Delhi District Court
Ncb vs Sugandh Gupta And Anr on 21 August, 2017
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL SESSIONS JUDGE 04
PATIALA HOUSE COURTS: NEW DELHI.
CNR No. DLND010000682012
SC No. 8520/16
Narcotic Control Bureau
Through Intelligence Officer
Sh. Azad Singh
Delhi Zonal Unit, West Block1,
Wing No. 7, R.K. Puram,
New Delhi110066 Complainant
Vs
1. Sugandh Gupta
S/o late Sh. Rambrishk Gupta
Village Niroi, POKerja
PSRampur Kharkhana
Doria, Distt. Gorakhpur, UP
2. Hashim Khan
S/o Sh. Jamil Kadar Khan
R/o Pathan Patti
PO Daryapur, Distt. Motihari Accused persons
NCB Vs Sugandh Gupta and Anr
SC No. 8520/16 Page no. 1/38
Date of Institution : 06.03.2012
Date of Arguments : 11.08.2017
Date of Judgment : 21.08.2017
JUDGMENT:
1. The Narcotics Control Bureau (hereinafter referred to as NCB) through its Intelligence Officer (IO) Sh. Azad Singh, has filed the present complaint against the aforementioned accused persons u/s 20 (b) (ii) (c ) r/w section 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act).
2. Briefly stated, the facts that can be culled out from the assertions made in the complaint and the documents filed therewith are as follows:
(a) On 12.10.2011 at about 16:00 hours, complainant received an information that one person namely Sugandh Gupta is bringing narcotic drug from Gorakhpur (UP) in truck bearing no. UP 53T 1633 and on 13.10.2011 at about 2300 hours, he will deliver the said narcotic drug to Sanjay Kumar, S/o Sh. Rajkumar, R/o Village Barad Khera and Rajender @ Pandit S/o Sh. Suraj Bhan, Village Julana, Distt. Jind, Haryana at Supra Chowk, Rohtak, Haryana. If the search of the truck is carried out, it may NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 2/38 result in the recovery of huge quantity of narcotic drug.
(b) The said information was reduced into writing and was put up before Sh. Y.R. Yadav, Superintendent of NCB, DZU and on his directions a raiding team consisting of Investigating Officers Sh. Azad Singh the complainant, Sh. C.S. Rai, Sh. C.S.K. Singh, sepoy Sanjeev Kumar, sepoy Narender Kumar, farash Sudhir Naik along with driver Rajbir Singh was constituted. Thereafter complainant collected seal no. 3 DZU and search authorization warrant from Sh. Y.R. Yadav, Superintendent along with other sealing materials and necessary equipments. They departed from the office at about 1800 hrs in official vehicle Bolero no. DL 2C 1168 and reached Supra Chowk, Rohtak at about 2030 hrs. IO inspected the area.
(c) At about 2100 hours, the informer reached the spot and disclosed that due to certain reasons the delivery of narcotic drug will now be at Tikri Kalan, Opp. Sai Baba Mandir, New Delhi on 13.10.2011 in between 1300 to 1400 hours instead of Rohtak. Complainant immediately informed about this information to Sh. Y.R. Yadav, on telephone and he instructed him to proceed with the NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 3/38 same team and carry out search in accordance with NDPS Act. The raiding team stayed at Rohtak in night and on the next day morning at about 09:30 hours, complainant along with raiding team departed from Rohtak to Tikri Kalan Delhi and reached the spot at 1200 hours.
(d) Thereafter IO requested passerbys to join as an independent witness during the search and on which two persons voluntarily agreed and joined the raiding party. During the search IO found the truck no. UP 53T 1633 standing on left side of RohtakDelhi raod, Tikri Kalan, Opp. Sai Baba Mandir, Petrol Pump. Surveillance was mounted on the said truck and after sometime two persons came from Rohtak side on motorcycle bearing no. HR 31E 8941 make Bajaj and stopped near the truck. They started talking to the person who was sitting next to the driver's seat and the said person took out a white coloured bag from the truck. When he was about to deliver the same to the persons who came on motorcycle, raiding party proceeded towards them. Both the persons who came on motorcycle got suspicious and ran away from the spot leaving behind the bag as well as their NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 4/38 motorcycle. Sh. Sanjiv Kumar, Farsh Sh. Sudhir Naik and Sh. Narender Kumar ran behind them to catch them, however, by taking advantage of the traffic and congestion they ran away. IO along with other team members cordoned off the truck and the two persons present in the truck. The two persons disclosed their names as Sugandh Gupta and Hashim Khan. Upon inquiry about the persons who ran away from the spot, Sugandh Gupta disclosed the names of the persons as Sanjay and Prakash. IO then shared the information with suspects and before taking their search notice u/s 50 of NDPS Act was served upon them in the presence of public witnesses.
(e) Thereafter, their search and search of truck bearing no. UP 53T 1633 was carried out and during the search of cabin of driver, white colour plastic bag was recovered from the long seat behind driver's seat containing some substance. Thereafter, the bag which was taken out for delivering to the persons on motorcycle was also searched. During search the said bag was found containing 35 yellow coloured plastic packets wrapped with tape and upon opening the packet it was found NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 5/38 having black/brown colour cylindrical shaped substance and out of it small quantity was tested with field testing kit which gave positive result for charas/hashish. After that all packets were opened and small quantity of suspected substance was drawn from each packet and tested with field testing kit which gave positive result for charas/hashish. Thereafter all narcotic drug was kept in the plastic bag and on weighing it was found to be 35 kg. Two samples of 25 gm each were taken from the said substance and were kept into transparent polythene which were further wrapped in white envelope and the same were marked as A1, A2. The remaining charas was kept in the same plastic bag along with 35 yellow colour empty packets and converted into pullanda mark A.
(f) All the parcels and samples were duly sealed with paper slips having dated signature of IO, both witnesses and that of accused persons and seal of the Narcotic Control Bureau DZU3.
(g) Thereafter search of second plastic bag was carried out and on opening it was found containing 24 yellow colour plastic packets wrapped with tape. On opening it NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 6/38 was found containing same coloured and shaped substance as recovered from the first bag and upon testing with field testing kits it gave positive result for charas/hashish. Thereafter on weighing it was found to be 25kg. Two samples of 25gm each were taken from the said substance and were kept in transparent polythene and was further wrapped into white envelope and was marked as B1 and B2. The remaining charas was kept in the same plastic bag along with 24 yellow colour empty packets and converted into pullanda mark B.
(h) All the above said parcels and samples were duly sealed with paper slips having dated signature of IO, both witnesses, that of accused persons, and seal of the Narcotic Control Bureau DZU3. The facsimile of said seal was appended on page 5 of the panchnama dated 13.10.2011. the panchnama and test memo in triplicate was prepared on the spot in the presence of public witnesses and accused persons. The samples A1, A2, B1 and B2, pullandas A and B along with above said truck and motorcycle were seized and thereafter raiding party along with seized articles proceeded for NCB office.
(i) The accused persons and witnesses were issued NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 7/38 summons u/s 67 NDPS Act. Their statements were recorded. During the recording of statement of Sugandh Gupta, IO Rajesh Kumar got the knowledge of the fact that truck no. UP 53T 1436 belonging to Guddu Shah, parked at G.T. Karnal Road, Near Alipur, Sanjay Gandhi, Transport Nagar, might have concealment of hashish in the said truck. IO Rajesh Kumar reduced that information into writing on 14.10.2011 at 1230 hours and placed the same before Sh. Y.R. Yadav, Superintendent, NCB and on his instructions a raiding team consisting of Intelligence Officers G.S. Bhinder, Jai Bhagwan, Sepoy Digamber Singh and driver Rajbir Singh along with accused persons proceeded from NCB office in official vehicle and reached the above said spot. They searched the above said spot to trace the said truck. However, no truck bearing number UP 53T 1436 was found in the said area.
(j) The accused persons were arrested on 14.10.2011 at 1800 hours and 1830 hours and were medically examined at Safdarjung hospital. Reports u/s 57 NDPS Act regarding seizing of articles and arrest of accused persons were also submitted by IOs to Superintendent. The case NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 8/38 property along with samples and test memo was deposited in Malkhana and official seal was deposited with seal incharge by IO Azad Singh in DZU office.
(k) During the course of investigation, summons u/s 67 were also sent to Sanjay and Rajender Pandit. However, they did not appear. Team of complainant department visited their house but they were not found present at their respective home. Nothing incriminating was found from their respective home. Panchnama was drawn accordingly. Thereafter statements of various witnesses were recorded and samples along with test memos were sent to CRCL, New Delhi for testing. As per CRCL report dated 14.12.2011 the samples gave positive test for Tetrahydrocannabinol (charas). Hence, the present complaint has been filed against the accused persons.
3. On the basis of material available on record charge was framed against the accused persons u/s 20 (b) (ii) (c ) r/w section 29 NDPS Act, to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution examined 16 witnesses.
5. PW1 IO Azad Singh, PW6 IO C.S. Rai and PW8 NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 9/38 IO Chander Shekhar Kumar Singh, being the members of raiding team, have more or less deposed on similar lines and have reiterated the allegations made in the complaint. During investigation, summons were served upon the accused persons and witnesses which have been duly exhibited.
6. PW2 Shiv Kumar and PW3 Sonu Aggarwal, are public witnesses who have witnessed the entire recovery proceedings conducted at the spot.
7. PW4 Sh. Vijay Kumar, Assistant Chemical Examiner deposed that on 14.10.2011, Sepoy Digamber Singh brought the samples along with test memo and forwarding letter. There were two samples A1 and B1 on which seals were intact. He received the same and issued acknowledgment Ex.PW4/A to Digamber Singh.
8. PW5 Kamal Singh, Assistant Chemical Examiner and PW13 V.B. Chaurasia, Chemical Examiner, have deposed that the samples in question deposited with the CRCL, was examined by PW5 Kamal Singh, Assistant Chemical Examiner under the supervision of V.B. Chaurasia. Test report on section II of the test memo has been exhibited as ExPW5/A and chemical analysis report prepared by NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 10/38 them in this regard as Ex.PW5/B. As per their depositions, the samples in question had tested positive for Charas.
9. PW7 G.S. Bhinder, Assistant Commandant, BSF, Tripura, testified that on 14.10.2011 he was posted as IO in NCB DZU and on that day on the asking of Sh. C.S.K. Singh, IO NCB, he recorded the statement of accused Hashim Khan. The said statement was proved as Ex.PW7/A. On the same day at about 13:00 hours he was called by Sh. Y.R. Yadav, Superintendent, who informed him about the secret information received by Sh. Rajesh Kumar, IO to search the truck bearing no. UP 53T 1436, which was likely to be stationed at G.T. Karnal Road Bypass, Sanjay Gandhi Transport Nagar, Delhi. He along with IO Jai Bhagwan, Sepoy Digamber and driver Rajbir went there in official vehicle but could not find the truck. He submitted his report Ex.PW7/B to this effect to Superintendent. On the same day in the evening he arrested accused Hashim Khan vide arrest memo Ex.PW7/C; his jamatalashi was conducted vide memo Ex.PW7/D and thereafter he submitted the arrest report Ex.PW7/E of accused Hashim Khan u/s 57 NDPS Act to NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 11/38 Superintendent Sh. Y.R. Yadav.
10. PW9 Kiran Bala, PA in the Ministry of Railways, New Delhi deposed that on 10.12.2011 she was working as IO in NCB, DZU. On that day on the asking of IO Azad Singh, she recorded the statement of one lady namely Kalawati, on her dictation.
11. PW10 Sanjiv Kumar, Sepoy, NCB DZU, was the member of raiding party, who deposed about the proceedings conducted at Rohtak, Supra Chowk and thereafter at Tikri Kalan, Delhi.
12. PW11 Digamber Singh, NCB DZU, has deposed that on 14.10.20177 on the directions of Sh. Y.R. Yadav, Superintendent, he had gone to CRCL New Delhi to deposit the two samples along with duplicate test memo form and forwarding letter and had deposited the same against receipt Ex.PW4/A issued by CRCL.
13. PW12 Rajbir Singh is the driver, NCB DZU, who had taken the raiding party in official vehicle make Bolero bearing no. DL 12C 1168 to Supra Chowk, Rohtak and thereafter to Tikri Kalan near Sai Mandir.
14. PW14 Sh. Sanjay Rawat, Assistant Commandant BSF at 158 Batallion Fatikchera District, deposed that NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 12/38 on 13.10.2011, he was working as Intelligence Officer Malkhana Incharge in NCB, DZU and that in the present case, the entire case property and test memo in triplicate along with one Tata Truck and one Bajaj motorcycle were deposited with him in the Malkhana. He had made an entry to this effect in the Malkhana register. The said entry has been exhibited as Ex.PW14/A. He has also deposed that on 14.10.2011 samples mark A1 and B1 along with test memo in duplicate were handed over by him to PW11 Sh. Digamber Singh, Sepoy for depositing the same in CRCL. The entry to this effect was also made in malkhana register. He also received the remnant samples mark A1 and B1 sent along with test report and deposited the same back in the Malkhana on 11.11.2011. He has also deposed that on 5/12/2011 he released the truck on superdari and he had made entry to this effect in the malkhana register. The said entry has been exhibited as ExPW17/A.
15. PW15 Sh. Y.R. Yadav, Superintendent has deposed that on 12.10.2011, he was posted as Superintendent NCB and on the said day, PW1 IO Azad Singh put up a secret information before him; he directed PW1 to NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 13/38 constitute team; he issued a departmental seal of Narcotics Control Bureau DZU 3 to IO Azad Singh and entry to this effect was made by him in the seal movement register Ex.PW15/A. On the same day at about 2300 hours IO Azad Singh informed him on telephone about the change of place of delivery of narcotic drugs i.e. now the delivery will take place at Tikri Kalan, Delhi at about 13:00 to 14:00 hours. He directed IO Azad Singh on telephone to take action with the same team. He further deposed that the said seal was returned to him by IO Azad Singh at 18:00 hours on 13.10.2011.
16. PW15 further deposed that on 14.10.2011, PW16 IO Rajesh Kumar put up another information that a truck bearing no. UP 53T 1436 parked at G.T. Karnal Road, may have the consignment of drug. He directed PW7 G.S. Bhinder to constitute a team and take action. He proved the said information as Ex.PW15/B. PW7 G.S. Bhinder submitted his report regarding search of said truck. He forwarded the sample and test memos to CRCL through constable Digamber Singh vide forwarding letter Ex.PW15/C. IO Azad Singh, Rajesh Kumar and G.S Bhinder submitted the seizure report and arrest reports NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 14/38 u/s 57 NDPS Act to him. During investigation he had written letters to SP Gorekhpur, SP Motihari, SP Jind regarding verification of character and antecedents of accused persons. The said letters were exhibited as Ex.PW15/E (colly). He also proved a letter dated 25.10.2011 written to Asst. Commissioner for communicating the residential address of Sugandh Gupta and letters dated 08.11.2011 written to Superintendent of Police Jind for service of summons against Rajinder and Sanjay as Ex.PW15/F and Ex.PW15/G respectively. However, the summons could not be served even after sending the same through special messenger constable Narender and SP Jind.
17. PW16 Sh. Rajesh Kumar, Inspector CISF Unit, ONGC, Mumbai deposed that on 14.10.2011 he was posted as IO with DZU. He recorded the statement of accused Sugandh Gupta Ex.PW16/A on 14.10.2011. On the same day he also recorded the statement of Sonu Aggarwal u/s 67 NDPS Act. He also arrested accused Sugandh Gupta vide arrest memo Ex.PW16/B and took his personal search vide memo Ex.PW16/C. On 15.10.2011 he put arrest report of accused Sugandh NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 15/38 Gupta u/s 57 NDPS Act before Sh. Y.R. Yadav, Superintendent.
18. All the incriminatory facts and circumstances appearing in prosecution evidence were put to the accused persons at the time of recording of their statement u/s 313 Cr.PC which have been denied by them. They have claimed false implication in this case.
19. Both accused persons claimed in their statements u/s 313 Cr.PC that accused Hashim Khan was driving the truck for going towards Jind Haryana and at Alipur at about 1111.30 pm on 12.10.2011 Sugandh Gupta went to sleep. Before 1516 kms before Jind, at about 3.304.00 am on 13.10.2011, 78 persons in Bolero car came and parked their vehicle in front of the truck. Hashim Khan woke up Sugandh Gupta and told him about the Bolero vehicle. 23 persons out of those 78 persons came into the cabin of the truck forcibly and one of them pointed out pistol on Hashim Khan and asked him to get down from the truck. They tied their hands with the help of gamchas (thin towel) which Hashim Khan was wearing and forcibly made both of them to sit in the Bolero car. They threatened both accused persons that in case they NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 16/38 raise any alarm they will shoot them. Then those 78 persons took accused persons to some place in Delhi and locked both accused persons in separate rooms and got the signatures of both accused persons on different papers.
20. Both accused chose to lead evidence in defence.
However, on 03.11.2014 defence counsels submitted that they do not wish to lead any defence evidence.
21. I have heard arguments addressed by Ms. Renu Bansal, learned SPP and Sh. S.K. Santoshi, learned counsel for accused Sugandh Gupta and Ms. Gunjan Gupta, learned counsel for accused Hashim Khan. I have also gone through the material available on record carefully.
22. POINTS FOR DETERMINATION U/S 354 (1)
(b) Cr.PC.: From the arguments of learned counsels for parties, following points for determination emerge : (1) Whether the secret informations as put forward by the prosecution are trustworthy and prosecution has been able to prove the alleged recovery of contraband from NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 17/38 either of the accused persons?
(2) Whether the case property was kept in safe custody with no chances of tampering, during its storage at NCB and transportation to CRCL?
(3) Whether proper investigation in this case has been conducted, if not so, its effect?
(4) Whether the accused persons can be convicted on the basis of their respective statements u/s 67 NDPS Act? (5) Whether either of the accused can be convicted for any of the offence charged against them?
23. It is submitted by learned SPP that in view of the testimony of official witnesses, duly corroborated by the panch witnesses, prosecution has successfully established the recovery of contraband from the accused persons. She has relied upon Dhyan Chand and ors. Vs State of Haryana (2013) 14 SCC 420 submitting that u/s 35 and 54 of NDPS Act, presumption of culpable mental state should be drawn against the accused persons in the present case as prosecution has successfully proved the recovery from their possession.
24. Learned Ms. Renu has further submitted that the statements of accused persons as well as witnesses NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 18/38 recorded u/s 67 NDPS Act can be used as confession and a piece of evidence against accused persons and same are excluded from operation of sections 24 to 27 of Indian Evidence Act. She has relied upon Kanhaiya Lal Vs UOI, AIR 2008 SC 1044. She has also submitted that there is nothing on record to suggest that accused persons were compelled to make the statements u/s 67 NDPS Act.
25. Learned Ms. Bansal relied upon Satpal Singh @ Gogi Vs NCB 210 (2014) DLT 125 to submit that once the contraband article was recovered from the truck of accused persons, it was for them to offer an explanation, if they were not aware of the same. She submits that the accused persons have miserably failed to do so in the present case. She has further relied upon Rehmatullah Vs NCB 158 (2009) DLT 539 to submit that in the absence of any complaint by accused persons, to substantiate that they were forcibly lifted by the NCB officials and in the absence of any corroborative medical evidence, the belated retraction from statement u/s 67 NDPS Act, cannot be relied upon.
26. She has therefore submitted that both accused NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 19/38 persons are liable for conviction for the charges framed against them.
SECRET INFORMATION AND RECOVERY:
27. Prosecution story begins with the receipt of secret information allegedly on 12.10.2011 at 4.00 pm that accused Sugandh Gupta is bringing Narcotics in truck No. UP 53T 1633 from Gorakhpur, UP to deliver the same on 13.10.2011 at 23:00 hours at Supra Chowk, Rohtak, Haryana to Sanjay Kumar S/o Sh. Raj Kumar, VillageBrar Khera and to Rajinder @ Pandit S/o Sh. Suraj Bhan, VillageJulana, DistrictJind, Haryana. After completing the formalities and obtaining necessary permission/authorization NCB team led by seizing officer IO Sh. Azad Singh, left their R.K. Puram office at about 18:00 hours in official vehicle No. DL 2C 1168 and reached Supra Chowk at 20:30 hours. At 21:00 hours secret informer reached the spot and disclosed that due to certain reasons now the delivery of narcotic drug will be at Tikri Kalan, opposite Sai Baba Mandir, New Delhi on 13.10.2011 in between 13:00 to 14:00 hours.
28. It is rightly submitted by learned defence counsel NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 20/38 that the story put forward by prosecution appears to be highly unreasonable and improbable for following reasons :
(a) Though the first information was received on 12.10.2011 at 4.00 pm and delivery was supposed to be made after around 31 hours at specified place on 13.10.2011 at 23:00 hours but the NCB team allegedly reached at the spot at around 20:30 hours on 12.10.2011 i.e. the NCB team reached the spot around 26 ½ hours before the scheduled delivery. In his crossexamination seizing officer IO Azad Singh stated that he used to reach the scheduled place of delivery generally 12 hours before the delivery. In the present case there is no explanation why the NCB team reached the scheduled place of delivery at Rohtak more than a day and night ahead of the scheduled time of delivery, whereas in the case of second information about change of time and place of delivery they again reached Tikri Kalan, Delhi just 1 hour prior to the alleged time of delivery.
(b) It has come in the crossexamination of PW1 that on 12.10.2011 at 4.00 pm secret informer had come personally to deliver information in the office of NCB at NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 21/38 R.K. Puram. After 2 hours at 6.00 pm NCB team left to Rohtak and reached scheduled place of delivery at 8.30 pm. At 9.00 pm same secret informer again came to IO at Rohtak on foot and informed him about the reschedule of delivery at Tikri Kalan on 13.10.2011 between 13 hours to 14 hours. This seems to be highly improbable that the secret informer would be knowing that the NCB team had reached the spot around 26 hours prior to scheduled place of delivery and he would find the IO there. There is nothing on record to suggest that the informer firstly contacted the IO telephonically or otherwise, to verify his location at Rohtak. It is further strange that secret informer reached the spot on foot just after half an hour of the raiding team which went through official Bolero car.
(c ) The raiding team allegedly consisted of 7 members. They reached at Rohtak within 2 ½ hours after leaving their office at 6.00 pm. Even on the next day they left the spot at Rohtak at about 9:30 hours and reached the spot at Delhi at 12:00 hours. It can therefore be said that the NCB officials could have reached from Rohtak to Delhi within 2 ½ hours. As per crossexamination of the NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 22/38 members of raiding team all the 7 members spent their night in the official Bolero car, slept and took rest in the same. The court finds it highly unbelievable and unreasonable. If the NCB team could have reached back to Delhi within 2 ½ hours after receipt of information at 9.00 pm, it was no prudence of the IOs or other members of the team to stay back at Rohtak in the Bolero car itself with no facility in congested space. Any prudent man would naturally come back to his home or to his office to take proper rest when it is only about 7080 kms and it would not take more than 2 ½ hours to reach there. In such case of return to Delhi, even the written information could have been put before the superior officer well in time before raid.
(d) As per the case of prosecution the raiding team went to the spot in official vehicle Bolero but panch witness PW3 Sonu has stated in his crossexamination dated 24.09.2012 that the officials had a Qualis vehicle with them.
(e) Members of raiding team deliberately attempted to mislead the court and to conceal material facts from the court which raises a serious doubt about truthfulness of NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 23/38 the story put forward by them. It is a matter of common knowledge that log book for use of official vehicle is generally maintained in the government offices. In the case in hand PW1 seizing officer IO Azad Singh flatly denied that any log book was maintained stating in his crossexamination dated 14.05.2013 "There is no log book or any other kind of record maintained to record that a particular vehicle with a raiding team had gone out of station." If such proposition is accepted, there may be wide spread misuse of government vehicle for the personal works of the officials. There may be wide spread theft of the fuel and other articles. The stand taken by this witness was falsified by ultimate production of the log book of the vehicle by PW12 driver Rajbir Singh, another alleged member of the raiding team. Even PW15 Superintendent Y.R. Yadav, attempted to mislead the court. In his crossexamination recorded on 02.05.2014, he stated "As per my knowledge a log book used to be maintained during the said time by the Intelligence Officer, head quarters. I am not aware whether the log book with respect to the vehicles used in the present case have been filed along with the complaint or not."
NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 24/38 Similarly PW8 IO Chander Shekhar stated that he was not aware whether any log book for movement of Government vehicles was being maintained in their office. He however, admitted that only one vehicle had gone to Rohtak and all the members of the raiding team were in the same vehicle. These statements of the Investigating Officers as well as Superintendent are deliberate false attempt to mislead the court, is clear from a bare perusal of the log book ultimately produced by PW12, copy of which is Ex.PW12/DA. In column no. 7 of this log book name and designation of the officer(s) using the staff car is supposed to be mentioned. In all the relevant entries the said column is filled handwritten. The same reflects that the staff car was being used by Investigating Officers G.S. Bhinder, Azad Singh, C.S.K. Singh etc. on different occasions. In column no. 10 signature of the officer using the car are required. The said column also bears the signatures of different officials (IOs) using the car at different points of time. The officials signing in column no. 10 would naturally be one of the official as mentioned in column no. 7. When the raiding team head Mr. Azad Singh and other member are NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 25/38 using official car on various occasions in routine course of their duties, it cannot be presumed that they would not be aware of the maintenance of the log bog specially when they are supposed to sign in column no. 10, to confirm the user of the official car. Hence, PW1 IO Azad Singh made a deliberate false statement about non maintenance of log book of official vehicles in the NCB office. PW15 Y.R. Yadav also attempted to mislead the court. This raises a serious doubt about the use of official vehicle in visiting the alleged spots at Rohtak and at Delhi. The story of the visit of the raiding team at Rohtak as well as Tikri Kalan, Delhi is falsified by production of the log book Ex.PW12/DA. It was observed by my Learned predecessor while recording testimony of PW12 that there were almost 143 pages of the filled up log book register. Witness PW12 admitted that out of those 143 pages there was no other page in which the name of the officer using the staff car was wrongly written and then overwritten. From the testimony of this witness it was also clear that the name of Mr. M.M.S. Bhandari was mentioned in column no. 7 showing him an officer using the official car though said Mr. M.M.S. Bhandari was NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 26/38 neither a member of raiding team nor was connected with any of the proceedings in this case. It is important to mention here that even the name of seizing officer, head of the raiding team was written after overwriting at point D in the log book. The date of using the vehicle was overwritten at point A. The time till which the vehicle was used was overwritten at point B. The kilometeres covered by vehicle were overwritten at point C. As already observed the name of IO Azad Singh as user of vehicle was overwritten at point D. Despite writing the name of Mr. Azad Singh, the name of Mr. M.M.S. Bhandari (without overwriting), not anyway associated with this case also appeared above point D. At point E again the name of Mr. Azad Singh and Mr. C.S.K. Singh, IOs were overwritten. At point F the dates for which vehicle was used as well as the patrol drawn for using the vehicle was overwritten.
29. In the facts and circumstances, no prudent person would believe that on one single user of the vehicle there would be so many material mistakes committed by the concerned driver, when there was no mistake committed in hundreds of the entries running in 143 pages. In this NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 27/38 one page itself of the log book exhibited by the prosecution, there are six different entries.
30. In the facts and circumstances, the court is satisfied that the entries in the log book are falsified in order to give evidence in the present case. The contradictions in the testimony of the panch witness, as compared to the testimony of official witness qua the make of vehicle used, suggest that the members of the alleged raiding team never visited any of the spots in the official Bolero car, as alleged in the complaint or in their testimony. The entire prosecution story therefore falls flat. The alleged recovery of the contraband from both the accused persons is covered under serious cloud of doubt.
31. It is rightly submitted by learned counsel for defence that panch witness are also not trustworthy. Panch witness Sonu was examined on 24.09.2012. In his testimony he stated that no summons were given to him at the spot but one person gave him the summons after a few days. In contrast thereto the prosecution case is that the summons were delivered to him at the spot. His statement u/s 67 NDPS Act was recorded on 14.10.2011 itself. In his crossexamination by learned Sh. S.K. NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 28/38 Santoshi, counsel for accused Sugandh Gupta, he stated that he was given the summons by NCB officials for appearing in their office after 24 days of the incidence. The alleged recovery was made on 13.10.2011. If it is believed that summons were delivered to him after 24 days, the same must have been delivered from 15/17.10.2011. He must have appeared after that. Therefore his statement could not have been recorded before 16.10.2011 but as per the date on his statement, the same was got recorded on 14.10.2011 itself. Hence, the statement u/s 67 NDPS Act of this witness was antedated.
32. Furthermore, this witness was in the habit of changing his name which fact was revealed by his subsequent crossexaminations, with the permission of court on 03.11.2014 and 04.11.2016. In the crossexamination dated 03.11.2014 it came to light that he was an accused in case FIR no. 233/2007 u/s 379/411 in the name of Mr. Vinay. He had given three addresses in the said FIR 233/2007. Lateron this witness was again crossexamined on 04.11.2016 when accused got to know about another case FIR no. 17/2009, PSSaket u/s NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 29/38 420/468/471/381/120B/34 IPC registered against him in different name and address of Sh. Vinay Garg, S/o Sh. Prem Chand Garg, R/o RZB121 A/1, Gurudwara Road, Mahavir Enclave. Hence, it can be said that PW3 Sonu Aggarwal was using different names, parentage and addresses at different places. Hence, the submissions of learned defence counsel that he is stock witness of NCB, cannot be lightly brushed aside.
33. Hence, it can be safely said that the entire story of prosecution about the receipt of secret information, their visits to the spots at Rohtak and Delhi and the recovery of contraband from the possession of accused persons is under serious cloud of doubt.
34. Judgments relied upon by learned Ms. Renu Bansal qua the culpable mental state of accused persons are not applicable in the facts and circumstances of the case, when the prosecution has miserably failed the recovery of narcotic drugs from the possession of accused persons.
SAFE CUSTODY OF CASE PROPERTY/SAMPLES:
35. Next question for determination as raised by learned defence counsel was qua the non compliance of NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 30/38 section 55 NDPS Act.
36. It is rightly submitted by Sh. S.K. Santoshi, counsel for accused Sugandh Gupta that in view of the testimony of PW14 Sanjay Rawat Malkhana Incharge, PW15 Y.R. Yadav Superintendent and PW11 Digamber Singh, it cannot be concluded that the samples were kept in safe custody and there was no chance of tampering with the same.
37. PW14 Sanjay Rawat testified in his examination in chief that on 13.10.2011 he was working as Malkhana incharge in the office of NCB. The case property samples mark A1, B1 and A2, B2 along with test memos were deposited with him on the same day. PW11 Digamber Singh claimed that on 14.10.2011, PW15 Y.R. Yadav Superintendent had handed over him two samples along with test memo. The testimony of PW11 reflects that the samples were not in the malkhana as stated by PW14 Sanjay Rawat. It has to be kept in mind that PW15 is the keeper of official seal affixed on samples and lying of samples with him is a serious lapse. PW11 further did not testify that till the samples remained with him they were not tampered with. Hence, it cannot be said that the NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 31/38 samples in question were kept in safe custody and mandate of section 55 NDPS Act was followed. In the case titled as Hannan Vs State of NCT of Delhi, 2013 (3) JCC (Narcotics) 94, Hon'ble High Court of Delhi, held:
10. In view of the fact that two material witnesses PW8 MHC(M) Bhaiya Ram and PW9 Ct. Shamim Akhtar in whose custody the case property was did not state that the case property was not tampered with. I am of the considered opinion that the prosecution has failed to prove the link evidence. In view of the peculiar facts of the case, the Appellant is acquitted of the charges framed. The appeal is disposed of. The Appellant be released forthwith if not required in any other case".
In the case in hand also PW11 has not stated that till the case property remained in his custody the same was not tampered with. Benefit of this fact need to be given to accused persons.
INVESTIGATION IN THE CASE:
38. The next point raised by learned defence counsel was about the non conduct of proper investigation.
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39. Learned defence counsel has rightly submitted that in the case in hand, no proper investigation has been conducted. In the statement u/s 67 NDPS Act of accused Sugandh Gupta, name of Mr. Prakash, who had delivered the narcotics to accused and one Mr. Guddu Saha, surfaced. Their telephone numbers were also allegedly given by accused Sugandh Gupta but despite this no effort was made to verify the call detail records of accused persons or Mr. Prakash or of accused persons. No serious efforts appears to have been made to trace the said Prakash, despite availability of his mobile number in this regard. Learned counsel for defence has relied upon judgment in the case of Masoom and Ors (Mohd) Vs State of NCT of Delhi 2015 III AD (CRI) (DHC) 349, wherein it was held :
23. The prosecution has not given any explanation as to why cellular evidence was not brought on record. It has come on record that A2 had conversation on mobile in his possession at IGI Airport. Personal search memo (Ex.PW11/C) shows recovery of two Nokia Mobiles (IMEI Nos. 3560540378346 and 35435000560360); with Vodafone and Idea chips. Similarly on personal search of A1 vide Ex.PW11/D, one mobile make NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 33/38 Fashion with two SIMs was recovered. The Investigating Officer did not attempt to collect call detail records pertaining to these mobile phones to ascertain as to with whom, at what time and place the appellants were in regular and constant touch. Call Details Records were relevant to ascertain appellants? Location at the relevant time and their nexus with themselves and others."
This fact has also to be considered against the case of prosecution.
40. As per the secret information as well as, as per the statement of accused persons, the delivery was to be made to one Rajinder @ Pandit, S/o Suraj Bhan, R/o Village Jullana, DistrictJind, Haryana. It is rightly submitted by learned counsel for defence that no serious efforts have been made for tracing said person and arresting said Mr. Rajinder @ Pandit. Though it is stated that seizing officer PW1 IO Azad Singh, had visited the premises of Sanjay and Rajinder on two occasions but nothing has been brought on record as to how he had visited. There is neither any log book of the vehicle nor any ticket nor there are details as to how this witness had gone to Haryana. There is no record bearing NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 34/38 acknowledgment of local police that he had given any request to local police for tracing either of two suspects i.e. Rajinder or Sanjay, to whom the delivery was being made as per information.
41. At the request of learned defence counsel another complaint file of NCB pending in this court titled as NCB Vs Dharmender and Ors bearing SC No. 8677/16, was called and it was seen that a person namely Rajinder, S/o Sh. Suraj Bhan, R/o VillageJulana, DistrictJind, Haryana, was cited as witness no. 14 in the list of witnesses in that case. PW16 IO Sh. Rajesh Kumar, is the seizing officer in that case. He categorically admitted in his crossexamination dated 06.05.2014 that name of Rajinder @ Pandit, appeared as witness in one of his cases namely NCB Vs Dharmender Kumar and Ors. It is seen that in NCB Vs Dharmender Kumar also PW15 Sh. Y.R. Yadav, was the Superintendent. It is highly unbelievable that if Mr. Rajinder @ Pandit, S/o Suraj Bhan, VillageJullana, DistrictJind, was a suspect in this case, he could not have been traced by the prosecution in this case, but he was traced and was actually examined as PW15 in the case titled as NCB Vs NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 35/38 Dharmender and Ors. It is further highly unbelievable that members of the raiding team and the Supervisory officer PW15 Sh. Y.R. Yadav, could not have attempted to verify whether PWRajinder in the case of NCB Vs Dharmender and Ors is the suspect in the present case or not. In the facts and circumstances it appears that either no investigation has been conducted in this case or the investigation has been done in motivated manner.
STATEMENTS U/S 67 NDPS ACT:
42. Next question to be decided whether accused persons can be convicted on the basis of their statements u/s 67 NDPS Act.
43. Learned Ms. Renu Bansal, has submitted that both accused persons can be convicted on the basis of their respective statements u/s 67 NDPS Act. She has relied upon the judgment in the case of Rehmatullah Vs Narcotics Control Bureau 158 (2009) DLT 539, to submit that retraction in the present case has been filed belatedly by both accused persons. She has further submitted that there is no cogent evidence that the accused persons were ever harassed, tortured or beaten NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 36/38 in order to extract their statements u/s 67 NDPS Act. The court is in agreement with the submissions of learned SPP that statement u/s 67 NDPS Act are not hit by section 24 to 27 of the Indian Evidence Act. However, in the facts and circumstances of the present case, court is of the opinion that it would be travesty of justice to convict either of accused on their statement u/s 67 NDPS Act specially when no further investigation was made by NCB on the basis of the respective statement of accused persons which has already been held while discussing above points for determination.
44. The retracted statements of accused persons, cannot therefore be relied upon for convicting either of accused persons.
45. In view of the above discussion of court both accused persons are entitled to be acquitted of the charges u/s 20
(b) (ii) (c) r/w section 29 NDPS Act levelled against them.
46. Both accused persons are acquitted accordingly.
Both accused persons be released forthwith if not required in any other case.
47. Accused persons are directed to furnish bail bond u/s 437A Cr.PC.
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48. Case property be confiscated to NCB and the same may be disposed of as per rules and procedures.
49. File be consigned to record room.
Announced in the open court on the 21st day of August, 2017 ( Ajay Pandey ) Addl. Sessions Judge 04, Patiala House Courts, New Delhi/21.08.2017 NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 38/38 NCB Vs Sugandh Gupta and Anr.
SC No. 8520/1621.08.2017 Present: None for NCB.
Both accused persons produced from JC. Sh. S.K. Santoshi, learned counsel for accused Sugandh Gupta.
Vide my separate judgment announced in the open court today, both accused persons are acquitted of the charges u/s 20 (b) (ii) (c) r/w section 29 NDPS Act levelled against them. Both accused persons are directed to furnish personal bond for an amount of Rs.20,000/ each with one surety each in the like amount u/s 437A Cr.PC for their appearance before the appellate court Bonds u/s 437A Cr.PC not furnished.
In the facts and circumstances, both accused persons be not released till the furnishing and acceptance of personal/surety bond before this court or till the expiry of six months during which time NCB may prefer appeal before the Hon'ble High Court of Delhi.
After expiry of six months, and subject to orders of NCB Vs Sugandh Gupta and Anr SC No. 8520/16 Page no. 39/38 Hon'ble Appellate Court, if any, or on acceptance of personal/surety bonds both accused persons be released if their custody is not required in any other case.
Case property be confiscated to NCB and the same may be disposed of as per rules and procedures.
File be consigned to record room.
( Ajay Pandey )
Addl. Sessions Judge 04,
New Delhi District, Patiala
House Courts, New
Delhi/21.08.2017
NCB Vs Sugandh Gupta and Anr
SC No. 8520/16 Page no. 40/38