Delhi District Court
Sc No. 05A/09 Dri vs Avtar Singh @ Kartar Singh on 14 July, 2014
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
Directorate of Revenue Intelligence
Headquarters, New Delhi
Through Sh Jyothimon Dethan, Intelligence Officer
V E R S U S
Avtar Singh @ Kartar Singh
S/o Sh Harbans Singh
R/o Village Baghe Kalan
Tehsil Ajnala
District Amritsar, Punjab.
Presently lodged in District Jail
Amritsar, Punjab.
SC No.: 05A/09
U/S : 21 & 29 NDPS Act
Computer ID No.: 02403R0027052009
Date of institution : 03.02.2009
Date of reserving judgment : 09.07.2014
Date of pronouncement : 14.07.2014
Decision : Acquitted
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence, Headquarters, New Delhi (herein after referred to as DRI) through Sh Jyothimon Dethan, Intelligence Officer, against the accused for commission of the offences punishable U/S 21 and 29 of the NDPS Act, 1985.
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2. The facts of the case, in brief, are that on 08.08.2008 PW1 Sh Gurjit Singh had received a secret intelligence that a person of Indian origin, about 60 years of age with height about 5'10", wheatish complexion, strong built, wearing a light colour stripped half shirt and light brown colour trousers would be waiting outside Maharana Pratap Inter-State Bus Terminal, Kashmere Gate, Delhi, near a toilet located on the slip road parallel to the main road (flyover) leading from Tis Hazari to Shahdara, at around 11 PM on that day and that person would be carrying a black colour shoulder bag containing some narcotic substance. PW1 had immediately reduced the above information in writing and had put up the same before PW6 Sh Pankaj.K.Singh, who had called the IO/PW4 Sh Jyothimon Dethan and directed him to act upon the same.
3. It is alleged that thereafter, a team of the DRI Officers had rushed to the above spot and the IO/PW4 had joined two public witnesses from the spot at around 10.30 PM, after they were apprised about the above information. The DRI Officers had mounted a discreet surveillance at the spot and at around 11.10 PM they had seen and identified a person, who was waiting next to the toilet situated on the above slip road, carrying a black colour shoulder bag and his particulars were found matching with the description given in the said information. The DRI Officers continued to wait there for some time and kept a discreet watch on the movements of SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 3 the above person and when the said person started moving from the spot, the DRI Officers apprehended him while sensing that he may not run away. They had introduced themselves to the said person by displaying their identity cards and on enquiry the identity of the above person was revealed as the accused Avtar Singh, a resident of Village Baghe Kalan, Tehsil Ajnala, District Amritsar, Punjab. The accused was also introduced to the public witnesses.
4. The accused was informed by the DRI Officers about the above secret information regarding his carrying some narcotic drugs in his above black colour shoulder bag and he was specifically asked as to whether he was carrying any narcotic drugs in the said bag, to which he replied in negative. The IO/PW4 then informed the accused that his search as well as the search of his above bag was required to be conducted in view of the said information and since the place of his apprehension was a public place and not conducive for conducting such search, the IO/PW4 asked the accused to accompany them, alongwith his above shoulder bag, to their office situated at the 7th Floor, D Block, IP Bhawan, IP Estate, New Delhi. After reaching there, the IO/PW4 had served upon the accused a written notice U/S 50 of the NDPS Act Ex. PW4/A while explaining him his legal right to get his person and his above black colour shoulder bag searched in the presence of a Gazetted Officer or a Magistrate and in reply to the above notice given in his own SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 4 handwriting, the accused had offered his search to be conducted by any officer of DRI.
5. Thereafter, the personal search of the accused was conducted and only one Election Photo Identity Card No. JGB 2245764 bearing the photograph of the accused with his name as Kartar Singh S/o Harvansh Singh and a resident of House No. 16, Aawas Vikas Colony, Rishikesh, Dehradun was recovered. However, in the search of the above black colour shoulder bag found in his possession, four transparent polythene packets were found to be concealed below some personal effects of the accused and these packets were marked as X-1, X-2, X-3 and X-4 for the purposes of identification. The above four polythene packets were opened one by one and each of these packet was found to contain further a white colour stitched cloth bag having similar rubber stamp markings and on further opening these white cloth bags were again found to contain a heat sealed polythene packet each, which contained some off white colour granular substance giving a sharp pungent smell. A small quantity of the above substance from all these four packets was tested separately with the help of a Narcotic Drug Detection Kit and the same had answered positive for Heroin. The gross weight of the above four packets came to be 4.168 KG and the net weight of the Heroin contained therein to be 4.051 KG. In addition to the above packets of Heroin, Rs 40,000/- in cash (40 X 1000) were also recovered from the above shoulder bag of the accused and on enquiry the SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 5 accused disclosed that the above amount was given to him by one Shyam Lal Sharma @ Pandit, a resident of House No. 509, Behind Bhairon Temple, Chandrabhaga, Rishikesh, towards commission for transporting the above Heroin. The above Heroin, the cash amount of Rs 40,000/-, black colour shoulder bag as well as the personal effects recovered therefrom were all seized for violation of the provisions of the NDPS Act and the above election card was also resumed for the purposes of the identification.
6. The IO/PW4 had then drawn two representative samples of 5 Grams each from the above four seized packets of Heroin and these samples were kept in separate zip locked small polythene packets which were marked as X-1A, X-2A, X-3A & X-4A and X-1B, X-2B, X-3B & X-4B respectively. These A and B batch of samples were further individually packed in eight separate paper envelopes and these envelopes were also correspondingly marked and then sealed with DRI seal no. 10 over a paper slip bearing the dated signatures of the accused, the public witnesses, as well as the IO/PW4. The remaining Heroin of the above four packets was put back in their original packings and these packets were also converted into white cloth parcels and marked as X-1 to X-4, i.e. corresponding to the marking given to the original packets, and these packets of remaining Heroin were also then sealed with the same seal and in the similar manner and then put into a metal trunk, alongwith the above black colour shoulder bag and personal effects etc., and this metal trunk was SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 6 also converted into a cloth parcel and sealed in the same manner and with the same seal. The above cash amount of Rs 40,000/- was put in a small cardboard box which was also converted into a cloth parcel and sealed separately with the above seal and in the same manner. The IO/PW4 had also prepared a detailed panchnama Ex. PW4/B regarding the above proceedings and photocopies of the rubber stamp markings found on the cloths of the above recovered packets were made as annexures to the said panchnama, alongwith a photocopy of the above election card. The above panchnama as well as its annexures were all signed by the accused, public witnesses as well as the IO/PW4 himself. The IO/PW4 had also prepared test memo in triplicate and a facsimile of the above seal of DRI was affixed on the test memos as well as on the panchnama and the panchnama proceedings started at 10.30 PM on 08.08.2008 and concluded at 6 AM on 09.08.2008.
7. It is further alleged that in pursuance to the summons dated 09.08.2008 Ex. PW4/E served upon the accused under the provisions of Section 67 of the NDPS Act, the accused had appeared before the IO/PW4 on the same day and tendered his voluntary statement Ex. PW4/F under the above provisions. In his above statement, besides disclosing his various personal and family details, the accused had not only admitted his apprehension from the above place and recovery of the above Heroin and cash amount etc. from his possession, but has also made certain disclosures regarding his SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 7 involvement in some other cases in respect of the dealings of drugs. He had disclosed therein inter-alia that he was assisting the above Shyam Lal Sharma in the trafficking of Heroin for the last 14 years; that he had been arrested by the Amritsar Customs in a case of seizure of 50 KG of Heroin and was sentenced for 15 years in that case; that after his release on parole in the year 2004 he did not surrender in the said case; that for the last about 4 years he had delivered Heroin to different persons on 5-6 occasions near ISBT Delhi on the directions of Shyam Lal Sharma; that BSF had apprehended one Gurdev Singh with 2 KG of Heroin, which was to be received by him, that case was handed over by BSF to Jammu Customs, that thereafter, Amritsar Customs had arrested him and he also got bail in the above case of 2 KG of Heroin recovered in Jammu, after which he had absconded and that the said case was pending in the court; that in the year 1995 also he had been arrested by DRI Amritsar in a case of smuggling of foreign currency worth Rs 27-28 lacs by his son Ravinder Singh and his cousin. Regarding the above Heroin seized in this case, he had also disclosed therein that he had telephoned Shyam Lal Sharma on phone number 2434494 installed at his (Shyam Lal) residence from a PCO near the bus stand of Amritsar and Shyam Lal told him (accused) to obtain 4 KG of Heroin from one Mohinder Singh S/o Tottal Singh, who was a resident of Village Sahura, Tehsil Ajnala, District Amritsar, Punjab, in the evening near the Amritsar bus stand and accordingly he had taken delivery of 4 KG of SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 8 Heroin from the above Mohinder Singh in the evening and in the night of 06.08.2008 he stayed at the residence of his friend Kanwaljit Singh at Rani Ka Bagh, Amritsar. The accused further disclosed in his above statement that he reached Haridwar on 07.08.2008 at about 2.30 PM by Jan Shatabdi train and further reached Rishikesh at about 4 PM by bus and handed over the above 4 KG of Heroin to Shyam Lal Sharma and Shyam Lal Sharma kept the above Heroin and told him that the same was to be taken to and delivered in Delhi by him (the accused) on the next day. The accused stayed overnight in a shop at Chandrabhaga, which belonged to Shyam Lal Sharma, and on 08.08.2008 he proceeded from Rishikesh at around 1 PM by bus, as per the instructions of Shyam Lal Sharma, and reached ISBT, Kashmere Gate, Delhi at around 11 PM and was to deliver the above Heroin to a person who was to contact him at the above spot, as per the instructions given by Shyam Lal Sharma, but he was apprehended by the DRI Officers before he could deliver the said Heroin. He had also given the physical description of Shyam Lal Sharma in his above statement and further disclosed that he was getting Rs 20,000/- per trip from Shyam Lal and the above amount of Rs 40,000/- recovered from his possession was the amount handed over to him by Shyam Lal for two trips. He further disclosed that the above Election Identity Card in his name as Kartar Singh, which was recovered from his possession, was a fake one and the same was got prepared by Shyam Lal Sharma and his (accused's) real name was Avtar Singh.
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8. Since the accused apparently appeared to have committed an offence punishable U/S 21 of the NDPS Act, he was arrested by the IO/PW4 vide memo Ex. PW4/G and a telegram Ex. PW2/B regarding his arrest was sent by PW2 Sh S.K.Sharma to his son at his given address. He was also got medically examined from RML Hospital vide MLC Ex. PW19/A dated 09.08.2008 itself and was produced in the court and remanded to judicial custody. The IO/PW4 had also prepared and submitted a report U/S 57 of the NDPS Act Ex. PW2/A on the same day to PW2 Sh S.K.Sharma and also recorded the statements U/S 67 of the NDPS Act of the two public witnesses namely Sh Prashant Rajput and Sh Santosh Kumar Ex. PW4/P and PW4/Q respectively on 12.08.2008, in response to the summons Ex. PW4/N and PW4/O respectively dated 09.08.2008 served upon them.
9. The four sealed sample parcels of Batch A were deposited with the CRCL, New Delhi, alongwith duplicate test memos, on 11.08.2008 by PW5 Sh Ram Kanwar vide authority letter Ex. PW5/A issued by PW7 Sh K.K.Sood and the same were received there in intact condition by PW9 Sh B.Ram vide acknowledgment Ex. PW5/B issued by him. On the same day, two sealed parcels of the case property were also got deposited by PW7 in the Valuable Godown of the New Customs House through PW5 and the same were received there in intact condition by PW3 Sh D.B.Sharma and PW3 had also made his endorsement on the deposit memo Ex. PW5/C (another copy thereof is Ex. PW3/A) and also an entry Ex. PW3/C in the Valuable Godown register regarding SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 10 the above deposit. From the time of conclusion of the panchnama proceedings till the above deposit of samples with the CRCL and the case property with the Valuable Godown, the sealed parcels thereof had remained in the custody of PW7 Sh K.K.Sood himself, to whom the same were handed over by the IO/PW4.
10. Some follow up action was also taken through the concerned offices of DRI, Amritsar and the Central Excise and Customs Department, Dehradun regarding the disclosures made by the accused in his above statement and the above election card recovered from his possession and it was revealed on a visit of the DRI Officers, Amritsar at the given address of his above village in District Amritsar, Punjab that he had already left the said village around 30 years back after selling all his properties and his family members were not aware about his whereabouts. The address of House No. 16, Aawas Vikas Colony, Rishikesh, Dehradun given in the above election card recovered from the accused was also found to be a fake one and it was revealed on enquiry from the office of the concerned authority that the said plot was not alloted to anyone. A raid was also conducted by a team of officers of Central Excise and Customs Dehradun, including PW10 Sh S.K.Mishra and PW14 Sh Prakash Singh Rawat, at the above House No. 509, Behind Bhairon Temple, Chandrabhaga, Rishikesh and it was found that the above house consisted of five rooms, out of which two rooms were in possession of different tenants and the remaining SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 11 three rooms were found to be locked. The locks of the said rooms were opened with the assistance of a key maker and in the panchnama proceedings conducted at the said premises, allegedly in the presence of the public witnesses PW12 Sh Ram Kumar and PW15 Sh Attar Chand, who were the neighbours of Shyam Lal Sharma, some white colour powder kept in a black colour transparent polythene packet weighing 22.310 Grams and some documents were recovered from the said premises and seized and the above powder was also sealed in a paper envelope and seized and the proceedings were conducted vide panchnama Ex. PW10/A and a list of the seized documents Ex. PW10/B was prepared and the documents seized are Ex. PW12/A- Collectively on record.
11. The above sealed envelope of powder and documents etc, alongwith original panchnama and some other follow up report, were forwarded by the office of the Central Excise, Dehradun to DRI, Delhi vide letter Ex. PW4/J dated 12.08.2008. Subsequently on 18.08.2008, the above sealed envelope was opened by the IO/PW4 in the presence of the witnesses, and on testing a pinch of the substance taken out from the above powder, the same had tested positive for Amphetamine, a psychotropic substance and its net weight was taken and found to be 22 Grams. The IO/PW4 had also drawn two representative samples of 5 Grams each out of the above substance and these samples were individually kept in small zip locked polythene packets and marked as A-1 and A-2 and then kept in paper SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 12 envelopes and sealed with the DRI seal no. 10 over a paper slip containing the dated signatures of the witnesses joining the said proceedings and the IO/PW4 himself. The remaining powder was put back in another transparent zip locked polythene and it was also sealed in the similar manner in an envelope and the polythene and the envelope were marked as A. Test memos in triplicate were also prepared and the above proceedings were conducted by the IO/PW4 vide panchnama Ex. PW4/K. One of the above two sample envelopes Mark A-1 was subsequently deposited by the IO/PW4 with the CRCL New Delhi on 19.08.2008, alongwith duplicate test memos and vide forwarding letter Ex. PW4/R issued by PW7 Sh K.K.Sood, and the same was received there in intact condition by PW8 Sh V.P.Bahuguna vide acknowledgment Ex. PW4/S and the parcel of the remaining case property was also deposited by the complainant with PW3 Sh D.B.Sharma of the Valuable Godown in intact condition on the same day vide deposit memo Ex. PW3/B and another report U/S 57 of the NDPS Act Ex. PW2/D was also prepared and submitted by the IO/PW4 to PW2 Sh S.K.Sharma regarding the seizure of the above powder which had tested positive for Amphetamine. Vide the test reports of the CRCL Ex. PW9/A and Ex. PW8/A respectively, which were received subsequently, the above samples of Heroin and Amphetamine had tested positive for the same. Efforts were also made to secure the presence of Shyam Lal Sharma and summons U/S 67 of the NDPS Act and were pasted at his given address on few occasions, through the officers of the SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 13 Central Excise, Dehradun, but his presence could not be secured and ultimately a complaint U/S 172/174 IPC for non-appearance/compliance of such summons was filed against him before the court of Ld ACMM, New Delhi. Some letters were also sent to DRI, Amritsar and Jammu for verification of the previous involvements of the accused and awaiting reply to the said letters, after recording some statements and completing the other formalities of investigation, a complaint for commission of the offences punishable U/S 21 and 29 of the NDPS Act was ultimately prepared and filed by the IO/PW4 against the accused in the court.
12. The complaint was filed against the accused in this court on 03.02.2009 and cognizance of the above offences was taken on the same day. However, a prima facie case for commission of the offence punishable U/S 21(c) of the NDPS Act only was found to be made out against the accused vide order dated 19.03.2009 of this court and charge for the abovesaid offence was also framed against him on the same day.
13. The prosecution in support of its case has examined on record total 19 witnesses and the names and the purpose of examination of the above witnesses is being stated herein below:-
14. PW1 Sh Gurjit Singh, Intelligence Officer of DRI, had received the above secret information, reduced SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 14 into writing as Ex. PW1/A and had put the same before his official superior/PW6 Sh Pankaj.K.Singh.
15. PW2 Sh S.K.Sharma, Senior Intelligence Officer of DRI, had issued the above seal of DRI used in the sealing work to the IO/PW4 on 08.08.2008 and the same was returned back to him by the IO/PW4 on 09.08.2008 and the said seal was issued vide entry Ex. PW2/G of the seal movement register. The reports U/S 57 of the NDPS Act Ex. PW2/A dated 09.08.2008 and Ex. PW2/D dated 18.08.2008 were also submitted to him by the IO/PW4 and he had further sent the arrest intimation/telegram Ex. PW2/B to the family members of the accused, received one letter dated 12.08.2008 Ex. PW2/C, alongwith enclosures, from DRI, Amritsar and also sent letter Ex. PW2/E dated 29.01.2009 to DRI, Amritsar for verification of some details of the accused and another letter Ex. PW2/F on that day to CRCL, New Delhi in connection with the collection of the CRCL report.
16. PW3 Sh D.B.Sharma is the In-charge of the Valuable Godown, New Customs House at the relevant time when the above sealed parcels of the case property of this case were deposited with him on 11.08.2008 as well as on 18.08.2008. He had made his endorsements regarding the receiving of the same in intact condition on the deposit memos Ex. PW3/A and Ex. PW3/B respectively and further made the entries Ex. PW3/C and Ex. PW3/D respectively in the Valuable Godown register in this SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 15 regard.
17. PW4 Sh Jyothimon Dethan, an Intelligence Officer of DRI, is the complainant and main investigating officer of this case and he was heading the above raiding team of DRI, which had apprehended the accused from the above place and with the above contraband substance. He has broadly deposed on the above lines of the prosecution story and has proved various documents of this case, which were prepared by him in connection with the investigation of the case. He has also identified the accused as well as the case property.
18. PW5 Sh Ram Kanwar, Tax Assistant of DRI, had deposited the four sealed sample parcels of Heroin, alongwith the duplicate test memos, in CRCL on 11.08.2008 vide forwarding letter Ex. PW5/A and against acknowledgement Ex. PW5/B. On the same day, he had also deposited the sealed parcels of the case property in the Valuable Godown vide deposit memo Ex. PW3/A (another copy thereof containing the original receiving by the In-charge, Valuable Godown is Ex. PW5/C).
19. PW6 Sh Pankaj.K.Singh, the then Deputy Director of DRI, is the person to whom the above information Ex. PW1/A was put up by PW1 and who had given directions to the IO/PW4 for acting upon the said information. He also claims to have accompanied the team of DRI officers to SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 16 the above place of apprehension of the accused and has thus claimed himself to be a witness of apprehension of the accused with the above shoulder bag from the above spot. However, he also claims that after the accused was brought to their office, he did not participate in the further search proceedings conducted by the IO/PW4.
20. PW7 Sh K.K.Sood, the then Assistant Director of DRI, was handed over the sealed parcels of samples and remaining Heroin on 09.08.2008 by the IO/PW4 for safe custody, after the conclusion of the panchnama proceedings. On 11.08.2008, he had got deposited the sample parcels with the CRCL and the case property with the Valuable Godown through PW5 Sh Ram Kanwar, as stated above, and is a signatory to the above forwarding letter Ex. PW5/A of the samples and had also countersigned the deposit memo Ex. PW5/C. On 18.08.2008, he was again entrusted the custody of the parcels of the samples and remaining Amphetamine by the IO/PW4 and on 19.08.2008, he got deposited the samples with CRCL and the case property with Valuable Godown through the IO/PW4, vide forwarding letter Ex. PW4/R and the deposit memo Ex. PW3/B. He had also written some follow up letters to the DRI, Amritsar, Assistant Commissioner, Dehradun, Uttranchal and Commissioner, Jammu etc. and received replies thereof.
21. PW8 Sh V.P.Bahuguna, Assistant Chemical Examiner of CRCL, had received one sealed sample parcel SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 17 of Amphetamine, alongwith the duplicate test memos, in CRCL on 19.08.2008 vide acknowledgement Ex. PW4/S issued by him and had also subsequently analysed the said sample and given his report Ex. PW8/A, under the guidance and supervision of Sh S.C.Mathur, Chemical Examiner. He had further given the short analysis report of the above testing in Section-II of the test memo Ex. PW4/N.
22. PW9 Sh B.Ram, Chemical Examiner, CRCL had received four sealed sample parcels of Heroin, alongwith the duplicate test memos, in CRCL on 11.08.2008 vide acknowledgement Ex. PW5/B and had also subsequently analysed the said samples and given his report Ex. PW9/A, under the guidance and supervision of Sh R.P.Singh, Chemical Examiner. He had further given the short analysis report of the above testing in Section-II of the test memo Ex. PW4/D.
23. PW10 Sh S.K.Mishra and PW14 Sh Prakash Singh Rawat are both the Inspectors of Central Excise, Rishikesh, Dehradun, Uttranchal at the relevant time and they both had participated in the search proceedings of the above house number 509, Behind Bhairon Temple, Chandrabhaga, Rishikesh, Dehradun of Shyam Lal Sharma and are witnesses of recovery of the above Amphetamine and the documents Ex. PW12/A-Collectively from the said premises vide panchnama Ex. PW10/A. SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 18
24. PW11 Sh Ramesh Sharma and PW16 Sh R.K.Saini, Senior Intelligence Officer and Intelligence Officer of DRI, Amritsar were a part of the team which had visited the native village of the accused in District Amritsar, Punjab, recorded the statements Ex. PW11/A of his sister in law and a member of the local panchayat and the same were subsequently forwarded to the office of DRI, Delhi vide report/letter Ex. PW2/C of PW11.
25. PW12 Sh Ram Kumar and PW15 Sh Attar Chand were both the neighbours of Shyam Lal Sharma and according to the prosecution story, they both had participated in the search proceedings of the said house conducted vide panchnama Ex. PW10/A. Though, they both have identified their signatures on the above panchnama and the documents Ex. PW12/A-Collectively recovered from the said house, but only PW12 claims to be present at the time of the search and PW15 has claimed that he was not present at the relevant time and his signatures were only obtained on the said documents subsequently. Even PW12 has stated that the above powdery substance was not recovered or sealed etc. in his presence. They both were declared hostile as they did not support the case of the prosecution on material aspects.
26. PW13 Sh Manoj Kumar Sharma, Inspector of Customs, Dehradun had brought the above sealed parcel of Amphetamine from his office to Delhi and handed it over to the IO/PW4 against endorsement made by the IO/PW4 on SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 19 the letter Ex. PW4/J of his senior officer.
27. PW17 Sh Sunil Kumar Shah is also an officer of Central Excise at Rishikesh and he had pasted the summons U/S 67 of the NDPS Act issued in the name of Shyam Lal Sharma at his given address on 02.12.2008 and 26.12.2008 vide panchnamas Mark 17A and 17B respectively.
28. PW18 Sh Abdul Wadood Khan is the then Estate Management Officer of UP Aawas Vikas Parishad, Dehradun and he had only sent one letter Mark 18A dated 11.08.2008 to Assistant Commissioner, Central Excise, Dehradun intimating that the plot no. 16 under Vir Bhadra Marg Yojna was not allotted to anyone.
29. PW19 Dr Meenu Chaudhary of RML Hospital had examined the accused vide MLC Ex. PW19/A dated 09.08.2009 and she did not find any fresh external injuries on his person at the time of his medical examination.
30. After the conclusion of the evidence of the prosecution, all the incriminating evidence brought on record by the prosecution was put to the accused in his statement recorded U/S 313 Cr.P.C. and the same was denied by him to be incorrect. He has claimed himself to be innocent and to have been falsely implicated in this case while saying that no shoulder bag or SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 20 polythenes etc. containing any such contraband substance were ever recovered from his possession. He has also specifically denied the recovery of any cash amount or the above voter card from his possession. He has further denied the service of the above notice U/S 50 of the NDPS Act upon him or the making of any voluntary statement U/S 67 of the NDPS Act while claiming that he was forced to write the reply to the said notice and also the above dictated statement. However, he had admitted his previous involvement in a case of seizure of 50 KG of Heroin by the Customs Department in Punjab and also the jumping of parole granted to him in the year 2004 in the said case while saying that he jumped the same due to his family problems and he was also subsequently acquitted by the Hon'ble Punjab & Haryana High Court in the said case. He has further denied knowing the above Shyam Lal or the other persons named in his statement U/S 67 of the NDPS Act. Though, he has also admitted his involvement in a case of seizure of 2 KG of Heroin by BSF, Jammu Division, but it is his contention that he was falsely implicated and already stands acquitted in the said case vide judgment dated 27.08.2013, copy of which has also been filed on record. He has further admitted his involvement and the involvement of his son in connection with the seizure of a foreign currency of about 27-28 lacs, but it is again his contention that the above disclosures were not made by him voluntarily and his statement was taken forcibly from him.
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31. He further claims that he was picked up on 08.08.2008 at about 1.30 PM from Rishikesh, Haridwar Road by 6-7 DRI Officers, who were in two vehicles and one of them was a Sardarji, and he was taken to Rishikesh City and then brought to Delhi by them in their office during midnight. He also claims that there he was beaten, tortured and forced to sign many blank, semi written and written documents and also to write some dictated statement. He has further claimed that all the proceedings and reports of this case are false as nothing incriminating was recovered from his possession.
32. The accused had also chosen to lead evidence in his defence and one application was moved on his behalf for tendering the certified copies of some documents in his defence and these documents mainly consisted of some information furnished by the Ahlmad of this court, through the RTI Branch of this court complex, regarding the position and status of examination of different public witnesses cited in all the cases of DRI pending in this court. The above application was opposed on behalf of DRI only on the ground that the documents enclosed with the above application were only 'copy to copy' of documents and not copies of the original documents. However, the correctness of the contents of the above documents was not disputed or challenged and hence the above application was allowed and the documents (totalling 15 SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 22 in number, including the information furnished by the Ahlmad and the covering letters etc.) were exhibited as Ex. PX-Collectively.
33. I have heard the arguments advanced by Sh Satish Aggarwal and Ms Mala Sharma, Ld SPPs for DRI and Sh Sanjeev Kumar and Sh S.K.Santoshi, Ld counsels for the accused. I have also gone through the evidence led and the other record of the case, including the written submissions filed on behalf of DRI.
34. It is well settled that the onus of proving its case beyond reasonable doubts is always upon the prosecution and in a case under any enactment like the NDPS Act laying down severe punishments, this onus becomes more high in degree and the duty of the court is to ensure that the provisions of such an enactment are complied with strictly and a higher degree of assurance is required for convicting the accused. Reference in this regard can be made to the judgment of the Hon'ble Supreme Court in case of State of Punjab Vs Baldev Singh 1999 Drugs Cases 150 : (1999) 3 SCC 977, wherein it was held that:-
"It must be born in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed".
35. Reference can also be made to another judgment SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 23 of the Hon'ble Apex Court in the case of Mausam Singh Roy Vs State of WB (2003) 12 SCC 377 wherein also it was held that it is a settled principle of criminal jurisprudence that the more serious the offence is, the stricter is the degree of proof, since a higher degree of assurance is required to convict the accused.
36. Further, though in terms of the provisions contained U/S 35 and 54 of the NDPS Act when an accused is found to be in possession of a contraband substance, it is for him to explain his above possession and further if any criminal intent to possess such substance by him is required to be proved, then the court can presume the existence of such criminal intent on the part of the accused. However, it is also well settled that even despite the above presumptions contained in the above said Sections, the initial burden of proving its case always remains upon the prosecution. Reference in this regard can be made to another judgment of the Hon'ble Supreme Court in case of Noor Aga Vs State of Punjab & Anr. 2008(3) JCC (Narcotics) 135, wherein the following observations were made by their Lordships:-
"Section 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 24 fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
37. When the prosecution case and the evidence led on record is tested on the touchstones of the principles laid down in the above said cases, it is observed that the same does not inspire any confidence and is not sufficient to entail the conviction of the accused for a serious offence U/S 21(c) of the NDPS Act, for which he has been charged and which carries a minimum term of rigorous imprisonment of 10 years extending up to 20 years and also a fine of not less than Rs 1 Lac and extending up to Rs 2 Lacs. This is so because the statements of the prosecution witnesses examined and the evidence led on record suffers from various contradictions and inconsistencies and the same cannot be relied and acted upon by this court for conviction of the accused for such a serious offence.
38. The first discrepancy in the case of the SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 25 prosecution is that the very constitution of the team of DRI Officers which had apprehended the accused with the above contraband substance is under serious doubts as it it is not clear from the evidence led on record as to who were the officers who had participated in the said raid. As per the evidence led by the prosecution, the above secret information was received by PW1 Sh Gurjit Singh and he had put up the same before PW6 Sh Pankaj.K.Singh, who had given the necessary directions for seizure of the above contraband goods vide his endorsement made on the above secret information Ex. PW1/A itself. The evidence led on record also suggests that the constitution of the raiding team was left to the discretion of the IO/PW4 Sh Jyothimon, who was directed by PW6 to constitute the said team. The names of the officers participating in the said raiding team are not mentioned or found disclosed in the above secret information or the endorsement made thereon by PW6.
39. The IO/PW4 Sh Jyothimon has stated on record that the above team consisted of Sh P.K.Singh (i.e. Sh Pankaj.K.Singh), Sh Gurjit Singh, Sh Kamal Kumar, Sh S.K.Sharma, Sh D.P.Saxena and Sh Surjit Kumar. Out of the above officers named by the IO/PW4, the prosecution has examined on record three of them, i.e Sh Gurjit Singh as PW1, Sh S.K.Sharma as PW3 and Sh Pankaj.K.Singh as PW6. However, it is observed that either PW1 or PW3 has not made any depositions on record regarding their participation in the said team as PW1 has only confined SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 26 his role to the reduction of the said information in writing and bringing it to the knowledge of PW6 and even PW3 has only issued the above seal of DRI and is concerned with the compliance of the provisions of Section 57 of the NDPS Act and had further issued some follow up directions during the investigation. None of them has stated on record that they were part of the above raiding team or had visited the spot for seizure of the above contraband substance. Though PW6 Sh Pankaj.K. Singh has claimed himself to had accompanied the above raiding team led by the IO/PW4 to the spot, but it is observed that his said depositions are not inspiring any confidence and are further not corroborated by the evidence led on record.
40. PW6 claims that after he had directed the IO/PW4 to constitute the said raiding team, he also accompanied the team to the spot and at the spot two public witnesses were called by the IO/PW4 and the accused was intercepted. However, his depositions made regarding his above participation in the raid are found to have been made in a very vague and brief manner and it appears to this court that after his name was stated on record by the IO/PW4 as one of the members of the said raiding team, he was produced and claimed by the prosecution on record to corroborate the said claim of the IO/PW4 regarding his (PW6's) participation in the team. It is observed that he has not being projected to be a participant in the entire seizure and search SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 27 proceedings and he claims that he was present with the IO/PW4 only till the time the accused was brought to the office of the DRI and he did not participate in the subsequent search proceedings due to some other official duties. Even at the spot he is not aware much about the public witnesses as he has tried to avoid it by saying that they were joined by the IO/PW4 himself and he was even not present with the IO/PW4 at the spot as he has claimed that he was standing at a distance of about 100 meters away from the place of apprehension of the accused, near the official vehicle. This court fails to understand as to when he was the officer who had given the necessary directions to the IO/PW4 for constitution of the above raiding team then what prevented him from incorporating in his above endorsement that he was also to accompany the said team as a member or in the supervisory capacity. It is further observed that the constitution of the raiding team of DRI officers is not even found to be disclosed in the panchnama dated 09.08.2008, which was prepared by the IO/PW4 subsequently in their office and is Ex. PW4/B on record. The report U/S 57 of the NDPS Act Ex. PW2/A, which was prepared and submitted by the IO/PW4 to PW3 on the same day, also nowhere mentions the name of PW6 as a participant in the above team and even none of the documents brought in the evidence and connected with the above seizure work are found to be bearing the signatures of either of PW6 or of PW1 or PW3. It cannot be ignored that PW1 Sh Gurjit Singh was an officer of the rank of Intelligence Officer, SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 28 which is equal in the rank to the IO/PW4 himself, and PW3 was a Senior Intelligence Officer and PW6 was a Deputy Director of the DRI at the relevant time. Had PW1 or PW3 participated in the said proceedings then there was nothing on record as to why they are silent in this regard in their statements made in the court on oath. This was not something which could have been forgotten by them as when they had deposed regarding all the other things done by them, then they could have also certainly deposed about their participation in the said proceedings.
41. It is further observed that by the time the IO/PW4 has disclosed it on record for the first time regarding the alleged participation of the above officers in the team, PW1 and PW3 stood already examined on record and nothing could have been done by the prosecution to get corroborated the said claim of the IO/PW4 from PW1 or PW3. However, PW6 was examined thereafter and it is only because of the above claim made by the IO/PW4 on record that PW6 was also projected as a member of the raiding team, though there is nothing on record to show his participation in the said team. In some other cases of DRI, this court had earlier acquitted some accused while entertaining serious doubts regarding the participation of few officers in the raiding team on the basis of the claims being made by the IO's of that case when the said officers were silent on record about their such participation and there was also no other documentary SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 29 evidence on record to substantiate such claims being made by the IO's for the first time during the trial. It appears to this court that the above depositions and claim being made by PW6 regarding his participation in the raid of this case is only an attempt by the DRI to prevent this court in arriving at any such conclusion and to corroborate the such claim being made by the IO/PW4, as otherwise his credibility should be under serious doubts. However,, despite the above claim of participation of PW6 in the above raid being made by PW6 as well as the IO/PW4, this court is not satisfied about their above claim from the evidence led on record and even no log book entries of the vehicles included in the above raid or any other document has been produced on record to corroborate and substantiate the said claim. Hence, this court has serious doubts regarding the credibility of the above depositions being made by the above two material witnesses on record and the same not only affects adversely their credibility as an individual, but it forces this court to put the entire case and story of the prosecution under doubts and to disbelieve the same.
42. The next serious flaw in the case of the prosecution is that the joining of the two public witnesses Sh Santosh Kumar and Sh Prashant Rajput in the above seizure proceedings is also under serious doubts and the evidence led on record not only makes their participation in the said proceedings to be doubtful but SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 30 the same also suggests the fabrication of some documents and records in this respect. As per the evidence brought on record, the above secret information was reduced into writing at around 5.45 PM on 08.08.2008 and the necessary directions for acting upon the said information Ex. PW1/A were given by PW6 at around 6.15 PM on that day. The expected time of arrival of the accused at the above spot was around 11 PM on that day and hence there was a gap of about five hours in giving directions to act upon the said information and the expected time of arrival of the accused. However, none of the DRI Officers, including the IO/PW4 Sh Jyothimon, had made any attempts or efforts to join any public or independent witness from any place around their office despite the fact that sufficient time and opportunity was with them for doing the same. Rather, the IO/PW4 and the other officers of DRI had left the same for the spot as if they were very much sure that they, or the IO/PW4, will be able to join the public witnesses at the spot itself, though it was very late in the night. This in itself is a ground to doubt the prosecution case as this certainty can come only when the witnesses are the stock witnesses and it also gives rise to an inference that they may be the fake persons introduced in the case of the prosecution.
43. Further, neither the IO/PW4 nor PW6 has told the time of their leaving of the office for the spot, though they both says that the public witnesses were joined at the spot itself. As per PW6 they had reached SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 31 at the spot at around 10 PM and the IO/PW4 states that the public witnesses were joined at around 10.30 PM, i.e. just within about half an hour of their reaching at the spot. As per the depositions of the IO/PW4, when both the above public witnesses were requested to join the proceeding, they both had readily agreed to the same and his depositions do not suggest that besides the above two witnesses, any other public persons were also requested to join the proceedings. It appears that only two of the public persons were requested to join and both of them agreed to join it and this in itself is very surprising as one of these witnesses, i.e. Sh Santosh Kumar, was a resident of Tundla, District Agra, UP and the other witness Sh Prashant Rajput was a resident of the area of Rajouri Garden, Delhi. There is noting on record to suggest as to what these two public witnesses were doing at the spot as it is not clear from the evidence led that from where these witnesses were coming or going at the relevant time. The IO/PW4 has stated on record that there were thousands of persons present outside the above ISBT, Kashmere Gate, but only 2-3 persons were present towards the above slip road leading towards Tis Hazari Court, near the toilet, which is the place of apprehension of the accused. The above two public witnesses were also joined from the above service or slip road and it appears that out of the above 2-3 persons being claimed to be present there, two were the above public witnesses joined in this case.
SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 32
44. It does not sound any reason as to instead of going to their homes why the above two witnesses will join the above raiding team during the night time and would even accompany the DRI officers to their office for conduction of the lengthy search and seizure proceedings when they were to get nothing for the above job and were further to face the agony of appearing again and again for making statements in the DRI Office as well as in the court and were also under no obligation or compulsion to witness the said proceedings. This becomes more surprising in the context of our country where the public persons are always reluctant to join such cumbersome investigations and proceedings, because of the harassment of facing the lengthy court trials. It is a matter of record that none of the above two witnesses was subsequently produced for making statement in this court during the trial and both of them had to be dropped as they were stated to be not existing/traceable at their given addresses. The record reflects that both the witnesses were directed to be summoned on 31.05.2011 for 21.07.2011 and it was reported on their summons that they were not existing/ traceable at their given addresses and hence, their summons were directed to be issued again for 08.08.2011, when similar reports were again received on their summons and on the basis of the above reports the witnesses were dropped by Ld SPP for DRI. The IO/PW4 at any stage has not collected any proof of identity or of addresses of the above witnesses despite the fact that SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 33 even after their participation in the above panchnama proceedings, they both are claimed to have appeared again in the office of the DRI for tendering their statements U/S 67 of the NDPS Act. This also raises doubts about the very existence and participation of the above two witnesses as any such proof, if collected, would have certainly dispelled the apprehensions and doubts of the defence regarding the existence of such witnesses and could have also easily countered their claim that the above witnesses were the fake witnesses introduced by the IO/PW4 in the case of the prosecution.
45. On further appreciation of the prosecution evidence, it is also observed that as per the IO/PW4 he had served the summons Ex. PW4/N and PW4/O upon the above two witnesses after the conclusion of the panchnama proceedings, which had concluded in the morning of 09.08.2008 at around 6 PM. Both the above summons are also found to be dated 09.08.2008 and the summons Ex. PW4/N of the witness Sh Prashant Rajput were given for his appearance on 12.08.2008 at 11 AM and the other witness Sh Santosh Kumar was directed to be present on 01.09.2008 at 2 PM vide summons Ex. PW4/O. However, it is strange that the statements tendered by both the above witnesses, which are Ex. PW4/P and PW4/Q respectively on record, are both shown to have been tendered on 12.08.2008, which date is appearing below the signatures of the concerned witness as well as of the IO/PW4 on the said documents. It appears that the SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 34 IO/PW4 became aware of the above fact only during his examination in this court and hence when he was asked by Ld defence counsel to explain the above discrepancy, he has stated that both the above witnesses had appeared together in their office on 12.08.2008. There is nothing on record to suggest that both the witnesses were known to each other prior to their joining the above proceedings and when the IO/PW4 was asked about the same, he has replied that when he had asked from the witnesses for the reasons of their coming together on the said date, they stated that after joining the investigation in this case they were coordinating with each other, which in itself is again strange as the witnesses were not having any personal interest in this case. There was no reason on the part of the IO/PW4 to record the statement of the witness Sh Santosh Kumar on 12.08.2008 when the said witnesses was not summoned for that day and was actually summoned for 01.09.2008. The above explanation being furnished by the IO/PW4 regarding the above discrepancy is not at all satisfactory and only appears to be an attempt on his part to cover the said discrepancy appearing in the above documents and to prevent this court from drawing any inference regarding the manipulation of the said documents or to doubt the very existence and joining of the above two witnesses in the raid.
46. Again, the manipulation of the above documents is visible from the fact that the summons U/S 67 of the SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 35 NDPS Act of the accused Ex. PW4/E and those of the public witness Sh Prashant Rajput Ex. PW4/N are both found to be issued out of the same summons book no. NA-154 and are having serial numbers 7688 and 7689 respectively, which are in continuity, whereas the summons of the other public witness Sh Santosh Kumar have been issued from another book no. NA-72 and are having serial no. 9. All these three summons were issued at or around the same time and on the same date, i.e. 09.08.2008, and there is no reason or explanation furnished on record as to why the summons of the witness Sh Santosh Kumar are not having a serial number in continuity to the serial numbers 7688 and 7689 of the accused and the other public witness and the same were also not issued out of the same book. There is nothing on record to show also that the above summons book number NA-154 stood exhausted or completed by the time the summons were handed over to the public witness Sh Santosh Kumar or where the remaining summons of the said book could have been utilized in such a short time. The above discrepancy gives rise to an inference that the above summons and statements of these two witnesses were subsequently fabricated and these documents did not come into existence on the date and time on which these are being shown to have been created. This inference becomes more stronger from the subsequent non examination of the above witnesses and the non tracing out of their given addresses. Further, though no certain presumption could also be drawn from the documents Ex. PX brought on SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 36 record during the defence evidence of the accused regarding the said witnesses being fake, but the above documents certainly strengthen the inference being raised and the doubts created in the mind of this court regarding the very existence of the above witnesses as it is observed that out of the 55 cases of DRI where the two public witnesses were allegedly joined in the seizure work, they both were dropped in about 27 cases and one of them had to be dropped in about 13 other cases on the similar grounds regarding their being not existing/traceable at their given address. Hence, from the above discussion, it is clear that there are serious doubts entertained by this court regarding the very existence of the above two public witnesses or of their joining the proceedings of this case and the same is also a strong ground to disbelieve and discard the evidence led on record not only on the above aspects, but also in toto.
47. Besides the above evidence led on record regarding the recovery of the above contraband substance from the possession of the accused, there is also his statement Ex. PW4/F, which was tendered by him U/S 67 of the NDPS Act and in response to the summons Ex. PW4/E given to him by the IO/PW4, which can be considered by this court for arriving at a conclusion about his guilt. It is now well settled that such a statement made by an accused is very much admissible in evidence and the same can also be made the sole basis of the conviction of an SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 37 accused, if the same is found to be made voluntary. Further, it cannot be equated with the statement of an accused made in custody, even if it is confessional in nature, as the same is made by an accused prior to his arrest in the case and hence, the bar of Sections 24 to 27 of the Evidence Act and even Article 20(3) of the Constitution would not be attracted to such a statement. However, if such a statement is found to be made by an accused under some pressure, coercion or influence etc. and is not made by him voluntarily, then it cannot be believed and acted upon.
48. Again, if the accused subsequently retracts from such a statement, then the court has to look into the entirety of the facts and circumstances leading to the making of the above statement and its subsequent retraction, so as to form an opinion regarding the voluntariness of such a statement and the effect which has to be given to his subsequent retraction thereof. However, it is also well settled that such a retracted statement is a weak piece of evidence and the court should not proceed to base a finding of conviction on the basis of such a retracted statement, unless there is some other independent evidence to corroborate the same. Reference with regard to the above can be made to some of the judgments in cases Raj Kumar Karwal Vs Union of India & Ors. (1990) 2 SCC 409; Kanhaiya Lal Vs Union of India 2008 (1) AD (Crl.) (SC) 277 : 2008 (1) JCC (Narcotics) 23; Francis Stanly @ Stalin Vs Intelligence SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 38 Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124; Noor Aga (SUPRA); Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC); Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 and DRI Vs Raj Kumar Mehta & Ors.2011 (3) JCC (Narcotics) 156, some of which have also been referred to and relied upon from both the sides.
49. Coming to the facts of the present case, the above statement Ex. PW4/F of the accused was also recorded on 09.08.2008 and prior to the formal arrest of the accused in this case as the summons Ex. PW4/E served upon him were for his appearance before the IO/PW4 at 8 AM, whereas the accused was formally arrested in this case vide arrest memo Ex. PW4/G at around 1 PM only on that day. One retraction application of the accused written in Hindi language and containing his signatures in Punjabi language is also available in the judicial file and though this application is not bearing any date of its creation or filing or the endorsement of the court, but as per the order sheets of the court, the same was filed by the accused in this court on 03.02.2009, i.e. about six months after his apprehension in this case on 08.08.2008. The record also reflects that though a copy of the same was supplied to Ld SPP for DRI on the same day, but the reply of DRI to the said application was filed on record only on 02.08.2013, i.e. after about 4½ years of filing of the retraction application and having been supplied with a copy SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 39 thereof. Apart from various personal and family details of the accused and also the disclosures made by him about his previous involvements, as discussed above, the above statement also contains a specific confession of the accused regarding his being apprehended from the above place and with the above contraband substance and further his being conscious about the said possession. However, when the other effective and direct evidence led by the prosecution on record to prove the factum of recovery of the above contraband substance from the possession of the accused has already been disbelieved by this court, the alleged confessions of the accused recorded to this effect in his above statement are of no use for the prosecution and the same can neither be independently believed by this court for conviction of the accused for possession of the said substance nor the same can provide any corroboration to the other evidence of prosecution about the recovery, which has already been held to be unworthy of acceptance and liable to be discarded by this court, even though the above retraction application of the accused was filed on record very late.
50. Regarding the above statement Ex. PW4/F of the accused and the alleged voluntariness thereof, Ld SPP for DRI has argued that the disclosures made by the accused in the said statement about his previous involvements in two other cases under the NDPS Act, i.e. one case in Punjab and one case in J&K, and also the SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 40 third case pertaining to the seizure of some foreign currency from his son are sufficient to show the voluntariness thereof, but it is held that the mere incorporation of the above facts or disclosures in the said statement of the accused cannot alone be made a ground to accept the same as a voluntary statement. Ld defence counsel, as well as the accused in his statement U/S 313 Cr.P.C., has rightly submitted in this regard that the DRI officers could have easily incorporated the said facts in the above statement of the accused, after forcibly obtaining the same from him as the accused was already apprehended by them, though he was not yet formally arrested in this case. It is necessary to make a reflection here regarding the conduct of the IO/PW4 and the other senior officers of DRI that even though the accused had disclosed about his above previous involvements in different cases, but still no serious or sincere efforts were made by them to get the above details confirmed from the concerned agencies/States and they were satisfied only by sending some official letters to their counterparts in the concerned States for verification of the above facts and these verifications or confirmations were never received by them during the investigation. Even in the complaint filed against the accused in this court, which is Ex. PW4/X-Collectively on record, it was only submitted that the previous conviction of the accused in a case of seizure of 50 KG of heroin at Amritsar was being verified and a separate application will be moved for SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 41 the offence punishable U/S 31A of the NDPS Act (containing enhanced punishment in case of a subsequent conviction in certain cases) after receiving the above verification report, but no such report was ever received and filed on record of this court till date and even no such application was ever moved.
51. Hence, as far as the evidence led by the prosecution on record is concerned, there is no material to prove the above previous involvements of the accused in different cases and the above argument of Ld SPP for DRI is being raised only on the basis of the submissions made by the accused himself during the course of recording of his statement U/S 313 Cr.P.C., wherein he has admitted the above facts. Though, the above submissions made and the answers given by the accused can be considered by this court for the decision of this case, but the same are not to be considered in isolation and when considered in entirety, the same only show the honesty of the accused in admitting the above facts and his previous involvements, even though there was nothing incriminating brought on record by way of confirmation of the said facts by the prosecution. It cannot be ignored that he had also stated in his above statement that the facts taken from him were got incorporated in his above statement, which was taken forcibly from him. The above conduct of the accused in admitting his above previous involvements, despite the fact that there was no document brought by the prosecution on record to show SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 42 his such involvements, is rather to be considered as a circumstance to show that he is more reliable than the witnesses produced by the prosecution on record as he has honestly admitted the above facts even though they were against his interests. Moreover, the accused has also claimed in his statement U/S 313 Cr.P.C that he already stands acquitted by the Hon'ble High Court of Punjab & Haryana in the case of seizure of 50 KG of heroin in Punjab and even in the other case of seizure of 2 KG of heroin at Jammu, he was acquitted by the Ld Special Judge concerned. Though he did not file on record the copies of the above judgments, but his above submissions were not challenged or controverted on behalf of DRI at any subsequent stage. Hence, the above statement Ex. PW4/F made by the accused cannot be considered to be his voluntary statement tendered U/S 67 of the NDPS Act and it cannot be used and relied upon for proving the case of the prosecution or corroborating the other evidence led by it on record.
52. Now, this court has to see the effect of seizure of the above psychotropic substance named Amphetamine weighing around 22 Grams, which was recovered from the above house premises of the above Shyam Lal Sharma at Rishikesh, Uttranchal. As per the prosecution case, the above address of House No. 509, Behind Bhairon Temple, Chandrabhaga, Rishikesh of Shyam Lal Sharma was disclosed by the accused only in his above statement Ex. PW4/F dated 09.08.2008 and SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 43 thereafter the above seizure of Amphetamine was effected form the above house premises of Shyam Lal Sharma on 10.08.2008 by a team of the officers of Central Excise, Dehradun, Uttranchal. The prosecution has also examined on record two officers of the above team, i.e. PW10 Sh S.K.Mishra and PW14 Sh Prakash Singh Rawat, who both were posted as Inspectors in Central Excise at Dehradun at the relevant time. They both have deposed regarding their visit to the said premises as members of a team and also about the search of the said premises, after its locks were opened by a key maker called for the said purpose. They have also proved on record one panchnama drawn regarding the above search proceedings as Ex. PW10/A and there is a specific mention in the said panchnama as well as in their depositions about the recovery of 22.310 Grams of a suspected white colour powder kept in a black colour transparent polythene, which was recovered from an almirah kept in a room of the said house, besides the other documents Ex. PW12/A- Collectively and mentioned in the list of documents Ex. PW10/B on record. Though two public witnesses of the above search proceedings and the panchnama were also examined on record by the prosecution as PW12 Sh Ram Kumar and PW15 Sh Attar Chand, who both are the neighbours of the above Shyam Lal Sharma, but it is observed from their testimonies that they both have turned hostile on the point of recovery of the said documents and substance from the above premises in their physical presence, though they both have admitted their SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 44 signatures on the above panchnama and the documents recovered during the said search. However, even despite that, the depositions of the above witnesses duly corroborate the depositions made by PW10 and PW14 regarding the conduction of the said search proceedings and the recovery of some documents and substance therefrom on the above date. The above search proceedings were conducted in response to one follow up letter Ex. PW7/A sent by PW7 to the Assistant Commissioner of the above department at Dehradun.
53. Further, as per the depositions made by PW10 and PW14 and the contents of the above panchnama, the said substance was weighed and sealed at the above spot itself and the sealed parcel thereof was subsequently brought to the office of the DRI, Delhi by PW13 Sh Manoj Kumar Sharma, who is also an Inspector of the Excise Department of Dehradun, on 18.08.2008 and handed over to the IO/PW4 vide endorsement made by the IO/PW4 on the letter Ex. PW4/J given by the Assistant Commissioner, Central Excise, Dehradun and the above facts have been deposed by PW13 as well as IO/PW4 on record. The IO/PW4 has also deposed that he has subsequently opened the said sealed parcel, in the presence of the two public witnesses, and had conducted the proceedings for drawing of two samples therefrom vide the panchnama Ex. PW4/K dated 18.08.2008 itself, which also stands duly proved on record in his statement. One of the above samples was subsequently opined to be of Amphetamine vide the test SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 45 report Ex. PW8/A, which is proved on record by PW8 Sh V.P.Bahuguna.
54. However, a bare perusal of the above statement Ex. PW4/F of the accused on record will show that nowhere he is found to have stated in the said statement regarding the presence or concealment of the above psychotropic substance named Amphetamine in the above house premises of Shyam Lal Sharma nor the same suggests that he might have been aware about its presence there or is connected with the same. He has also nowhere stated in the said statement that he can guide or lead to the recovery of the said substance and he could not also have stated so when he was aware about its presence or concealment in the said house or was privy to the same. Hence, the recovery of the said substance from the said premises cannot technically be connected with the accused and perhaps it is for this reason that the IO/PW4 had not even alleged the violation of the provisions of Section 22 of the NDPS Act, which deals with the punishment for possession etc. of a psychotropic substance, in the complaint Ex. PW4/X- Collectively filed by the IO/PW4 against the accused in this court.
55. However, still the recovery of the above substance named Amphetamine from the said premises could have been relevant and considered in this case had there been a charge framed against the accused for being party SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 46 to a criminal conspiracy to possess or to deal etc. in the above psychotropic substance or other contraband substances, which charge is mentioned under and made punishable by Section 29 of the above said Act. It is observed that though, this complaint was filed against the accused by the IO/PW4 for commission of the offences punishable U/S 21 and 29 of the NDPS Act, but a charge for the offence punishable U/S 21(c) of the NDPS Act only was directed to be framed against the accused vide order dated 19.03.2009 of this court and the said order had an implied effect of discharge of the accused for the offence punishable U/S 29 of the said Act. The above order of this court as well as the consequent charge U/S 21(c) of the NDPS Act framed against the accused were never challenged by the prosecution/DRI before any higher court and hence, in the absence of there being a specific charge framed against the accused for the above offence of criminal conspiracy punishable U/S 29 of the NDPS Act, this court is not in a position to consider and evaluate the evidence led on record by the prosecution regarding the recovery of the above quantity of Amphetamine weighing around 22 Grams from the abovesaid premises at Rishikesh, with reference to the above Section. The accused is a senior citizen as his age is found to be stated as 60 years in his above statement U/S 67 of the NDPS Act Ex. PW4/F dated 09.08.2008 and he is also running in custody since his apprehension by the DRI officers on 08.08.2008 and hence, any amendment of the charge by this court at this SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 47 highly belated stage, when the court was already considering the pronouncement of a judgment against him, would have certainly caused serious prejudice to him and was thus not warranted or required.
56. Apart from all the above, as per the depositions made by the IO/PW4 and PW7 on record, the sealed parcels of the case property as well as of the samples of heroin were kept under the custody of PW7 by the IO/PW4 after the conclusion of the panchnama proceedings on 09.08.2008 and the same remained in his possession till 11.08.2008, when the sample parcels were deposited with the CRCL and the parcels of the case property in the Valuable Godown of the New Customs House. Similarly, the sealed parcels of the samples of Amphetamine drawn by the IO/PW4 on 18.08.2008 were also handed over by him to PW7 on that day and one of the said parcels was got deposited in CRCL on 19.08.2008 and the parcel of the case property also deposited in the Valuable Godown on that day. Except the oral depositions made by the above two witnesses, there is no documentary evidence brought on record by the prosecution to substantiate the above fact and to rule out the possibility of tampering of the said parcels during the above period. Though, independently the same could not have been a ground to acquit the accused in this case because of any possible inference of tampering of the said parcels, unless there was any such inference clearly visible from the record, but coupled with the SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 48 other material discrepancies and lacunas which have been pointed out and discussed above and also in the light of the judgement of the Hon'ble Delhi High Court in case of Hannan Vs State of NCT of Delhi 2013 (3) JCC (Narcotics) 14 being relied upon by Ld defence counsel, the same can also provide an additional ground for acquittal of the accused in this case giving benefit of doubt to him.
57. Moreover, as stated above, the above Shyam Lal Sharma could not be traced out and made to join investigation and even the other person named as Mohinder Singh R/o Village Sahura, District Amritsar, Punjab, in the above statement Ex. PW4/F of the accused could not be brought to book and there is also nothing on record to show that any efforts were made by the IO/PW4 or any other officer of the DRI to trace out and apprehend him in this case. Even the person to whom the accused was supposed to deliver the above heroin at the above spot in Delhi could not be traced out. Hence, the source of procurement and supply of the above contraband substance recovered from the possession of the accused could also not be substantiated by the IO/PW4 during the investigation. Though, various documents Ex. PW12/A- Collectively on record were recovered from the above house premises of Shyam Lal Sharma and these documents included one sale deed of a property located in District Saharanpur and also deposit slips of some bank accounts in the name of above Shyam Lal Sharma, but apart from resealing the said premises after the search, no further SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh 49 coercive steps were taken by the DRI officers to compel the above Shyam Lal Sharma to join the proceedings.
58. In view of the above discussion, it is held that the evidence led on record lacks corroboration, consistency and reliability and the same is not sufficient to hold the accused guilty for the abovesaid serious charge for the offence U/S 21(c) of the NDPS Act. The accused is, therefore, acquitted of the above charge giving benefit of doubt. He is presently confined in and appearing from Amritsar Jail in some other case. Let the Jail Superintendent concerned be directed to immediately release him from custody, if he is not wanted to be detained in any other case.
59. The case property be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgment, if any, or the orders of the appellant court, as the case may be.
60. The bond U/S 437A Cr.P.C on behalf of the accused has already been furnished. Let the case file be consigned to record room.
Announced in the open
court on 14.07.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No. 05A/09 DRI Vs Avtar Singh @ Kartar Singh