Kerala High Court
Rajesh Bharadwaj vs Director Of Revenue Intelligence on 15 March, 2014
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938
CRL.A.No. 353 of 2014 (A)
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AGAINST THE JUDGMENT IN SC 40/2008 of COURT OF THE SPECIAL JUDGE
(NDPS ACT CASES), VADAKARA DATED 15-03-2014
APPELLANT/2ND ACCUSED:
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RAJESH BHARADWAJ
S/O.SANTHI SWAROOP BHARADWAJ,
HOUSE NO.2357 SECTOR 22C, CHANDIGARH.
BY ADV. SRI.VIKRAM CHOUDHARY
SRI.P.VENUGOPAL (1086/92)
RESPONDENTS/COMPLAINANT:
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1. DIRECTOR OF REVENUE INTELLIGENCE
REPRESENTED BY SENIOR INTELLIGENCE OFFICER,
REGIONAL UNIT, CALICUT-673001.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY SPECIAL PUBLIC PROSECUTOR SRI.C.P.UDAYABHANU
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-04-2016,
ALONG WITH CRA. 394/2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
C.T.RAVIKUMAR, J.
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Crl.A.Nos.353 & 394 of 2014
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Dated 8th April, 2016
JUDGMENT
These appeals have common matrix in the judgment in S.C.No.40 of 2008 (NDPS) passed by the Court of Special Judge (NDPS Act Cases), Vatakara whereby and whereunder the appellants who were respectively accused Nos.2 and 3 therein, were found guilty, convicted and sentenced as hereunder:-
To undergo rigorous imprisonment for 10 years each and to pay a fine of 1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each, for the conviction under Section 29 read with Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act (for short `NDPS Act'). For the conviction under Section 8A(C) read with Section 21(C) of the NDPS Act they were sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of 1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each. They were sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of 1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each for the Crl.A.Nos.353 & 394 of 2014 2 conviction under Section 27A of the NDPS Act and also sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of 1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year each for the conviction under Section 28 read with Section 21(C) of the NDPS Act. The substantive sentences of imprisonment were ordered to be run concurrently. They were also held entitled to get set off under Section 428 of the Code of Criminal Procedure. The former appeal has been filed by the 2nd accused and the latter appeal has been filed by the 3rd accused in the above mentioned sessions case. In fact, the appellant in the former appeal was the 6th accused in S.C.No.29 of 2008 (NDPS) arising from OR 1/2008 of the Directorate of Revenue Intelligence, Regional Unit, Calicut. The 4th accused therein viz., Chottu who was the first accused in S.C.No.40 of 2008(NDPS) and the appellant in the former appeal were absconding during the trial of S.C.No.29 of 2008(NDPS) and consequently, the case against them was split up and refiled as S.C.No.40 of 2008(NDPS). Later, the Investigating Officer filed a further investigation report arraigning the appellant in the latter appeal also as an accused in the aforementioned OR and consequently, he was arrayed as the 3rd accused in S.C.No.40 of 2008(NDPS). Even during the trial of S.C.No.40 of 2008 (NDPS) the first accused who was the 4th accused in S.C.No.29 of 2008 Crl.A.Nos.353 & 394 of 2014 3 (NDPS) remained in abscondence. It is to be noted that all the accused, except the 5th accused, who stood the trial in S.C.No.29 of 2008(NDPS) were convicted for the same offences mentioned above as per judgment dated 7.4.2009.
2. A brief narration of facts is inevitable for the disposal of the captioned appeals. The case of the prosecution is that on 25.3.2008 at 8.30 a.m. PW1 who was then working as Senior Intelligence Officer in the Directorate of Revenue Intelligence, Cochin received Ext.P1 secret information to the effect that one Habeeb Rahman @ Kunchappu (A1 in SC.No.29/2008(NDPS)) used to obtain Heroin from Rajasthan for export and at that point of time he was in possession of around 11 Kgs. of Heroin concealed in two places viz., in the house by name "Homeo Bhavan" abutting Puthiyara road at Kuthiravattam and in the residence of his uncle Muhammed Kunchi in front of the house of Habeeb Rahman at Edavannapara. On obtaining the said secret information, PW1 informed the same to his immediate superior who after acknowledging the same issued Ext.P2 search warrant for further action. Thereupon, PW1, searched the premises of `Homeo Bhavan' belonging to PW2 and recovered 5.178 Kgs. of Heroin. Based on the same information a simultaneous search was conducted by CW10 Radhesh who was the then Crl.A.Nos.353 & 394 of 2014 4 Intelligence Officer attached to Directorate of Revenue Intelligence, Cochin Office and upon such search 6.218 Kgs. of Heroin was recovered from the second place of concealment at Edavannapara. On instructions, PW1 searched Room No.301 of Hotel Malabar Palace and intercepted the 2nd and 3rd accused in S.C.No.29 of 2008(NDPS) from there. He recovered a flight ticket and currency notes worth 43,000/- from the said room. Accused Nos.1 to 3 in S.C.No.29 of 2008(NDPS) and the material objects were handed over to PW3, the Investigating Officer who was then working as Senior Intelligence Officer, Directorate of Revenue Intelligence, Regional Unit, Calicut. PW3 recorded the statements of accused Nos.1 to 3 in S.C.No.29 of 2008(NDPS) under Section 67 of the NDPS Act on the next day and arrested the accused. The further investigation led to the recovery of two cars from the premises of `Homeo Bhavan'. On inspection of one of the cars PW3 detected Ext.P10 paper slips carrying certain scribbling. Investigation based on the paper slips revealed the fact that the first accused in S.C.No.29 of 2008 effected two deposits in the Calicut Branch of ICICI Bank as evidenced by Exts.P13 and P14. The first among the deposits was effected on 31.01.2008 of 2,00,000/- and the second one effected on 3.3.2008 was of 4,00,000/-. The said deposits were effected in favour of the 6th accused/the appellant in the former appeal viz., the 2nd accused in Crl.A.Nos.353 & 394 of 2014 5 S.C.No.40 of 2008(NDPS), in his account maintained with ICICI Bank at Chandigarh. PW3 completed the investigation and filed the complaint as against accused Nos.1 to 6 which was, taken on file and numbered as S.C.No.29 of 2008(NDPS). As stated earlier, among the six accused therein the 4th accused and the 6th accused viz., first and the second accused in S.C.No.40 of 2008(NDPS) did not stand the trial and they remained in abscondence. Ext.P22 judgment was rendered in respect of the accused who stood the trial. The case against the appellant in the former appeal and the 4th accused in S.C.No.29 of 2008(NDPS) was then refiled as S.C.No.40 of 2008(NDPS) and during its pendency a further investigation report was filed arraigning Naresh Kumar Garg (the appellant in the latter appeal) also as an accused. In the meanwhile, the accused in S.C.No.29 of 2008(NDPS) approached the Hon'ble Apex Court on being aggrieved by Ext.P22 judgment and to enable the trial of the appellants herein certified copies of the records were issued from the Hon'ble Apex Court and such documents are marked in the trial of the appellants herein in S.C.No.40 of 2008(NDPS). To bring home the charge against the appellants the prosecution has examined PWs 1 to 10 and got marked Exts.P1 to P45 besides identifying MOs I to XIV. Upon closure of the evidence of the prosecution the appellants herein were examined under Section 313 Cr.P.C. They denied all the incriminating Crl.A.Nos.353 & 394 of 2014 6 circumstances put to them. Additionally they filed separate statements. Finding that they were not entitled to be acquitted under Section 232, Cr.P.C. the appellants herein were called upon to enter on their defence. Consequently, they got examined DW1 and also marked Exts.D1 to D9 series. After considering the arguments advanced by both sides and appreciating the evidence on record the learned Special Judge held that the prosecution has succeeded in proving all the alleged offences against the appellants herein. Consequently, they were found guilty on all counts and convicted and sentenced as mentioned above. For convenient sake the appellants are referred to hereafter in this judgment in accordance with their status in the array of accused in S.C.No.40 of 2008(NDPS) unless otherwise specifically mentioned.
3. I have heard the learned Senior Counsel Sri.Vikram Choudhary for the 2nd accused/the appellant in the former appeal and Senior Counsel Sri.Raman Pillai for the 3rd accused/the appellant in the latter appeal and also the learned Special Public Prosecutor Sri.C.P.Udayabhanu for the Directorate of Revenue Intelligence.
4. The appellants raised manifold contentions to mount challenge against the judgment of conviction and mainly it is contended Crl.A.Nos.353 & 394 of 2014 7 that it is the utter, perverse appreciation of evidence that led to their conviction. The learned Senior Counsel Sri.Vikram Choudhary appearing for the 2nd accused/the appellant in the former appeal contended that the mere fact that the first accused in S.C.No.29 of 2008(NDPS) (Habeeb Rahman @ Kunchappu) made twin deposits in account No. 632205006014 maintained by the appellant respectively on 31.1.2008 and 3.3.2008 for a total amount of 6,00,000/-, is too inconclusive to connect the appellant with the commission of the alleged offence and, according to the learned counsel for connecting them with the offence it should have been proved by the prosecution that those payments were made in connection with narcotic business allegedly involved in this case. It is contended that the case of the prosecution against the 2nd accused is distinctly different from the precise case of the prosecution against accused Nos.1 to 3 in S.C.No.29 of 2008(NDPS). The case of the prosecution against accused Nos.1 to 3 in S.C.No.29 of 2008(NDPS) was that the first accused was found in possession of heroin and 2nd and 3rd accused therein were the persons who brought the contraband articles from Rajasthan. On the other hand, the case against the 2nd accused is that he had conspired with Habeeb Rahman (the first accused in S.C.No.29 of 2008(NDPS) and Chottu (4th accused in S.C.No.29 of 2008 (NDPS)/the first accused in S.C.No.40 of 2008(NDPS) and financed for Crl.A.Nos.353 & 394 of 2014 8 the narcotic business and appropriated the amount derived out of such narcotic substance trafficking. The foundation for such accusation, according to the learned counsel, is the alleged statement of Habeeb Rahman to the effect that he had deposited 2,00,000/- on 31.1.2008 and 4,00,000/- on 3.3.2008 respectively in a particular bank account maintained by the 2nd accused. It is the contention that though the 2nd accused had explained that the amount was deposited at the instance of one Naresh Kumar Garg in connection with his established liquor business without conducting a proper investigation to find out the verity of the same the 2nd accused was falsely implicated in the case. The learned counsel further submits that it was so done owing to the animosity entertained by the Directorate of Revenue Intelligence Officials against the 2nd accused. It is the contention that the statement of Habeeb Rahman given under Section 67 of the NDPS Act to connect the 2nd accused, the appellant in the former appeal with the alleged offences ought not to have been treated as an incriminating material against the 2nd accused. According to the appellant in the former appeal, the court below had failed to properly appreciate the purport and impact of Section 30 of the Evidence Act. The trial Court had erred in placing reliance on the alleged confession statement of Habeeb Rahman who faced trial in S.C.No.29 of 2008. The said procedure adopted by the trial Court is Crl.A.Nos.353 & 394 of 2014 9 illegal. It is further contended that apart from the said statement there was absolutely no material on record to connect the 2nd accused, the appellant in the former appeal with the alleged offence. It is further contended that the admission of Naresh Malhothra that he used to work as an agent and deal with many customers on behalf of the appellant in the former appeal in Ext.P19 statement was not properly appreciated by the court below. It is the further contention that the court below had failed to take into account the fact that the appellant did not even have nodding acquaintance with Habeeb Rahman or Chottu. The evidence of PW6, the Branch Manager of ICICI Bank, Calicut revealing that for depositing cash in current account from an outstation branch no specific procedure was there and that without the consent of the account holder anybody could deposit money in any current account, was also not taken into account by the court below, it is submitted. It is further contended that the evidence of PW6 would reveal that normally, an account holder would not become aware of cash deposits in his account till the receipt of the communication in that regard through SMS, E-Mail or statements of accounts and also that there was no procedure prevalent in the Bank to take consent or prior permission of the account holder for the deposit in any current account. The essence of the contentions is that in the light of the evidence of PW6 the mere fact that Habeeb Rahman made two Crl.A.Nos.353 & 394 of 2014 10 deposits in the account of the appellant could not have been the basis for drawing an inference that the appellant was either a privy or a party to any shady narcotic business. The learned Senior Counsel further contended that the investigating agency has conducted only a defective and improper perfunctory investigation and that the irregularities and illegalities in the investigation have caused great prejudice to the 2nd accused, the appellant in the former appeal. It is contended that despite Ext.P19 statement from Naresh Malhothra, as aforementioned, no effort was taken by the investigating agency to verify the verity of such statements which if found true would have exculpated the 2nd accused. It is also the contention of the 2nd accused that PW3, the Investigating Officer did not verify his antecedents or verify his business details, accounts, tax returns, turn-overs, mode and manner of business transactions, the liquor licence etc. It is the further contention that the evidence of DW1 was not properly considered by the trial court. DW1 would depose that the 2nd accused got requisite licences issued by the Excise Department to sell liquor. It is contended that since the price of liquor was very cheap in Chandigarh compared to the other parts of the country customers used to come from different parts of the country to Chandigarh to purchase liquor and payments in certain circumstances were, used to be made in advance and such payments may be made Crl.A.Nos.353 & 394 of 2014 11 from anywhere in the country. In short, according to the appellant, apart from the statement of the aforesaid Habeeb Rahman, the first accused in S.C.No.29 of 2008(NDPS) and the fact that he had effected deposits in the current account of the 2nd accused, the appellant in the former appeal no evidence whatsoever was adduced by the prosecution to establish the conspiracy or the fact that he was financially indulging and benefiting from the narcotic business. It is further contended that the principal accused Chottu at whose instance Habeeb Rahman had allegedly made the aforementioned twin deposits in the Bank account of the appellant was not arrested or even traced out. According to him, Chottu is an illusory and imaginary character. In short, according to the appellant in the former appeal the prosecution had failed to establish any link or connecting evidence as against the appellant, with the shady narcotic business. The contention of the said appellant is that there was a strong motive for the complainant to falsely implicate him in the case and despite highlighting such factors they were not given due consideration by the trial court. His case is that earlier Crime No.253 of 2008 was registered against him at Okkal Police Station at Chandigarh at the instance of PW1, alleging kidnapping of DRI officials. The case against him, according to the appellant in the former appeal, was that on 24.4.2008, PW1 along with two other officers came to his house and Crl.A.Nos.353 & 394 of 2014 12 asked him to accompany them to the Central Excise Office, Chandigarh and while they were proceeding to the said office his son and his son's friend intercepted them and facilitated the appellant to escape from the custody in another car. One of the DRI official was also taken in the car for long time. It was in connection with the said incident that PW1 lodged a complaint before the local Police Station at Chandigarh and consequently, Crime No.253 of 2008 was registered against the appellant, his son and his friend for abduction and obstruction of the official duty of the DRI officials. The contention is that in view of the alleged incident the DRI officials were nursing strong animosity towards the appellant and that was why he was falsely implicated in this case. It is contended that taking into account all such aspects the trial court ought to have held that the prosecution had failed to establish the guilt of the appellant in the former appeal and he ought to have been acquitted.
5. The learned Senior Counsel appearing for the appellant in the latter appeal contended that there was absolute absence of any material to connect the said appellant who was accused No.3 in S.C.No.40 of 2008, with the alleged offences. It is contended that the appellant in the latter appeal was not an accused in S.C.No.29 of 2008 Crl.A.Nos.353 & 394 of 2014 13 (NDPS). After the splitting up of the said case in respect of Chottu (A1) and the appellant in the former appeal (A2) in the said split up case viz., S.C.No.40 of 2008(NDPS) he was arraigned as an accused only based on the report on further investigation on 25.7.2011 viz., three years and four months since the seizure and after three years of the complaint in S.C.No.29 of 2008(NDPS) and two years and four months after the judgment in S.C.No.29 of 2008(NDPS). It is contended that a perusal of the impugned judgment would reveal that at one stage the court below had also lost track of the identity of the appellant and the said fact is evident from paragraph 46 of the judgment where the trial court named accused No.3 therein as Naresh Kumar Malhothra. In the said paragraph the evidence against the appellant was discussed under the caption "A3 Naresh Kumar Malhothra's Role" though the name of accused No.3 is Naresh Kumar Garg. It is the specific contention that there is absolutely no reference about the involvement of the said appellant in any of the statements given by the accused or the witnesses and in the documents collected by PW3 in S.C.No.29 of 2008(NDPS). It is contended that on 23.12.2011 while the appellant in the latter appeal was returning from USA he was intercepted and arrested by PW3 from Delhi International Airport. It is the further case of the said appellant that PW3 did not take him into custody whilst only served summons from the Airport on Crl.A.Nos.353 & 394 of 2014 14 23.3.2011 for his appearance before him on 24.7.2011 at Calicut. On 4.4.2011 Ext.P32 statement was recorded from him and according to the appellant, it is an exculpatory statement in all respects. It is further contended that in Ext.P12 he admitted that being one of the authorised signatories he had issued two cheques for 5,00,000/- each from the account in question maintained by the appellant in the former appeal, on 28.1.2008. The said cheques were issued prior to the alleged remittance by Habeeb Rahman on 31.1.2008 and 3.3.2008. It is contended that those cheques were issued to two distilleries for purchase of Indian Made Foreign Liquor as instructed by accused No.2 in S.C.No.40 of 2008 (NDPS). It is contended that even in the absolute absence of any evidence to connect the said appellant with the alleged offences the trial Court entered the finding of guilty against him solely relying on Ext.P25 statement of accused No.2, the appellant in the former appeal, Ext.P31 viz., his statement, the account details of Rajesh Bardwaj, the appellant in the former appeal and Exts.P12 and P28 letters and also Ext.P29 series of cheques obtained from ICICI Bank, Chandigarh Branch, without properly scanning and understanding their contents. It is contended that the appellant had been in Abkari business and was a licenced dealer of Indian Made Foreign Liquor since 1995. Accused No.2, the appellant in the former appeal was mainly engaged in hotel and construction business Crl.A.Nos.353 & 394 of 2014 15 and they got close acquaintance from 1996. The appellant in the former appeal entered into the field of Abkari business as a wholesale dealer in Indian Made Foreign Liquor in 2006-2007 and being an experienced person in the field of Abkari business the appellant in the latter appeal was given the authority to do overall supervision of the Indian Made Foreign Liquor business of the second accused including signing of cheques for the smooth conduct of his business. It is the further contention that the fact that he was authorised to operate the bank account of the second accused ought not to have been taken as a reason to enter finding against him in the aforesaid circumstances. It is also the contention that he got nothing to do with the remittance made in the current account of the appellant in the former appeal and he got no knowledge with respect to the source of such credits. According to the said appellant, Exts.P25 and P31 statements which are respectively the statements of the second accused and his own ought not to have been treated as voluntary statements made by them under Section 67 of the NDPS Act. It is contended that the court below ought to have taken into consideration the fact that accused No.2, the appellant in the former appeal was an accused who was arrested and kept under prolonged custody of DRI at the time of recording of Ext.P12. It is further contended that Ext.P25 statement was recorded from the 2nd accused Crl.A.Nos.353 & 394 of 2014 16 after keeping him under illegal custody for more than 24 hours. It is contended that the court below did not consider the retractions by the accused persons. At any rate, the court below had failed to take note of the fact that in Exts.P25 and P31 there was absolute absence of any confession or any admission of any incriminating fact even remotely connecting the second accused and the appellant in the latter appeal, with the offence of possessing, trafficking, dealing or transporting or financing the business in heroin. It is also contended that the court below had erred in placing reliance on Ext.P19 statement of Naresh Malhothra without examining the said witness and without considering Ext.D1 retraction filed by him in the form of an affidavit. It is contended that DRI officials have taken mutually contradictory stand in respect of recording of the statement under Section 67 of the NDPS Act and in the matter of filing of a further report after the filing of the final report in terms of Section 176(8) Cr.P.C. The learned Special Public Prosecutor resisted the contentions and submitted that the appellants have not made out any ground warranting appellate interference. It is contended that their conviction was the inevitable outcome of proper appreciation of the evidence on record. On the side of the prosecution Exts.P1 to P45 were got marked besides identifying MOs I to XIV. On the side of the appellants Exts.D1 to D9 series were got marked.
Crl.A.Nos.353 & 394 of 2014 17
6. In the light of the contentions raised by the learned Senior Counsel appearing for the appellants and also the learned Special Public Prosecutor it is only apposite to consider the evidence on record for the purpose of appreciation. As noticed hereinbefore, the prosecution had examined PWs 1 to 10 and on the side of the defence one Sanjeev Meman was examined as DW1. PW1 was the Senior Intelligence Officer attached to the Directorate of Revenue Intelligence, Cochin. He deposed that on 25.3.2008 he was in Calicut and then, he happened to receive an information in the morning that one Habeeb Rahman (Kunchappu) used to get Heroin from Rajasthan for export and on that day he was in possession of around 11 Kgs. of heroin concealed in two places, one at a house called `Homeo Bhavan' at Kuthiravattam and another at his uncle's house at Edavannapara. He reduced the information into writing and reported the matter to his immediate superior viz., Deputy Director, DRI, Calicut. The certified copy of the said information reduced in writing viz., Ext.P1 contained the signature of PW1 and that of his immediate superior official who had acknowledged the same. As per Ext.P1, as directed by the Deputy Director he proceeded to the house at Kuthiravattam where the contraband was allegedly kept. Ext.P2 warrant to search the house was also issued by the Deputy Director. On reaching Crl.A.Nos.353 & 394 of 2014 18 the said house along with the staff he met the occupant and with his permission he searched the house along with two local witnesses. During his search one locked suit case was recovered from the house. One person Habeeb Rahman who is the first accused in S.C.No.29 of 2008(NDPS) was present there and he identified the suit case as his own. It was opened with code number provided by the said Habeeb Rahman and two plastic carry bags were found therein. In one of them five plastic bags with some powder were found. The other carry bag contained packing materials and stapler pins. Upon testing the powder it appeared that it had the characteristics of Heroin and thereupon the said materials and the suit case along with the packing materials were seized under Ext.P3 mahazar. Ext.P3 mahazar contained the signatures of PW1, the said Habeeb Rahman and two independent witnesses. The suit case recovered under Ext.P3 was marked as MO1. The carry bag with printing "Kottons" was marked as MO2 and the carry bag with the printing "Jayalakshmi" was marked as MO3. The five packets containing Heroin found in MO1 were marked as MO4 series. The Aluminium foil found inside MO1 was marked as MO5 and the paper packet with writing "Fancy Wrap" was marked as MO6. The polythene packets 4 in number were marked as MO7 series. The stapler pin packets 2 in numbers were marked as MO8 series. The stapler with cover are marked respectively Crl.A.Nos.353 & 394 of 2014 19 as MO9 and MO9(a). The packet of rubber bands seized from there was marked as MO10. Green colour paper sticker slips found from there was marked as MO11 and the Indian Express Daily dated 25.3.2008 found from there was marked as MO12. Its stamped portion contained a printing `Good Morning Hotel Malabar Palace'. The hotel seal was seized and marked as MO12(a) and the 10 covers in which the samples were collected were marked as MO13 series. PW1 through whom the aforesaid documents were marked further deposed that he submitted Ext.P4 report under Section 57 of the NDPS Act to his superior official, the Assistant Director, DRI Regional Unit, Calicut with his signature and thereupon the said superior officer acknowledged the same. He would also depose that he had handed over Habeeb Rahman/accused No.1 in S.C.No.29 of 2008(NDPS) and the above mentioned articles and documents to the Investigating Officer in this case viz., PW3.
7. PW2 is a Homeopathy physician. He deposed that during 2008 he was having an independent villa by name `Homeo Bhavan' at Kuthiravattom. He deposed further that the same was let out to one person by name Kareem and it was occupied by Habeeb Rahman. PW2 knew Habeeb Rahman and he was present on 25.3.2008 when the DRI officers conducted search in `Homeo Bhavan' and seized Heroin from Crl.A.Nos.353 & 394 of 2014 20 Habeeb Rahman. He would admit his signature in Ext.P3 mahazar. PW3, is the Investigating Officer and he was the then Senior Intelligence Officer attached to DRI Regional Unit, Calicut. He would depose that PW1 handed over Habeeb Rahman/accused No.1 in S.C.No.29 of 2008 (NDPS) and the seized articles. He would further depose that he interrogated Habeeb Rahman and recorded his statement (Ext.P5) under Section 67 of the NDPS Act. He would further depose that during such interrogation Habeeb Rahman gave information about two persons who brought the seized narcotic drugs and also about their stay at Hotel Malabar Palace, Calicut. He has also deposed that the statement of the 2nd accused in S.C.No.29 of 2008(NDPS) viz., one Kiran Kumar was recorded by him in Hindi with the help of an officer who knew Hindi and later translated it in English. The said statement of Kiran Kumar was marked as Ext.P6 and its English translation was marked as Ext.P6(a). He also deposed that he recorded the statement of Gurudarshan Singh (A3 in S.C.No.29 of 2008(NDPS)) in English and the same which carried the signature of the said Gurudarshan Singh was marked as Ext.P7. The aforesaid Habeeb Rahman in his statement specifically stated that he had used his two cars for transporting Heroin and that those cars were located at `Homeo Bhavan'. Consequently, they were seized on 27.3.2008. PW3 deposed to the effect that on search of those cars an Crl.A.Nos.353 & 394 of 2014 21 incriminating paper with scribblings of a Bank account number and Pan number (Ext.P10) was seized. In Ext.P10 the name of Rajesh Bharadwaj and Account No.632205006014 and Pan No. ADL PB 8009 L were noted. Ext.P11 mahazar was prepared on 27.3.2008 in respect of the seizure of the two cars as per Ext.P10. On 28.3.2008 PW3 filed a report under Section 57 of the NDPS Act to the Assistant Director, DRI, Calicut regarding the arrest and seizure and it contained his signature. PW3 deposed that Habeeb Rahman in Ext.P5 statement stated that on two occasions he had paid the price of Heroin purchased by him by effecting remittance on an account through ICICI Bank Branch at Calicut. Based on the said statement PW3 conducted an investigation and thereupon it was ascertained that such remittances were made in the account number shown in Ext.P10 slip and it was one maintained at ICICI Bank. PW5, the Branch Manager of ICICI Bank, Calicut produced before him copy of the account statement pertaining to the account number shown in Ext.P10 which revealed the name of the account holder as Mr.Rajesh Bhardwaj, H.No.2357, Sector 22-C, Chandigarh, India, Pin 160022. The copy of the account statement was marked as Ext.P12. The Manager of ICICI Bank, Calicut had also produced before him two pay-in-slips viz., Exts.P13 and P14 dated 31.1.2008 and 3.3.2008 respectively. As per Ext.P13 a remittance of 2,00,000/- was made and under Ext.P14 Crl.A.Nos.353 & 394 of 2014 22 4,00,000/- was remitted. He would depose that further investigation conducted in Chandigarh enabled him to find the 2nd accused viz., the appellant in the former appeal who is the account holder of the current account concerned. Thereupon, PW3 issued summons on 25.4.2008 requiring him to appear before him on 26.4.2008 at Central Excise Commissioner Office at Chandigarh. Ext.P15 is the said summons and the same was not honoured though it was acknowledged by one Santhiswaroop Bhardwaj, the father of Rajesh Bhardwaj. Ext.P15(a) is the signature affixed by him. PW3 deposed further that thereupon, Ext.P16 summons was issued to the second accused on 30.4.2008 requiring him to appear before him on 15.5.2008 at his office in Calicut. He would further depose that the 2nd accused thereupon sent a letter stating to the effect that his health conditions were not conducive for undertaking a travel to Kerala and he expressed his willingness to appear before any officer at Chandigarh. In the said letter viz., Ext.P17 he had stated that the money remitted in his account mentioned above was deposited as per the instructions of one Naresh Malhothra of Calcutta. He gave the mobile number of the said Naresh Malhotra as 9339573377. He would further depose that as part of the investigation the DRI office at Calcutta was requested to record the statement of Naresh Malhothra and consequently on 20.6.2008 the Senior Intelligence Crl.A.Nos.353 & 394 of 2014 23 Officer attached to DRI, Calcutta recorded Ext.P19 statement from Naresh Malhothra and forwarded the same to PW3. In Ext.P19 Naresh Malhothra denied of having any acquaintance with Habeeb Rahman and further stated that he had not instructed anyone to deposit any amount in the Rajesh Bhardwaj's account from Calicut. Subsequently, after obtaining permission of the trial court Ext.P20 statement was recorded from Habeeb Rahman/first accused in S.C.No.29 of 2008(NDPS). In the said statement Habeeb Rahman also denied acquaintance with Naresh Malhothra. The said statement was recorded from District Jail, Calicut in the presence of Jail authorities. He would further depose that Exts.P13, P14 and the paper slip marked as Ext.P10 were sent to Government Examiner at Hyderabad along with sample handwritings obtained from Habeeb Rahman and Ext.P21 report was obtained thereon. As per Ext.P21, the Assistant Government Examiner opined that those documents were having common authorship.
8. PW4 was working as Assistant Director for Revenue Intelligence at Calicut. He deposed that PW3 was working under him as Senior Intelligence Officer during the said period. He also deposed that on 25.12.2011 PW3 had submitted Ext.P33 report under Section 57 of the NDPS Act to him and he had acknowledged the same on the same Crl.A.Nos.353 & 394 of 2014 24 day. PW5 is the Bank Manager of Chandigarh Branch of ICICI Bank from August, 2008 to February, 2012. She deposed that she received Ext.P27 letter from DRI asking for bank statement in respect of Account No.632205006014 stood in the name of Rajesh Bharadwaj and also the account opening form. PW5 deposed that the Bank statement of the account and the account opening form details and two cheques amounting to 5,00,000/- each were handed over to the Investigating Officer. She would also depose that another letter was issued by her subordinate to the effect that the authorised signatories in respect of the said account are Messrs.Naresh Garg and Rajesh Bharadwaj. She would also depose that the said account was opened in the year 2006 and she was the Branch Manager of Chandigarh Branch from 2010 to 2012 and she had provided Ext.P29 series of documents which are uploaded in the system. She deposed that the said documents would reveal that any one of Mr.Naresh Garg and Mr.Rajesh Bharadwaj could operate the account going by Ext.P28. She would also depose that going by Ext.P29 series of cheques, 5,00,000/- each were withdrawn on 28.1.2008. She also deposed that such details were provided as per the request from DRI, Calicut. During the cross examination she deposed that all those documents were certified. During cross examination she would further depose that Account No.632205006014 was opened by Rajesh Crl.A.Nos.353 & 394 of 2014 25 Bharadwaj on 12.4.2006 and Naresh Garg was made as the 2nd authorised signatory in respect of the account later as per the Bank records. She would also depose that going by the documents Rajesh Bharadwaj is the account holder and Naresh Garg was never a joint holder of the said account. During re-examination PW5 deposed that the two cheques for 5,00,000/- each was certified in accordance with Bankers Book of Evidence Act by her subordinate in the office. It is to be noted that though the said two cheques were certified the name of the person certified the same as also his designation and also the seal of the Bank were not there in the said cheques. PW6 was the Branch Manager of ICICI Bank, Calicut where the aforementioned two remittances of 2,00,000/- and 4,00,000/- were made. He would depose that he received a letter from the office of DRI dated 2.4.2008 requiring him for statements of accounts pertaining to Account No.632205006014 from 1.4.2007 to 2.4.2008. He would further depose that upon such receipt he furnished the details of the account statement to the office of the DRI with a covering letter dated 2.4.2008 and along with that he enclosed Exts.P13 and P14 pay-in-slips. PW6 deposed further that for depositing cash in current account from an outstation branch no particular procedure is prescribed and anybody could deposit money in a current account without the consent of the account holder Crl.A.Nos.353 & 394 of 2014 26 concerned. PW6 did not know whether specific consent of the second accused was taken by the depositor while depositing money covered by Exts.P13 and P14 pay-in-slips. He would further depose that an account holder might not become aware of cash transaction until it was communicated to him through SMS, E-mail or statement of accounts. He also deposed that no procedure is prevalent in the bank to take consent or prior permission of the account holder in the matter of effecting deposit in the current account of the person concerned.
9. PW7 was the then Assistant Government Examiner of questioned documents in the Government of India Laboratory under the Ministry of Home Affairs at Hyderabad. He had undergone three years in-service training in the field of handwriting identification and detection of forgery and allied subjects. According to him, he received Exts.P10, P13 and P14 together with sample handwritings obtained from Habeeb Rahman, in five sealed covers, sent through a special messenger of DRI. He deposed that the disputed documents included a piece of paper noting down some figures and carrying English writings, pay-in-slips of ICICI Bank for Rupees Two Lakhs dated 31.1.2008 and for Rupees Four Lakhs dated 3.3.2008, specimen writings of one Mr.Habeeb Rahman dated 9.6.2008 and two statements dated 26.3.2008 and 9.6.2008. He Crl.A.Nos.353 & 394 of 2014 27 would depose further that the disputed writings were encircled with red pencil with markings as Q1 to Q4, Q 2/1 and that the standard writings of Mr.Habeeb Rahman were encircled in blue pencil with markings as S1 to S13 and A1 to A78. On careful examination with necessary scientific aid he observed similarities in writing habits, both general and individual. He deposed that the general writing habits were noted in paragraph No.1 and individual writing habits were noted in paragraph No.2, of his reasons for opinion. Through Ext.P21 report he opined that he could not find any fundamental difference in writing habits between the questioned writings marked as Q1 to Q4 and standard writings marked as S1 to S13 and A1 to A78. He deposed in tune with his opinion in Ext.P21 and he identified Ext.P21 report. Further he deposed that all the writing characteristic features as observed in the questioned writing marked as Q 2/1 could not be accounted for collectively from the standard supplied and therefore, he could not express a definite opinion as regards the authorship of the questioned writing marked as Q 2/1. He deposed that Ext.P21 contained his signature as also that of Sri.P.Venugopala Rao, Assistant Government Examiner of questioned documents who verified his opinion after examining the original documents. He deposed further that the original documents along with his opinion were returned to the Court under seal through Mr.S.Radhesh, Intelligence Officer, DRI, Cochin Crl.A.Nos.353 & 394 of 2014 28 who was the special messenger deputed by the Court for collecting them.
10. PW9 was the then Inspector, Central Excise, Ludhiana formerly Intelligence Officer, DRI, Ludhiana. He deposed that for executing Ext.P37 non-bailable warrant of arrest of Rajesh Bharadwaj, S/o.Shanti Swaroop Bharadwaj, House No.2357, Sector 22-C, Chandigarh he along with a team of DRI officers went to the house on 24.7.2011 and arrested him from there under Ext.P38 arrest memo at 6.30 p.m. His arrest was intimated to the police station concerned vide Ext.P40 and also got him medically examined from General Hospital, Section-16, Chandigarh. Thereafter, he produced the second accused- Rajesh Bharadwaj before the Magistrate, Section 17, Chandigarh and the intimation of his arrest addressed to his wife, Smt.Sushama Bharadwaj was handed over to his Advocate. On obtaining 5 days transit remand the second accused was produced before the trial court. PW9 identified the arrestee. PW10, the then Senior Intelligence Officer, DRI, Ludhiana deposed that Ext.P45 report under Section 57 of the NDPS Act was given to him by PW9 in respect of the arrest of the second accused.
11. DW1 Sanjeev Meman is a practicing Chartered Accountant. He deposed that the second accused had been his client for Crl.A.Nos.353 & 394 of 2014 29 the past 15 years or thereabouts and that he had been auditing his books of account and filing income tax returns, both personal and business. He deposed in detail regarding the business of the second accused including liquor business on the strength of L-2 licence. He deposed that for the purpose of conducting such business the second accused opened five current accounts including Account No.632205006014 with ICICI Bank, Chandigarh Branch and further that those business accounts were operated by the third accused who was the authorised signatory in respect all the accounts. He has also deposed that as per record the total turn over of the proprietorship by the name M/s.Rajesh Bharadwaj was Rs.34.01 crores for the financial year 2007- 2008 viz., from 1.4.2007 to 31.3.2008. He would also depose that during the course of business transactions many payments had been received by M/s.Rajesh Bharadwaj by way of deposits in cash in the current Business Account in ICICI Bank as also in other Bank accounts and further that the entire transactions had been duly accounted for and subjected to regular audit under the Income Tax Act and Regulations. He has also deposed to the effect that the Statement of Account, Books of Account and records clearly reflect both cash deposit transactions of 2,00,000/- and 4,00,000/- effected respectively on 31.1.2008 and 3.3.2008, against the sale of liquor and those amounts were also utilised Crl.A.Nos.353 & 394 of 2014 30 towards purchases and expenditure etc. He would further depose that the average purchase per day was 9,00,000/- and the average sales per day was 9.32 lakhs during the financial year 2007-2008. According to DW1, on comparison with the price of liquor in other parts of the country its price in Chandigarh was the cheapest during the relevant period and therefore, several customers from other parts of the country used to purchase liquor from Chandigarh. DW1 denied of having any acquaintance with Naresh Kumar Malhothra of Calcutta.
12. The contention of the 2nd accused that the statement made by him under Section 67 of the NDPS Act contained no incriminating material cannot be countenanced in the light of the evidence on record. The learned counsel for the 2nd accused contended that in Ext.P5 the 2nd accused stated `Instead I sent a letter in which I mentioned that I have received payments from a party in Calicut'. According to the learned counsel, Ext.P17 is the said letter which is dated 12.5.2008. It is the further contention that the Chandigarh party got deposited some amounts due to him in the liquor business dealings through some party at Calicut. But, the Special Public Prosecutor contended that Ext.P16 did not deal with the remittance made in the Calicut Branch of ICICI Bank. Still, despite the receipt of Ext.P16, the 2nd Crl.A.Nos.353 & 394 of 2014 31 accused in Ext.P17 reply referred about the transactions in relation to such remittances. The learned Special Public Prosecutor further contended that this aspect has to be borne in mind while considering the statement in Ext.P25. The learned Senior Counsel appearing for the 2nd accused contended that Ext.P15 dated 25.4.2008 also could not be taken as an incriminating circumstance against the 2nd accused. But, at the same time, it is to be noted that in Exts.P15 and P16 nothing was mentioned about the remittance made by Habeeb Rahman, the first accused in S.C.No.29 of 2008(NDPS) and what was disclosed thereunder was only regarding the factum of arrest of the said Habeeb Rahman with 11 Kgs. of Heroin. The question is what actually prompted the 2nd accused from giving a reply in the manner made as per Ext.P17 explaining the remittance. The question is how he obtained such information ? In this context, it is also to be noted that despite the production of documents relating the business of his firm M/s.Rajesh Bhardwaj the 2nd accused could not establish that the two remittances made in his account were in relation to his liquor business. In this contextual situation it is pertinent to note that the prosecution has succeeded in establishing that Habeeb Rahman who was the first accused in S.C.No.29 of 2008 (NDPS) had effected remittances of 2,00,000/- on 31.1.2008 and 4,00,000/- on 3.3.2008 in the account bearing Crl.A.Nos.353 & 394 of 2014 32 No.632205006014. The evidence of PW6, the Bank Manager of ICICI Bank, Calicut with Exts.P13 and P14 pay-in-slips carrying dated seals would establish the case of the prosecution that on 31.1.2008 and 3.3.2008, remittances of 2,00,000/- and 4,00,000/- respectively were made in the account bearing No.632205006014. Statement under Section 67 of the NDPS Act by Habeeb Rahman would make it clear that it was he who effected such deposits on those dates, on the instruction of one Chottu who is accused No.1 in S.C.No.40 of 2008 (NDPS) towards consideration of Heroin. The evidence of PW1 with contents in MO4 series of packets found in MO1 suit case would establish the fact that Heroin was found from the possession of Habeeb Rahman. PW2 who is a Homeopathy physician is the witness to Ext.P3 mahazar prepared in regard to its seizure. He would admit his signature in Ext.P3 and also categorically admitted the factum of witnessing the seizure of Heroin on 25.3.2008 by DRI Officers from Habeeb Rahman. PW5, the Bank Manager of Chandigarh Branch of ICICI Bank gave evidence which would clearly establish the fact that Account No.632205006014 is that of the second accused, the appellant in the former appeal. It is to be noted that during the examination under Section 313, Cr.P.C. Rajesh Bharadwaj, the 2nd accused did not disown the fact that it is the account maintained by him and in fact, his case also was that it is his current account. The 2nd accused Crl.A.Nos.353 & 394 of 2014 33 who was conducting liquor business on the strength of L-2 licence certainly could not be heard to contend that the details regarding the remittance made into his account maintained in connection with the liquor business by a party on a particular day should be established by the prosecution when the evidence adduced by the prosecution was sufficient to establish their case. The consistent case of the 2nd accused as revealed from his statement and stand taken at the time of 313, Cr.P.C. examination would reveal that his case was that such remittances were made in relation to his liquor business. When that be so, being a licencee who is bound to keep records in the matter of liquor business has to establish on the strength of records that the said amounts were deposited either towards supply of definite quantity of IMFL or for its supply in advance. He cannot be heard to blame the prosecution for not establishing his case as those aspects, if true to facts, are bound to be with him and therefore, easy for him to establish. If the said appellant got no link or connection with Habeeb Rahman how Habeeb Rahman got Account Number, Pan Number as also Mobile Phone Number and why he happened to make such huge remittances viz., 2,00,000/- on 31.1.2008 and 4,00,000/- on 3.3.2008 in his account ? In other words, in such circumstances, on the failure of the 2nd accused to tender evidence to defeat the conclusion which could be arrived at from the evidence of the Crl.A.Nos.353 & 394 of 2014 34 prosecution especially, even after taking up a specific defence while being examined under Section 313, Cr.P.C. is a matter which would go against him. True that, the punishment in respect of offence under the NDPS Act is stringent and in such circumstances, the standard of proof required to establish the offence is also of higher degree. The learned Senior Counsel appearing for the 2nd accused contended that the finding regarding conspiracy was arrived at by the trial court with no evidence. It was contended that Habeeb Rahman, the first accused in S.C.No.29 of 2008(NDPS) after trial was not convicted for the offence of conspiracy. The other person allegedly involved in the conspiracy viz., Chottu was not traced out. The learned counsel in the said circumstances contended that it is un-understable as to with whom the 2nd accused conspired. In this context, it is to be noted that conspiracy is an agreement of two or more persons to do a legal act by an illegal means. In short, a joint intend is not necessary to conspiracy. But, the prosecution need not necessarily prove that the preparators expressly agreed to do and/or caused to be done the illegal act and the agreement may be proved by necessary implication. See the decision of the Hon'ble Apex Court in CBI/SIT v. Nalini (1995 (5) Supreme 50). The learned Senior Counsel also attempted to support the aforesaid contentions citing the decision in Topandas v. State of Bombay (AIR 1956 SC 33). In that Crl.A.Nos.353 & 394 of 2014 35 decision the Hon'ble Apex Court held that it is a principle of common sense that one person alone can never be held guilt of criminal conspiracy for the simple reason that he cannot himself conspire. The circumstances which were brought out by the prosecution discussed above and also elaborately discussed in the impugned judgment would reveal that by necessary implications the prosecution had succeeded to show the conspiracy aspect as well. When once the prosecution has succeeded in showing that Habeeb Rahman made deposits of 2,00,000/- and 4,00,000/- on 31.1.2008 and 3.3.2008 in the account maintained by the 2nd accused Rajesh Bhardwaj pursuant to the transportation of contraband from room No.301 of Hotel Malabar Palace on 25.5.2008 and also from the possession of Habeeb Rahman (A1) in "Homeo Bhavan", Kuthiravattam, it is sufficient to reach a conclusion that there was criminal conspiracy between Habeeb Rahman and the 2nd accused Rajesh Bhardwaj. The reasoning of the trial court to arrive at such conclusion after a very detailed discussion of evidence, needs no appellate interference and in fact, I do not find any reason whatsoever, for not concurring with them. In such circumstances, the contention of the learned counsel cannot be sustained. In the light of the evidence on record which was appreciated hereinbefore and appreciated by the trial court I do not find any substance in the contention that the conclusions Crl.A.Nos.353 & 394 of 2014 36 and findings are arrived at by the trial court based on the evidence on record for the purpose of arriving at the guilt of the 2nd accused, are outcome of perverse appreciation of the evidence. The contention of the appellant in the former appeal that the Investigating Officer had not conducted investigation with regard to his liquor business is absolutely bereft of any merit or basis as an accused cannot dictate the manner in which investigation is/was, to be conducted especially, when his case was that the remittances were made in connection with his own liquor business. If it is true to facts, he could have and should have established those facts to escape the irresistible conclusion which could be drawn and in fact, drawn based on the evidence on record. The evidence on record discussed above would reveal that the trial court rightly concluded that the prosecution had succeeded in proving the guilt of the 2nd accused under Section 29 read with Section 21(C), under Section 8A(C) read with Section 21(C), under Section 27A and under Section 28 read with Section 21(C) of the NDPS Act. But, at the same time, taking into account the fact that the conspiracy statement was retracted by the 3rd accused and the mere fact that he was operating the accounts of the 2nd accused cannot be a reason for attributing him of knowledge regarding the source of deposits effected against the account maintained by the 2nd accused. There is absolute absence of any evidence to connect the 3rd Crl.A.Nos.353 & 394 of 2014 37 accused viz., the appellant in the latter appeal with the shady transaction involved in this case. In the absence of cogent evidence merely because the 3rd accused was operating the accounts that too, connected with the liquor business and that he had issued two cheques for 5,00,000/- each on a day prior to 31.1.2008 or 3.3.2008 cannot be a reason to conclude conclusively that he played a role in the commission of the offence. I am of the view that in the light of the evidence on record he is entitled to get the benefit of doubt. I do not find any reason to sustain the conviction and sentence imposed on the 3rd accused, the appellant in the latter appeal.
13. In the result, Crl.A.No.353 of 2014 This appeal is dismissed. The conviction entered and the sentences imposed against the 2nd accused in S.C.No.40 of 2008(NDPS) on the files of the Court of the Special Judge (NDPS Act Cases), Vatakara are confirmed.
Crl.A.No.394 of 2014
This appeal is allowed. The impugned judgment in S.C.No. 40 of 2008 (NDPS) on the files of the Court of the Special Judge (NDPS Act Cases), Vatakara to the extent it entered conviction against and Crl.A.Nos.353 & 394 of 2014 38 sentences imposed on the 3rd accused/the appellant herein stands set aside and consequently, he is acquitted. In case detention of the appellant is not warranted in connection with any other case, he shall be set at liberty forthwith.
Sd/-
C.T.RAVIKUMAR Judge TKS