Delhi District Court
Sc No.61/09 State vs . Abdul Latif & Anr. on 3 May, 2014
SC No.61/09 State Vs. Abdul Latif & Anr.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS: PATIALA HOUSE COURTS: NEW DELHI
SC No. 61/09
ID No. 02403R0050762009
FIR No. 33/08
PS Special Cell
u/s 21 NDPS Act
State Vs. 1. Abdul Latif
S/o Sh. Asola Mohammad
R/o H.no. 88, Olowogo Street,
PS Poko, Logas State,
Nigeria
2. Hemant Kumar Bhati
S/o Sh. Joginder Pal Bhati
R/o H.No. 748, Gali Dorwali,
Paharganj, Delhi.
Date of Institution : 19.02.2009
Judgment reserved on : 19.04.2014
Date of pronouncement : 03.05.2014
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as 'NDPS Act') and FIR No. 33/08 PS Special Cell Page No. 1 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
Section 420/468/470 Indian Penal Code (hereinafter referred to as 'IPC').
2. Briefly stated the allegations that can be culled out from the contents of the chargesheet and the documents filed with the same are as follows:
(a) On 19.06.2008 Inspector Attar Singh of Special Cell, Rohini was telephonically informed by an employee of DTDC Courier and Cargo, Naraina Industrial Area that the courier company had received a parcel for consignment to South Africa through one of its franchisees at Chandni Chowk and that the contents of the said parcel appear to be suspect. The said information was relayed by Inspector Attar Singh to ACP Ravi Shankar and was also reduced into writing by Inspector Attar Singh and as per the instructions of the ACP, a raiding team comprising of Inspector Attar Singh, Inspector Solanki, HC Brijender Singh and other staff left for DTDC office at Naraina. On reaching the said office, the employee who had given the information namely, one Vikram Singh Rawat met them and handed over a parcel to them.
(b) On opening the said parcel it was found containing 3 cardboard boxes and each of the cardboard boxes in turn were found containing one photo album. None of the photo albums had any photograph inside them but their covers were found to be very thick and something appeared to be concealed inside the album covers. The side cover of one of the album was cut and the same was found concealing therein cream colour powder FIR No. 33/08 PS Special Cell Page No. 2 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
in small polythene. The powder on checking with Field Testing Kit gave positive result for heroin and its weight came out to be 340 gm. Similarly the other two albums in the other two cardboard boxes was also checked and were found to contain similar amount of heroin. It is asserted that the recovered heroin had been concealed in the album by wrapping the polythene packets containing heroin in carbon paper in such a way that it could not be detected even by the Xray machine. The entire recovered heroin was mixed together, kept in a polythene and thereafter two samples of 5 gm each were taken out. The samples were given mark S1 and S2 and the remaining heroin kept in the polythene was given mark S. The other packing material i.e. the cardboard boxes, photo albums, polythene bags, carbon paper were separately sealed in a pullanda and the said pullanda was given mark T. Form FSL was filled and all the parcels and form FSL were seized vide a seizure memo.
(c) After the search and seizure proceedings, the statement of Vikram Rawat was recorded wherein he informed the investigating officials that as per the airway bill accompanying the parcel, the said parcel had been booked by one Anil Sharma r/o 3632/III, Netaji Subhash Place, Darya Ganj at the franchisee office of DTDC at Chandni Chowk. Vikram Rawat also informed the investigating officials that during transit the parcel had got a little torn and that he had noticed some white colour FIR No. 33/08 PS Special Cell Page No. 3 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
powder oozing out from the same and that is the reason he had suspected the parcel to be containing something suspicious and had therefore informed the Special Cell. On the basis of the said statement and the search and seizure proceedings, the rukka was prepared and the present FIR was got registered.
(d) During further investigation and in view of the aforementioned statement given by Vikram Rawat, the franchisee office of DTDC at Chandni Chowk was then visited and one Hardesh Sharma was found running the said franchisee in the name of his brother Amit Sharma. During enquiry Hardesh Sharma informed the NCB officials that one Anil Sharma had booked the parcel in question with him on 16.06.2008 and that he had given his mobile number as 9971844745. The said person also informed the investigating officials that Anil Sharma had earlier also on 24.05.2008 booked another parcel for Canada and that the same was booked vide airway bill number N 91907879 and the said Anil Sharma had also signed on the said bill.
(e) During the course of further investigation, the Customer Application Form and CDR of mobile number 9971844745 were obtained from the service provider. On the basis of the said CDR, the IMEI number of this phone was established to be 354167025099028. This IMEI number was found to being used by one Umesh Kumar examined in this FIR No. 33/08 PS Special Cell Page No. 4 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
case as PW9. PW9 produced a bill vide which he had purchased the handset having above mentioned IMEI number from Shelly Communication run by one Amit Kumar for Rs. 1250/. Umesh Sharma also produced the mobile instrument which was purchased by him through this receipt. Upon verification, this phone was found containing IMEI No. 354164024315042 whereas its receipt mentioned the IMEI No. 354167025099028.
(f) On 01.09.2008, accused Abtul Latif was apprehended in connection with case FIR No. 55/08 PS Special Cell and 1 Kg heroin was recovered from him. He made a disclosure statement therein about his involvement in this case and inter alia disclosed that he through his associate Hemant, had got booked the parcel in question containing heroin for South Africa. On 02.09.2008 at the instance of accused Latif, accused Hemant was arrested and from his possession the mobile phone having IMEI No. 354167025099028 and having SIM card of phone number 9971844745 was recovered. During interrogation of this accused, it was revealed that Amit Kumar, the proprietor of Shelly Communication (from where PW9 Umesh had purchased his mobile instrument) was the younger brother of accused Hemant and that it was Hemant who after coming to know of the registration of the present FIR, to mislead the investigating officials had substituted the mobile set sold to Umesh vide the bill FIR No. 33/08 PS Special Cell Page No. 5 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
produced by Umesh by the mobile set that was used by him at the time of the booking of the parcel. After this accused was arrested, an application was filed for getting his test identification parade conducted by PW3 Harshad Sharma but the accused refused to participate in the said proceedings. Later on during police remand PW3 Harshad Sharma did identify the accused Hemant as the person who had booked the parcel with him and from which the contraband was recovered on 19.06.2008.
(g) Further after the arrest of this accused, his specimen handwriting was taken and was sent to FSL for comparison with the writing appearing on airway bill booked with Hardesh Sharma in the name of Anil Sharma for Canada on 24.05.2007. These documents were examined by PW12 Sh. Anurag Sharma, Handwriting Expert and he confirmed that the handwriting appearing on the airway bill appeared to have been written by the same person whose specimen handwriting had been sent to him.
(h) During further investigation, on enquiry PW18 Subhash Batra, Assistant Superintendent of Jail confirmed that accused Latif and Hemant had remained lodged together in the year 2006 and 2007 in Central Jail, Tihar. Further the CDR of mobile number 9971844745 recovered from accused Hemant and mobile number 9958021050 recovered from accused Abdul Latif showed their connectivity over a long period. Even on the day FIR No. 33/08 PS Special Cell Page No. 6 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
the consignment was booked, both these numbers were found to be in constant touch with each other.
3. On the basis of the aforementioned material on record, Ld. Predecessor of this court had framed charges vide order dated 05.06.2009 against both the accused persons Hemant and Abdul Latif for having conspired to acquire and export vide courier parcel, commercial quantity of heroin outside India and for thereby having committed offences punishable u/s 21(c), 23 and 29 NDPS Act. An additional charge against accused Hemant was framed u/s 419 IPC for having impersonated as one Anil Sharma at the time of booking of the parcel. The prosecution in order to prove its case has examined 19 witnesses in all.
4. PW1 SI Abhay Ram, duty officer has inter alia deposed that he was the duty officer on 19/06/2008 and that on this date he had received the rukka of the present case through HC Bijender Singh and had registered the FIR, Ex.PW1/A.
5. PW2 Vikram Singh Rawat is the employee of DTDC Courier and Cargo Limited who had first informed the Special Cell about the receipt of the suspicious parcel. This witness in his deposition has inter alia deposed that on 09.06.2008 a parcel alongwith airway bill no. N91907891 was received in the Naraina office of DTDC from one of their franchisees at Chandni Chowk and that it was destined for South Africa and as per the FIR No. 33/08 PS Special Cell Page No. 7 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
airway bill, it had been booked by one Anil Sharma. According to the deposition of this witness on checking of the parcel he had found that the parcel had been slightly torn during transit and some smell was coming from inside the parcel. He then took the said parcel and found that the same contained three carton boxes and that each of the carton boxes was containing photo albums in it but that there were no photographs in the said photo albums and from the side cover of one of the albums, white colour powder was oozing out. He then immediately informed his senior officials about the parcel who instructed him to relay the information to the Special Cell office. This witness has thereafter gone on to describe the entire search and seizure proceedings that were conducted in his presence by the investigating officials. The statement given by him to the investigating officials has been proved by him as Ex.PW2/B. He has also proved the proof of delivery copy of the airway bill as Ex.PW2/1 and he has further deposed that the seal after use by the investigating official was handed over to him.
6. PW3 Hardesh Sharma has inter alia deposed that he runs a courier business at 1935/226, second floor, Fountain Electric Market, Chandni Chowk and that he is also having a franchisee of DTDC courier company and that on 16.06.2008 one person had come to his shop at about 07.1507.30 PM and had handed over him an album in open condition FIR No. 33/08 PS Special Cell Page No. 8 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
weighing about 4 Kg for sending the same to South Africa and that he had booked the same vide airway bill no. N91907891. According to the deposition of this witness the same person had booked another parcel with him even earlier i.e. on 24.05.2008 for being consigned to Canada and that the said parcel had been booked vide airway bill no. N91907879. He has further deposed that the person who had booked the parcel had represented himself to be Anil Kumar and had also signed as such on the airway bills. The said witness pointed out to accused Hemant and stated that he appears to be the person who had booked the parcels with him. It is also the deposition of this witness that he had gone to Tihar Jail to identify this accused in the month of September, 2008 but that on the said date the identification proceedings could not be conducted.
7. PW4 Inspector Govind Sharma has interalia deposed that on 19/06/2008, he was posted as SHO, PS Special Cell and on that day, HC Bijender Singh had produced before him. The case property, one FSL Form and carbon copy of seizure memo. As per the deposition of this witness, he had put his initials and his seal 'GS' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana by MHC(M) and had lodged DD No. 4 in this regard.
8. PW5 Inspector Attar Singh, PW8 HC Bijender Singh, PW14 Inspector Upendra Solanki and PW19 SI Satendra Vashisht are the FIR No. 33/08 PS Special Cell Page No. 9 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
officials who have deposed about the investigation conducted in this case. They have more or less deposed on similar lines. As per their deposition the information received about the suspect parcel from DTDC courier company was reduced into writing vide DD No.6 and a copy of the said DD has been exhibited as Ex.PW5/A. All the said aforementioned witnesses have also deposed about the search and seizure proceedings conducted at the office of DTDC with respect to the suspect parcel. The seizure memo prepared during the said proceedings has been exhibited as Ex.PW2/A and the statement of Vikram Rawat, the official of DTDC courier company recorded has been exhibited as Ex.PW2/B. The rukka prepared has been exhibited as Ex.PW5/B. The said witnesses have also deposed about the investigation proceedings that took place on 20.06.2008 at the office of franchisee of DTDC in Chandni Chowk. As per their deposition the proprietor of franchisee at Chandni Chowk i.e. Hardesh Sharma had handed over the airway bills of the two parcels which a person posing as Anil Kumar had booked with him and also provided the mobile number of the said person to the investigating officials. The said mobile number 9971844745 as per the deposition of PW5 was then kept on surveillance and as per the deposition of this witness, the SIM card bearing the same very number was recovered from accused Hemant at the time of his apprehension on 03.09.2008. As per the deposition of this FIR No. 33/08 PS Special Cell Page No. 10 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
witness accused Hemant could be apprehended only after the coaccused in this case, Abdul Latif who was arrested on 01.09.2008 in case FIR No. 55/08 and disclosed to the investigating officials that he had got booked the parcels containing heroin from one Hemant at the franchisee of DTDC at Chandni Chowk and led the officials to a hotel named Siraswal, New Paharganj and pointed out to the accused. The disclosure statement of accused Abdul Latif in this regard has been exhibited as per the deposition of this witness as Ex.PW5/H. The arrest memo/personal search memo of accused Hemant have been exhibited as Ex.PW5/C and PW5/D respectively. This witness has also inter alia disclosed that the specimen handwriting of accused Hemant were taken on six separate sheets S1 to S6 and the said sheets have been exhibited as Ex.PW5/F1 to PW5/F6. The seizure report u/s 57 NDPS Act deposed by this witness to have been prepared by him has been exhibited as Ex.PW5/A. As per the deposition of PW19 SI Satendra Vashisht after the search and seizure proceedings of the suspect parcel were completed by Inspector Attar Singh at the spot, he had been handed over the investigation. As per his deposition he had prepared a site plan Ex.PW19/A and had also seized the airway bill tracking details from the said courier office Ex.PW19/1 vide memo Ex.PW2/C. PW8 HC Bijender Singh has also deposed that on 3/7/2008 he had taken pullanda mark X1 from MHC(M) vide RC No. 57/21 and FIR No. 33/08 PS Special Cell Page No. 11 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
had got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M).
9. PW6 Sh. Naveen Arora, the then Ld. ACMM, Saket Courts has inter alia deposed that an application for the Test Identification Parade of accused Hemant Kumar was filed before him. The said application as per the deposition of this witness has been exhibited as Ex.PW6/1 and the TIP proceedings deposed to have been conducted by the said Ld. Judicial officer and the certificate issued by him in this regard have been exhibited as Ex.PW6/2 and PW6/3. As per the same the accused Hemant had refused to participate in the test identification parade.
10.PW7 Dr. Madhulika Sharma, Assistant Director, FSL Rohini has proved the report prepared by her with respect to the analysis conducted by her of the sample sent to FSL. The said report has been exhibited as Ex.PW7/A and as per the said report, the samples Mark S1 was found to contain acetylcodeine, monoacetylmorphine, diacetylmorphine, paracetamol and caffeine and the percentage of diacetylmorphine was found therein to be 25.32%.
11.PW9 Umesh Kumar has inter alia deposed that in the month of September, 2008 he had received a call from some police official on his mobile number 9990290199 and that as per instructions given by the said police official, he had reached U.K. Hotel, Gali no.6, Multani Dhanda, FIR No. 33/08 PS Special Cell Page No. 12 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
Pahargunj and that on reaching the said spot 45 police officials had met him and had enquired from him about the Nokia mobile set that he was using. He has further deposed that he informed the police officials that he had purchased the said mobile set from Shelly Communications near Silver Place Hotel, Pahargunj and the receipt issued to this witness by Shelly Communications has been proved by this witness as Ex.PW9/A. He has also deposed that he had accompanied the police officials to the shop of Shelly Communications and had identified one of its employees, Deepak Solanki as the person who had sold the mobile phone to him. According to his deposition, the mobile set was seized by the police officials from him and during his deposition he has identified the said mobile set, produced by the prosecution as Ex.PW8/A.
12.PW10 Sh. Tarun Khurana, Nodal Officer from Bharti Airtel Ltd. has produced before the court, the call detail records of the mobile number 9971651473, 9958021050, 9971844745, 9971844540 and 9717660352 for the period 01/06/2008 to 01/09/2008 and the same have been exhibited as Ex.PW10/A to Ex.PW10/E. The said witness has also produced the customer application forms and copy of identity proof with respect to the said numbers Ex.PW10/F to Ex.PW10/J.
13.PW11 Mam Chand is the public person in whose name the mobile no. 9971844745 was found subscribed. As per the deposition of this witness FIR No. 33/08 PS Special Cell Page No. 13 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
he had never applied for the said number at all and though the Airtel Prepaid Form Ex.PW10/H has his photograph affixed on it and is also accompanied with a copy of his election I card, as per the deposition of this witness somebody filled up the form Ex.PW10/H in his name and had misused his photograph and election I card.
14.PW12 Anurag Sharma, Senior Scientific Officer, FSLRohini has inter alia stated before this court that he had examined the specimen handwriting of accused Hemant with that of the questioned handwriting on the airway bill handed over by Hardesh to the investigating agency. As per his report Ex.PW12/A the specimen handwriting of accused Hemant was found matching with the questioned handwriting on the airway bill in question.
15.PW13 Sh. Mohan Kumar has inter alia disclosed that that he was not using the mobile no. 9971844540 at any point of time and neither the CAF Ex.PW10/F was got deposited by him with the concerned mobile company nor are the details therein filled in his handwriting or on his instructions.
16.PW15 Giriraj Sharma, an official from the Home Department has proved on record the orders that were passed by the Principal Secretary (Home), Sh. G.S. Patnayak granting permission with respect to the interception of the relevant mobile numbers in the present case. The said FIR No. 33/08 PS Special Cell Page No. 14 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
orders have been proved as Ex.PW15/A to PW15/F.
17.PW16 ExSI Paramjeet Singh has deposed that he was posted as MHC(M) at PS Special Cell on 19/6/2008 and that on this date, SHO of the said PS had deposited with him three sealed pullandas alongwith sample pullandas, sealed with the seal of ASY and GS and the said property was deposited by him in malkhana vide entry 1147, Ex.PW16/A. He has also deposed that on 3/9/2008 SI Upender Solanki had also deposited one mobile phone having SIM card along with two separate SIM cards and the articles of personal search of accused Hemant with him and he has proved the said entry at Serial No. 1220 as Ex.PW16/B. According to his deposition, on 5/9/2008 SI Upender Solanki had also deposited one mobile phone, one bill book with him and he has proved the said entry at Serial No. 1224 as Ex.PW16/C. This witness has further deposed that on 3/7/2008 he had also sent the samples to FSL Rohini through HC Bijender vide RC No. 57/21/08, Ex.PW16/F and on 12/8/2008 SI Satender had deposited one pullanda sealed with the seal of FSL Rohini with him and he has proved the said entry at Serial No. 1147 as Ex.PW16/E.
18.PW17 SI Gyan Chand has deposed that he is posted as SO ACP, Special Cell. As per the record produced by this witness, on 19/6/2008 DD no. 6 regarding secret information and report u/s 57 NDPS Act regarding FIR No. 33/08 PS Special Cell Page No. 15 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
seizure of heroin, on 3/9/2008 report u/s 57 NDPS Act regarding arrest of accused Hemant Kumar Bhati and on 6/9/2008 report u/s 57 NDPS Act regarding arrest of accused Abdul Latif were received in the office of ACP and were put before the ACP. The reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW5/A, Ex.PW5/K, Ex.PW17/A to Ex.PW17/F.
19.PW18 Subhash Batra, Assistant Superintendent, Tihar Jail has proved on record a report Ex.PW8/A as per which the accused persons in the present case namely Abdul Latif and Hemant Bhati, were both lodged in Tihar Jail during the year 2006.
20.Apart from the aforementioned witnesses, one Doctor Kanak Lata Verma, Senior Scientific Officer, FSLRohini has also been examined as court witness CW1 as she is the expert who had conducted the analysis of the fresh samples drawn from the case property pursuant to an application filed by the accused persons in this regard and allowed by this court.
21.The entire aforementioned incriminating evidence was put to the accused persons and their statements were recorded u/s 313 Cr.PC. Both the accused persons in their statements tendered u/s 313 Cr.PC have denied their complicity in the present case. Accused Abdul Latif has inter alia deposed that no contraband was recovered from his possession either in FIR No. 33/08 PS Special Cell Page No. 16 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
this case or in the case FIR No. 55/08 and that he had been forcibly picked up by the police officials and was given electric shocks in his private parts and tortured mercilessly and that he was forced to sign many blank documents. As per the statement given by this accused he never had any association with Mohd. Akhtar or Hemant and that he had never spoken to them even telephonically.
22.Accused Hemant in his statement u/s 313 Cr.PC has inter alia stated that he was not apprehended in the manner deposed by the prosecution witnesses and was not apprehended on 3/9/2008 at 02:00 PM but infact was picked up forcibly by the police officials on 2/9/2008 at about 08:00 PM from near his residence. As per the statement tendered by this accused, on 2/9/2008 at about 08:00 PM he had left his residence to go to the market to buy an envelope with a one rupee coin affixed on it for he along with his family were supposed to go to jagran and had required an envelope for giving shagun. According to the statement tendered by this accused while he was on the way to the market 5 persons in civil clothes stopped him and told him that Hero Honda bike that he was driving was involved in an accident in Rohini and further alleged that he had injured a lady by knocking her over with his bike and on this pretext they took him to PS Special Cell, Rohini. According to this witness also he was beaten mercilessly by the police officials in the Special Cell, Rohini and was FIR No. 33/08 PS Special Cell Page No. 17 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
made to sign many blank documents. As per this accused he had never booked any parcel containing any contraband with the DTDC courier and that he had no association whatsoever with his coaccused Abdul Latif at all. In support of his defence, this accused has produced his wife Kanchan in the witness box and the said lady has been examined as DW1. In her deposition she has also inter alia deposed that on 2/9/2008 her husband i.e. Hemant had left the house to go to the market to buy an envelope and that he did not return back from the market for a long time and that she could not even contact him as his mobile was coming switched off. As per the deposition of this witness it was only at about 12:30 at night that her husband himself called her from a landline number and told her that he would be coming next morning. According to her when her husband did not even return the next morning, on the advise of his relatives/friends she went to police chowki Paharganj to register a complaint but they refused to do so on the pretext that no complaint can be registered before the expiry of 24 hours of the missing of a person. She has further deposed that it was only 4/9/2008 she has received a call from the Special Cell, Rohini informing her that her husband is in their custody. The said witness has been duly cross examined by the Ld. APP for the State.
23.After the conclusion of the defence evidence, Ld. APP for the State Sh. Rajiv Mohan and Ld. Defence Counsels Sh. N.K. Srivastava for accused FIR No. 33/08 PS Special Cell Page No. 18 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
Hemant and Sh. A.K. Sahoo for accused Abdul Latif have advanced final arguments. All the Ld. Counsels have also filed written submissions on record. According to the Ld. APP, the search and seizure proceedings during which the heroin was recovered from the suspect parcel in the office of DTDC have been duly proved by the investigating officer and that there is no reason for this Court to disbelieve the testimony of police officials in this regard. It has also been pointed out by Ld. APP for State that the employee of the franchisee of the DTDC Courier has identified the accused Hemant to be the same person who had booked the suspect parcel with him and the testimony of the said witness is corroborated by the report of the FSL expert who has opined that it is the handwriting of accused Hemant only which is found on the airway bill pertaining to the parcels booked by Hemant with the franchisee in question. He has further pointed out that it was only pursuant to the disclosure of accused Abdul Latif that the investigating officials were able to apprehend Hemant in this case and therefore his submission is that the disclosure of accused Abdul Latif leading to the apprehension of the accused Hemant is admissible against accused Abdul Latif. It is also the submission of the Ld. APP that the CDRs of the mobiles being used by both accused Hemant and Abdul Latif show that they were in continuous touch with each other and had conspired with each other to deal in heroin. Thus according to the Ld. FIR No. 33/08 PS Special Cell Page No. 19 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
APP the prosecution has produced sufficient evidence on record to prove that both the accused Adbul Latif and Hemant had conspired to acquire and export heroin outside India. In support of his contentions Ld. APP has relied upon the judgment titled and reported as K. Chinna Swami Reddy vs. State of A.P. AIR 1962 SC 788.
24.On behalf of accused Abdul Latif, the main contention forwarded by Ld. Counsel Sh. A.K. Sahoo is that there is no admissible evidence produced by the prosecution to hold this accused guilty for having conspired with accused Hemant for booking the parcel in question. He has submitted that though the asserted disclosure statement of this accused led to the apprehension of accused Hemant, the same is not admissible in evidence and is hit by the provisions of section 25 of the Evidence Act. He has further submitted that the mere fact that the call detail records of the mobile phones allegedly recovered from the accused persons show that they were in touch with each other is not sufficient to infer that both the accused persons were in conspiracy with each other, more so when the said phones have not been found to be subscribed in the name of the accused persons. It is further the submission of Ld. Counsel that the fact that both the accused persons were lodged in Tihar Jail during the same period is insufficient to lead to an inference that both of them had conspired with each other to export heroin outside India. FIR No. 33/08 PS Special Cell Page No. 20 of 39
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25.Ld. Counsel Sh. N.K. Srivastava, on behalf of accused Hemant, has inter alia contended that there is no direct evidence produced by the prosecution against accused Hemant to prove that he had booked the suspect parcel. He has pointed out that the courier employee who had completed the booking formalities of the suspected parcel has deposed in the court that he iss not sure whether it is accused Hemant only who had booked the parcel in question. He has further pointed out that the airway bill which mentions the name of one Anil Kumar as the consignor is not with respect to the parcel from which contraband was allegedly recovered. He has further submitted that the report of the FSL expert that the handwriting on the said airway bill was of accused Hemant only, should not be given much importance by this court because accused Hemant has informed this court at the time of tendering his statement u/s 313 Cr.PC that he was forced by the police officials to write and sign on the said airway bill. Ld. Defence counsel has also pointed out that the mobile number found on the said parcel has not been found to be subscribed in the name of accused Hemant and thus his submission is that there is no material to connect accused Hemant with the said parcel.
26.Both the Ld. Defence counsels have also pointed out that admittedly the suspect parcel was already torn at the time of its search and seizure and their contention is that therefore the possibility of tampering with the FIR No. 33/08 PS Special Cell Page No. 21 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
contents of the parcel cannot be ruled out. They have further pointed out that the colour of the samples that were assertedly drawn out from the substance recovered from the suspected parcel in question was found to be different from the colour of the case property, during trial and that is the reason this court had allowed fresh samples to be drawn out from the case property and be analysed. According to them the FSL report with respect to the said analysis makes it apparent on that the prosecution has failed to prove that what was sent to Chemical Examiner was the same that was recovered from the suspect parcel and according to them this in itself is sufficient to acquit the accused persons of the offences that they have been charged with. In support of their contentions, Ld. Defence counsels have relied upon the following judgments:
● Emma Charalotte Eve vs. Narcotic Control Bureau Del. 2000 (4) AICLR 645 ● Kamruddin Jamaluddin Pathan Vs. The State of Maharashtra (Bombay) (DB) 1191 Cr.L. J 826 ● A judgment dated 2/7/2012 pronounced by the Hon'ble Delhi High Court in Criminal Appeal No. 909 /2005 titled Basant Rai vs. State
27.I have carefully considered the submissions made by the Ld. Counsels and have also gone through the judicial dicta referred to by them. In the considered opinion of this court the prosecution has been able to produce sufficient evidence to show that it was accused Hemant only who had FIR No. 33/08 PS Special Cell Page No. 22 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
booked the parcel in question at the franchisee office of DTDC at Chandni Chowk. In order to prove the said fact the prosecution is relying upon three important facts - firstly that PW3 Hardesh Sharma, the official of the franchisee of DTDC where the parcel in question was booked, has identified the accused as the person who had come to his courier office to book the parcel in question, secondly PW12 Anurag Sharma, the handwriting expert from FSL has opined that the handwriting of accused Hemant tallies with the handwriting on the airway bills pertaining to the parcels booked at the office of PW3 and thirdly the mobile number given to PW3 Hardesh Sharma at the time of booking of the parcel was found being used by the accused Hemant only and the mobile having the said number was recovered from the accused Hemant at the time of his apprehension. No doubt as contended by Ld. Defence counsel Sh. N.K. Shrivastava, PW3 Hardesh Sharma in his deposition before the court has deposed that he cannot be sure that it was the accused only who had booked the parcel in question with him on 16.06.2008, however it is to be taken note of that this witness has deposed categorically that the person who had booked the parcel in question on 16.06.2008, by giving the name of the consignor as Anil had also earlier booked another parcel for being consigned to Canada on 24.05.2008 vide airway bill no. N91907879 and that he had signed on the said airway bill in the name of Anil. Now it is a FIR No. 33/08 PS Special Cell Page No. 23 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
matter of record that the specimen handwriting of accused Hemant was sent alongwith the aforementioned bill number to FSL and PW12 Anurag Sharma, the expert from FSL, Rohini has deposed before the court during trial that on analysis of the questioned handwriting on the aforementioned bill and the specimen handwriting of the accused Hemant he had come to a conclusion that it was accused Hemant only who had signed as Anil on the aforementioned airway bill. The report of this expert has been exhibited as Ex.PW12/A.
28.Now though the defence is not disputing the said report it is being contended that the police officials after apprehending accused Hemant had forced him to sign on the said airway bill and further that even otherwise the said airway bill is not pertaining to the parcel in question from which the contraband has been assertedly recovered. With respect to the said contention of the defence, it is relevant to mention that no suggestion whatsoever was given to PW3 that the person who had booked the parcel on 24.05.2008 had not signed on its airway bill and that PW3 had deposed falsely in this regard. A perusal of record shows that this witness was only crossexamined on the aspect of the identity of the accused. This court therefore finds no reason to doubt the deposition of PW3 Hardesh Sharma to the effect that airway bill no. N91907879 was signed by the person posing as Anil in his presence on 24.05.2008 at the FIR No. 33/08 PS Special Cell Page No. 24 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
time of booking of the parcel and therefore the contention of the accused that he was forced to sign the said bill after his arrest cannot be accepted at all. Further though no doubt the said airway bill containing the handwriting of accused Hemant is not with respect to the parcel from which the contraband has been recovered, as narrated hereinabove the deposition of PW3 makes it clear that the person who had booked the parcel on 24.05.2008 was the same who had booked the parcel in question on 16.06.2008.
29.It is also to be taken note of that as per the deposition of the investigating officers, during investigation it had been revealed to them that the person who had booked the parcel in question had given his mobile number as 9971844745 and that after analysing the call detail records of the said mobile number, they had traced its IMEI number as 354164024315042 and this IMEI number was found being used in a mobile set by one Umesh Kumar who has been examined in this case as PW9. Now this witness PW9 has deposed before this court that he had purchased a mobile phone from Shelly Communications vide bill Ex.PW9/A and that during investigation he had handed over the said bill to the investigating officials. The investigating officials however noted that the said bill reflected that it was a mobile set with IMEI number 354167025099028 had been sold to Umesh by Shelly Communications. It is further pertinent FIR No. 33/08 PS Special Cell Page No. 25 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
to mention that on the apprehension of the accused Hemant, a mobile set bearing no. 9971844745 and IMEI no. 354167025099028 was recovered from him. Now it is not disputed by the accused Hemant that Shelly Communications is a firm run by his brother Amit Kumar. This accused has also further admitted in his statement u/s 313 Cr.PC that sometimes he used to sit in the shop of his brother i.e. Shelly Communications, Pahargunj. Further admittedly the mobile bearing no. 9971844745 was recovered from the possession accused Hemant only at the time of his apprehension. The aforementioned circumstances taken cumulatively prove the contention of the prosecution that initially i.e. prior to the booking of the parcel, accused Hemant was using the mobile phone of IMEI 354164024315042 and number 9971844745 but after the registration of the present FIR, he sold the phone set having the IMEI 354164024315042 to Umesh but mentioned the IMEI number 354167025099028 in the bill vide which he sold the mobile set to Umesh, only for the purposes of concealing his identity and the fact that he had been using the phone with the said IMEI at the time of booking of the parcel. The fact that the said mobile number was not found to be subscribed in the name of accused Hemant, in the considered opinion of this court is hardly relevant, when the evidence on record clearly proves that this mobile was recovered from him only. There is no reason at all to FIR No. 33/08 PS Special Cell Page No. 26 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
doubt the deposition of the investigating officials in this regard.
30.In view of the discussion herein above it is clear that the deposition of PW3, the booking official Hardesh Sharma, the deposition of the handwriting expert PW12, the deposition of public witness PW9 Umesh and the investigation carried out by the Special Cell officials, all taken cumulatively prove beyond all reasonable doubt that it was the accused Hemant only who had booked the parcel in question at the franchisee office of DTDC. However having held that it was the accused Hemant only who had booked the parcel in question, this court is unable to agree with the prosecution that it has also been able to prove its case beyond reasonable doubt against accused Abdul Latif. As narrated hereinabove the prosecution is asserting that since it was the disclosure of accused Abdul Latif only that led them to the discovery of accused Hemant, the disclosure given by him that he only had got Hemant to book the parcel in question, is admissible against him. No doubt had the prosecution been able to prove that it was only because of the disclosure given by accused Abdul Latif, that they could apprehend Hemant, their contention would have had some merit. However the evidence brought by the prosecution itself on record makes it clear that the aforementioned assertions of the prosecution are completely incorrect. One of the main investigating official, PW14 Upender Solanki in his examination in chief itself has FIR No. 33/08 PS Special Cell Page No. 27 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
deposed that after the franchisee of DTDC courier informed the investigating officials about the mobile number of the person who had booked the parcel i.e. the mobile bearing no. 9971844745, the said mobile was put on interception and it was found that one Rahul, a receptionist of Siriswal Hotel, Pahargunj was in continuous touch with the person using the said mobile. He has also deposed that Inspector Attar Singh had then made enquiries from the said receptionist upon which he revealed that he knew Hemant and that Hemant used to visit Siriswal Hotel occasionally and further that Hemant resided at Pahargunj and was to come at the said hotel on 02.09.2008. Hence it is clear that it is pursuant to the said person disclosing to the police about Hemant, that the investigating officials could apprehend accused Hemant from near the Siriswal Hotel and not because Abdul Latif had led them to the said hotel. The said inference can also be drawn from the fact that though PW5 Insp. Attar Singh has deposed before this Court that it was on 3/9/2008 that Abdul Latif had led them to a hotel, Paharganj and had pointed out to accused Hemant, no pointing out memo whatsoever has been proved on record. Further the fact that Abdul Latif had disclosed to the investigating officials that accused Hemant would be available at the aforementioned hotel is also not recorded in any contemporary document whatsoever. The asserted disclosure of accused Abdul Latif recorded in FIR no. 55/08 does not FIR No. 33/08 PS Special Cell Page No. 28 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
mention any such facts told by Abdul Latif. In the said statement neither has Abdul Latif disclosed the address of Hemant nor the fact that he used to occasionally come to hotel Siriswal. In the said statement it is not even mentioned that accused Abdul Latif had informed the investigating officials that he could lead them to any spot from where accused Hemant could be apprehended. In view of such evidence on record it cannot be at all held that it was the disclosure of accused Abdul Latif that had led the investigating team to accused Hemant.
31.The other incriminating piece of evidence that is being relied upon by the prosecution against accused Abdul Latif is that he was in continuous touch with accused Hemant before, after and about the time the parcel in question was booked. In the considered opinion of this court, in the absence of any transcripts of the conversations that took place between accused Abdul Latif and Hemant, even if it is assumed that the two persons Hemant and Abdul Latif were in continuous touch with each other as asserted by the prosecution, the same cannot lead to the inference that it is proved beyond doubt that it is accused Abdul Latif only who had handed over the parcel to accused Hemant for it to be booked. The fact that both these accused persons were in continuous touch with each other does lead to a grave suspicion that they were in conspiracy with each other but the same in the absence of any other evidence cannot be stated FIR No. 33/08 PS Special Cell Page No. 29 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
to be sufficient to prove that the accused Abdul Latif had conspired with Hemant in acquiring and possessing the heroin seized.
32.In view of the discussion hereinabove, the accused Abdul Latif cannot be held guilty of the offences that he had been charged with in the present case and it is only Hemant who can be held to have booked the parcel in question.
33.Coming now to the contention made on behalf of this accused namely that even if it is held that he had booked the parcel in question, it cannot be held that heroin was recovered from the said parcel because admittedly the suspected parcel was already torn at the time of its search and seizure and therefore the possibility of tampering with the contents of the parcel by the courier officials themselves cannot be ruled out, suffice is to state that it does not appeal to common sense that the officials of DTDC courier will first of all themselves inform the officials of Special Cell about the suspected parcel and then themselves put the contraband in the said parcel to be recovered by the police officials. Further it is to be taken note of that Vikram Rawat PW2 at the time of giving his first statement to the investigating officials on the date of the search and seizure proceedings had categorically informed them that the parcel had got a little torn during transit and that some powder was seen oozing out of the same and that is the reason he had suspected the parcel to be FIR No. 33/08 PS Special Cell Page No. 30 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
containing something suspicious and had therefore informed the Special Cell. Infact he has deposed the said very facts in his deposition before the Court during trial and not a single question or a suggestion has been put to him in his cross examination with respect to the said testimony. Now when the defence itself has chosen not to suggest to PW2 that he had tampered with the parcels, they cannot at this stage allege that he had done any such act. In a judgment delivered by Hon'ble Delhi High Court in a case titled as Bilal Ahmed Vs. State 2011(1) JCC (Narcotics) 27 it has been observed that it is a settled legal principle that if the testimony of a witness has to be discredited, the relevant fact should be put to him so that he gets the chance to offer an explanation. It has been affirmed by the Hon'ble Delhi High Court that it is absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in crossexamination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, to argue that he is a witness unworthy of credit.
34.Ld. Defence counsels have then contended that the fact that though the case put forward by the prosecution was that the powder that was recovered from the parcel in question was cream, the powder produced as FIR No. 33/08 PS Special Cell Page No. 31 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
case property during trial was found to be of brown colour shows that the case property has been tampered with by the investigating officials. They have further pointed out that on the basis of the said variation, an application was filed on behalf of the accused persons seeking retesting of the case property and pursuant thereto, a fresh sample was drawn out from the case property and was sent for analysis and the FSL report with respect to the said sample reveals that the percentage of diacetylmorphine found in the said sample was only 1.7% taken from the said case property while as per the first FSL report the sample sent to it had been found to contain diacetylmorphine to the extent of 25.3%. It is the contention of the Ld. Defence counsels that such a huge variation in the percentage of diacetylmorphine would not have taken place had the two samples been taken out from the same substance and that therefore the possibility that the case property was tampered with cannot be ruled out. Now with respect to the said contention, after considering the deposition of PW2 Vikram Singh Rawat (the witness before whom the search and seizure proceedings had been conducted by the investigating officials), this court is of the considered opinion that it cannot be held that there has been any tampering of the case property in the present case. Though this witness in his examination in chief has stated that in his presence cream colour powder was recovered from the parcel in question and the recovered FIR No. 33/08 PS Special Cell Page No. 32 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
powder was sealed in a white cloth pullanda and given mark S and the two samples drawn out from the recovered powder were converted into two separate cloth pullandas and given mark S1 and S2, when the said pullandas mark S, S1 and S2 were opened during his deposition and were found to contain a powder which the Ld. Predecessor of this court described as matiala colour powder, he identified the very said powder as the one that had been recovered in his presence. The said facts reflect that the same powder which had been referred to by the witness as cream coloured was referred to by the Ld. Predecessor of this court as matiala coloured and therefore it cannot be stated that there is a variation in the colour of the powder recovered and that produced. This court does agree with the submission of Ld. APP that people's perception of colours differs. In a case titled and reported as Siddiqua Vs. NCB 2007 (1) JCC (Narcotics)22, the Hon'ble Delhi High Court, dealing with a similar contention with respect to the difference in colour has made the following observations:
"People's perception of colour differs. One colour can be in a hundred shades and people's perception about each shade may differ. There is no uniformity about the names of different shades of a colour neither there exists any standardization done by any institute naming the colours. Only seven colours are distinctly known to the people. FIR No. 33/08 PS Special Cell Page No. 33 of 39
SC No.61/09 State Vs. Abdul Latif & Anr.
Namely red, green, blue, black, white, yellow and purple. All other colours are described by people in their own manner. One colour can be described in several manners. Some may describe it as brown colour. Others may call it as a light brown colour. Some may describe it as wheatish colour and other as biscuit colour. The description of the same case property identified in the court by one as a light colour, other light brown or brown makes no difference and cannot be a ground to give benefit of doubt. Therefore, this cannot be a ground to doubt the truthfulness of the witnesses."
In view of the aforementioned judicial dicta, it is clear that the accused persons cannot be granted any benefit of doubt on the ground of difference in colour.
35.As regards the contention that since the percentage of diacetylmorphine in the two samples sent to FSL was found to be varying to a huge extent, the only possibility is that the samples were tampered with, the same is also to be negated in view of the fact that the aforementioned witness PW3 in his deposition has categorically stated that the seal that was used for sealing all the pullandas was handed over to him after the proceedings were concluded by the investigating officials at the courier office itself. In such view of the matter when the investigating officials have very fairly handed over the seal used by them to an independent witness, and the defence has not bothered to put even a single suggestion to the said FIR No. 33/08 PS Special Cell Page No. 34 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
witness PW3 that he has deposed falsely in this regard, the possibility of tampering of the samples is completely ruled out. Further it is to be taken note of that CW1 Dr. Kanak Lata Verma, the expert who had examined the second sample sent during court proceedings, on being asked to explain the variation in the percentage of diacetylmorphine between the sample examined by her and the sample examined by PW7 Dr. Madhulika Sharma, has stated in her deposition that the reduction in the percentage of diacetylmorphine in the present case could have occurred due to hydrolysis and natural decomposition of diacetylmorphine over a passage of time. No doubt it has been rightly contended by the Ld. Defence counsels that the huge reduction in the percentage of diacetylmorphine in the present case could have occurred only due to hydrolysis over a passage of time cannot be completely accepted since no research has been conducted in India to show that the percentage of diacetylmorphine in a sample of illicit heroin will reduce to such a huge extent as has been found out in the present case and CW1 Dr. Kanak Lata Verma has admitted in her crossexamination that she herself has also not done any experiments in this regard and that there is no fixed data available to show over how much time period the percentage of diacetylmorphine will get reduced from 25% to 1.7%. But at the same time it also cannot be said that the only inference that should be drawn in view of the variation in the FIR No. 33/08 PS Special Cell Page No. 35 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
percentage of diacetylmorphine in the two tests is that the case property or its samples were tampered with. The other inference that could also be drawn, is that apart from hydrolysis which could have led to some reduction in diacetylmorphine, the variation in percentage of diacetylmorphine could have also occurred due to the failure of the investigating officials in drawing out a representative sample at the time of the search and seizure proceedings. Apparently if a representative sample is not drawn from a seized substance it can lead to the sample showing a high percentage of diacetylmorphine than the actual amount of diacetylmorphine in the entire seized substance. Now in the present case, it is a matter of record that when a fresh sample was drawn out from the case property during court proceedings, the entire powder was properly mixed and homogenized and a sample of 5 gm taken out after following the technique prescribed by the UNODC manual and as agreed to by the Ld. Defence counsels and the Ld. APP. On the other hand the deposition of PW5 Inspector Attar Singh, the seizing officer shows that he did not follow the proper technique of drawing out samples (a contention even taken by Ld. Defence counsels in their written submissions) and therefore in the considered opinion of this court, the possibility that it is this incorrect procedure which led to a diacetylmorphine concentrated unrepresentative sample being sent to the FSL for analysis cannot be ruled FIR No. 33/08 PS Special Cell Page No. 36 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
out at all, more so when the evidence on record does not reflect any circumstances that the samples of the case property were tampered with. The only effect of the said inference is that the percentage of diacetylmorphine found in the sample sent by the IO cannot be assumed to be indicative of the percentage of diacetylmorphine in the entire seized substance and therefore in such view of the matter, the accused will have to be given the benefit of the second/subsequent report as per which applying the ratio of the judgments pronounced in the cases reported and titled as Ansar Ahmed Vs. State 2005(4) RCR (CRL) 393, NCT of Delhi V. Ashif Khan @ Kalu [2009 (2) RCR (Crl.) 267]; E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, 2008 (2) RCR (Criminal) 597 and Ouseph V. State of Kerala [2004 (4) SCC 446], the actual quantity of contraband recovered in the present case comes to less than the commercial quantity but more than the small quantity (prior to the issuance of notification dated 18/11/2009 by the Central Government vide which the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug is to be considered for determining the quantity of the contraband recovered in a particular case, as per the aforementioned judgments pronounced by the Hon'ble Supreme Court and Delhi High Court, it is the pure drug content FIR No. 33/08 PS Special Cell Page No. 37 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
in the recovered substance that is to be considered for determining the quantity of contraband recovered).
36.In view of the aforementioned discussion it is clear that the accused Hemant has committed an offence of making an attempt to export intermediate quantity of heroin outside India and therefore he has to be held guilty of the offence punishable u/s 23 (b) read with Section 28 of the NDPS Act (In the considered opinion of this Court the act of export of a contraband incorporates in itself the act of acquisition of the said contraband and therefore the accused is not to be held guilty separately for the offence of acquisition of intermediate quantity of heroin u/s 21 (b) NDPS Act). Further the act of accused Hemant in impersonating as Anil at the time of booking of the parcel also makes it clear that he has committed an offence punishable u/s 419 IPC. This accused by impersonating as Anil had clearly an intention to deceive the official of the courier company and it cannot be doubted that had PW3 Hardesh Kumar known that the accused Hemant was impersonating as Anil, he would not have booked the parcel in question. Thus the ingredients of the offence of cheating by impersonation are clearly made out against accused Hemant. It also cannot be lost sight of that infact the accused Hemant by impersonating as Anil at the time of booking of parcel containing heroin had the intention at the said very time to not only deceive the courier FIR No. 33/08 PS Special Cell Page No. 38 of 39 SC No.61/09 State Vs. Abdul Latif & Anr.
official but also the investigating officials in the possibility of the parcel being intercepted. He is also therefore hereby held guilty u/s 419 IPC. Accused Abdul Latif however stands acquitted of the charges for which he had faced the trial in the present case.
Announced in the open court
on this 3rd day of May, 2014 (Anu Grover Baliga)
Special Judge, NDPS
New Delhi
FIR No. 33/08 PS Special Cell Page No. 39 of 39