Delhi District Court
Ncb vs . Rakesh Dwevedi on 15 October, 2011
NCB vs. Rakesh Dwevedi
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL
JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI
Date of Institution : 14/08/1992
Judgment reserved on :10/10/2011
Date of pronouncement : 15/10/2011
SC No. 140/08
ID No. 02403R0169132008
NCB Vs. Rakesh Dwivedi
S/O Sh. Bansi Lal Dwivedi
r/o H.No. 63, Triveni
Apartment, Pitampura
Delhi
JUDGMENT
1. The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer Sh. P.G. Shenoy has filed the present complaint against the accused u/s 21, 23 29 & 31 (2) of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as the NDPS Act).
2. Briefly stated the allegations against the accused as contained in the complaint are as follows:
1
NCB vs. Rakesh Dwevedi
a) The Royal Canadian Mounted Police (hereinafter referred to as RCMP) approached the Narcotics Control Bureau (hereinafter referred to as NCB), about a major undercover operation planned by them involving a gang of notorious drug traffickers in Canada. NCB was informed that an undercover agent of RCMP had been approached by one Abdulla (khan) Noori for acting as a courier for transporting heroin from New Delhi to Canada. RCMP requested for permission of 'controlled delivery' in order to apprehend the persons involved who are based in Canada.
b) On consideration of the proposal, it was agreed that 90% of the drugs involved would be seized in India and remaining 10% would be allowed to go to Canada for seizure there, as that would provide adequate evidence against the conspirators both in India and Canada. Pursuant thereto, the RCMP team comprising of one female undercover agent and two members male cover team landed at IGI airport in early hours of 26th June, 1991. Smooth clearance of RCMP team was arranged by the NCB officials through Customs and once out of the arrival hall, the undercover agent was received by the accused while 2 NCB vs. Rakesh Dwevedi the coverteam of two members were taken care of by the officers of NCB.
c) On 1/7/1991 at about 1630 hours, the accused allegedly arrived at Hotel Hyatt Regency where the undercover agent was staying and delivered a navyblue colour suitcase believed to be containing heroin to Ms. Rose Mary Abbruzzese, the undercover agent in her room. After the accused left, the suitcase was examined and since it was not possible to recover the heroin concealed in the suitcase without damaging it, it was decided that the suitcase containing heroin may be allowed to go as it is with the RCMP undercover agent. Accordingly, the RCMP team including the undercover agent left with the suitcase on the same day i.e. 1/7/1991 for Toronto.
d) On 3/7/1991, the officers of RCMP seized 951 gms. of heroin, which was recovered from the false side of the suitcase carried by the undercover agent Ms. Rose Mary Abbruzzsesse to Toronto. Abdulla (Khan) Noori and other conspirator Sadeq Sedigi were arrested in Toronto and this was communicated to NCB. The NCB requested the RCMP to send the relevant 3 NCB vs. Rakesh Dwevedi documents. On receipt of photographs of the suitcase wherein the drug had been concealed, it was discovered that a very ingenious modus operandi for concealment of the drugs had been employed and the lower portion of an identical suit case had been fitted into the lower portion of the subject suitcase in a very clever, professional style and in the small cavity, remaining between therein 951 grams of drug was spread in 18 thin polythene bags. Pursuant to the said discovery, residential premises of the accused was searched on 20/9/1991 by the officers of the NCB and upper part of a Echolac suitcase (brownish black colour) whose portion bearing numbered lock was also broken from three sides, was recovered.
e) The accused was examined under section 67 of the NDPS Act and he admitted having packed the heroin and handed over the same to the undercover agent along with Rs.15,000/ for her expenses.
f) It has also been submitted that the accused was earlier convicted by a Canadian court on 29/4/1987 for having committed an offence of illegal trafficking of drugs and was 4 NCB vs. Rakesh Dwevedi sentenced to imprisonment for eight years and it is therefore submitted in the complaint that accused is liable to be convicted and punished according to the section 31 (2) of the NDPS Act.
3. On the basis of the material on record vide order dated 16/11/1995 charges were framed against the accused for the offences punishable u/s 21, 23 r.w.s. 29 of the NDPS Act.
4. In order to prove the aforementioned charges prosecution /complainant has examined seven witnesses in all.
5. PW3 Sh. D.C. Mishra who was the Intelligence Officer, NCB and PW4 Sh. Mohender Singh who was the Assistant Director, NCB at the relevant time, have deposed on similar lines. According to their deposition, after having received communication from the RCMP, surveillance was mounted on the activities of the accused and that on 26/6/1991 the accused was seen at IGI airport (International) New Delhi in the early hours and was also seen receiving the lady passenger Ms. Rose Mary. PW4, has also, in particular, deposed that this lady was the undercover agent of RCMP and she was accompanied by 5 NCB vs. Rakesh Dwevedi two officers of RCMP and the said two officers were received by a team of officer of the NCB headed by him and that the smooth clearance of the RCMP officers as well as undercover agent was organized by the NCB only. According to the deposition of both these witnesses the lady undercover agent after being received by the accused was taken by him in his red maruti car to hotel Ashoka Delux in Karol Bagh. The NCB officers are stated to have followed the accused and found that after few minutes the accused and the lady undercover agent came out of the said hotel and then headed for hotel Hyatt Regency. Both of them have deposed that at Hotel Hyatt Regency the accused got the lady lodged in room no. 183 and then went away from the hotel. As per their deposition, he was thereafter also kept under surveillance and on 1/7/1991 at about 4:30 p.m. in the afternoon the accused was seen entering the hotel Hyatt Regency with one navy blue colour suitcase in his hand. Both these witnesses have deposed that after delivering the said suit case in Rose Mary's room, the accused left the hotel. The suit case was then brought in room no. 184 and was opened in the presence of RCMP officers as well as undercover agent. PW3 has specifically deposed that he had heard the 6 NCB vs. Rakesh Dwevedi accused telling Rose Mary that there was heroin inside the suitcase. He has also then deposed that since the suit case was very cleverly and nicely stitched from inside it was not possible to recover the heroin from it without breaking its side linings or bottom. Thereafter, according to PW4, it was decided that suitcase should be allowed to be taken by the RCMP officials as such and therefore RCMP officers along with the undercover agents left with the said suitcase for Canada by Air France flight in the night of 1/7/1991. Both the said officers have further deposed that in the month of September, 1991 information was received from the RCMP officers that 951 grams of heroin was recovered from the said suit case and that two persons namely Sh. Nabil Ahmed alias Abdullah Noori and one Siddiqui were arrested. Photographs of the recovered substance from the suitcase was also sent to the NCB officers and thereafter PW1 Sh. P.G. Shenoy Inspector, Customs Narcotic Cell, Bangalore was given authorisation by PW3 D.L Mishra to search residence of accused Rakesh Dwivedi at 46, Triveni Apartments in North Delhi, Pitampura. The letters dated 4/7/1991, 11/7/1991, 14/8/1991, 20/8/1991 and17/9/1991 of RCMP stated to be addressed to this witness or forwarded to 7 NCB vs. Rakesh Dwevedi him have been exhibited as ExPW4/A, ExPW4/B, ExPW3/DA, ExPW4/C and ExPW4/D respectively. This witness has also deposed that the certificate of analyst report of the substance as per which the substances recovered from the suit case found to be heroin was also received from the RCMP and the same has been exhibited as ExPW4/C. The sworn affidavit of Ms. Rose Mary given before the Canadian Court is also stated to have been received by this witness and same has been exhibited as ExPW4/G. The transcript of the conversation between the accused Abdullah Noori running into 182 pages has been exhibited as ExPW4/I and ExPW4/J.
6. PW1 Sh. P.G. Shenoy has deposed that on 20/9/1991 after receiving the search authorisation he reached the house of the accused and searched the residential premises of the accused in the presence of his wife Smt. Suman and two independent witnesses. As per his deposition during the said search of the house, the upper portion of a large size suit case, make Echolac was recovered from the house of the accused and the same was seized and sealed. Panchnama ExPW1/B was also prepared. The said suit case has been produced in court and has 8 NCB vs. Rakesh Dwevedi been exhibited as ExP2. As per deposition of this witness on 21/9/1991 the accused himself also brought his car bearing no . DL2CA 8651 in the office of NCB and the same was also seized. This witness has further deposed that on 21/10/1991 he went to the Hotel Ashoka Delux, Karol Bagh and interrogated Chandra Mohan, receptionist of the said hotel who identified the photographs of the accused as of the same person who had come to the said hotel on 20/9/1991. The statement of this witness recorded by PW1 has been placed on judicial record and has been exhibited as ExPW1/C. This witness has also deposed that he had placed accused under arrest vide arrest memo ExPW1/D.
7. PW5 Sarvan Singh was also posted as Intelligence Officer, NCB at the relevant time and his deposition is only to the effect that he had recorded the statement of Suman, wife of accused. According to this witness she had given her statement in her own handwriting and her statement has been exhibited as ExPW5/A.
8. PW6 Surinder Gupta who was also posted as 9 NCB vs. Rakesh Dwevedi Superintendent in NCB, New Delhi at the relevant time has deposed that he had issued summons to the accused on 21/9/1991, in pursuance of which the accused is stated to have appeared before him and tendered his voluntary statement in his own handwriting. This witness has also deposed that accused had surrendered one diary containing 112 pages and the accused was also shown some photographs which he identified. The summons issued to the accused have been exhibited as ExPW6/A and the statement tendered by him has been exhibited as ExPW3/C. The photographs shown to the accused which contained endorsement by the accused have been ExPW6/B1 to ExPW6/B7 and ExPW1/H1 to ExPW1/H6. The diary surrendered by the accused has been exhibited as ExPW6/B8.
9. PW7 Sh. S.K. Goel who was posted as Dy. Director NCB at the relevant time has produced on record the correspondence which was entered between the RCMP and the NCB office. The said documents have been exhibited as ExPW7/A, ExPW7/B and ExPW4/D. 10 NCB vs. Rakesh Dwevedi
10. PW2 Ms. Jasbir Kaur who was one of the panch witnesses in whose presence search of the house of the accused was asserted to have been conducted, turned hostile and has not supported the version of the prosecution. Though she has admitted her signature on search warrant, she has denied that she was present during the search of the house of the accused or that in her presence a portion of a suitcase was recovered from the house of the accused. She has deposed that she had signed certain documents at the instance of NCB officers. She has denied the suggestion by the Ld.APP that she is deposing falsely as she has been won over by the accused.
11. It is relevant to mention herein that as per record when despite various opportunities granted to NCB failed to produce the officials of the RCMP and undercover agent Rose Mary before the court, Ld. Predecessor of this court vide order dated 4/12/2009 closed the evidence of the prosecution. As per record, the NCB had then preferred a revision petition before the Hon'ble High Court for quashing of the said order but the said petition was dismissed by the Hon'ble High Court vide order dated 12/7/2011. It was observed by the Hon'ble High 11 NCB vs. Rakesh Dwevedi Court that ample opportunities have been granted to the prosecution for procuring the attendance of their witnesses. It has also been observed by the Hon'ble High Court since the petitioner/the NCB was not even in a position to state the time within which the attendance of the witnesses could be procured, there would be no purpose served in granting opportunity for further PE.
12. The evidence produced by the seven witnesses of the prosecution was put to the accused and his statement was recorded under section 313 Cr.P.C. on 21/12/2009. In the said statement accused stated that he has been falsely implicated and that he had not given any voluntary statement to the NCB officials and was coerced to write the said statement. Though initially no defence evidence was led on behalf of the accused, an application u/s 311 Cr.P.C. was filed on his behalf on 5/10/2011 for summoning certain records from Tihar Jail. The said application was allowed by this court and in pursuant thereto DW1 Sh. Surender Kumar, Warden/dark rider has produced before this court register no. 1 which is maintained by Jail officials at the time of admission of accused persons into 12 NCB vs. Rakesh Dwevedi Tihar Jail. A perusal thereof shows that at the time of admission of the accused in Tihar Jail on 21/9/1991, tenderness on his right thigh and injury on the thumb of his left hand was observed. The relevant page of the said register containing the said endorsement by the jail officials has been exhibited as ExDW1/A.
13. Ld.SPP Sh. Satish Aggarwala and Ld. Counsel Sh R.D. Mehra for accused have both filed written submissions and have also advanced arguments at length. I have considered their submissions carefully and have perused the entire record.
14. Now the charges for which the accused has faced trial are that on or before 01/07/1991, he entered into a criminal conspiracy with his friend Nabil Ahmad, then living in Toronto, Canada to acquire and export Heroin outside India and that for this purpose on 01/07/1991, he acquired possession of 951 grams of Heroin and after packing the same in the false cavity of the suitcase, delivered the same on 01/07/1991 to Ms. Rose Mary, undercover agent at Royal Canadian Mounted Police, posing as courier for the friend of the accused. The contention 13 NCB vs. Rakesh Dwevedi of the Ld. Counsel for the NCB is that the telephone monitor log of the telephonic conversation between the accused Rakesh and Abdullah Norrie @ Nabil Ahmad received from the RCMP officials and placed on record by the prosecution witnesses clearly proves the criminal conspiracy entered into by the accused for export of Heroin. He has further submitted that the affidavit of Rose tendered before the Canadian Court also received from RCMP and placed on record by PW4 show that the accused had delivered a suitcase to her and the exhibit report giving the detail of the seizure affected at Canada from the said suitcase, the report of the Chemical Analyst proves that the suitcase contained Heroin. According to him, the photographs of the suitcase received by the NCB from RCMP and thereafter, the subsequent recovery of an upper portion of a suitcase from the house of the accused, all cumulatively taken amply prove the charges against the accused. He has submitted that the entire set of documents produced by the prosecution witnesses are admissible in evidence u/s 66 of the NDPS Act and if the same are considered by this court, it will be clear that the prosecution has been able to prove its case beyond reasonable doubt. He has also submitted that in his statement 14 NCB vs. Rakesh Dwevedi tendered u/s 67 of the NDPS Act the accused has admitted his guilt in the present case and has narrated the entire chronology of events describing his complicity in the offence. His contention is that the submission of the accused that he was coerced to write the said statement cannot be believed by this court as the accused has not entered in the witness box and he has not deposed this plea on oath. He has also contended that the mere filing of the retraction application by the accused is of no consequence but a waste paper on the judicial file. He has also submitted that if a statement is not retracted at the first available opportunity, no reliance can be placed upon it. In support of his contentions Ld. Counsel has relied upon the following judgments.
(i) Subhash Jain vs. State 2011 (2) JCC 1921
(ii) Crl. Appeal no. 101 of 2005 Abas Khan vs. Central
Bureau of Narcotics
(iii) Ravinder Singh vs. State of Mahrashtra 2002 (2) JCC 1059
(iv) Hem Raj vs. State AIR 1964 SC
(v) Crl. Appeal no. 90 of 2005 Rehmatullah vs. NCB 15 NCB vs. Rakesh Dwevedi
(vi) Raj Kumar Karwal vs. Union of India - 1991 Crl. L.J. 97 (SC)
(vii) Kanahiya Lal vs. Union of India AIR 2008 (SC) 1044
(viii) A.K. Mehboob vs. Intelligence Officer, NCB (2001) 10 SCC 203
(ix) M. Prabhu Lal vs. The Assistant Director, DRI JT 2003 Suppl. (2) SC 459
(x) K.I. Pavunny Vs. Assistant Collector (1997) 3 SCC 721
(xi) Emmanneul Uchenna Ezenwosu vs. NCB 2003 (1) JCC 417: 2002
(xii) Khet Singh vs. Union of India (2002) 4 SCC 380
(xiii) M. Prabhu Lal vs. Assistant Director, DRI (2003) 8 SCC 449.
(xiv) T. Shankar Prasad vs. State of Andhra Pradesh - Crl. Appeal No. 909 of 1997 .
(xv) S. Jeevannatham vs. The state - 2004 JCC 1048. (xvi) Delias Christopher Vs. Customs - 2004 (3) JCC 147.
15. On the other hand, Ld. defence counsel Sh. R D Mehra 16 NCB vs. Rakesh Dwevedi has contended that there is not an iota of evidence produced before this court on the basis of which the accused can be convicted. In particular, he has contended that no permission whatsoever was sought by the NCB from the Government of India, Ministry of Finance, Department of Revenue, for the sanction of controlled delivery. Further the alleged agreement arrived at between RCMP and NCB has neither been produced nor the Director General of NCB at the relevant time Sh. C Chakrvarty has stepped into the witness box to depose about the execution of the said alleged agreement. He has further contended that even as per the own case of the complainant, NCB, the said alleged agreement permitted the RCMP only to take 10% of the recovered drug and the 90% was to be left at India but that even this agreement has not been followed and it has not been explained by the prosecution as to how the undercover agent Rose Mary was allowed to take alongwith her, the entire recovered drug in the suitcase. Ld. defence counsel has also vehemently contended that in the present case neither has the case property been produced before the court nor has any witness appeared in the witness box to depose as to what was actually recovered from the suitcase allegedly handed over 17 NCB vs. Rakesh Dwevedi by the accused to undercover agent Rose Mary. He has further submitted that the upper portion of the suitcase allegedly recovered from the accused was of the make "Echolac" though as per some of the witnesses of the prosecution the suitcase that was handed over to Rose Mary was of the make "Eminent". He has also submitted that the deposition of Rose Mary before a Canadian Court and the evidence produced in the said court cannot be read by this court as the documents pertaining to the same have not been proved as per the provisions of the Evidence Act. He has pointed out that as per Section 86 of the Indian Evidence Act, a court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of India is genuine and accurate, if the document are certified by a political agent or representative of the Central Government in or for such country. He has submitted that none of the documents asserted to be part of the judicial record of court of Canada have been certified or authenticated in the manner prescribed under Section 86 of the Indian Evidence Act and that, therefore, this court cannot look into the said documents at all. He has also submitted that the Ld. Counsel for NCB is only trying to mislead this court - he 18 NCB vs. Rakesh Dwevedi has pointed out that in its judgment pronounced Noor Agha vs. State of Punjab and Anr. JT 2008 (7) SC 409 the Hon'ble Supreme Court has categorically held that the onus of proving the statement of an accused recorded u/s 67 of the Act being voluntary is upon the prosecution and not on the accused. He has submitted that the entire case of the prosecution is based on surmises and conjectures and instead of investigation the NCB officials in the present case have only brutally tortured and threatened the accused to admit his guilt vide the so called voluntary statement u/s 67 of the Act. He has also submitted that the cross examination of PW3 and PW4 makes it amply clear that the statement of the accused recorded u/s 67 of the NDPS Act was coerced out of him. He has further submitted that at the first opportunity available to him the accused had written to the then Ld. ACMM that he had been forced to give the said statement. According to him the said application filed before the then Ld. ACMM Sh. K C Lohia is a part of the judicial record and that the same bears a noting of the Ld. Judge to place it on record and that therefore, accused is not required to prove the said retraction statement. He therefore submits that none of the judgments relied upon by Ld. counsel Sh. Satish 19 NCB vs. Rakesh Dwevedi Aggarwala are applicable to the facts and circumstances of the present case. He has further submitted that the Hon'ble Supreme Court in its catena of judgments has reiterated repeatedly that conviction under this Act should not be based merely on the basis of the statement made by the accused u/s 67 of the Act without any independent corroboration, particularly in view of the fact that such statement has been retracted. In support of his contentions he has relied upon the following judgments:
(i) Suba Singh Vs. The State of Punjab 1984 CC Cases 250 (HC)
(ii) Patrick Bruno Wafula Vs. Department of Customs 2001 (2) JCC (Delhi) 250
(iii) Emmannuel Uchenna Ezenwosu Vs. Narcotics Control Bureau and Ors. 2003 (1) JCC 417
(iv) Emma Charlotte Eve Vs. Narcotic Control Bureau 2000 (2) JCC (Delhi) 331
(v) NCB Vs. Aziz Ahmad 2010 I AD (Delhi) 175
(vi) Krishan Kumar Vs. State XII1987(3) Crimes 758
(vii) Ram Singh Vs. Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140
(viii) Bank of Baroda Bombay Vs. Shree Moti Industries, Bombay and ors. AIR 2008 Bombay 201
(ix) Noor Aga Vs. State of Punjab & anr. 2008 (3) JCC (Narcotics) 135 20 NCB vs. Rakesh Dwevedi
16. I have given careful consideration to the submissions made by both the Ld. Counsels and have perused the entire record. At the outset it is to be noted that during the time the alleged proposal for controlled delivery was received by the NCB officials from RCMP, thee was no provision in the NDPS Act relating to the concept of 'controlled delivery'. Section 50 A enabling the Director General of NCB to undertake the controlled delivery of any consignment, was inserted in the NDPS Act only with effect from 2/10/2010. In Emma Charlotte Eve's case (supra - judgment relied upon by the Ld. Counsel for accused and mentioned at sl. no. (iv) herein above), the Hon'ble High Court has held that in the absence of there being any specific provisions in the NDPS Act for dealing with an operation relating to the controlled delivery, the said operation cannot be stated to be permitted in India.
17. Though Ld. Counsel for NCB has fairly conceded to this legal proposition, his submission is that the absence of any such law however does not take away anything from the fact that the accused did hand over the suitcase of heroin for export outside 21 NCB vs. Rakesh Dwevedi India. In my considered opinion even if the said submission is accepted, the prosecution has miserably failed in the present case to prove the said fact. Nor has the suitcase been produced in this court nor the heroin allegedly recovered from the said suitcase has been produced in court. As per the own averments of the prosecution the proposal of controlled delivery accepted by them itself envisaged that the Canadian Officials would only be allowed to take 10% of the recovered drugs and the remaining 90% of the drugs involved would be seized in India. The explanation sought to be tendered for not following the terms of this agreement is that the drugs were concealed in such a manner in the suitcase that the same could not have been recovered without breaking open the entire suitcase and that therefore the officials of NCB took a decision to allow the Canadian officials to take the entire suitcase with them. The contention is that since the NCB officials wanted the operation to be successful they did not want to take any chances by breaking open the suitcase and substituting it with another. Be that so, the fact remains that neither the suit case allegedly handed over by the accused to Rose Mary nor the contraband, possession of which is accused has been charged with has been 22 NCB vs. Rakesh Dwevedi produced before this court. All that this court has before it is the evidence of the officials of NCB, PW3 and PW4 describing how the accused was seen receiving the undercover agent Rose Mary and taking her to Hyatt Regency and then handing over a suitcase to her. As per the testimony of these prosecution witnesses, neither the suitcase in question was opened in India nor any of them went to Canada to see for themselves as to what was recovered from therein. No doubt, documents including the chemical analyst report of the substance recovered from the suitcase, the affidavit of Rose Mary tendered before the Canadian Court, a diary maintained by Rose Mary, the statements of other witnesses tendered before the Canadian Court, the telephone monitor log of the telephonic conversation between accused Rakesh and Abdullah, photographs of the suitcase from which the contraband was finally recovered have all been placed on record, but it has been rightly contended by the ld. defence counsel that none of these documents have been proved before this court. He has rightly submitted that neither have the executants of these documents appeared as witnesses nor the said documents have been tendered in evidence as per the provision of Section 86 of the Indian Evidence Act or as per 23 NCB vs. Rakesh Dwevedi those of Section 66 of NDPS Act. Both these Sections require that in case any documents have been received from any place outside India they have to be duly authenticated by such authority or person and in such manner as may be prescribed by the Central Government but the said requirement has not been met in this case. The mere submission of Ld. Counsel for NCB that these documents have already been exhibited during trial and that, therefore, this court must read the same in evidence cannot be upheld because it is well settled law that mere exhibition of documents in no manner dispenses with their proof as per law. The same proposition has been laid down by the Hon'ble Delhi High Court in Emmannuel Uchenna Ezenwosu's case (supra - judgment relied upon by the Ld. Counsel for accused and mentioned at sl. no. (iii) herein above). In view of the said judicial dicta none of the aforementioned documents placed on record can be read in evidence against the accused in the absence of their executants being produced in the court and in the absence of these documents having been authenticated as per the requirement of law.
18. In view of the above discussion it is clear that not only in 24 NCB vs. Rakesh Dwevedi the present case has the alleged contraband not been produced in the court there is not a single witness who has been able to depose in the court that he was the witness of recovery of heroin from the suitcase in question.
19. The Ld. counsel for NCB has then submitted that this court cannot ignore the fact that the upper portion of the suitcase in question was recovered from the house of the accused and that if the same is considered along with the evidence tendered by PW3 and PW4 and the statement of the accused tendered by him voluntarily under Section 67 of the NDPS Act, the same can be made the basis for the conviction of the accused.
20. With respect to this contention it is be noted that first of all the said recovery is itself doubtful. The testimony of PW1 P.G. Shenoy Inspector, who as per the prosecution, had searched the house of the accused hardly inspires any confidence. In his cross examination he has deposed that he cannot say with certainty on which floor was the flat of the accused situated nor was he able to tell as to how many floors 25 NCB vs. Rakesh Dwevedi were there in the multi storey building in which the search was conducted. He also admits that he did not make any enquiry as to who was the owner of the flat from where the said suitcase was recovered. He did not even make an inquiry as to whether the accused was occupying the same as a tenant or not. He did not ever bother to record the statements of panch witnesses who are stated to have witnessed the said recovery. In fact PW2 Jasbir Kaur, who as per the testimony of this witness, was one of the panch witnesses who had witnessed the recovery from the house of the accused, has turned hostile and has submitted that she was made to sign certain documents by the NCB officials and that she had not witnessed that a suitcase was recovered from the house of the accused. Further even if, for the sake of arguments, one assumes the recovery of the said portion of the suitcase from the house of the accused, it is not at all proved that this is the portion of the identical suitcase, the lower portion of which was fitted in the suitcase allegedly handed over by the accused to Rose Mary. The sole piece of case property that has been produced before this court is the broken part of a suitcase of Make "Echolac" which as per the testimony of the prosecution witnesses was recovered from the 26 NCB vs. Rakesh Dwevedi house of the accused. Though in the complaint, the make of the suitcase which was allegedly handed over by the accused to Rose Mary is not mentioned specifically, the photographs of the suitcase filed alongwith the complaint show that it was of Make "Eminent". Further PW4 in his cross examination has also specifically deposed that the suitcase which was allegedly handed over by the accused to Rose Mary was Blue in colour and its Make was "Eminent". But there is not an iota of evidence produced before this court to show that a suitcase of Make "Echolac" is identical to a suitcase of "Eminent", so that its lower portion could have been fitted therein.
21. Coming now to the deposition of PW3 and PW4, who are stated to have mounted a surveillance on the movement of the accused and to have witnessed the handing over of the suitcase by him to Rose Mary, it is to be said that their depositions do not inspire much confidence. Though, PW3 in his examination in chief has categorically deposed that in the first week of June, 1991 a communication was received from RCMP in which it was specifically mentioned that one person named Rakesh Dwivedi (ie. the accused) available at Delhi phone no. 5751173 27 NCB vs. Rakesh Dwevedi was engaged in an attempt to send heroin to two persons at Toronto, there is not a single letter placed on record by the prosecution which was received by them in the first week of June, 1991 from RCMP containing the said intimation. Infact as per the correspondence placed on record it is only in the month of August, 1991 that after the two persons at Toronto were arrested that the RCMP informed the availability of this accused at the said number. Further though very interestingly this witness in his examination in chief has stated that he had heard the conversation between the accused and Ms. Rose Mary inside her room and that he had heard the accused was telling her the heroin was inside the said suitcase, he admits in his cross examination that he had not seen the accused delivering the suitcase in the room of Rose Mary. It is also beyond comprehension as to how conversation made between two persons in a hotel room would have been heard by a third person standing outside it. This witness also appears to be suffering from selective amnesia. He is unable to recollect whether the suitcase was opened with keys or it had a number combination. He also admits that though he had continuously mounted surveillance upon the accused he does not remember 28 NCB vs. Rakesh Dwevedi the make, model number of the vehicle or the fact whether private vehicles or government vehicles were used in the surveillance movement. He also does not recollect the make of the suitcase in question. He has specifically deposed that he does not recollect if it was "Eminent" or "Echolac". His deposition with respect to the service of summons upon the accused u/s 67 NDPS Act is also equally evasive and has been discussed hereinafter. Further it is to be noted that both PW3 and PW4 were posted on responsible positions of Superintendent and Asst. Director NCB respectively at the relevant time but yet the kind of investigation that they have done is hardly of the nature which is expected of such high ranking officials. Both of them have admitted that they did not think it necessary to record the statement of either Rose Mary or any of the other RCMP officers accompanying her, before allowing them to leave India and that too with the entire recovered contraband. It is also admitted by them that no report about the opening of the suit case was given to any superior officer nor was a written order obtained from any superior officer permitting the undercover agent to take the suitcase along with her without retaining 90% of the possible recovery. 29 NCB vs. Rakesh Dwevedi Both of them also admit no statement of the staff of the Hyatt Regency was recorded with respect to the fact as to who had booked the room for Rose Mary. It is also admitted by them that neither was the suitcase weighed or measured nor were its photographs taken. They also admit that no official records of the surveillance mounted by them were maintained. In view of such depositions hardly any reliance can be placed on them.
22. Now coming to the relevance of statement of the accused recorded u/s 67 NDPS Act, I have gone through all the judgments relied upon by the Ld. Counsels for both the parties. In its very recent judgment pronounced in Ram Singh's case (supra) the Hon'ble Supreme Court after discussing all its previous judgments has condensed the principle of law with respect to the statements of an accused recorded u/s 67 of the Act and in this regard in para 12 has held that :
'' A confession, if it is voluntary, truthful, reliable and beyond reproach is an efficacious piece of evidence to establish the guilt of the accused. However, before solely acting on confession, as a rule of prudence, the Court requires some corroboration but as an abstract proposition 30 NCB vs. Rakesh Dwevedi of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made under Section 67 of the Act.''
23. Thus as per this judicial dicta a voluntary confession can be made the sole basis for the conviction of an accused for an offence under this Act, though as a rule of prudence the court may require some corroboration of the same. As discussed herein above, in the facts and circumstances of the present case, there is no corroborative relevant evidence produced by the prosecution to support the purported confessional statement of the accused. Even so I have still proceeded to examine whether the statement of the accused recorded u/s 67 of the Act can be stated to be voluntary. Though both Ld. Counsels have argued that the onus of proving the confession as voluntary is not on their respective parties, in my considered opinion now that the entire evidence led both by the prosecution and the accused is before this court the question of onus of proving the said fact becomes irrelevant. This court is now bound to examine all the evidence that has been led both on behalf of both the prosecution and the accused in order to determine the voluntary 31 NCB vs. Rakesh Dwevedi nature of the purported statement of the accused .
24. Now as per the case of the prosecution, the accused in pursuance of the summons issued to him had voluntarily appeared before the NCB officials and had tendered the statement Ex.PW3/C. On the other hand, the version of the accused is that he was forcibly picked up from his house by the NCB officials and kept in their custody on 20/09/91 and 21/09/91. The version of the accused appears to be more truthful because of the following contradictions in the depositions of the prosecution witnesses. The summons Ex.PW3/B asserted to have been issued to the accused mention that the accused must report for his statement in the office of NCB, on 20/09/1991 at 2 p.m. In his cross examination PW3 Sh. D C Mishra first states that he had served the summons Ex.PW3/B on the accused at the time of search of his house at Triveni Apartments, he then takes a complete somersault and states that he does not recollect whether it was done so and he is then not even sure whether the accused was present at the time of his house search or not. He then deposes that the said summons had been served personally on the accused by some 32 NCB vs. Rakesh Dwevedi NCB officers but that he does not recollect by whom. He also states that he cannot verify even from the record where and how was the accused served. This turn around occurred when he was asked to explain as to how did the NCB officials expect the accused to appear before them at 2:00 p.m. when as per the panchnama Ex.PW1/A, the search of the house of the accused was completed only by 230 p.m. and according to the own deposition of PW3 it took him about 45 minutes to 1 hour to reach the office of R K Puram after conducting the search. Further, PW3 on being asked if the accused was permitted to leave the NCB office on 20/09/1991 has evasively replied that when he himself had left the office, the accused was still present in the office of NCB and he cannot say what happened to the accused thereafter. The second summons Ex.PW6/A asserted to have been issued to the accused, required him to appear before the NCB officials on 21/09/1991 but a perusal thereof shows that the column of the time was left blank therein. Further this summons is purported to have been issued by PW6 Surender Gupta. In his cross examination this witness states that the summons dt. 20/09/1991 and 21/09/1991 were served upon the accused in the office of NCB itself, but then 33 NCB vs. Rakesh Dwevedi again takes a somersault to state that he cannot state anything about the summons issued to the accused for his attendance, on 20/09/1991. He has further deposed that he does not know who had been entrusted with the service of the summons upon the accused nor does he know as to why the statements of the accused was not completed on 20/09/1991. He has also refused to admit or deny whether the accused was in the custody of NCB on 20/09/1991 and 21/09/1991. Such kind of depositions hardly inspires any confidence in the credibility of the prosecution witnesses.
25. On the other hand, the plea of the accused that he was tortured by the NCB officials while being in their custody is supported by the jail record, ExDW1/A. The retraction of the accused which is part of the judicial record and ExDW1/A both lend credence to the plea of the accused that he had not given his statement voluntarily. The record, does in fact, shows that accused Rakesh Dwivedi had been forced to admit his complicity in the present case and that he at the first available opportunity, informed the court that he had been tortured by the NCB officials to do so. In such view of the matter it is being 34 NCB vs. Rakesh Dwevedi rightly contended that version of the prosecution that accused Rakesh Dwivedi voluntarily tendered all his statements cannot be believed at all and thus the same cannot be made the sole basis for holding the accused guilty of the offence that he has been charged with.
26. In view of my discussion herein above I am of the considered opinion that there is no admissible and credible evidence before this court on the basis of which the accused can be held guilty. He therefore is hereby acquitted of all the charges framed against him.
Announced in open Court on this day of 15th October, 2011 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi 35 NCB vs. Rakesh Dwevedi NCB vs. Rakesh Dwivedi 15/10/2011 Present: Ld. SPP Sh. Satish Aggarwala for NCB.
Accused on bail.
Vide separate judgment, announced in open court the accused stands acquitted. However in terms of the provision of section 437 A Cr.P.C. he is hereby directed to tender personal bond of Rs. 10,000 with one surety of like amount to ensure his presence before the Ld. Appellate Court in case an appeal is filed against the present judgment. It is made clear that the said bond shall remain in force only for a period of six months. On request of the accused to come up for tendering of the said bail bond on 17/10/2011 at 2:00 p.m. (Anu Grover Baliga) Spl. Judge, NDPS New Delhi/15/10/11 36 NCB vs. Rakesh Dwevedi Fresh bail bond has been tendered on behalf of accused. The same stands accepted. The earlier bail bond tendered by accused during trial stands cancelled. His surety stands discharged. Original documents if any of the previous surety be returned to him. The case property be confiscated to the state after the expiry of period of appeal/revision. This file be consigned to RR.
(Anu Grover Baliga) Spl. Judge, NDPS New Delhi/15/10/11 37