 (6,98,000 tablets) and it was mentioned that the same were manufactured by M/s Smith and Kenner Pharmaceuticals Pvt. Ltd, the Director of the said company i.e. accused S. Jaya Swami was then summoned u/s 67 NDPS Act. After giving a preliminary statement that he had started M/s Smith and Kenner Pharmaceuticals Pvt. Ltd, Dr. S. Jaya Swami refused to answer further questions and he was thereafter arrested.
(m) It is alleged that while in custody, accused S. Jaya Swami sent a fax message to his factory in Hyderabad giving directions for destruction of evidence.
(n) During further investigation, summons u/s 67 NDPS Act were also served upon one Sh. P. Sai Kumar, Incharge manufacturing of M/s Smith and Kenner Pharmaceuticals Pvt. Ltd. and in pursuance of the said summons, he appeared in the NCB office and gave a statement that one fax message dated 12.06.2005 having one phone no. 091404149083 and SRI SRINIVASA STD, ISD was received on 12.06.2005.
SC No. 165/08 Page 7 of 60 NCB Vs. Praveen Dua and Ors.
(o) On 20.09.2005 and 21.09.2005 summons u/s 67 NDPS Act were also issued to Sh. M. Jayatirth, Manager of M/s Tirumala Offset Printers Pvt. Ltd, Hyderabad and Sh. G. Muralidhar, Chief Executive of M/s Sri Deepti Packing Industries, Hyderabad and in pursuance of the said summons, they appeared in the NCB office and Sh. M. Jayatirth gave a statement that he had printed and supplied cartons to M/s Smith and Kenner Pharmaceuticals Pvt. Ltd. and Sh. G. Muralidhar, gave a statement that he had printed the foils for M/s Smith and Kenner Pharmaceuticals Pvt. Ltd.
(p) Statement of one Atul Pandey, one of the employees of Dr. Brij Bhushan Bansal was also recorded u/s 67 NDPS Act. Summons were issued to both the panch witnesses, pursuant to which they also appeared before NCB and gave their statements. Sh. Ajit Singh, the landlord of the raided premises was also summoned and he tendered a photocopy of the rent agreement before the IO.
(q) All the samples had been sent to CRCL on 21.04.2005 and on 05.07.2005 a report was received from the CRCL that apart from the samples marked A1, B1 and C1, the remaining samples i.e. D1, E1..... X1 had tested positive for either Diazepam, Alprazolam and Codeine. In the said report it was mentioned that since the samples A1, B1 and C1 have not been found sufficient for examination, 30 tablets of each of the said SC No. 165/08 Page 8 of 60 NCB Vs. Praveen Dua and Ors.
samples may be forwarded for examination. The same were also sent and thereafter the present complaint was filed.
3. Based on the material on record, charges were framed against all the accused for having conspired to acquire psychotropic substances and to illegally export the same outside India and therefore for having committed offences punishable u/s 22 (c), 23 r.w.s. 28 and 29 of the NDPS Act.
4. The prosecution in order to prove its case against the accused persons has examined nineteen witnesses.
5. PW1 Sh. A. Shankar Rao has inter alia deposed that at the relevant period he was the Zonal Director, NCB, DZU, R.K. Puram and an information had been received from NCB Head quarters regarding input received from DEA/USA relating to net pharmacy business being conducted from India. He has proved the said information as Ex.PW1/A and has further deposed that on the basis of the said information, teams were constituted from the Delhi Zonal Unit for searches at three locations in Agra and one location in Delhi.
6. PW19 R.R. Kumar, Assistant Commissioner of Security, PCAS New Delhi, has inter alia deposed in the year 2005 he was posted as Superintendent, Delhi Zonal Unit, NCB and that on 19.04.2005 he had been shown a gist of information received by A. Shankar Rao, zonal SC No. 165/08 Page 9 of 60 NCB Vs. Praveen Dua and Ors.
Director, NCB, from the NCB headquarter. As per his deposition he had issued search authorization Ex.PW3/A in favour of Manoj Kumar, IO in respect of the premises of M/s Renaissance courier Pvt. Ltd. at Garhi, Kallu Mohalla, East of Kailash. He has also deposed that on the same day he had issued a departmental seal of Narcotics Control Bureau DZU3 to Manoj Kumar at about 0600 hours and that entry to this effect was made by him in the seal movement register. According to this witness, the said seal was returned to him by Manoj Kumar at 2330 hours on 20.04.2005 by Manoj Kumar and that a corresponding entry with respect to the same was again made by him in the seal movement register. The relevant entries have been exhibited as Ex.PW9/A. He has also inter alia deposed that on 20.04.2005 Manoj Kumar after conducting the raid in the premises had deposited the case property in the malkhana and that he had made an entry in the malkhana register with respect to the same and the said entry has been exhibited as Ex.PW19/B. He has also deposed that he being the superior officer of Manoj Kumar, the arrest reports and the seizure reports were also submitted before him and that he had also sent the samples to CRCL for examination.
7. PW3 Sh. Manoj Kumar and PW5 Sh. P.C. Khandoori the Intelligence Officers, both being members of the team which raided the premises at Garhi, have deposed on similar lines and have described the search and SC No. 165/08 Page 10 of 60 NCB Vs. Praveen Dua and Ors.
seizure proceedings that took place at the raided premises. The search authorization issued in favour of PW3 by Sh. R.R. Kumar, Superintendent has been exhibited as Ex.PW3/A. The notice u/s 50 NDPS Act deposed by this witness to have been issued to accused Praveen Dua has been exhibited as Ex.PW3/B. The panchnama and test memo prepared by this IO have been exhibited as Ex.PW3/C and Ex.PW3/D. The summons issued u/s 67 NDPS Act by this witness to accused Praveen Dua has been exhibited as Ex.PW3/D. Both these witnesses have also deposed that during investigation, Rajkumar Chauhan, Vijay Kumar, Atul Pandey, Ajit Singh, G. Murlidhar, M. Jayatirth, Santosh Tiwari and P. Sai Kumar were summoned u/s 67 NDPS Act and their statements were recorded. The summons issued u/s 67 NDPS Act by PW5 to accused S. Jaya has been exhibited as Ex.PW5/B and the statement tendered by him in pursuance thereof has been exhibited as Ex.PW5/C. PW5 has also interalia deposed that after tendering his part statement accused S. Jaya Swami had refused to give answers to further questions and had refused to sign the statement.
8. PW4 Sh. Ashwini Kumar, IO has inter alia deposed that after going through the statement of accused Praveen Dua, he arrested him on 20.04.2005 at about 2300 hours vide arrest memo Ex.PW2/A. This witness has further deposed that on 21.04.2005 accused was got SC No. 165/08 Page 11 of 60 NCB Vs. Praveen Dua and Ors.
medically examined and he had submitted the arrest report of accused Praveen Dua Ex. PW4/A to the superintendent.
9. PW2 Sh. Vikas Kumar has deposed that he had witnessed the jamatalashi of accused Praveen Dua on 20/4/205 which was conducted vide memo Ex.PW2/A. This witness has further deposed that in pursuance of summons, Sh. Sanjeev Behl, Sh. Mehmood Qureshi and Sh. Santosh Tiwari had appeared before him and had given their voluntary statements Ex.PW2/B, Ex.PW2/C, Ex.PW2/D and Ex.PW2/E respectively and that during his statement Mehmood Qureshi had tendered before him 5 cheques of ICICI bank of 5 lakhs each, Ex.PW2/D1 to D5 and the photocopy of ID proof of M/s Renaissance Courier Pvt. Ltd, Ex.PW2/D6.
10.PW6 Sh. Vijay Kumar, public witness is stated to have witnessed the entire recovery proceedings. Though he has supported the version of the prosecution that it was accused Praveen Dua who was the tenant in the premises B87, Garhi, Kallu Mohalla, East of Kailash, New Delhi and that some tablets were recovered from the said premises, he was cross examined by the Ld. SPP as he has not supported the version of the prosecution that it was the accused Praveen Dua who had opened the said premises and that he was served upon a notice u/s 50 of the NDPS Act before the said premises were searched. He has also deposed that in SC No. 165/08 Page 12 of 60 NCB Vs. Praveen Dua and Ors.
pursuance of the summons served upon him he had appeared in the office of the NCB and had tendered his statement Ex. PW6/A. He has also identified his signatures on the panchnama and other documents prepared at the spot.
11.PW16 Ajit Singh, is, as per the case put forward by the prosecution, the owner of the premises B87, Kallu Mohalla, East of Kailash. He has inter alia deposed that the said premises consists of a ground floor and a basement and that he himself resides on the ground floor and had given on rent the basement to his cousin namely Vijay Kumar (PW6). He has also deposed him that Vijay Kumar had agreed him to pay a rent of Rs. 12,000/ and had told him that he alongwith another person would be doing courier business in the said premises. This witness was also cross examined by Ld. SPP and though in the said crossexamination he admitted that he had given a statement Ex.PW3/W to the NCB officials, he categorically stated that he does not know the accused Praveen Dua or that he was aware that Vijay Kumar had further rented the premises to M/s Renaissance Courier Pvt. Ltd.
12.PW9 Sh. Mehmood Qureshi, has inter alia deposed that in April 2005 on the instructions of PW18 Sh. Sanjeev Behl he had gone to NCB office and handed over an envelope containing five cheques Ex.PW2/D1 to Ex.PW2/D6 to them.
SC No. 165/08 Page 13 of 60 NCB Vs. Praveen Dua and Ors.
13.PW10 Sh. H.K. Pandey, IO has deposed that he had issued summons Ex.PW10/A to Sh. Rajkumar Chauhan, Proprietor of AVX, CAV Express Courier service. PW12 Rajkumar Chauhan has inter alia deposed that he runs a business of courier at Agra and that about 67 years back some officers from the Narcotics Branch had come to his business premises and had checked the records maintained by him. He has also inter alia deposed that he was then summoned to appear in the Delhi office of NCB and asked about one Praveen Dua. According to his deposition he had informed the NCB officers that he used to send parcels from Agra to Delhi but that he does not recall the name of all his customers or of this person in particular. When this witness was confronted with the statement Ex.PW3/J, purportedly tendered by him u/s 67 NDPS Act, he has stated that though it bears his signature and it is in his own handwriting, the contents thereof were dictated by the NCB officials.
14.PW15 Atul Pandey has inter alia deposed that he is doing the business of property dealing in district Menpuri and that in 2005 he was working as Insurance Adviser, Tata AIG Life Insurance Company Ltd. and at that time had come in contact with the accused Brij Bhushan Bansal as he has shown some interest in taking an insurance policy. According to the deposition of this witness in the year 2005 he was summoned by the NCB at their Delhi Office and threatened to write a statement as per their SC No. 165/08 Page 14 of 60 NCB Vs. Praveen Dua and Ors.
dictation. This witness was declared hostile and thereafter cross examined by the Ld. SPP.
15.PW18 Sanjeev Behl, one of the Directors of M/s Renaissance Courier Pvt. Ltd, has inter alia deposed that on 19.04.2005 at about 12:30 PM some NCB officials had come to the office of the aforementioned courier company at 62 Sant Nagar, New Delhi and had enquired about Praveen Dua, with whom he was doing the aforementioned business. According to the deposition of this witness, he informed them that Praveen Dua would be shortly coming and that 15 minutes thereafter Praveen Dua came and both he and Praveen Dua were then taken by the NCB officials to their office at R.K. Puram. He has also stated that for whole of the night on 19.04.2005 he was made to sit in a room separately from Praveen Dua and was merely told to wait. He has also inter alia deposed that on the next morning, 45 officers came and gave a paper and a pen and told him to write his family history on the same and that once he had done so he was then informed that Praveen Dua had been arrested in respect of recovery of some illegal substances and therefore he must also cooperate with the NCB and write a statement as per their dictation. Since he also turned hostile, he was also cross examined by Ld. SPP.
16.PW13 G. Muralidhar has interalia deposed that in September, 2005 he was doing the business of printing of foils/packing material for Pharma SC No. 165/08 Page 15 of 60 NCB Vs. Praveen Dua and Ors.
and that he was working as Chief Executive in M/S Deepti Packing Industry. He has also deposed that in pursuance of the summons served upon him he had appeared in the office of the NCB and had tendered his statement Ex. PW13/A before them. This witness has further deposed that he used to supply printed material for packing various products to M/s Smith and Kenner Pharmaceuticals Pvt. Ltd.
17. PW14 M. Jayatirth has interalia deposed that in September, 2005 he was doing the business of printing cartons. He has also deposed that in pursuance of the summons served upon him he had appeared in the office of the NCB and had tendered his statement Ex. PW14/A.
18.PW7 Sh. Jagdish Chand, Hawaldar and PW8 Shiv Ratan Singh Hawaldar are the NCB officials who had been sent to CRCL with the samples in question. PW7 has inter alia deposed that on 21.04.2005 he had carried 24 sample packets to the C.R.C.L. on the instructions of Sh. R.R. Kumar, Superintendent, NCB. The forwarding letter vide which the sample packets and the test memo were deposited in C.R.C.L. has been exhibited during the deposition of this witness as Ex.PW7/A. PW8 has inter alia deposed that on 17.08.2005 he had carried three sample packets A3, B3 and C3 to the C.R.C.L. on the instructions of Sh. R.R. Kumar, Superintendent, NCB.
SC No. 165/08 Page 16 of 60 NCB Vs. Praveen Dua and Ors.
19.PW11 Sh. D.K. Beri and PW17 Sh. R.P. Meena, Chemical Examiners have proved the chemical analysis report with respect to the samples deposited with the C.R.C.L. and the same has been exhibited as Ex. PW11/A. As per their depositions, the samples in question were examined by PW17 Sh. R.P. Meena under the supervision of PW11 Sh. D.K. Beri and had answered positive for the items covered by NDPS Act.
20.The aforementioned entire evidence was put to all the accused persons and their statements were recorded u/s 313 Cr.PC. In the said statements all the accused persons denied their complicity in the present case. Accused Jaya Swami in his statement has inter alia stated that the tablets allegedly recovered from the premises of his coaccused Praveen Dua or Brij Bhushan Bansal were not manufactured by his company and that he did not even know the said accused persons before his arrest in this case. Accused Dr. Brij Bhushan Bansal in his statement u/s 313 Cr.PC has inter alia stated that he is a qualified doctor and that he used to run his own clinic at Moti Lal Nehru Road and that he used to also stock drugs in his clinic. He has also inter alia stated that he being a doctor is authorized to prescribe Diazepam, Alprazolam, Zolpidem, Nitrazapam and Viagra to his patients if they so require and for that purpose he is also authorized to store the said drugs in his clinic. He has also stated that he had never got his drugs manufactured from his coaccused Jaya Swami nor had he ever SC No. 165/08 Page 17 of 60 NCB Vs. Praveen Dua and Ors.
indulged in the smuggling of drugs to USA and that he had nothing to do with the drugs recovered from the premises of his coaccused Praveen Dua.
21.Accused Praveen Dua in his statement u/s 313 Cr.PC has inter alia stated that on 19.04.2005 when he reached the office of his courier company namely Renaissance Courier (P) Ltd. at 62, Sant Nagar, he found some officials sitting there alongwith his partner Sanjeev Behl and that the said officials asked them to accompany them to their office. He has also stated that on reaching some office at R.K. Puram, he realized that he had been brought to the office of NCB and that he was then detained for the whole of 19.04.2005 and 20.04.2005 in the said office and was forced and threatened to write a statement on the dictation of NCB officials and was made to sign many documents. He has also inter alia stated that he had never taken the premises B87, Garhi, East of Kailash on rent and that he had not been carrying any business therein. According to him he had also written a retraction application mark R1 and had sent the same to the court from the jail.
22.Though on behalf of this accused Praveen Dua, an application was filed for summoning the Nodal Officer of Bharti Airtel Limited alongwith the records of mobile number 9871700721, the said records could not be produced before this court by the concerned Nodal Officer, DW1 as he SC No. 165/08 Page 18 of 60 NCB Vs. Praveen Dua and Ors.
stated that before this court that the said records were no longer available with Bharti Airtel Limited company. The said records were being summoned by the accused to prove that the main Investigating Officer of this case, Manoj Kumar, was not even present in Delhi on the day he allegedly raided the premises B87 and that the record of the mobile number belonging to the IO could have proved his location outside Delhi on the date of the alleged incident.
23.Apart from the aforementioned records, no other witness has been produced on behalf of any of the accused persons. Ld. SPP for NCB, Ms. Mala Sharma and Ld. Defence counsels Sh. Sanjeev Kumar for accused Brij Bhushan Bansal, Sh. Y.K. Saxena for accused S. Jaya Swami and Sh. Ajay Burman for accused Praveen Dua have advanced final arguments. Ld. SPP for NCB and Sh. Burman have also filed written submissions on record.
24.Ld. SPP, Ms. Mala Sharma has mainly relied upon the statement of accused Praveen Dua purportedly tendered by him u/s 67 NDPS Act to contend that the said statement proves that all the three accused persons in conspiracy with each other had intended to export the psychotropic substances outside India. She has further contended that the recovery of the said psychotropic substances from the premises of the courier office of accused Praveen Dua has been proved by the prosecution witnesses SC No. 165/08 Page 19 of 60 NCB Vs. Praveen Dua and Ors.
and that the said recovery alongwith the statement tendered by accused Praveen Dua is sufficient for this court to hold all the accused persons guilty of the offences that they have been charged with. Ld. SPP has also pointed out that the accused persons Brij Bhushan Bansal and Jaya Swami did not tender their statements u/s 67 NDPS Act despite being summoned to do so and that this itself should lead to an inference that they did not wish to cooperate in the enquiry been held by the NCB and that therefore they had something to hide.
25.Ld. Counsels Sh. Sanjeev Kumar and Sh. Y.K. Saxena on the other hand have submitted that the accused persons Jaya Swami and Brij Bhushan Bansal cannot at all be held guilty for there is absolutely no incriminating evidence produced on record by the prosecution, except for a statement tendered by their coaccused Praveen Dua u/s 67 NDPS Act. According to the Ld. Defence counsels, the said statement cannot be made the sole basis for holding the accused persons guilty. Ld. Counsel Sh. Sanjeev Kumar has also contended that the accused Brij Bhushan Bansal had not refused to give a statement but that the NCB officials deliberately did not record his statement as it was not suiting them.
26.Ld. Counsel Sh. Y.K. Saxena has also inter alia contended that M/s Smith and Kenner Pharmaceutical Pvt. Ltd, as per the own case of the prosecution had the license to manufacture Diazepam and Alprazolam SC No. 165/08 Page 20 of 60 NCB Vs. Praveen Dua and Ors.
and that therefore in the absence of any evidence to show that the Director of the said company, Dr. Jaya Swami had conspired with accused Brij Bhushan and Praveen Dua to export psychotropic substances outside India, he cannot be held guilty for any offence under the NDPS Act. He has also pointed out that merely because the name of M/s Smith and Kenner Pharmaceutical Pvt. Ltd. was found inscribed on the drugs allegedly recovered from the premises of the accused Praveen Dua, it cannot be inferred that the said drugs were infact manufactured by M/s Smith and Kenner Pharmaceuticals Pvt. Ltd, more so when the supplier of the foils of the tablets has not supported the case of the prosecution.
27.Ld. Counsel Sh. Ajay Burman has submitted the following main contentions:
(i) The prosecution has not been able to prove at all that the premises from which the tablets in question were recovered was in the control or possession of accused Praveen Dua. He has contended that neither the prosecution has placed on record any rent agreement which shows that accused Praveen Dua is the tenant in the said premises nor has the landlord of the said premises supported the version of the prosecution in this regard. He has also pointed out various contradictions in the deposition of the prosecution witnesses to contend that the version of the prosecution that it was accused Praveen Dua who had opened the said SC No. 165/08 Page 21 of 60 NCB Vs. Praveen Dua and Ors.
premises on the date of recovery is absolutely concocted and false.
(ii) It has also been submitted on behalf of this accused that though the authorization for search was issued for 87, Garhi, East of Kailash, the premises allegedly searched by the prosecution is 87B, Garhi, East of Kailash and that therefore the alleged recovery proceedings conducted in 87B, Garhi, East of Kailash were without any authority and hence any alleged recovery from the said premises was without any jurisdiction. It has also been submitted that the IO Manoj Kumar was not of the rank of an Inspector or above it and that he had no authorization to file the present complaint.
(iii) It has also been pointed out that the main IO PW1 has admitted in his crossexamination that no evidence could be collected by him during the investigation to show that the drugs allegedly recovered from the premises of accused Praveen Dua were to be exported. It has also been pointed out that even otherwise the crossexamination of this witness makes it clear that he had never visited the said premises.
(iv) According to the contention of Ld. Counsel Sh. Burman, the mandatory provisions of section 50 NDPS Act have not been followed in the present case and the notice placed on record, purportedly issued u/s 50 NDPS Act is invalid.
SC No. 165/08 Page 22 of 60 NCB Vs. Praveen Dua and Ors.
(v) Ld. Counsel has also submitted that the prosecution cannot rely on the statement tendered by the accused Praveen Dua for the said statement was never tendered by the accused voluntarily and has also been retracted by him and that the own witness of the prosecution PW18 Sanjeev Behl has clearly proved that the accused Praveen Dua was illegally detained in the NCB office for two days.
28.In support of his contention Ld. Defence counsel has relied upon the following judgments:
(i) 2009 (3) JCC (Narcotics) 124, Dilbagh Singh Vs. DRI of Delhi High Court.
(ii) 2001 (2) JCC (Delhi) 250, Patrick Bruno Wafula Vs. Department of Customs.
(iii) 2005 (1) JCC (Narcotics) 57 Eze Val Okeke @ Val Eze Vs. Narcotic Control Bureau of Delhi High Court
(iv) 2005 (1) JCC (Narcotics) 69, Surendra Singh & Chintu Vs. Union of India of Madhya Pradesh High Court
(v) 2002 (1) JCC 12 Bahadur Singh vs. State of Madhya Pradesh and Anr.
(vi) Union of India Vs. Bal Mukund & Ors. reported in (2009) 12 SCC
161.
(vii) Narayan Vs. State of Rajasthan 2001 Cri. L.J. 1370.
29.In rebuttal, Ld. SPP has pointed out that the owner of 87B, Garhi, East of Kailash in his evidence has made it clear that 87, 87A, 87B, 87C, 87D, 87E are all parts of the same ancestral property namely 87, Garhi and that 20 years ago, the number of the property was 87 only and thereafter his SC No. 165/08 Page 23 of 60 NCB Vs. Praveen Dua and Ors.
forefathers Chacha, Tau, etc had divided the property among themselves and thereafter the numbers 87A, 87B etc were allotted by the MCD to the different divided properties and she has therefore contended that there is no irregularity in the search authorization warrant. She has also submitted that the provisions of section 50 NDPS Act have no relevance in the present case in as much as the contraband has not been recovered from the person of any accused. It is also her contention that there is no material before this court to make any inference that the statement tendered by accused Praveen Dua was given by him under any threat, coercion or pressure and that therefore the same is to be read against him. In support of her contentions, Ld. SPP has relied upon the following judgments:
(i) Rehmatullah Vs. NCB 2008(3) JCC (Narcotics) 174.
(ii) Ravinder Singh @ Bittu Vs. State of Maharashtra 2002(2) JCC 1059 (SC).
(iii) Pon Adithan Vs. Deputy Director, NCB, Madras 1999(2) JCC (SC)
335.
(iv) Emmanuel Uchenna Ezenwosu Vs. NCB & Ors. 2003(1) JCC 417.
(v) Ruiz Guerrero Dolores Vs. Customs 2000(2) JCC (Delhi) 357.
(vi) K.I. Pavunny Vs. Asstt. Collector (1997)3 SCC 721.
(vii) K.T.M.S. Mohd. & Anr. Vs. Union of India 1992 SCC (Cr) 572.
(viii) Arif Butt Vs. State 2005(1) CC Cases (High Court) 54.
30.I have given careful consideration to the submissions made by all the Ld. Counsels and have perused the entire material on record and the judicial SC No. 165/08 Page 24 of 60 NCB Vs. Praveen Dua and Ors.
dicta referred to by the Ld. Counsels.
31.Now as per the case of the prosecution the drugs allegedly recovered from the premises of accused Praveen Dua are Diazepam, Zolpidem, Alprazolam and Codeine Sulphate. Admittedly all the said drugs are schedule H drugs under the Drugs and Cosmetics Act, 1940 and Drugs and Cosmetic Rules, 1945 and except Codeine Sulphate, the remaining three are also included in the Schedule to the NDPS Act. As regards the drug Codeine Sulphate, Ld. SPP has fairly conceded that the Drug Controller General of India has given an opinion to the NCB in some other cases, that the same is not a narcotic drug and is merely a prescription drug. In fact Ld. Defence counsel has also pointed out that during the arguments on the application filed for bail on behalf of accused Praveen Dua before the Hon'ble Delhi High Court, the Investigating Officer of the present case had placed on record before the Hon'ble Court, Drugs Controller (India)'s letter F.No.X11029/34/2005D dated 26.10.2005 wherein the Drug Controller General had opined that Codeine Sulphate is not covered by the NDPS Act.
32.As regards the tablets Diazepam, Zolpidem and Alprazolam, though the same find mention at entry no. 43, 109 and 30 in the Schedule to the NDPS Act, they are not covered in the Schedule to the NDPS Rules. It is relevant to mention therein that a detailed order dated 13/4/2010 on SC No. 165/08 Page 25 of 60 NCB Vs. Praveen Dua and Ors.
charge was passed by the Ld. Predecessor of this court. In the said order it was observed by the Ld. Predecessor of this Court that since the tablets Diazepam, Zolpidem and Alprazolam shown to have been recovered from the premises of accused Praveen Dua do not fall in the Schedule to the NDPS Rules but infact find mention only in the Schedule to the NDPS Act and are also included in the Schedule H under the Drugs and Cosmetics Act, 1940, though their mere possession may not be an offence under the NDPS Act in view of the judgment of the Hon'ble Supreme Court in the case of State of Uttranchal Vs. Rajesh Kumar Gupta 2007 (1) Crimes 6 (SC), the accused persons are still liable to be charged for they had conspired to illegally export the same outside India. The Ld. Predecessor of this court had referred to the judgment of the Hon'ble Supreme Court pronounced in the case titled as D. Ramakrishnan vs. NCB 2009 (3) JCC (Narcotics) 149 SC to hold that in case a person is found to have exported psychotropic substances mentioned in Schedule I to the NDPS Act, without export authorization in terms of Rule 58 of the NDPS Rules he would be deemed to have committed an offence u/s 23 of the NDPS Act.
33.Admittedly till date the aforementioned judicial dicta referred to by the Ld. Predecessor of this court still holds the field. All the Ld. counsels SC No. 165/08 Page 26 of 60 NCB Vs. Praveen Dua and Ors.
before this Court have fairly conceded that as per the law existing today the accused persons will therefore be liable to be convicted if it is found if they have been indulging in export of psychotropic substances covered under the Schedule I to the NDPS Act in terms of the D. Ramakrishan's judgment. Ld. SPP on the other hand, has fairly conceded that in case the prosecution has not been able to prove the fact of export of the said substances and has only been able to prove that the accused persons were found merely in possession of the said psychotropic substances covered under the Schedule I to the NDPS Act but not covered in the Schedule to the NDPS Rules, in terms of the law existing as on date they will not be liable to be convicted under the NDPS Act.
34.Now the material that is being relied upon by the prosecution to prove that all the accused persons had acted in conspiracy to export banned psychotropic substances outside India is as follows:
(a) The recovery of prohibited psychotropic substances from 87, Kallu Mohalla, Garhi, East of Kailash, New Delhi.
(b) The statement tendered by accused Praveen Dua u/s 67 NDPS Act inter alia stating therein that the seized drugs belonged to accused Brij Bhushan Bansal and that Bansal used to send the drugs in cartons through one Rajkumar Chauhan, proprietor of M/s AV Xpress to him and that he had separately rented premises at 87, Kallu Mohalla, Garhi, East of SC No. 165/08 Page 27 of 60 NCB Vs. Praveen Dua and Ors.
Kailash for storing the said consignments and that he then used to further send the said drugs abroad through courier.
(c) The statement tendered by Rajkumar Chauhan, proprietor of M/s AV Xpress, u/s 67 NDPS Act that he used to send parcels on behalf of Brij Bhushan Bansal to accused Praveen Dua and that for the last one month on the directions of accused Praveen Dua, the parcels, cardboard boxes consigned by Brij Bhushan Bansal were being delivered at 87, Kallu Mohalla, Garhi, East of Kailash, New Delhi.
(d) The statement of one Atul Pandey, one of the employees of accused Brij Bhushan Bansal that he used to pack the drugs on the instructions of Brij Bhushan Bansal for forwarding the same to the courier company.
(e) As regards accused Dr. Jaya Swami, the material being relied upon is the fact that the drugs recovered and seized from the premises in question were bearing the brand name PEACE and ALP1, manufactured by M/s Smith and Kenner Pharmaceutical Pvt. Ltd. and that Dr. Jaya Swami was the Director of the said company and further that on being arrested by the NCB, Dr. Swami while in custody sent a fax message to his factory in Hyderabad giving directions for destruction of evidence.
(f) Ld. SPP has also contended that the fact that both accused Jaya Swami and Brij Bhushan Bansal refused to tender their statements u/s 67 SC No. 165/08 Page 28 of 60 NCB Vs. Praveen Dua and Ors.
NDPS Act and cooperate in the enquiry shows that they are guilty in the present case.
35.As narrated hereinabove the only evidence against Dr. S. Jaya Swami is that the name of his company M/s Smith and Kenner Pvt. Ltd. was found inscribed as the manufacturer of the tablets/drugs recovered from the raided premises. This accused in his statement tendered u/s 67 NDPS Act and 313 Cr.PC has stated that his company had the license to manufacture Diazepam and Alprazolam but that the drugs recovered from the premises of accused Praveen Dua had not been manufactured by him. The assertion of the prosecution is however that during investigation, one G. Murlidhar, the Chief Executive in M/s Deepti and one M. Jaya Tirath, Manager of M/s Tirumala Offset Printers had given statements Ex.PW13/A and Ex.PW14/A respectively that they used to print the foils and cartons for M/s Smith and Kenner Pharmaceutical Pvt. Ltd. and that the said statements show that the foils and cartons recovered from the premises of accused Praveen Dua were manufactured by his company only. As regards the said contention, it is to be noted that a perusal of the said statements show that the same do not contain any such assertions. Further PW G. Muralidhar when produced in the witness box in his cross examination has categorically stated that the foils which were shown to him by the NCB officials were not printed by him for M/s Smith and SC No. 165/08 Page 29 of 60 NCB Vs. Praveen Dua and Ors.
Kenner Pharmaceuticals Pvt. Ltd. Similarly M. Jaya Tirth also in his cross examination has categorically stated that when the NCB officials came to his office they were not carrying any cartons of M/s Smith and Kenner Pharmaceuticals Pvt. Ltd. and that he had lastly printed the cartons for M/s Smith and Kenner Pharmaceuticals Pvt. Ltd. in the beginning of the year 2004. In fact no such cartons have been even produced before this court. The deposition of the above witnesses clearly show that the prosecution has not been able to prove at all that the tablets/drugs recovered from the raided premises were infact manufactured by M/s Smith and Kenner Pharmaceutical Pvt. Ltd. for which Dr. S. Jaya Swami was the Director. It is also to be taken note of that though the seized drugs comprised of tablets under the brand name PEACE10 and ALP1, there is no evidence led by the prosecution to prove that the said brand names were used by the company of the accused. In fact one P. Sai Kumar, an employee of the company of this accused, who apparently used to look after the manufacturing process of the said company was examined during investigation and his statement was recorded u/s 67 of the NDPS Act by PW3 Manoj Kumar and in the said statement Ex.PW3/S this person has categorically stated that M/s Smith and Kenner Pharmaceutical Pvt. Ltd. had never manufactured tablets under the brand name PEACE10 and ALP1. Despite the SC No. 165/08 Page 30 of 60 NCB Vs. Praveen Dua and Ors.
aforementioned facts even if for the sake of arguments it is taken that since the drugs seized from the premises of accused Praveen Dua had the name of the company owned by this accused, the same were manufactured by the said company only, there is not a shred of evidence produced by the prosecution to show that this accused had sold illegally the said tablets to Brij Bhushan Bansal with the knowledge that the same were being exported illegally outside India. The accused Praveen Dua has also not stated a word against him in his purported statement given us/ 67 NDPS Act. As regards the sending of fax by this accused to his factory for destruction of evidence is concerned, the fax has not been proved before this court at all and it is also beyond comprehension as to how this accused could send a fax while being in custody of the NCB.
36.Coming now to accused Brij Bhushan, there is no evidence brought on record to show that this accused had anything to do with the premises at Kallu Mohalla from where the alleged recovery of drugs was made. No doubt, the accused Praveen Dua in his purported statement tendered u/s 67 NDPS Act has inter alia stated that the seized drugs belonged to accused Brij Bhushan Bansal, it is well settled law that the confessional statement of a coaccused cannot be used as substantive evidence against other coaccused in the absence of independent corroboration (in particular reference is made to the three bench judgment delivered by the SC No. 165/08 Page 31 of 60 NCB Vs. Praveen Dua and Ors.
Hon'ble Supreme Court in the case titled as Union of India Vs. Bal Mukund & Ors. (Supra), wherein it has been made clear by the Hon'ble Supreme Court that confessional statement of coaccused cannot be used as substantive evidence against other coaccused in the absence of independent corroboration) and therefore unless and until the prosecution has succeeded in bring on record, corroborative evidence against accused Brij Bhushan, the mere statement of accused Praveen Dua cannot be used as substantive evidence against accused Brij Bhushan. Now as per the prosecution, the independent corroborative evidence against accused Brij Bhushan are the statements of Rajkumar Chauhan and Atul Pandey recorded under section 67 NDPS Act. As far as the said statements are concerned, admittedly both Rajkumar Chauhan and Atul Pandey after stepping into the witness box have resiled from the same. Both these witnesses have not supported the case of the prosecution and have turned hostile. Though in his evidence, PW12 Rajkumar Chauhan has admitted that he had been summoned by the NCB officials and that he had written a statement Ex.PW5/J in his own handwriting and had given it to the NCB officials, he has deposed that the said statement had been dictated to him by the NCB officials. He has also stated that though the NCB officials had asked him about the accused Praveen Dua, they had not asked him anything about accused Brij Bhushan Bansal. He has also SC No. 165/08 Page 32 of 60 NCB Vs. Praveen Dua and Ors.
deposed that though he used to send many parcels via courier from Agra to Delhi, he did not remember whether he had sent any parcel to accused Praveen Dua. He has also stated that he had informed the NCB that he does not recall the name of all his customers or the name of this person in particular or the number of parcels sent by him to this person. Similarly PW15 Atul Pandey after stepping into the witness box has completely denied that he was ever an employee of Dr. Brij Bhushan Bansal and that he used to pack 50 packets of 100 tablets each in a day and used to get Rs. 6000/ per month, from Brij Bhushan Bansal. He has also stated that he was forced to give a statement Ex.PW3/B at the behest of NCB officials and that they had threatened him to destroy his career/business if he does not write as per their dictation. Further on a question by Ld. SPP though he has admitted that he did not make any complaint to any higher officers that he was threatened to write a statement, he has stated that he was threatened even to leave Agra and was forced to shift thereafter to Menpuri where he stayed for 45 years and therefore he did not make a complaint against his perpetrators.
37.Despite both these witnesses being declared hostile by the prosecution, it is the contention of the Ld. SPP that the mere fact that the witnesses have stated before the court that they were threatened by the NCB officials and they had written the said statement on the dictation of NCB officials SC No. 165/08 Page 33 of 60 NCB Vs. Praveen Dua and Ors.
cannot be a ground to discard the said statements. She has contended that the said witnesses have been won over by the accused persons and have deposed false facts before this court and have infact committed perjury. It is her submission that the object of incorporating the provisions of section 67 NDPS Act was to ensure that the case of the prosecution does not fail due to the independent public witnesses turning hostile and that the statements recorded u/s 67 of the NDPS Act cannot be equated with the statements recorded by police officers u/s 161 of Cr.PC during investigation and that the NCB officials have been invested with much powers and trust under the provisions of the NDPS Act and the statements recorded by them u/s 67 of NDPS Act are admissible in evidence. Ld. Defence counsels, on the other hand, have contended that there is no independent material brought before this court to prove that the statements tendered by these persons before the NCB officials contained true facts and in the absence of such material, this court cannot give a finding that these witnesses have been won over by the accused and have stated false facts before the court.
38.Though this court completely agrees with the Ld. SPP that the statements tendered by the aforementioned witnesses are admissible in evidence but the question which now requires consideration is that what is the weight that is to be given to the said statements once the authors thereof have SC No. 165/08 Page 34 of 60 NCB Vs. Praveen Dua and Ors.
resiled from the same. No doubt the mere fact that the said witnesses have deposed that they were threatened by the NCB officials to write a statement as per their dictation cannot be a ground to hold that the said statements were tendered under threat or coercion, in the considered opinion of this court even if all the said statements are taken into consideration, the same do not prove the offence with which the accused Brij Bhushan has been charged. A perusal of the statement of Atul Pandey, the person asserted to be the employee of Brij Bhushan Bansal shows that in the said statement, he has inter alia stated that in the year 2003 he had met Dr. Bansal and that Dr. Bansal had informed him that he was in the business of supplying medicines on wholesale basis and that he used to also supply the said medicines outside India. As per the statement given by this person, he used to work in the packing department in the office of Dr. Bansal and that on a daily basis he used to receive a file from the computer department in which the addresses of the consignees to which the medicines had to be sent were mentioned. According to the said statement he used to prepare the packets of medicines and then affix the stickers containing the addresses of the consignees on the same. On a specific question put to him, this person has further stated that in most of the stickers prepared by him, the addresses used to be of outside India. He has further stated that after the SC No. 165/08 Page 35 of 60 NCB Vs. Praveen Dua and Ors.
packets were prepared the same were sent to Raju Chauhan of AVX Courier. Thus this statement makes it clear that as per this witness the packets of medicines prepared by him used to have the stickers containing the addresses of the consignees affixed on them. However as per the deposition of the IO, PW Manoj Kumar, no such stickers were found affixed on the packets seized by him and thus it cannot be stated that the packets prepared by this person and sent through Rajkumar Chauhan were the ones that were recovered from the raided premises. It will also be relevant herein to reproduce some portion of the statement Ex.PW3/J tendered in Hindi by Rajkumar Chauhan u/s 67 of the NDPS Act. The said portion translated in English reads as follows:
"Question. How many parcels of Dr. Brij Bhushan Bansal did you get delivered in Delhi in the last 810 months? Answer. In the last 810 months, I delivered ___ parcels of Dr. Brij Bhushan from Delhi to Agra out of which ___ parcels were delivered in the last 2 months."
The said blanks in the answer given by this person does indicate that the defence is right in contending that this person had infact been dictated his statement by the NCB officials.
39.In view of the aforementioned discussion it is clear that the prosecution has not been able to produce any corroborative incriminating evidence against accused Brij Bhushan, on the basis of which he can be held guilty SC No. 165/08 Page 36 of 60 NCB Vs. Praveen Dua and Ors.
of the offence that he has been charged with. As regards the contention of Ld. SPP that both the accused persons Brij Bhushan and Dr. Jaya Swami had deliberately not given statements u/s 67 NDPS Act and their refusal to cooperate in the enquiry entitles this court to make an adverse inference against them, also cannot be accepted. A perusal of record shows that accused Dr. Jaya Swami in his own handwriting had tendered statement Ex.PW5/C to the NCB and had answered the questions put to him and in the said statement he had categorically denied that he knew accused Brij Bhushan Bansal and that he had been supplying Diazepam and Alprazolam to him. Towards the end of the said statement, it has been recorded by Prem Khandoori that Dr. Jaya Swami refused to give answers to further questions and also refused to sign the statement already given by him. However when PW5 P.C. Khandoori, in his cross examination was asked with respect to the said noting, he has categorically stated "when Dr. S. Jaya Swami stopped giving his further statement I had already put questions about Dr. Brij Bhushan Bansal and manufacturing of Diazepam and Alprazolam to him." In view of such categorical statement made by this witness it cannot be stated that Dr. S. Jaya Swami had not cooperated in the enquiry. The mere fact that he did not give a statement which would have suited the case of the prosecution cannot be made a ground for making an adverse inference against him. SC No. 165/08 Page 37 of 60 NCB Vs. Praveen Dua and Ors.
Similarly, as regards accused Dr. Brij Bhushan Bansal, though he has stated in his statement u/s 313 Cr.PC that he refused to give a statement as he was being forced by the NCB Officials to give a statement as per their dictation, the assertion of the prosecution is that he had refused to answer the questions being put to him by falsely alleging that his physical and mental condition did not allow him to give any statement. PW3 IO Manoj Kumar in his deposition has stated that when he went to record the statement of Brij Bhushan Bansal, he refused to make any statement and that he (PW3) had made a noting in this regard in his file. However in his crossexamination he admits that the said noting is not a part of the judicial record. It is also to be taken note of that Ex.PW3/I, the document prepared by the IO Manoj Kumar, in this regard does not even bear the signature of the Jail Superintendent. A perusal thereof also shows that it is initially recorded therein that accused Brij Bhushan, being a heart patient had requested IO Manoj Kumar to write the statement on his behalf but that subsequently when IO started writing the said statement, Brij Bhushan refused to state anything on account of his mental and physical condition. Thus, on the one hand the IO PW3 Manoj Kumar accepted that the accused being a heart patient was unable to write the statement on his own and therefore agreed to write on his behalf, on the other hand it is being alleged that the accused Brij Bhushan deliberately SC No. 165/08 Page 38 of 60 NCB Vs. Praveen Dua and Ors.
refused to give a statement by falsely stating that his physical and mental condition did not allow him to do so.
40.The aforementioned discussion clearly shows that apart from the statement tendered by the accused Praveen Dua u/s 67 NDPS Act, there is not a shred of evidence produced by the prosecution to support its allegation that it it was accused Brij Bhushan Bansal who used to deliver the drugs to accused Praveen, after getting them manufactured from accused Jaya Swami and that accused Praveen Dua used to then further export the said drugs outside India. Ld. SPP for NCB, Ms. Sharma has however strenuously argued that the said statement itself is sufficient to hold the accused Brij Bhushan guilty of the offence punishable u/s 67 of the NDPS Act. She has pointed out that in the said statement, the accused Praveen Dua has admitted that he received 13 self cheques of Rs.5 lacs each from the accused Brij Bhushan Bansal, as consideration for illegal activity of export and that though he had got encashed 8 of the said cheques, the remaining 5 of the said cheques were still lying with his friend Punit Ahuja and the said cheques have been produced on record by the prosecution. She has also pointed out that in his statement, the accused Praveen Dua has revealed that these cheques were got encashed by him at ICICI Bank branch, Connaught Place where either Dr. Brij Bhushan Bansal or his son Akhil Bansal had an account and that the SC No. 165/08 Page 39 of 60 NCB Vs. Praveen Dua and Ors.
Manager of the said bank one Himanshu Puri used to get the said cheques cleared on the instructions of Dr. Brij Bansal. She has also pointed out that PW9 Mehmood Qureshi, an employee of M/s Renaissance Courier Pvt. Ltd. has deposed before this court that on the instructions of PW18 Sanjeev Behl, he had gone to NCB office and had handed over an envelope containing the five cheques Ex.PW2/D1 to Ex.PW2/D6 to them and that the said five cheques are the same cheques which were referred to by accused Praveen Dua in his statement u/s 67 NDPS Act. With respect to the said contention of Ld. SPP, it will have to be noted that though as per the case of the prosecution, PW9 Mehmood Qureshi had while delivering the said envelope containing the said cheques, also tendered a statement Ex.PW2/B to the NCB to the effect that one Punit Ahuja a friend of accused Praveen Dua had come to the office of Renaissance Courier Pvt. Ltd. and had handed over 5 cheques to him and that when he had in turn handed over the same to Sanjeev Behl, he had told him that since the cheques do not pertain to M/s Renaissance Courier Pvt. Ltd, the same be deposited in the NCB office, PW9 has completely denied the giving of any such statement. Though he was crossexamined at length by SPP for NCB, he has categorically deposed that he had handed over the cheques to the NCB office only on the instructions of Sanjeev Behl and that he does not know any Punit Ahuja nor had the said SC No. 165/08 Page 40 of 60 NCB Vs. Praveen Dua and Ors.
person handed over any such cheques to him. He has also stated that the statement Ex.PW2/B was dictated to him by the NCB officials who had threatened him to write as per their dictation. Further a perusal of the said cheques no doubt show that they are drawn from account no. N.R.E A/c No. 000701080886, ICICI Bank Ltd. and bear the sign 'ABANSAL', there is no evidence led on behalf of the prosecution to show that the said cheques had been issued by accused Brij Bhushan Bansal or by his son Akhil Bansal and that the self cheques were encashed by Praveen Dua. There is no explanation forthcoming from the prosecution at all as to why the aforementioned account was not examined by the Investigating Officer and why was no evidence collected to show that the said the account belonged to the son of accused Brij Bhushan Bansal and it was PraveenDua who had got them encashed, for had the said evidence been collected and proved before the court, both the accused Brij Bhushan and Praveen Dua could have been nailed. However, since the prosecution has not produced any material before this court to show that the accused Praveen Dua had been made payments from the aforementioned account of the son of the accused Brij Bhushan, either an inference will have to be drawn that the investigating agency was unable to collect any such evidence or the evidence collected by it was not favourable to its case. In either of the situations, in the absence of any such evidence, the accused SC No. 165/08 Page 41 of 60 NCB Vs. Praveen Dua and Ors.
Brij Bhushan Bansal cannot be now therefore held guilty of conspiring with accused Praveen Dua for exporting psychotropic substances outside India only on the basis of the statement of his coaccused Praveen Dua.
41.Now if this court comes to the conclusion that it cannot be stated that the prosecution has been able to prove that accused Brij Bhushan Bansal and Dr. Jaya Swami had conspired to illegally export the drugs outside India, the question remains whether the accused Praveen Dua can be alone held guilty for exporting the psychotropic substances illegally outside India. In the considered opinion of this court there is no direct evidence by the prosecution to show that the tablets/drugs allegedly recovered from the premises in question were meant for export purposes. It has been rightly pointed out by Ld. Counsel Sh. Burman that PW3 IO Manoj Kumar has categorically admitted in his crossexamination that he did not find any evidence in the raided premises to show that the recovered goods were stored there for the purposes of export. He has categorically admitted that no airway bill/shipping documents like bill of lading, etc, the names of the consignor/consignee or the name of the country to which they had to be exported was found at the premises in question. The contention of Ld. SPP that because the accused Praveen Dua was in the courier business, the drugs found at his premises could have been only for the purpose of exporting and therefore the accused Praveen Dua must be held SC No. 165/08 Page 42 of 60 NCB Vs. Praveen Dua and Ors.
guilty for exporting psychotropic substances outside India more so, in view of the facts admitted by him in his statement u/s 67 NDPS Act, is not an argument that can be accepted. First of all there is no evidence whatsoever collected by the investigating agency that prior to the recovery of the drugs from the premises of Praveen Dua he had even earlier exported the drugs outside India either on his own or through his company M/s Renaissance Courier Pvt. Ltd. In such view of the matter it can hardly be held that the mere possession of drugs by Praveen Dua in the premises in question leads to the only inference that they were to be exported. Secondly, it also cannot be lost sight of that the defence is right in contending that the prosecution has not been even able to prove beyond reasonable doubt that the premises from where the drugs in question have been recovered were under the control and possession of accused Praveen Dua. As narrated hereinabove during the evidence led by the prosecution, the landlord of the premises PW Ajit Singh has not stated a word against accused Praveen Dua. No doubt, he has deposed that his cousin Vijay Kumar to whom he had given the premises on rent had informed him that he alongwith another person will be doing business of courier in the said premises, he has also categorically deposed that when the basement was raided it was Vijay Kumar who was in possession of the basement and that he had seen him only bringing SC No. 165/08 Page 43 of 60 NCB Vs. Praveen Dua and Ors.
boxes in the three wheeler to the said basement and unloading the said boxes in the basement. He has also categorically deposed that he had never seen accused Praveen Dua at the said premises and that he was not aware that the premises had been subletted by Vijay Kumar to M/s Renaissance Courier Pvt. Ltd, the company of accused Praveen Dua. Further though this witness has admitted that he had supplied to the IO, a copy of the rent agreement, Ex.PW16/A, entered between him and Vijay which recites that the premises had been further let out by Vijay Kumar to M/s Renaissance Courier Pvt. Ltd, a perusal of the said document shows that it is merely a photocopy and is not signed by Praveen Dua. This document was infact initially marked as mark A and not exhibited during the deposition of PW3 IO Manoj Kumar and was only exhibited in the statement of PW16 Ajit Singh and at that time also Ld. Defence counsel had objected to its exhibition on the ground that it has not been proved. It is to be noted that though Ajit Singh has deposed that he was in possession of the original of the said document, he has not produced the same. It also cannot be ignored that there are two dates below the signature of Vijay one 20.03.2005 (or perhaps 20.04.2005 since there is an overwriting and it is not clear whether the month of the date is 3 or 4) and 02.03.2005. The contents of the said document inter alia are that SC No. 165/08 Page 44 of 60 NCB Vs. Praveen Dua and Ors.
Vijay Kumar is reciting that on 04.03.2005, he got the firm M/s Renaissance Courier Pvt. Ltd. the basement of 87B, Garhi on rent from Ajit Singh. Now if the date of execution of this document is taken to be 02.03.2005 then it is not understandable as to how it could contain a recital that the premises had already been given on 04.03.2005. The other date as already mentioned has a cutting thereon. The contention of the Ld. SPP is that the said document has not been prepared by the NCB officials and it was either Ajit Singh or Vijay who could have clarified the appearance of the said two dates and that it was upon the defence to have questioned the said two witnesses in this regard. In fact the defence has questioned both Ajit Singh and Vijay Kumar in this regard. According to PW Ajit Singh, his real brother Ajay had written the contents of original of Ex.PW16/A and that he does not remember the date on which he had come into possession of the original of Ex.PW16/A but that it was written at the time when he had given the premises on rent to Vijay. He is thus unable to shed any light on the two dates mentioned on the said document. PW6 Vijay Kumar when questioned by the defence, has categorically stated that he had signed this document on 20.04.2005 in the NCB office on the asking of the NCB officers. Now if the said statement of this witness is taken to be correct, then clearly Ex.PW16/A will have to be held a document manipulated by the NCB SC No. 165/08 Page 45 of 60 NCB Vs. Praveen Dua and Ors.
itself. Further even otherwise the wordings of the said document while referring to purpose of letting it out to M/s Renaissance Courier Pvt. Ltd. records 'is firm ney humey kapdey ka saman export karney ke barey me bata kar humse kiraye par ye basement liya' show that this document could not have been executed at the time of giving it on rent for then there would have been no occasion to record that the firm had taken the same on a representation that it will use it for the purpose of export of cloth. It also cannot be lost sight of that though the statements of both Vijay Kumar and Ajit Singh Ex.PW6/A and PW3/W respectively, are purportedly shown to have been tendered by them in the NCB office on 14.10.2005, both of them have categorically deposed that they had not gone to the office of NCB on 14.10.2005 to tender any statement. PW6 Vijay Kumar has categorically stated that the statement Ex.PW6/A was signed by him for only because the NCB officers had told him that they had prepared his statement and that he should sign it and that he had signed it on 20.04.2005 and not on 14.10.2005. Similarly PW16 has stated that he had never gone to the office of NCB and that the NCB officials had come to his residence to record his statement and that though his signature appear on Ex.PW3/W, he does not know who wrote the same. PW3 IO Manoj Kumar was categorically examined by the defence with respect to the dates on which the said two witnesses were SC No. 165/08 Page 46 of 60 NCB Vs. Praveen Dua and Ors.
summoned by the NCB and the dates on which their statements were recorded. This witness in his crossexamination has deposed that after the search was over he had issued notice to Vijay Kumar directing him to appear before him a day after the search. He was then confronted with the summons purported to have been issued to Vijay Kumar Ex.PW3/Q which records that the same have been issued on 10.10.2005 (and not on the date of the search) directing him to appear in the NCB office on 19.10.2005. The witness is unable to explain at all as to how the statements of Vijay Kumar and Ajit Singh are shown to have been recorded on 14.10.2005, when the summon issued to Vijay Kumar shows that he had been directed to appear on 19.10.2005 and that no summons at all were issued to Ajit Singh. He has very evasively deposed that he does not remember whether both Ajit Singh and Vijay Kumar had appeared on the same day i.e. 14.10.2005. The aforementioned depositions not only create a serious doubt on the assertion of the prosecution that it was accused Praveen Dua who was the tenant of the raided premises, the same also show that the Investigating Officers have manipulated the dates of various documents as per their own convenience.
42.The other contention of Ld. SPP that in fact it was accused Praveen Dua who was found in actual possession of the basement in question is also SC No. 165/08 Page 47 of 60 NCB Vs. Praveen Dua and Ors.
not supported by the evidence on record. As per the case put forward by the prosecution, on 19.04.2005 when the raiding party had reached the basement in question, the same was opened by accused Praveen Dua in the presence of two public persons namely Vijay Kumar and Santosh Tiwari. Now admittedly the prosecution has not been able to produce Santosh Tiwari in court and Vijay Kumar has not supported the case of the prosecution in this regard. He in fact has deposed that on 19.04.2005, he was called by the owner of the said premises and that when he had reached the premises some officers including one Mr. Ashwini (he does not at all name Manoj Kumar, the main Investigating Officer) were present and the said officers had first asked from him for the keys of the premises B87, Garhi, Kallu Mohalla. He has further deposed that when he told them that he was not having its keys, the landlord of the said premises namely Ajit Singh brought the keys of the premises and that only thereafter the NCB officers could enter the said premises. Ajit Singh on the other hand has stated that he was not even present when the premises in question were raided. In view of the said inconsistent version of the prosecution witnesses there is no evidence before this court to draw any inference that either accused Praveen Dua was present in the premises or that he was the person in control of the premises as being its tenant. PW Vijay was crossexamined by Ld. SPP at length but he stuck SC No. 165/08 Page 48 of 60 NCB Vs. Praveen Dua and Ors.
to his stand that the door of the basement was not opened by Praveen Dua. He has also stated that Santosh Tiwari (the other panch witness shown by the NCB to have witnessed the recovery proceedings) had not accompanied the NCB officers to the basement of premises in question. In his crossexamination he has stated that he cannot understand or read or write English and that he therefore does not know what are the contents of the panchnama Ex.PW3/C and Ex.PW3/C1. He has also stated that he had signed on all the documents in the NCB office on 20.04.2005. He has also stated in his crossexamination that when he was called in the morning of 20.04.2005 in the NCB office, the officers had already detained Praveen Dua in the said office and Praveen Dua was also made to sign on Ex.PW3/C and Ex.PW3/C1 in the NCB office.
43.In view of such statements made by Vijay Kumar, the panch witness and the star witness of the prosecution, it cannot be held at all that prosecution has been able to prove beyond reasonable doubt that recovery of drugs was made in the manner alleged by it. It is also relevant to mention herein that despite a query by this court as to why the cardboard boxes in which the drugs were allegedly found stored in the raided premises were not seized and produced before this court, there is no explanation forthcoming from the prosecution. PW3 Manoj Kumar Aggarwal was specifically questioned in this regard by the defence and SC No. 165/08 Page 49 of 60 NCB Vs. Praveen Dua and Ors.
except for stating that he had not taken into possession the cardboard boxes, he has not given any explanation as to why he had not done so. In fact, the kind of answers that this witness has given in his cross examination with respect to the description of the raided premises, one does wonder whether he actually visited the raided premises. Despite the facts that as per the deposition of its owner, the premises in question only consisted of ground floor and a basement and the owner resided on the ground floor, this IO does not remember how many storeys or how many basements were there in the said premises and whether the landlord was residing in the same premises or not. He could not tell whether the gate of the basement was from the gali or was from inside the house or the width of the gali in front of the premises in question. He could not even tell the approximate number of stairs that were existing for landing in the basement. In view of such kind of answers given by the main Investigating Officer, the contention of the defence that he was not even present in Delhi on the date of the raid of the premises in question and in fact was in Agra, cannot be brushed aside lightly. It is also very shocking to note that PW1, A. Shankar Rao, the Zonal Director of NCB who assertedly had appointed Manoj Kumar IO to conduct a raid at 27, Garhi when questioned with respect to the presence of Manoj Kumar IO in Agra at the time of the search of the premises in Delhi has merely stated SC No. 165/08 Page 50 of 60 NCB Vs. Praveen Dua and Ors.
that he does not recall if Manoj Kumar IO was present in Agra at the time of search of the premises. Ld. SPP has been unable to explain why such a high ranked official of the NCB could not emphatically state that Manoj Kumar IO was in Delhi only at the time of the premises in question and why then the contention of the accused Praveen Dua that the recovery of drugs had already been made by the investigating officials at Agra were planted upon this accused to falsely implicate him should be ignored.
44.It also cannot be lost sight of that PW18 Sanjeev Behl who was the director in the courier company M/s Renaissance Courier Pvt. Ltd. has deposed in his examination in chief itself that Praveen Dua was picked up by the NCB officials on 19.04.2005, in his presence from the premises 62, Sant Nagar, New Delhi. He infact has also stated that he was also asked by the NCB officials to accompany them to the office of NCB and that he was also detained in the office of NCB for the entire night of 19.04.2005. Though this witness was crossexamined by Ld. SPP, no suggestion has been put to him specifically that he has deposed falsely in this regard. On the contrary, it was suggested to him that when he had stayed in the office of NCB, he was supplied with food and water and had not been beaten by the officials of NCB. In other words, the testimony of this witness that he was detained in the NCB office on the night of 19.04.2005 is being accepted by the prosecution. Even otherwise certain SC No. 165/08 Page 51 of 60 NCB Vs. Praveen Dua and Ors.
documents filed on record by the prosecution itself support the deposition of this person in this regard. It has to be taken note of that as per the deposition of the IO and the version of the prosecution, firstly the statement of the accused Praveen Dua u/s 67 of the NDPS Act was recorded and only thereafter the other director of the company M/s Renaissance Courier Pvt. Ltd, Sanjeev Behl was summoned to appear before the NCB. A perusal of the summons Ex.PW3/D deposed to have been issued by the IO PW3 Manoj to accused Praveen Dua shows that vide the said summons this accused was directed to appear before IO Manoj at 02.00 PM on 20.04.2005. Further in para 2(xi) of the complaint it is asserted that in pursuance of the summons issued to Sanjeev Behl, he appeared before the NCB officials to tender his statement on 21.04.2005. In other words as per some material on record, the statement of the accused Praveen Dua was recorded at 02.00 PM on 20.04.2005 and the statement of Sanjeev Behl was recorded on 21.04.2005. However a perusal of the summons Ex.PW9/B deposed to have been issued by PW4 Ashwini Kumar to Sanjeev Behl shows that it is dated 19.04.2005 and the said person has been directed to appear before the NCB on 20.04.2005 at 02.00 PM. In fact PW2 Vikas Kumar, the officer who has recorded the statement of Sanjeev Behl has deposed that this person gave two statements before him one on 20.04.2005, Ex.PW2/B and another on SC No. 165/08 Page 52 of 60 NCB Vs. Praveen Dua and Ors.
21.04.2005, Ex.PW2/C. First of all the prosecution has been unable to explain how Sanjeev Behl was also issued a summon on 19.04.2005 itself, by which time the investigating agency had no knowledge of his existence. Secondly why the fact that this person was summoned twice, does not find mention in the complaint and the complaint only mentions that he was summoned once and that too for 21.04.2005. Even if the explanation of the Ld. SPP that the non mentioning of the recording of statement of Sanjeev Behl on 20.04.2005 in the complaint is a mere inadvertent error, it is not understandable as to why this person was not arrested on 20.04.2005 itself when he admitted being a Director in the company M/s Renaissance Courier Pvt. Ltd for on this date he had not stated that he was not aware of Brij Bhushan Bansal or the parcels sent by him. As per Ex.PW2/B, on 20.04.2005, Sanjeev Behl had informed the NCB that he alongwith accused Praveen Dua had started the company M/s Renaissance Courier Pvt. Ltd. in 1987 from 62, Sant Nagar, East of Kailash and that the said company used to send parcels and documents to various countries. Interestingly, it is written in Ex.PW2/B that after giving the said information Sanjeev Behl wrote that he was not feeling well and that he may be allowed to give his statement the next day and that he shall be present again at 10.00 AM on 20.04.2005 and the date 20.04.2005 has then been cut to read 21.04.2005. The said person then as SC No. 165/08 Page 53 of 60 NCB Vs. Praveen Dua and Ors.
per the prosecution is allowed to leave the NCB office and then on 21.04.2005 he comes before them and states that the premises at 87, Kallu Mohalla, Garhi, East of Kailash also belongs to the company but that the said godown was exclusively looked after by Praveen Dua and that he does not know any Brij Bhushan Bansal or the parcels received from him at the said premises. In the considered opinion of this court, the way the aforementioned two statements have been shown to be written (particularly the cutting of the date 20.04.2005) does support the statement of Sanjeev Behl that he was confined at the NCB office during the night of 19.04.2005 and was then allowed to go on 20.04.2005 after he wrote the statements dictated by the NCB officials.
45.Despite the aforementioned lacunae in the case of the prosecution, Ld. SPP for NCB has contended that the statement tendered by accused Praveen Dua u/s 67 NDPS Act can be made the sole basis for holding him guilty. She has relied upon various judgments of the Hon'ble Supreme Court (the list of which has been given in para 30 of this judgment) to contend that the said statement was voluntarily tendered by the accused Praveen Dua and that there is no material before this court to make any inference that the said statement was given under threat or coercion and that therefore the accused Praveen Dua can be held guilty of SC No. 165/08 Page 54 of 60 NCB Vs. Praveen Dua and Ors.
the offence that he has been charged with on the basis of the said statement. Ld. Defence Counsel, Sh. Ajay Burman for accused Praveen Dua, on the other hand, has contended that the evidence on record clearly shows that accused Praveen Dua was coerced and threatened to write the said statement as per the dictation of NCB officials and that the said statement was retracted by him at the first opportunity available to him. He has referred to the said statement extensively to contend that it is not imaginable that an accused would be able to write such a statement on his own. He has also submitted that once the defence has been able to show that the conduct of the Investigating Officials in the present case is not above board and that they have indulged in manipulation of documents, this court should not believe them when they state that the accused Praveen Dua had tendered the said statement voluntarily. Ld. Defence counsel has also pointed out that in the purported statement the accused Praveen Dua has nowhere admitted that he had the knowledge that the parcels being sent by accused Brij Bhushan contain psychotropic substances and that on a specific question he has categorically stated that he was not aware of the contents of the parcels being sent by accused Brij Bhushan but that as per his knowledge medicines were being sent by accused Brij Bhushan to his son Akhil Bansal in USA and that sending of medicines in this manner was illegal. He therefore has submitted that the SC No. 165/08 Page 55 of 60 NCB Vs. Praveen Dua and Ors.
said statement even if read against the accused does not make him guilty of the offence that he has been charged with. In support of his contentions, he has relied upon the judgment of the Hon'ble Supreme Court delivered in Bal Mukund's (Supra).
46.I have gone through all the judicial dicta referred to by the Ld. Counsels. No doubt the Hon'ble Supreme Court in its various judgments pronounced in NDPS cases has held that a statement given by an accused u/s 67 NDPS Act is admissible in evidence and can be used for determining the guilt of an accused however the Hon'ble Supreme Court has also cautioned that a court must be satisfied that the said statement was given voluntarily. The Hon'ble Supreme Court in its judgments pronounced in cases titled as Union of India Vs. Bal Mukund (supra) and Noor Aga Vs. State of Punjab and Anr. reported in JT 2008 (7) SC 409 respectively has clearly held that the purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement. In Bal Mukund's case, the Hon'ble Supreme Court observed that the authorities under the NDPS Act can always show that the accused had not been formally arrested when his statement was recorded u/s 67 of the NDPS Act and that therefore a court while weighing the evidentiary value of such a statement should not lose sight SC No. 165/08 Page 56 of 60 NCB Vs. Praveen Dua and Ors.
of the ground realities. The Hon'ble Supreme Court in the said case also made it clear that the observations made by it in Kanhaiya Lal Vs. Union of India (2008) 4SCC 668, (a judgment relied by the prosecution to contend that it is under no obligation to prove that the statement tendered by an accused was voluntary) was passed in view of the peculiar facts in the said case namely that no crossexamination of a material witness was conducted with respect to statement tendered by the accused. In Noor Aga's case, the Hon'ble Supreme Court has clearly held that whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. In another case titled as Francis Stanly Vs. NCB reported in (2006) 13 SCC 2010 the Hon'ble Supreme Court has cautioned that a confession asserted to have been recorded under the NDPS Act must be made subject to closure scrutiny then a confession made to private citizens or officials who do not have investigating powers under the Act. In the present case as discussed hereinabove the evidence on record does indicate that the accused Praveen Dua was in the custody of NCB not only on 19.04.2005 but also on 20.04.2005 and had retracted the said statement given by him soon after he was remanded to judicial custody. In the said retraction application mark R1 he has written that he SC No. 165/08 Page 57 of 60 NCB Vs. Praveen Dua and Ors.
was threatened that in case he does not write as per the dictation of the NCB officials, they would kill him and show it as an encounter and that they would also bring harm to his family members. He has stated almost similar facts before this court u/s 313 Cr.PC. Further the evidence discussed by this court in the preceding paragraphs also shows that the investigating officers have in fact indulged in manipulation of documents. As discussed hereinabove the authenticity of the rent agreement Ex.PW6/A is in question, the statements asserted to have been tendered by Ajit Singh and Vijay Kumar are also in doubt, in as much as the dates on which the said statements have been tendered, appear to have been changed, the summons issued to Sanjeev Behl, also appear not to have been served upon him on the dates mentioned therein, the deposition of the Investigating Officer that the panchnama was signed by the panch witnesses at the spot and the samples and seized drugs were also sealed at the spot cannot be believed in view of the own deposition of the prosecution witness, Vijay Kumar, that he had not signed the panchnama and paper slips affixed on the seized drugs at the spot the presence of the panch witness Santosh Tiwari during the recovery proceedings is also in doubt in view of the deposition of Vijay Kumar that this person was a tempo driver in the locality and that he had not accompanied the NCB officials to the raided premises at all. It is also being rightly pointed out SC No. 165/08 Page 58 of 60 NCB Vs. Praveen Dua and Ors.
by the Ld. Defence counsel that though there was no requirement of issuance of section 50 notice in this case, the fact that the investigating official has taken a stand that he did issue such a notice, the defence can show that even the said deposition is incorrect. A perusal of the said notice, Ex.PW3/B shows that the address of the accused Praveen Dua shown therein is that of his residence namely of A85, Vivek Vihar and not of his office, though the investigating office at this stage of issuing notice to accused Praveen Dua had no clue as to where he resides.
47.In the case titled as State of Punjab vs. Baldev Singh reported in (1999) 6 SCC 172 the Hon'ble Supreme Court has observed that indeed in every case the end result is important but the means to achieve it must remain above board and the remedy cannot be worse than the disease itself. The Hon'ble Supreme court has cautioned that legitimacy of the judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice which cannot be permitted. In the present case also this court is constrained to note that the manipulations done in the documents prepared during investigation do lead to an inference that the investigating officials have not come with clean hands before this court SC No. 165/08 Page 59 of 60 NCB Vs. Praveen Dua and Ors.
and therefore this court is of the considered opinion that the evidence produced by them on record cannot be accepted as credible and trustworthy to hold that accused Praveen Dua had voluntarily tendered his statement u/s 67 of the NDPS Act. The said statement cannot also be therefore read against him.
48.In view of the discussion hereinabove, this court is therefore of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt against the accused persons and that all of them are entitled to be acquitted. The accused persons are therefore hereby acquitted of the offences that they have been charged with. Announced in open Court on this 3rd day of November, 2012 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House:New Delhi SC No. 165/08 Page 60 of 60