Delhi District Court
Ncb vs . Ajay Aggarwal & Ors. on 29 September, 2012
NCB Vs. Ajay Aggarwal & Ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 108/08
ID No. 02403R0305982004
Narcotics Control Bureau
Through H.K. Pandey,
Intelligence Officer, NCB, New Delhi
Versus
1) Ajay Aggarwal
S/o Late Jagdish Saran,
R/o Village Mohalla Chauhanan,
Arya Samaj Wali Gali,
Jaspur (Uttaranchal)
2) Akeel Ahmed,
S/o Sh. Saddique Ahmad,
R/o Village Shahpur, PO Dhanupura,
Tehsil Swar, Distt. Rampur,
Uttar Pradesh
3) Jaskaran Singh @ Kante, ...(Deceased)
S/o Sh. Dilbagh Singh
R/o Alipore Chopla, Laxmi Nagar,
Gajrola, U.P.
Date of Institution : 23.08.2004
Judgment reserved on : 15.092012
Date of pronouncement : 29.09.2012
SC No.108/08 page 1 of 56
NCB Vs. Ajay Aggarwal & Ors.
JUDGMENT
1. The Narcotics Control Bureau (hereinafter referred to as NCB) through its Intelligence officer (IO) Sh. H.K. Pandey, has filed the present complaint against the accused u/s 25A and 29 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as the NDPS Act).
2. Briefly stated the averments made in the complaint filed against the accused are as follows:
(a) On 21.06.2004 at about 1700 hours, Sh. Bhushan Joshi, IO received a secret information that one person namely Akeel Ahmed (accused no.2) r/o village Shahpur PO Dhanupura is indulging in illegal trafficking of controlled substance mainly Acetic Anhydride and on 22.06.2004 he would be delivering 810 drums of Acetic Anhydride to one of his customer at Tilak Bazar and that the said drums would be transported in Mahindra Pickup No. UA 01 1532 and the delivery would be made near fire station, Tilak Bazar at about 1245 to 1315 hours. The said information was put up before the Superintendent NCB Sh. P.L. Verma and was also discussed with the Zonal Director who then directed H.K. Pandey IO to constitute a team and proceed for search operation on early morning of 22.06.2004.
(b) The raiding team alongwith two witnesses on 22.06.2004 reached the fire station, Tilak Bazar, Old Delhi and on reaching there, it saw a SC No.108/08 page 2 of 56 NCB Vs. Ajay Aggarwal & Ors.
Mahindra Pickup bearing registration no. UA 01 1532 parked near the fire station. It was also noticed that blue colour drums were kept in the driver's cabin. In the meantime, one Esteem VX car bearing no. UA 06 6789 parked itself near the Mahindra Pickup and from the said Esteem car, one person got down and came to the driver's cabin of Mahindra Pickup and at this time, NCB officials alongwith the witnesses intercepted the said persons. The two occupants of the Mahindra Pickup on enquiry, revealed their names as Mohd. Shareef and Rais and the person who got down from the Esteem car revealed his name as Akeel Ahmed. In the meantime, the other person sitting in the Esteem car also got down and on enquiry revealed his name as Ajay Aggarwal.
(c) The NCB officials introduced themselves to the accused persons and also informed them about the secret information. It is asserted that accused Akeel Ahmed admitted the ownership of the 8 drums kept in the Mahindra Pickup vehicle and also told that all the 8 drums were containing Acetic Anhydride. Thereafter, notices u/s 50 NDPS Act were issued to all the aforementioned four persons and all of them are asserted to have stated that any NCB official can take their search and that they did not require the presence of any Gazetted officer or Magistrate.
(d) Thereafter, all the drums were checked and were found to contain some chemical, which on being tested with field testing kit, gave positive SC No.108/08 page 3 of 56 NCB Vs. Ajay Aggarwal & Ors.
result for Acetic Anhydride. Two samples each of 25 gms were taken out from each drum and the said samples were then put in plastic containers and marked as A1, AII, B1, BII......H1, HII and the drums were given marking A to H and the drums and the samples were properly sealed and seized. The capacity of each of the drums was found to be approximately 200 Kg, and therefore, the weight of Acetic Anhydride was estimated to be approximately 1600 Kg. Test memos in triplicate were prepared for all the samples. The vehicle bearing no. UA 01 1532 used for transportation of Acetic Anhydride was also seized. Statements of the accused Akeel Ahmed and Ajay Aggarwal were recorded u/s 67 NDPS Act, as per which, they admitted their complicity in sealing/transporting Acetic Anhydride. Accused Akeel also disclosed, that he had purchased the 8 drums of Acetic Anhydride from Jaskaran Singh @ Kale from his godown situated adjacent to Om Dhaba, Village Shahbajpur, Gajrola.
(e) In pursuance of the summons issued to Mohd. Sharif and Rais Ahmed, both of them inter alia stated that the 8 drums were loaded in their Mahindra Pickup van by the accused persons and that they were thus transporting the drums at the instance of accused persons only.
(f) After completing all the formalities at the spot and after submitting the report u/s 67 NDPS Act regarding seizure of Acetic Anhydride, IO SC No.108/08 page 4 of 56 NCB Vs. Ajay Aggarwal & Ors.
then proceeded to Gajrola, to carry out investigation with respect to the disclosure made by Akeel Ahmed in reference to Jaskaran Singh @ Kale. The complainant alongwith the team and public witnesses reached village Shahbajpur, Gajrola and found one Sikh person standing in front of Om Dhaba who revealed his name as Jaskaran and he was told about the search authorization of his godown and a notice u/s 50 NDPS Act was also served upon him. The said accused gave in writing that any NCB official can take search of the godown and that he did not require the presence of any Gazetted officer or Magistrate. He also stated that the key of godown is not available with him and the NCB officials can break the lock. In view of the same, the lock of the godown was broken and five blue drums of 200 liters were found. The said drums were also searched and the contents of one of the drum tested positive for Acetic Anhydride and though the contents of the other drums did not test positive for the said chemical, it was the belief of the NCB officials that the said contents were also chemicals which were being used as catalytic chemicals for making heroin. Therefore, all the said five drums were seized and were given marks V, W, X, Y, Z and from each of them two samples of 25 gms, V1, V2.....Z1, Z2 were drawn and were separately seized and sealed. Accused Jaskaran was also served with notice u/s 67 of the NDPS Act and in his statement, he admitted having sold acetic SC No.108/08 page 5 of 56 NCB Vs. Ajay Aggarwal & Ors.
Anhydride to Akeel Ahmed.
(g) It is averred in the complaint that the statements of the accused u/s 67 of the NDPS Act was recorded on more than one occasion and on various dates and as per the admissions made therein and the recoveries made, it was clear that the accused persons were involved in the illegal trafficking of controlled substance, Acetic Anhydride and therefore they were arrested.
(h) The samples drawn were sent to CRCL in due course of time and after obtaining the results, the present complaint was filed.
3. On the basis of material on record, charges were framed against the accused persons for offences punishable u/s 25(A) r/w section 29 of the NDPS Act. It is relevant to mention herein that during the course of final arguments a submission was made on behalf of the accused persons that though they have been charged for having been found in possession of controlled substance, there is no prohibition for having been in possession of controlled substances as per the provisions of NDPS Act and therefore the contention made was that the accused persons are entitled to be discharged in this case. Keeping in view this contention, an application was filed on behalf of the prosecution for amendment of the charges. It was the contention of the prosecution that though the charges had been framed against both the accused persons for the offences SC No.108/08 page 6 of 56 NCB Vs. Ajay Aggarwal & Ors.
punishable u/s 25(A) r/w section 29 of the NDPS Act for having been found in possession of a controlled substance, the said charges should have also included the words that the accused persons were found transporting the said controlled substance under their supervision. It was also their submission that the entire material produced on record by the prosecution at the time of framing the charge was to the effect that both the accused persons Akeel Ahmed and Ajay Aggarwal were found transporting, under their supervision, a controlled substance. It is also their submission that no prejudice would be caused to the accused persons as they were already aware of the said fact. The said application was allowed by this court vide its order dated 31.07.2012 after taking into consideration that the Ld. Defence Counsel had fairly conceded that the accused persons had not been taken by surprise as that they were aware that the trial was being conducted against them for transporting under their supervision and control, the controlled substance. Thus, in view of the fact that the charge has been amended by this court, the argument of the Ld. Defence Counsel, that it is no offence to merely possess the controlled substance has no relevance now.
4. It is also relevant to mention herein that during trial, accused Jaskaran Singh expired and to prove its case against remaining two accused persons, Ajay Aggarwal and Akeel Ahmed, the prosecution has examined SC No.108/08 page 7 of 56 NCB Vs. Ajay Aggarwal & Ors.
24 witnesses.
5. PW7 B. Joshi has inter alia deposed that on 21.06.2004 he had received the secret information in the present case and the said secret information has been exhibited as Ex.PW3/A. Further, though this witness has also deposed that he was a member of the raiding team, he has not deposed in detail about the search and seizure proceedings and has merely deposed that the said proceedings were done by the IO H.K. Pandey.
6. PW3 Sh. P.L. Verma, Superintendent, has inter alia deposed that on 21.06.2004, Sh. B. Joshi had put up before him secret information,Ex PW3/A and after going through the same, he had discussed it with the Zonal Director and made a noting on the said information. He has then further deposed that he issued search authorizations Ex.PW1/B and Ex.PW3/B and departmental seal of NARCOTIC CONTROL BUREAU DZU5 in favour of PW1 H.K. Pandey. According to the deposition of this witness, pursuant to seizure proceedings, the IO Sh. H.K. Pandey (PW1) had submitted before him the seizure report, Ex.PW3/C and the the arrest reports of the accused persons, Ex.PW3/D, Ex.PW3/E and Ex.PW3/F. As per this witness, he had signed on the seal movement register with respect to the handing over and return of the seal to and from the IO H.K. Pandey. The relevant page of the seal movement register has been exhibited as Ex.PW3/O. As per the deposition of this SC No.108/08 page 8 of 56 NCB Vs. Ajay Aggarwal & Ors.
witness, samples alongwith test memo in duplicate were sent to CRCL for examination and the report thereof was also received.
7. PW1 H.K. Pandey is the main Intelligence Officer who has conducted the investigation in this case. In his examination in chief, he has more or less reiterated the assertions made in the complaint and as per his deposition, various documents have been exhibited. The relevant documents namely the notices issued to both the accused persons and the occupants of Mahindra Pickup have been exhibited as Ex.PW1/C to PW1/F. The panchnama prepared by this witness has been exhibited as Ex.PW1/G. The annexures to the panchnama have been exhibited as Ex.PW1/H. The summons issued to the accused Ajay and Akeel Ahmed and that to the occupants of the truck and the driver of the Esteem car have been exhibited as Ex.PW1/L1 to L5. As regards the recovery proceedings at Gajrola, the panchnama prepared by this witness has been exhibited as Ex.PW1/O and the summons issued to accused Jaskaran have been exhibited as Ex.PW1/P. The summons issued by this witness to various other persons during investigation have also been duly exhibited as per the deposition of this witness.
8. PW2 Raju has inter alia deposed that he is a taxi driver and for the last 12 years, he has been driving a taxi and that on 22.06.2004, while he was going through Tilak Bazar to Kashmiri Gate to purchase some goods for SC No.108/08 page 9 of 56 NCB Vs. Ajay Aggarwal & Ors.
his vehicle, he was stopped by the NCB officials. He has inter alia deposed that he was asked by the NCB officials whether he wanted to help the law and when he replied in affirmative, they disclosed their identity to him and told him that some illegal chemical was coming to said area. He has further deposed that he then stood with the NCB officials opposite fire station at Tilak Bazar and after about 15 minutes, one Esteem car came and stopped near one Mahindra Pickup utility vehicle and one person came down from the Esteem car and came near the Mahindra Pickup and after a while another 'Netaji type person' also got down from the Esteem and came near the Mahindra Pickup. He has then gone on to depose about the search and seizure proceedings done by the NCB officials. According to his deposition, after the search and seizure proceedings were completed at the spot, he went alongwith the NCB officials to the NCB office, then came back to his home and then went again to the NCB office to accompany the raiding team to Gajrola. He has deposed that at Gajrola, one kachchi shop, outside which one Sardarji was sitting, was searched by the NCB officials and on the said search, 5 drums containing some chemical were found there. It is relevant to mention herein that this witness was also crossexamined by the Ld. SPP for NCB as this witness was unable to depose about the documents that were prepared at Gajrola and at Tilak Bazar.
SC No.108/08 page 10 of 56
NCB Vs. Ajay Aggarwal & Ors.
9. PW4 N.K. Chaudhary, Assistant Commandant deposed that on 22.06.2004 and 23.06.2004, in pursuance to the summons issued to him by Sh. H.K. Pandey, IO, the accused Ajay Aggarwal appeared before him and tendered his voluntarily statements in his own handwriting, Ex.PW4/A and PW4/B.
10.PW5 Ashwani Kumar, PW6 Mangal Dass and PW20 Jagmohan Khati, though all being the members of raiding team have not deposed in detail about the search and seizure proceedings and have merely deposed that the same were conducted by PW1 H.K. Pandey. In addition, PW5 Ashwini Kumar has deposed that he had also recorded the statements of Mohd. Sharif and Mohd. Rais, Dharampal, accused Jaskaran, one Anil Kumar, Hafiz Ahmed. PW6 has deposed that he had recorded the statements tendered by Akeel Ahmed on three successive dates namely 22, 23 and 24.06.2004 and PW20 has deposed that he had recorded the statement of the public witness Raju.
11. PW8 Sh. Shiv Ratan, Havaldar has deposed that he had written the statement Ex.PW5/F given by one Anil Kumar before PW5 Sh. Ashwini Kumar.
12.PW10 Sh. Jagdish Chand, Havaldar has deposed that on 25.06.2004, he had carried the sample packets to the C.R.C.L. on the instructions of Sh. P.L. Verma. The forwarding letters vide which the sample packets and the SC No.108/08 page 11 of 56 NCB Vs. Ajay Aggarwal & Ors.
test memo were deposited in C.R.C.L. have been exhibited as Ex.PW3/G and PW3/K. The copies of two test memos have also been exhibited as Ex.PW3/J and PW3/M.
13.PW12 K.C. Aggarwal, Chemical Examiner and PW9 Sh. P.K. Aggarwal, Assistant Chemical Examiner have proved the acknowledgment receipts issued in token of receiving the samples at CRCL as Ex.PW9/A and PW9/B. They also proved the chemical analysis reports with respect to the samples CLD 154161 and CLD 162/166(N) as Ex.PW9/D and PW9/C respectively deposited with the C.R.C.L. As per their depositions, the samples were examined by PW9 Sh. P.K. Aggarwal under the supervision of PW12 Sh. K.C. Aggarwal and had tested positive for Acetic Anhydride.
14. PW11 Mahender Kumar Sahu from Mahender Dyes, PW15 Rajender Kumar Rathore form Darbar Chemical and Industries, PW16 Dinesh Anand from Chandan Chemical Company, PW18 Ashok Kumar Sahu from SR Chemicals and PW22 Pradeep Taneja from Quality Thinner are all traders whose visiting cards or whose names were mentioned in a diary recovered from the possession of accused Akeel Ahmed as per the case of the prosecution and all these witnesses except PW16 Dinesh Anand have inter alia more or less deposed that many customers come to their shops for the purpose of sale and purchase and they have denied SC No.108/08 page 12 of 56 NCB Vs. Ajay Aggarwal & Ors.
their concern with the seized chemicals and have also specifically deposed that they did not know any of the accused persons. PW16 has deposed that though he knew accused Akeel Ahmed but he did not have any business dealings with him and he has also denied that some Acetic Anhydride was to be delivered to his firm.
15.PW13 Vijay Goyal and PW14 R.S. Singhal are the officials of the company, Para Products Pvt. Ltd. which manufactures paracetamol and use Acetic Anhydride in the said manufacture and as per the case of the prosecution, the accused Jaskaran had disclosed that he used to pilfer Acetic Anhydride from the trucks that used to carry Acetic Anhydride to the premises of the said company. As per the depositions of these witnesses, on receipt of summon Ex.PW12/B, PW13 Vijay Goyal had appeared before NCB office and had given his statement Ex.PW13/A before PW1 which was written by PW14 Sh. R.S. Singhal bearing his signature at point A and that of PW14 at point B. In the said statements, however these officials have stated that they were not aware of any pilferage and that they did not know Jaskaran at all.
16.PW23 P. Haridas is a witness produced by the prosecution to explain the procedure for production, transportation, storage of Acetic Anhydride that was followed by Jubilant Organosys Ltd. Gajrola, the company that used to supply Acetic Anhydride to Para Products Pvt. Ltd. As per the SC No.108/08 page 13 of 56 NCB Vs. Ajay Aggarwal & Ors.
deposition of this witness, he had tendered his statements Ex.PW1/21 and PW1/28, as per which, there was no scope of misuse of Acetic Anhydride on its way to delivery to various companies.
17. PW17 Sh. Vijay Kumar is a witness who was produced by the prosecution as the accused Akeel Ahmed in his purported statement tendered u/s 67 NDPS Act had deposed that the seized Acetic Anhydride had been booked in the name of the firm of Vijay Kumar. This witness however in his deposition has stated that he has no concern with the seized Acetic Anhydride and the bill shown to have been issued in the name of his firm is fake.
18. PW19 Mohd. Taqi is a witness which according to the prosecution runs a transport company, namely Delhi Muradabad Road Carrier and that one builty with respect to the Mahindra Pickup issued by this company was allegedly recovered from the accused Akeel Ahmed. This witness has however not supported the case of the prosecution at all and has completely denied that he ever gave a statement u/s 67 NDPS Act Ex.PW1/Z7 to the NCB or that he ever gave any statement to any authority with respect to the facts of the present case.
19.PW21 Dharam Pal is the driver of accused Ajay Aggarwal and he has also not supported the case of the prosecution at all. He has inter alia deposed that the NCB officials had threatened and had beaten him and SC No.108/08 page 14 of 56 NCB Vs. Ajay Aggarwal & Ors.
had obtained his signature on some written and blank papers.
20.PW24 Mehfooz Alam is the registered owner of the vehicle Mahindra Pickup bearing no. UA 01 1532 and on whose name, one of the predecessor of this court had released the said vehicle on superdari. Though this witness has confirmed that he had given a statement Ex.PW5/G in his own handwriting to the NCB officials, on being summoned by them, he has been unable to produce the said vehicle during trial. It is a matter of record that he had stated that he had sold the vehicle as scrap without seeking the permission of the court and on this, his superdaginama was forfeited by this court on a fine of Rs. 75,000/ to be deposited with the court.
21. The entire incriminating evidence was put to both the accused persons and their statements were recorded u/s 313 Cr.PC. In the said statements, both the accused persons have stated that they have been falsely implicated and that they were forced to give their statements u/s 67 NDPS Act admitting their guilt therein. Accused Ajay Aggarwal has inter alia stated that he is an active member of the Bhartiya Janta Party and that on 22.06.2004, he was coming to Delhi to meet one Vijay Bansal, a nominee of Bhartiya Janta Party, who was to fight Lok Sabha elections in 2004. As per his statement, he alongwith his driver were traveling to Delhi in his Maruti Esteem car and that when they had SC No.108/08 page 15 of 56 NCB Vs. Ajay Aggarwal & Ors.
crossed Ghaziabad toll, they were stopped at a barricade by a Maruti car and the occupants of the said car, 78 young persons aged about 2425 years surrounded the car of this accused and asked him the reasons for not paying the toll tax. As per the statement of this accused, the said persons then pulled out his driver from the car and then a heated argument ensued between him and the said persons. One Sub Inspector and one Head Constable then came to the spot and as per the statement of the accused, he apprised the said police officials of the facts and told that he has an apprehension that he is being kidnapped. This accused has further stated that thereafter one of the members of the said team then took the Sub Inspector aside and showed him some diary upon which the said Sub Inspector then asked the accused to go with the said team whatever place they are taking him to and told him that there is nothing to worry. As per the statement of this accused, he was then taken to a building in New Delhi by the said persons where he was made to sit in a room having the name plate of one P.C. Verma and was not allowed to leave the said room even during the night. He has further stated that during the night, he was handcuffed and chained with a desk that was lying in the said room and only in the morning did some persons come and introduced themselves as NCB officials and demanded an amount of Rs.5 lacs from him. According to this accused, the said officials slapped SC No.108/08 page 16 of 56 NCB Vs. Ajay Aggarwal & Ors.
him and pushed him against a table and that he received injuries on his forehead and his tooth was also broken. He also stated that he was tortured the whole of 23.06.2004 and 24.06.2004 and that on 24.06.2004, he was made to sign some blank and some written documents and was also forced to write some statement u/s 67 NDPS Act.
22.The accused Akeel Ahmed in his statement, has interalia stated that on 22.06.2004 around six persons in plain clothes came to his residence in his village Shahpura, Distt. Rampur and asked him to accompany them. As per this accused, about 10 days prior to this incident, he and his uncle had some dispute with a ration shop owner in the village and he therefore thought that he was being picked up with respect to the said quarrel but that later on, when he was brought to Delhi and questions were asked from him about some chemical did he come to know that he has been picked up on some other ground. This accused has also stated that he was confined in one building for three days i.e. 22.06.2004 to 24.06.2004 and that during this time, he was made to lie on an iron table and was beaten with an iron rod and sticks. He has also stated that he received many injuries on his back and legs and that he was forced to sign many documents.
23.Though accused Ajay Aggarwal has not led any evidence, the accused Akeel has produced DW1, one Bhura in the witness box. This person, as SC No.108/08 page 17 of 56 NCB Vs. Ajay Aggarwal & Ors.
per his deposition is a resident of the same village as of the accused Akeel Ahmed and he has inter alia deposed that on 22.06.2004 at about 10.00 AM, he had seen 56 persons in civil clothes entering the house of Akeel Ahmed and that after a while, he saw them dragging Akeel Ahmed out of his house. He has also inter alia deposed that only later on, he came to know that the accused had been picked up by the Delhi police officials.
24.After the said evidence was led on behalf of the Defence, final arguments were advanced by Ms. Mala Sharma, Ld. SPP for NCB and defence counsel Sh. S.S. Dass. On behalf of the prosecution and defence, written submissions have also been filed. As per the submissions made by Ld. Counsel Ms. Sharma, the evidence of the prosecution witnesses and the statements of the accused persons tendered u/s 67 NDPS Act amply prove the guilt of the accused persons. She has submitted that PW Raju is an independent witness who had joined the proceedings in the present case and that he has also fully supported the case of the prosecution and that therefore, the prosecution has been able to prove its case against the accused persons beyond all reasonable doubts.
25.On the other hand, Ld. Defence counsel Sh. Dass has contended that the entire case of the prosecution is concocted and that the documents produced on record by the prosecution are completely manipulated and SC No.108/08 page 18 of 56 NCB Vs. Ajay Aggarwal & Ors.
that the accused persons were forced to give statement as per the dictation of the NCB officials. He has pointed out various interpolations/ additions in the documents filed on behalf of the prosecution and his contention, therefore, is that the accused persons are not liable to be convicted at all. It is also the submission of the defence that the case property has been tampered with in this case and that no drum whatsoever has been produced in the court in sealed condition. It has also been pointed out by the defence counsel that the vehicle in question from which the recovery of contraband was allegedly made has not been produced and exhibited in the court and that, therefore, the accused persons are entitled to the benefit of doubt even on this ground, more so when the prosecution has even failed to produced the occupants of the truck in the witness box. According to the Ld. Defence Counsel the sole public witness Raju is not a credible witness and that the statement given by him in his crossexamination amply proves that he is a tutored witness.
26.In rebuttal, it has been submitted on behalf of the NCB that the accused persons were found having transporting the controlled substance Acetic Anhydride under their control and supervision and therefore they are liable to be convicted for contravening the provisions of section 29 and are liable to be punished as per section 25 of the NDPS Act. As regards the alleged manipulations/interpolations in the documents produced by SC No.108/08 page 19 of 56 NCB Vs. Ajay Aggarwal & Ors.
the prosecution, the contention is that they are not manipulated. As regards the non production of the vehicle from which the contraband was allegedly recovered, the submission is that it was the court which had released the vehicle on superdari to Mehfooz Alam and the case of the prosecution cannot be doubted just because the said superdar could not produce the same in the court and the occupants of the truck could not be served due to furnishing of wrong addresses by them. According to the written submissions filed, the drums in question were noticed to be properly sealed when they were for the first time inspected by the court and therefore no benefit can be claimed by the accused persons, if over a passage of time the seals on the drums got damaged. In support of her contentions, Ld. SPP has relied upon the following judgments:
● Dalel Singh Vs. State of Haryana 2009(4) JCC (Narcotics)185. ● Siddiqua Vs. Narcotics Control Bureau 2007(1) JCC (Narcotics)
22.
● Vijay Kumar chadha Vs. CBHI 2011(3) JCC 1660(HC). ● Hiralal Pandey & Ors Vs. State of UP 2012(3) JCC 1671 (SC). ● Bhujju @ Karan Singh Vs. State of MP 2012(2) JCC 1192(SC). ● Alangupandi @ Alangupandian Vs. State of Tamil Nadu 2012(2) JCC 1415.
● Ravinder Singh @ Bittu Vs. State of Maharashtra 2001(2) JCC 1059.
● Rehmatullah Vs. NCB 2008(3) JCC (Narcotics) 174. ● Kanhaiya Lal Vs. Union of India (2008) 4SCC 668.
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27. I have carefully considered the submissions made by both the Ld. Counsels and have perused the entire record and the judicial dicta referred to by the Ld. Counsels.
28.I will first consider the three contentions of the Ld. Defence Counsel, which though according to him prima facie completely demolish the case of the prosecution. The first of the said contentions is that the accused persons should be acquitted as the prosecution has failed to produce the case property in a sealed condition and the vehicle namely Mahindra Pickup in which the contraband was being allegedly transported, before the court. As regards the property not produced before the court in a sealed condition, it has been pointed out by the Ld. SPP that on 07.05.2005 an application was filed on behalf of the NCB praying therein that the case property be exhibited and identified at the office of NCB only, as the same consisted of huge drums which cannot be conveniently produced before the court and that the said application was allowed by one of the Ld. Predecessors of this court vide order dated 09.05.2005 and it was directed by the Ld. Predecessor that a Magistrate deputed by the ACMM will record the identification/exhibition of the case property in the NCB office in the presence of the accused persons. A perusal of record shows that on 19.07.2005 Sh. L.K. Gaur (the then Ld. M.M.) had gone to the NCB office and in the presence of Ld. Defence SC No.108/08 page 21 of 56 NCB Vs. Ajay Aggarwal & Ors.
counsels and the accused persons one of the drums was exhibited as Ex.PA1, after it was duly identified by PW1 H.K. Pandey. It has been recorded in the evidence sheet clearly that the Ld. Defence counsel had checked the seal on the drums and it had not been possible to remove the paper slips affixed thereon without disturbing the seal. A perusal of record further shows that the entire case property could not be exhibited on the said day as the Ld. Defence counsel had requested that the first drum Ex.PA1 be opened to verify its contents and due to lack of equipment the drum could not be opened, and therefore, the remaining identification and exhibition of the remaining drums was deferred. Further as per the ordersheet dated 17.11.2005 of the then Ld. M.M. (which is the part of the judicial record) the said identification and exhibition thereafter could not be completed as a circular received from the Hon'ble Registrar General, of Hon'ble Delhi High Court bearing no. 1775/Vig./DHC/V.5/2005 laid down that no court shall hold its proceedings outside the court premises. It is also a matter of record that thereafter it is only in the year 2010 that the NCB finally approached Hon'ble Delhi High Court seeking permission for the exhibition of the case property at its office. Vide order dated 25.05.2011 the said application was allowed by the Hon'ble High Court and pursuant thereto, this court had thereafter gone to the NCB office on 13.07.2011 and on SC No.108/08 page 22 of 56 NCB Vs. Ajay Aggarwal & Ors.
this day the case property consisting of 13 drums was seen by this court and it was found that no seal was affixed on the said drums and on mere touching of the drums, fumes had started coming out of it. It was then explained by the witness PW1 that the substance stored in the said drums namely acetic anhydride is highly coercive material and on exposure to heat, over a passage of time it automatically decomposes the container in which it is stored. Thus, though no doubt the prosecution has failed to satisfy this court as to why it had not resorted to the provisions of Section 52A of the NDPS Act and had got the case property exhibited in terms thereof before the commencement of the trial, the aforementioned facts clearly show that even in the year 2005 the seal on the drums were found intact. In the considered opinion of this court therefore no benefit can be gained on behalf of the accused persons on the ground that the case property when examined on 13.07.2011 was found to be unsealed. As regards the non production of the vehicle in question, in the considered opinion of this court, it is being rightly submitted on behalf of the prosecution that it cannot be faulted for the non production of the same as it was released on superdari by the court itself and that it is the superdar who has failed to produce the same.
29.The second contention of the Ld. Defence counsel is with respect to the manipulation of the secret information Ex.PW3/A. The contents of the SC No.108/08 page 23 of 56 NCB Vs. Ajay Aggarwal & Ors.
said document are as follows I received an intelligence from my reliable source that one person namely Akeel Ahmed S/o Saddique Ahmed R/o Village Shahpura PO Dhanupura Tehsil Swar Distt. Rampur is indulge in illicit trafficking of controlled substance mainly Acetic Anhydride. On 22.06.2004 he will deliver 8 to 10 drums of Acetic Anhydride to one of his customer at Tilyan Gali Tilak Bazar and he will carry/transport the drums of Acetic Anhydride in Mahindra Pickup no. UA 01 1532 and Delivery will be made near fire station Tilak Bazar Delhi at about 1245 to 1315 hrs. The said secret information also has an endorsement that H.K. Pandey, IO should constitute a team and proceed for search operation on early morning of 22.06.2004 and as per the deposition of PW3 P.L. Verma, the said endorsement was made by him. Now the contention of the defence is that the words 1245 to 1315 hours has been added/interpolated later on for else there was no reason for the raiding team to have not proceeded for the spot in the early morning of 22.06.2004, as per the endorsement made by the Superintendent Sh. Verma on the said document. As regards the said contention, in the considered opinion of this court, the same has no force for it is not necessary that if the information was that the accused would be coming to deliver the contraband in the afternoon, the raiding team also has to be directed to proceed for the search in the afternoon itself. Had the defence questioned P.L. Verma about the said information he may have explained SC No.108/08 page 24 of 56 NCB Vs. Ajay Aggarwal & Ors.
the reasons for his direction that the raiding team must proceed in the morning itself. In the absence of the defence having put any such question, the contention of the Ld. SPP that the Superintendent in his wisdom may have wanted the surveillance of the spot 23 hours before the time of the delivery conveyed by the secret informer, is to be accepted.
30.The third contention of the Ld. Defence Counsel is with respect to the alleged manipulation of the panchnama Ex.PW1/G. The defence of the accused Ajay Aggarwal as narrated hereinabove is that he was not apprehended at the place and manner deposed by the prosecution witnesses and that he infact was picked up from the DelhiGhaziabad border and therefore the Ld. Defence counsel has contended that the fact of the search and seizure of the vehicle of the accused Ajay Aggarwal namely the vehicle Esteem car bearing no. UA 06 6789 was later on added/interpolated in the documents already prepared by the investigating officer namely the report, Ex.PW1/DX on the search authorization warrant Ex.PW1/B and the panchnama Ex.PW1/G. Ld. Defence counsel has pointed out that he had categorically questioned the IO H.K. Pandey the author of the said documents about the interpolation of the portion Y to Y containing the words "veh. no. UA066789 also searched and recovery was made as per annexure B to panchnama also SC No.108/08 page 25 of 56 NCB Vs. Ajay Aggarwal & Ors.
seized" in the panchnama Ex.PW1/G and that the said witness admitted that the said portion is not in the same flow as the remaining contents of this document. This court again does not find much force in this submission of the Ld. Defence counsel for the witness H.K. Pandey has explained in his crossexamination that the portion Y to Y on page 10 of Ex.PW1/G has been squeezed between two paragraphs as he had inserted the said lines after writing 34 lines of the subsequent paragraph. It has also been rightly pointed out by the Ld. SPP that apart from the said portion the fact of presence of the Esteem vehicle at the spot is mentioned at page 2 of the panchnama Ex.PW1/G and therefore the mere fact that the portion Y to Y was inserted by the IO after writing a few lines of the subsequent paragraph hardly leads to an inference that the vehicle of accused Ajay Aggarwal was not found present at the spot. This court is also of the considered opinion that the contention of Ld. SPP that since the contraband in the present case was recovered from the Mahindra Pickup bearing no. UA011532, in the ordinary course of proceedings, the IO may not have initially thought of mentioning the facts of search and seizure in Ex.PW1/DX and PW1/G but on realising that the mentioning of the said facts is necessary may have just after the preparation of the said documents, added the said facts appears to be a plausible explanation of the additions made in the said documents.
SC No.108/08 page 26 of 56
NCB Vs. Ajay Aggarwal & Ors.
31. Having negated the aforementioned preliminary objections of the Ld. Defence Counsels, this court shall now consider the evidence that has been led to prove the charges framed against the accused persons which consists namely of the fact of the presence of accused persons at the spot, the statements tendered by them u/s 67 NDPS Act and a subsequent further recovery of controlled substance, pursuant thereto. Ld. SPP Ms. Mala Sharma has pointed out that the accused Akeel Ahmed and Ajay Aggarwal were caught red handed while they were transporting 1600 Kg of Acetic Anhydride in Mahindra Pickup vehicle and pursuant to the summons issued to them u/s 67 NDPS Act, both of them disclosed that they in partnership used to acquire Acetic Anhydride, controlled substance from accused Jaskaran @ Kante and then used to transport and sell the said controlled substance in Delhi. Accused Akeel is also alleged to have disclosed that the recovered substance had been acquired by him from accused Jaskaran @ Kante who stores such substance in a godown at Gajrola and that thereafter a raid was conducted at Gajrola and 5 drums were recovered from a godown under the possession of accused Jaskaran and one of the said drums was found to contain Acetic Anhydride. According to the Ld. SPP the fact that one of the accused persons Akeel Ahmed had disclosed the name of accused Jaskaran and subsequent to the said disclosure 200 Kg of Acetic Anhydride was SC No.108/08 page 27 of 56 NCB Vs. Ajay Aggarwal & Ors.
recovered from Gajrola, the accused Ajay Aggarwal and Akeel Ahmed are liable to be held guilty for having conspired in acquiring 200 Kg of Acetic Anhydride found at Gajrola also.
32.In rebuttal Ld. Defence counsel has contended that the various contradictions and the inconsistencies in the deposition of the prosecution witnesses that have come to the fore during the cross examination of the prosecution witnesses and the apparent manipulations, that have been proved by the defence during trial, of the documents prepared by the investigating official clearly show that neither were the accused persons apprehended at the spot nor had they tendered any voluntary statements u/s 67 of the NDPS Act nor was any recovery made at Gajrola. The contention of the defence is that there is not a shred of evidence on record that the controlled substance in question was booked by the accused persons to be transported in the Mahindra Pickup UA011532. Ld. Defence counsel has pointed out that the two alleged occupants of the said vehicle namely Rais Ahmed and Mohd. Shareef have not been produced by the prosecution in the witness box nor has the investigating agency done any investigation on their own and they just chose to torture the accused persons and made them write confessional statements as per their convenience and that the same confessional statements are being relied upon to prove the guilt of the accused SC No.108/08 page 28 of 56 NCB Vs. Ajay Aggarwal & Ors.
persons.
33.Keeping in view the aforementioned rival contentions, I would first of all consider the recovery of 200 Kg of Acetic Anhydride from Gajrola. The said recovery is being relied upon by the prosecution as an incriminating piece of evidence against accused Ajay and Akeel, as according to the case put forward by the investigating agency, they could recover the aforementioned amount of Acetic Anhydride from this godown only pursuant to the statement given by accused Akeel that he used to acquire Acetic Anhydride from one Jaskaran @ Kante who used to store the same in a godown belonging to him at Gajrola. In this regard, firstly it will have to be noted that the prosecution has not been able to prove that the godown from which the recovery was allegedly made belonged to or was under the control and possession of accused Jaskaran. Admittedly, the investigating agency could not collect a single document showing that the godown in question, an immovable property, was under the possession and custody of Jaskaran and the only evidence being relied upon by the prosecution to prove the said fact is the presence of this accused outside the said godown and the statement of this accused tendered by him u/s 67 NDPS Act. Suffice is to state that only because at 10.30 in the night the accused Jaskaran was found standing outside the godown is hardly sufficient to draw an inference that the said godown SC No.108/08 page 29 of 56 NCB Vs. Ajay Aggarwal & Ors.
belonged to him, more so when he did not even have its key in his possession. As regards the alleged statement tendered by this accused u/s 67 of the NDPS Act, in the opinion of this court, the same cannot be read against his coaccused Ajay and Akeel to conclude that they used to acquire from him acetic anhydride lying in the said godown. Secondly, this court does find merit in the contention of the Ld. Defence counsel namely that the entire case of the prosecution vis a vis the recovery made from a godown at Gajrola is completely improbable and implausible in as much as at about 10.30 in the night the accused Jaskaran, as per the version of the prosecution without any reason, is found sitting outside a godown near a tea stall and without having any photograph of this accused, the NCB team is able to identify him and despite the fact that the accused Jaskaran is stated to be in possession and in control of the godown in question, no key of the same is recovered from him and the NCB team conveniently breaks the lock of the godown and does not even bother to produce the said alleged lock of the godown before this court. In order to substantiate his contention, it has been pointed out by the Ld. Defence counsel that though the recovery of contraband from Gajrola i.e. 675 Kg of Acetic Anhydride was made as per the case of the prosecution only after 2230 hours on 22.06.2004, the summons Ex.PW1/L7 and mark A deposed to have been issued by H.K. Pandey to the accused Ajay SC No.108/08 page 30 of 56 NCB Vs. Ajay Aggarwal & Ors.
Aggarwal and accused Akeel Ahmed respectively on 22.06.2004 at about 07.30 PM (1930 hours) mentions the recovery from Gajrola. With respect to the said summons, though initially Ld. SPP had contended that the summons Ex.PW1/L7 and mark A was served upon the accused persons on 23.06.2004, when it was pointed out to her that H.K. Pandey had deposed in his cross examination that the said summons were served upon the accused persons on 22.06.2004 at about 07:30 PM, she has been at pains to explain as to how the fact of recovery from Gajrola is mentioned in the said summons and therefore either an inference will have to be drawn to that the prosecution has not come up with correct facts with respect to the time of recovery asserted to have been made from Gajrola or the documents Ex.PW1/L7 and mark A were not issued on the date and time that they have been deposed to have been issued. Similarly, in the search authorization issued for the Gajrola premises i.e. Ex.PW3/B and jamatalashi memo of accused Jaskaran Ex.PW5/D there are cuttings at various points and yet again the dates and time of the issuance of the search authorization and the arrest of this accused have been changed and the witness H.K. Pandey has though admitted that he had witnessed the said document, he does not remember anything about the said cuttings.
SC No.108/08 page 31 of 56
NCB Vs. Ajay Aggarwal & Ors.
34.Another very relevant factor which creates a huge doubt with respect to the recovery at Gajrola is that the public witness Raju, who as per the version of the prosecution witnessed both the proceedings at Tilak Bazar and Gajrola has categorically deposed that he had not witnessed any proceedings at Gajrola. Now this witness was examined in chief partly on 07.05.2005 and his remaining examination in chief was deferred on this date as he had stated that he was not feeling well. Before the evidence of this witness was deferred on this date, he had already deposed that he does not remember whether any paper work was done at Gajrola or not as he had slept after 5 drums were recovered and one of them was found having the same chemical as was recovered from Tilak Bazar. However, when he was again called for his remaining examination in chief on 26.03.2012, though he did admit that he had forgotten many facts due to passage of time, he categorically denied that he had witnessed any search and seizure proceedings at Gajrola. He denied all the suggestions put to him by Ld. SPP with respect to the recovery of five drums containing some acid during the search of godown at Gajrola. He has also categorically stated that he had not read the contents of any documents which bear his signature and he was made to sign many documents by the NCB officials. Another very interesting aspect with respect to the presence of this witness at Gajrola is how was he SC No.108/08 page 32 of 56 NCB Vs. Ajay Aggarwal & Ors.
summoned by the IO H.K. Pandey to accompany the raiding team to Gajrola. As per the version of the prosecution, all the written proceedings with respect to the recovery of 8 drums at Fire Station Tilak Bazar were completed at the spot itself including the preparation of the samples, the preparation of panchnama and the sealing of the case property. As per the deposition of PW1, the main investigating officer, H.K. Pandey, the signature of both the public witnesses were also taken at the spot on all the documents prepared. Further, though a perusal of the summons issued to the public witness Raju, Ex.PW1/E shows there are cuttings both on the date of its issuance and the date on which the said witness was directed to appear before the NCB for tendering his statement and PW H.K. Pandey has in his crossexamination admitted that he had made the said cuttings and has not bothered to explain the reason for the same, he has categorically reiterated that he had issued summons u/s 67 NDPS Act to public witness Raju at the spot itself calling upon him to appear in the NCB office on 23.06.2004 for tendering his statement. Therefore as per this deposition there was no occasion for the public witness Raju to be present in the NCB office in the evening of 22.06.2004. However, in the complaint and in his deposition, the complainant/IO has stated that the same panch witnesses namely Raju and Anil were taken by him to Gajrola also. There is no SC No.108/08 page 33 of 56 NCB Vs. Ajay Aggarwal & Ors.
explanation forthcoming from the prosecution as to how the IO, H.K. Pandey called the same panch witnesses in the NCB office in the evening of 22.06.2004, more so, when he himself in his crossexamination has stated that the residential addresses of these two witnesses was never got verified as there was no occasion to do so and the summons u/s 67 NDPS Act were issued to them on the spot on 22.06.2004. Though Ld. SPP has pointed out that in the statement Ex.PW1/U tendered by PW2 u/s 67 NDPS Act, it is mentioned that this public witness had on his own followed the NCB officials to their office and he was taking rest in the NCB office and it was at that stage that he may have been informed by the IO that he has to accompany him to Gajrola, PW2 Raju when questioned in this regard has deposed that after the completion of proceedings at the spot he had not gone to the NCB office but had gone back to deliver the goods that he had purchased to his friend and only thereafter he had gone in the evening of 22.06.2004 to the NCB office as he was told by the NCB officials to come. He has further explained, that he had signed all the documents in the NCB office only and not at the spot. According to his deposition in the crossexamination he had signed on some yellow paper slips at the spot and that all remaining documents bearing his signature were signed by him in the NCB office. In view of this deposition of PW2 Raju, the prosecution was indeed faced with a SC No.108/08 page 34 of 56 NCB Vs. Ajay Aggarwal & Ors.
dilemma for if the statement of PW2 that he was present in the NCB office in the evening of 22.06.2004 is taken to be correct then the reason given by this witness for the said presence namely that he was to sign all the documents prepared by the NCB officials, will also have to be taken to be correct, but then the version of the prosecution that all the documents were prepared and got signed at the spot will be proved false and hence no further submissions have been made in this regard. It is also to be taken note of that in the document Ex.PW1/U the statement recorded of the witness Raju, purportedly u/s 67 NDPS Act,the portion B to B relating to the recovery at Gajrola clearly appears to have been later on written in a squeezed form so as to fit in the documents already got signed from Raju and this fact also shows that the said statement cannot be relied upon to infer that this witness was present during the alleged recovery at Gajrola.
35.Another factor that points out to the implausibility of the case of the prosecution vis a vis the alleged recovery at Gajrola is their failure to explain as to how the 5 drums which were recovered from the godown at Gajrola were transported to Delhi. H.K. Pandey was specifically asked in his crossexamination as to how the NCB team had gone to Gajrola and back and in this respect the deposition of this witness is that all the NCB officials alongwith one public witness Raju had gone to Gajrola in a 8 SC No.108/08 page 35 of 56 NCB Vs. Ajay Aggarwal & Ors.
seater Maruti van and that they had returned back from Gajrola in the said vehicle only with the accused Jaskaran. He does not utter a word as to how the drums recovered from Gajrola were brought back.
36.At this stage, it would be also very relevant herein to take note that Ex.PW3/P the relevant page of the malkhana register does not at all mention the fact that samples allegedly drawn out from the contraband at Gajrola were deposited with the malkhana. As per the said document on 22/2306.2004, "8+5=13 drums of AA and catelic chemicals duly sealed having 1600+675 Kg of AA and catalic chemicals" were deposited by H.K. Pandey alongwith samples A1, B1 to H1(8) and A1, B2...H2(8) sample packets and test memos in triplicate. There is not at all a mention that the samples drawn from Gajrola were also deposited by H.K. Pandey. This witness was specifically asked as to why no such entry was made and except deposing that the said entry is not present in the malkhana register, no explanation was furnished by him. Further, when PW4 N.K. Chaudhary, the Superintendent and the Malkhana In charge was questioned about the said entries and asked to explain as to why the date of deposits is mentioned as 22/23 and how the number of drums deposited are written as 8+5, this witness sought to explain the same by stating that he had started writing the entries on 22.06.2004 and since there was a possibility that apart from the 8 drums recovered on SC No.108/08 page 36 of 56 NCB Vs. Ajay Aggarwal & Ors.
22.06.2004, more drums may be recovered from Gajrola, the entry was kept open and once on 23.06.2004, 5 more drums were recovered the same were also shown. Since the entry reflects that "8+5=13 drums of AA and catelic chemicals duly sealed" having "1600+675 Kg of AA and catalic chemicals were deposited", the witness was asked to explain as to which word were added on 23.06.2004. He stated that the words after the plus sign. Now if the statement is taken to be correct then on 22.06.2004 only the numeral 8 would have been written by him under the column of contraband recovered which is absolutely ludicrous and therefore it is apparent that the entry in the MHCM register does not reflect the true narration of events.
37. Last but not the least it has also been pointed out by the Ld. Defence counsel that H.K. Pandey in his crossexamination has infact admitted that he had never left Delhi for investigation in this case and according to the Ld. Defence counsel this admission is itself sufficient to demolish the entire case of the prosecution vis a vis the alleged recovery of the contraband from Gajrola. As per record, admittedly this statement was made by this witness on 07.02.2012 when he was crossexamined for the second time. Though Ld. SPP has tried to contend that the statement in the evidence sheet is mere a typographical error she has been unable to point out as to what the typing error is. The statement given by this SC No.108/08 page 37 of 56 NCB Vs. Ajay Aggarwal & Ors.
witness is "In the present case, I have not gone to any other place other than Delhi during the entire investigation." Even if it is taken that this witness because of being crossexamined on various dates, uttered a wrong statement which should not be solely relied upon to brush aside his remaining evidence, the manipulations apparent in the documents prepared by this witness and the discrepancies in the deposition of the prosecution witnesses, discussed herein above cannot be ignored and therefore it is to be held that the prosecution has failed to prove the recovery of contraband at Gajrola.
38.The second set of incriminating evidence as narrated hereinabove is the statements tendered by the accused persons u/s 67 of the NDPS Act. Admittedly as per the own case of the prosecution both the accused persons had been apprehended on 22.06.2004. However the statements purportedly tendered voluntarily by them are deposed to have been given on three consecutive dates - 22.06.2004, 23.06.2004 and 24.06.2004. On behalf of the prosecution it has been contended that the accused persons though apprehended on 22.06.2004, were finally arrested only on 24.06.2004 and that therefore w.e.f 2224.06.2004 i.e. before their arrest, they were not in the custody of the NCB and in pursuance of the summons issued to them under 67 NDPS Act had voluntarily tendered three statements consecutively on 22.06.2004, 23.06.2004 and SC No.108/08 page 38 of 56 NCB Vs. Ajay Aggarwal & Ors.
24.06.2004. With respect to the said contention, suffice it to state that the investigating agency is only trying to hoodwink this court by making such contentions. It is indeed ludicrous on behalf of the prosecution to assert that the court must believe the testimony of their investigating officers, PW4 N.K. Chaudhary and PW6 Mangal Das that the accused were at liberty to leave the NCB office and that they were not restrained by any of the NCB officers from leaving the said office. The evasive answers given by the aforementioned witnesses during their cross examinations make it clear that the accused persons were restrained in the office of the NCB and would not have chosen on their own to spend two nights therein in the custody of the NCB. It is more than apparent from the evidence brought on record that the accused persons were in the continuous custody of the NCB w.e.f 22.06.2004 and in such circumstances it cannot at all be presumed that the statements of the accused persons recorded while they were in custody of NCB were the voluntary statements tendered by the accused persons themselves. The Hon'ble Supreme Court in its judgments pronounced in cases titled as Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab and Anr. reported in (2009)12 SCC 161 and JT 2008 (7) SC 409 respectively has clearly held that the purported statements tendered by an accused while in custody cannot be presumed to be his voluntary SC No.108/08 page 39 of 56 NCB Vs. Ajay Aggarwal & Ors.
statement. In Bal Mukund's case, the Hon'ble Supreme Court observed that the authorities under the NDPS Act can always show that the accused had not been formally arrested when his statement was recorded u/s 67 of the NDPS Act and that therefore a court while weighing the evidentiary value of such a statement should not lose sight of the ground realities. The Hon'ble Supreme Court in the said case also made it clear that the observations made by it in Kanhaiya Lal Vs. Union of India (2008) 4SCC 668, (a judgment relied by the prosecution to contend that it is under no obligation to prove that the statement tendered by an accused was voluntary) was passed in view of the peculiar facts in the said case namely that no crossexamination of a material witness was conducted with respect to statement tendered by the accused. In Noor Aga's case, the Hon'ble Supreme Court has clearly held that whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. In another case titled as Francis Stanly Vs. NCB reported in (2006) 13 SCC 2010 the Hon'ble Supreme Court has cautioned that a confession asserted to have been recorded under the NDPS Act must be made subject to closure scrutiny then a confession made to private citizens or officials who do not have investigating powers under the Act.
SC No.108/08 page 40 of 56 NCB Vs. Ajay Aggarwal & Ors.
Now in the present case apart from the fact that the accused persons were in the continuous custody of the NCB for three days, the other relevant attendant circumstance that is to be noted is that in the panchnama itself it is recorded that at the spot only Akeel had claimed ownership of the drums in the Mahindra Pickup. PW4 Sh. N.K. Chaudhary, the official who recorded the statement of accused Ajay purportedly tendered by him u/s 67 of the NDPS Act, in his cross examination has also categorically stated that on 22.06.2004 the accused Ajay Aggarwal had only stated before him that he had given a lift to the accused Akeel on the way to Delhi and that Akeel had merely told him that he has to go to Delhi to deliver some chemical. Now, how did the said statement change to an admission of guilt on behalf of the accused Ajay in the statements allegedly tendered by him on 23.06.2004 and 24.06.2004 can be well imagined. It will be infact very relevant at this stage to take note of the fact that the main investigating officer in this case, Sh. H.K. Pandey is an officer against whom a FIR was registered on the allegations that he had fired at a person who had been summoned in the office of NCB to tender a statement u/s 67 of the NDPS Act. This official in his cross examination was asked whether as an IO he is entitled to carry arms and ammunition to a raid and in answer thereto, he had replied that the investigating officer of NCB do carry arms and ammunitions and the SC No.108/08 page 41 of 56 NCB Vs. Ajay Aggarwal & Ors.
same is issued to them on a case to case basis as and when a request is made and that there is a register maintained in the NCB office in this regard. He has also stated that he has never carried arms and ammunitions with him at the time of recording of statement of accused or a witness in the NCB office. He was then confronted with the fact that whether one FIR stands registered against him on the allegation that he had shot a person in the NCB office because the said person namely one Virender was not writing a statement as per his dictation. In answer to the said question this witness has very evasively replied that he does not remember the allegations made against him in the said FIR but according to him it was a case of accidental firing. He further went on to state that he does not remember if there was a patch up between him and the complainant Virender, but then immediately withdrew the said statement and stated that a quashing petition before Hon'ble Delhi High Court was filed on behalf of himself and the complainant. Similarly, when he was asked whether the accused persons Ajay and Akeel had tendered their statements u/s 67 NDPS Act before him, he initially stated that he was not at all involved in the recording of the said statements and went on to state that by the time he left for Gajrola, he was not even aware of the contents of the said statements but then on realising that he had committed a blunder, he immediately retracted the said statement a SC No.108/08 page 42 of 56 NCB Vs. Ajay Aggarwal & Ors.
minute thereafter by stating that the IO Mangal Dass had informed him that accused Akeel had disclosed in his statement that the supply of recovered contraband, had been made by one Jaskaran Singh. The fact that a FIR stands registered against this official apparently on the allegation that he had shot a person in the NCB office, which may be an accidental case of firing as is being sought to be argued on his behalf, may not be sufficient to throw out his testimony in the present case but the answers given by this witness to the questions put to him with regard to the said FIR show that he is indeed not a credible and trustworthy witness. Even with respect to accused Jaskaran who had expired during the proceedings it will be relevant to note that he also remained in the custody of the NCB the entire day of 23.06.2004 and 24.06.2004 and that there are also so many interpolations in his purported statements tendered u/s 67 NDPS Act, Ex.PW1/Q and Ex.PW1/S not only with respect to the date of his appearance before the NCB but even with respect to the other material facts that the same can hardly be relied upon as an incriminating piece of evidence against the accused Ajay Aggarwal and Akeel Ahmad.
39.It also cannot be lost sight of that in three documents namely, the section 50 notice issued to the accused Ajay Aggarwal, Ex.PW1/F and the summons Ex.PW1/L1 and Ex.PW1/L7 issued to Ajay Aggarwal u/s 67 of SC No.108/08 page 43 of 56 NCB Vs. Ajay Aggarwal & Ors.
the NDPS Act, there is an overwriting on the date appearing below the signature of accused Ajay Aggarwal. In Ex.PW1/F and Ex.PW1/L1 it is apparent that the date 24.06.2004 has been changed to 22.06.2004 and in Ex.PW1/L7 the date 24.06.2004 has been changed to 23.06.2004. Though the contention of Ld. SPP with respect to the said overwriting is that the same has been done by the accused Ajay Aggarwal only and that therefore the prosecution cannot be asked to explain the same, The contention of the defence namely that the said documents were got signed by the NCB officials from the accused Ajay Aggarwal only on 24.06.2004 and therefore this accused initially wrote the said date below his signature but when he was threatened and beaten, he changed the said date to 22 and 23.06.2004 at the instance of NCB officials appears to be a more truthful version. It cannot be assumed that the accused Ajay Aggarwal at that point of time while being in the custody of the NCB had thought of his defence and had made the said overwriting deliberately.
40.The aforementioned discussion makes it clear that neither can this court rely upon the version of the prosecution that any recovery was made at Gajrola nor can the prosecution be believed that the accused persons had themselves admitted their guilt voluntarily. Thus now the only evidence that remains to be considered is that produced to prove the presence of the accused persons at the spot and the search and seizure proceedings SC No.108/08 page 44 of 56 NCB Vs. Ajay Aggarwal & Ors.
conducted at the spot. It is the contention of the Ld. SPP that though the prosecution has not been able to produce the occupants of the Mahindra Pickup, the vehicle in which the contraband was being allegedly transported, the presence of the accused persons at the spot and their signatures on the documents prepared during the search and seizure proceedings amply prove that the contraband was being transported under their control and supervision. With respect to the said contention it will be relevant to point out that as per the own case of the prosecution accused Ajay Aggarwal at the spot had not admitted that he had anything to do with the drums in the Mahindra Pickup and therefore, his mere presence at the spot cannot be taken to be sufficient evidence to prove that the contraband was being delivered under his custody and possession. As regards accused Akeel Ahmad, no doubt, it has been recorded in the panchnama that he had claimed ownership of the drums kept in the Mahindra Pickup, however this court is of the considered opinion that the documentary and oral evidence produced on record to prove that the search and seizure proceedings were conducted in the manner asserted by the prosecution cannot be believed at all as the gospel truth keeping in view the conduct of the investigating officials which has been discussed hereinabove. The Ld. SPP has however submitted that this court must not doubt the same in view of the fact that PW2 a public SC No.108/08 page 45 of 56 NCB Vs. Ajay Aggarwal & Ors.
witness has also deposed before this court about the search and seizure proceedings. She has submitted that though this witness was declared hostile by the prosecution as he had not supported the version of the prosecution with respect to the recovery at Gajrola, his remaining evidence clearly supports the prosecution case and that the same cannot be discarded by this court. In support of this contention, she has in particular referred to the judgment of Hon'ble Delhi High Court in Vijay Kumar Chadha's case (supra).
41. Before considering the aforementioned contention of Ld. SPP, it will be relevant to state herein that the said contention of the defence is that both the panch witnesses, asserted to have witnessed the entire proceedings, are planted witnesses by the NCB and that both of them were in fact called from the taxi stand near the NCB office at R.K. Puram and were made to sign various documents in the NCB office. In this regard, Ld. Counsel has pointed out that the names of the panch witnesses in the panchnama are in different ink than the remaining contents of the said panchnama and that the said names were later on added by the IO and that the said panchnama itself shows that both of them were allegedly residents of Ambedkar Basti, R.K. Puram and that the office of the NCB is also situated at R.K. Puram.
SC No.108/08 page 46 of 56
NCB Vs. Ajay Aggarwal & Ors.
42.In this regard, the first thing to be noted is that in the para 2(b) of the complaint it is mentioned 'armed with the search authorization issued by Sh. P.L. Verma, the complainant H.K. Pandey called two witnesses and introduced themselves and informed them about the secret information, requested them to remain present during the search, to which they agreed. The witnesses alongwith the officers reached the fire station Tilak Bazar, Old Delhi.' As per the said averments in the complaint therefore it was the complainant PW1 H.K. Pandey who had called two witnesses. Though it is not clear from the averments in the complaint that from where were the said two witnesses called, PW1 in his examination in chief has deposed that after the raiding party reached the spot, two panch witnesses namely Raju and Anil Kumar were called at the spot by one of his colleagues. In his cross examination he has further stated that both the panch witnesses were passersby and he himself had stopped the said passersby out of which Raju agreed to join the proceedings and the other panch witness had been stopped by some other NCB official whose name he does not recall. Now though it is not mentioned in the complaint who all NCB officials had gone to the spot, as per the deposition of PW1 H.K. Pandey he was accompanied by B. Joshi (PW7), Ashwini Kumar (PW5), Jagmohan SC No.108/08 page 47 of 56 NCB Vs. Ajay Aggarwal & Ors.
Khati (PW20), Mangal Dass (PW6), Havaldar Jagdish Chand (not examined), Sepoy Rajender Ram (not examined) and driver Babu Lal (not examined). The said members of the raiding team however do not support this version of H.K. Pandey. PW3 has not stated anything in this regard. PW5 in his crossexamination has stated that after reaching the spot, he had suddenly seen two persons standing next to H.K. Pandey and the answers given by him in the crossexamination give an inference that he was not the one who had joined the said public witnesses. PW7 B. Joshi when questioned in this regard had stated that it is Mr. Pandey alone who can tell from where the said witnesses were called and finally PW20 in his crossexamination has stated that he has no idea from where the public witnesses were called. PW2 himself in his examination in chief has first stated that he was passing by the spot when he was stopped by NCB officials and requested to wait with them as they had an information that some illegal chemicals were coming in the area of Tilak Bazar, however in his crossexamination he has stated that nobody had called him at the spot and that he had himself stopped to witness what was happening as a large crowd had gathered and all the persons were wanting to know what was happening and that, thereafter, some person introduced himself to be a NCB official and informed the public that some chemical had already been recovered and requested them to witness SC No.108/08 page 48 of 56 NCB Vs. Ajay Aggarwal & Ors.
the proceedings taking place with respect to the same. This statement of this witness clearly belies his own earlier statement tendered in his examination in chief that the contraband in the present case was recovered much after he was stopped by the NCB officials and that he had witnessed the Esteem car coming and stopping near the Mahindra Pickup. Further though according to a statement given by this witness in his examination in chief, he is a taxi driver for the last 12 years and that on 22.06.2004, he had gone to Kashmiri Gate to purchase some goods for his vehicle, in his crossexamination this witness has stated that on 22.06.2004, he was not working as a driver with any person or taxi stand and that he was unemployed on this date. It will be also relevant herein to reproduce some portions of his crossexamination which do create a doubt on his presence at the spot:
"I had gone to one Gupta Store of Kashmiri Gate which was situated inside a gali of Kashmiri Gate and not on the main road....I do not remember what articles I had purchased from the said Gupta Store....I had gone to Tilak Bazar after coming back from Kashmiri Gate. Again said I do not remember if I had ever gone to Tilak Bazar on 22/6/2004. I do not remember at what time I reached Tilak Bazar on 22/6/2004. I also do not remember till what time I remained present in said Tilak Bazar. I even approximately cannot tell as to whether I remained present at Tilak Bazar for 5 minutes, 10 minutes , 15 minutes or so on or so forth till 1 hour or more. I also do not remember as to which shop I had gone at Tilak Bazar. I also do not remember as to for what SC No.108/08 page 49 of 56 NCB Vs. Ajay Aggarwal & Ors.
reason I had gone to Tilak Bazar or to buy some material from Tilak Bazar."
The said inconsistent statements made by PW Raju hardly inspire any confidence in his testimony. Though the Ld. SPP has contended that the inconsistencies in the deposition of the raiding team members and PW2 Raju are minor in nature and should be ignored by this court, keeping in view the manipulations in the documents discussed hereinabove and the deposition of the witnesses, this court is unable to brush aside the same for the said inconsistencies, do lend credence to the contentions of the defence that PW2 is a planted witness. It also cannot be lost sight of that this very witness, as discussed in the preceding paragraph, has also deposed that he was made to sign many documents and that he signed them without understanding their contents and that too, at the NCB office and not at the spot.
43.In addition to the aforementioned inconsistencies in the testimony of this public witness, it has also not been explained by the prosecution as to how the samples of 25 ml. were drawn out from the huge drums recovered in the Mahindra Pickup. No explanation has been tendered in this respect by the prosecution witnesses. Despite a specific query put by this court in this regard to the Ld. SPP also there is no explanation coming from the prosecution as to how the samples were drawn at the SC No.108/08 page 50 of 56 NCB Vs. Ajay Aggarwal & Ors.
spot as alleged by its witnesses. No doubt since the capacity of the drums was about 200 Kg each, it can be stated that the investigating officers were perfectly right in writing that the recovery amounted to about 1600 Kg of Acetic Anhydride but in the absence of any equipment to draw out the samples of any chemical from the said huge drums it is not understandable as to how two samples of 25 ml each were taken out from each of the drums specially when H.K. Pandey in his cross examination has admitted that the only articles carried by him before proceeding to the spot were field testing kit, lac, thread, needle, white cotton cloth, small weighing machine, paper, pencil, sealing material, test memo, carbon and candle. PW5 Ashwini Kumar who as per his deposition was a member of the raiding team was specifically asked as to how the IO had drawn out the samples and his only answer is that he cannot say by using which utensil had the IO taken out the samples and that he does not remember what was used to take out the samples or whether they were actually weighed at the spot or not. The only inference that can be drawn in view of such depositions is that the samples were not drawn out at the spot as asserted by the prosecution. No doubt had the prosecution taken a stand that the spot being a crowded market place the samples could not have been drawn at the spot and therefore were drawn at the NCB office, there would have been no occasion to hold that SC No.108/08 page 51 of 56 NCB Vs. Ajay Aggarwal & Ors.
there has been any lapse on the part of the prosecution, but since it is the specific stand of the prosecution that the samples were drawn at the spot, their inability to prove it, does give rise to a doubt on the credibility of its witnesses. In a very recent judgment pronounced by the Hon'ble Supreme Court in a case titled as Kuldeep Singh vs. State of Punjab reported in 2011 Cr.L.J. 2672 it has been held by the Hon'ble Supreme Court that non collection of samples at the initial stage of seizure cannot be cured by reopening the seized substance later on and the entire search and seizure procedure in such facts stand vitiated and the accused is liable to be acquitted.
44.At this stage it is also be very relevant to take note of the contention of the defence with respect to the forwarding letter Ex.PW3/G vide which the samples allegedly drawn from the case property were sent to CRCL. It has been pointed out by the Ld. Defence Counsel that the date of issuance of said letter is shown to be 24.06.2004 / 25.06.2004 and the test memo Ex.PW3/H shows that the samples were dispatched on 24.06.2004 and the acknowledgment of CRCL indicates that the samples were received at their end on 25.06.2004. His contention is that from the said three documents it can be inferred that the samples were withdrawn from the malkhana on 24.06.2004 but were finally dispatched only on 25.06.2004 and the prosecution has not bothered to explain in whose SC No.108/08 page 52 of 56 NCB Vs. Ajay Aggarwal & Ors.
custody the said samples remained during this one day in between. On the other hand the the submission of Ld. SPP is that though the forwarding letter Ex.PW3/G was prepared on 24.06.2004, but since the samples could not be sent on this date, they were taken out from the malkhana only on 25.06.2004 and therefore the said date is also mentioned on the forwarding letter. She has however been unable to explain as to why the test memo Ex.PW3/H then mentions the date of dispatch of samples as 24.06.2004 for this document would have been taken out of the malkhana alongwith the samples only. It therefore cannot be said that the prosecution has proved all the links starting from the seizure of the samples till the same reached the hands of the public analyst for the court can conclude that there was no possibility of their tampering. In view of the aforementioned discrepancies, it is clear that the same taken cumulatively do lead to an irresistible inference that the prosecution has failed to prove the samples were drawn by the IO at the spot, from the drums allegedly recovered and that they were properly deposited with the malkhana and that the same samples were then sent to the CRCL and that there was no possibility left by the investigating agency for the tampering of the samples. In somewhat similar circumstances the Hon'ble Supreme Court had acquitted the accused in a case titled as State of Rajasthan vs. Daulatram (1980) 3 SCC 303. It SC No.108/08 page 53 of 56 NCB Vs. Ajay Aggarwal & Ors.
has been reiterated by the Hon'ble Supreme Court in its pronouncements in various cases under the NDPS Act that since the provisions of NDPS Act provide for severe punishment great care should be taken to see that all the safeguards provided in a statute are scrupulously followed.
45.In view of the discussion hereinabove, this court is of the considered opinion that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. No doubt in the judgments relied upon by the Ld. SPP, the Hon'ble Supreme Court has held that minor contradictions in the depositions of witnesses and the minor errors committed by witnesses are inconsequential, however this court is of the considered opinion that the errors committed by the investigating officials in the present case cannot be stated to be minor or inconsequential. This court is conscious of the fact that in the present case as per the version of the prosecution a huge amount of Acetic Anhydride was allegedly recovered from the accused persons but in the opinion of this court, the huge amount of contraband recovered cannot be made the sole criteria for judging the merits of this case. On the one hand it has been vehemently contended on behalf of the prosecution before this court that the accused persons should be held guilty as they were found transporting huge amount of controlled substance, while on the other hand it has been submitted that the manipulations, if any of the SC No.108/08 page 54 of 56 NCB Vs. Ajay Aggarwal & Ors.
documents done by the investigating officers should not be given much importance. In a case titled as State of Punjab v/s Baldev Singh reported in (1999) 6 SCC 172 the Hon'ble Supreme Court has observed that the argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in the NDPS Act may result in more acquittals, does not appeal to it. The Hon'ble Supreme Court has also observed in the said case that indeed in every case the end result is important but the means to achieve it must remain above board and the remedy cannot be worse than the disease itself. The Hon'ble Supreme court has cautioned that legitimacy of the judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconsciousably compromising the administration of justice which cannot be permitted. In the present case also this court is constrained to note that the manipulations done in the documents prepared during investigation do lead to an inference that the investigating officials have not come with clean hands before this court and therefore this court is of the considered opinion that the evidence produced by them on record cannot be accepted as credible and trustworthy and the accused persons are to be given the benefit of doubt.
SC No.108/08 page 55 of 56
NCB Vs. Ajay Aggarwal & Ors.
It is therefore hereby held that both the accused persons stand acquitted of the charges framed against them.
Announced in open Court on this 29th day of September, 2012 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House:New Delhi SC No.108/08 page 56 of 56