Delhi District Court
State vs . Sanjay Etc. on 5 May, 2015
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS (N-W): Rohini Courts : Delhi
In the matter of :
SC No. 114/11
State Vs. Sanjay etc.
FIR no. 135/11
PS Crime Branch
U/s 20(b)(ii)(c)/25/27 A/29 NDPS Act
State
Versus
1. Sanjay
S/o Sh. Kail Singh
R/o H.No. A-16/17, Hasthal Vihar,
Uttam Nagar, Delhi
2. Tejvir Singh
S/o Sh. Shishpal
R/o D-10, Gali no. 4,
Kabir Nagar, Shahadra
Delhi
3. Somnath Ghosh @ Bapi
S/o Late Sh. Pradeep Kumar Ghosh
R/o Nar Singh Mandir Road,
Durga, Pali Kanijuri,
PS Khaitrajpur, Distt. Sambalpur, Orissa.
4. Vikram Kumar @ Bunty
S/o Sh. Raj Kumar
R/o 2114/1B, Gali no. 7,
Prem Nagar, Near Patel Nagar, Delhi.
SC no. 114/11 Page 1 of 68
2
5. Pradyuman Pradhan
S/o Sh. Jadab Pradhan
R/o Village Nuagaon,
Tehsil Chhendipada, PS Chhendipada,
District Angul, Orissa
6. Gunjan Kumar Sethi
S/o Sh. Bhagirath Sethi
R/o Village Kanaloi, Tehsil Chendipada,
PS Chhendipada,
District Angul, Orissa
7. Durga Prasad Bishoi @ Durga
S/o Sh. Bauri Bishoi
R/o Sahu Colony, PO Modipara,
PS Town Sambhalpur, Distt. Sambhalpur, Orissa.
Date of receipt : 11.11.2011
Date of arguments : 28.04.2015
Date of announcement : 05.05.2015
JUDGMENT
1. The above named accuseds were sent for trial with the case of prosecution that all of them were in conspiracy with another accused 'S', who was a juvenile in conflict with law, and in furtherance of this conspiracy, ganja used to be supplied from West Bengal to Delhi. From accused Tejvir, Sanjay and 'S', a total 137.650 Kgs of ganja was recovered on 17.05.2011 at Delhi. It may be mentioned here that besides the above named accused, accused Prashant Pradhan, Kishori Pradhan, Maliya Pradhan, Deepak Kumar Pradhan, Parmanand Majhi are proclaimed SC no. 114/11 Page 2 of 68 3 offenders, so declared on 26.09.2012. Remaining 7 ac cused namely Sanjay, Tejvir Singh, Somnath Ghosh, Vikram @ Bunti, Pradyuman Pradhan, Gunjan and Durga Prasad Bishoi faced trial in this case. This judgment is directed against the accused facing trial and evidence in the matter was recorded against the proclaimed offenders U/s 299 of Cr.P.C. It may also be mentioned here that earlier accused Durga Prasad Bishoi was also a proclaimed offender in the present trial but he was subsequently apprehended and he faced trial.
2. The story of prosecution is that on 17.05.2011 at 4.00 PM a secret information was received by ASI Rishi Ram in which it was disclosed that 'S' along with accused Sanjay would come to deliver ganja in front of Haiderpur Water Treatment Plant, Pitampura, Delhi at about 7 PM, in a Tavera car no. DL4CAD- 1134. At that time, ASI Rishi Ram was posted in Special Investigation Team, Crime Branch, Sector-18, Rohini, Delhi. The secret informer also disclosed that ganja was procured from West Bengal and that accused Sanjay and 'S' would come from Karnal Bye-Pass side towards Pitampura side on Outer Ring Road. ASI Rishi Ram conveyed the said secret information to Inspector Jitender Singh and the Addl. DCP/SIT Dr. Joy Tirkey. The secret informer was also produced before those officers. The Inspector and Addl. DCP also inquired from the informer and on being satisfied directed that necessary action be taken. The secret information was thereafter reduced into writing at 4.15 PM under SC no. 114/11 Page 3 of 68 4 DD No.8, and the true copy of the same was forwarded to the Addl. DCP, in compliance of Section 42 of NDPS Act.
2.1 Thereafter, a raiding party was constituted comprising of ASI Rishi Ram, HC Satbir, HC Mohd. Abrar, Ct. Anand Kumar and Ct. Virender which was supervised by Inspt. Jitender Singh. The raiding team along with the informer left the office at 6.30 PM under DD No.9 and took position at the spot. They reached the spot at 6.45 on Outer Ring Road. There certain public persons were requested to become witness but none agreed. At 7.30 PM the said Tavera car came from Karnal Bye-Pass side and entered the service road in front of the under-construction Vivekananda Engineering College. The car then took turn towards Varun Niketan and halted on the service road, near the bus stop, behind the bushes. A pre-determined signal was given by the investigating officer to the raiding team members and the vehicle was surrounded at 7.35 PM. Wedding pamphlets were found pasted on the front and rear wind shield. The window panes of the car were tinted. Two persons were sitting on the middle seats keeping their legs on two bags which were kept between the front and the middle seat row. One driver was also sitting in the car. The rear seats of the car were already removed and 8 huge bags, which were covered with one blanket were kept. The name of driver was revealed as accused Tejvir Singh. The two passengers in the car were accused Sanjay and the juvenile in conflict with law 'S'. The identity of raiding team and the secret information was disclosed to the accused. The accused were informed about their SC no. 114/11 Page 4 of 68 5 legal rights U/s 50 of NDPS Act. The accused persons refused to exercise their rights U/s 50 of NDPS Act upon the written notices served upon them. After noting down their written refusals, search was conducted. Again certain public passers-by were requested to become witness but they did not agree. Initially the two bags kept on the floor between the front and middle seat were taken out. Those two bags were found containing ganja, which on measurement came out to be 13.300 and 14.100 Kgs of ganja respectively. These two bags were given sl.no.1 & 2. Thereafter, the 8 bags found on the rear side of the car were given sl.no.3 to
10. They were also checked and found containing ganja. On measurements, their weights came to be 14.250 Kgs, 14.000 Kgs, 13.600 Kgs, 13.600 Kgs, 13.700 Kgs, 13.400 Kgs, 13.700 Kgs and 14.000 Kgs, respectively. Thus, in total , from the 10 bags 137.650 kgs of ganja was recovered. From each of the bags, two samples each were drawn measuring 250 grams each. The sample parcels were given sl.no. 1A, 1B to 10A, 10B, respectively, corresponding to the bag from which the sample was drawn. Form FSL was filled up at the spot. One deodorant canister of brand AXE was also found in the car which was kept to reduce the stench of ganja in the car. The case property was sealed and taken into possession. The car was also seized. The case was got registered and all the three accused namely Tejvir, Sanjay and 'S' were arrested.
2.2 SI Anil Malik took up further investigation of this case at the spot after the case was registered. During investigation, it was revealed that accused 'S' used to pay money against receipt of SC no. 114/11 Page 5 of 68 6 consignment of ganja by depositing money in the bank accounts of the suppliers in the accounts held in State Bank of India, at the instructions of accused Durga. Accused 'S' led the police team to a shop at Uttam Nagar, New Delhi from where certain SBI bank deposit slips and deposit vouchers, were recovered. The amount used to be deposited through ECO account of SBI. 35 such receipts were seized by the police. From those receipts, it was revealed that amount was deposited in the accounts of accused Gunjan Sethi, Kishori Pradhan, Pradyuman Pradhan, Prashant Kumar Pradhan, Parmanand Pradhan, Maliya Pradhan and Deepak Kumar Pradhan. One Gopal Kaushik, owner of the said shop, at Uttam Nagar, also revealed that one person always used to be accompany accused 'S' while depositing the amount and the mobile numbers of those offenders were also disclosed. Those mobile numbers were 8860202421 and 9910297410.
2.3 During investigation, accused Tejvir and 'S' led the police team to Kolkatta and pointed out one hotel where they used to stay for the purposes of procuring the contraband. From the said guest house, namely, Debalaya Guest House, officials were examined who provided Guest Registration Card for the dates 22.04.2011, 1.05.2011 to 2.05.2011 and, 14.05.2011 to 15.05.2011, qua the stay of accused Tejvir and 'S'.
2.4 During investigation, the mobile call details and the bank account details of the accused persons were collected by the investigating agency in order to complete the chain that accused 'S' used to SC no. 114/11 Page 6 of 68 7 collect the contraband from Orissa and West Bengal and that all the accused persons were in conspiracy. The details of the deposits made in the accounts of the accused persons are mentioned in detail in tabulated form in the charge sheet which are not repeated herein for the sake of brevity.
2.5 On completion of investigation, charge sheet was filed.
3 Accordingly the accused persons were charged for the following offences. Against accused Sanjay charge U/s 20(b)(ii)(C) r/w Sec. 29 of NDPS Act; against accused Vikram @ Bunty U/s 27A/29 of NDPS Act; against accused Tejvir U/s 20(b)(ii)(C) r/w 25 & 29 of Arms Act; against accused Somnath Ghosh U/s 20(b)(ii)(C) r/w 29 of NDPS Act; against accused Durga Prasad U/s 29 r/w 20 & 27A of NDPS Act and; against accused Pradyuman Pradhan and Gunjan, charge U/s 20(b)(ii)(C) r/w 27A and 29 of the NDPS Act was framed. Other accused, as mentioned, are proclaimed offenders. The accused persons pleaded not guilty to the charges and claimed trial.
4 In support of its case, prosecution examined total 31 witnesses.
4.1 Out of the 31 witnesses examined by the prosecution, the recovery witnesses to the contraband from accused Sanjay, Tejvir and 'S' have been examined as PW15 SI Rishi Ram; PW18 Inspector Jitender and; PW19 HC Mhd. Abrar.
4.2 SI Anil Malik, the subsequent investigating officer, is examined as PW27.
SC no. 114/11 Page 7 of 68 84.3 Other witnesses are more or less formal in nature.
4.4 PW1 Satbir Singh from the concerned transport authority proved that the vehicle no. DL4C AD 1134 was registered in the name of accused Tejvir Singh, which fact is not challenged by accused Tejvir Singh.
4.5 PW17 Rajesh Kumar from the concerned transport department proved the driving license of accused Tejvir bearing no. P05052006308180, Ex.PW17/B, which fact is again not denied by the accused Tejvir.
4.6 PW2 Gopal Kaushik deposed that he used to run ECO Service Point under CSP no. 10060002 from Uttam Nagar which business was registered in the name of his brother. He deposed that 'S' and accused Vikram used to come and deposit amount through his agency and that in May 2011 when 'S' was brought to his office in police custody for the purposes of investigation, he handed over total 35 deposit slips, which deposits were made by 'S' and Vikram to the police. These receipts were taken into possession vide seizure memo Ex.PW2/A and those receipts are identified as Ex.PW2/E-1 to E-35. The witness also deposed that whenever deposits used to be made, SMSs used to be automatically sent to the mobile number of the depositor. The witness could recollect last four digits of the two mobile numbers as 'xxxxxx2421', 'xxxxxx7410' as the mobile numbers which used to be mentioned by 'S' and Vikram on the deposit slips. Witness also deposed that during investigation he identified photograph of accused Vikram SC no. 114/11 Page 8 of 68 9 from the customer application form of Vikram which application was submitted to the Service Provider of mobile no. 8860202421, and he also identified accused Vikram in the court as the same person. The witness also deposed that when the upper limit of deposits through ECO Service Point was reduced to Rs. 10,000/- by the Reserve Bank of India, in the non-home branches, accused Vikram and 'S' stopped coming to their shop for depositing the money. The witness also deposed that he identifies the accused Vikram since the accused used to deposit huge money in the account of some persons in State Bank of India, Orissa. The witness also deposed that whenever the server used to not respond, money used to be deposited in the SBI Branch of Uttam Nagar and he proved those receipts also totaling 43 in number as Ex.PW2/H-1 to H-43. On these receipts also, mobile numbers of accused Vikram and 'S' appears. The witness also deposed that in January 2012, he identified one email as Ex.PW2/J and the details mentioned in the said email revealed that those deposits were also made by accused Vikram and 'S' in the accounts bearing no. 30054694616.
In the cross examination of this witness, it has come that none of the slips were filled up by accused Vikram and it does not bear signature or thumb impression of Vikram. However, the witness claimed that Vikram used to come to deposit money more often than 'S' and sometimes both used to come together and sometimes they used to come individually. The SC no. 114/11 Page 9 of 68 10 witness also claimed that most of the slips were executed by his employee Baldev Sahu.
4.7 PW3 Pradeep Kumar the general manager from Debalaya Guest House proved that accused Tejvir and 'S' were customers of guest house at Kolkatta and they stayed there on three occasions. The witness proved the guest registration card Ex.PW3/A, B & C qua the stay dated 22.04.2011, 1st to 2nd May, 2011 and, 14th to 15th May, 2011, in which, total four persons, six persons and, four persons stayed in the hotel vide the entry Ex.PW3/A to C, respectively. However, the witness admitted that Ex.PW3/B & C though revealed the name of accused Tejvir but were signed by 'S'. The witness also identified accused Tejvir in the court. In Ex.PW3/A name of 'S' is revealed. In Ex.PW3/B, though the name of guest is mentioned as Tejvir Singh and others, but even these two documents are signed by 'S' only and not by accused Tejvir. However, in all the three guest registration cards, the license number of accused Tejvir is mentioned at point A. During cross examination the witness admitted that ID of the person staying in the hospital used to be collected, but no copy ID of the accused given to the hotel has been proved in the matter.
4.8 PW4 Dipender Kumar from income tax office simply proved his reply as Ex.PW4/A dated 09.09.2011, vide which he informed that there is no income tax return deposited in the income tax office SC no. 114/11 Page 10 of 68 11 qua PAN card no. BUHPS7493D for the period 1.1.2009 to 31.08.2011.
4.9 PW5 HC Jag Narain was the malkhana moharrar in the police station Crime Branch, Malviya Nagar who deposed regarding receipt of case property in the malkhana and sending of case property from the malkhana to the FSL vide entries in the register no. 19, the RC register and, the acknowledgement receipts issued by the FSL Ex.PW5/A to 5/E-3. This witness also proved copies of seizure memos and the notices U/s 50 NDPS Act deposited in the malkhana as Ex.PW5/F to K. 4.10 PW9 Ct. Parvez Alam carried the sample property in the parcel bearing no. 1A to 10A on 25.05.2011 from the malkhana to FSL vide entry Ex.PW5/E-1 and he obtained acknowledgment receipt Ex.PW5/E-2, which he deposited in malkhana on that very day.
4.11 PW6 ASI Subhash Singh from the office of concerned Additional DCP proved entries regarding receipt of the report U/s 42 of NDPS Act and Sec. 57 of NDPS Act as Ex.PW6/A to 6/F vide entries as Ex.PW6/A1 to F1.
4.12 PW10 HC Jagdeep Sharma also proved receipt of report U/s 57 NDPS Act in the office of Additional DCP on 30.11.2011 as Ex.PW10/A vide entry Ex.PW10/A-1.
4.13 PW7 HC Rajender Kumar and PW8 SI Rajnish Sharma, both deposed that on 24.09.2013 on receipt of information that accused Durga has been apprehended at Nagpur, they went to Nagpur on 26.09.2013 and arrested accused Durga Prasad vide arrest memo SC no. 114/11 Page 11 of 68 12 Ex.PW7/A, and his personal search was conducted vide memo Ex.PW7/B. It is also deposed that accused Durga made disclosure statements Ex.PW7/E & F and thereafter got recovered passbook Ex.PW7/C-1 from his house on 30.09.2013 vide seizure memo Ex.PW7/C. The said passbook pertains to account no. 3005469446616. The witness also deposed that accused had also led the police team to the shop of one Ajay Goswami and pointed out that from that shop he had purchased a mobile SIM no. 9777159560 which was purchased in the name of some Utkal Khurana. Utkal Khurana could not be traced because of the fact that the said Utkal Khurana is non-existent.
4.14 PW8 SI Rajnish Sharma also proved report U/s 57 NDPS Act qua accused Durga dated 27.09.2013.
4.15 PW11 Pawan Bahuguna simply proved the translation of documents done by the witness as Ex.PW11/C-1 to C-16 and his certificate Ex.PW11/A. 4.16 PW12 Shashi Kala from National Highways Authority of India proved that the vehicle no. DL4C AD 1134 crossed from Dhankuni and Palsit Toll Plazas, from 6.00 AM on 20.04.2011 to 10.00 AM on 23.04.2011, vide her reply dated 19.10.2011 Ex.PW12/D-1 to D3, her reply dated 23.09.2011 Ex.PW12/E-1 to E-12 and her reply dated 21.09.2011 Ex.PW12/F-1 to F-5. The witness also proved certificate U/s 65 of Indian Evidence Act as Ex.PW12/G-1, H-1 and H-2. Reply dated 24.11.2011 Ex.PW12/I. SC no. 114/11 Page 12 of 68 13 4.17 PW31 Arnab Sarkar identified signatures of Krishna Murari on a letter dated 2.02.2012 Ex.PW12/H-2 dispatched by Krishna Murari to PW12 Ms. Shashi Kala and he also identified signatures of Mrinal Bhattacharya on Ex.PW12/H-1.
4.18 PW13 Munish Kumar Jhamb, at the relevant time was posted in State Bank of India, Uttam Nagar. This witness proved the 43 deposit slips Ex.PW2/H-1 to H-43 and stated that he handed over those deposit slips on 19.10.2011 to the investigating officer vide memo Ex.PW13/B. 4.19 PW21 Mohit Bhardwaj was Head of Customer Services and Fraud Management ECO Services at the relevant time. He deposed that he supplied details of transactions conducted in the account no. 30443773019, 30859730141, 30891316562, 31261293894, 31327502636, 31463116236, 31590708246, 30859730141 & 31261293894 vide his letter Ex.PW21/A and those details are proved as Ex.PW21/B. This witness also deposed that the transactions in above mentioned nine SBI accounts were conducted at customer's service point of PW2 and one Nitin Mittal. Witness also proved certificate U/s.65B of Indian Evidence Act qua details of Ex. PW2/J i.e. the details of the transactions conducted in the above mentioned accounts.
4.20 PW29 Praful Kumar Behra from SBI Kanaloi Branch, Angul, Orissa proved account opening forms of the account of accused Gunjan Sethi, Pradyuman Pradhan, Prashanta Pradhan, Kishori Pradhan, Parmanand Majhi, Deepak Pradhan and Malia Pradhan.
SC no. 114/11 Page 13 of 68 14The account opening form of Pradyuman Pradhan is proved as Ex. PW29/A along with the details of non-home credit entries of the account of accused Pradyuman Pradhan bearing account no. 30443773019 as Ex. PW27/T7. This witness also proved the non- home credit entries of the account of other accused as Ex. PW27/T1 to T6 and also the account opening forms of the other co-accused as Ex. PW29/C1 to J along with statements of accounts.
4.21 PW30 Satya Narain Chand from SBI, Buddharaja, Distt.
Sambhalpur, Orissa proved the statement of accounts of accused Durga Prasad along with account opening form as Ex. PW27/2 to PW27/14 and he also proved certificate U/s.65B of Indian Evidence Act as Ex. PW30/A. 4.22 PW14 HC Ghanshyam deposed that accused Somnath Ghosh pointed to the house of accused Durga Prasad Bishoi at Sambhalpur, Orissa on 25.12.2011 during police custody vide pointing out memo Ex. PW14/A and also that on 08.12.2011 accused Somnath Ghosh made supplementary disclosure statement Ex. PW14/B. 4.23 PW16 Padmnabha Sahu, Sub Divisional Engineer, GM (CMTS), BSNL, Bhuvneshwar, Orissa, proved the customer application form of mobile phone no. 9439755138 in the name of accused Somnath Ghosh along with the call detail record of this mobile phone for the period 25.05.2011 to 06.08.2011 as Ex. PW16/A to PW16/C. The witness also proved customer application form and SC no. 114/11 Page 14 of 68 15 call details of another mobile no. 9437392968 in the name of some Mohrana Durjodhan s/o Nar Hari Mohrana as Ex. PW16/D to PW16/F. The witness proved certificate U/s.65B of Indian Evidence Act as Ex. PW16/H. 4.24 PW22 Israr Babu, Nodal Officer, from Vodafone Mobile Services proved customer application form and call detail records for the period 01.01.2011 to 18.05.2011 of the mobile no. 8860202421 in the name of accused Vikram as Ex. PW22/A to PW22/A2 along with certificate U/s.65B of Indian Evidence Act Ex. PW22/A3. This witness also proved customer application form and CDR for the period 01.01.2011 to 31.05.2011 of the mobile no. 9811629035 in the name of Aakash s/o Kamal Ex. PW22/B to B2 along with certificate U/s.65B of Indian Evidence Act Ex. PW22/B3.
4.25 PW23 Rajiv Sharda, Alternate Nodal Officer, from Reliance Communication Ltd. proved customer application form and call detail records for the period 01.01.2011 to 13.05.2011 of the mobile no. 9311163160 in the name of accused Tejvir as Ex. PW23/A to PW23/A2 along with certificate U/s.65B of Indian Evidence Act Ex. PW23/A3.
4.26 PW24 Pawan Singh, Nodal Officer, from Idea Cellular Ltd. proved customer application form and call detail records for the period 01.04.2011 to 18.05.2011 of the mobile no. 9911523590 in the name of accused Kamal Kumar s/o Ramesh Chand as Ex. PW24/A to PW24/A2. He also proved customer application form and call detail records for the period 01.04.2011 to 18.05.2011 of SC no. 114/11 Page 15 of 68 16 the mobile no. 9990086108 in the name of accused Ram Dayal as Ex. PW24/B to PW24/B2. The witness also proved certificates U/s.65B of Indian Evidence Act Ex. PW24/A3.
4.27 PW25 R.K. Singh, the Nodal Officer, from Bharti Airtel Ltd. proved customer application form and call detail records for the period 15.02.2011 to 18.05.2011 of the mobile no. 9556856080 in the name of Bichitra Kumar Kuanra as Ex. PW25/A to PW25/A4. This witness also proved customer application form and call detail records for the period 01.04.2011 to 31.05.2011 of the mobile no. 9777159560 in the name of Utkal Khurana as Ex. PW25/B to PW25/B3. This witness also proved customer application form and call detail records for the period 01.04.2011 to 31.05.2011 of the mobile no. 9938481868 in the name of Gunjan Kumar Sethi as Ex. PW25/C to PW25/C2. This witness also proved customer application form and call detail records for the period 01.04.2011 to 31.05.2011 of the mobile no. 9777185156 in the name of Gautam Pradhan as Ex. PW25/D to PW25/D2. This witness also proved customer application form and call detail records for the period 01.04.2011 to 31.05.2011 of the mobile no. 9938688110 in the name of Jitendra Dass as Ex. PW25/E to PW25/E2. This witness also proved customer application form and call detail records for the period 01.04.2011 to 31.05.2011 of the mobile no. 9178725182 in the name of Malia Pradhan as Ex. PW25/F to PW25/F2. This witness also proved customer application form and call detail records for the period 01.01.2011 to 18.05.2011 of the mobile no. 9910297410 in the name of Vikram Kumar as Ex.
SC no. 114/11 Page 16 of 68 17PW25/G to PW25/G2. This witness also proved customer application form and call detail records for the period 01.04.2011 to 30.04.2011 of the mobile no. 9178638034 in the name of Pradeep Kumar Bareikh as Ex. PW25/H to PW25/H2. This witness also proved location chart of Kolkatta circle for mobile no. 9556856080 as Ex. PW25/I. PW25 also proved consolidated certificate U/s.65B of Indian Evidence Act as Ex. PW25/I qua aforesaid mobile numbers.
4.28 PW26 M.N. Vijayan, Nodal Officer, from Tata Tele Services Ltd.
proved customer application form and call detail records for the period 01.01.2011 to 18.05.2011 of the mobile no. 9266684062 in the name of Surekha Chug as Ex. PW26/A & B. He also proved customer application form and call detail records for the period 01.04.2011 to 31.05.2011 of the mobile no. 9278105832 in the name of Vikram as Ex. PW26/C & D. 4.29 PW20 HC Jaipal was the Duty Officer who proved registration of FIR Ex. PW20/A and endorsement on rukka Ex. PW20/B. This witness also proved DD No.15 & 17 regarding commencement and conclusion of FIR as Ex. PW20/C & D respectively, and he also proved DD No.16 lodged by SHO/Inspector C.R. Meena qua deposition of case property in the Malkhana as Ex. PW20/E and DD No.18 as Ex. PW20/F qua the visit of SI Anil Malik to the Police Station.
4.30 PW28 Inspector C.R. Meena was the SHO of PS Crime Branch before whom the case property in the sealed parcels bearing SC no. 114/11 Page 17 of 68 18 Serial no. 1-10 and sample parcels bearing no. 1A, 1B to 10A, 10B were produced by Mohd. Abrar along with FSL form and seizure memo and who applied his own seal of CRM on the parcels and the FSL forms and then deposited those parcels and FSL form in the malkhana vide entry in the register no.19 Ex. PW5/A. This witness also proved DD No.16 Ex. PW20/E and the fact that the 10 sample parcels mark 1A to 10A were sent to the FSL on 25.05.2011 through Ct. Parvez Alam.
4.31 The recovery witnesses of contraband are examined as PW15 SI Rishi Ram; PW18 Inspector Jitender and; PW19 HC Mohd. Abrar. It is deposed by these witnesses that on 17.05.2011 after secret information was received at 4 PM by SI Rishi Ram and the secret information was reduced to writing vide DD No.8 Ex. PW15/A at 4.15 PM, after the informer was produced before Inspt. Jitender and the Addl. DCP, a raiding team was organized comprising of these witnesses as well as HC Satbir, Ct. Anand and Ct. Virender. The raiding team left for the spot along with the informer vide DD No.9 Ex. PW15/B at 6.30 PM. The raiding team reached the spot at 6.45 PM and took position after requesting certain public persons to become witness but none of the public persons joined. At 7.30 PM one Tavera car bearing number plate DL4CAD-1134 was noticed coming from the side of Karnal by- pass which entered the service road in front of Vivekanand Engineering College which at that time was under construction. The car was identified by the informer and then the informer left. The raiding team surrounded the car which had stopped behind SC no. 114/11 Page 18 of 68 19 the bus stand on the service road towards Pitam Pura side. All the window panes of the car were tinted. Marriage pamphlets of some marriage between Deepak Weds Poonam were pasted on the vehicle. There were three occupants in the vehicle vis. accused Tejvir, who was driving the vehicle, accused Sanjay who was sitting behind the driver and 'S' who was sitting along with accused Sanjay. Introduction of the raiding team was given to the three accused and they were informed about the secret information against them. They were also informed of their legal right U/s 50 of the NDPS Act. Written notices were served upon the accused U/s 50 of the NDPS Act. The accused persons refused to exercise their legal rights U/s 50 of the NDPS Act. The refusals of the accused persons were noted. Those notices and refusals are proved as Ex. PW15/C & C1 to Ex. PW15/D & D1. In the meanwhile, certain public persons were again requested to become witness but they also refused. Two bags were found lying under the legs of the juvenile and accused Sanjay between first and the middle row of the car. Those bags were given sl.no.1 & 2. In the dickey of the vehicle, there were 8 more bags which were covered under the blanket which were given sl.no.3 to 10. One deodorant bottle of AXE brand was also found in the vehicle. All the bags were found to be containing ganja. Those bags were measured and a total of 137.650 Kgs of ganja was found in the 10 bags. Out of each bag, two samples of 250 grams of ganja each were separated and were kept separately in two parcels. The sample parcels were given corresponding numbers 1A-1B to 10A-
SC no. 114/11 Page 19 of 68 2010B corresponding to the main bags. FSL Form was also filled up at the spot and the case property was taken into possession vide seizure memo Ex. PW15/E. The car was also taken into possession vide memo Ex. PW15/F. Rukka was prepared and the rukka along with case property, the FSL Form and, copy of seizure memo were given to HC Mohd. Abrar to be taken to Police Station Crime Branch for registration of FIR and for handing over of the case property to the SHO. From the car, Driving License of accused Tejvir, Registration Certificate and one PAN Card were also recovered Ex. PW15/F1 to PW15/F3. In the meanwhile, PW27 SI Anil Malik, the subsequent investigating officer, reached the spot. Thereafter, HC Mohd. Abrar left the spot with the documents and case property for Police Station Crime Branch. The custody of accused and all other documents were handed over to SI Anil Malik.
4.32 It is deposed by PW15 SI Rishi Ram, PW18 Inspt. Jitender and PW27 SI Anil Malik that SI Rishi Ram briefed SI Anil Malik and then SI Anil Malik prepared site plan Ex. PW15/H. It is also deposed by SI Rishi Ram that he prepared a report U/s.57 of the NDPS Act on the next day qua the recovery of contraband and that he and Inspt. Jitender left the spot together and reached SIT Office under DD No.17 Ex. PW15/I. 4.33 The recovery witnesses identified the case property in the court as Ex. P1A, P1B, P1 to P10A, P10B & P10. The blanket and the SC no. 114/11 Page 20 of 68 21 deodorant recovered from the car are also proved as P11 & P12. The car was identified as Ex. P13.
4.34 It is also deposed by PW27 SI Anil Malik and PW19 HC Mohd.
Abrar that after getting the case registered, HC Mohd. Abrar reached the spot at 2.30 AM along with Ct. Virender and copy of FIR and original rukka. Thereafter, all the three accused Sanjay, Tejvir and the juvenile were formally arrested vide arrest memos and their personal search were conducted. In the personal search of the accused persons, copy of notice U/s 50 NDPS Act served upon them by SI Rishi Ram were also recovered besides other articles. From the search of juvenile, two mobile phones bearing nos. 9990086108 and 9266684062 were recovered vide memo Ex. PW27/I. From accused Tejvir, one mobile bearing no. 9911523590 was recovered vide memo Ex. PW27/J. Thereafter, the three accused and the vehicle were deposited in the Malkhana. The mobiles of accused were, however, retained for further investigation. The accused persons were produced before the SHO/Inspector C.R. Meena. After reaching the SIT Office of Crime Branch, disclosure statements of all the three accused Tejvir, Sanjay and the juvenile were recorded and reports U/s 57 NDPS Act qua the arrest of these accused were prepared and sent to the senior officers. The three accuse were taken on police remand and on 26.05.2011 they were taken to Kolkatta. On 28.05.2011 accused Tejvir and juvenile led the police team to one Debalaya Guest House in Kolkatta and pointed out the guest house as the place where they used to stay when they used to SC no. 114/11 Page 21 of 68 22 visit Kolkatta for procuring contraband. From the said hotel, documentary prof qua the stay of Tejvir and juvenile was collected which was proved by PW3.
4.35 PW27 SI Anil Malik proved that the guest registration card dated 22.04.2011 Ex.PW3/A; dated 1st & 2nd May, 2011 Ex.PW3/B and the registration card dated 14th & 15th May, 2011 Ex.PW3/C, all had one DL no. PO5052006308180 which driving license belonged to accused Tejvir. He also proved that the guest registration card had signature of juvenile 'S'. Investigating officer also deposed about arrest of other accused persons facing trial and regarding collection of the account opening forms, statement of accounts of the accused persons as also the mobile call details and their customer application forms to prove connectivity of the mobile phones of the accused. Investigating officer also deposed that the vehicle in question had crossed the toll plaza at Palsit and Dhankuni which are close to Kolkatta on three occasions i.e. 22.04.2011, 1.05.2011 and in the intervening night of 14 & 15.05.2011. During investigation, it was learnt that accused Tejvir and 'S' used to go and stay in Kolkatta very frequently where they used to stay only for a day before returning to Delhi. The non- home credit entries in the account of the accused persons are proved as Ex.PW27/T-1 to T-7 and the statement of account of the accused persons are proved as Ex.PW27/V to V-6. The mobile phone numbers 8860202421 and 9910287410 were registered in the name of accused Vikram. It is also deposed that accused Somnath Ghosh led the police team to house of Durga SC no. 114/11 Page 22 of 68 23 on 5.12.2011 and then he led the police team to shop of one Ajay Goswami from where he had purchased two SIM Cards having nos. 9556856080 and 9777159560.
4.36 Investigating officer also deposed that a sum of Rs. 14.38 Lakhs were deposited in the account of Pradyuman Pradhan by accused Vikram and 'S'; a sum of Rs. 1.87 Lakhs were deposited in the account of accused Durga Prasad by them and an amount of Rs. 3.49 Lakhs were deposited in the account of accused Gunjan Sethi. Investigating officer also proved that from the search of accused Pradyuman Pradhan, the mobile phone no. 9938509618 and from the search of accused Gunjan Kumar, mobile no. 9938481868 were recovered.
4.37 The investigating officers SI Rishi Ram and SI Anil Malik also proved their respective reports U/s 57 of NDPS Act.
4.38 SI Anil Malik also proved that there was strong mobile connectivity between the accused persons and that on the intervening night of 14th & 15th May, 2011, the mobile phone of accused Tejvir, Somnath Ghosh had a common location with 'S' and from there, these three mobiles of these three accused moved in different directions and that they were in touch at odd hours during that night.
4.39 Investigating officer also proved that whenever accused Vikram and 'S' used to deposit money in the accounts of accused Pradyuman Pradhan, Gunjan, Kishori Pradhan, Malya Pradhan, Deepak, Parmanand Majhi and Prashanta Pradhan, an SMS used SC no. 114/11 Page 23 of 68 24 to be received by accused Vikram on his mobile, and then there used to be a telephonic call between Vikram and Durga Prasad which reveals their conspiracy and connectivity.
4.40 The FSL result are proved as Ex.PW27/28 to Ex.PW27/32.
5 On completion of prosecution evidence, all the incriminating evidence was put to the accused facing trial, in their examination U/s 313 Cr.P.C.
5.1 When incriminating evidence was put to the accused Sanjay, he denied the evidence generally and stated that he was not present in the vehicle on the date and time of recovery of contraband and he even did not know accused Tejvir, prior to the trial of this case. He claimed that he was never served with any notice U/s 50 NDPS Act and his signatures were obtained on blank papers which papers were manipulated into different documents of this case. Accused Sanjay claimed that he never visited Kolkatta. He claimed that it was a false case against him and the witnesses deposed falsely. He claimed that he was picked up from his house, simply because accused 'S' was distantly related to him, as mother of 'S' is daughter of his maternal uncle, and when the police persons were verifying his antecedents he had some altercations with police one day prior to his arrest and therefore he was picked up from his house and implicated in this case. This accused did not opt to lead any evidence in his defence.
5.2 Similarly, when the incriminating evidence was put to the accused Vikram, even he denied the evidence against him and claimed SC no. 114/11 Page 24 of 68 25 that he was implicated falsely in the present matter. He claimed that though the mobile no. 8860202421 and 9910297410 were in his name but he got issued the same for his brother-in-law 'S' since 'S' had no identity proof and he did it on the request of his wife who is sister of 'S'. He claimed that it was 'S' who was using those mobiles. He also claimed that he never visited the office/shop of PW2 Gobind Kaushik and Gobind Kaushik knew him only because he was brother-in-law of 'S' as 'S' and Gobind Kaushik were friends. Accused admitted the customer application forms Ex.PW2/F & G in his name. Even this accused claimed that he was not apprehended on the date, time and place as claimed by the prosecution but he was detained for 2-3 days and thereafter he was falsely implicated in the present case. Even this accused claimed that his signatures were obtained on blank papers which were converted into different documents and that he did not make any disclosure statements. Vikram admitted that his specimen signatures and writings were taken by the investigating officer Ex.PW27/19. He claimed that he never visited any place namely Dhankuni and he had never been either to West Bengal or Orissa or Assam. He also claimed that he never deposited any money in any account and he did not know other accused persons besides 'S'. Accused even admitted that the mobile phone no. 9911523590 was in the name of his father-in-law Kamal Kumar, but claimed that this phone was used by accused 'S'. This accused opted to lead defence evidence in his favour but later on he did not examine any witness in his favour.
SC no. 114/11 Page 25 of 68 265.3 When incriminating evidence was put to the accused Tejvir, even he generally denied the evidence against him. This accused claimed that he was not present at the spot at the time of recovery and no notice U/s 50 NDPS Act was served upon him. Accused Tejvir claimed that he never visited Kolkatta and never stayed in Debalaya Guest House and he never booked any room in his name in the said hotel. The accused, however, admitted that vehicle no. DL4C AD 1134 was registered in his name. The accused also admitted that driving license no. PO5052006308180 was his driving license. This accused claimed that he has been falsely implicated and the witnesses deposed against him falsely. He claimed that he was picked up from his house on 16.05.2011 at about 4.00 AM. He stated that he told the police that his driver Ashu used to drive the vehicle in question and that the vehicle was taken by his brother and mother in the year 2009 after he suffered some accident. The vehicle is claimed to have been recovered from some parking at the instance of his bother Chander Pal and not from him. The accused claimed that he along with his mother and brother were taken to Crime Branch Office and he was detained regarding some accident case; nothing was recovered from his vehicle; the documents of vehicle were brought by his brother Chanderpal from his house and; that he has been implicated falsely. Even this accused initially opted to lead defence in his favour but later on without leading any defence evidence, he closed the opportunity.
SC no. 114/11 Page 26 of 68 275.4 When incriminating evidence was put to the accused Durga Prasad, he also generally denied the evidence against him. This accused denied having used any mobile no. 9556856080 and 9777159560. He claimed that he did not know 'S' or Somnath Ghosh. He even denied that at the time of opening account Ex.PW27/3, he had mentioned mobile no. 9437392968. He instead claimed that he did not provide any number and at that time since he had no mobile number, the person who assisted him in opening his account wrote his number on the account opening form which account opening form was not in his handwriting and he merely signed the same. He claimed that he never used that mobile number. Accused also claimed that he did not know any person by the name of Pradyuman Pradhan or Gunjan Sethi. He also claimed that he had no mobile no. 9938509618 or mobile no. 9178638034. He claimed that he did not know any of the accused prior to his implication in the present case and he never talked to accused Vikram. He claimed that he used to collect and supply some local goods from local farmers and the amount qua that business transaction was deposited in connection with that business. Even he claimed that his signatures were obtained on blank papers which were fabricated into different documents of this case. This accused did not opt to lead any defence evidence and claimed that he has been implicated falsely.
5.5 When incriminating evidence was put to accused Somnath Ghosh, he denied that he ever used mobile no. 9556856080 or mobile no. 9777159560. He claimed that he never used those SC no. 114/11 Page 27 of 68 28 mobiles nor those mobiles were issued in his name. Accused also claimed that he was arrested in the present case falsely and he did not make any disclosure statement. He claimed that his signatures were obtained on blank papers which were converted into documents of this case. He also claimed that he did not know accused Durga prior to his implication in this case and neither he led to the shop of Ajay Goswami nor he purchased any such mobiles. Accused also denied having used any mobile no. 9439755138 ever. This accused also denied that he knew accused Vikram, Gunjan Sethi, Tejvir or 'S'. He also claimed that he had never been to Dhankuni and claimed that he never used mobile no. 9556856080, therefore, there is no question of his presence with any accused at Dhankuni on the intervening night of 14th & 15th May, 2011. This accused claims that it is a false case against him and that he is innocent.
5.6 When incriminating evidence was put to the accused Gunjan, he admitted that mobile no. 9938481868 was in his name and that he gave that mobile number in his bank account of State Bank of India, Kanaloi Branch as reflected in Ex. PW29/H-1. The accused however, denied knowing co-accused Pradyuman Pradhan, and claimed that he met Pradyuman Pradhan on two or three occasions in the local market of Kanaloi. Even this accused denied the evidence generally against him and claimed that he has been implicated in this case. This accused claimed that he was doing the business of cashew nuts, groundnuts and aampapri and that he used to supply the same to the different businessmen SC no. 114/11 Page 28 of 68 29 of different states after collecting the same from local farmers and thereafter the businessmen from Kolkatta, Cuttak, Bhadrak used to receive those articles and pay the money to him through his aforesaid accounts. He then used to withdraw the money from his account and used to repay the farmers etc. He claimed that he never dealt in any kind of contraband.
6 I have heard Ld. Prosecutor for the State and Ld. Counsels for the accused persons facing trial.
7 The foremost contention raised on behalf of the accused persons is that in the present matter Sec. 42 of NDPS Act has not been complied with as the investigating officer admittedly checked the vehicle in question after sunset and before sunrise but did not record reasons so required U/s 42 of NDPS Act and did not communicate those reasons to his superior officials. It is claimed that it being a case of total non-compliance of Sec. 42 of NDPS Act, the proceedings gets vitiated and once the recovery of contraband and the proceedings gets vitiated qua accused Sanjay and Tejvir, nothing survives against remaining accused persons also. It is additionally argued that even otherwise against accused other than accused Sanjay and Tejvir, there is no evidence direct or indirect to point out that these persons were in conspiracy with each other or with accused Sanjay, Tejvir or 'S' or that the money deposited in their account was related to contraband. It is argued that the mobile call details of the accused even if taken to be unrebutted cannot lead to the inference that the connectivity SC no. 114/11 Page 29 of 68 30 between accused were for the purposes of supply of contraband or that they were in conspiracy. It is also argued that the amount deposited in the account cannot be presumed to be against supply of contraband, unless there is some kind of evidence to point out to it.
8 On the other hand, Ld. Prosecutor argues that it is Sec. 43 of the NDPS Act and not Sec. 42 of the NDPS Act which would apply in the present matter. It is claimed that so far as receipt of secret information is concerned, the information was indeed taken down in writing and it was indeed communicated to the senior police officers vide Ex.PW15/A i.e. DD no. 8. Ld. Prosecutor thus argues that Sec. 42 NDPS Act has been complied with and so far as vehicle is concerned, Sec. 43 NDPS Act would apply and not Sec. 42 of NDPS Act.
9 So far as the receipt of secret information is concerned, it was received at 4.00 PM by PW15 SI Rishi Ram who produced the secret informer before Inspector Jitender (PW18) and also the Additional DCP and thereafter the information was reduced to writing in the form of DD no. 8 Ex.PW15/A. It is clear from the evidence of PW15 SI Rishi Ram; PW18 Inspector Jitender and; PW6 ASI Subhash that indeed a copy of DD no. 8 was received in the office of Addl. DCP within the stipulated period U/s 42 of NDPS Act. Thus, the prior secret information was indeed reduced to writing and was also communicated to the senior officers within the stipulated period. It ensures compliance of Sec. 42 SC no. 114/11 Page 30 of 68 31 of the NDPS Act qua the receipt, reducing into writing and communication of the secret information.
10 But the question is whether the search having been made after sunset and before sunrise from the vehicle, without recording grounds of belief and reasons, and without sending those grounds and reasons to the senior officers, the case becomes a case of total non-compliance of Sec. 42 of NDPS Act.
10.1 In this regard, Ld. Counsel for the accused relied upon the case of State of Rajasthan Vs. Chaggan Lal reported in 2014 (4) JCC (Narcotics) page 213. In the said case Hon'ble Supreme Court observed that the information received was duly noted down and was also forwarded to the Superintendent of Police concerned. Thereafter, raid was conducted after sunrise and before sunset, and from a well in the premises contraband was recovered. It was held that the investigating officer could have conducted the search of the well after recording grounds of his belief U/s 42(2) NDPS Act, but he did not do it. It was also held by Hon'ble Supreme Court that when the offender after being stopped was chased and he threw the bag in the well, in such an emergent situation, if the officer had reason to belief that a search warrant or authorization cannot be obtained without affording for the concealment of evidence, which in that case would have resulted in destruction of evidence, the officer could have conducted search as per proviso to Sec. 42(1) of the NDPS Act after having recorded the grounds of his belief and the ground so recorded should have been SC no. 114/11 Page 31 of 68 32 communicated to the immediate superior official as required U/s 42(2) of the NDPS Act within 72 hours. It was held that since in that case there was nothing to establish that the officer had followed that procedure and there was nothing to establish that he recorded grounds of his belief and communicated them to his immediate superior, it would be a case of total non-compliance as observed by the Constitution Bench in Karnail Singh Vs. State of Haryana (2009) 8 SCC 539. It was held that since there was total non-compliance of Sec. 42 of NDPS Act, the Hon'ble High Court was right in setting aside the conviction of accused of that case.
10.2 The accused has also relied upon the case of DRI Vs. Raj Kumar Mehta & Ors 2011 VI AD (Delhi) page 328. In that case the facts were that an information was gathered to the effect that heroine in large quantity would be brought in a truck bearing Gujarat registration number at GT Karnal Road near Sanjay Gandhi Transport Nagar to be delivered to occupants of one blue car. The raiding team intercepted the truck and a car and, from the truck heroine was recovered. In that case, it was argued by the State that Sec. 43 of the Act would be applicable and not Sec. 42 NDPS Act. Hon'ble Delhi High Court held that though it was a National Highway where the vehicle was intercepted but it was not a public conveyance. It was also held that the conveyance was checked after sunset and before sunrise and that the vehicles were intercepted after it had stopped. From the testimony of PW17 of that case, it was revealed that the truck along with the car were followed to industrial area, Samai Pur SC no. 114/11 Page 32 of 68 33 Badli, where the truck stopped. It was admitted by PW17 that when they reached the spot, the truck and car were already parked. Since the truck was parked at the time when intercepted, it was held by Hon'ble High Court in para 11, 12 & 13 as follows :-
"11. Since the truck intercepted was neither a public conveyance nor was it intercepted in transit, Section 43 of the Act has no application. Section 42 of the Act which has application to the facts of the case has not been complied with as is evident from the testimony of PW-17 reproduced above. The reliance of the learned counsel for the Appellant on the decisions in Jarnail Singh (supra) is wholly misconceived. The said was a case which related to interception of a tanker moving on a public highway and the moving tanker was stopped and searched while checking vehicles at nakabandi. Similarly, in the case of Karnail Singh (supra) there was no previous information and the truck was intercepted on suspicion. In. State v. Malwinder Singh, (2007) 11 SCC 314, again the information was received when the officers were on patrolling duty.
12. The law on the point is very clear that when recovery is to be made from a conveyance, not a public conveyance, though on public road Section 42 of the Act is applicable............................................ ...........................................................................
SC no. 114/11 Page 33 of 68 3414. Since the precedent of the larger bench of the Constitution Bench will prevail thus in the facts of the present case it is imperative to hold that the compliance Section 42 of the Act was mandatory. Since there is total non-compliance of Section 42 of the Act which is a mandatory provision, I do not find any infirmity in the impugned order on this count. Thus, the Respondents are entitled to be acquitted for offences under Sections 21, 23 and 25A of the Act."
10.3 Accused has also relied upon another case titled as Labh Singh & Ors. Vs. Union of India 2002 Criminal Law Journal 28 from Rajasthan High Court. In that case a secret information was received to the effect that the accused would be going to Mumbai Via Bikaner in a truck with narcotics drugs. The information was reduced into writing and forwarded to higher officers. The raiding party reached National Highway no. 15 and waited for the arrival of truck. Thereafter the raiding party started proceeding towards Ganga Nagar. They found the truck in question standstill at a particular place with the accused inside the truck. The time when the truck was searched was 7.30 PM on 17.08.1996. It was held by Hon'ble Rajasthan High Court in para 24, 25, 26 that explanation to Sec. 43 of the NDPS Act, says that for the purposes of this section, public place includes any public conveyance, hospital, shop or other place which is entitled for use by, or which is accessible to the public. Thus, in order to be covered by the expression public place, the place should be such SC no. 114/11 Page 34 of 68 35 where public may go as of right. Mere fact that entry in any such place is regulated one will not change that place into a place other than a public place. Sec. 42 as well as 43 NDPS Act, both uses the word conveyance. The difficulty that arises is when conveyance is there, in what manner it should be interpreted. It was held that in Sec. 43, the word 'conveyance' is qualified by the word 'public' but in Sec. 42 NDPS Act, it is not qualified by any such word. Thus, it is only public conveyance which is covered by Sec. 43, but conveyance other than public conveyance will be covered by Sec. 42 of the NDPS Act.
10.4 In Labh Singh v. Union of India (supra), it is held as follows;
"24. Explanation to Section 43 of the NDPS Act says that for the purposes of this section, public place includes any public conveyance, hotel, shop or other place which is intended for use by, or which is accessible to, the public. Thus, in order to be covered by the expression „public place‟, the place should be such where public may go as of right. Mere fact that entry in any such place is regulated one will not change that place into a place other than a public place.
25. In Section 42 as well as Section 43, the word „conveyance‟ is there. The difficulty that arises, when conveyance is there, in what manner it should be interpreted.
26. In my view, in Section 43, the word „conveyance‟ is SC no. 114/11 Page 35 of 68 36 qualified by the word „public‟ but in Section 42, it is not qualified by any such word. Thus, it is only public conveyance which is covered by Section 43, but conveyance other than public conveyance will be covered by Section 42 of the NDPS Act.
27. The Hon'ble Supreme Court in State of Punjab v. Balbir Singh (1994 Cri LJ 3702) (supra) has held as under (para 10):--
"We may mention here that Section 43 which deals with the power of seizure and arrest in public places is slightly different from Section 42 in certain respects. The empowered officer while acting under Section 43, need not record any reasons of his belief. This section also does not mention anything about the empowered officer having prior information given by any person or about recording the same, as compared to Section 42."
10.5 In order to counter the judgments relied upon by the counsel for accused, Ld. Prosecutor for the State relied upon the case of Pradip Kumar & anr. Vs. State of Punjab in Crl. Appeal no. D- 497-DB of 2008 decided on 31.1.2013 by Hon'ble High Court of Punjab & Haryana. The said case is however absolutely distinguishable and is not applicable to the present case. In that case, there was a nakabandi where an information was received and then the truck in question was got stopped when it came from the side of Ludhiana. From the truck, 35 Kg of poppy husk was seized. Therefore, in that case, the vehicle was on move at a SC no. 114/11 Page 36 of 68 37 public place, unlike the present case the vehicle was already stopped.
10.6 In the present case the recovery witnesses admit that after the vehicle came on the outer ring road from mukarba by pass, the vehicle entered the service road and without any intervention of the raiding party members, stopped behind the bus stand by itself. In the case of Pradip Kumar (Supra), it was observed that since the recovery was affected from a conveyance during transit period i.e. from a moving truck coming from Ludhiana, therefore, Sec. 43 of NDPS applied and not Sec. 42 of NDPS Act.
10.7 In the case of State of Haryana Vs. Jarnail Singh (2004) 5 SCC page 188 Hon'ble Supreme Court drew the distinction between Sec. 42 and 43 of the Act and clarified the position in para 7, 8 & 9 as follows :-
"7. The next question is whether Section 42 of the NDPS Act applies to the facts of this case. In our view Section 42 of the NDPS Act has no application to the facts of this case. Section 42 authorises an officer of the Departments enumerated therein, who are duly empowered in this behalf, to enter into and search any such building, conveyance or place, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance, etc. is kept or concealed in any building, conveyance or enclosed SC no. 114/11 Page 37 of 68 38 place. This power can be exercised freely between sunrise and sunset but between sunset and sunrise if such an officer proposes to enter and search such building, conveyance or enclosed place, he must record the grounds for his belief that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender.
8. Section 43 of the NDPS Act provides that any officer of any of the Departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance, etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorised to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression "public place"
includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If SC no. 114/11 Page 38 of 68 39 seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and sunrise."
10.8 It may be mentioned that Ld. Prosecutor also relied upon the case of Jarnail Singh (Supra). But then even in that case of Jarnail Singh, without there being any prior secret information, the police team on patrolling starting checking vehicles on the highway at about 8.00 PM and at that time a tanker came on the highway which was signaled to stop. Rather than stopping the tanker sped away which aroused suspicion and therefore the tanker was chased and compelled to stop. From the tanker, contraband was recovered. Thus, in the case of Jarnail Singh also the vehicle from which contraband was recovered was on the move on a public highway.
10.9 In the present case, it is not disputed by the prosecution that the vehicle in question i.e. Tavera Car no. DL4C AD 1134 was checked at 7.30 PM on 17.05.2011. It is admitted by the prosecution that at that time, the Sun had already set. It is also admitted by the recovery witnesses that the vehicle entered the SC no. 114/11 Page 39 of 68 40 service road in front of Engineering College which was under
construction, the vehicle was identified by the informer, by the time the vehicle stopped by itself behind bus stop and then the vehicle was surrounded and checked. It is admitted by the recovery witnesses that the car was surrounded after about 5 to 7 minutes of its stopping at that place. Therefore, in this case conveyance was searched after sunset and before sunrise. It cannot be claimed that the vehicle was in transit at that time. Admittedly, the investigating officer did not record grounds of his belief as was required. It was held in the case of Jarnail Singh (Supra) that if seizure is made U/s 42 NDPS Act between sunset and sunrise, the requirement of the proviso has to be complied with. It is not in dispute that in the present matter the vehicle in question was not a public conveyance. It is a private conveyance of accused Tejvir. It was not even having a taxi number plate or commercial number plate. The power of an officer authorized U/s 42 of NDPS Act to enter into and search any conveyance if he has reason to believe on information or personal knowledge taken down in writing that any narcotic drug or psychotropic substance is kept in such building, conveyance or place, the power to search and seizure can be exercised freely between sunrise and sunset but between sunset and sunrise, if such an officer proceeds to enter and search such conveyance, building or place, he must record the grounds for his belief that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for SC no. 114/11 Page 40 of 68 41 the suspect on an offender. In the present case when the vehicle came from the outer ring road side on the road and stopped behind the bus stand without being intercepted by the raiding party members, the vehicle cannot be claimed to be in transit. It is admitted by the recovery witnesses that the vehicles stopped by itself and it was not even signaled to stop. Inspector Jitender the senior most officer from the raiding party admitted in his cross examination that the vehicle was not even signaled to stop. Even the pre-determined signal was given by ASI Rishi Ram after the vehicle had stopped at the spot by itself. Of course the facts indicate that had the raiding team not surrounded the vehicle immediately and had they not searched the vehicle, the evidence would have been lost since by the time search warrants could have been obtained, the vehicle would not have been found there. But then the investigating officer was bound to record those grounds of belief, which he admittedly did not. Since the grounds of belief were not recorded, obviously, they were not communicated to the senior police officers. Delayed compliance could have been made if the investigating officer did not have time to record reasons at the spot, but even that was not done.
10.10 Ld. Prosecutor attempted a feign attempt in claiming that in the report U/s 57 of NDPS Act, the fact of recovery and seizure is mentioned, which should be sufficient compliance of sec 42. But then the said report does not find any such grounds of belief required to be noted by the investigating officer.SC no. 114/11 Page 41 of 68 42
10.11 In the present matter, secret information was received at about 4.00 PM and the recovery was affected at about 7.30 PM. Neither the office of Crime Branch where information was received, nor the place of recovery was too far away from Rohini District Courts.
From 4.00 PM till at least 7.00 PM, there was more than enough opportunity and time with the investigating officer to obtain search warrants/authorization as required. It was however, not done. Also no Gazetted Officer or Magistrate was either taken along or was put on standby.
10.12 For the foregoing reasons, this court is constrained to hold that in the present matter, Sec. 42 of NDPS Act has not been complied with. As per the decisions mentioned and discussed above, it has to be held that it is a case of total non-compliance of Sec. 42 of NDPS Act which vitiates the proceedings.
11 Turning to the contentions as to the contradictions in the evidence of recovery witnesses, it may be mentioned that from amongst the recovery witnesses examined in the present matter, PW15 SI Rishi Ram, PW18 SI Anil Malik and, PW19 HC Mohd. Abrar, all supported the case of prosecution in Toto. Except for some trivial and minor contradictions in their testimonies, nothing material has been brought forth to create any kind of doubt as to the manner, date, time and place of recovery.
11.1 The minor contradictions occurring in the testimony of recovery witnesses does not in any manner go to create doubt about the SC no. 114/11 Page 42 of 68 43 factum of recovery. Minor contradictions as to whether the informer informed that the contraband was likely to be brought from Orissa, as claimed by ASI Rishi, or from Kolkatta as claimed by Inspector Jitender and HC Mohd. Abrar; the description of the weighing machine; the distance between the members of the raiding team at the spot etc, are all trivial contradictions which does not affect the root of the prosecution case.
11.2 In CRL.A.819/2011 Ravi Kumar & Ors. Versus State, decided on 30.05.2014, Hon'ble Delhi High court observed that minor discrepancies are bound to occur due to normal errors of perception and observation, errors of memory due to lapse of time, mental disposition due to shock and horror at the time of occurrence. In fact such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of the version. If, on the other hand, witnesses give evidence with mechanical accuracy, it could be cogitated that they were giving tutored versions. The question is whether embellishments in statement of witnesses can destroy the core of the prosecution story. Minor contradictions appearing in the testimony of the witnesses does not materially affect the core of the prosecution case nor render the testimony of the witnesses liable to be discredited.
12 Recovery is sought to be doubted by the accused claiming that ASI Rishi Ram admitted in his cross examination that the FSL form was got signed by the accused at the spot and it was a SC no. 114/11 Page 43 of 68 44 completely computer generated FSL form, whereas HC Mohd. Abrar claimed that signatures of accused were not obtained on the FSL form.
12.1 Not much can be read in the said contradiction. The witnesses were examined in the court after two and a half years from the date of recovery. Being police officials, by virtue of the very nature of their duties, it cannot be expected from ASI Rishi Ram or HC Mohd. Abrar to precisely remember whether signatures of accused were taken on the FSL form or not. They must have been involved in a large number of investigation between the recovery of this case and their examination in this case. The FSL form was not summoned by the accused also from the FSL authorities to show as to which of the two versions was correct.
12.2 In such circumstances, it is proved by the prosecution beyond reasonable doubt that on the date, time and place, accused Tejvir, Sanjay and 'S' were apprehended from inside the vehicle in question and from inside the vehicle, ten bags containing total 137.650 Kg ganja was recovered.
13 Merely because independent public witnesses have not been joined, it cannot be claimed that accused Sanjay, Tejvir were not found in possession of the contraband. After all the quantity of contraband recovered from these accused is huge. A total of 137.650 Kg of Ganja was recovered from the possession of these accused. It is highly unlikely that the prosecution witnesses would have planted such a huge quantity of Ganja on the accused, that SC no. 114/11 Page 44 of 68 45 too for no rhyme or reason. The sheer quantity of the contraband recovered in the present matter gives an assurance that it is not a planted case. The prosecution witnesses have completed the chain that since the time the case property was recovered, weighed, the samples were drawn, the case property and sample property were sealed and, till the time samples reach FSL, there was no possibility of tampering. The FSL result has confirmed that the samples were indeed of ganja, Therefore, the prosecution indeed succeed in proving that the recovery was effected from joint possession of accused Tejvir, Sanjay and 'S'.
14 In Criminal Appeal No. 2302 of 2010 titled as Gian Chand & Ors. vs. State of Haryana, decided on July 23, 2013, Hon'ble Apex court held as follows;
"25. The next question for consideration does arise as to whether it is necessary to examine an independent witness and further as to whether a case can be seen with doubt where all the witnesses are from the police department.
In Rohtash v. State of Haryana JT 2013 (8) SC 181, this court considered the issue at length and after placing reliance upon its earlier judgments came to the conclusion that where all witnesses are from the police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency.SC no. 114/11 Page 45 of 68 46
However, as far as possible the corroboration of their evidence on material particulars should be sought. The Court held as under:
"Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon."
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139; Akmal Ahmad v. State of Delhi, AIR 1999 SC 1315; M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan @ John v. Superintendent of Customs, AIR 2007 SC 2040).
26. In State, Govt. of NCT of Delhi v. Sunil. (2001) 1 SCC 652, this Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle SC no. 114/11 Page 46 of 68 47 of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross- examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
27. In Appabhai v. State of Gujarat AIR 1988 SC 696, this court dealt with the issue of non-examining the independent witnesses and held as under:
"The prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante.SC no. 114/11 Page 47 of 68 48
They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether-in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties."
28. The principle of law laid down hereinabove is fully applicable to the facts of the present case. Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.
29. In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross- examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness.
Section 114 of the Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to SC no. 114/11 Page 48 of 68 49 have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed."
15 Accused Tejvir and Sanjay sought to wriggle out of the recovery claiming that admittedly smell of ganja was not emanating from inside the box, therefore, they were not aware that 'S' was transporting ganja.
15.1 Total ten big bags containing ganja were recovered from the car.
Sanjay and 'S' had kept their legs on two such bags between the front and the middle row. Rest of the bags were recovered from dickey. Neither Sanjay nor Tejvir has explained as to what they were doing in the said vehicle if they were not aware of transportation of ganja. From the three registration cards of the Debalaya Guest House it is proved beyond reasonable doubt that Tejvir used to accompany 'S' to the said guest house. Location of the vehicle of Tejvir at Dhankuni and Palsit toll plazas reveal that his vehicle came from Kolkatta side on that day. His vehicle was not a taxi number vehicle, therefore, onus was on him to explain as to how ganja was being transported in his vehicle. He failed to discharge that onus. Vehicle of Tejvir is not a taxi. Neither Tejvir nor Sanjay has explained as to how and in what manner inside their vehicle ganja was being transported. Though on behalf of these two accused, it was sought to be argued that these two accused were not aware of the fact that Ganja was being SC no. 114/11 Page 49 of 68 50 transported inside the bags and that neither smell of ganja was emanating from the bags nor ganja was visible to them. Thereby meaning that these two accused in a way sought to take a plea that if at all ganja was there in the vehicle, it was only to the knowledge of 'S' and not in the knowledge of these two accused.
15.2 U/s 35 & 55 of NDPS Act, there is a presumption against accused Tejvir and Sanjay and onus was on them to disprove that they were not in joint possession of ganja with 'S'. The vehicle of Tejvir was a private vehicle. Under what circumstances he was driving the vehicle with 'S', Sanjay and contraband, is not explained even remotely by him. Does Tejvir take plea that he was caught from the spot and his vehicle was hired by anybody. The answer is 'No'. Does he try to explain as to how and when he took on board 'S' and the bags containing contraband. The answer is again in the negative. If Tejvir wants this court to believe that it was not in his knowledge that the bags were containing contraband, he ought to have explained as to from where he picked up 'S', the bags or the co-accused Sanjay.
15.3 Similarly, Sanjay also does not explain at all as to what he was doing in the vehicle of Tejvir and 'S' if he was not along with them. Sanjay does not take a plea that he was a passenger in the vehicle. He also does not take any such plea that he was for some other reason in the car. Thus, Tejvir and Sanjay both fails to discharge onus on them to explain the circumstances if they wish the court to believe that they were not in joint possession of the SC no. 114/11 Page 50 of 68 51 contraband. Accordingly, I have no hesitation in holding the accused Tejvir and Sanjay both were indeed in joint possession of contraband on the above mentioned date, time and place along with 'S'. It may be mentioned here that juvenile 'S' has already been convicted by the Juvenile Justice Board.
15.4 Section 35 of the Act recognizes that once possession is established the court can presume that the accused had a culpable mental state, meaning thereby conscious possession. The person who claims that he was not in conscious possession has to establish it. Presumption of conscious possession is also available under Section 54 of the Act, which provides that the accused may be presumed to have committed the offence unless he satisfactorily accounts for the possession of contraband. From the conjoint reading of Section 35 and 54 of the Act, it becomes clear that if the accused is found to be in possession of the contraband, he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. In the factual scenario of the present case, conscious possession has been established. It has not been SC no. 114/11 Page 51 of 68 52 shown by the accused that the possession was not conscious in the logical background of Sections 35 and 54 of the Act. Once the possession of the accused, and his control over the contraband, is proved, then statutory presumption under Section 54 and 35 of the Act, operates against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut the statutory presumption, by leading cogent and convincing evidence. However, the accused, failed to rebut the said presumption either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence.
16 Turning to the case against other accused who were not apprehended from the spot with contraband, first let us take the case of Vikram. Against accused Vikram, the evidence is that when the money used to be deposited in the accounts of co- accused from the ECO Service Point of PW2 Gopal Kaushik, accused Vikram used to personally go there and that on those 35 deposit slips Ex.PW2/E-1 to E-35 the mobile numbers of Vikram exists. PW2 Gopal Kaushik identified accused Vikram in the court and claimed that sometimes Vikram used to come with co- accused 'S' and sometimes he used to come alone. The mobile numbers which are mentioned in the deposit slips are 8860202421 & 9910297410. The case of prosecution against accused Vikram is also that Vikram was in touch with co-accused Durga Prasad from his mobile no. 9910297410 & 8860202421 to the mobile no. 9178638034 & 9437392968 of accused Durga. But then SC no. 114/11 Page 52 of 68 53 admittedly, those calls pertain to the period 1.1.2011 to 14.05.2011 and the last call was on 14.05.2011. To mobile no. 9178638034 from mobile no. 9910397410, the last call is on 7.3.2011. To mobile no. 9437392968 from mobile no. 9910397410, the last call is on 18.2.2011. To mobile no. 9437392968 from mobile no. 8860202421, the last call is on 14.5.2011.
16.1 Accused Vikram admits that these two mobile numbers were issued in his name, but he claimed that since his brother-in-law 'S' had no identity proof in his name, therefore, he got issued those two mobiles in his name but those two mobiles were used by 'S'. It is not in dispute in the present case that 'S' is brother-in-law (sala) of accused Vikram. Investigating officer in his cross examination also admits that 'S' was also using another mobile number 956009429 which was registered in the name of Akash, brother of 'S'. Investigating officer also admitted that when Akash was examined as a witness, he claimed that because 'S' was not having any ID proof, therefore, he provided his phone to 'S'. Accused Vikram argues that when claim of Akash that he gave his mobile to his brother 'S' was accepted, there was no reason for the investigating officer to have not accepted the same claim of this accused Vikram who is also brother-in-law of 'S'. Admittedly, from the possession of accused Vikram, neither of the two mobile phones no. 8860202421 or 9910297410 were recovered. The call detail record of mobile no. 8860202421 is proved as Ex.PW22/A2. The mobile call details sought to be proved by the prosecution is SC no. 114/11 Page 53 of 68 54 for the period 1.1.2011 to 18.05.2011, but interestingly Ex.PW22/A-2 reveals call details only till 16.05.2011 and not thereafter. It may be reminded that recovery of this case was affected on 17.05.2011 whereas the last call reflected in Ex.PW22/A-2 is of 16.05.2011 at 12:02:15. The call detail records of the second mobile no. 9910297410 of accused Vikram is proved as Ex.PW25/G2 for the same period 1.1.2011 to 18.05.2011. Perusal of Ex.PW25/G2 reveals that the last call made/received from this number is on 10.03.2011 i.e. more than two months prior to the date of recovery. Thus, it appears that after 10.03.2011, no call was made from mobile no. 9910297410. Similarly, no call was made or received from mobile no. 8860202421 after 16.05.2011. That means that in both the eventualities the mobiles were not used after the time of recovery, which to some extent supports the plea of accused Vikram that he was not using the mobile. Vikram was arrested subsequently in the present matter and had he been using those mobiles and had 'S' been not using those mobiles, there would have been some call made or received from these two numbers after the date of recovery. This fact assumes importance, particularly, in view of the fact that mobile phones were not recovered from possession of accused Vikram. Admittedly, no account of accused Vikram in any bank is proved and there is no evidence that any amount was credited in the account of Vikram. In such circumstances, even if the testimony of PW2 Gopal Kaushik is taken as unrebutted that Vikram used to accompany 'S' or he used to come alone for the SC no. 114/11 Page 54 of 68 55 purposes of depositing money in the accounts of other accused, that fact alone cannot nail accused Vikram that he was involved in the conspiracy.
16.2 It is an admitted position that accused Vikram was arrested on 5.3.2012 i.e. many months after the alleged recovery on 17.05.2011. His arrest memo is proved as Ex.PW27/15. Besides the two mobile numbers 8860202421 and 9910297410, it is the case of prosecution that accused Vikram also had another mobile number 9278105832 in his name which is proved vide customer application form Ex.PW26/C. Accused Vikram admitted, in his statement, that even this mobile was in his name,. Perusal of CDR of this last mentioned mobile Ex.PW24/C-2 would reveal that the last call made from this number was on 31.05.2011. It would be worth mentioning here that this last mentioned mobile no. 9278105832 does not find mention in any of the receipts Ex.PW2/E-1 to E-35 or Ex.PW2/H-1 to H-43. From amongst those receipts, only Ex.PW2/E-1, E-2, E-17, E-19, E-20, Ex.PW2/H-19, H-20, H-33, H-35, H-40 and H-41 contains the mobile number, but those mobile numbers are either 9910297410 or 8860202421. In none of those slips this third mobile number is mentioned. Other receipts do not contain any mobile number. None of those receipts, admittedly contains the hand writing or signature of accused Vikram. Therefore, even if this third mobile no. 9278105832 was being used till 31.05.2011 or even thereafter, it does not connect the said mobile with any of the deposit slips.
SC no. 114/11 Page 55 of 68 5616.3 Even otherwise for the reasons, which follows, it would be seen that all the amount deposited in the account of other co-accused persons vide receipts Ex.PW2/E-1 to E-35 was substantial time prior to the time of recovery of contraband in this case and therefore, even if it is taken as true that Vikram deposited money vide receipts Ex.PW2/E-1 to E-35, that fact alone is not sufficient to hold him guilty. Those receipts pertains to the period January 2011 to 15.04.2011 i.e. full one month prior to the date of recovery in this case. Admittedly, none of the deposit slips contains signature or hand writing of accused Vikram. From Ex.PW2/E-1, E-2, E-17, E-19, E-20, Ex.PW2/H-19, H-20, H-33, H-35, H-40 and H-41, containing mobile nos. 9910297410 or 8860202421, it is revealed that those receipts pertain to the month of January and February 2011 i.e. more than three months prior to the recovery in the present case and therefore, even if it is assumed that those payments were deposited by the accused Vikram, it is not proved that those payments had anything to do with the present recovery.
17 Against accused Durga Prasad the evidence and case of the prosecution is that as soon as SMS used to be received by accused Vikrarm regarding deposit of money in account of Durga or other accused persons, immediately a telephonic call used to be made to Durga by accused Vikram, immediately after the SMS, coupled with the statement of account of Durga in which money was deposited.
SC no. 114/11 Page 56 of 68 5717.1 During cross examination the investigating officer SI Anil Malik admitted that the last amount deposited in the account of Durga Prasad was on 23.04.2011 i.e. around 24 days prior to the recovery of this case. The investigating officer also admitted that none of the three mobile phones number 9187638034, 9437392968 & 9777159560, claimed to be used by accused Durga Prasad were in the name of accused Durga Prasad. The mobile number 9437392968 was in the name of some Moharana Durjyodhan who has not been examined. Investigating officer, however, claimed that this mobile number 9437392968 was mentioned in the account opening form of the bank account of accused Durga under account no. 30054694616. Investigating officer admitted that the said account was opened way back on 15.06.2006. Investigating officer also admitted that he did not record statement of Moharana Durjyodhan in whose name the phone stands. It is therefore not the case of prosecution that the investigating agency could not find out said Moharana Durjyodhan or any attempt was made to find him out. The customer application form of this mobile in the name of Moharana is proved as Ex.PW16/D and it is admitted that on the said application form date of 8.2.2007 exists. That is the only date available on this customer application form, thereby meaning that this telephone connection no. 9437392968 was obtained by some Moharana in February 2007, whereas, the account of accused Durga was opened in June 2006. Therefore, it cannot be ruled out that this connection was subsequently given to Moharana by the telephone SC no. 114/11 Page 57 of 68 58 authorities. Therefore, even if there is any telephonic conversation records after February 2007, that cannot be attributed to accused Durga Prasad.
17.2 The other two telephone numbers of Durga no. 9178638034 and 9777159560 were not recovered from him and were not in his name. From customer application form Ex.PW25/H, it is revealed that this mobile no. 9178638034 is registered in the name of one Pradeep Kumar Barik S/o Sh. Gopal Chandra Barik. From customer application form Ex.PW25/B, it is revealed that this mobile no. 9777159560 is registered in the name of one Utkal Khurna S/o Sh. Dharma Kumar. Even otherwise the last call between Vikram and accused Durga from no. 8860202421 to 9437392968 was on 14.05.2011. The connectivity between these two accused from other numbers was lastly made on 7.3.2011 and 18.02.2011 to number 9178638034 and 943732968 respectively. The connectivity between mobile phone of accused Durga Prasad with accused Pradyuman Pradhan from mobile no. 9938509618 belonging to Pradyuman with the numbers of Durga has no meaning since neither of these two accused were arrested from the spot.
18 Turning to the evidence against accused Somnath Ghosh, against him the evidence sought to be proved by the prosecution is that this accused had two mobile phones bearing no. 9556856080 and no. 9439755138, and he was in touch with other accused through these two mobiles.
SC no. 114/11 Page 58 of 68 5918.1 Besides the connectivity of Somnath Ghosh through mobiles, there is no other admissible piece of evidence against him. Admittedly, neither of these two mobiles were recovered from accused Somnath Ghosh. The mobile no. 9556856080 was not in the name of accused Somnath. As per customer application form Ex.PW25/A, this mobile was in the name of some Vichitra Kumar Kuanra S/o Bijay Kumar. This customer application form is dated 7.5.2011 i.e. just ten days prior to the date of recovery. Vichitra Kumar could not be traced as per the investigating officer. Along with the customer application form of Vichitra Kumar, one copy of election I-card of Vichitra Kumar was also proved by the prosecution. But there is no investigation as to the said election I- card. This mobile is sought to be connected to Somnath from the fact that Somnath had another mobile no. 9439755138 as per customer application form Ex.PW16/A in his own name. As per Ex.PW16/A, this mobile no. 9439755138 is in the name of Somnath Ghosh. It is the case of prosecution that the IMEI number of the instrument which was used for both these numbers was same which revealed that both these numbers used to be operated from the same instrument. Accused Somnath in his statement denied having used or got issued these two mobiles at any point of time or that he was in touch with other accused through these mobiles.
18.2 Be that as it may, even if it is assumed that Somnath Ghosh was using these two mobiles, the only evidence against him is his so- called connectivity with co-accused. There is no recording of the SC no. 114/11 Page 59 of 68 60 mobile conversations. There is no account transaction against accused Somnath. Therefore, even if it is assumed that Somnath used to be in touch with his co-accused, it cannot be presumed that the said communication was qua the contraband.
18.3 The second piece of evidence against Somnath is that the location of mobile phone of Somnath on the intervening night of 14.05.2011 was at Dhankuni near Kolkatta where accused 'S' and Tejvir had gone. The said fact by itself cannot go to prove that the accused Somnath was in conspiracy with Tejvir or 'S'. Merely on the basis of his mobile phone location, it cannot be assumed that he was with them. Even if it is assumed that he was with them, it cannot be assumed that the said meeting was for contraband. It may be reminded that burden to prove a criminal case against an accused is on the prosecution which cannot be left to be presumed or assumed unless such presumption is allowed by law.
18.4 Turning to the evidence against Pradyuman Pradhan, prosecution claims that in the account of this accused no. 30443773019, in State Bank of India, Kanaloi Branch, a sum of Rs.12,87,395/- was deposited between the period 3.10.2010 to 15.04.2011. Thereby meaning that the last amount deposited in this account was on 15.04.2011 i.e. one month prior to the recovery of this case. Besides the amount deposited, it is also claimed that accused Pradyuman used to remain in touch telephonically from his mobile no. 9938509618, which was recovered from his personal search at the time of his SC no. 114/11 Page 60 of 68 61 apprehension, with accused Durga Prasad on the three mobile phones of Durga Prasad, none of which however could be recovered from Durga Prasad. As per the call detail records, the last call made to or from the mobile of accused Pradyuman on the mobile no. 9197860384 belonging to accused Durga was on 17.05.2011. As per the call detail records, the last call made to or from the mobile of accused Pradyuman on the mobile no. 9777159560 belonging to accused Durga was on 16.05.2011. As per the call detail records, the last call made to or from the mobile of accused Pradyuman on the mobile no. 9437392968 belonging to accused Durga was on 7.05.2011. However, admittedly none of those three mobiles of Durga were recovered from Durga and the factum of mentioning of one of the mobile number in the bank account of Durga has already been discussed and held unreliable above. Besides this, there is no admissible piece of evidence against accused Pradyuman.
19 Turning to the evidence against Gunjan Sethi, prosecution claims that in the account of this accused no.31327502636, in State Bank of India, Kanaloi Branch, a sum of Rs.3,04,825/- was deposited between the period 18.1.2011 to 15.04.2011. Thereby meaning that the last amount deposited in this account was on 15.04.2011 i.e. one month prior to the recovery of this case. Besides amount deposited, it is also claimed that accused Gunjan Sethi used to remain in touch telephonically from his mobile no. 9938481868, which was recovered from his personal search at the time of his apprehension, with accused Durga Prasad on the SC no. 114/11 Page 61 of 68 62 three mobile phones of Durga Prasad, none of which however could be recovered from Durga Prasad. As per the call detail records, the last call made to or from the mobile of accused Gunjan Sethi on the mobile no. 9197860384 belonging to accused Durga was on 14.05.2011. As per the call detail records, the last call made to or from the mobile of accused Gunjan Sethi on the mobile no. 9777159560 belonging to accused Durga was on 15.05.2011. As per the call detail records, the last call made to or from the mobile of accused Gunjan Sethi on the mobile no. 9437392968 belonging to accused Durga was on 14.05.2011. However, admittedly none of those three mobiles of Durga were recovered from Durga and the factum of mentioning of one of the mobile number in the bank account of Durga has already been discussed and held unreliable above. Besides this, there is no admissible piece of evidence against accused Gunjan Sethi.
20 As mentioned above, there is no recording of telephone conversations between any of the accused of this case, therefore, the prosecution intends to draw an inference that since the accused were talking to each other on mobile, therefore, in all probability they must have conspired. I am afraid, no such inference can be drawn merely from the telephone calls between the accused. There cannot be any presumption in law that if they spoke to each other, they must have spoken about contraband and they must have conspired. No doubt in a case of conspiracy it is extremely difficult to SC no. 114/11 Page 62 of 68 63 collect physical or direct evidence and conspiracy will have to be gathered from the circumstances, but then those circumstances cannot be assumed. Though the fact that a huge amount was deposited in the account of some of accused indeed gives rise to suspicion as to the activities and raises eye brows, but then in criminal law it is established principle that suspicion however strong cannot take place of proof. There cannot be any presumption in law that if amount was deposited in somebody's account, it was only connected with the narcotics or drugs.
21 So far as call detail records of the accused persons are concerned, the certificates U/s 65B does not meet the requirements under Sub Section (2) of Sec. 65 B of the Indian Evidence Act.
21.1 Very recently on 18th September 2014, a three judge bench of Hon'ble Supreme court in the case of Anvar P.V Versus P.K Basheer and others, Civil Appeal No. 4226 of 2012, held as follows;
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify SC no. 114/11 Page 63 of 68 64 secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B (2). Following are the specified conditions under Section 65B (2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;SC no. 114/11 Page 64 of 68 65
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents;
and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.SC no. 114/11 Page 65 of 68 66
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
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SC no. 114/11 Page 66 of 68 67Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
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..................... An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
22. The sum & substance of the above discussion is that the prosecution fails to establish conspiracy of accused persons namely Pradyuman Pradhan, Durga Prasad, Gunjan Sethi, Vikram, Somnath Ghosh, Sanjay and Tejvir amongst each other or with other proclaimed offenders, beyond reasonable doubt. Though the SC no. 114/11 Page 67 of 68 68 evidence led may give rise to some amount of suspicion that if the account transactions were not concerning contraband, for what purpose or business those transactions were, but it is settled law that in criminal trial, suspicion however strong cannot take place of proof and therefore, benefit of doubt goes to accused Pradyuman Pradhan, Durga Prasad, Gunjan Sethi, Vikram, Somnath Ghosh. They are thus acquitted of the charges against them.
23. So far as accused Sanjay and Tejvir are concerned, though the prosecution succeeds in proving that the contraband was recovered from their joint possession, but because of non- compliance of Sec. 42(2) of NDPS Act, the recovery against them also gets vitiated.
24. Thus, all the accused are acquitted of the charges against them.
Announced in the open court on 05th day of May, 2015. Dig Vinay Singh ASJ/Spl.Judge:NDPS(N-W) Rohini Courts/Delhi SC no. 114/11 Page 68 of 68