Delhi District Court
Ncb vs . Teo Kok Siong & Anr. on 6 October, 2012
NCB Vs. Teo Kok Siong & Anr.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 16/10
ID No. 02403R0258342010
Narcotics Control Bureau
Through Pankaj Kumar Dwivedi
Intelligence Officer, NCB, New Delhi
Versus
1) Teo Kok Siong,
S/o Sh. Teo Luan Pow,
R/o Block No. 420, Angmo Kio Avenue 10
# 121143, Singapore 560420
2) Ms. Nirmala Kumari,
W/o Sh. C.B. Thakuri,
R/o Barahathawa3,
Sariahi, Nepal
Date of Institution : 02.08.2010
Judgment reserved on : 07.09.2012
Date of pronouncement : 06.10.2012
JUDGMENT
1. The present complaint has been filed by The Narcotics Control Bureau (hereinafter referred to as NCB) through its intelligence officer Pankaj Kumar Dwivedi against the aforementioned accused persons u/s 20(b), SC No.16/10 page 1 of 43 NCB Vs. Teo Kok Siong & Anr.
23 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).
2. Briefly stated, the allegations against accused persons as contained in the complaint are as follows:
(a) On 29.03.2012, Pankaj Kumar Dwivedi received a secret information that one Nepali woman, Nirmala would be coming on 30.03.2012 to deliver a huge quantity of narcotics drugs to one Teo Kok Siong, a Singapore National who was staying in room number 305, Hotel Krishna Cottage, Chuna Mandi, Paharganj, New Delhi.
(b) The said information was reduced into writing by Pankaj Dwivedi and was submitted to his superior officer, Ajay Kumar, who then gave directions for constitution of a team.
(c) On 29.03.2010 itself, Pankaj Dwivedi and G.S. Binder rushed to Hotel Krishna Cottage, Paharganj, ND and discreetly enquired about the Singapore National with PP No. E 1531737H who was staying in room no. 305 of the said hotel. The said NCB officials also thereafter checked into room no. 103 of the said hotel and mounted surveillance on the suspect Singapore national.
(d) On 30.03.2010 at about 03.00 PM, another team of NCB officials comprising of C.S. Rai and Savitri Jaswani joined the raiding team already stationed in the said hotel and all the intelligence officers then SC No.16/10 page 2 of 43 NCB Vs. Teo Kok Siong & Anr.
started waiting near reception of the hotel. Two officials of the hotel, Pankaj Rai and Sanjeev Kumar, receptionist were also requested to join the NCB team and they agreed to do so.
(e) At about 05.45 PM one fair complexioned Nepali woman approached the reception and started waiting. After sometime, the suspect Teo Kok Siong approached the reception with one blue colour hand bag and greeted the Nepali woman. The Nepali woman who was carrying stroller bag handed over the same to Teo Kok Siong and at this stage, both of them were intercepted by NCB team. Pankaj Dwivedi then gave introduction of the members of his team as well as the public witnesses to the said persons and also showed his identity card to them. On enquiry, the Nepali woman revealed her name as Nirmala Kumari wife of Sh. C. B. Thakuri and Singapore national introduced himself as Teo Kok Siong.
(f) Both the accused persons were apprised of the secret information that NCB had and then they were served with a notice u/s 50 NDPS Act and were informed that they have a legal right to be searched before a Magistrate or Gazetted Officer. Both the accused persons refused to exercise the said right and therefore, the black colour stroller bag which was handed over by Nirmala to Teo Kok Siong was taken into possession and searched. The said bag was of the make 'echolac' and on minute SC No.16/10 page 3 of 43 NCB Vs. Teo Kok Siong & Anr.
examination of the same, the lower bottom wall of the bag was found concealing within it, greenish brown solid substance wrapped in brown tape. Some amount of substance on checking with Field Testing Kit tested positive for Hashish. The total substance was then weighed and was found to be 7 Kgs. Two samples of 25 gms each were taken from the said substance and kept in polythene pouches which were then further kept in white colour envelops and given mark A1 & A2. The remaining Hashish was also converted into a parcel and given mark A. The stroller bag which was then also converted into a parcel and given mark B. The blue bag carried by Teo Kok was also searched and nothing incriminating recovered there from and it was also then converted into a parcel and given mark C.
(g) On all A, B, C, A1 and A2, paper slips bearing dated signatures of the witnesses, complainant IO and both the accused persons were affixed and were sealed with the seal of Narcotic Control Bureau, DZU3.
(h) The test memo in triplicate was filled up at the spot and seizure memo was also prepared.
(i) Summons U/s 67 NDPS Act were then issued to both the accused persons and both of them then appeared in the NCB office and tendered their statements. After the said statements were tendered, both accused were arrested and ground of their arrest were explained to them. They SC No.16/10 page 4 of 43 NCB Vs. Teo Kok Siong & Anr.
were then sent for medical examination and thereafter, produced before the Court.
(j) Reports u/s 57 NDPS Act prepared by Pankaj Dwivedi was then sent to his superior officers. Ministry of External Affairs, New Delhi and Under Secretary Foreigners Division, Ministry of Home Affairs were informed about arrest of the accused persons.
(k) On 31.03.2010 Ajay Kumar, Superintendent, NCB forwarded one sample alongwith test memo to Rajesh, driver, NCB to CRCL, Pusa Road, New Delhi.
(l) After receiving the report from CRCL, as per which the sample was found to be Hashish/Charas, the present complaint was filed.
3. On the basis of material on record, charges were framed against the accused persons for offences punishable u/s 20(b)(ii)(C) r/w section 29 of the NDPS Act.
4. To prove its case against the accused persons, the prosecution has examined 11 witnesses.
5. PW2 Pankaj Kumar Dwivedi, the main Investigating Officer, PW7 G.S. Bhinder, PW11 C.S. Rai and PW6 Savitri Jaswani being the members of the raiding team have more or less deposed on similar lines and have reiterated the assertions made in the complaint. As per their depositions, the secret information received by the IO Pankaj Dwivedi SC No.16/10 page 5 of 43 NCB Vs. Teo Kok Siong & Anr.
has been exhibited as Ex.PW1/A, the notices issued to the accused persons U/s 50 of NDPS Act have been exhibited as Ex. PW2/B and C, the refusals written on behalf of the accused persons on the said Notices have been identified at point 'C' to 'C' on the said notices and the Seizure Memo prepared at the spot has been exhibited as Ex.PW2/D. The summons issued to both the accused persons have been exhibited as Ex.PW2/E and F, the report u/s 57 NDPS Act has been exhibited as Ex.PW2/G, the summons issued to panch witnesses have been exhibited as Ex.PW2/H and J. The statement tendered by Pankaj Rai and Sanjiv Kumar u/s 67 have been proved and exhibited as Ex.PW2/K and Ex.PW4/A respectively. PW6 Savitri Jaswani has also inter alia deposed that the accused Nirmala had voluntarily tendered her statement u/s 67 of the NDPS Act before her and the same has been exhibited as Ex.PW6/A. The jamatalashi and the arrest memo of the accused Nirmala has been exhibited as Ex.PW6/B and the MLC of this accused has been exhibited as Ex.PW6/C.
6. PW1 Ajay Kumar has inter alia deposed that on 29.03.2010 Sh. Pankaj Kumar Dwivedi had put up before him secret information Ex.PW1/A and after going through the information, he had put his endorsement thereon at portion A1 to A1. He has then further deposed that he issued departmental seal of NARCOTIC CONTROL BUREAU DZU3 to PW2.
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NCB Vs. Teo Kok Siong & Anr.
As per this witness, he had signed on the seal movement register with respect to the handing over and return of the seals to and from the IO Pankaj Kumar Dwivedi. As per the deposition of this witness samples alongwith test memo in duplicate and forwarding letter Ex.PW1/B were sent to CRCL for examination and the report with respect to the same was also received. According to this witness the arrest reports of the accused persons and the seizure report of the contraband were also placed before him and the same have been exhibited as Ex.PW1/E, PW1/F and PW1/G respectively. It is also stated by this witness that he had written a letter to MEA separately regarding the arrest of both the accused persons and the said letters have been exhibited as Ex.PW1/H and J.
7. PW3 Pankaj Rai, the Manager of hotel Krishna Cottage has inter alia deposed that on 30.03.2010 at about 05.3006.00 PM, some NCB officials had come to the said hotel and had enquired from him and from one other person named Sanjeev, who was also a Manager in the said hotel about one Singapore national Teo Kok and had also informed them that some person would be coming to deliver narcotics drugs to him and that he and Mr. Sanjeev should cooperate and witness the proceedings to be conducted by the NCB officials. As per this witness, he and Sanjeev agreed to the request of NCB officials and that about half an hour later, SC No.16/10 page 7 of 43 NCB Vs. Teo Kok Siong & Anr.
one Nepali lady came to the hotel and stated that she wanted to meet the person staying in room no.305, in which room the Singapore national Teo Kok was staying. As per the deposition of this witness, Sh. Sanjeev then telephoned in room no.305 and informed the Singapore national about the lady and asked him to come down to the reception. He has further deposed that after a while accused Teo Kok came down at the reception with one handbag and thereafter, the Nepali lady handed over a stroller bag that she was carrying to the accused Teo Kok and at this stage, both of them were intercepted by the NCB officials. He has then gone on to describe the entire search and seizure proceedings. He has also inter alia deposed that he was issued one summon Ex.PW2/H by the NCB officials pursuant to which he had appeared in the office of NCB and had tendered his statement before them.
8. PW4 Sanjeev Kumar Saha has inter alia deposed that he was working as Manager/Receptionist in Hotel Krishna Cottage on 30.03.2010 and that on this date at about 05.30 PM some officials of the NCB enquired from him about one Sh. Teo Kok and that he informed them that as per the guest register, he was staying in room no. 305. He has further inter alia deposed that thereafter he and Pankaj Rai, Manager of the hotel in question were informed by the NCB officials that one person would be coming to deliver narcotic drugs to the Singapore national Teo Kok.
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According to the deposition of this witness, half an hour thereafter, a Nepali lady carrying a stroller bag (the witness identified the accused Nirmala as the said lady) came to the reception of the hotel and stated that she wanted to meet the customer staying in room no. 305 and that he (the witness) then telephoned in room no. 305 and informed Teo Kok that one lady had come to meet him. This witness has then further deposed that thereafter accused Teo Kok came to the reception carrying one handbag and then accused Nirmala handed over the stroller bag to him and at this stage they were both intercepted by the NCB officials. He has then gone on to describe the search and seizure proceedings. He has also inter alia deposed that he was issued one summon Ex.PW2/J by the NCB officials pursuant to which he had appeared in the office of NCB on 31.03.2010 and had tendered his statement Ex.PW4/A before them.
9. PW5 Sanjay Rawat, Intelligence Officer, NCB has inter alia deposed that in pursuance to the summons Ex.PW2/E, accused Teo Kok appeared before him and tendered his statement Ex.PW5/A in his own handwriting. He has further deposed that he had prepared the arrest memo as well as the jamatalashi memo of accused Teo Kok Ex.PW5/B on which the signatures of accused were taken. He has further deposed that on 31.03.2010, the accused was got medically examined and his MLC has been exhibited as Ex.PW5/A and that on the said day, he had SC No.16/10 page 9 of 43 NCB Vs. Teo Kok Siong & Anr.
also submitted the arrest report of accused Teo Kok Ex.PW1/E.
10.PW8 A.K. Maurya, Assistant, Chemical Examiner has proved the acknowledgment receipt issued in token of receiving the samples at CRCL as Ex.PW8/A. He also proved the chemical analysis reports with respect to the sample CLD1296(N) as Ex.PW8/B deposited with the C.R.C.L. As per his deposition, the sample was examined by him under the supervision of Sh. S.S. Surana, Chemical Examiner II had tested positive for Charas.
11. PW9 Rajesh Kumar, Driver NCB has inter alia deposed that on 31.03.2010, Ajay Sharma, Superintendent NCB handed over to him one sample packet mark A1 alongwith forwarding letter for depositing the same at CRCL which he deposited and handed over the receipt received from CRCL to Superintendent, NCB.
12.The entire incriminating evidence was put to both the accused persons and their statements were recorded u/s 313 Cr.PC. In the said statements, both the accused persons have stated that they have been falsely implicated in this case and that no drugs were recovered at their instance or from their possession. Accused Teo Kok has inter alia stated that on 30.03.2010, three persons had come to his room and had informed that they from the Ministry of Home Affairs and that they want to search him and his room as they have an information that he is in possession of SC No.16/10 page 10 of 43 NCB Vs. Teo Kok Siong & Anr.
drugs. He has further stated that despite his telling the said officers that he has no drugs, his room was searched but nothing was recovered from it. He has also then stated that he was not allowed to leave his room and at about 05.30 PM, a lady i.e. the coaccused Nirmala was brought to his room and it was alleged that he and the said lady were involved in the trafficking of drugs and both of them were taken to the NCB office thereafter. He has also asserted that he was forced to sign various documents and was threatened that in case, he does not so sign, the officers will ensure that he gets 10 years imprisonment. He has also stated that he had sent his retraction statement from the jail.
13.Accused Nirmala Kumari in her statement has stated that she was picked up by the NCB officers from her house at Mandi House on 29.03.2010 and not on 30.03.2010. She has stated that the NCB officials took her forcibly to some hotel where for the first time she saw her coaccused Teo Kok and that thereafter, she was taken to NCB office and was forced to sign many documents. She has also stated that she was threatened by the NCB officials that they will beat her in case she does not write as per their dictation. In support of her evidence, this accused has produced her sister in the witness box and has also herself stepped into the witness box. Her sister DW3 Anita Karki has inter alia deposed that on 29.03.2010 at about 10.30 PM, four persons came to their house and took SC No.16/10 page 11 of 43 NCB Vs. Teo Kok Siong & Anr.
away her sister Nirmala and did not even disclose their identity. She has also stated that the said persons threatened her that in case she makes a complaint with the police against them, they will pick her up also.
14. After the defence evidence was led, both the Ld. Counsels Ms. Mala Sharma, SPP for NCB and Ld. Defence Counsel Sh. Mahapatra had advanced final arguments. Written submissions were also filed on record by both the Ld. Counsels.
15.As per the submissions made by Ld. Counsel Ms. Sharma, the evidence of the prosecution witnesses and the statements of the accused persons tendered u/s 67 NDPS Act amply prove the guilt of the accused persons. She has submitted that PW3 Pankaj Rai and PW4 Sanjiv Kumar Saha are independent witnesses who had joined the proceedings in the present case and that they have also fully supported the case of the prosecution and that therefore, the prosecution has been able to prove its case against the accused persons beyond all reasonable doubts.
16.On behalf of the defence, inter alia the following contentions have been made:
(i) There has been no compliance made of section 42 and section 50 of the NDPS Act. It is the contention of the Ld. Defence Counsel that despite the fact that the search and seizure in the present case had allegedly taken place between 05.4509.00 PM and that too in a hotel, SC No.16/10 page 12 of 43 NCB Vs. Teo Kok Siong & Anr.
which cannot be stated to be a public premises, no search authorization was obtained by the investigating officer from his superior officer and that therefore there has been a total non compliance of section 42 of the NDPS Act. Various contradictions have also been pointed out in the deposition of the prosecution witnesses which according to the defence show that in fact no secret information was received and that the entire case of the prosecution is concocted. It has also been contended that the deposition of PW2 Pankaj Dwivedi, the official who as per the case of the prosecution had served the notice u/s 50 NDPS Act to the accused persons, makes it clear that no such notice was given to the accused persons and neither were they explained about their legal rights to be searched before a Magistrate or a Gazetted Officer.
(ii) The inconsistencies between the deposition of the prosecution witnesses show that no samples were taken or sealed at the spot at the spot. It is also the contention of the Ld. Defence Counsel that the tampering of the samples cannot be ruled out in this case as there is a difference of colour ascribed to it by the Chemical Examiner, CRCL and the colour ascribed to it by the prosecution witnesses. It has also been pointed out that though as per the testimony of the seizing officer, he had drawn out two samples of 25 gms each, the samples when tested at CRCL were found to be 28.9 gms. It has also been pointed out that there is no SC No.16/10 page 13 of 43 NCB Vs. Teo Kok Siong & Anr.
document proved on record showing the transfer of the custody of the samples as well of the test memo forms from the MHCM to the Superintendent. It has also been contended that the samples were not drawn out and sealed as per the guidelines issued by the NCB.
(iii) The preparation of the test memo form on the spot is doubtful as it is not signed either by the accused persons or by the panch witnesses. It has also been pointed out that the prosecution witnesses have admitted that the test memo forms were not sealed and that the same remained in open condition.
(iv) The proceedings were not conducted in the language known to accused Nirmala and this itself vitiates the entire recovery proceedings.
(v) The prosecution has not been able to prove that the accused persons were in conscious possession of the contraband as neither any documents pertaining to any of the accused persons was recovered from the stroller bag nor the keys of the same were recovered from the possession of the accused persons. It is also contended that the prosecution has not proved any facts whatsoever to show that there was meeting of minds between the two accused persons and that they had conspired to deal in drugs.
(vi) The statements tendered u/s 67 NDPS Act have been proved by the accused persons to have been tendered by them under force and coercion SC No.16/10 page 14 of 43 NCB Vs. Teo Kok Siong & Anr.
and that therefore no reliance can be placed on the same at all. In support of his contention, Ld. Defence counsel has relied upon the following judgments:
(i) Union of India Vs. Shah Alam & Anr. 2009(1) Drug Cases(Narcotics) 390.
(ii) Dilip & Anr. Vs. State of MP 2007(1) JCC (Narcotics) 5.
(iii) DRI & Anr. Vs. Mohd. Nisan Holia 2008(1) RCR 241.
(iv) Raju Premji Vs. Customs Ner Shillong Unit 2009(3) JCC (Narcotics) 153.
(v) Dilbag Singh Vs. DRI 2009(3) JCC (Narcotics) 124.
(vi) Jarnail Singh Vs. State of Punjab 2008(4) JCC (Narcotics) 204.
(vii) Rajesh Jagdamba Avasthi Vs. State of Goa 2005(9) SCC 773.
(viii) Union of India Vs. Bal Mukund & Ors. 2009(2) JCC (Narcotics) 76.
(ix) Francis Stanly @ Stalin Vs. IO NCB Thiruvanantpuram 2007(1) CC Cases (SC) 278.
(x) NCB Vs. Aziz Ahmed 2010(1) JCC (Narcotics) 6.
(xi) NCB Vs. Sukhdev Raj Sodhi 2011(4) JCC 212.
(xii) Eze Val Okke@ Valeze Vs. NCB 2005(1) JCC (Narcotics) 57.
(xiii) Mohinder Singh @ Sonu Vs. State 2009(4) JCC (Narcotics) 202.
(xiv) Delhi High Court J. Usha Mehra. Crl. A. No. 87 of 1988.
17. In rebuttal, the following submissions have been made by the Ld. SPP:
(i) That there was no requirement of compliance of section 42 or section 50 NDPS Act for in this case, information was not that the contraband is sealed inside the building but that the information was specifically that the contraband would be delivered at the hotel in question.
(ii) It has been pointed out by Ld. SPP that the replies to the section 50 notice have been written by the accused persons in their own handwriting SC No.16/10 page 15 of 43 NCB Vs. Teo Kok Siong & Anr.
and that therefore it cannot be inferred at all that the accused did not understand the notice issued to them. It has also been contended on behalf of the prosecution that even otherwise, the recovery of the contraband has not been made from the person of the accused persons but it has been made from a bag that was delivered by accused Nirmala to accused Teo Kok and that therefore even if there is some infirmity in the notices issued to them, the accused cannot derive any benefit from the same.
(iii) As regards the alleged variation in colour of the samples drawn at the spot, it has been submitted that there is hardly any difference between the shades 'greenish brown' and 'brown' and that different persons may ascribe different shades of colour to a same object as per their perceptions. The difference in weight of the samples drawn at the spot mentioned in the panchnama and the CRCL report has been sought to be explained on behalf of the prosecution by contending that the weighing scale used by the NCB at the spot may not have be completely accurate and the fact that samples were received in intact condition by the CRCL rules out the tampering of the samples. According to the Ld. SPP, the depositions of PW1 Ajay Kumar, PW9 Rajesh Kumar and PW10 Akhilesh Mishra, when read together clearly prove the transfer of the custody of the samples and the test memo from the MHCM to the SC No.16/10 page 16 of 43 NCB Vs. Teo Kok Siong & Anr.
Superintendent. She has also submitted that the guidelines issued by NCB have no statutory force and that the same are only administrative and internal guidelines and that no prejudice has been caused to the accused persons by the non sealing of the test memo.
(iv) It has also been submitted by the Ld. SPP that there is no requirement of law that the test memo prepared by the investigating officer at the spot is to be signed by the accused persons and the panch witnesses or that it is to be sealed.
(v) It is also the contention of the prosecution that accused Nirmala is conversant with Hindi language and therefore in her own handwriting had given her reply to the section 50 notice, only after understanding its contents and that therefore no prejudice has been caused to her if the said notice was prepared in English.
(vi) Ld. SPP has also submitted that the fact the accused persons were apprehended while accused Nirmala was handing over the stroller bag containing the contraband to accused Teo Kok is itself sufficient to hold that both of them were in conscious possession of the said bag and had conspired to deal in drugs. She has also pointed out that there is a statutory presumption to be drawn against the accused persons in this regard as per the provisions of section 35 and 54 of the NDPS Act and that even otherwise the accused persons have themselves admitted their SC No.16/10 page 17 of 43 NCB Vs. Teo Kok Siong & Anr.
possession of the contraband in the statements tendered by them u/s 67 of NDPS Act.
(vii) It is also the submission of the Ld. SPP that minor contradictions in the depositions of the prosecution witnesses does not make the entire case of the prosecution doubtful and that the said contradictions in fact show that the witnesses are not tutored and have infact deposed truthfully.
(viii) Ld. SPP has also contended that it has been settled by the Hon'ble Supreme Court in its various judgments that the burden of proving that the statements tendered by an accused were obtained under duress and pressure and were not given voluntarily is upon the accused specially when there is no material on record to show that the same were not given voluntarily.
In support of her contentions, Ld. SPP has relied upon the following judgments:
(i) Ravinder Singh @ Bittu Vs. State of Maharashtra 2002(2) JCC 1059(SC).
(ii) A.K. Mahboob Vs. IO, NCB JT 2001(1) SC 614 (iii) Raj Kumar Karwal Vs. Union of India & Ors. 1991 Cr.L.J. 97(SC). (iv) K.I. Pavunny Vs. Asstt. Collector (1997) 3 SC 721. (v) State of Punjab Vs. Lakhwinder Singh & Anr. 2010(3) JCC (Narcotics)142. (vi) Sukhdev Yadav Vs. State of Bihar (2001) 8 SCC 86. (vii) Dalel Singh Vs. State of Haryana 2009 (4) JCC (Narcotics) 185.
(viii) Kamaljeet Singh Vs. State of Punjab AIR 2004 Supreme Court 69.
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(ix) Siddiqua Vs. NCB 2007 (1) JCC (Narcotics)22.
(x) Vijay Kumar Chaddha Vs. CBI 2011(3) JCC 1660.
(xi) Iqbal Moosa Patel Vs. State of Gujarat Crl. Appeal No. 12311232 of 2009
(Supreme Court of India)
(xii) Khet Singh Vs. UOI (2002) 4 SCC 380.
(xiii) Customs Vs. Konan Jean 2012(1) JCC (Narcotics)12.
(xiv) Atma Ram Vs. State of Haryana Crl. Appeal No. 199SB/1999 dated 31.07.2008.
(xv) Gita Lama Tamang Vs. State of (GNCT) of Delhi dated 15.11.2006(HC). (xvi) Sadab Vs. State NCB of Delhi Bail Application No. 3205/2006 dated 17.11.2006.
(xvii) Gurdev Kaur Vs. State of Haryana 2002 Crl. L.J. 3016. (xviii) Okwun Udensi Vs. Customs Crl. Appeal No. 425/2002(HC) dated 02.12.2007.
(xix) Kulwant Singh Vs.NCB Crl. Appeal No. 248/1997 (HC) dated 18.01.2008.
18. I have carefully considered the submissions made by both the Ld. Counsels and have perused the entire record and the judicial dicta referred to by the Ld. Counsels.
19.I will first consider the submissions made by the Ld. Defence counsel with respect to the non compliance of section 42 of the NDPS Act. This court is of the considered opinion for the reasons given herein below that the contentions made by the Ld. Counsel in this regard have no merit. In Mohd. Nisar Holia's case (supra the judgment relied upon by the Ld. Defence counsel), it was an admitted fact that the secret information received was not reduced into writing by the officer who had received it and in such facts, the Hon'ble Supreme Court has held that when the SC No.16/10 page 19 of 43 NCB Vs. Teo Kok Siong & Anr.
investigating officer had sufficient time to reduce the secret information into writing and the place which was to be searched was a room in a hotel, which is not open to public, the investigating agency was under a duty to have complied with the provisions of section 42 of the NDPS Act. In the present case however the secret information that the accused Nirmala would be coming to deliver huge quantity of narcotic drugs to Teo Kok was reduced into writing as per the deposition of PW2, the recipient of the secret information and the same has been exhibited as ExPW1/A. Further as per the depositions of PW1 Superintendent NCB PW1 Ajay Kumar and PW2, it was also put up by PW2 Pankaj Kumar Dwivedi before his senior officer i.e. PW1. The contention of the defence that the document ExPW1/A is a manipulated document because PW2 has been unable to state in his cross examination whether the secret informer had come to meet him personally or had given the information on telephone/mobile and further his deposition that the said information was received by him in the afternoon and that he had put up the same before his senior officers within two hours thereafter, is contrary to the contents of ExPW1/A where it is recorded that it was reduced into writing at 8:00 p.m., is not acceptable to this court. No doubt the answers given by the IO Pankaj Dwivedi are evasive with respect to the secret informer, the same cannot be sufficient to conclude that Ex.PW1/A SC No.16/10 page 20 of 43 NCB Vs. Teo Kok Siong & Anr.
is a manipulated and an ante dated document. The Superintendent, NCB, PW1 Ajay Kumar has categorically deposed that on 29.03.2010 at about 08.00 PM, the secret information, Ex.PW1/A was placed before him. Merely because he also has admitted that he had not enquired about the source of the secret information from Pankaj Dwivedi, it cannot be held that no such secret information was received. Further though it has been contended on behalf of the defence that the search and seizure proceedings were conducted by PW1 after sunset, and that therefore a search authorisation should have been obtained by him before proceeding to conduct the search and seizure, no evidence has been produced by the defence to show that the sun had set after 05.45 PM on 30.03.2010. On a specific query by this court during final arguments, Ld. Defence counsel Sh. T.K. Mahapatra has fairly conceded that in the month of March and more particularly on 30.03.2010, as per the data available in newspapers, the sun had not set before 05.45 PM. It is also to be taken note of that it is mentioned in Ex.PW1/A that the suspect Nirmala would come in the afternoon of 30.03.2010 to make the delivery of the contraband to Teo Kok and as such at the time of giving directions for the constitution of the raiding team, there was no occasion for the Superintendent to have issued a search authorization warrant in favour of PW2. In view of such facts it cannot be stated that in the present case there has been any violation of SC No.16/10 page 21 of 43 NCB Vs. Teo Kok Siong & Anr.
section 42 of the NDPS Act.
20.Coming now to the contention with respect to the section 50 of the NDPS Act, the contention of the Ld. Counsel Sh. Mahapatra is that no such notice was served upon the accused persons. In rebuttal to the contention of the Ld. SPP that the same has no relevance because in the present case the recovery for the contraband has taken place from a bag, it is the submission of the Ld Defence Counsel that the issue in this regard is not whether such a notice was required to be served or not but that the issue in the present case is about the credibility of the investigating officials who claim that such a notice was served. Ld. Counsel has pointed out that in the case reported as Union of India vs. Shah Alam & Another 2009 (1) Drug Cases (Narcotics) 390, the facts before the Hon'ble Supreme Court were that the two accused persons were subjected to body search in course of which packets of heroin were found in the shoulder bag carried by them and in such facts also Hon'ble Supreme Court had held that the provisions of section 50 should have been complied with and if the same had not been done, it would have a bearing on the credibility of the evidence of the official witnesses. Relying on the said judicial dicta, Ld. Defence Counsel Sh. Mahapatra has contended that the testimony of the investigating officer PW2 Pankaj Kumar Dwivedi in this regard shows that no such notice was in fact issued to the SC No.16/10 page 22 of 43 NCB Vs. Teo Kok Siong & Anr.
accused persons. Ld. Counsel has pointed out that this witness in his cross examination has stated that he does not know as to who had served the notice u/s 50 NDPS Act upon the accused Nirmala but that the notices served upon both the accused were in the same format. According to the Ld. Defence counsel the said statements made by PW2 Pankaj Kumar Dwivedi clearly show that no such notices were issued to the accused persons for as per the case of the prosecution and the examination in chief of this very official he himself had served the notices to both the accused persons and that a perusal of the said notices show that the notices are not in the same format. It is also his submission that this witness has also admitted that he does not know if any officer of the raiding party had asked accused Nirmala in which language she can read and write.
21. Though this court completely agrees with the Ld. Defence Counsel that only because the recovery of contraband in the present case has been made from a bag, it cannot be stated that the statements made by the investigating officer PW2 in respect to the service of the notice u/s 50 NDPS Act have no relevance, this court is however of the opinion that the discrepancies pointed out by the Ld. Defence Counsel in the testimony of PW2 are not sufficient to hold that he is not a credible witness. An investigating officer is not expected to remember the exact typed format SC No.16/10 page 23 of 43 NCB Vs. Teo Kok Siong & Anr.
of a notice used by him during investigation. Further a perusal of the notice issued to accused Nirmala, Ex.PW2/C shows that this accused had written her refusal thereon in her own handwriting in Hindi. The mere fact that the notice has been issued to her in English language does not lead to the inference that she was not made to understand about her legal rights. The fact that she had written her reply thereto, on the contrary leads to an inference that she was made to understand about her legal rights.
22.Having held that there has been no violation of the statutory provisions of section 42 and 50 of the NDPS Act in the present case, this court shall now consider the evidence that has been led on behalf of the prosecution to prove the recovery of 7 Kg of hashish from the accused persons. As narrated hereinabove, the case of the prosecution in a nutshell is that both the accused persons had been intercepted when the accused Nirmala had come to Krishna Cottage to deliver 7 Kg of Hashish to accused Teo Kok and had handed over the bag containing the said contraband to him. The accused persons themselves do not dispute their presence in the hotel in question on the date of the incident. According to accused Teo Kok, the NCB officials had forcibly entered into his room in the hotel and had brought the accused Nirmala to the said room at about 05.30 PM. Accused Nirmala has also taken a stand that she was taken by the NCB SC No.16/10 page 24 of 43 NCB Vs. Teo Kok Siong & Anr.
officials to the hotel in question and was made to confront Teo Kok. Thus what is being disputed by the accused persons is that they were not apprehended while the accused Nirmala was handing over the bag containing the contraband to accused Teo Kok. However all the membres of the raiding team have clearly and categorically deposed that accused Nirmala and accused Teo Kok were apprehended just after the accused Nirmala had handed over a stroller bag to accused Teo Kok, in the reception area of the hotel Krishna Cottage. Apart from the NCB officials who were part of the raiding team, two independent panch witnesses have been produced by the prosecution in the witness box to support their version of events. PW3 Pankaj Rai is the Manager and PW4 Sanjeev Shah is the Receptionist of the said hotel who as per their depositions witnessed the interception of the accused persons and the search and seizure proceedings. Both of them have clearly and categorically deposed that the accused Nirmala had come to Krishna Cottage on 30.03.2010 and they had seen her handing over a bag to accused Teo Kok, who was lodged in their hotel in room no.305. In particular, the testimony of the Receptionist of the hotel PW4 Sanjeev Kumar Saha has been found to be trustworthy and credible by this court. Apart from giving in his examination in chief a complete account of the events witnessed by him, this witness has also withstood the test of cross SC No.16/10 page 25 of 43 NCB Vs. Teo Kok Siong & Anr.
examination. When questioned about the chronology of events, this witness has very categorically and specifically spelt out the same. In this regard, it would be relevant herein to reproduce some portion of the deposition given by this witness in his crossexamination:
'She(referring to accused Nirmala) came to me and said that she wanted to meet Teo Kok. I told her that we do not allow a lady visitor to go to a man's room and that I will inform Sh. Teo to come to the Reception. We do maintain a Visitor's Register but this is only with respect to persons who go up to the room. We did not write the name of the Nepali lady in the said register as she had not gone up to the room. The accused Teo came down to the Reception within two minutes of my calling him. The accused had come down carrying a small bag but I do not remember its colour. Both the accused i.e. the Nepali lady and Sh. Teo were caught by NCB officials as soon as she handed over the stroller bag to accused Teo. The said Nepali lady is also present today in the court and the witness has correctly identified her as accused in the present case. Both the accused persons were not taken away immediately by the NCB officials. The accused Nirmala was first checked by the NCB officials and accused Teo was also searched by the other NBC officials. I do not remember whether any document was given by the accused persons after they were personally searched. I do not remember what was the first document prepared by the NCB officials during the proceedings. I had signed certain documents during the proceedingsI do not know the nomenclature of these documents but the same were with respect to the weighing of the substance recovered and with respect to its sealing. The seal was that of the NCB but I do not know what was written thereon. The said seal SC No.16/10 page 26 of 43 NCB Vs. Teo Kok Siong & Anr.
was not handed over to me or to Sh. Pankaj. A small quantity of the substance was tested by the NCB officials but I cannot tell its exact quantity. I cannot tell the exact description of the testing kit used by the NCB officials but it was White in color and had some glass material therein. The substance that was recovered from the accused persons was Brown in color. Vol. On opening it a Vile smell spread in the entire hotel. I do not remember whether the NCB officials had informed the accused persons that they could first personally search the NCB officials before offering their search. The substance that was recovered from the accused persons was a coarse powder. The substance had been recovered from the stroller bag. Only one packet was recovered from the stroller bag. As far as I recall its weight came out to be 34 Kgs. I had not seen the weighing procedure. I am only telling by approximation. I had not seen the step by step proceedings as the smell of the substance had disturbed me.'
23.The aforementioned deposition of this witness has a ring of truth about it. The manner in which he has deposed that the smell of the contraband was vile and had spread in the hotel and that he was disturbed by it and therefore had not minutely noticed all the proceedings that were going on, show that he is not a tutored witness. He has truthfully deposed that he does not know the nomenclature of the documents prepared by the NCB officials or description of the seal that was used but that a seal was used at the spot and documents were prepared at the spot. No doubt, there are certain embellishments in the testimony of this witness with respect to the exact timing of the incident, however his evidence in its SC No.16/10 page 27 of 43 NCB Vs. Teo Kok Siong & Anr.
entirety appears to he completely trustworthy. The Hon'ble Supreme Court in its judgment pronounced in Sukhdev Yadav and others vs. State of Bihar reported in (2001) 8 SCC 86 has observed that if the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of minor variations in evidence. The Supreme Court in the said judgment has also observed that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment. In another case titled as Alagupandi @ Alagupandian Vs. State of Tamil Nadu 2012(2) JCC 1415, the Hon'ble Supreme Court has observed that a court can record the finding of guilt while entirely or substantially relying upon the statement of a sole witness, provided the statement is trustworthy, reliable and finds corroboration from the other prosecution witnesses. Ld. Defence Counsel has however contended that this witness should not be believed as he has produced before the court manipulated records namely the register maintained by the hotel with respect to its customers. It has been pointed out by Sh. Mahapatra that the relevant page of the register exhibited by this witness, ExPW4/D1 to show that the NCB officials had booked in the hotel one day before i.e. on 29/3/2010 and were allotted room no. 103 and had checked out the said room only on 30/3/2010 at SC No.16/10 page 28 of 43 NCB Vs. Teo Kok Siong & Anr.
6:00 p.m. is falsified by another entry in the same register which shows that one D. Kartik had checked in the hotel on 30/3/2010 at 1:15 p.m. and he was also allotted room no. 103. His contention is that therefore both the employees of the hotel have deposed falsely at the behest of the NCB officials. With respect to the said contention, suffice is to state that the entry relating to D. Kartik was not put to PW4 in his crossexamination and therefore the said witness was not given an opportunity to explain the said entry. A perusal of Ex.PW4/D1 shows that before the entry relating to D. Kartik, there are two other entries relating to one Vikas Takkar and one Jogender Singh as per which both of them had checked in to the hotel on 30.03.2010 at 09.00 and at 11.00 PM respectively. An inference therefore can be drawn that D. Kartik had checked in the hotel after them i.e. at 01.15 on the intervening night of 30.03.201031.03.2010 and that is why the time of his entry is mentioned as 01.15 AM (and not 01.15 PM as contended by the Ld. Defence Counsel). In the considered opinion of this court therefore the aforementioned contention of the Ld. Defence Counsel has no merit and as discussed hereinabove this court is of the considered opinion that the prosecution has successfully proved that the accused persons were apprehended when the accused Nirmala had handed over the stroller bag in question containing the contraband, to accused Teo Kok.
SC No.16/10 page 29 of 43
NCB Vs. Teo Kok Siong & Anr.
24.Coming now to the contentions of the Ld. Defence counsel with respect to the discrepancies in the sealing and seizing procedure, the first contention of the Ld. Defence counsels in this regard is that the tampering of the samples cannot be ruled out in this case due to the difference in colour of the seized contraband as mentioned in the panchnama and the colour ascribed to it by the Chemical Examiner. With respect to the said contention, suffice is to state that the said difference in the colour is not of such a nature that it can be concluded that what was sent to the Chemical Examiner was not drawn out from the seized substance. In the panchnama the seized contraband has been described as having the colour greenish brown and the colour that has been ascribed to the sample by the Chemical Examiner at the laboratory is dark brown. The case property was produced during trial before this court and it is a matter of record that the colour of hashish is greenish dark brown and therefore the description of this colour as either greenish brown or dark brown cannot be stated to be incorrect and this court does agree with the Ld. SPP that people's perceptions of colours differs. In Siddiqua's case, the Hon'ble Delhi High Court dealing with a similar contention with respect to the difference in colour has made the following observations:
"People's perception of colour differs. One colour can SC No.16/10 page 30 of 43 NCB Vs. Teo Kok Siong & Anr.
be in a hundred shades and people's perception about each shade may differ. There is no uniformity about the names of different shades of a colour neither there exists any standardization done by any institute naming the colours. Only seven colours are distinctly known to the people. Namely red, green, blue, black, white, yellow and purple. All other colours are described by people in their own manner. One colour can be described in several manners. Some may describe it as brown colour. Others may call it as a light brown colour. Some may describe it as wheatish colour and other as biscuit colour. The description of the same case property identified in the court by one as a light colour, other light brown or brown makes no difference and cannot be a ground to give benefit of doubt. Therefore, this cannot be a ground to doubt the truthfulness of the witnesses."
In view of the aforementioned judicial dicta, it is clear that the accused persons cannot be granted any benefit of doubt on the ground of difference in colour.
24. As regards the variation in the weight of the samples, Ld. Defence counsel has pointed out that though as per the panchnama and the deposition of the investigating official PW2 Pankaj Dwivedi, two samples of 25 gm. each were drawn out from the seized substance at the spot, the test memo however mentions that the sample was found to be of the SC No.16/10 page 31 of 43 NCB Vs. Teo Kok Siong & Anr.
weight 28.9 gms. In the opinion of this court, the aforementioned variation in the weight of the sample mentioned as drawn at the spot and that found at the laboratory is also so slight that on the basis of it, it cannot be concluded that there had been any tampering of the samples. In Dilbagh Singh's case (supra, a judgment relied upon by the SPP), the Hon'ble Supreme Court has held that where it is proved that what was sent to the Chemical Examiner was the same as to what was recovered, minor differences in weight would not vitiate the trial. In the facts before the Hon'ble Supreme Court the difference between the weight of the samples asserted to have been taken at the spot and the weight of the same found by the Chemical analyst was 5.5 grams and on the said difference of weight the Hon'ble Delhi High Court had acquitted the accused but the Hon'ble Supreme Court held that the said difference in weight cannot be made a ground for giving any benefit of doubt to the accused as the prosecution have been able to prove that the sample that was taken at the spot was the one that was sent to the Chemical Analyst with its seal intact. In Gurdev Kaur's case, Hon'ble Punjab and Haryana High Court has also held that the marginal difference in weight of sample mentioned in report of forensic expert cannot be taken as the basis of concluding that there was tampering of the sample when the prosecution had proved that the sample with its seals intact had been sent to the SC No.16/10 page 32 of 43 NCB Vs. Teo Kok Siong & Anr.
forensic lab. In the judgment of Hon'ble Supreme Court pronounced in Rajesh Jagdamba Avasthi's case, relied upon by the Ld. Defence Counsel, the discrepancy in the weight of the sample drawn at the spot and that sent to the a scientific laboratory was about 33 gm. and therefore the case of the prosecution was held doubtful. In the present case as stated hereinabove, the variation in the weights of the samples is minor and could be due to the fact of different weighing machines used by the NCB and the laboratory. Further in the present case when the case property was produced in the court, it was found intact with paper slips bearing the signatures of the accused and the witnesses. Similarly as per the deposition of the Chemical Examiner, the seals on the samples were found intact and it is also to be taken note of that in the present case the samples were sent to CRCL on the very next day of the recovery i.e. on 31.03.2010 and therefore any possibility of tampering the samples stands ruled out. This court also does not agree with the contention of the Ld. Defence Counsel that since the malkhana incharge PW Akhilesh Kumar has not specifically deposed that he had handed over the samples to the Superintendent Ajay Kumar for further forwarding it to CRCL, it must be taken that the samples were tampered with. The depositions of PW10 Akhilesh Kumar, PW1 Ajay Kumar and PW9 Rajesh Kumar if read together clearly show that the samples were taken out from the malkhana SC No.16/10 page 33 of 43 NCB Vs. Teo Kok Siong & Anr.
by Akhilesh Kumar and produced before Ajay Kumar and only thereafter were handed over to Rajesh Kumar. PW1 Ajay Kumar in this regard has specifically deposed in his crossexamination that on 31.03.2010 the samples and the test memos were in the custody of the malkhana incharge and that it is he who had produced the same before him.
25.The contention of the Ld. Defence Counsel that the preparation of the test memo at the spot is doubtful because it is neither signed by the accused persons nor by the panch witnesses in the considered opinion of this court, cannot be upheld. There is no requirement of law that the test memo has to be signed by the panch witnesses or the accused. The very format of the same is such that it is to be filled up by the IO only who has drawn out the samples. The judgment of Hon'ble Delhi High Court pronounced in Saifullah's case, relied upon by the Ld. Defence counsel has no application to the facts of the present case for in the said case it was an admitted fact that the test memo was not prepared by the IO at the spot for neither the seizure memo mentioned the preparation of the same nor the fact of deposit of test memo was found in the MHCM register. The independent public witness had also not supported the prosecution's case and had stated that all the documents were prepared at the police station and in such circumstances, the Hon'ble Delhi High Court had acquitted the accused before it. In the present case, the seizure memo SC No.16/10 page 34 of 43 NCB Vs. Teo Kok Siong & Anr.
categorically mentions the preparation of the test memo and the fact of deposit of test memo also finds mention in the records produced by the MHCM Ex.PW10/A. Further the independent witnesses have also supported the prosecution's case.
26.As regards the other discrepancies pointed out by the Ld. Defence counsel in the depositions of the main IO Pankaj Dwivedi and PW6 Savitri Jaswani, no doubt these witnesses have not been able to give specific answers to the questions put to them in the crossexamination with respect to the procedure of sealing the samples in as much as both of them have been unable to state whether the samples were hot sealed or not, in the considered opinion of this court, the said lapses on behalf of these investigating officials are not sufficient to doubt the entire case of the prosecution. The mere fact that Pankaj Dwivedi does not remember how many seals did he affix on the pullanda and the sample packets is of no consequence. The documents prepared contemporaneously do indicate the same. An investigating officer is not expected to remember all such minute details. The fact that the facsimile of the seal which was used for sealing the case property is not mentioned in the report Ex.PW1/G tendered under Section 57 NDPS Act is also of no consequence for the provisions of the said section do not require any such mentioning. All that is required as per the said section is that the seizure of a contraband SC No.16/10 page 35 of 43 NCB Vs. Teo Kok Siong & Anr.
and arrest of a person made by an investigating officer must be reported by him to his immediate superior official. Further the fact that PW C.S. Rai has stated in his examination in chief that samples of 5 gms each were drawn from the seized substance cannot be made a ground to discard the testimony of all other prosecution witnesses who have consistently stated that samples drawn out were of 25 gm each.
27. The Hon'ble Supreme Court in its judgment pronounced in a case titled as Diler Singh vs State of Haryana reported in 2009 (4) JCC (Narcotics) 185, has held that when the recovery of contraband is fully established by the evidence on record, some errors committed by the witnesses in their depositions can be attributed to failure of human memory and that the said errors are inconsequential. In Vijay Kumar Chadha's case the Hon'ble Delhi High Court has observed that a witness is not expected to have a photographic memory to remember all the details of any investigation from beginning to end and that therefore minor contradictions in the statements of witnesses should not be given undue weightage.
28.In the considered opinion of this court, the overall testimony of all the witnesses thus prove the case of the prosecution and this court is satisfied that the investigation in the present case has been done in a fair and SC No.16/10 page 36 of 43 NCB Vs. Teo Kok Siong & Anr.
proper manner and that the prosecution has been able to prove its case beyond reasonable doubt. No doubt as discussed hereinabove there are certain discrepancies and blemishes in the depositions of some of the witnesses, however it is well settled law that the prosecution is not required to prove its case free from all blemishes, whatsoever, whether relevant or irrelevant. The Hon'ble Supreme Court in Iqbal Musa Patel's case (suprajudgment relied upon by the Ld. SPP), while dealing with the burden of proof that the prosecution is expected to discharge for proving the guilt of an accused has made the following observations:
"It is true that the prosecution is required to establish its care beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller Vs. Minister of Pension (1947) 2 ALL ER 272:
"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is to strong against a man as to leave only a remote possibility SC No.16/10 page 37 of 43 NCB Vs. Teo Kok Siong & Anr.
in his favour which can be dismissed with sentence 'of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt....
It is true that under our existence jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man.
Smelling doubts for the sake of giving benefit of doubt is not the law of the land."
29.It will also be relevant to mention herein that Ld. Defence Counsel has vehemently contended that the statements purportedly tendered by the accused persons u/s 67 of the NDPS Act are not admissible against them as the accused persons had retracted the said statements and that even otherwise the said statements cannot be stated to have been voluntarily given for they were taken when the accused persons were already in custody of the NCB officials. With respect to the contention, it is firstly made clear that this court has reached to the conclusion that the case of the prosecution has been proved, independent of the statements tendered by the accused persons. It is however also to be noted that though the said statements have been retracted by the accused persons, it is a matter of fact that the said retractions have been made quiet belatedly. The retraction statement was given by accused Nirmala on 31.05.2011 and SC No.16/10 page 38 of 43 NCB Vs. Teo Kok Siong & Anr.
that by Teo Kok was given on 08.07.2010. Though it can be argued that both the accused persons being foreign nationals were not aware that they could send such a retraction to the court, a perusal of the retraction statement sent by them show that in the same they have not stated the facts which they have deposed for the first time in the court during recording of their statement u/s 313 Cr.PC or thereafter when they appeared in the witness box. None of the accused persons have mentioned what type of threat was given to them. There is also no reason for this court to believe the defence put forward by the accused Nirmala that she was picked up from her sister's house forcibly on the night of 29.03.2010 the deposition of DW3, the sister of accused Nirmala, an interested witness cannot be taken to be sufficient for this purpose, more so when she has admitted that she had not made any complaint against the forcible picking up of her sister.
30.The contention of the Ld. Defence Counsel that there is no evidence produced on behalf of the prosecution to prove that that both the accused persons were in conspiracy with each other or that any of them had the knowledge that the bag allegedly handed over by accused Nirmala to Teo Kok contained contraband also cannot be upheld in the facts and circumstances of the present case. All the evidence produced on record as discussed hereinabove clearly show that accused Nirmala had handed SC No.16/10 page 39 of 43 NCB Vs. Teo Kok Siong & Anr.
over the bag to accused Teo Kok and this circumstance in itself is sufficient to prove the conspiracy amongst the two of them. There is nothing else that the prosecution had to prove. Further once when it has been proved by the prosecution that the bag handed over by accused Nirmala to accused Teo Kok was found to contain 7 Kg of hashish, the onus to prove that they were not aware of the contents of the bag was upon the accused persons. Section 35 and 54 of the NDPS Act make it very clear that once an accused is proved to be in possession of contraband it is for the accused to prove that he has not committed an offence under this Act and that he had no knowledge of the existence of the contraband in their possession. In the present case, there is no evidence produced on behalf of the defence in this regard and thus it will have to be held that the prosecution has been able to prove its case against the accused persons and as such both the accused persons are held guilty of the offence that they have been charged with. Announced in open Court on this 6th day of October, 2012 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House:New Delhi SC No.16/10 page 40 of 43 NCB Vs. Teo Kok Siong & Anr.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI NCB Vs. Teo Kok Siong SC No. 16/10 ORDER ON SENTENCE Present: Ms. Mala Sharma, SPP for NCB.
Both convicts from J.C. Ld. Defence Counsel Sh. T.K. Mahapatra.
The convicts in the present case have been held guilty by this court vide order dated 06.09.12 for the offence punishable u/s 20(b)(ii)(C) r/w section 29 of the NDPS Act.
Ld.SPP for NCB has prayed that the convicts be sentenced to imprisonment for the maximum period provided under the NDPS Act as the convicts were found in possession of 7 Kg of Hashish. She has submitted that the offences relating to narcotic drugs and psychotropic substances have a great impact on the social order and the health fabric of the entire society and that therefore a stern sentence should be imposed upon the convicts.
Ld. Defence Counsel Sh. T.K. Mahapatra, on the other hand, has submitted that both the convicts are young persons and that they are victims of circumstances. The convict Nirmala present in court submits that SC No.16/10 page 41 of 43 NCB Vs. Teo Kok Siong & Anr.
she has a 13 year old daughter and that her husband has deserted her 10 years back and that there is nobody to look after her minor daughter. The convict Teo Kok states that he is only 30 years old and that his mother is mentally unstable and he was the only one who was looking after her. Both the convicts therefore pray that a lenient view may be taken by this court and that they be imposed minimum sentence as provided under the Act.
I have carefully considered the submissions made by both the Ld. Counsel and Ld.SPP for NCB.
Though present is a case of recovery of commercial quantity of hashish, taking into consideration the age, antecedents and family background of the convicts and the submissions made by them and the fact that they have no previous criminal antecedents, this court is of the considered opinion that the convicts need to be reformed and rehabilitated and therefore deserve only the minimum sentence prescribed for the offence that they have been held guilty of. The convicts are hereby therefore sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/(Rupees one lakh) each and in default thereof to undergo simple imprisonment for a period of six months. Convicts be also given benefit of section 428 Cr.P.C. Copy of the judgment and this order of sentence be given to convicts. The case property be confiscated to the NCB after the expiry of period of appeal/revision. This file be consigned to SC No.16/10 page 42 of 43 NCB Vs. Teo Kok Siong & Anr.
record room.
Announced in the open Court on this 11th day of October, 2012 (Anu Grover Baliga) Special Judge NDPS: New Delhi Patiala House: New Delhi SC No.16/10 page 43 of 43