Punjab-Haryana High Court
Cra No. 390-Db Of 2 vs The N.C.B Chandigarh And Another on 26 March, 2013
Author: Ritu Bahri
Bench: Hemant Gupta, Ritu Bahri
CRA No. 390-DB of 2010 &
CRA No. 573-SB of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision:- 26.03.2013
1. CRA No. 390-DB of 2010
Inderjit Singh and another ...Appellants
Versus
The N.C.B Chandigarh and another ...Respondents
2. CRA No. 573-SB of 2010
Ozi Razaq Ola ...Appellant
Versus
The N.C.B Chandigarh and another ...Respondents
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MS.JUSTICE RITU BAHRI
PRESENT: Mr. Baljinder Singh Dhaliwal, Advocate for
Mr. K.S. Dhaliwal, Advocate
for appellants-Inderjit Singh and Mam Chand
(in CRA No.390-DB of 2010)
Mr. Sidakmeet Sandhu, Advocate
for the appellant-Ozi Razaq Ola
(in CRA No. 573-SB of 2010)
Mr. D.D. Sharma, Advocate
for the respondents.
RITU BAHRI, J.
This judgment shall dispose of aforementioned two appeals i.e CRA No.390-DB of 2010 preferred by Inderjit Singh s/o Late Chunni Lal and Mam Chand s/o late Puran Chand and CRA No.573-SB of 2010 preferred by Ozi Razaq Ola s/o late Ola Oji against the judgment of conviction and order of sentence dated 19.01.2010, passed by the learned Judge, Special Court, Chandigarh, vide which the accused-appellant Inderjit Singh was convicted for an offence punishable under Section 20 read with Section 8 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -2- 'the Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for a period of one year; the accused-appellant Mam Chand was convicted for an offence punishable under Section 20 read with Section 8 and 31 of the Act and was sentenced to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.1,50,000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for a period of two years & the accused- appellant Ozi Razaq Ola was convicted for an offence punishable under Section 20 read with Section 29 of the Act to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for a period of one year The prosecution case is that a complaint was made on 06.08.2008 by Intelligence Officer Gurdas Ram (P.W.3) to the effect that on 14.02.2008, he received a secret information that Tara Chand (since deceased) was involved in drug trafficking and was likely to send a consignment of 20 kg charas through two persons namely, Inderjit Singh and Mam Chand through Taxi bearing No. HP-01-K-1621 (white colour Tata Indigo) to a Negro in Delhi. This carrier was to go to Delhi via Tribune Chowk, Chandigarh. Such information was reduced into writing as Ex.P12 at about 05:45 AM and placed before the Superintendent, Narcotics Control Bureau, Chandigarh. The Intelligence Officer was directed to organize a surveillance operation and to constitute a team of NCB. Thereafter, he along with Intelligence Officers Ganesh Balooni & Hardesh Kumar, Gurdev Singh, Driver, Rajesh Kumar, CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -3- Ramesh Kumar and Balwinder Singh, Sepoys left for surveillance at Hallomajra round-about, Chandigarh. On the way, he associated Kamal Mehta and Harkesh Kumar to witness the process of search as and when two drug trafficker arrive. At about 7 A.M, a white coloured Tata Indigo Car bearing No. HP-01-K-1621 was seen coming towards Hallomajra round-about going towards Delhi, which was stopped by the NCB team. Gurdas Ram introduced himself, his team members and independent witnesses and asked about their identity. On enquiry, they disclosed their names as Inderjit Singh and Mam Chand. Intelligence Officer disclosed that they have information that the accused are involved in drug trafficking and also informed them that they want to search them and their car. A notice under Section 50 of the Act was given to both the accused and the same was read over to them. Thereafter, the NCB team along with independent witnesses appended their signatures on it. Both the accused did not object to be searched by the NCB team. During search, Intelligence Officer asked Inderjit Singh to open the boot of the car. While searching boot of the car, a plastic bag (sack) was recovered. On opening of the bag, 20 packets wrapped with brown plastic tape were recovered. On asking, the accused told that these packets contain charas, which they have brought from Tara Chand (since deceased) resident of Chhilal, District Kullu (H.P) and were going to deliver the same to one Nigerian namely Ozi Razaq Ola at Kakrola turn near Metro Railway Station, Dwarka, New Delhi. On further inquiry, accused Inderjit Singh told that during 2nd week of December, 2007 also, accused Tara Chand (since deceased) used his car to smuggle and deliver 40 kg of charas to accused Ozi Razaq Ola at the same address at Delhi.
CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -4- Intelligence Officer Hardesh Kumar took out the sample and conducted the tests with the help of drug detection kit. It tests positive for Hashish (Charas). Then Hardesh Kumar took out manual weighing scale from the seizure kit and weighed the contraband. The weight of each polythene packets was found to be 1 kg each, thus, all the 20 packets weighed 20 kgs.
The recovered contraband was divided into two lots of 10 packets each. Small quantity of charas was taken out from each packet of first lot of the packets and was mixed homogeneously. Then two representatives samples of 25 gms each were withdrawn. The material was put in small polythene pouches, heat sealed and then put in white paper envelopes. Four seals of NARCOTICS CONTROL BUREAU-06 were affixed. The remaining charas of first lot of 10 packets was put in big polythene bag and affixed with the seals of NARCOTICS CONTROL BUREAU-06. It was marked as LOT- A. The sample packets were marked as A-1 and A-2. Same procedure was adopted for 2nd lot of 10 packets and the samples of this lot were marked as B- 1 and B-2 and the lot containing balance quantity of charas was marked as Lot B. The packing materials including brown coloured tape, transparent polythene packet and plastic bag (sack) were separately kept in a polythene packet and it was kept in a markine cloth and was sewed properly and three seals of NARCOTICS CONTROL BUREAU-06 were affixed on it and it was marked as Lot-P. The accused Inderjit Singh, both the witnesses Kamal Mehta and Harkesh Kumar, IO Gurdas Ram placed their signatures in presence of each other on each packet.
Another NCB team constituted under the leadership of Intelligence Officer Ganesh Balooni, Gurdev Singh, Driver, Rajesh Kumar CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -5- and Balvinder Singh, Sepoys, proceeded to Delhi on 14.02.2008 to apprehend the accused Ozi Razaq Ola. On reaching at the disclosed place, the team apprehended the Nigerian namely Ozi Razaq Ola near Metro Railway Station. He was given a notice under Section 67 of the Act.
On interrogation, all the three accused Inderjit Singh, Mam Chand and Ozi Razaq Ola tendered separate confessional statements with their free will and without any undue influence under Section 67 of the Act which were recorded by the IO, in the presence of two independent witnesses and were read over to the accused, who signed it.
The complainant gave report under Section 57 of the Act to the Superintendent, NCB on 14.02.2008. After analysis, the Chemical Examiner opined that on the basis of macroscopic chemical and chromatographic examination, the sample under reference is "charas qualitively".
After completion of investigation, complaint was submitted on 06.08.2008. The charges were framed against the accused to which they pleaded not guilty and claimed trial.
During trial, the prosecution examined P.W.1 Ramesh Kumar, Sepoy; P.W.2 Ganesh Balooni; P.W.3 Gurdas Ram, Intelligence Officer; P.W.4 S.C. Mathur, Chemical Examiner; P.W.5 Harkesh Yadav and P.W.6 Daya Ram Warder, Central Jail, Nahan.
The incriminating circumstances appearing against all the accused were put to them while recording their statements under Sections 313 Cr.P.C. The appellants pleaded false implication. After considering the testimonies of all the witnesses, the learned Judge, Special Court, Chandigarh found that the charge of possessing contraband (charas) is proved against the CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -6- appellants and, therefore, convicted and sentenced in the manner mentioned above.
P.W.1 Ramesh Kumar, Sepoy deposed that he had taken test memo, covering letter and two samples bearing four seals each. He proved the letter as Ex P1 and deposited the sample with CRCL, New Delhi on 18.02.2008 vide receipt Ex P2 in the sealed intact condition.
P.W.2 Ganesh Balooni while appearing in the witness box testified that the accused Inderjit Singh and Mam Chand were found in their conscious possession 20 kgs of charas. He corroborated the prosecution version.
P.W.3 Gurdas Ram, Intelligence Officer while appearing in the witness box described the manner of investigation as detailed earlier.
P.W.4 S.C. Mathur, Chemical Examiner, CRCL, New Delhi testified that on 18.02.2008 two sealed packets marked as lot A-1 and B-1 were received by him in sealed intact condition through P.W.1 Ramesh Kumar, Sepoy. He deposed that on analysis, the same were found containing charas. He proved his report as Ex. P47.
P.W.5 Harkesh Yadav, independent witness has also corroborated the prosecution case and testified that from the conscious possession of accused Inderjit Singh and Mam Chand, 20 kgs of charas was recovered. He further testified that the accused Ozi Razaq Ola voluntarily suffered his statement under Section 67 of the Act in his presence as well as in the presence of other independent witness.
P.W.6 Daya Ram, Warder, Central Jail, Nahan testified that accused Mam chand was in custody as convict in NDPS case No. 16 of 2001 CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -7- under Section 20 of the Act. This accused was sentenced to RI for 10 years and was in custody since 17.1.2001. This accused was released on parole vide order Ex. P63 and was to report back in jail on 17.02.2008.
Apart from the above oral evidence, there were other documentary evidence, which constituted of recovery-cum-seizure (Ex P8), notice under Section 67 of the Act (Ex P10), notice under Section 50 of the Act (Ex P11) as well as the statements.
Mr. Balwinder Singh Dhaliwal, learned counsel appearing for the appellants Inderjit Singh and Mam Chand argued that the investigation was conducted in an unfair manner and there was violation of Sections 42 and 50 of the Act. No recovery was effected from the accused and the link evidence was missing. The prosecution story was doubtful and therefore, unreliable and un-acceptable.
Mr. Sidakmeet Sandhu, learned counsel appearing for the appellant Ozi Razaq Ola has submitted that no recovery has been effected from this accused. He had been detained by NCB Officers from Delhi and the Intelligence Officer Ganesh Balooni had stolen 500 dollars from him and for this purpose he had already informed this Court on 12.08.2008 and his signatures were obtained by force on various documents. The prosecution has failed to connect accused Ozi Razaq Ola with the crime.
Having heard learned counsel for the parties, we do not find any merit in the present appeals. The statements of the appellants under Section 67 of the Act are not the statements made to the Police officials and, thus, are admissible in evidence. The voluntary nature of such statements has been proved by PW-5 Harkesh Yadav and PW-3 Gurdas Ram, the Intelligence CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -8- Officer. The statements Exs.P23, P26 & P30 of Inderjit Singh, Mam Chand and Ozi Razaq Ola respectively were recorded after serving notices Exs.P22, P26 and P10 upon them. Such statements were witnessed by both the independent witnesses namely PW-5 Harkesh Yadav and Kamal Mehta. No cross-examination has been conducted on PW-3 Gurdas Ram, who recorded the statements of appellants under Section 67 of the Act, in respect of exerting any pressure or threat before recording such statements. Even no suggestion was put to PW-5 Harkesh Yadav, the independent and attesting witness, in respect of administering of any threat or pressure before or during the course of recording of statements of the appellants. Exs.P37, P38 and P-39 are the memos of arrest of the appellants and of information given to their relatives in respect of their arrest. The appellants were produced before the Court on 15.02.2008 for the first time. Later, the accused were produced before the Court on 28.02.2008 for detaining the appellants in judicial custody. The Court has allowed the same and also taken on record written submissions submitted by the appellants. In the written submission (Ex.D3) submitted by Ozi Razaq Ola, he has not retracted his confessional statement recorded on 14.02.2008 nor at any later stage, when the appellants were produced before the Court on 13.03.2008 & 27.03.2008. For the first time, in an application for bail on 09.06.2008, it is stated by Ozi Razaq Ola that he was tortured at Delhi and Chandigarh and was not allowed to ring up his relatives and that his signatures were taken under threat and duress on blank papers. No evidence or material has been adduced by the accused-appellants to substantiate their pleas that these statements were recorded by them involuntarily.
Recently, a Division Bench of this Court in CRA No.11-DB of CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -9- 2010 titled "Fatima Bibi Vs. Inspector of Customs" decided on March 26, 2013 referring to the judgments of Hon'ble Supreme Court has negated the argument that the statements of the appellants recorded by the Customs Officer are not admissible in evidence and the appellants have retracted from such statements at the earliest opportunity. It was held as under:-
"The last argument raised that the statements of the appellants recorded by the Customs Officer is not admissible in evidence and the appellants have retracted from such statements at the earliest opportunity is again not tenable. A Constitution Bench in a judgment reported as Ramesh Chandra Mehta Vs. The State of W.B. AIR 1970 SC 940 has held that the Customs Officer under the Customs Act, 1962 is not a Police Officer. It was observed as under:
"24. In certain matters the Customs Act of 1962 differs from the Sea Customs Act of 1878. For instance, under the Sea Customs Act search of any place could not be made by a Customs Officer of his own accord; he had to apply for and obtain a search warrant from a Magistrate. Under Section 105 of the Customs Act, 1962, it is open to the Assistant Collector of Customs himself to issue a search warrant. A proper officer is also entitled under that Act to stop and search conveyance; he is entitled to release a person on bail, and for that purpose has the same powers and is subject to the same provisions as the officer in charge of a police station is. But these additional powers with which the Customs Officer is invested under the Act of 1962 do not, in our judgment, make him a police officer within the meaning of Section 25 of the Evidence Act. He is, it is true, invested with the powers of an officer-in-charge of a police station for the purpose of releasing any person on bail or otherwise. The expression 'or otherwise' does not confer upon him the power to lodge a report before a Magistrate under Section 173 of the Code of Criminal Procedure. Power to grant bail, power to collect evidence, and power to search premise or conveyances without recourse to a Magistrate, do not make him an officer-in-charge of a police station. Proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smuggling. His orders are appealable and are subject also to the revisional jurisdiction of the Central Board of Revenue and may be carried to the Central Government. Powers are conferred upon him CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -10- primarily for collection of duty and prevention of smuggling. He is for all purposes an officer of the revenue."
Following the said judgment and while considering the question; whether the officers of the Department of Revenue Intelligence invested with powers of officer-in-charge of police station under Section 53 of the Act are police officers within the meaning of Section 25 of the Evidence Act, the Hon'ble Supreme Court in State of Gujarat Vs. Anirudhsing (1997) 6 SCC 514, held that such officers were not the police officials within the meaning of Section 25 of the Evidence Act. Therefore, the confessional statement recorded by such officers in the course of investigation of the persons accused of an offence under the Act, is admissible in evidence as against him. ...
xxx xxx xxx Recently in a judgment reported as Ram Singh Vs. Central Bureau of Narcotics (2011) 11 SCC 347, the Supreme Court held to the following effect:
"14. From what has been observed above, the officers vested with the powers of investigation under the Act are not police officers and, therefore, the confessions recorded by such officers are admissible in evidence. Therefore, the question posed at the outset is answered in the affirmative and it is held that officers of the Central Bureau of Narcotics are not police officers within the meaning of Sections 25 and 26 of the Evidence Act and, hence, confessions made before them are admissible in evidence......
xxx xxx xxx
16. A confession, if it is voluntary, truthful, reliable and beyond reproach is an efficacious piece of evidence to establish the guilt of the accused. However, before solely acting on confession, as a rule of prudence, the court requires some corroboration but as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made under Section 67 of the Act.
xxx xxx xxx
18. In our opinion, when an accused is made aware of the confession made by him and he does not make complaint within a reasonable time, the same shall be a relevant factor to adjudge as to whether the confession was voluntary or not. Here in the present case the appellant was produced before the court on several dates and at no stage he made any complaint before the Special Judge of any torture or harassment in CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -11- recording the confession. It is only when his statement was recorded under Section 313 of the Code of Criminal Procedure that he retracted and denied making such a confession and went to the extent of saying that his signatures were obtained on blank pages. In the facts and circumstances of the case we are of the opinion that the confessional statements made by the appellant were voluntary in nature and could form the basis for conviction.
xxx xxx xxx In another judgment reported as Pavunny Vs. Assistant Collector 1997 (3) SCC 721, the Supreme Court held that confession recorded under the Customs Act can form sole basis for conviction in criminal trial for offences under Indian Penal Code. The Court held that if it is retracted confession, it must first be tested; whether it is voluntary and truthful inculpating the accused in commission of the crime. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession and that burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other persons....."
Since the accused have not retracted their confessions made at an earliest opportunity, therefore, the retraction at the subsequent stage is an afterthought and to raise untenable plea. The statements made by all the accused along with independent witnesses Harkesh Yadav and Kamal Mehta are proved to be voluntarily.
The other submission made by Mr. Sandhu representing Ozi Razaq Ola is that the accused had submitted applications on 28.02.2008 and 22.11.2008 against officers of NCB and that NCB Officer Ganesh Balooni had taken 500 US Dollars from him. In reply to this application, it was asserted that no US currency was recovered from the accused and only one Nigerian currency denomination of 500 was recovered. On the other hand, PW-5 Harkesh Yadav, who has no enmity with the accused, in his statement CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -12- has stated that the accused voluntarily recorded his statement in his presence. During personal search of the accused, nigerian currency (500 x 1=500) and five notes in the denominations of 100/- each of Indian currency were recovered from this accused. Accused did not mentioned in his application Ex.D3 which is dated 28.02.2008 that US dollars were also recovered from him. The application of the accused was rightly rejected on the ground that it is an afterthought story and was not trustworthy.
As far as violation of Sections 42 and 50 of the Act is concerned, there was no personal search conducted on these accused and the recovery has been effected from the boot of the vehicle bearing No. HP-01-K-1621, therefore there is no violation of Section 42 and 50 of the Act.
The fact that 20 kgs of charas was effected from the conscious possession of the accused Inderjit Singh and Mam Chand, which was kept in the boot of their car bearing No. HP-01-K-1621, does not require interference in view of the law laid down by Hon'ble the Supreme Court in a case of Madan Lal and another vs. State of Himachal Pradesh, 2003(4) RCR Criminal 100 (SC) and the judgment of this Court in a case of Satnam Singh vs. State of Punjab 2009(4) RCR (Cri.) 699 wherein it has been held that once the possession is established on a person then it is for that person to explain that it was not in his conscious possession to establish it. Once the possession of the accused in respect of the contraband is proved then the statutory presumption under Sections 54 and 35 of the Act starts operating against them.
Further argument of learned counsel for the appellants that there are discrepancies in the weight of the sample of the charas when the sample CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -13- was received in the CRCL, New Delhi. It is alleged that parcel containing 23.6 grams weight and parcel B-1 contained on 20.08 grams. At the time of recovery by the NCB Officer two samples each containing 25 grams were separated and converted into separate parcels. The discrepancy in the samples sent to CRCL, New Delhi is fatal to the prosecution case. This argument is liable to be rejected as these samples were received in CRCL, New Delhi and they were properly sealed and when the sample A-1 and A-2 were sent to CRCL on 17.02.2008, CRCL issued receipt Ex P2. After the analysis report Ex P47 was delivered by CRCL, New Delhi wherein it was mentioned that after the analysis report remnant sample returned having weight 16.6 grams of parcel A-1 and 14.2 grams of parcel B-1 but again vide letter Ex P50 Supdt, NCB, Chandigarh had returned the remnant parcels A-1 and B-1 to CRCL through registered post on the ground that quantification could not be done and those remnant samples were again sent for quantification to detect THC. These samples received in CRCL on 15.05.2008 in intact condition and after analysis percentage of THC was detected. It came to 11% in parcel A-1 and 11.3 % in parcel B-1. After analysis in second time, the remnant parcel A-1 containing 5.6 grams weight and B-1 containing 13.3 grams weight were returned to CRCL.
The narration of the above events would go to show that submission of learned counsel for the appellant that the sample parcels were tempered with, is based on mere conjectures and surmises. Thus, the argument is without merit and is rejected.
After going through the entire facts, we hold that the prosecution evidence is reliable and trustworthy. The prosecution has completed the chain CRA No. 390-DB of 2010 & CRA No. 573-SB of 2010 -14- of circumstances from the date of recovery of 20 kgs of charas on 14.02.2008. The prosecution has followed all the procedures under the Act and successfully proved that all the accused were guilty of the offences charged.
In the light of the above discussion, we are of the opinion that the judgment of conviction and order of sentence dated 19.01.2010 passed by the Judge, Special Court, Chandigarh, does not require any interference by this Court.
Consequently, both the appeals are dismissed.
(HEMANT GUPTA) (RITU BAHRI)
JUDGE JUDGE
March 26, 2013
G.Arora