Delhi District Court
Sc No.: 16A/10 Dri vs . Bachitter Singh & Anr. on 19 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 Rajpal Singh, Intelligence Officer
V E R S U S
1. Bachitter Singh
S/o Late Sh Harbans Singh
R/o Village Bhilla, PO Kanji
District Kapurthala
Punjab.
2. Niyamat Masih
S/o late Sh Hajara Masih
R/o Village Lodhipur, PO Lodhipur
District Kapurthala
Punjab.
Both presently lodged in
Central Jail, Delhi.
SC No.: 16A/10
U/S : 21/25/29 NDPS Act
Computer ID No.: 02403R023332010
Date of institution : 14.07.2010
Date of reserving judgment : 17.07.2014
Date of pronouncement : 19.07.2014
Decision : Convicted
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 SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
2after referred to as DRI) through Sh Rajpal Singh, Intelligence Officer, against the accused persons for commission of the offences punishable U/S 21, 25 and 29 of the NDPS Act, 1985.
2. The facts of the case, in brief, are that on 19.01.2010 PW8 Sh Madan Singh had received a specific information at around 5:30 PM that two persons of Indian origin would carry some narcotic drugs on their person or concealed in a white colour Tata Sumo vehicle bearing registration number HR 06D 1401 and will enter Delhi through the Singhu Border between 10:00 AM to 10:30 AM on 20.01.2010. PW1 had reduced the said information into writing immediately and had submitted it to his official superior, i.e. PW3 Sh Atul Handa, who, after discussing the said information with PW8, directed the IO/PW1 Sh Vinod Kumar to take immediate steps for the search and seizure under the provisions of the NDPS Act.
3. It is alleged that in the morning of 20.01.2010, the DRI officers requested two public witnesses Sh Ajay Kumar and Sh Pramod Kumar to witness the proceedings and the above two public witnesses presented themselves in the office of DRI, located at 7th Floor in D-Block, IP Bhawan, IP Estate, New Delhi at around 8:30 AM. Both the above witnesses were apprised about the above specific information and a team of the DRI officers led by the IO/PW1 and accompanied by the above two public witnesses had then rushed to the above SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
3spot and reached there at around 9:45 AM. A surveillance was maintained on the vehicles entering into Delhi from the above border and at around 10:50 AM, the DRI officers noticed a white colour Tata Sumo entering into Delhi and it was bearing the above registration number. The said vehicle was seen to be occupied by two persons and was signaled to stop, but the driver of the vehicle did not stop it and attempted to flee. The DRI officers, alongwith the public witnesses, had chased the said vehicle and it was intercepted after a chase of about 1 KM and the officers had introduced themselves to the occupants of the vehicle, by showing their identity cards. On enquiry, the identity of the person driving the said vehicle was revealed as the accused no. 1 Bachitter Singh and of the other person sitting on the other front seat of the said vehicle to be the accused no. 2 Niyamat Masih, both residents of different villages in District Kapurthala, Punjab. The public witnesses were also introduced to both the accused.
4. It is further alleged that then, in the presence of the public witnesses, both the accused were asked as to whether they were carrying any narcotic drugs on their person or in their above vehicle, to which both of the them replied in negative. They were then told about the above specific information available with the DRI officers and were also told that in view of the said information, their search was required to be conducted and they were again asked to declare as to whether they SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
4were carrying any narcotic drugs on their person or in their above vehicle and they had again replied in negative. During enquiry, the accused no. 1 had also disclosed that he could read, write and understand little bit of English language, but he was very slow; he could also read and understand Hindi language, but he can read, write and understand the Punjabi language well. The accused no. 2 had disclosed that being illiterate, he could not read or write in any language, but he could speak and understand the Hindi language.
5. Thereafter, the IO/PW1 had prepared and served the written notices U/S 50 of the NDPS Act Ex. PW1/C and PW1/B respectively upon the accused persons, while explaining to them that it was their legal right to get their persons and the vehicle searched before a Magistrate or a Gazetted Officer, but in reply to the said notices, both the accused had stated that their persons and the above vehicle may be searched before a Gazetted Officer at DRI office. The above reply of accused no. 1 was written by the accused himself in Punjabi language on the above notice and on the request of accused no. 2, the accused no. 1 also wrote the reply of accused no. 2 on his notice in the same language and also explained it to accused no. 2 as well as to the IO/PW1. Thereafter, both the accused, alongwith the public witnesses and the above vehicle, were escorted to the parking area of the above office of DRI for the detailed search proceedings.
SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
56. After reaching there, PW4 Sh B. K. Banerjee, a Gazetted Officer of DRI, was called and introduced with the accused and the public witnesses and was also apprised about the entire facts and the service of notices U/S 50 of the NDPS Act upon both the accused persons and the replies given by them. The personal search of both the accused persons was then conducted in the presence of the public witnesses and PW4, but nothing incriminating was recovered in the said search. Thereafter, the search of the above Tata Sumo found in possession of the accused was also conducted there and the same resulted into the recovery of 14 heat sealed transparent polythene packets therefrom, which were found concealed in the door panels of the said vehicle. Out of the above packets, 6 packets were found concealed in the front door panels and 8 packets in the panel of the rear door of the said vehicle. Apart from the above, photocopy of a ration card in the name of accused no. 1 and some other documents (three pages) pertaining to the above vehicle were also recovered from the dashboard of the said vehicle, which were resumed for the purposes of investigation and were signed by both the accused, the public witnesses, PW4 as well as the IO/PW1 himself. The above recovered 14 packets and documents, alongwith the public witnesses, the accused persons, were then taken to the 7th Floor office of the DRI in the said building for the detailed examination of the said packets and further proceedings.
SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
67. On reaching there, the above packets were opened one by one and each packet was found to contain a cloth bag having some rubber stamp markings, which, on opening, were further found to contain a transparent polythene each having some white colour granular substance giving a sharp pungent smell. The above recovered packets were marked as X1 to X14 for the purposes of identification and it was observed that the above rubber stamp markings found on the cloth of the said packets were of three different patterns and accordingly, the recovered packets were given markings as X1 to X7, X8 to X11 and X12 to X14, as per the similarity of their rubber stamp markings. A small quantity of the above substance found in these packets was tested separately with the help of a Narcotic Drug Detection Kit and the same gave positive results for heroin and the gross weight of the above 14 packets came to be 14.551 KG and the net weight of the heroin contained therein to be 14.230 KG and the above recovered heroin, alongwith its packings as well as the above Tata Sumo vehicle and the documents recovered therefrom, were seized for violation of the provisions of the NDPS Act.
8. Thereafter, the IO/PW1 had drawn two representative samples of 5 Grams each from the above packets and these samples were kept in separate small zip locked polythene packets and same were numbered as X1-A to X14-A and X1-B to X14-B, corresponding to the markings given to the original packets, and these polythenes SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
7containing the above A and B batches of samples were then kept into separate paper envelopes, which were also given same markings and sealed with the DRI seal no. 10 over a paper slip pasted on each of these envelopes and bearing the dated signatures of the accused persons, the public witnesses as well as of the IO/PW1. The remaining heroin of the above recovered packets was put back in the same packings and these packets were also converted into cloth packets and were marked as X1 to X14, as per the markings of the original packets, and sealed in the same manner. These sealed packets of remaining heroin were then kept into a steel trunk, which was wrapped with a cloth and converted into a sealed parcel in the same manner. The IO/PW1 had also drawn a detailed panchnama Ex. PW1/D regarding the above proceedings and photocopies of the rubber stamp markings found on the cloth of the said packets, which are Ex. PW1/D1 to Ex. PW1/D14 on record, and the above documents recovered from the said vehicle, which are Ex. PW1/D15 to PW1/D18 on record, were all made as annexures to the said panchnama and the contents of the panchnama were explained to both the accused and the public witnesses and the panchnama and the above documents were also signed/thumb marked by all of them, besides the IO/PW1. Test memos were also filled in triplicate, including the memos Ex. PW1/E and PW1/U, and facsimiles of the above seal of DRI were also affixed on the panchnama as well as on the test memos.
9. It is further alleged that in response to the SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
8summons Ex. PW1/G and PW1/J respectively served upon the accused persons U/S 67 of the NDPS Act, they had tendered their voluntary statements Ex. PW1/H (Hindi translated version thereof is Ex. PW1/H1) and PW1/K respectively before the IO/PW1 on the same day, i.e. 20.01.2010, and in their above statements, besides disclosing their various personal and family details, they both had admitted their interception by the DRI officers from the above place, alongwith their above vehicle and in the presence of two panch witnesses, and also all the subsequent proceedings of search and seizure etc conducted regarding the above 14 packets of heroin recovered from their said vehicle. In almost identical statements, they have also disclosed that they both had came to know each other about 4-5 months back when they met at a 'Dargah of Peer Baba' situated in the village of accused no. 2, where the accused no. 1 used to visit oftenly. They have also disclosed therein, inter-alia, that the accused no. 2 was occasionally using the above Tata Sumo owned by accused no. 1 for some religious trips and personal purposes and as per accused no. 1, he was a driver by profession and had purchased the above Sumo in the name of his wife Smt Manjeet Kaur, from one Sh Sarwan Singh, a resident of another village in his District Kapurthala, Punjab, for a total consideration of Rs. 79,000/-, out of which Rs. 40,000/- were contributed by him and the rest of the amount was obtained as loan from a bank. He (accused no. 1) has also disclosed therein that he was earning about Rs. 9000-10000/- per month from SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
9the said vehicle, out of which he was paying Rs. 3000/- towards the said loan, and seeing his poor financial condition, the accused no. 2 had told him that he (accused no. 2) will get him (accused no. 1) some good amount of money.
10. The accused no. 2 has also disclosed in his above statement that he was working as a labourer on a 'Bhattha' (Brick-kiln) and earning only Rs. 3000/- per month and about 1 year back, he met with a person named Sharma @ Billa, who met with some accident in front of his Bhattha while going on a tractor trolley and was helped in providing some treatment by him, and Sharma @ Billa often met him thereafter, whenever he (Sharma @ Billa) visited the above Bhattha and also helped him (accused no. 2) with some money. He has further disclosed therein that on 19.01.2010 at around 9:30/10:30 AM, Sharma @ Billa had met him at his above Bhattha and gave him a proposal that he will be paid Rs. 20,000/- if he (accused no. 2) delivers some narcotic drugs at a fixed place in Delhi and he was also told to arrange a vehicle for the same by 4:00 PM on that day, to which the accused agreed due to his poverty.
11. He (the accused no. 2) has also disclosed in his above statement that thereafter, he had taken the above Tata Sumo from accused no. 1 at around 4:00 PM on that day, on the pretext of some personal work, and brought it to his Bhattha and after sometime Sharma @ SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
10Billa reached there and had gone, alongwith him, in the said vehicle to a deserted place and after leaving the accused there, Sharma @ Billa took the said vehicle and returned back after sometime with the above vehicle and 14 packets of some narcotic drugs. The accused was then shown the above packets by Sharma @ Billa and was asked to conceal the same in the vehicle and thereafter, the accused had concealed the said packets as per the instructions of Sharma @ Billa, in the door panels of the said vehicle, and was then told by Sharma @ Billa that these packets were to be delivered by him on the next day, i.e. 20.01.2010, to one person in the parking area of Gurudwara, Majnu Ka Tilla and the said person would introduce himself as one Kala, with reference of Sharma @ Billa, and the accused was instructed to reach at the above place by 11:30 AM/12:00 Noon on 20.01.2010. He (accused no. 2) has further disclosed in his above statement that then he had taken the above vehicle and reached at the house of accused no. 1 at around 7:15 PM and told the accused no. 1 about the said packets of narcotic drugs and even accused no. 1 in his statement admits to have been told and shown the said concealed packets by accused no. 2.
12. In further depositions made in their above statements, both the accused have also stated that the accused no. 2 had offered an amount of Rs. 10,000/- to accused no. 1 and further asked him (accused no. 1) to accompany him, i.e. the accused no. 2, for delivery of SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
11the above packets of narcotic drugs, to which the accused no. 1 agreed out of greed. They both had then left their above place in Punjab at around 9:30/10:00 PM on 19.01.2010 and reached at the above place, i.e. Singhu Border (Delhi-Haryana Border), at around 10:45 AM, from where they both were apprehended by the DRI officers with the said vehicle. The accused no. 2 has also given some description of the above Sharma @ Billa in his above statement Ex. PW1/K. The above statement Ex. PW1/H of accused no. 1 was written by the said accused himself in Punjabi language and the statement Ex. PW1/K of accused no. 2 was reduced into writing in Hindi language by PW11 Sh Vinod Badola.
13. Since, both the accused persons appeared to have committed the offences punishable U/S 21, 25 and 29 of the NDPS Act, they both were arrested in this case on 21.01.2010 vide arrest memos Ex. PW1/L and PW1/M respectively. They were also got medically examined from RML Hospital vide MLCs Ex. PW14/A and PW14/B and on applications Ex. PW1/N and PW1/O respectively on the same day and intimations Ex. PW4/A and PW4/B were also given to their family members about their arrest in this case through telegram on the day of their arrest itself. One report U/S 57 of the NDPS Act Ex. PW1/T was also sent by the IO/PW1 to PW4 and a set of 14 sealed sample parcels of this case was also got deposited with the CRCL, alongwith the duplicate test memos and vide forwarding letter Ex. PW6/A and against acknowledgment Ex. PW2/B SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
12issued by the CRCL, through PW10 Sh Jagdish Rai and the sealed parcel of the case property deposited with the Valuable Godown of the New Customs House through PW13 Sh Ajay Bhasin vide deposit memo Ex. PW5/A on that day itself, i.e. 21.01.2010.
14. The residential premises of both the accused persons were also got searched in their native villages in Punjab on 21.01.2010, through the officers of DRI, Amritsar, but nothing incriminating was recovered in the said searches. In response to the summons Ex. PW1/P and PW1/Q dated 20.01.2010 served upon the above two public witnesses, they also appeared before the IO/PW1 on 22.01.2010 and tendered their statements U/S 67 of the NDPS Act regarding their participation in the above proceedings. Vide the test report of the CRCL Ex. PW2/A dated 11.02.2010 received subsequently, which is also per-se admissible in evidence U/S 293 Cr.P.C., the above 14 samples sent for analysis were opined to be positive for the presence of diacetylmorphine (heroin) and having a purity percentage ranging between 62.42% to 86.0%. On conclusion of the proceedings and after completing the certain other formalities of investigation, a complaint for commission of the above offences was ultimately prepared and filed against the accused persons in this court.
15. The complaint was filed against the accused persons in this court on 14.07.2010 and cognizance of the SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
13above offences was taken on the same day. A prima facie case for commission of the offences punishable U/S 21(c), 25 and 29 of the NDPS Act was also found to be made out against the accused persons vide order dated 16.08.2010 of this court and charges for the above said offences were framed against the accused persons on the same day.
16. The prosecution in support of its case has examined on record total 14 witnesses and the names and the purpose of examination of the above witnesses is being stated herein below:-
17. PW1 Sh Vinod Kumar, an Intelligence Officer of DRI, is the main investigating officer of this case and he was heading the above raiding team of DRI, which had apprehended the accused persons 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 persons as well as the case property.
18. PW2 Sh R. P. Singh, is the concerned Chemical Examiner of CRCL in whose presence and under whose guidance and supervision, the above 14 set of samples of Batch A was taken out of the strong room of the above laboratory on 01.02.2010 by his subordinate Sh A. K. Maurya, Assistant Chemical Examiner, and was put on SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
14testing, which continued till 08.02.2010 and was carried out with the assistance of Ms Aradhana Sharma, Chemical Assistant. This witness has also given the test report Ex. PW2/A of the said samples, alongwith Sh A. K. Maurya, vide which the samples were found positive for heroin. He has proved the said report and also identified the signatures of Sh A. K. Maurya in the short analysis report given in Section-II of the test memo Ex. PW1/U of the said samples and also of Dr Vinod Kumar, Chemical Assistant, who had received the above samples on 21.01.2010 in CRCL vide the acknowledgment Ex. PW2/B.
19. PW3 Sh Atul Handa, Deputy Director of DRI, is the concerned officer to whom the above secret information Ex. PW1/A was put up by Sh Madan Singh and who had given the directions for seizure of the above contraband substance. He also claims to have constituted the above team of officers for the said seizure.
20. PW4 Sh B. K. Banerjee, an Appraiser of DRI, is the concerned Gazetted Officer in whose presence the accused and their above vehicle was searched in the parking area of DRI and he is a witness of the recovery of the above 14 packets of heroin from the said vehicle and the above documents from the dashboard of the vehicle. He also claims to be present in the detailed examination of the said packets, weighment as well as the sampling and sealing process of the above parcels. Prior to this, he had also issued the above seal of DRI to the SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
15IO/PW1 vide entry Ex. PW1/F of the seal movement register on the above day of seizure and the same was returned back to him on that day itself. The report U/S 57 of the NDPS Act Ex. PW1/T was also submitted to him by the IO/PW1 and he had also sent the above telegrams about the arrest of the accused persons to their family members.
21. PW5 Sh Lakhi Ram is the In-charge of the Valuable Godown, New Customs House at the relevant time and he was entrusted with the sealed parcel of the case property of this case by Sh Ajay Bhasin on 21.01.2010 and deposited it in the said godown. He has proved his endorsement made in this regard on the deposit memo Ex. PW5/A and further the entry Ex. PW5/B made by him in the Valuable Godown register.
22. PW6 Sh K. K. Sood, the then Deputy Director of DRI, was entrusted with the sealed parcels of the samples and case property of this case, alongwith the test memos, by the IO/PW1 for safe custody, on completion of the panchnama proceedings. On 21.01.2010, he had got deposited one set of the sample parcels with the CRCL, through Sh Jagdish Rai, vide forwarding letter Ex. PW6/A and was shown the acknowledgment of their deposit Ex. PW2/B by Sh Jagdish Rai. He also got the sealed parcel of the case property deposited in the Valuable Godown through Sh Ajay Bhasin on the same day and countersigned the above deposit memo thereof Ex. PW5/A. Subsequently, he had also sent some follow up letter to DRI, Amritsar, SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
16received reply thereof and further received the CRCL report on the test memo Ex. PW1/U and the remnants of the above samples, which he handed over to the IO/PW1.
23. PW7 Sh Rajpal Singh, an Intelligence Officer of DRI, claims to be a part of the raiding team which had apprehended the accused persons from the above place and he has also broadly deposed on the above lines of the prosecution story, but he claims that he was present and had joined the proceedings only till the point when the above recovered packets were taken to their 7th Floor office for the detailed search proceedings and thereafter, he was assigned some other official duties. He was also entrusted with the case file subsequently on transfer of the IO/PW1 and after completing the investigation, he also filed this complaint Ex. PW7/A against the accused persons in this court.
24. PW8 Sh Madan Singh, Senior Intelligence Officer, is the person who had received the above information, reduced it into writing as Ex. PW1/A and had put up it before Sh Atul Handa/PW3.
25. PW9 Sh Punjab Singh, is the then Senior Tax Assistant of DRI and he is a witness to the above statement U/S 67 of the NDPS Act Ex. PW1/H made by accused no. 1 in Punjabi language and had translated it in Hindi as Ex. PW1/H1 and further translated and narrated its contents to the IO/PW1.
SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
1726. PW10 Sh Jagdish Rai, is the then Stenographer of DRI, who had deposited the above sample parcels, alongwith the duplicate test memos with the CRCL on 21.01.2010, vide forwarding letter Ex. PW6/A and against acknowledgment Ex. PW2/B issued by the CRCL.
27. PW11 Sh Vinod Badola was working as a peon in the above office of DRI and he is the person, who had reduced the above statement U/S 67 of the NDPS Act Ex. PW1/K of accused no. 2 in writing in Hindi language, on the request of the IO/PW1, as the accused was not able to write the same.
28. PW12 Sh Vinod Kumar, is the then Chemical Assistant of DRI and he received the above sample parcels etc of this case on 21.01.2010 and issued the above acknowledgment Ex. PW2/B.
29. PW13 Sh Ajay Bhasin, is also an Intelligence Officer of DRI and he is also a member of the above raiding team of DRI, but, unlike PW7 Sh Rajpal Singh, he claims that he was present in the entire search seizure and sealing work. He also deposited the above sealed parcel of case property in the Valuable Godown on 21.01.2010 vide deposit memo Ex. PW5/A.
30. PW14 Sh Narendra Arya has proved the MLCs Ex. PW14/A and Ex. PW14/B respectively of accused no. 1 and 2, as he was able to identify the handwriting and SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
18signatures of Dr Parvez A. Shah and Dr Neeraj Mishra respectively respectively, who prepared the said MLCs and had since left the hospital.
31. After the conclusion of the evidence of the prosecution, all the incriminating evidence brought on record by the prosecution was put to both the accused in their statements recorded U/S 313 Cr.P.C., but they both have denied the same either to be incorrect or beyond their knowledge. In almost identical statements, they both have claimed that no packets of heroin were recovered from their possession or from the above vehicle no. HR 06D 1401 make Tata Sumo owned by accused no. 1 and the entire case and story of the prosecution is false. It is stated by them that, in-fact, they both were picked up by some officers in plain cloths on 19.01.2010 at around 4:35 PM from a tea shop on the main highway at Pipli, Haryana and these officers reached there in 3-4 vehicles and the above vehicle of the accused was also intercepted from that place. It is further claimed by them that no packets of heroin or other contraband substance was in the above vehicle of accused no. 1 at that time and the said vehicle was being plied by accused no. 1 as a taxi from a taxi stand named New Dashmesh Taxi Stand at Kapurthala, Punjab. Though, they both have admitted of having known to each other prior to this case, but it is claimed that it was simply because as the accused no. 2 used to hire the above taxi of accused no. 1 and they both were residents SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
19of the same district.
32. It is further alleged that on the above day also, the accused no. 2 had hired the above taxi/Sumo of accused no. 1 for coming to IGI Airport as one person named Bagga, who was a resident of Village Saiflabad, District Kapurthala, Punjab, was to arrive at the airport from England, but Billa got down from the taxi in Kapurthala itself on receiving some phone call on his mobile and they both were subsequently picked up from the above tea stall at Pipli. It is also claimed by them that they were brought to some office at Delhi, confined there and made to sign on various blank and written papers forcibly and no proceedings were conducted in their presence. The accused no. 1 states that he was made to write a dictated statement in Punjabi language and the personal and family details obtained from him were incorporated in the said statement and accused no. 2 has claimed that since he is illiterate, he is not aware about the contents of the above documents. Though, both of them had initially chosen to lead evidence in their defence, but subsequently they did not examine any defence witness on record and their defence was closed on their request vide order dated 15.01.2014.
33. I have heard the arguments advanced by Ms Mala Sharma, Ld SPP for DRI and Sh S. K. Saxena, Ld Amicus Curie for both the accused. I have also gone through the evidence led and the other record of the case, including SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
20the written submissions filed on behalf of DRI.
34. The first contention of Ld Amicus Curie is that the mandatory provisions of Sections 41 and 42 of the NDPS Act have not been complied with in this case and due to the above reason, the seizure of heroin effected by the DRI officers becomes illegal. It is submitted that as per the case of DRI the secret information received in this case was that the accused were to carry the narcotic drugs either on their person or concealed in their above Tata Sumo vehicle and hence, a search warrant U/S 41 of the NDPS Act was required for carrying out the search of the said vehicle and further a copy of the above information received by PW8 and reduced into writing as Ex. PW1/A was also required to be sent by him to his immediate official superior within 72 hours. It is also submitted that PW3 Sh Atul Handa being a Deputy Director was much senior in rank to PW8 and hence, he cannot be termed as the immediate official superior of PW8.
35. In this regard, it is observed that as per the evidence brought on record, the above secret information received by PW8 was immediately reduced into writing by him at around 5:30 PM on 19.01.2010 and the same is Ex. PW1/A on record. The depositions made by PW8 as well as PW3 also prove that the said information was put up by PW8 before PW3 on the same day, and without any further wastage of time, as the endorsement made by PW3 on the SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
21said information for conduction of the search and seizure under the NDPS Act is found to be made at 5:45 PM, i.e. just after 15 minutes of reduction of the said information in writing. Hence, the requirement of reduction of the said information in writing and its communication to a senior officer, as contained under sub-section (1) and sub-section (2) of Section 42 of the said Act stand complied within to that extent.
36. As far as the argument being raised by Ld Amicus Curie regarding the seniority and designation of the above two officers is concerned, it is found specifically incorporated in the complaint Ex. PW7/A itself that for intelligence work in DRI Head Quarters, the Deputy Director is the official superior to Senior Intelligence Officer. Even they both are found to above made similar depositions on record during the trial as PW3 in his examination in chief itself has stated, while identifying the signatures of PW8 on the above document, that PW8 was administratively junior officer to him and was bound to report the secret informations to him. Even in his cross examination, he reiterated that he is the immediate superior officer of Sh Madan Singh/PW8 with respect to the secret informations. The above depositions and the contents of the complaint are also found to be duly corroborated by the depositions made by PW8 in his examination in chief itself when he states on record that he was administratively subordinate to PW3 and was bound to report the above secret information to SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
22him (PW3). There is no ground or reason to disbelieve the above consistent and corroborative depositions made by these witnesses.
37. In terms of the provisions contained U/S 41 of the NDPS Act, a Gazetted Officer of the given departments, including DRI, receiving the such informations, either from his personal knowledge or from some other person and taken down in writing, about the transportation or concealment etc of narcotic drugs can either himself conduct such search and seizure proceedings or may authorize any subordinate officer of a given rank to conduct such proceedings and such searches and seizures can then be conducted by them either during a day or during the night time and they also enjoy all the powers of an officer acting U/S 42 of the NDPS Act. Under Section 42 of the NDPS Act, such an information is received not by a Gazetted Officer but by an empowered officer of a given rank, either from his own knowledge or from any other person and taken down in writing, and then if such search or arrest etc is to be conducted during a day time, i.e. between sunrise and sunset, then he can conduct such search and arrest etc without any search warrant or authorization. Further, even during the night time, i.e. after sunset and before sunrise, he can conduct such search etc if has reasons to believe that a search warrant or authorization cannot be obtained without affording an opportunity for the escape of the offender or destruction of evidence etc. SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
23However, in such a case he can proceed with such search etc only after recording the grounds of his above belief. There is no dispute or challenge that the IO/PW1 Sh Vinod Kumar being an Intelligence Officer of DRI is an officer empowered to act independently U/S 42 of the NDPS Act or being authorized to do so by a senior officer/Gazetted Officer of his department U/S 41 of the NDPS Act. Even otherwise, the authorization to conduct the above search and seizures in his favour was duly given by PW3 vide his above endorsement made on the said information itself. Hence, there is not found to be any violation of the above provisions of Sections 41 and 42 of the NDPS Act and the same are held to have been complied with in this case.
38. The next contention of Ld Amicus Curie is that the two public witnesses Ajay Kumar and Pramod Kumar alleged joined by the prosecution in the raid have not been produced for making statements during the trial and in the absence of their examination, the statements made by the official witnesses of DRI only should not be believed as they are interested witnesses. It is also argued that in the absence of there being any proof of identity or residence etc. of the public witnesses having been taken on record by the IO/PW1 and also that since these witnesses were subsequently reported to be not existing/traceable at their given addresses, the possibility also cannot ruled out that these witnesses never existed in reality and were the fake witnesses SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
24cited in the list of the prosecution witnesses.
39. As far as the argument of Ld Amicus Curie regarding the case being based only on the testimony of official witnesses is concerned, it is well settled in this regard that the testimony of official witnesses is very much admissible in evidence and can be safely relied upon by the court for arriving at conviction of the accused because the presumption of honesty is as much available to an official witness or a police official as the same is available to a public witness. The only requirement for acting upon such testimonies of official witnesses is that the same should inspire confidence and should be worthy of acceptance for the said purpose. Ld SPP for DRI has rightly relied upon the judgments in cases M. Prabhu Lal Vs A.D. DRI 2003 (3) JCC 1631 (SC) and Ajmer Singh Vs State of Haryana 2010 (1) JCC (Narcotics) 28 (SC) on this aspect.
40. Now coming to the non examination of the above two witnesses, it is a matter of record that their summons were sent by this court at their given addresses on two occasions, i.e. for 10.02.2012 and 15.03.2012, and on both these occasions, it was reported that they were not found to be existing/traceable at their given addresses. They both were joined by the IO/PW1 in the raid from around the office complex of the DRI in the area of ITO at around 8:30 AM, i.e. prior to the leaving of their office by the DRI team for the spot, and they SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
25both had not only accompanied the DRI team to the spot, but had also participated in the subsequent search and seizure proceedings. Their signatures/thumb impressions are also found to be there on the above legal notices Ex. PW1/B & PW1/C given to the accused persons at the spot of their apprehension, the panchnama Ex. PW1/D prepared subsequently in the DRI office and also on photocopies of the above cloth markings Ex. PW1/D1 to PW1/D14 and the documents Ex. PW1/D15 to PW1/D18 found in the search of the said vehicle. They are also found to have signed/thumb marked the test memos, two copies of which are available in the judicial file and are Ex. PW1/E and PW1/U.
41. Besides the above, they both were also duly served with the summons U/S 67 of the NDPS Act Ex. PW1/P and PW1/Q respectively on 20.01.2010, i.e. after the conclusion of the panchnama proceedings, and they had also subsequently tendered their statements U/S 67 of the NDPS Act Ex. PW1/R and PW1/S respectively on 22.01.2010 before the IO/PW1. During his cross examination, the IO/PW1 has stated that after he had reached in his office on 20.01.2010 at around 8:00 AM, he personally went to the ITO for the purpose of calling the public witnesses and returned back to his office within 15-20 minutes, alongwith the above two witnesses. He has also stated that both the above witnesses remained present with him till the evening on that day, though he was not able to remember the exact time, and SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
26has further stated that their statements were tendered before him on a single day, though he was also not sure as to whether the same were tendered on 21.01.2010 or 22.01.2010. He has also denied the suggestions given by Ld Amicus Curie to him that no such witnesses ever existed or they were the fake persons introduced by him in the prosecution case or even that the above statements of public persons were fake or fabricated documents.
42. Hence, in view of the above, simply because the above two witnesses have not subsequently turned up for making statements in the court or were reported to be not existing/traceable at their given addresses, it cannot be a ground for drawing any such inference they never existed or were the fake persons introduced by the IO/PW1 in the story of the prosecution. Further, simply because the IO/PW1 did not collect any proof of identities or of residence of these witnesses during the investigation is also not a ground to draw any such inference. As per their above statements and the depositions made by the IO/PW1, one of the above two witnesses was working on a juice shop and the other one was doing his own accountancy work in the said area and the prosecution cannot be faulted if by the time they were summoned to depose in this court, they were reported to have left their given addresses or might have even furnished some fake addresses to the IO/PW1 at the time of their joining in this case.
SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
2743. While dealing with the non examination of public witnesses in another case of DRI, the following observations were made by the Hon'ble High Court in case Criminal Appeal No. 1561/2011 titled Rozy Vijender @ Elizabeth Samuel Vs DRI and Criminal Appeal No. 108/2012 titled Vijender Singh Vs DRI, both decided vide a common judgment dated 08.04.2013, which were filed against the convictions of the above appellants/accused by this court.
"The prosecution associated Deep Chand and Kuldeep Sharma, independent public witnesses at the time of recovery. Their signatures were taken on the panchnama (Ex. PW2/K) and annexures (Ex. PW2/B to Ex. PW2/F). They were cited witnesses in the case. Efforts were made to serve the summons for their appearance before the court. However, the addresses given by them were found fake. Their presence could not be secured during trial. No adverse inference can be drawn against the prosecution for their failure to examine independent panch witnesses. The secret information (Ex. PW1/A) was received on 23.11.2005 around 06.30 PM. A raiding party was organized at about 07.30 PM, the accused were arrested at a Bus stop, outside New Delhi Railway Station at a distance of 3 or 4 KM from the office of the complainant. Apparently, the officials had no sufficient time to arrange independent public witness before proceeding to the spot. Their anxiety was to intercept the culprits at the earliest. Even then before apprehending the accused, they joined Deep Chand and Kuldeep Sharma who were available at the Railway Station. They were not acquainted with the officials.
SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.28
There were no time for them to verify and ascertain their identity. The name and address disclosed by them were believed. No fault can be found on this account with the members of the raiding team. The non-examination of the witnesses, who joined in the investigation per-se is not fatal. It is no rule of law but of prudence that public witnesses should be joined. This is insisted so as to lend authenticity and credibility to the search and the recovery that are effected, it is of course not an absolute rule. Though it is desirable to examine an independent witness, in the absence of any such witness, if the statements of the official witnesses are reliable and when there is no animosity established against them by the accused, their version cannot be doubted or discredited."
44. The next argument of Ld Amicus Curie is that the alleged statements U/S 67 of the NDPS Act Ex. PW1/H (Hindi translation version thereof is Ex. PW1/H1) and PW1/K made by the accused persons are not their voluntary statements as the same were obtained by force and after extension of physical cruelty upon both the accused. It is further submitted that even otherwise, the above statements were duly retracted by the accused persons vide their retraction application dated 04.02.2010 on record, wherein also it is specifically submitted that the signatures/thumb impressions of the accused were obtained on various blank and written documents and all the documents and case of the prosecution is false.
SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
2945. In this regard, 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 accused, if the same is found to be made voluntarily. 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.
46. 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 SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
30of 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 Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124; Noor Aga Vs State of Punjab & Anr. 2008(9) Scale 681; 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.
47. In this case, it is observed that the above statements were tendered by the accused persons before the IO/PW1 in response to the summons Ex. PW1/G and PW1/J respectively, which were duly served upon and received by the accused persons. The above summons were issued and served after the conclusion of the panchnama proceedings and were for appearance of the accused persons before the IO/PW1 on 6:15 PM and 9:30 PM respectively on that day, i.e. 20.01.2010. The statement Ex. PW1/H is found to have been tendered by the accused no. 1 in Punjabi language and as stated above, the same not only contains the various personal and family details of the accused, but also his admission about their interception with the above vehicle and the contraband substance concealed therein. This statement further contains the details regarding the marital status of the accused, the name and age of the wife of the accused and his children etc, the agricultural land SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
31previously held by him and the source thereof and also the purchase of the above vehicle used in this case by him in the name of his wife from some other person. These details could never have been in the knowledge of any officer of DRI and could have been furnished only by the accused himself, being special facts within his knowledge. This statement of accused no. 1 is also found to be written in a very good flow of Punjabi language, which was the only language the accused knew to write, besides knowing and understanding the Hindi language and a little bit of English language also.
48. Further, the depositions of the IO/PW1 as well as of PW9 Sh Punjab Singh clearly prove on record that the above statement was tendered voluntarily by the accused himself in the presence of PW9 and PW9 had translated the contents of the said statement in Hindi language vide Ex. PW1/H1 and further explained the same to the IO/PW1. There is a specific endorsement made in this regard on the above statement Ex. PW1/H in the writing of PW9 himself. It is also found specifically recorded in the said statement that the above vehicle was owned by this accused, though purchased by him in the name of his wife, and this fact has also not been disputed by him during the entire trial and even none of his personal details contained therein have been disputed or challenged. There is also nothing on record to suggest that he was forced by the DRI officers to tender or write the above statement or it was dictated SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
32to him by the IO/PW1 or some other officer of DRI. His MLC Ex. PW11/A dated 21.01.2010 on record, which was made on the very next day of his apprehension and before his production in the court, also negates the presence of any external injuries on his person. The IO/PW1 and PW9 have also denied the suggestions given to them that the above statement of the accused no. 1 was not a voluntary statement or was a dictated one.
49. Hence, simply because the above statement was subsequently retracted by the accused is not a ground to render it to be inadmissible or to term it as involuntary as the above retraction application of the accused, which is in-fact a joint retraction application signed/thumb marked by both the accused, is not a document to which some weight can be given by this court. The said retraction application was duly replied by the DRI officers and the contents thereof were denied by them and it is further observed that the same was filed on record after about 15 days of making of the alleged statement. It is also observed that the above retraction application is found to be written in English language, which was not known to either of the two accused and from the very form and contents of this document, it appears to be written by some advocate or some senior and experienced inmate of the concerned jail and can thus be termed to have been made on legal advise. Therefore, the above statement Ex. PW1/H made by accused no. 1 appears to this court to have been made SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
33voluntarily and is also held to be so.
50. Likewise, the statement Ex. PW1/K of the accused no. 2 is also held to be his voluntary statement as though this accused was illiterate, but the depositions of the IO/PW1 as well as PW11 Sh Vinod Badola clearly show that this statement was reduced into writing in Hindi language by PW11 only on the request of the IO/PW1, as the accused no. 2 was illiterate and incapable of writing the same. His MLC Ex. PW14/B proved on record also rules out the extension of any physical torture to him for extracting the above statement. This statement also contains the names of his family members and their age etc, his educational and marital status and the agricultural holding etc of his family, besides his name and profession, and is further found to contain an endorsement made by PW11 that it was written by him on the dictation of and as per the facts disclosed by this accused. As stated above, the joint retraction application dated 04.02.2010 filed by both the accused is of no consequence to them and hence, even this statement of accused no. 2 appears to be and is held to be his voluntary statement.
51. The next challenge to the prosecution case is on the ground that the prosecution has not been able to prove the complete chain of its evidence to show that the sealed parcels of the case property and samples of this case had remained safe and intact throughout and SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
34were not tampered with at any stage of investigation or subsequently. It is also submitted that there is no documentary evidence on record to show that as to where the parcels of the case property and samples had remained after the conclusion of the panchnama proceedings and till they were got deposited with the Valuable Godown and CRCL.
52. In this regard, it is observed that there are very detailed depositions made by the IO/PW1 in his statement regarding the process of testing of the substance of the above 14 recovered packets separately and the drawing of samples therefrom, after the same tested positive for heroin, and further the sealing of the parcels of samples and case property with the seal of DRI No. 10. Even, PW4 and PW13 corroborate his above depositions on all material aspects as they both were also present when the above sampling and sealing work had taken place. The IO/PW1 has also specifically stated on record that after the conclusion of the panchnama proceedings, he had handed over the above sealed parcels of samples and case property, alongwith the test memos, to Sh K. K. Sood/PW6 and his these depositions are also corroborated by PW6.
53. Further, it is also specifically deposed by the IO/PW1 that at the time of doing of the above sealing work, he had obtained the signatures of the two public witnesses and both the accused on all the above sealed SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
35parcels, besides signing himself on the said parcels, which were obtained on paper slips pasted on each of the said parcels. It is even specifically deposed by PW6 that on 21.01.2010, he had entrusted the one set of the above sealed parcels to PW10 Sh Jagdish Rai, alongwith the duplicate test memos, for deposit it in the CRCL vide forwarding letter Ex. PW6/A issued under his signatures and the depositions of PW10 further show that the same were deposited there vide acknowledgement Ex. PW2/B, which also stands duly proved on record from the depositions of PW12 Dr Vinod Kumar, who had received the said parcels and issued the said acknowledgement. It is also specifically deposed by PW12 that at the time of receiving of the above parcels/packets, he had checked the condition of the seals affixed thereon and the same were found to be in intact condition. Even, the acknowledgement Ex. PW2/B issued by him shows that the above seals affixed on the said parcels were intact. The depositions of PW12 and PW2 Sh R. P. Singh further prove that the above samples had remained intact and were not tampered with during the period they were lying in the office of CRCL.
54. Again, PW6 had also entrusted the sealed parcel of the case property to PW13 Sh Ajay Bhasin on 21.01.2010 itself and the same was taken by PW13 vide deposit memo Ex. PW5/A prepared by him and also countersigned by PW6. The said parcel was handed over by PW13 to PW5 Sh Lakhi Ram, In-charge of the Valuable SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
36Godown, and PW5 has specifically stated on record that before accepting the above parcel of case property, he has satisfied himself about the intact condition of the seals appearing on the said parcel and he had also tallied the impression of the seals with the facsimile thereof given on the deposit memo and the same were found to be in intact condition and tallying with the above impression. He has further stated that during his tenure in the Valuable Godown, the case property remained in sealed and in intact condition.
55. Further, the sealed parcels of the remnants of the above samples tested in the CRCL, the sealed parcel of the case property deposited in the Valuable Godown and the sealed parcels of the second set of samples were all produced for identification in this court during the testimony of the IO/PW1 himself and it is also found observed on record that all the said parcels were found to be in safe and intact condition as the seals affixed on the said parcels or on the paper slips pasted thereon were found to be in intact condition. Hence, simply because no separate document was created by the IO/PW1 regarding the handing over of the above sealed parcels after seizure to PW6, no inference of tampering of the said parcels or of any possibility thereof can be drawn from the evidence led on record as no such inference is required or warranted to be withdrawn, unless there was some actual proof of tampering with the said parcels or a real possibility thereof. Reference in this regard can SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
37be made to the judgment in case Siddiqua Vs NCB :2007 (1) JCC (Narcotics) 22. Hence, from the evidence led on record, there is not found to be any proof of tampering of the parcels of the case property or samples of this case or of drawing of any inference regarding the such tampering.
56. The IO/PW1 Sh Vinod Kumar has made on record detailed depositions regarding their visit to the above spot, apprehension of the accused persons with the above vehicle, service of notices U/S 50 of the NDPS Act upon them at the spot and the subsequent search, seizure and sealing work etc conducted in their office and his above depositions are also duly corroborated by PW13 Sh Ajay Bhasin being a member of the said team. Though, PW7 Sh Rajpal Singh has not participated in the sample and sealing work done in their office, but he also corroborates the remaining depositions of the above two witnesses as he had been present with the team at the time of interception and also at the time of recovery of the above 14 packets of heroin concealed in the above vehicle. The depositions of the above witnesses are further corroborated by the depositions made by PW4 Sh. B. K. Banerjee, who was joined in this case as a Gazetted Officer and in whose presence the search of the persons and the above vehicle of the accused was conducted in the parking area of the DRI office, as in their replies to the above notices, the accused had chosen to be searched before a Gazetted Officer. The SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
38IO/PW1, PW7 as well as PW13 have also deposed regarding the service of the above notices U/S 50 of the NDPS Act upon the accused at the spot itself, though Ld Amicus Curie has agreed that the said notices were not required to be served in this case and the provisions of Section 50 of the said Act are not applicable here as the recovery of the above heroin has been effected not from the persons of the accused, but from their above vehicle.
57. Though, Ld Amicus Curie has submitted that the constitution of the raiding team or the presence of PW7 and PW13 in the said team as members is not established from any document prepared or created for the said purpose, but consistent and corroborative oral depositions made by them on this aspect cannot be disbelieved because not only the IO/PW1, PW7 and PW13 have deposed about the constitution of the above team and the presence of PW7 and PW13 in the above team, but this fact is even found to be deposed by PW3 Sh Atul Handa, who had constituted the above team and further by PW4 Sh B. K. Banerjee, who was subsequently joined at the time of search of the said vehicle and the persons of the accused. Moreover, the presence of PW7 at the spot at the time of apprehension of accused persons is also established from his endorsement made on the notices Ex. PW1/B and PW1/C, which were served at the spot itself, regarding explaining the contents of the replies of the accused persons to the IO/PW1, which were SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
39recorded on the said notices in Punjabi language, and he has also specifically stated that he explained the same to the IO/PW1 as he was knowing the Punjabi language. Even, the presence of PW4 at the time of search of the above vehicle and recovery of the above heroin packets is established from his endorsement and signatures on the said notices, which were made and put at the time of allowing the conduction of the above searches. Hence, even if the panchnama and its annexures etc are not found to be signed by these witnesses, their presence at the spot at the relevant time of conduction of the above proceedings cannot be doubted on this ground alone, as it was not at all necessary for PW4 and PW13 to have signed the said panchnama and other documents when the same were already signed by the IO/PW1, two accused and the two panch witnesses.
58. Though, it is also a contention of Ld Amicus Curie that the accused stands prejudiced by the fact that the search of the above vehicle was not conducted by the IO/PW1 at the spot and even the sample work etc was not done there, but this argument of Ld Amicus Curie is without any merits as there is no provision in the NDPS Act or the rules framed thereunder which mandates the conduction of such search and seizure proceedings at the spot itself. Further, the detailed search and sampling proceedings are also not possible to be conducted at a public place like that in the presence case, due to the lack of infrastructure facilities, the SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
40disturbance which may be caused in such proceedings and the security perspectives. Nothing material could be extracted during the cross examination of the above prosecution witnesses of recovery and search, which could have the effect of discarding their depositions made on this aspect or making the factum of recovery of the above contraband substance from the accused persons to be doubtful. Though, some minor contradictions have come in their examinations on certain aspects, but the same are found to be not material and can be safely ignored and these also do not adversely effect their credibility as a whole. The oral depositions made by these witnesses further stand substantiated from the documents proved on record. Hence, even in the absence of examination of two public witnesses, the prosecution has successfully proved on record that the above quantity of heroin weighing around 14.230 KG (net weight) was recovered from the possession of the accused persons. As discussed above, their voluntary statements tendered U/S 67 of the NDPS Act further corroborate the factum of recovery of the above contraband substance from their possession and also that it was a conscious possession. The defence taken by both the accused in their statements recorded U/S 313 Cr.P.C. of having been picked up from some tea stall at Pipli, Haryana in the morning of 19.01.2010 had remained unsubstantiated.
59. Besides the above, there are also the legal presumptions U/S 35 and 54 of the NDPS Act which operate SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
41against the accused. Section 35 of the NDPS Act deals with the culpable mental state of an accused in a prosecution under the NDPS Act and it prescribes that in any offence under this Act which requires such a culpable mental state of the accused, the court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Section 54 of the NDPS Act also lays down that in trials under this Act, it may be presumed, until and unless the contrary is proved, that the accused has committed an offence under this Act in respect of any narcotic drug or psychotropic substance etc, for the possession of which he fails to account satisfactorily.
60. A combined effect of the above two provisions is that if an accused is found to be in possession of any contraband substance, then the court shall presume that he has committed an offence under the above said Act pertaining to the said substance, unless and until the contrary is proved, if he fails to account satisfactorily for the said possession. Further, if a criminal mental state of the accused is required to be established for the said offence, then the court shall also presume that the accused had that criminal mental state and it shall only be a defence of the accused to prove that he had no such mental state.
SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
4261. In the instant case, since the accused persons have been held to have been found in physical possession of the above contraband substance, they are presumed to be having the criminal mental state to possess the above contraband substance and to have committed an offence regarding the same and the burden lies upon the accused to prove the absence of the above criminal mental state or to account for their possession of the above contraband substance. However, the accused are found to have failed to discharge the above burden as nothing has been brought on record to establish that they were not aware regarding the presence of the above contraband substance in their above checked-in-baggage.
62. While, dealing with the concept of 'conscious possession' the Hon'ble Supreme Court in the case of Madan Lal & Another Vs State of H.P. : (2003) 7 SCC 465 has held as under:-
"26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
63. Further, the Hon'ble the Apex Court in case of SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
43Dharampal Singh Vs State of Punjab : 2010 (10) SCALE has also held as under:-
"From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act given statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to account for satisfactorily the possession of opium. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence."
64. The seizure of the above heroin was effected in this case on 19.01.2010, i.e. after the issuance of the Notification No. S.O. 2941(E) dated 18.11.2009 of the Ministry of Finance, Department of Revenue, vide which it was laid down that the entire seized contraband substance would be considered for arriving at the commercial or a small quantity of a contraband substance prescribed under the said Act, irrespective of their purity percentage. Hence, the purity percentage of diacetylmorphine in the above samples, as given in the test report of the CRCL Ex. PW2/A, is no more relevant and the entire weight of the seized heroin is to be taken into consideration by this court. Moreover, only SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
44a quantity of 250 Grams of heroin is prescribed to be a 'commercial quantity' of the above substance under the NDPS Act and hence, even otherwise, the above purity percentage could not have made much difference to the charge framed U/S 21(c) of the NDPS Act as the purity of diacetylmorphine in the above samples was varying between 62.4% to 86.0% and net weight of the seized heroin was 14.230 KG and even going by the average purity percentage, the weight of the seized heroin could have come to be more than 10 KG. Hence, it can be said that from the evidence led on record the prosecution has successfully substantiated its charge for commission of the offence punishable U/S 21(c) of the NDPS Act against the accused persons.
65. As far as the charge for the other offence punishable U/S 25 of the NDPS Act is concerned, it is observed that Section 25 of the NDPS Act is attracted only when a person being the owner or occupier etc. of some house or conveyance etc. knowingly permits it to be used for commission of an offence under the abovesaid Act by any other person. It also means to say that this charge will not be attracted if one being the owner or occupier etc. of such a house or conveyance etc. is himself using the same for commission of any such offences or he is not the owner of occupier etc. of such house or conveyance and hence cannot permit its such use. Coming to the facts of the present case, the accused no. 2 Niyamat Masih was not the owner, occupier SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
45or in control etc. of the above vehicle make Tata Sumo in the sense in which these words have been used in this Section as admittedly the above vehicle was owned by and was under the control of the accused no. 1 Bachitter Singh. Hence, the charge for the offence U/S 25 of the NDPS Act against accused no. 2 is held to be not proved as simply because in the above statements U/S 67 of the NDPS Act of the accused if it was found recorded that he had temporarily taken the custody of the above vehicle and had brought the above packets of heroin in the said vehicle from a third person, i.e. Sharma @ Billa, he cannot be said to be the occupier or the person in control of the above vehicle under the above provisions. Moreover, even there is no independent corroboration on record to the above facts stated by the accused persons in their above statements. Hence, the accused no. 2 Niyamat Masih is being discharged for the offence U/S 25 of the NDPS Act. However, as far as the accused no. 1 Bachitter Singh is concerned, it stands proved from the evidence led on record that he being the owner, occupier and in control of the said vehicle had knowingly permitted the said vehicle to be used by his co-accused Niyamat Masih for transportation of the above heroin for some monetary considerations. Though he himself was also involved in the transportation of the said contraband substance and was also found to be in possession of the said substance, but it was not his exclusive possession and he was not the lone possessor thereof. It is also not disputed by him during the SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
46trial that the said vehicle was owned by him, though it was purchased formally in name of his wife. Hence, the charge for the offence U/S 25 of the NDPS Act also stands proved against the accused no. 1 Bachitter Singh, besides the charge for commission of the offences punishable U/S 21(c) of the NDPS Act.
66. Now coming to the charge U/S 29 of the NDPS Act framed against both the accused persons, it is found that apart from the fact that both the accused persons were apprehended together in the above vehicle in which the above packets of heroin were found to be concealed and recovered subsequently, the prosecution has not led on record any independent evidence to corroborate the existence of any such criminal conspiracy between them to possess or to transport the above substance or to deal in such contraband substances. Though there are some depositions made by both of them in their above statements in this regard, explaining as to from where they both had brought the above contraband substance, but in the absence of any corroboration of these particulars from any independent evidence and further since the above Sharma @ Billa or the other person named in the above statement could not be traced out and apprehended by the DRI, even this charge for the offence punishable U/S 29 of the NDPS Act pertaining to the existence of any such criminal conspiracy between them is held to be not proved against any of the above two accused.
SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
4767. In view of the above discussion, it is held that the accused no. 1 Bachitter Singh is held guilty for commission of the offences punishable U/S 21(c) and 25 of the NDPS Act, whereas accused no. 2 Niyamat Masih is held guilty for the offence punishable U/S 21(c) of the NDPS Act only and he is acquitted for the other offence punishable U/S 25 of the NDPS Act. They both are also acquitted for the offence punishable U/S 29 of the NDPS Act.
Announced in the open
court on 19.07.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
48
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 Rajpal Singh, Intelligence Officer V E R S U S
1. Bachitter Singh S/o Late Sh Harbans Singh R/o Village Bhilla, PO Kanji District Kapurthala Punjab.
2. Niyamat Masih S/o late Sh Hajara Masih R/o Village Lodhipur, PO Lodhipur District Kapurthala Punjab.
SC No.: 16A/10 U/S: 21/25/29 NDPS Act Computer ID No.: 02403R023332010 ORDER ON SENTENCE Present: Ms Mala Sharma SPP for DRI.
Both the convicts in JC with proxy counsel for Ld Amicus Curiae.
After having convicted the accused Bachitter Singh for the offences punishable U/S 21(c) and 25 of the NDPS Act and accused Niyamat Masih for the offence punishable SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
49U/S 21(c) of the NDPS Act vide my judgment dated 19.07.2014, arguments have been heard today as advanced by Ld SPP for DRI as well as the convicts in person, on the point of sentence to be awarded to the convicts.
2. Both the above offences carry a minimum term of rigorous imprisonment of 10 years each extending up to 20 years each and also a fine of not less than Rs 1 Lac each and extending up to Rs 2 Lacs each.
3. It has been submitted on behalf of the prosecution that the maximum terms of imprisonment and fine be awarded to the convicts and they do not deserve any leniency from this court as they have been found guilty of possessing a huge commercial quantity of heroin weighing around 14.230 KG, as against the prescribed commercial quantity of 250 Grams only.
4. On the other hand, it has been submitted by the convicts that a lenient view be taken in the matter and the minimum sentence of imprisonment and fine be awarded to them as they both are in custody for last about four and half years. It is submitted by the convict Bachitter Singh that he is aged about 40 years and is having the responsibility to maintain his wife and four minor children, i.e. two sons and two daughters, who all are unmarried. It is further submitted by him that he is the sole bread earner of his family. It is also submitted by the accused Niyamat Masih that though his SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
50wife and one minor daughter are residing separately from him since long, but he owns the legal responsibility to maintain and marry his daughter and is further liable to maintain his old mother aged around 65 years, whose eye sight is also very weak. He also claims himself to be exclusively responsible for the maintenance and care of his old mother as his two brothers had already expired.
5. I have thoughtfully considered the above submissions being advanced on the point of sentence. As per the evidence brought during the trial, both the convicts were acting as carriers of narcotic drugs only for some petty monetary considerations and they themselves are not alleged to be running any drug racket on their own. They are also from very poor financial backgrounds as the convict Bachitter Singh was a driver by profession and the convict Niyamat Masih was working as a labourer on a 'bhattha' (brick kiln) and as per their statements on record they had adopted the above illegal profession out of compulsions of their poverty only.
6. Hence, keeping in view the age, family background and all other attending circumstances, both the convicts are being awarded the minimum sentence of rigorous imprisonment for a period of 10 years each and a fine of Rs 1 Lac each for the offence punishable U/S 21(c) of the NDPS Act. In case of non payment of above fine they shall further undergo simple imprisonment for a period of three months each. Convict Bachitter Singh is further sentenced SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.
51to undergo rigorous imprisonment for a period of 10 years and a fine of Rs 1 Lac only for the offence punishable U/S 25 of the NDPS Act, but it is directed that his both the above sentences shall run concurrently. In case of non payment of the above fine also, he shall further undergo simple imprisonment for a period of three months. The periods of custody already undergone by both the convicts are allowed to be set off in terms of the provisions of Section 428 Cr.P.C. Fine has not been paid by any of the convicts. Let them to undergo the above sentences as per law. A copy of the judgment and the order on sentence be supplied to both the convicts free of cost.
7. The case property, i.e. the seized contraband substance and the vehicle etc., be also confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment and order on sentence.
Announced in the open
court on 23.07.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No.: 16A/10 DRI Vs. Bachitter Singh & Anr.