Delhi District Court
Ncb vs . 1 K.R. Vengadeswar on 20 April, 2010
IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS
PATIALA HOUSE COURTS, NEW DELHI
Date of Institution : 26.02.2005
Judgment reserved on : 01.04.2010
Date of pronouncement : 12.04.2010
SC No. N23/08
ID No. 02403R009070205
NCB Vs. 1 K.R. Vengadeswar
s/o Sh. Krishan Swamy Reddy
r/o 18/3 Ranga Swamy Naidu
Nagar, Ganapuram, Coimbatore,
Tamil Nadu
2 Dilbagh Singh @ Raju @ Dhillon
s/o Sh. Sardar Amrikh Singh
st
r/o 1537, Sector 36D, 1 floor,
Chandigarh
(Proclaimed Offender)
JUDGMENT
1. The Narcotics Control Bureau (NCB) through its Intelligence Officer (IO) Sh. Mangal Dass filed a complaint against the accused Dilbagh Singh and K.R. Vengadeswar alleging therein that on 31.8.04 at 1000 hours a secret information was received that one Dilbagh Singh resident of 1537, first floor, Sector 36 D, Chandigarh would come at New Delhi Railway Station (Paharganj side) in between 1600 to 1700 hours in his Lancer car DL 6CG 9691 and bring heroin in the dicky to deliver to his customers near current Page numbers reservation office.
The information was submitted to the senior officers who dispatched a team under Mangal Dass. Two witnesses namely Rakesh and Subhash were joined and the surveillance was mounted. At about 1630 hours, the aforesaid car came at the place. After sometime, a person reached near the car. The occupant of the car opened the dicky and handed over a dark blue colour rexin bag to that person. The officers encircled those persons who revealed their names Dilbagh Singh @ Raju (occupant of the car) and K.R. Vengadesvar (the person who had received the bag). They were served notices u/s. 50 NDPS Act but they refused their search before a Gazetted Officer or a Magistrate. On search of the bag in possession of Vengadesver, 6 polythene packets filled with brown colour substance in powder form each weighing 1.0 kg were recovered. They on testing gave positive for heroin. The packets were given mark A1 to A6. Two samples of five grams each were taken out from the lot of 6 packets and given mark AE1 and AE2. The case property and the samples were sealed with the seal of NARCOTICS CONTROL BUREAU DZU 5.
From the search of the dicky, a white colour plastic gunny bag containing 25 packets was also recovered. Out of the 25 Page numbers packets, 11 packets were filled with off white granular / powder form substance. Remaining 14 packets were filled with brown colour powder substance. All the packets were weighing one kg each. From the 11 packets mark B1 to B11, 10 packets mark C1 to C10 and the remaining 4 packets mark D1 to D4, two samples of five grams each were taken out from each lot of B, C, and D and given mark BF1, BF2, CG1, CG2 and DH1 and DH2. The case property and the samples were sealed using the same seal. RC of the car was recovered from its dashboard. The car was also seized. A test memo in triplicate was prepared on which facimile of the seal was appended. A panchnama was drawn. The case property and the samples were deposited in the malkhana and the seal was returned to the Incharge Sh. P.L. Verma. The summons u/s. 67 NDPS Act were given to both the accused who tendered their statements admitting their role and their complicity in the alleged trafficking. Both the accused were arrested. The reports u/s. 57 were submitted to the senior officers On 2.9.04 the samples were sent to CRCL through Hawaldar Shiv Rattan. Inquiry was made qua the ownership of the lancer car which was found to be in the name of Simran Chopra. It was found that accused Dilbagh Singh had purchased the car through a property dealer. Raid was also conducted at the house at Page numbers Chandigarh, Samrala and Amritsar but nothing incriminating was found. On testing, the samples were found to contain diacetylmorphine with their purities AE1 - 63.5 , BF1 - 66.0, CG1 - 77.4 and DH1 - 77.4 % respectively. After the investigation, present complaint was filed against both the accused.
2. After making out prima facie case, charge was framed against both the accused u/s. 21(c) r/w 29 and u/s. 21(c) of NDPS Act. Both the accused pleaded not guilty and claimed trial.
3. During trial, accused Dilbagh Singh absconded from Amritsar Jail where he was facing trial in some other case. He was declared proclaimed offender on 24.2.07.
4. To prove its case, the prosecution examined as many as twelve witnesses.
Pw1 Sh. P.L. Verma had handed over the seal NARCOTIC CONTROL BUREAU DZU 5 to Sh. Mangal Dass IO. He had received it back on the same day ie on 31.8.04 at 7.45 pm. He was also looking after the charge of malkhana. He had received the case property, eight samples and the test memo in duplicate bearing the above seal. On 2.9.2004 he had given the four samples to Hawaldar Shiv Rattan alongwith the test memo in duplicate to be taken to CRCL. He had made the relevant entries in the seal movement Page numbers register Ex. Pw1/A and the malkhana register Ex. PW1/B. Pw2 Sh. Mangal Dass had received the secret information Ex. Pw4/A and submitted to Pw4 who issued him the search authorization Ex. PW4/B. He had taken the seal from Pw1 and led the team. He had called two independent witnesses, mounted surveillance and spotted the lancer car DL 6CG 9691 at near Current Reservation Office, New Delhi Railway Station, Paharganj side. He had encircled the accused and issued the notices u/s. 50 NDPS Act. Ex. PW2/C and PW2/B. He had conducted the seizure and the sampling proceedings. He had also recovered a white plastic gunny bag from the dicky of the car which contained 25 polythene packets each weighing 1 kg containing white colour powder / granular substance / brown powder. He had also drawn samples from the packets and sealed with the seal of NARCOTICS CONTROL BUREAU DZU 5. He had recovered the RC of the car from the dashboard, prepared the test memo in triplicate Ex. PW4/G and a detailed panchnama Ex. PW2/D of the entire proceedings. He had issued summons to both the accused u/s. 67 NDPS Act. In his presence accused Dilbagh Singh had tendered the statement Ex. PW2/F and Ex. PW2/H. He had also issued summons to Vengadeswar Ex. PW3/A on 31.8.04. He had arrested the accused Dilbagh Singh on 1.9.04 vide arrest memo Ex. PW2/J and submitted the reports u/s. 57 of seizure of heroin Ex. PW4/D and the arrest Page numbers report of Dilbagh Singh Ex. PW4/E to Sh RR Kumar Pw4. He had submitted an enquiry reports regarding the ownership of the car Ex. PW4/I, the ownership of the house at 1537, 36D Chandigarh the residential address of the accused Dilbagh Ex. PW4/J and proved the statement of Subhash Ex. PW2/M and Rajesh Mann Ex PW2/P. He had made entry in the seal movement register and deposited the case property in the malkhana. The case property was produced before him which he correctly identified vide Ex. P1 to P139. He had also filed the complaint Ex. Pw2/A. Pw3 H.K. Pandey was present when the accused Vengadeswar had tendered his statement u/s. 67 NDPS Act Ex. PW3/B and Ex. PW3/D. He had arrested the accused on 1.9.04 vide arrest memo Ex. PW3/E and also witnessed the arrest of accused Dilbagh. He had prepared the arrest report u/s. 57 NDPS Act and submitted to Sh. RR Kumar vide Ex. PW3/F. Pw4 Sh. RR Kumar was the Superintendent at the relevant time before whom the secret information was placed by Pw2. He had issued search warrants in favour of Pw2 and received the execution report Ex. PW4/B. He had also received the seizure and the arrest report from Sh. Malgal Dass and Sh. H.K Pandey and on 2.9.04, issued a letter Ex. PW4/F addressed to the chemical examiner CRCL authorizing Shiv Rattan to carry the samples alongwith test memo to CRCL for analysis. He also received the enquiry report qua Baljinder Page numbers Singh, Baba resident of Samrala and Amritsar whose names had figured during investigation. He had received the report from CRCL and the remnant samples.
Pw5 Sh D.K Beri was the chemical examiner in CRCL. In his tenure, Sh. PK Aggarwal Assistant Chemical Examiner had analysed the samples and issued report Ex. PW5/A finding positive for diacetylmorphine with its purity AE1 - 63.5%, BF1 - 66.0%, CG1 77.4 and DH1 - 74.5. He also identified the remnant samples.
Pw6 Sh. Rajeshwar Singh had recorded the statement of panch witness Rakesh Ex. PW6/A. He had also gone to Punjab as a follow up action qua the seizure of 31 kg of heroin. He had gone to Samrala Village and then to Amritsar but could not find Baljinder Singh and Jela Baba vide enquiry report Ex. PW4/K. Pw7 Sh. Vikas Kumar had gone with Pw6 to Samrala and Amritsar. He had also recorded statement of Subhash Ex. PW4/M. Pw8 Sh. S.K. Mittal was the Assistant Chemical Examiner. He had received the samples bearing the above seal, test memo and issued the receipt Ex. PW8/A to Hawaldar Shiv Rattan.
Pw9 Havaldar Shiv Ratan had taken the samples alongwith test memo and the forwarding letter to CRCL.
PW9A Sh. N.S. Yadav had recorded the statement of panch witness Rakesh Ex. PW6/A. Pw10 Sh. B. Joshi had recorded the statement of Dilbagh Page numbers Singh Ex. PW2/F and Ex. PW2/H before Mangal Dass on 31.8.04 and 1.9.04.
PW11 Sh. Subhash was one of the panch witness. In his presence, the car was searched and the contraband was recovered. He had also identified the accused Vengadeswar and tendered his statement Ex. PW2/M.
5. Accused was examined u/s. 313 CrPC wherein he controverted the prosecution case and pleaded his innocence. He did not prefer to lead evidence in his defence.
6. I have heard the arguments advanced by Ld Spl PP Sh.
Satish Aggarwala for NCB and Sh. Sanjeev Manan, Ld Amicus Curie for the accused.
7. Ld counsel vehemently argued that neither anyone from the car parking nor any tea vendor was joined in the seizure proceedings. The parking slip was not seized. The RC recovered from the car was in the name of Simran Chopra but neither she was made witness nor the accused. Pw10 did not say that copy of the notice u/s. 50 NDPS Act was recovered from the personal search of the accused. So called panch witness Rakesh is the stock witness of NCB who was witness in the case of NCB Vs. Gurmeet Singh. There is material contradiction in the testimony of Pw11 as in his testimony he has Page numbers stated that the colour of the bag allegedly recovered was green but as per the prosecution, it was a case of recovery of dark blue colour bag. Pw11 did not give the colour and number of the car from which the contraband was recovered. Ld counsel stated that the accused was arrested from Chandigarh and has no connection with the alleged recovery. He was falsely implicated in this case by planting the case property on him. The accused in addition submitted his written arguments stating that he had come to Chandigarh in search of his missing relative. He was staying in Vikrant Hotel, Sector 18, Chandigarh from where he was brought to Delhi and shown involved in the present case without any rhyme or reason. The NCB officers had come to search someone else but detained him just to overcome a manifest mistake. He had retracted from his statement on 30.9.09. Pw11 has stated that the incident occurred at 3.30 to 4 pm whereas in the chargesheet, the time has been shown as 1630 to 1700 hours. There is no evidence how the recovered contraband was weighed at the railway station. Pw11 has stated that he had gone to Railway station to receive his relative so why was he not waiting at the platform. No Gazetted Officer was taken by the raiding party with them. The seal was not given to the independent witness.
8. Ld Spl PP per contra argued that the prosecution has been able to prove its case to the hilt. All the material witnesses have Page numbers entered into the witness box and they had fully supported the case of the prosecution and corroborated one another on each and every aspect of the case. Link evidence is also found to be in existence and all the relevant documents and entries have been duly proved. The CRCL report also confirms the contraband to be heroin. Due compliance u/s. 42, 50, 55 and 57 NDPS Act was made. Pw11 has correctly identified the accused. The contradictions pointed out above are minor and in no way falsify the case of the prosecution. The summon was sent to the witness Rakesh but he was not found at the said address. The notice u/s 50 NDPS Act was given by Pw2 on which the accused had recorded his refusal to be searched before a Gazetted Officer or Magistrate. Only one copy of the notice was given, so there was no question of recovery of the copy of the notice from the personal search of the accused. The seal movement register was being maintained by the NCB where entry of handing over and taking over of the seal was made. The retraction was not made by the accused on the same day ie 16.9.04 when he was produced before the Court. Presumption is available to the prosecution u/s. 35 and 54 of the NDPS Act. In view of the law laid down in the case M. Prabhulal vs. A.D. DRI 2003 (3) JCC 1631 SC, Rehmatulla Vs. NCB - 2008 (3) JCC (Narcotics) 174, Kanhaiya Lal vs. UOI 2008 (1) JCC (narcotics) 23 their statements under section 67 are sufficient to base conviction.
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9. I have considered the rival contentions and gone through the voluminous evidence and the documents on record. I have also perused the case laws relied upon by the prosecution as well as the defence.
10. The accused has been charged u/s. 21 (c) and 21(c) r/w 29 of the NDPS Act. Section 21 reads as whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder manufactures, possesses, sells, purchases, transports, imports interState, exports interState or uses any manufactured drug or its preparation shall be punished....
Section 29 provides punishment for abetment and criminal conspiracy. A person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to doing of that thing. Criminal conspiracy is defined u/s. 120A Indian Penal Code which reads as "when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
11. Pw2 has deposed that on 31.8.04 he had received the information Ex. Pw4/A at 1000 hours that Dilbagh Singh @ Raju Page numbers would reach at New Delhi Railway Station, Paharganj side in between 1660 to 1700 hours in a lancer car DL 6CG 9691 with a huge quantity of narcotics drugs concealing it in his car and would deliver to his customers near current reservation office. He had forwarded the information to Pw4 who after putting it before the Director, issued search authorization Ex. Pw4/B in favour of Pw2 to conduct raid which fact is also stated by Pw4. Pw2 has stated that after constituting the raiding party, he collected the seal of NARCOTICS CONTROL BUREAU DZU 5 from PW1 which fact is also stated by Pw1, the Incharge Seals who had made relevant entry Ex. PW1/A.
12. Pw2 has stated that he with his team reached at the spot at 1600 hours where he called two independent witnesses Rakesh and Subhash and mounted the surveillance. At about 1630 hours, the aforesaid lancer car reached near Current Reservation Office. After few minutes, the accused Dilbagh Singh, the occupant of the car opened the dicky and handed over a dark blue colour bag to the accused Vengadeswar. He stated that they encircled both of them, gave their introduction, showed them the search authorization and issued them notices Ex. Pw2/C & Pw2/B asking them if they wanted the search of the car or their search before a Magistrate or a Gazetted Officer being their legal right explaining their meaning and the accused had replied that they did not want their presence and any Page numbers present NCB officer could take their search. He stated that accused Dilbagh Singh had written the refusal in Punjabi while the accused Vengadeswar in English which were also singed by the Panch witness. It is not the case of the prosecution that the accused were not offered the search before the Gazetted Officer / Magistrate. Pw2 has stated that he took the bag from the accused Vengadeswar which on opening was having 6 polythene bags containing brown colour powder giving positive for heroin on testing with the help of field testing kit each weighing 1 kg. He stated that 2 samples of 5 gms each from all the six packets were taken which were marked as AE1 to AE2. The samples and the bag were sealed using the aforesaid seal. He stated that during the course of search, a white plastic gunny was recovered from the dicky of the car which had 25 polythene packets containing white colour powder / granules / brown powder from which the samples DF1, DF2, CG1, CG2, DH1 and DH2 were drawn. He stated that the case property and the samples were sealed with the same seal and one RC was also recovered from the dashboard. He stated that he had prepared the test memo in triplicate and drawn a panchnama Ex. Pw2/D. The case property was also produced before him which he correctly identified. During his examination no discrepancy in colour and texture was highlighted by the defence counsel.
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13. Pw11 has corroborated the testimony of Pw2 and stated that on that day he had gone to Paharganj to receive his relative. He stated that the car had come at about 4 pm and from the said car a green colour bag was taken out from its dicky which on checking was found to contain 6 packets having brown colour powdery substance. He stated that on further search one plastic bag of white colour containing 25 packets powder was recovered. He stated that the documents were prepared by the officers on which he had put his signatures. He correctly identified the accused. He has also proved his statement Ex. PW2/M. He has admitted his signatures on the documents ie search authorization, panchnama Ex. Pw2/B and the paper slips Ex. P26 and P129. He has categorically denied the suggestion that he was the stock witness of NCB or his signatures were obtained on blank papers or nothing had happened in his presence. On careful scrutiny of his testimony I find that he has corroborated the prosecution case on each and every material point. Admittedly he did not give the colour of contraband and number of car but at the same time, we should not forget that he was examined after about 6 years of the incident. Nothing can be inferred from his testimony that he was a planted witness. No suggestions were put to this witness that he knew the NCB officers from before or had signed the documents at Page numbers their behest in the office. It assumes no significance that this witness lives at RK Puram where the office of NCB is situate. The fact of the matter is that he was joined from the spot and in his presence the whole proceedings were conducted. Viewed thereof I do not find any reason to disbelieve him.
14. As regards discrepancy in colour of the bag, Pw2 has stated that it was a dark blue colour bag but Pw11 has stated that it was a green colour bag. It is relevant to mention that the bag was produced during the evidence of Pw2 and there was an observation from the Court that it was a dark blue colour bag. In the panchnama the colour of the bag has been shown as dark blue. PW11 has admitted his signatures on the panchnama. As regards timing, Pw2 has stated that the car reached at current reservation office at about 1630 hours. Pw11 has stated that it came at about 4 pm.
15. I do not rate this discrepancy as material which is quite natural when the witness was examined after about 6 years of the incident. A person cannot be expected to possess photographic memory. Minor contradictions not touching the root of the matter are immaterial. So far as use of weighing balance, Pw1 was not questioned which type of balance was used. Pw2 has specifically stated that the case property and samples were weighed on the spot.
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16. In the case titled Siddiqua Vs. NCB 137 (2007) DLT 500 it was observed :
"A perusal of the statements of the prosecution witnesses would show that on material aspects, there were no contradictions. A small contradiction here and there about the timings or preparation of Test Report, could not make the testimonies of the witnesses doubtful. In my opinion, where the witnesses do not make any contradictions and all witnesses, parrot like repeat the same statement, one after another, such statements would not be natural statement. It has now been scientifically proved that if ten persons watch one incident and if they are all asked to describe the same incident after some time, each persons shall give a description of the incident which will not match in minute details with the description of the other. Minor discrepancies are very natural to occur in testimony of different witnesses and the testimony of a witness cannot be rejected on the ground that there were minor discrepancies or contradictions."
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17. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors 2002(2) CC Cases (SC) 58 it was held that :
It is the duty of the Court to separate grain from chaff - when chaff can be separated from grain, it could be open to the court to convict and accused notwithstanding that evidence found difficult to prove guilt of other accused persons - falsehood of particular material witness or material particular would not secluded from the beginning to end - the maxim Falsus in uno falsus in omnibus has no application in India and the witnesses cannot be branded as liar".
The Court while appreciating the evidence should not lose sight of the realities of life and can not afford to take an unrealistic approach by sitting in ivory tower. It is easy to pass an order of acquittal on the basis of minor points by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not wight with the court so long it does not affect the prosecution case.
18. In the case of State v. Kishangopal AIR 1988 SC 2154 it was held that doubts would be called reasonable if they are free from zest for abstract speculation. Law cannot afford any favourite other Page numbers than truth.
19. It was next contended by ld counsel that so called panch witness Rakesh is the stock witness of NCB. Ld counsel has also produced a panchnama of the case NCB Vs. Gurmeet Singh which was marked as 'A'.
20. I do not subscribe this contention. In this case, prosecution did not examine this very witness as he was not found traceable at the said address. It is not the case that the prosecution had intentionally withheld his presence. It was held in the case reported in 1989 Crl.L. J. 1181 that evidence of a witness cannot be discarded merely he had acted as panch witness once or twice earlier.
21. As regards joining of shopkeeper, Tea Vendors or the parking contractor at the spot, in this case two panch witnesses had already been joined before the seizure proceedings. It is not the case that the spot was away from the parking area. The NCB officers had spotted the car when it was parked and the drug was being exchanged so not joining the parking contractor is not fatal. As regards seizing of of parking slip or rail ticket, it is not the case that the vehicle was parked at some other place or the exchange of contraband had taken place at some other place. The accused were Page numbers found at the same place where the car was parked. Nothing has come that the accused had to travel in train. The facts and circumstances rather show that the place at New Delhi Railway station was chosen to exchange the contraband.
22. In the case of Nathu Singh vs. State of Madhya Pradesh, AIR 1973 SC 2783 it was held that the mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher v. Customs 2004 (3) JCC 147.
23. In the instant case Pw2 had deposited the case property in the malkhana Pw1 has proved this fact and stated that the entry was made in the malkahana register Ex. PW1/B qua deposit of two pulandas, 8 samples and test memo. Pw1 has stated that on 2.9.04 he had sent the fours samples alongwith test memo in duplicate through Pw9 which fact was also stated by him. Pw9 has stated that he had given the samples to Pw8 who had given him the receipt Ex. PW8/A. Testimony of PW8 and Pw5 reveals that the samples were received in intact condition and it had the aforesaid seal. Pw5 had analysed the samples and given the report Ex. PW5/A. On analysis he had found the samples containing diacetylmorphine with its purity Page numbers AE1 - 63.5, BF1 - 66.0, CG1 - 77.4 and DH1 - 77.4 per cent respectively.
24. Slight discrepancy in colour was observed in the case property and the sample but it is immaterial as it could be due to change in atmospheric condition. Further the contraband was not prepared in the laboratory. Prosecution has examined all the link witnesses to rule out the possibility of tampering with the case property.
25. As regards calling Simran Chopra, registered owner of the car, enquiry was made and it was found that she had sold the car to a dealer. She was not found at the given address. That being the position, she was not rightly made the accused.
26. In the instant case, after the seizure both the accused were given summons to appear in the NCB office who in pursuant thereto tendered the statements Ex. PW2/F and PW2/H (Dilbagh Singh) and Pw3/B and PW3/D (Vengadeswar) on 31.8.04 and 1.9.04 respectively. After going through the statements, I find that both had given certain information which could only be revealed by them. They have stated how the contraband came in their possession and how they came in contact with each other. The accused Vengadeswar Page numbers has admitted his complicity and stated that he had been asked by one Augustine to take the delivery of drug at New Delhi Railway station near current reservation counter. Augustine had also told him that a person would contact him and he would come in white lancer car DL 6CG 9691. The accused Dilbagh has stated that one Baba got him introduced to one Miyan a Pakistani National. The drugs used to come to India from Pakistan. He stated that Augustine was his client.
The retraction was made by the accused for the first time on 30.9.04. He was apprehended on 31.8.04. There is nothing on record that the NCB officers knew the accused from before or had animus against him. The accused was also subjected to medical examination but nothing of this sort has come that he was subjected to beating or torture at the time his statement was recorded. The statement is in his hand. Pw3 who had recorded the statement of the accused has categorically stated that it was his voluntary statement. His statements reveal that he was explained about the consequences of giving such a statement but despite that he tendered the above statements. Further the present case is not solely based on the statement of the accused recorded u/s. 67 NDPS Act. The recovery was effected from the accused and his statement duly corroborates the recovery and his complicity in the drug Page numbers trafficking.
27. Hon'ble High Court in the case of Rehmatullah v. NCB supra made reference to the judgments concerning the interpretation of section 67 NDPS Act and also referred the case of Raj Kumar Karwal v. Union of India 1991 CrLJ 97 (SC), held that such statements made to the officers of the Department of Revenue Intelligence were not hit by Section 25 of the Evidence Act.
28. In M. Prabhulal v. Assistant Director, supra it has been held that if the confessional statement is found to be voluntary and free from pressure, it can be accepted.
29. In State (NCT of Delhi) v. Navjot Sandhu @ Afasan Guru (2005) 11 SCC 600 (vide para 34) it was held "A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made."
30. In this case, there is enough circumstantial evidence to prove their complicity. They knew where they had to meet to exchange the contraband. The accused Dilbagh had handed over the contraband to the accused Vengadeswar which he had received.
Page numbers They knew the car number in which the contraband had to come. They had disclosed the name of the common person Augustine for whom the trafficking was to be done.
31. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The conspiracy can undoubtedly be proved by such circumstantial evidence. In the case of Eran Eliav V. State 2008 Drugs Cases (Narcotics) 98 it was observed - Both abetment and criminal conspiracy are fiendishly difficult to establish by virtue of direct evidence, it can be established by indirect or circumstantial evidence which is of an impeccable nature.
32. In this case Pw2 had submitted the seizure report u/s. 57 NDPS Act Ex. PW4/D and the report of arrest Ex. PW4/E. Pw3 had submitted the arrest report qua Vengadeswar Ex. PW3/F, Pw4 has admitted the receipt of the reports u/s. 57 NDPS Act as well as the enquiry report. The testimony of Pw4 remained unrebutted. Thus all procedural compliance was made as guided and provided in the case Ritesh Chakravarti Vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150.
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33. It is a case of recovery of huge quantity of heroin. It is not possible to plant such a huge quantity upon a persons. Moreover, there is no reason to falsely implicate the accused In the case of State of Punjab Vs. Balwant Rai 2005(1) JCC (Narcotics) 103: "The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H.P. 2005(1) Crimes 358 (H.P.) it was observed: "It is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person...... police had no axe to grind in implicating the accused".
34. It was held in the case of Madan Lal and another vs. State of Himachal Pradesh 2003 (3) JCC 1330 that once the possession is established the person who claimed that it was not the conscious possession has to establish it because how he came to be in possession is within its special knowledge. Section 35 of the Act give a statutory recognition to its possession before of a presumption available on record and similar is the position in terms of section 54 where also presumption is available to be drawn from the possession of illicit articles. In the instant case the accused by preponderance of probability of evidence failed to rebut the presumption that he was not in conscious possession of the same.
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35. On considering the facts, case laws, the documents, the testimony of witnesses after its detailed scrutiny no doubt is left in my mind that accused Vengadeswar and Dilbagh Singh (PO) were party to the criminal conspiracy in acquiring/possessing heroin and in pursuant thereto Vengadeswar received a bag containing 6 kg of heroin with its purity 63.5%. He was found in conscious possession of heroin in contravention of provision of the Act, Rules and order. I am of the view that prosecution has proved its case beyond reasonable doubt. I therefore, convict accused Vengadeswar for the offence punishable u/s 21 (c) and 29 r.w.s.21 (c) of the NDPS Act. Announced in open Court on this 12th day of April, 2010 Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi Page numbers IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS PATIALA HOUSE COURTS, NEW DELHI SC No. N23/08 NCB Vs. Dilbagh Singh @ Raju and Anr.
ORDER ON SENTENCE
1. Vide separate judgment accused Vengadeswar has been convicted of the offence punishable u/s 21 (c) and 29 r.w.s. 21 (c) of the NDPS Act.
2. Ld. SPP Sh. Satish Aggarwala for NCB has prayed for maximum sentence provided under the statute and submitted that the sentence should be proportionate to the gravity of the offence.
3. Ld. Amicus curie submitted that the accused is poor person resident of Tamil Nadu and does not have any record of previous conviction. He be given opportunity to reform and rehabilitate.
4. I have considered the submissions.
The Hon'ble Supreme Court in the case of Union of India Vs. Kuldeep Singh 2004 Vol. 2 SCC 590 held :
Page numbers Imposition of sentence without considering its effect on the social order in many cases may be unreally a futile exercise. The social impact of the crime e.g. Where it relates to offences relating to narcotics drugs or psychotropic substance, which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude by imposing meager sentences of taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offence will be result wise counter productive in the long run and against social interest which needs to be cared for and strengthened by a string of difference inbuilt in the sentencing system. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
5. In the present case, the convict is involved in trafficking of heroin. The effect of consumption of heroin on the society is disastrous. It eats away the life and vigour in the society. Illegal trade of such a high quantity would have adverse impact on the lives of uncountable persons.
6. The incident pertains to the year 2004. The Convict Page numbers Vengadeswar is aged about 64 years, Sri Lankan but settled in Tamil Nadu since 1983. He has a married daughter. Prior to this incident, he was doing electrical business and does not have any case against him under NDPS Act. He is in custody from the date of his arrest.
7. Taking into consideration the totality of facts and the circumstances, antecedents and family background of the convict, I sentence the convict to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1,00,000/ in default thereof to undergo simple imprisonment for a period of six months for offence punishable u/s 21 (c) NDPS Act. He is also sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1,00,000/ in default thereof to undergo simple imprisonment for a period of six months for offence punishable u/s and 29 r.w.s. 21 (c) of the NDPS Act. Both the sentences shall run concurrently. He is given benefit of section 428 Cr.P.C.
8. I find sufficient incriminating material to proceed against accused Dilbagh Singh @ Raju who is proclaimed offender. File be consigned to record with with option to prosecution to revive its case as and when it gets any clue about accused.
Announced in open Court on this 20th day of April, 2010 Page numbers Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi Page numbers