Delhi District Court
Sc No.08/05 Dri vs Ravinder Singh Mann & Ors on 8 October, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Sh R.Roy
Intelligence Officer
Directorate of Revenue Intelligence
Headquarters, New Delhi.
V E R S U S
1. Ravinder Singh Mann
S/o Sardar Harbhajan Singh
R/o W.H. 53, Adda Kapurthala
Jalandhar, Punjab.
2. Roshan Lal
S/o Late Sh Kapoor Singh
R/o Village Rahara
Tehsil Assandh,
District Karnal, Haryana.
3. Harpreet Singh Bahad,
S/o Sh Trilochan Singh Bahad
R/o SHQ Border Security Force
Gurdaspur, Punjab.
SC No. : 08/05
U/S : 21/23/29 NDPS Act
Computer ID No. 02403R0080552005
Date of institution : 11.02.2005
Date of reserving judgment : 03.10.2012
Date of pronouncement of judgment : 08.10.2012
J U D G M E N T
The proceedings of this case have been initiated on SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 2 a complaint filed by Sh R.Roy, Intelligence Officer of the Directorate of Revenue Intelligence (hereinafter referred to as DRI) against the accused persons for the offences punishable U/S 21/23/29 of the NDPS Act, 1985.
2. The facts of the case, in brief, are that on 18.08.2004 at about 5.30 AM, a specific information was received by PW18 Sh I.S.Sahni, Intelligence Officer of DRI, from a reliable source that two persons travelling from Punjab in a white colour Maruti Zen car bearing registration no. DL-9CJ-5397 would be carrying narcotic drugs in the abovesaid car for delivering the same to some persons in Delhi and these persons would be checking in at room no. 201, Hotel Sangam Palace, A Block, Meera Bagh, Delhi at any time on that day. The above information was reduced into writing by PW18 as Ex. PW18/A and the same was immediately put up by him before PW19 Sh Vinod Kumar Mehta, Deputy Director (Intelligence) of DRI, who in turn after having discussions with his Additional Director, had called the complainant and had directed the constitution of a raiding team to act upon the above information.
3. It is alleged that the team of the DRI officers had reached at the above hotel and had found that one white colour Maruti Zen car bearing the above registration number was parked outside the hotel and one person was seen occupying the driving seat of the above car. The DRI SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 3 officers had kept a discreet watch at the spot for sometime and had then seen another person coming out of the above hotel and that person had occupied the front seat of the above car, adjoining the driver, and when the car was about to move, the above two persons were intercepted by the DRI team. The identity of the person sitting on the front seat of the car was revealed as the accused no. 1 Ravinder Singh Mann and that of the driver of the above car to be the accused no. 2 Roshan Lal.
4. After the introductory session, both the accused persons were apprised about the above secret information and were asked if they were carrying any narcotic drugs on their persons or concealed in the said car, to which both of them had replied in negative. Since the place of their interception was a public place and not conducive for carrying out the detailed search, the above car as well as the accused persons were escorted to the ground floor of the Drum Shape building of the DRI office at I.P. Bhawan, I.P. Estate, New Delhi. Two witnesses were called and they were informed about the above facts and were requested to witness the search proceedings, to which both of them had agreed. The witnesses and the accused were also introduced with each other.
5. It is also alleged that the accused persons were then served with separate written notices U/S 50 of the NDPS SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 4 Act Ex. PW1/B and Ex. PW1/C respectively informing them of their rights to exercise the option for the search of their ' persons ' and of the said car before a Gazetted Officer or a Magistrate, but they refused for the search before the aforesaid officers and had offered their search by any officer of the DRI. The above Maruti Zen car was then rummaged by the DRI officers in the presence of the public witnesses and 23 packets were found kept in a grey and blue colour shoulder bag, having ' P romotion ' printed on the front portion of the bag, from which a pungent smell was emanating. The bag was found lying in the leg space of the back seat of the said car and some documents like the sales invoice and insurance policy etc. of the above vehicle were also recovered from the dashboard of the said car.
6. It is further alleged that thereafter both the accused and the witnesses, alongwith the above recovered 23 packets, were taken to the 7th floor office of the DRI in the said building and there the above 23 packets were examined in detail and these packets were found to contain some off-white colour substance, which was packed differently, and these packets were marked for the identification purposes as Mark X1 to Mark X9, Mark X10 to Mark X11, Mark X12 to Mark X21, Mark X22 and Mark X23, as per the different types of the markings appearing on the clothes and the polythene packings thereof. The above off- white colour powdery substance contained in all the 23 SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 5 packets had tested positive for the heroin and all the 23 packets were also separately weighed and the gross weight thereof came to be 24.252 KG and the net weight of the heroin to be 22.855 KG. In the personal search of the accused no. 1 though nothing was recovered, but in the search of the accused no. 2 certain documents were recovered. The above 23 packets containing the contraband substance, the above shoulder bag of grey and blue colour, documents recovered from the possession of accused no. 2 as well as from the the said car were all seized for the violation of the provisions of the NDPS Act.
7. It is also alleged in the complaint that 46 representative samples of 5 Grams each were then drawn from the heroin recovered from the above 23 packets, i.e. two samples from each of the above packets, and these samples were kept in separate zip locked small polythene packets and the same were correspondingly marked as Mark X1A to Mark X23A & Mark X1B to Mark X23B and same were further kept in separate paper envelopes and correspondingly marked. These paper envelopes were then sealed with the DRI Seal No. 10 over the dated signatures of the complainant, both the accused, as well as the witnesses. The remaining heroin of the 23 packets was put back in the same packings and marked as Mark X1 to X23 and these packets were then also converted into cloth parcels and sealed with the above seal of DRI, over a paper slip bearing the dated signatures of the above SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 6 signatories of the sample parcels. These sealed packets of the remaining case property were then further put into a steel trunk, alongwith the above shoulder bag, and the steel trunk was also converted into a cloth parcel and sealed with the above seal of DRI, over a similar paper slip signed by the above persons. A panchnama Ex. PW1/D was also drawn regarding the above proceedings and the same was also signed by the above persons and a facsimile of the above DRI seal was affixed on the panchnama. The photocopies of the above markings of the packing of the above packets were also made as Annexure 1 to 9 of the above panchnama and documents recovered in the search of ' p erson ' of the accused no. 2 were made as Annexure 10 to the same. Test memos were also prepared in duplicate and the same were also signed by all the above persons as well as Smt Sanyogita Mishra, Senior Intelligence Officer of the DRI and a facsimile of the above DRI seal was also affixed on the above test memos.
8. It is further alleged in the complaint that in response to the summons Ex. PW3/B dated 18.08.2004, the accused No. 1 had appeared before PW3 Sh Deepak Kumar Mangotra, Intelligence Officer of DRI, on the same day and had tendered his voluntary statement U/S 67 of the NDPS Act Ex. PW3/A admitting therein the aforesaid recovery, seizure and other incriminating facts. He had disclosed therein, inter-alia, that he had been facing serious financial problems for the last 1-1½ years as his air conditioning SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 7 business was not doing well; that one Harpreet Singh Bahad, i.e. the accused no. 3 herein, who was working as a Deputy Commandant (General) BSF, posted at BSF Station Headquarters, Gurdaspur, Punjab, knew his position and he was induced by the accused no. 3 to carry some narcotic drugs for him to Delhi for earning some quick money, as he was promised to be paid Rs 10,000/- per trip and the incidental expenses. He had also disclosed therein that on 17.08.2004 he had received a call from accused no. 3 asking him to come to his house by 10.30 PM on the same day for effecting a delivery of the consignment of narcotic drugs at Delhi and accordingly, he had reached at the house of accused no. 3 at about 10.20 PM on that day, where the accused no. 3 had shown him the above white colour Maruti Zen car parked outside his house and had also shown to him the above grey and blue colour bag kept inside the car, which was to be delivered at Delhi.
9. It is also disclosed by him in his above statement that the accused no. 3 had instructed him to check-in the above Sangam Palace Hotel, Meera Bagh, New Delhi, alongwith accused no. 2, and afterwards to deliver the above contraband substance at Sector 16 Market, Rohini before 10 AM on 18.08.2004 and the delivery of the same was to be taken by some person, who had already been provided with their details. He had further disclosed in his above statement that the accused no. 2 had also reached there at SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 8 around 11 PM and then they both had drove the above car carrying the above bag containing the above contraband substance and had reached at the above hotel in Delhi at about 8 AM on 18.08.2004; that while the accused no. 2 was waiting in the car outside the said hotel, he had gone inside and had checked-in the hotel under a fictitious name of Ashok Kumar with false and incomplete address and after seeing the allotted room no. 201, he had returned back to the car and both of them were then intercepted by the DRI officers when they were ready to move in the above car. He had also disclosed in his above statement that he was known to the accused no. 3 Harpreet Singh Bahad since the year 1997 when the above accused had met him in connection with the repair of a deep freezer of the Cremica ice-cream factory being run by the accused no. 3 at Jalandhar and since both of them belonged to Jalandhar, Punjab, they became friends after some meetings and the accused no. 2 Roshan Lal was also known to him for the last three years as he was the driver of accused no. 3. He had also disclosed that it was his first trip for the delivery of the drugs at the instance of accused no. 3 and he is not aware as to from where the above drugs were procured by the accused no. 3 and to whom the same were to be delivered.
10. Summons dated 18.08.2004 were also issued in the name of accused no. 2, who is a Head Constable of BSF posted at Gurdaspur, by Sh K.K.Gupta and in response thereto, the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 9 above accused also appeared before him and had tendered his voluntary statement U/S 67 of the NDPS Act admitting therein the aforesaid recovery, seizure and other proceedings and facts. He had also disclosed therein, inter-alia, as to how the above bag containing the above contraband substance was brought by him, as well as the accused no. 1, to Delhi from the residence of the accused no. 3 in the above car; that as per his information the accused no. 1 & 3 were close friends and he had met the accused no. 1 many times with the accused no. 3 while being the driver of accused no. 3. He had also disclosed that he was performing the duties as a driver of accused no. 3 for the last about 5-6 months since the accused no. 3 was posted at Gurdaspur and the above Maruti Zen car was brought to the residence of accused no. 3 about a month ago and since then the car used to be parked outside the house of accused no. 3; that he had got sanctioned 2 days ' casual leave from accused no. 3 for his visit to Delhi to deliver the above contraband substance, after applying the leave from 19.08.2004 to 23.08.2004, and after visiting to his native place, he was directed to join his duties on 24.08.2004. He had further disclosed therein that though his departure from Gurdaspur, Punjab was shown by accused no. 3 on 18.08.2004, but actually he had been sent to Delhi with the above consignment of drugs in the night of 17.08.2004 itself. He had also expressed his ignorance regarding the source from which the above heroin was procured by accused no. 3 or the person to whom the same was SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 10 to be delivered.
11. Since, the accused no. 1 and 2 appeared to have committed the offences punishable under Sections 21/29 of the NDPS Act, they both were arrested in this case on the same day and their arrests were intimated to their relatives and they were also subsequently produced in this court after their medical examinations. Search of the above room no. 201, Sangam Palace Hotel, Meera Bagh, New Delhi was also conducted on the same day, i.e. on 18.08.2004, but nothing incriminating was recovered in the said search. However, the DRI officers had seized the photocopy of the relevant entry of the visitors' register of the said hotel pertaining to the booking of the above room no. 201. The statements of both the panch witnesses Sh Ram Bilas and Sh Rajesh Kumar were also recorded on 18.08.2004, wherein they had narrated about their participation in the above proceedings relating to the recovery, seizure and sealing etc. of the above contraband substance. The seizure of the above contraband substance and the arrests of the accused persons were also intimated by the complainant to his immediate senior officer, i.e. Smt Sanyogita Mishra, on 19.08.2004 and on the same day the samples Mark X1A to Mark X23A were also deposited by the IO/complainant in the office of the CRCL.
12. During the investigation of the case, it was SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 11 revealed that the said Maruti Zen car was registered in the name of one Sh Ravi Kumar Bhatia of Tilak Nagar, New Delhi and it was also found that accused no. 2 was granted two days ' casual leave on 23.08.2004 & 24.08.2004 with permission to prefix two days RH on 19.08.2004 and 20.08.2004, Saturday on 21.08.2004 and Sunday of 22.08.2004 with the date and time of departure as 18.08.2004 (AN) as per the authority of accused no. 3 with the directions to accused no. 2 to report back for his duties on 24.08.2004.
13. It is further alleged in the complaint that pursuant to the summons Ex. PW3/B dated 18.08.2004, the accused no. 3 Harpreet Singh Bahad had also appeared in the office of the DRI on 20.08.2004 and had tendered his voluntary statement U/S 67 of the NDPS Act, in which he had admitted various incriminating facts and had also signed the photocopies of the above panchnama and its annexures etc. in token of having seen the same. He had also admitted therein, inter- alia, that the above narcotic drugs were handed over by him to accused no. 1 and 2, who were his friend and driver respectively, in the evening of 17.08.2004, at his residence at BSF Camp, Gurdaspur, alongwith the above Maruti Zen car for transportation of the above contraband substance in the said car, to be delivered at Delhi. He had further disclosed that the above contraband substance was given to him by one Sultan, resident of not known, who had met him for the first time at a religious SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 12 gathering at Peer Baba in July 2004 in Kathua, J & K during his posting at BSF Battalion at the border, when the above Sultan had purposed to give some valuable intelligence to him if he agreed to help him in the drug trafficking business and though he was aware that the same was an offence under the NDPS Act, but he had agreed to the above proposal of Sultan as he was so enthusiastic for getting some actionable intelligence about terrorist activities and the above Sultan had promised him to pay Rs 50,000/- per trip for delivery of the narcotic drugs in Delhi and accordingly he had rolled in the accused no. 1 and 2 for doing the above job of delivery of the consignment of narcotic drugs in Delhi and had promised them to pay Rs 10,000/- each for the above trip, plus incidental expenses.
14. He had also disclosed in his above statement that the above Sultan had given a call at his office telephone number 01874-220916 on 16.08.2004 at about 10 AM and thereafter he had collected the above consignment of 23 KG of the narcotic drugs contained in the above grey and blue colour bag at about 6 PM on that day at Chadwal Morh, Kathua, J & K and had handed over the same to the accused no. 1 and 2 in the evening/night on the next day, i.e. 17.08.2004, for transportation of the same by the above car and its delivery at Delhi, as per the instructions of the above Sultan, as also disclosed by the other two accused. He had also disclosed therein that he had got an amount of Rs SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 13 25,000/- from the above Sultan as advance, which he had also handed over to accused no. 1 and 2 and the above Maruti Zen car belonged to his one friend Sh Ravi Kumar Bhatia of Delhi, who had left the above car at his residence in the first week of August when his above friend was returning back from a tour at Dalhousie; that he had also sanctioned the leave of accused no. 2 for two days to facilitate the delivery of the above consignment by the above accused and this was for the first time that he had indulged in that type of activities for gathering the actionable intelligence. At the time of making the above statement, the accused no. 3 was also shown photocopies of the statements made by the other two accused, which were also signed by him in token of having seen the same. Since he also appeared to have committed the above offences under the NDPS Act he was also arrested in this case on the same day and intimation of his arrest was also given to his family members on the next day.
15. During investigation of the case, the seized parcel of the case property had remained in the custody of Sh R.K.Aggarwal, Assistant Director, DRI from the time of its seizure till 20.08.2004 when the same was deposited by the IO/complainant in the Valuable Godown of the New Customs House. A report U/S 57 of the NDPS Act Ex. PW2/K regarding the arrest of the accused no. 3 was also sent by the complainant to Ms Sanyogita Mishra on 21.08.2004. The SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 14 residential premises of all the three accused, as well as of above Sh Ravi Kumar Bhatia, were also got searched and though during such searches nothing material or incriminating was found from the residence of accused no. 1 and the above Sh Ravi Kumar Bhatia, but certain documents were seized during the searches of the residence of accused no. 2 and 3. The copies of the above record of Hotel Sangam Palace regarding booking of the above room by accused no. 1 and 2 was also seized and the statements of the Manager and a Waiter of the said hotel were recorded regarding booking of the said room. It was also disclosed by the waiter Sh Dharam Singh in his above statement, inter-alia, that at about 10.30 PM on 17.08.2004 one person named Goldy, the name as told by the said person, had come to their hotel and had booked a room for his friend named Ashok, who was to arrive in the hotel next morning, on payment of Rs 200/-, but no receipt thereof was given. A photo of the accused no. 1 was also shown to Sh Dharam Singh and he had identified it to be of the same person who had booked the above room and had made the above entry in the hotel register in his handwriting on 18.08.2004.
16. It is further alleged that in response to the summons Ex. PW4/A dated 23.08.2004, Sh Ravi Kumar Bhatia had also tendered his statement U/S 67 of the NDPS Act Ex. PW4/B before a DRI Officer on 24.08.2004 in which he had deposed about the circumstances under which the above vehicle was SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 15 left by him at the residence of accused no. 3 at BSF Headquarters, Gurdaspur, Punjab. He had stated therein that the same was left there as it was giving some trouble, though it was purchased by him on 05.07.2004 only, and he had requested the accused no. 3 to send it to Delhi after getting the repairs done. However, he had expressed his ignorance about the transportation of the above contraband substance in the said vehicle.
17. Some information and record was also requisitioned by the DRI from the BSF Headquarters at Gurdaspur regarding the movement of the above vehicle involved in the crime and it was intimated by them that no record was available in this regard and the said vehicle was not seen there after 08.08.2004. On further enquiries it was also replied by the BSF authorities that it had been learnt on enquiry that the vehicle was brought at Gurdaspur by accused no. 3 approximately 40-50 days prior to 08.08.2004 and was almost kept standing in his office garage and occasionally used by him for his personal use. In pursuance of the disclosure statements made by accused no. 1, certain information was also sought from the DRI Office at Ludhiana regarding the having of an agency of Cremica ice-cream by the accused no. 3 at the Shopping Centre, Urban Estate, Jalandhar and it was reported that no such agency had ever existed in the said market.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 16
18. Statement of one Sh Manish Chopra, who was the owner of one Maruti Zen car bearing registration no. DL 4CA 0598, the documents of which were recovered during the search of the residence of accused no. 3, was also recorded during investigation and he had expressed his ignorance regarding the presence of the documents pertaining to his car at the residence of accused no. 3 while stating that his above car was taken by his one friend some time back and the same was returned by him after 5-6 days and he was not aware as to when and how the above documents of his car had reached the residence of accused no. 3. Efforts were also made to secure the presence of above Sultan for interrogation, but it is alleged in the complaint that despite repeated summons he did not join the investigation. The name of one Goldy had also figured during the statements of the staff of the above hotel as the person who had initially approached them for the booking of the above hotel room, but even he could not be traced out for the want of his complete address. Vide report dated 27.10.2004 of the CRCL it was found that all the 23 samples sent to the CRCL for analysis have been found positive for the presence of diacetylmorphine (heroin) and ultimately a complaint for commission of the offences punishable U/Ss 21/23/29 of the NDPS Act was filed against all the above three accused persons.
19. The complaint was filed in this court on 11.02.2005 SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 17 and cognizance of the above offences was taken on the same day. A prima facie case for commission of the offences punishable U/Ss 21(c) and 29 of the NDPS Act against the accused no. 1 and 2 and a prima facie case for commission of the offence punishable U/S 29 of the NDPS Act only was found to be made out against the accused no. 3 vide order dated 20.04.2005 and charges for the above said offences were also framed against them on the same day.
20. The prosecution/DRI in support of its case has examined total 21 witnesses on record (inadvertently two witnesses have been numbered as PW19, but in order to keep the record straight the latter witness has been re-numbered as PW19A and it is found that no fresh document has been exhibited or proved during his statement) and their names and the purpose of examination is being stated herein below:-
21. PW1 Sh R.Roy is the complainant and the main investigating officer of this case. He has broadly deposed on the lines of the complaint and the prosecution story and has proved on record various documents prepared by him, identified the signatures of different persons appearing on it and has also identified the accused persons as well as the case property and samples etc.
22. PW2 Ms Sanyogita Mishra, SIO of DRI had issued the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 18 above seal of DRI to the IO/complainant, signed test memos Ex. PW2/A and PW2/B, sent sample parcels to CRCL vide forwarding letter Ex. PW2/C on 19.08.2004, issued summons Ex. PW2/D dated 18.08.2004 to accused no. 3 and recorded statement U/S 67 of the NDPS Act of the above accused Ex. PW2/E on 20.08.2004, in the handwriting of the above accused and had also sent arrest intimations Ex. PW2/E to PW2/G to the family members of all three accused vide postal receipts Ex. C1 to C3. She had also received the informations U/S 57 of the NDPS Act Ex. PW2/J and PW2/K regarding arrest etc. of accused no. 1 & 2 and accused no. 3 respectively, issued one search authorization Ex. PW2/L for search of the residential premises of Sh Ravi Kumar Bhatia, which was conducted vide panchnama Ex. PW2/D and also sought some information from her counterparts of DRI in Ludhiana vide letter Ex. PW2/M, which was replied vide letter Ex. PW2/N. She has also stated that the above sample parcels had remained in her custody till the same were sent to CRCL.
23. PW3 Sh Deepak Kumar Mangotra, Intelligence Officer of DRI had issued summons Ex. PW3/B dated 18.08.2004 to accused no. 1 and recorded his statement U/S 67 of the NDPS Act Ex. PW3/A in the handwriting of the above accused. The above accused was also shown some pages of the entry of the above hotel register during his statement which were also signed by the accused.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 19
24. PW4 Sh Ravi Kumar Bhatia is the owner of the above Maruti Zen car no. DL 9CJ 5397 in which the above contraband substance was being transported and on being issued summons Ex. PW4/A, he had tendered his statement U/S 67 of the NDPS Act Ex. PW4/B before an officer of DRI in his own handwriting.
25. PW5 Sh D.P.Saxena was also posted as an intelligence officer in DRI Headquarters at the relevant time and after being informed about the seizure of the above contraband substance, he was given one search authorization Ex. PW5/A on 18.08.2004 for search of the above hotel room and the same was conducted by him on the same day in the presence of the Manager of the said hotel and two witnesses vide panchnama Ex. PW5/B, but nothing incriminating was recovered in such search. Subsequently, on 23.08.2004, he had also conducted the search of the residential premises of PW4 Sh Ravi Kumar Bhatia on the basis of the search authorization Ex. PW2/L given by PW2 vide panchnama Ex. PW4/D and in that search also nothing incriminating was recovered.
26. PW6 Sh K.K.Gupta, the then intelligence officer of DRI, had issued summons Ex. PW6/A dated 18.08.2004 to the accused no. 2 and had recorded the statement U/S 67 of the NDPS Act Ex. PW6/B of the above accused, in the handwriting of the above accused, on the same day. Subsequently, on SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 20 26.08.2004, he had also issued summons Ex. PW6/C and PW6/E to Mohd Israil and Sh Dharam Singh, i.e. the Manager and Waiter respectively of the above hotel, and had recorded their statements Ex. PW6/D and PW6/F respectively on the same day, which both were reduced into writing in the handwriting of the above Sh Mohd Israil.
27. PW7 Sh R.K.Aggarwal is the then Assistant Director of DRI and he had issued the above search authorization Ex. PW5/A dated 18.08.2004 for search of the above hotel room, search authorization Ex. PW7/A dated 23.08.2004 for search of the residence of accused no. 2 in Karnal, Haryana and also the search authorization Ex. PW7/B dated 23.08.2004 for search of the residential premises of all three accused in Punjab. He had also subsequently written various letters to their counterparts in Punjab and also to the BSF authorities requiring certain informations regarding the involvement of the above vehicle and the movement of the accused no. 3 etc. and had received some replies to the same.
28. PW8 Sh V.K.Khosla was posted as SIO in the DRI Office at Amritsar and on the directions of his senior officers, he had led a team of DRI for meeting the BSF authorities and had got conducted the search of the residential premises of the accused no. 2 and 3 in the BSF Headquarters area in the month of August 2004 vide panchnamas Mark A and Mark B prepared by some other SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 21 intelligence officers of DRI. In September 2004, he had met the BSF authorities again and got searched the office premises of accused no. 3 and had subsequently forwarded the board proceedings of the BSF authorities in this regard to his counterparts in the DRI Headquarters in Delhi. He had stated that nothing incriminating was found in the above office search, but some documents were seized in the house search of the accused persons.
29. PW9 Sh Rajesh Kumar Dhawan, Intelligence Officer of DRI Amritsar, was with PW8 when a team of the DRI officers had met the BSF authorities in August and September 2004 for search of the residential premises of accused no. 2 and 3 and also of the office premises of accused no. 3. He has stated that though the seizing officer of the search of barrack of accused no. 2 was Sh R.K.Saini, but he had conducted search of the residential premises of accused no. 3 vide panchnama Ex. PW9/A and had recovered two documents Ex. PW9/A1 and Ex. PW9/A2 in the above search.
30. PW10 Sh Rajiv Verma was posted as Inspector Central Excise, at Karnal at the relevant time and on receiving a request letter from DRI Delhi, he had conducted search of the residential premises of accused no. 2 at Karnal, Haryana vide panchnama Ex. PW10/A, but nothing incriminating was recovered in such search.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 22
31. PW11 Sh P.K.Aggarwal is the Assistant Chemical Examiner of CRCL at the relevant time and he had received the above sealed 23 sample parcels of this case from the IO/ complainant on 19.08.2004, alongwith the forwarding letter and duplicate test memos, and on the instructions of Sh K.C.Aggarwal, Chemical Examiner, had kept the same in strong room in intact condition. The above sample parcels were taken out of the strong room subsequently by him on 18.10.2004 on the directions of the then Chemical Examiner Sh D.K.Beri, the analysis thereof were started and concluded on 27.10.2004 vide test report Ex. PW11/B and he had also given the report in Section II of the test memo Ex. PW2/B in this regard and has further identified the remnants of the above samples during his examination in the court.
32. PW12 Sh Ramesh Singh is the then DIG of BSF at Delhi and he had received one letter dated 19.08.2004 from the DRI for serving summons upon the accused no. 3 and had directed the BSF authorities at Jalandhar to send the above accused to Delhi. He has stated that the accused no. 3 was produced in his office in the forenoon of 20.08.2004 and he had served a copy of the summons Ex. PW2/D upon him and had informed the DRI in this regard vide letter Ex. PW12/A. The accused no. 3 was then taken by the DRI Officers to their office and this witness had been following the progress of the investigation.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 23
33. PW13 Ct. S.N.Burman of BSF had participated in the search proceedings of the barrack of accused no. 2 and the house of accused no. 3, alongwith some other officials of the BSF, conducted by the DRI Officers in August 2004 (wrongly stated or typed as August 2008) and he is a witness to the panchnamas Ex. PW13/A and PW9/A respectively prepared in this regard. He has also identified his signatures on the documents Ex. PW8/A to PW8/D, annexure Ex. PW13/B of the above panchnama Ex. PW13/A and the documents Ex. PW13/C (collectively) and PW9/A1 and A2 recovered in such searches.
34. PW14 Sh M.P.S.Sandhu was the Second Officer in Command in Operations of the BSF, Gurdaspur and he had participated, alongwith other witnesses of BSF, in the search proceedings of the office of the accused no. 3 by the DRI in September 2004 and is also a witness to the board proceedings Ex. PW8/A in this regard. He had also provided some information to the DRI Delhi vide his letters Ex. PW2/D1 and PW2/D2 regarding the movements of the above vehicle used in this case as well as of the accused no. 3 respectively.
35. PW15 HC Korak Dutta of BSF has also participated in the search proceedings of the barrack of accused no. 2 and is a signatory to the above panchnama Ex. PW13/A, its annexure Ex. PW13/B and the documents Ex. PW13/C (collectively) recovered in the search.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 24
36. PW16 HC Rambir Singh of BSF is also a party to the search proceedings of the house of the accused no. 3 conducted in August 2004 by the DRI and is a witness to the panchnama Ex. PW9/A thereof and had signed the documents Ex. PW9/A1 and A2 recovered therein.
37. PW17 Sh Kamaljeet Singh Rana was posted as Inspector Waters Wings at Gurdaspur and he is also a witness of the search of the house of accused no. 3 and the barrack of accused no. 2 and of the above panchnama Ex. PW9/A and documents Ex. PW9/A1 and A2 pertaining to the search of the house of the accused no. 3 and the panchnama Ex. PW13/A, the annexure to the same Ex. PW13/B and the document Ex. PW13/C (collectively) pertaining to the search of the barrack of the accused no. 2.
38. PW18 Sh Inderjeet Singh Sahni, Intelligence Officer of DRI had received the above secret information and reduced it into writing as Ex. PW18/A and had further put up the same before his Deputy Director.
39. PW19 Sh Vinod Kumar Mehta, is the Deputy Director of DRI, to whom the above information Ex. PW18/A was put up and he, after discussing the same with his Additional Director, made an endorsement thereon and had further called the IO/ complainant Sh R.Roy and had directed necessary action thereon.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 25
40. PW19A Sh Manish Chopra (re-numbered as such) is the person who was claimed by the DRI to be the owner of the other Maruti Zen car No. DL 4C AC 0598, the document of which were recovered in the house search of accused no. 3. However, he was got declared hostile in this court and had not supported the case of the prosecution/DRI in this regard. Though he has admitted to have received the summons Ex. PW1/M3 and has also stated the statement Ex. PW1/N to be in his handwriting, but he has also stated that the same was dictated to him by the DRI Officers and he had never purchased the above vehicle or made the above statement voluntary.
41. PW20 Sh R.S.Kashyap was posted as the In-Charge of the Valuable Godown, New Customs House on 20.08.2004 when the sealed parcel of the case property of this case was deposited by the IO/complainant with him. He has stated that the parcel was deposited with and remained in his custody in intact condition and he has also identified his endorsement made on the inventory/deposit memo Ex. PW1/L thereof and has also stated that an entry in the Valuable Godown Register Ex. PW20/A was made in this regard.
42. After the conclusion of the evidence of the prosecution/DRI, all the incriminating evidence brought on record by the prosecution was put to the accused persons in SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 26 their statements recorded U/S 313 Cr.P.C. and the same was denied by them to be incorrect. The accused have claimed themselves to be innocent and to have been falsely implicated in this case. Both the accused no. 1 and 2 has specifically denied the recovery of the above contraband substance from their possession or their apprehension with the same from the above car.
43. It was claimed by the accused no. 1 Ravinder Singh Mann that he was approached by the DRI Officers to become their informer and to work for them under their cover and on his refusal for the same, he was implicated falsely in this case after having been picked up from the Karnal by-pass by two persons and being taken to the DRI Office. He has also stated that after reaching the DRI Office he was also asked to become witness in some other case, but he had refused for the same and the DRI Officers had taken his signatures forcibly on many blank and written papers, including some paper slips. He has also claimed that he was made to copy a computerized copy of document in English language by Sh Deepak Kumar Mangotra of DRI under the threats of extreme third degree torture.
44. The accused no. 2 Roshan Lal has also claimed that on 18.08.2004 he was on leave and was coming to Delhi in connection with the engagement of his son (wrongly recorded as myself instead of my son) and when he had got down at the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 27 Karnal by-pass chowk Delhi, he was surrounded by some DRI Officers in plain clothes, who wanted him to become a witness in a case. He was then taken to the DRI Office and was questioned about some dealings in narcotics smuggling and on his denial he was illegally kept there and was made to sign various documents including some blank chits and he was also pressurized to disclose his family history and to write down some statement in his handwriting, which he had subsequently retracted. He has also claimed that his family members had also sent some complaint to the National Human Rights Commission (hereinafter referred to as NHRC) and Home Ministry about his false implication in this case.
45. Similarly, the accused no. 3 Harpreet Singh Bahad has also claimed that he was moved from Gurdaspur on 18.08.2004 in the forenoon for Delhi by the officers of BSF in custody and he was kept captive for three days and on 20.08.2004 he was produced before the Director General, BSF in Delhi Office and on 20.08.2004 in the morning his custody was handed over to the DRI Officers and he was taken to the DRI Office, where he was brutally tortured and beaten and his signatures were obtained on many printed, written and blank papers. He has also claimed that he was made to write a dictated statement by the DRI Officers and he had subsequently retracted the same and his false implication in this case was also reported to the NHRC. He has also specifically denied that the above vehicle no. DL 9CJ 5397, SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 28 from which the above contraband substance was recovered, was ever in his possession and has further claimed that at the time of raid at his residential premises, the signatures of his wife were forcibly taken on some documents and even the other Maruti Zen car, which was taken by him from a friend and to which the documents Ex. PW9/A1 and 9/A2 pertained, was returned back to his friend on 08.08.2004. He has also specifically denied the handing over of the above contraband substance by him to accused no. 1 and 2 for transportation thereof by them to Delhi by the above car and also being party to any criminal conspiracy pertaining to the transportation or dealing in etc. of the said contraband substance.
46. Though the accused no. 1 had not desired to lead any evidence in his defence, but both the accused no. 2 and 3 had opted for the same. Total four witnesses have also been examined on record as defence witnesses and their names and the purpose of examination is being stated herein below:
47. DW1 Sh K.L.Gandhi is an official of the NHRC and he has stated on record that one complaint dated 20.07.2005 was received from Smt Santosh Rani, who is the wife of the accused no. 2, in their office and the same was registered and taken up on 26.08.2005 by the Commission. However, the above complaint was dismissed in limine and though he has placed on record a copy of the relevant Regulation governing SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 29 the working of the NHRC, but it was stated by him that the record pertaining to the above complaint was already weeded out in terms of the order Ex. DW1/B of the Commission.
48. DW2 Sh Amresh Kumar Goyal, Assistant Superintendent of Jail NO. 3, Tihar has produced on record an attested photocopy of the MLC of the accused no. 3 as Ex. DW2/A. He has also brought on record copy of one notesheet dated 03.09.2004 as Ex. PW2/C forwarding the letter Ex. DW2/B of the accused no. 3 to this court and also one notesheet/ dispatch letter Ex. DW2/D vide which one complaint of the above accused was forwarded to NHRC.
49. DW3 Ms Sapna Devi is the daughter of accused no. 2 and she has deposed that her father had gone to Delhi on 18.08.2004 in connection with the engagement of her brother and thereafter he did not return back and subsequently they came to know about his false involvement in this case by the DRI Officers. She also claims to have written a letter to the Defence Minister which was replied vide letter Ex. DW3/A and she has also deposed on record some reply of the Home Ministry Ex. DW3/B to her above letter.
50. DW4 Sh Harpreet Singh Bahad is the accused no. 3 himself, who has stepped into the witness box in his defence under the provisions of Section 315 Cr.P.C. he has deposed regarding his movement in custody by the BSF Officers from SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 30 Gurdaspur on 18.08.2004, his appearance in the BSF Office in Delhi and his subsequent handing over to the DRI Officers.
He has also deposed in detail as to how he was harassed, tortured and beaten in the DRI custody and was made to write a dictated statement and to sign on various documents. He also claims to have subsequently retracted his alleged voluntary statement made in the DRI Office vide his retraction application Ex. DW4/A.
51. I have heard the arguments advanced by Sh Satish Aggarwal, Ld SPP for DRI as well as Sh Tanvir Ahmed Mir, Ld defence counsel for accused no. 1, Sh Yogesh Saxena, Ld defence counsel for accused no. 2 and Sh S.S.Dass, Ld defence counsel for accused no. 3. I have also gone through the written submissions filed on behalf of DRI as well as on behalf of accused no. 1 and 3 and have further appreciated the evidence led by the prosecution as well as the defence and the other record of the case.
52. The evidence led by the prosecution on record and the challenges made to it by the Ld defence counsels representing the accused persons can be broadly discussed and appreciated under the following heads:
Non Compliance of the Provisions of Section 42 of the NDPS Act
53. It has been argued by Ld counsels for all the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 31 accused that since the above secret information Ex. PW18/A was to the effect that the above contraband substance was to be transported in the above Marui Zen car no. DL 9CJ 5397 by two persons travelling from Punjab and further since both the abovesaid persons were to check-in a room of the above hotel, the provisions of Section 42 of the NDPS Act were required to be complied with in this case, but the evidence led by the prosecution on record does not show that the above mandatory provisions were complied with in this case.
54. Section 42 of the NDPS Act relates to the powers of entry, search, seizure and arrest etc. without warrant or authorization and it provides as under :-
" Power of entry, search, seizure and arrest without warrant or authorisation :-
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 32 or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such
building, conveyance or place;
(b) in case of resistance, break open and
door and removed any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing of forfeiture under Chapter V-A of this Act; and
(d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 33 time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. "
55. There is no doubt with regard to the fact that since the information received in this case was about the transportation of the above contraband substance in the above vehicle and the accused were also to check-in a room of the above hotel, in terms of the provisions of Section 42 of the NDPS Act reproduced above, the said provisions were required to be complied with in this case. However, the evidence led on record of this case also establishes the compliance of the said provisions and this court finds no force in the arguments of Ld defence counsels regarding the non compliance thereof.
56. It has been duly proved on record during the depositions of PW18 Sh I.S.Sahni that immediately after receiving the above information, he had reduced it into writing as Ex. PW18/A and had also put up the same before his Deputy Director. The concerned Deputy Director Sh Vinod Kumar Mehta has also been examined on record as PW19 and he has also duly corroborated the above depositions of PW18 and has also proved his written endorsement made on the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 34 abovesaid information itself in his own handwriting. The above information was reduced into writing as Ex. PW18/A at 5.30 AM and the same was brought into the knowledge of and was even endorsed by PW19 at 6.40 AM, though in terms of the provisions of sub-section (2) of Section 42 of the abovesaid Act, the same was required to be communicated by PW18 to his official superior within 72 hours from the receipt thereof.
57. It has also been argued by Ld defence counsels that PW19 was not the ' i mmediate official superior' of PW18 as PW18 was only an Intelligence Officer of DRI and PW19 was a Deputy Director and there were other ranks of SIO and Assistant Director in between, as has also been admitted by the above two witnesses, and hence the above provisions cannot be said to have been complied with in this case as this Section requires that the information has to be conveyed to ' i mmediate official superior' of the person receiving the same. However, it is observed that PW19 has specifically deposed on record that on the day of receiving of the above information, i.e. on 18.08.2004, PW18 was his direct subordinate in the section in hierarchy and PW18 was also bound to report to him. He has further denied the suggestion give to him during his cross examination that he was not the immediate superior officer of PW18 on that day. Hence, simply because PW19 was much senior in rank to PW18, it cannot be said that on any particular day or at any particular time, PW19 was debarred or restrained from acting SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 35 as an immediate superior officer of PW18.
58. Moreover, the provisions of Section 42 of the NDPS Act are meant to be complied with in spirit and not in form as no prejudice can be said to have been caused to an accused if such a secret information reduced in writing has been communicated by the officer receiving it not to his immediate official superior, but to some officer even higher in rank to such immediate official superior. Though the Ld defence counsel for accused no. 2 has also referred to a judgment of the Hon' b le Supreme Court in case of DRI Vs Mohammed Nisar Holia 2008 (1) JCC (Narcotics) 1 where literal compliance of Section 42 NDPS Act was impressed upon, but in view of the propositions of law as laid down by a Constitution Bench of the Hon' b le Supreme Court in the subsequent case of Karnail Singh Vs State of Haryana 2009 (8) SCC 539 it can be said that whether the above provisions of Section 42 of the NDPS have been complied with in a particular case or not has to be seen in view of the peculiar facts of that case and while referring to the time limit prescribed in sub-section (2) of Section 42 it was also held that though the total non-compliance of the above provisions may not be acceptable, but even a delayed compliance can work and can be accepted. Hence, while considering the evidence led on record of this case, the above provisions are found to have been duly complied with.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 36
59. It has also been argued by all the Ld defence counsels that a warrant for search of the above vehicle was required to authorize the IO/PW1 for searching the above vehicle for recovery of the above contraband substance and it has been admitted by the IO/PW1 on record that he was not having any such search warrant issued in his favour at the relevant time and hence, the recovery and seizure etc. of the above contraband substance effected by him is illegal. It is also argued that the IO/PW1 had also not recorded any reasons of his belief for effecting the search of the above vehicle without any search warrant, as provided by the proviso to sub-section (1) of Section 42 of the NDPS Act.
60. However, a bare perusal of the provisions of Section 42 of the NDPS Act reproduced herein above reveals that no such search warrant U/S 41 of the NDPS Act was required in this case for search of the above vehicle. In terms of sub-section (1) of Section 42 of the NDPS Act, PW18 Sh I.S.Sahni was only required to reduce the above secret information in writing and he had reduced it as PW18/A. The above information was also immediately conveyed by him to PW19 Sh Vinod Kumar Mehta in terms of the provisions of sub-section (2) of Section 42 of the NDPS Act. Under sub- section (1) of Section 41 of the NDPS Act a Magistrate is authorized to issue a search warrant under the given facts and circumstances of that sub-section and under sub-section (2) of Section 41 of the said Act a Gazetted Officer of some SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 37 given departments of the Central Government, including the DRI, and also some empowered officers of different departments of a State Government are also authorized to issue an authorization for such searches in favour of their subordinate officers of empowered ranks and when the empowered officers of such departments are armed with an authorization given by any such officer, they are authorized to effect the arrest and searches in the manner as is stipulated by Section 42 of the NDPS Act. Moreover, Section 42 of the NDPS Act even stipulates such arrest, search and seizure etc. even without a warrant or authorization and the proviso to sub-section (1) of Section 42 of the NDPS Act requiring the recording of the reasons of belief of the investigating officer for not obtaining a search warrant or authorization only comes into picture when such searches are to be conducted between sunset and sunrise and during the day time the same can even be conducted even without any search warrant or authorization. Moreover, the IO/PW1 in this case was already having an authorization in his favour to act upon the above intelligence Ex. PW18/A. Hence, this argument of Ld defence counsels is found to be without any merit. In view of the above legal position, the judgments being relied upon by Ld defence counsels on this aspect are not of any help to the case of the accused persons.
Non Compliance of Section 50 of the NDPS Act SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 38
61. Though the Ld defence counsel for accused no. 1 has conceded in his written submissions that the provisions of Section 50 of the NDPS Act are not attracted in the present case, but the Ld defence counsel for accused no. 2 has argued that the mandatory provisions of Section 50 of the NDPS Act have not been complied by the IO/PW1 in this case as the evidence led on record does not suggest that the accused no. 1 and 2 were apprised by the IO/PW1 prior to the search of the above vehicle and their persons that it was their legal right to be searched in the presence of a Gazetted Officer or a Magistrate. It is also argued that even though the recovery of the above contraband substance was not effected from the ' p ersons ' of the accused, but the provisions of Section 50 were required to be mandatorily complied with as the ' p ersons ' of the accused were also searched by the IO/PW1, besides the above vehicle.
62. It is now well settled that the provisions of Section 50 of the NDPS Act come into picture only when the recovery of the contraband substance is effected during the search of the ' p erson ' of the accused and not when the same is effected from any vehicle or even briefcase, suitcase or bag etc. being carried by the accused. The above view was expressed in many judgments, including the judgments in cases of State of H.P. Vs Pawan Kumar 2005 (4) SCC 350 and Madan Lal Vs State of H.P. 2003 Crl.L.J 3868 etc. However, in some other judgments like in case of SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 39 Dilip & Ors Vs State of M.P. : 2007 (1) JCC (Narcotics) 5 it was laid down by the Hon ' b le Supreme Court that the provisions of Section 50 of the NDPS Act are meant to be complied with even when the recovery of the contraband substance was not effected from the ' person ' of the accused but his ' person ' was also searched for such recovery of the contraband substance. But again in another case of Ajmer Singh Vs State of Haryana 2010 (2) SCR 785:
2010 (3) SCC 746 the Hon ' b le Supreme Court has again reiterated that the above provisions are meant to be complied with only in case of recovery of the contraband substance from the ' person ' of an accused and not in the case of recovery of such substance from any briefcase, suitcase, bag or container etc. being carried by him. In the instant case also since the bag containing the above contraband substance was recovered from the above vehicle, Section 50 of the NDPS Act is held to be not applicable in this case.
63. Moreover, the IO/PW1 has also specifically stated on record that after the apprehension of the above two accused persons with the above vehicle, they both were brought to the ground floor area of their office in the above building and there, in the presence of the two panch witnesses, both the above accused were informed in writing individually U/S 50 of the NDPS Act that they had got the right to exercise the option for the search of the above SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 40 car and their person before a Gazetted Officer or a Magistrate. IO/PW1 has also deposed on record that in response to the above, they both had stated that any officer of DRI can take their search and the search of their above car and they did not require the presence of any Gazetted Officer or Magistrate. The notices U/S 50 of the NDPS Act given to the accused no. 1 and 2 have also been duly proved on record during the statement of the IO/PW1 as Ex. PW1/B and PW1/C respectively and the above replies given by the accused persons in their own handwritings are also found to be duly recorded on the said notices. It is also found specifically incorporated in the above notices that the above was their legal right. Hence, even otherwise, the provisions of Section 50 of the NDPS Act are found to have been complied with in this case.
Non Examination of the Panch Witness
64. The next challenge of Ld counsels for all the accused to the story of the prosecution is that the two panch/public witnesses namely Sh Ram Bilas and Sh Rajesh allegedly joined by the IO/PW1 during the search and seizure proceedings have not been examined by the prosecution on record and in the absence of that the sole depositions made by the IO/PW1 regarding recovery of the above contraband substance from the possession of the accused no. 1 & 2 should not be believed. It is also their argument that the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 41 above two panch witnesses are the fake witnesses introduced into the prosecution story, just to meet out the legal requirements, whereas no such persons ever existed at their given addresses and this is also the reason why they were not subsequently produced for examination in the court.
65. As far as the non examination of the above two panch witnesses in this court is concerned, the prosecuting agency cannot be faulted or blamed for the same as though it was in the hands of the IO/PW1 to have joined the public witnesses or to make efforts for joining them, but it was never in his hands to have produced them for examination in this court. There are specific depositions made by him on record that the above two public persons were joined by him prior to the rummaging of the above car at the ground floor area of the building of their office and these two public witnesses had also subsequently accompanied them to their 7th Floor office in the said building and were present there at the time of the detailed search and examination of the above 23 packets of contraband substance recovered in a bag from the above vehicle and had remained there till the conclusion of the panchnama proceedings. It is found that the above notices U/S 50 of NDPS Act Ex. PW1/B and PW1/C, the panchnama Ex. PW1/D and its annexures Ex.PW1/D1 to PW1/D10 and also the documents Ex.PW1/D11 to PW1/D17 recovered from the dash board of the above vehicle and in the search of the 'person' of the accused no.2 are all found SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 42 bearing the signatures of the above two panch witnesses, besides that of the IO/PW1 and the above two accused persons. It is also on record in the depositions of the IO/PW1 that after the conclusion of the panchnama proceedings, he had issued the summons Ex. PW1/E and Ex. PW1/F respectively, both dated 18.08.2004 itself, to the above two public witnesses and in response to the above summons, the above two public witnesses had also appeared before him on the same day and had also tendered their statements U/S 67 of the NDPS Act Ex. PW1/G and Ex. PW1/H respectively. The signatures of the above two witnesses on all the above documents have been duly identified by the IO/PW1.
66. Though, the contents of the above statements Ex. PW1/G and Ex. PW1/H cannot be read into evidence and considered against the accused persons because of their non examination in the court subsequently, but at-least their participation in the proceedings of this case stands duly proved on record from the depositions made by the IO/PW1 as well as the above documents brought on record. Hence, merely because the above two public witnesses were subsequently not produced on record and were dropped by the prosecution on the ground that they were not residing/ existing at their given addresses, no presumption or inference can be drawn therefrom that they were the fake witnesses or were never joined by the IO/PW1 during the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 43 investigation.
67. Moreover, it is now well settled that the depositions of only official or police witnesses cannot be discarded solely by the reason of their office and the presumption of honesty is as much available to an official or a police witness as the same is available to any other public witness. With regard to the appreciation of testimonies of the official or police witnesses, reference can be made to the judgments of the Hon ' b le Supreme Court in the cases of Parveen Kumar Vs State of Kar. 2003 (12) SCC 199, Karamjeet Vs State 2003 Crl.L.J 2021 SC and Girja Pd. Vs State of MP AIR 2007 (SC) 3106, wherein the testimonies of only official or police witnesses were considered to be sufficient for the conviction of the accused. With regard to the non-joining of the public witnesses and the appreciation of the testimonies of the official witnesses, a reference can also be made to the judgment of the Hon ' b le Supreme Court in case of Ajmer Singh, Supra wherein the following observations were made by their Lordships:-
"19. The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel.... "
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 44
68. Hence, in view of the above discussion and the prepositions of law as laid down in the above said cases, this argument of Ld defence counsels does not hold any ground.
Non Conduction of the Search and Sealing Work at the Spot
69. The next contention of the Ld defence counsels is that the search of the above vehicle leading to the recovery of the above packets of the contraband substance and the sealing work etc. has not been conducted by the IO/PW1 at the spot of apprehension of the accused, i.e outside the above hotel Sangam Palace, and rather the accused no. 1 and 2 and the vehicle were taken away by them to their office area and the accused stood prejudiced thereby as it was imperative on the part of the IO/PW1 to have conducted the entire search, seizure and sealing work at the spot itself, to make the recovery of the above contraband substance from the possession of the accused to be authentic and truthful. They have also argued that since the above packets were admittedly opened for detailed examination in the office of the DRI and further that the entire sealing work etc. was also done in the DRI office, no authenticity can be given to the above search, seizure and sealing proceedings and the prosecution evidence and the case has to be viewed with grave suspicion and the accused deserve to be acquitted SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 45 giving benefit of doubt.
70. The IO/PW1 has specifically deposed on record that after the DRI members had intercepted the accused no.1 and 2 with the above car, they both were informed about the above specific information that they were carrying narcotic drugs in their car and for which the rummaging of the car will have to be done. It is also stated by him that since the above place where the car was parked was a busy place with lot of traffic nearby, the above car and the occupants thereof had to be escorted to the ground floor area of the above building of the DRI. There is found to be nothing unusual in the above shifting of the accused persons and the above car from outside the above hotel to the office building of the DRI as the above place being a busy public place could not have been conducive for conduction of the detailed search of the accused and the above vehicle and the packets found therein, what to say of the process of sealing of the samples and the other case property etc., and the accused cannot be said to have been prejudiced thereby in any way. In this regard, the Ld SPP for DRI has rightly relied upon a judgment of the Hon'ble Supreme Court in case of M. Prabhulal Vs The Assistant Director DRI-2003 (3) CC Cases (SC) 67. Reference on this point can also be made to another judgment of the Hon'ble Supreme Court in case of Khet Singh Vs Union of India (2002) 4 Supreme Court Cases 380 and a judgment of our own Hon'ble High Court in case of SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 46 Vimal Kumar Bahl Vs DRI, Criminal Appeal No. 694/05 decided on 05.11.2009. The judgments to the contrary being referred to by Ld defence counsels are not found necessary to be discussed, in view of the above legal position.
Non Compliance of the Provisions of Section 52 A of the NDPS Act
71. It has been argued on behalf of accused no.1 that there is a violation of the mandatory provisions of Section 52 A of the NDPS Act in this case as the seized contraband substance was required to be produced, alongwith its inventory, before a Magistrate for certifying the correctness of the inventory so prepared and for drawing of representative samples in the presence of the Magistrate, which has not been done in the present case. He has also placed reliance upon a judgment of the Hon' b le Calcutta High Court in case of Samir Ghosh Vs State of WB 2001(3) CCR 220 (CAL) in this regard and also upon some other judgment, of which the complete citation has not been given in the written submissions.
72. It is observed that the provisions of Section 52A have been inserted in the NDPS Act with a different objective pertaining to the disposal of the seized narcotic drugs and psychotropic substances due to the different factors like the hazardous nature of any such drugs or substances, their vulnerability to theft and lack of proper SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 47 storage space etc. and it has been left to the wisdom of the Central Government to destroy such drugs or substances regarding which the above procedure provided in Section 52A of the NDPS Act has been followed. The purpose behind insertion of the above Section is only that huge quantities of such drugs or substances cannot be kept or stored pending the disposal of the cases registered regarding such drugs and substances and while keeping some representative samples drawn in the presence of a Magistrate, the rest of the substances or drugs may be destroyed.
73. The record of such certified inventory, the photographs of narcotic drugs or psychotropic substance and any list of such representative samples etc., as certified by the Magistrate in the manner given in this section, are to be taken as primary evidence in respect of such offences pertaining to such drugs and substances and hence the resort to the provisions of Section 52A of the NDPS Act by the investigating agency has nothing to do with the seizure of the same effected in any particular case and the seizure itself cannot be termed illegal or otherwise for non compliance of the provisions of Section 52A of the NDPS Act. The judgment of the Hon'ble High Court of Calcutta in the case of Sameer Ghosh, Supra being relied upon by the Ld defence counsel can be distinguished as in that case there is nothing to show that the case property was ever produced before the court during the trial and further no evidence SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 48 was also led before the Court as to when the samples were deposited for testing and the case property was deposited in the malkhana etc. In the case of Siddiquia, Supra the Hon'ble Delhi High Court has upheld the conviction of an accused by the trial court in a such a case even though there was no resort to the provisions of the Section 52A of the NDPS Act by the investigating agency.
Violation of Section 55 of the NDPS Act
74. It is also an argument advanced by all the Ld defence counsels that there is a violation of the provisions of Section 55 of the NDPS Act pertaining to the safe custody of the seized narcotic substance and for violation of these provisions, there are serious doubts regarding the authenticity and intactness of the parcels of remaining contraband substance produced in this court and of the samples etc. and the accused are entitled to be acquitted because of the same as tampering with the samples as well as the remaining case property cannot be ruled out from the evidence led on record.
75. It has been pointed out in the written submissions filed on behalf of accused no.1 that there is a contradiction in the prosecution evidence as to whether the sealed packets of the remaining case property were put in a steel trunk or in a tin box because though the steel trunk SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 49 was used during the panchnama proceedings, as also mentioned in the panchnama Ex. PW1/D, and steel trunk was also produced in the court during evidence, but as per the inventory memo Ex. PW1/L prepared by the IO/PW1, the above packets were put in a tin box. However, this contradiction does not appear to be material to this court and cannot be given much relevance. It has also been submitted that the above steel trunk was not locked after keeping the above packets, but even this submission is useless as it is on record that the above trunk was subsequently converted into a cloth parcel and was duly sealed. It has also been submitted that the number of seals of DRI affixed on the above cloth parcel of steel trunk are not found mentioned in the panchnama Ex. PW1/D or in the above inventory Ex. PW1/L and it is only during the evidence that it has come on record for the first time that 23 seals were affixed on the above cloth parcel of the trunk. Even this argument of Ld defence counsel is found to be useless as it is not the mere mentioning of the number of seals in the above document which is relevant, but what is relevant is the sealing of the parcel to ensure that the same are not tampered with. The very fact that 23 seals were found affixed on the above cloth parcel and the same are not found to be tampered at any stage is sufficient to show the intactness of the case property.
76. It has also been submitted on behalf of the accused SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 50 persons that the above parcels Mark X1 to X23 of the case property have not been produced in the court in intact condition as it is on record that the above seals of DRI affixed on these parcels were not completely readable or legible or were either found partially broken or missing, which is an evidence of the fact that these seals were tampered with while the above packets of case property were in the custody of the Valuable Godown. It is found on perusal of record that when the above packets of the remaining contraband substance were opened in the court during the examination of the IO/PW1, it was observed that some of the seals of DRI affixed on these packets were either not completely readable and some portion of the seal was either found missing or not readable. However, the same is not an evidence of the fact that the above parcels of the case property were tampered with while the same were in the custody of the Valuable Godown, New Customs House as there is nothing on record to suggest that the seals affixed on the above parcels, though not so legible or readable, were not in intact condition. The IO/PW1 has clarified that the above condition of the seals was because of the sticking of the above packets together and if is not a weak explanation and rather it is a logical and reasonable explanation that due to the fact that the above seals of DRI affixed on these parcels were of lak/wax and the same had sticked by keeping the above packets together in the same trunk, it had resulted into the above condition of the seals.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 51
77. It cannot be ignored that all the above packets were kept in a steel trunk which was further wrapped with a cloth and was sealed with as many as 23 seals affixed on a paper slip signed by the IO/PW1, accused no.1 and 2 as well as the panch witnesses the above sealed trunk was opened in this court for the first time during the examination of the IO/PW1 on 28.02.2007 and though most of the 23 seals affixed on the above parcel of the steel trunk were not completely legible, but it has been specifically observed on record that all the seals affixed on the stitched portion of the trunk were in intact condition and the seals affixed on the paper slip on the upper side of the trunk were also in intact condition and the contents of the trunk could not be taken out without breaking open the seals. The above trunk, the above white cloth in which the trunk was wrapped and the thread with the paper slip etc. have all been exhibited in this court during the examination of the IO/PW1 and, it has also been specifically taken on record that the seals affixed on each of the 23 packets of case property were also in intact condition and the contents of the above packets could not be taken out without breaking open the seals and cutting the stitched portion over which the seals were affixed and without removing the paper slips also. The paper slips affixed on these packets were also removed and exhibited during the evidence, alongwith the cloth of these packets. The Ld SPP for DRI has rightly referred to SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 52 propositions of law as laid down by our own Hon'ble High Court in case Ruiz Guerrero Dolores Vs Customs 2000(2) JCC (Delhi) 357 on this aspect, wherein it was held that since paper slips appended on the parcels were found intact, the samples cannot be said to have been tampered with as there was no possibility of the same.
78. The next contention of Ld counsel for accused no. 1 is that there is some contradiction in the evidence of the prosecution led on record as to whether the seals of DRI affixed on the samples were actually affixed on the paper slips pasted thereon or on the envelopes in which the sample parcels were sealed. He has pointed out towards the statement of the IO/PW1 as well as the contents of the above panchnama also in support of his above argument to show that the fact that the seals were pasted on the paper slips is not found specifically mentioned in the above panchnama and the IO has also admitted this fact. However, in the considered opinion of this court, the above discrepancy is also found to be of no consequence as no tampering with the sample parcels is also visible or can be inferred from the record at any stage. Further, there is also not found to be any material discrepancy or contradiction in the prosecution evidence in this regard as in the panchnama Ex.PW1/D itself it is found to be specifically recorded that all the 46 representative samples drawn out of the above contraband substance recovered from the possession of the accused no. 1 SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 53 and 2 were kept in zip locked small polythene packets and were given markings as X1A to X23A and X1B to X23B and the same were then further packed in 23 separate brown colour envelopes and correspondingly marked and these envelopes were then sealed over the dated signatures of the above accused, IO/PW1 as well as the panch witnesses and though it is not specifically incorporated therein that the above dated signatures were put on paper slips pasted on the above envelopes, but the same only appears to be due to some clerical mistake or omission on the part of the IO/PW1. The IO/PW1 has also clarified the same as such and has even denied the contrary suggestions given by Ld defence counsel for the accused no.1 that these signatures were not put on the paper slips pasted thereon and were put on the envelopes itself. The paper slips were found to be duly pasted on these envelopes at the time of their receipt in the CRCL and also the production of the other set of sample parcels in the court and this fact is also duly established on record from the depositions of the concerned Chemical Examiner Sh P.K.Aggarwal/PW11 and also during the observations made on record at the time of production of the above sample parcels in the court. PW11 has also specifically deposed that the above A batch of 23 samples received in the CRCL by him from the IO/PW1 on 19.08.2004 was accompanied with a forwarded letter and duplicate test memos and he had received the sample parcels after examining the seals and four seals of the impressions of Directorate of Intelligence were found to SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 54 be affixed on each sample parcel, which had tallied with the impression given on the test memo. These four seals of each sample parcel were even found to be present at the time when the sample parcels were produced in the court during the examination of the IO/PW1. Hence, no tampering with the sample parcels is also visible from the record.
79. Ld counsel for accused no. 1 has also argued that there is some discrepancy in the prosecution evidence with regard to the fact as to whether the sample parcels were put in a zip locked polythene pouches or press locked polythene pouches, as according to him the documents prepared by the IO/PW1 and his depositions made in the court suggest that the sample parcels were sealed by putting them in zip locked polythene pouches whereas according to PW11 the same were found to be in auto pressed locked pouches. But even this contradiction or discrepancy is liable to be ignored in view of the above discussion that no tampering with the sample parcels is visible or can be inferred from the record at any stage. It has also been argued on behalf of the above accused that the IO/PW1 has handled the entire show single- handedly as the parcels of the case property as well as the samples had been in his possession since the time of its seizure on 18.08.2000 till the deposit of the sample parcels in CRCL on 19.08.2004 and the case property in the Valuable Godown, New Customs House on 20.08.2004. However this submission is found to be against the record because it is SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 55 the case of the prosecution that immediately after the seizure the sealed parcels of the case property were placed in the custody of PW7 Sh. R.K.Aggarwal till its deposit in the Valuable Godown on 20.08.2004 by the IO/PW1 and both PW7 as well as the IO/PW1 have made specific depositions in this regard. Even the inventory/deposit memo of the case property is found to be countersigned by PW7. The sealed parcels of the samples sent to CRCL were also put in the safe custody of PW2 Ms Sanyogita Mishra after the seizure and there are specific depositions made by her as well as the IO/PW1 that the same were handed over by her to the IO/PW1 for depositing the same in the CRCL only on 19.08.2004. Hence, it will be wrong to say that the parcels of the case property or the samples were left in the custody of the IO/PW1 himself to be tampered with by him. The case law being referred with regard to the tampering of the case property is distinguishable from the facts and circumstances of this case.
Discrepancy in the Weight of the Samples and the Colour etc. of the Contraband Substance
80. The next ground of challenge to the prosecution story is that in Section II of the test memo Ex. PW2/B sent to the CRCL with the samples, the gross weight of some of the samples has been mentioned to be below 5 Grams, whereas according to the IO/PW1 all the 46 samples taken by him were of 5 Grams each. It is observed that out of the 23 sample SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 56 parcels received in the CRCL for testing and analyzed vide the report Ex. PW11/B, the weight of four samples has been mentioned as 4.8 Grams, 4.8 Grams, 4.5 Grams and 4.7 Grams in Section II report of the above test memo and this is stated to be the gross weight of the sample, i.e. the weight including the small polythene pouches in which the sample substance was packed. The gross weight of all the other samples is mentioned to be above 5 Grams. However, in the considered view of this court the above variation in only 4 out of 23 samples is not found to be material enough to doubt the veracity or genuineness of the above sample substance. Various judgments being referred to by Ld counsel for accused no. 1 can be differentiated in the given facts and circumstances of this case. The alleged differences between the colour of the contraband substance mentioned in the panchnama to be off white, in the test memo to be of whitish colour and also in the CRCL report and in the testimony of PW11 to be cream and grey colour etc. can also be ignored as some variations in observing the colour can always be there by different persons and the judgment of the Hon'ble Delhi High Court in the case of Siddiquia, Supra is also an authority on this point. Moreover, the colour and form of the substance can also slightly change due to moisture or the sealing pattern etc. and PW11 should have been specifically asked by Ld defence counsel to explain the above differences of colour and form and further if the same were naturally possible or not and in the absence of any SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 57 such cross examination of the above witness doubting the genuineness or veracity of the above substance, this discrepancy can also be safely ignored.
81. It is also argued on behalf of accused no. 1 that the total net weight of the seized contraband substance in this case was 22.855 KG and even after drawing of the 46 samples of 5 Grams each, the weight of the seized case property deposited in the Valuable Godown had remained to be the same, though it should have been reduced to 22.625 KG. He has referred to the contents of the inventory/deposit memo Ex. PW2/L as well as the copy of the Valuable Godown Register Ex. PW20/A in this regard where the weight of the heroin deposited is still mentioned to be 22.855 KG. The above contention of Ld defence counsel is also found to be without any merits as the above weight of 22.855 KG is apparently mentioned to be the net weight of the goods seized in this case and it is not required that the above weight was to be mentioned after reducing the weight of the samples. Even otherwise, there cannot be any end to such submissions as in that case the weights of the packing material and even of the above steel trunk and grey and blue colour zipper bag etc. were also to be included in the above weight mentioned in inventory Ex. PW2/L. Similarly, there is also not found to be any requirement of affixing of the specimen of the above seal of DRI on the above inventory memo Ex. PW1/L. Though it has also been pointed out that SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 58 PW7 Sh R.K.Aggarwal has not personally checked the condition of the seals affixed on the parcels of the case property deposited vide the above inventory memo Ex. PW1/L, but the same is not found to be fatal in view of the depositions made by the other witnesses regarding the condition of the sealed parcel of the case property deposited in the Valuable Godown, New Customs House, which was in the custody of PW20 Sh R.S.Kashyap and his depositions as well as the depositions of the IO/PW1 clearly prove on record that the sample of the case property was deposited in the Valuable Godown and had remained there in safe custody and was not tampered with.
Non Compliance of Provisions of Section 57 NDPS Act
82. It is also one of the arguments advanced on behalf of accused no. 1 that the provisions of Section 57 of the NDPS Act stood violated in this case as the report about the seizure of the above contraband substance and the arrest of the accused no. 1 and 2 was sent by the IO/PW1 Sh R.Roy to PW2 Smt Sanyogita Mishra who was a person interested in the investigation of this case, as she had signed the test memos prepared by the IO, recorded the statement of the accused no. 3 and had also sent some letter etc. pertaining to this case. It is found that the above contention of Ld defence counsel is contrary to the provisions of Section 57 of the NDPS Act, which only provides that a full report of all the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 59 particulars of such arrest or seizure has to be sent by the person making such arrest or seizure to his official superior within 48 hours from such arrest or seizure and it nowhere lays down that the above superior official should not be an officer connected with the investigation of that case. The above arrest and seizure has been effected in this case on 18.08.2004 and the report U/S 57 of the NDPS Act Ex. PW2/J was sent in this case on 19.08.2004, i.e. within the prescribed time, and hence the above provisions are found to be duly complied with in this case, which even otherwise are directory in nature.
Seal not handed over to Independent Witness
83. The next contention of Ld defence counsels is that the above seal of DRI used in this case was not handed over by the IO/PW1 after the completion of the panchnama proceedings to an independent witness, but there is no such requirement under the NDPS Act or the Rules framed thereunder for handing over of the above seal to an independent witness. Reference in this regard can also be made to the judgments of our own Hon' b le High Court in cases of Siddiquia and Vimal Kumar Bahl, Supra.
Search, Seizure and Investigation by the Same Person
84. It is also one of the arguments of Ld defence SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 60 counsel for accused no. 1 that the IO/PW1 had himself proceeded with the investigation of the case even after seizure of the above contraband substance and the investigation of the case stands vitiated on this count. Some judgments have also been referred to in this context in the written submissions filed on behalf of the above accused. However, it is observed that the above judgments have been given in a different context. It is found that the IO/PW1 was an officer duly empowered to act under the provisions of the NDPS Act and moreover, after effecting the above seizure he had not conducted any material investigation of this case as the statements of the accused persons U/S 67 of the NDPS Act were recorded by some other officers and no further search or seizure was also conducted by him in this case. Since the seizure of the contraband substance has already been effected, the accused cannot be said to have been prejudiced if some part of the investigation is conducted by the same officer. Reference in this regard can be made to a judgment of the Hon'ble Kerala High Court in case of Kedar Vs State of Kerala 2001 Crl. L. J. 4044 (Ker.) wherein, after discussing the law an the subject, including the leading judgment of the Hon'ble Supreme Court in case of Megha Singh Vs State of Haryana AIR 1995 SC 2339 also referred to by Ld defence counsel for accused no. 1, it was held by their Lordships that in such a case no change of the investigating officer is required. Even in the case of State of Punjab Vs Balbir Singh, AIR SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 61 1994 SC 1872, the Hon'ble Apex Court had also held that if the seizure of the contraband substance is effected by an empowered officer who is competent to continue the investigation under the said Act, no change of the investigating officer is required.
Testing Process of the Samples and the Test Report
85. Ld counsel for the accused no. 1 has vehemently argued that the concerned Chemical Examiners of the CRCL had not performed the prescribed tests for determination of the presence of diacetylmorphine and the percentage thereof in the above samples analyzed in the CRCL vide the above test report Ex. PW11/B. In the written submissions filed on behalf of the above accused, he has also referred to some informations received by him under the RTI Act and also some other informations gathered by him from different sources to impress upon his above submissions and arguments.
86. It is observed on perusal of the record that the test report of the above samples has been duly proved on record as Ex. PW11/B during the statement made by PW11 Sh P.K.Aggarwal who was the concerned Assistant Chemical Examiner posted in the CRCL at the relevant time. It is specifically mentioned in the above report that the above samples were subjected to chemical and chromatographic examination on the basis of which the presence of SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 62 diacetylmorphine was determined in the above samples and they had also determined the percentage thereof in the said samples and it is also found given in the said report. Though the above witness has been cross examined at length by the Ld defence counsel representing the above accused, and also by the two other Ld defence counsels, but nothing has come on record during his such cross examination that the tests performed by him on the above samples were not correct or the presence or percentage of the diacetylmorphine could not have been determined in the said tests. Though some questions put up by Ld defence counsels could not be understood and hence not answered by this witness, but the same in no way suggests that the witness was not competent to perform the above tests.
87. PW11 was posted as an Assistant Chemical Examiner in a Central testing laboratory, which is a government laboratory and there cannot be any disputes or doubts regarding the qualification or competency of the above witness to perform the above tests. Since he is an expert in his field, the depositions made and the reports given by him are relevant facts to be considered by this court under the provisions of Section 45 of the Evidence Act. Though the same are not binding on the court, but even then the court cannot super-impose its own opinion or findings on that of an expert and hence the above test report Ex. PW11/B has to be considered by this court as such as there is no SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 63 reason or ground to disbelieve or discard the same.
Statements U/S 67 of the NDPS Act of the Accused Persons
88. It has been argued on behalf of all the three accused persons that the statements U/S 67 of the NDPS Act allegedly made by the accused persons are not their voluntary statements and the same were taken when the accused persons were already in the custody of the DRI Officers and they were threatened, coerced and physically & mentally tortured to write the above dictated statements in their writings and hence, the same should not be considered against them. It has also been argued that the contents of the above statements apparently show that the same were dictated by the DRI Officers and hence, these statements should outrightly be discarded and cannot be used for any purposes and cannot be made the basis of conviction of the accused and the same were also subsequently retracted by all the three accused. Various judgments in this regard have also been relied upon by the Ld defence counsels as well as by the prosecution regarding the admissibility and relevance etc. of these statements.
89. Before discussing anything about the above statements of the accused persons in this case, which are confessional in nature not only against the accused making it but also against the other co-accused, it is necessary to SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 64 discuss herein the legal position with regard to the admissibility and relevance etc. of such statements. It is now well settled that such a statement made by an accused U/S 67 of the NDPS Act is admissible in evidence and can be acted upon by the court if it is found to be made voluntarily. In the case of Raj Kumar Karwal Vs Union of India & Ors. 1990 (2) SCC 409 it was held by the Hon' b le Supreme Court that a statement U/S 67 of the NDPS Act made by the accused is not the same as a statement U/S 161 Cr.P.C., unless it is made under some threat or coercion etc., this being a vital difference, the same is excluded from the operation of Sections 24 to 27 of the Evidence Act. Even in the case of Kanhaiya Lal Vs Union of India 2008 (1) AD (Crl.) (SC) 277 : 2008 (1) JCC (Narcotics) 23 it was held by the Hon' b le Apex Court that such a statement made by an accused is admissible in evidence as the same is made by him at a time when he was not under arrest and hence neither the bar of Sections 24 to 27 of the Evidence Act would operate nor the provisions of Article 20(3) of the Constitution would be attracted. Several other judgments of the Hon' b le Supreme Court and of different Hon' b le High Courts are also to the same effect and the only requirement for the court before acting upon such a statement is that the court has to satisfy itself that such a statement was not made under some threat, coercion or influence etc. and was made by the accused voluntarily.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 65
90. However, if such a confessional statement made by an accused is retracted subsequently, then the position is changed and it is well settled that in such a case the court has to look into the facts and circumstances of the case and the above retraction to see if the confessional statement of the accused was in fact made voluntarily or not and the law is also that it will not be safe for the court to arrive at a finding regarding the guilt or conviction of the accused solely on the basis of such a retracted statement and the same is required to be corroborated by some independent material evidence on record.
91. Though the Ld SPP for DRI has relied upon the judgment of the Division Bench of the Hon' b le Supreme Court in case of Kanhaiya Lal, Supra to argue that the retraction by an accused of his confessional statement cannot be looked into and considered by the court unless it is proved on record as per the provisions of the Evidence Act, but the prepositions of law as laid down in the above said case are no longer good and binding in view of some subsequent judgments of the Hon' b le Supreme Court. In the case of Francis Stanly @ Stalin Vs Intelligence Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124, as also relied upon by Ld defence counsels, there was no allegation that the appellant himself was found in possession of any narcotics and the allegation was only that he handed over some narcotics to a co-accused and the only SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 66 evidence against the appellant was the retracted statement of the co-accused and the appellant' s own retracted confession and it was held by a division bench of the Hon ' b le Supreme Court that it would not be safe to maintain the conviction of the appellant in such a case as an accomplice' s evidence is looked upon with suspicion because to protect himself he may be inclined to implicate the co- accused. In the case of Noor Aga Vs State of Punjab & Anr. 2008(9) Scale 681 also, being referred to by Ld defence counsels, it was held by a Division Bench of the Hon' b le Supreme Court that the confessional statement of an accused like that the one U/S 108 of the Customs Act is considered to be a very week piece of evidence and it will not be safe to convict the accused on the basis of such a statement though such a statement is technically admissible in evidence and is not hit by Section 25 of the Evidence Act or Article 20(3) of the Constitution. Reference has also been made by Ld defence counsels to a Full Bench decision of the Hon ' b le Supreme Court in case of Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC) wherein it was held that conviction should not be based merely on the basis of a statement made U/S 67 of the NDPS Act without any independent corroboration particularly in view of the fact that such statements have already been retracted. It was also held therein that the confessional statement of a co- accused also could not be used as a substantive piece of evidence against the other accused.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 67
92. Besides the above judgments, the Ld defence counsels has also relied upon a judgment of a Division Bench of the Hon' b le Supreme Court in case Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 and also a recent judgment of a single bench of our own Hon' b le High Court in case DRI Vs Raj Kumar Mehta & Ors.2011 (3) JCC (Narcotics) 156. In case of Ram Singh, Supra also it was held by their Lordships that though as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made U/S 67 of the NDPS Act, but as of a rule of prudence the court requires some corroboration thereof. In the other case of Raj Kumar Mehta, Supra also it was held by their Lordships that a person cannot be convicted solely on the basis of a confessional statement of the co-accused because a statement of a co-accused U/S 30 of the Evidence Act can be used only to lend assurance to other evidence against an accused, i.e. it is one more circumstance in the basket of circumstances of the prosecution.
93. It is clear from the above legal discussion that though earlier in the case of Kanhaiya Lal, Supra the view of the Hon' b le Supreme Court was that an accused can be convicted solely on the basis of his statement U/S 67 of the NDPS Act and if he has retracted therefrom his retraction is required to be proved on record as per the provisions of the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 68 Evidence Act, but, however, in the subsequent decisions of the Hon' b le Supreme Court and also of the different Hon ' b le High Courts there is a shift in the stand and the confessional statement of the accused under the above said provisions is now not to be acted upon to make it the sole basis of the conviction of an accused and even if his retraction on record is not proved as per the Evidence Act, the court has to look forward for some independent corroboration of the same as a rule of prudence.
94. Coming to the present case, it is the case of the prosecution that after the conclusion of the panchnama proceedings, the summons Ex. PW3/B were served upon the accused no. 1 by Sh Deepak Kumar Mangotra, Intelligence Officer of DRI and summons Ex. PW6/A were also served upon the accused no. 2 by Sh K.K.Gupta, another Intelligence Officer of the DRI. In both the above summons dated 18.08.2004, the time of appearance of the above two accused before the above officers is given to be 4.30 PM on that day. Sh Deepak Kumar Mangotra and Sh K.K.Gupta have also been examined by the prosecution on record as PW3 and PW6 respectively and in their above statements they both have deposed regarding the statements U/S 67 of the NDPS Act tendered by the accused persons before them and have also proved the same on record as Ex. PW3/A and PW6/B respectively. Both the above statements have been tendered in the respective handwritings of the above two accused and SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 69 are containing the signatures of the accused persons on each page of their statements, besides the signatures of the above officers before whom the same were tendered. The above two accused persons were arrested in this case formally by the IO/PW1 vide arrest memos Ex. PW1/I and PW1/J respectively and as per these memos the time of their arrest is 9 PM and 9.20 PM respectively on the above date. Hence, from the above documents as well as the depositions made by the above witnesses on record, it is clear that the above statements were tendered by the above two accused prior to their arrest in this case.
95. On perusal of the statements Ex. PW3/A and PW6/B made by the above two accused, it is also found that in their above statements they had disclosed a number of their personal details, including the names of their parents, brothers, sisters, wife and children etc. and also their educational and other details. The above details could never have been in the knowledge of the officers of the DRI and the very incorporation of the above details in the said statements and also the fact that the same are given in the handwritings of the accused themselves and are not challenged by them are strong circumstances to show the voluntariness thereof. Though, it has been pointed out by Ld defence counsels representing the above two accused that the above statements of the accused contain a mention regarding understanding the provisions of Section 67 of the NDPS Act SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 70 and also incorporate certain other legal aspects therein, which prima facie suggest that the same were written on the dictation of the DRI Officers, but the same, in the opinion of this court, is not true because it is on record in the examination of PW3 and PW6 that the above things were incorporated therein by the accused themselves when they were told about and explained the above provisions and requirements. Even during the cross examination of PW3 and PW6 nothing material could be extracted out to draw any inference therefrom that the above statements were dictated by them to the above accused and the suggestions given to them in this regard were duly denied by them. From perusal of the statement Ex. PW3/A of the accused no. 1, it also does not appear that he was not well conversant in the English Language, in which his above statement was written by him, as it is found to be written in very good flow and command.
96. Though it has also been alleged on behalf of the above two accused that the above statements are the result of threats, coercion and cruelties etc. extended to the above two accused, but, except the vague suggestions given to the witnesses and the arguments advanced in this regard in the court, no material is found to be there on record to suggest any such coercion, cruelty or influence etc. extended or exercised upon the accused to write down the above statements. Both the accused persons were also got SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 71 medically examined from the RML Hospital on the next day of their arrest in this case, i.e. on 19.08.2004, but their MLCs on record have only been marked in the evidence led by the prosecution and have not been proved as per the provisions of the Evidence Act. However, the defence has also not taken any steps to get the above MLCs proved by summoning the concerned doctors for the apparent reasons that the above allegations of physical cruelty could not have been substantiated by them. Hence, in view of the above factual and legal position, it can be safely held that the above statements of the accused no. 1 and 2 are their voluntary statements and they can very much be considered and acted upon by this court.
97. In the above statements, both the above accused persons have clearly admitted the recovery of the above bag containing the above packets of the contraband substance from their possession while they both were in the above Maruti Zen car no. DL-9CJ-5397 and also the subsequent seizure and sealing work etc. done by the raiding team of the DRI. The above statements of the accused persons further establish that they both were aware that the above packets contained in the above grey and blue colour shoulder bag being carried by them in the above vehicle were containing heroin and hence, the above statements not only show the possession of the above contraband substance by them, but also that it was a conscious possession of the same on their SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 72 part. Further, they both have also stated in their above statements that the above bag containing the above packets of contraband substance was handed over to them by their co- accused, i.e the accused no. 3, at the residence of accused no. 3 in Gurdaspur, Punjab to be transported by them from Punjab to Delhi in the above vehicle and was to be handed over to some person in Delhi, as per the instructions of accused no. 3 and they had only got same petty monetary considerations and expenses for delivery of the said contraband substance.
98. As far as the retractions made by the accused no. 1 and 2 are concerned, it is found on perusal of the record that the retraction applications of both of them were filed in this court on 29.09.2004, whereas they both were arrested in this case on 18.08.2004 and were produced before the court on 19.08.2004, 02.09.2004, 15.09.2004 and then on 29.09.2004. Hence, their retractions have not come on record at the earliest possible opportunity and there is found to be a delay of one month and about 10-11 days in filing the above retraction applications. It is further observed that it is also not even clear from the record as to whether the above retraction applications have been written in the handwritings of above two accused themselves or the same are in the handwriting of the jail visiting advocates as the words 'Jail Visiting Advocate' are found to be written on the retraction application of accused no.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 73 1 and these retraction applications are even not found to be signed by the above two accused. The accused no. 1 has not even referred to his retraction application during the course of recording of his statement U/S 313 Cr.P.C and moreover the allegations made in the above retraction applications were duly denied in the replies of the DRI filed to the same and no evidence has also been brought on record by the defence to substantiate the allegations of physical cruelty or threats etc. under which the previous statements Ex. PW3/A and Ex. PW6/B of the above two accused were tendered. Hence, the above retraction applications of the accused no. 1 and 2 are virtually not of any help to their case and the same apparently appear to have been written on the basis of some legal advice or are an attempt to wriggle out of what was stated by them in their previous statements Ex. PW3/A and Ex. PW6/B. But still in view of the legal position discussed above, the statements U/S 67 of the NDPS Act Ex. PW3/A and Ex. PW6/B of the above two accused can not be made the sole basis of their conviction unless the same are corroborated by some independent or material evidence on record.
99. As far as the accused no. 3 Harpreet Singh Bahad is concerned, his statement U/S 67 of the NDPS Act dated 20.08.2004 has also been proved on record as Ex. PW2/E and the same has been tendered by him in pursuance of the summons dated 18.08.2004 Ex. PW2/D served upon him. The SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 74 voluntariness of his above statement has been assailed by Ld defence counsel representing him mainly on the grounds that there is a material discrepancy with regard to the service of the summons upon him; that the above accused was already arrested and in custody of the BSF authorities before giving the above statement and he was physically assaulted and coerced to give the said statement and hence, his above statement cannot be termed to be a voluntary statement.
100. It has been pointed out that the above summons Ex. PW2/D served upon the above accused are bearing serial no. 7522 and the summons served upon the accused no. 1 and 2 are having serials no. 7524 and 7523 and the summons served upon the two panch witness are bearing serial no. 7525 and 7526 respectively and all these summons have been issued from the same summons book bearing serial no. NA 151. It has also been pointed out by him that some of the prosecution witnesses have also admitted on record that the summons to the accused no. 3 were sent for service only after the issuance of summons to the other two accused and the panch witnesses and since the summons issued to accused no. 3 are bearing the serial no. 7522, which comes prior to the other summons, it is clear from the record that the above summons and other proceedings have been manipulated and the above accused no. 3 was already in custody of the DRI Officers on the date of issuance of the above summons.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 75
101. As far as the above discrepancy is concerned, the submissions being made by Ld defence counsel for accused no. 3 that the above accused was already in custody of the DRI on the date of issuance of the above summons is self contradictory as during the recording of statements of the prosecution witnesses, the statement U/S 313 Cr.P.C of the above accused and also during his defence evidence it has been submitted on his behalf that he was take into custody by BSF authorities at Gurdaspur on 18.08.2004 and was shifted to Jalandhar and on 19.08.2004 he was brought to Delhi and on 20.08.2004 he was produced in the BSF Headquarters at Delhi. The prosecution has also duly proved on record that the summons of the above accused were issued by PW2 Ms Sanyogita Mishra on 18.08.2004 and one letter dated 18.08.2004 Ex. PW12/DA written by Additional Director General of DRI, is also on record vide which the above summons were forwarded to the BSF Headquarters Delhi for service upon the above accused. Another letter Ex. PW12/A dated 20.08.2004 is also proved on record during the depositions of PW12 Sh Ramesh Singh, the then DIG, BSF Headquarters, Delhi, and vide this letter he had returned a copy of the above summons to the DRI after service. It has also been specifically deposed on record by him that the above accused no. 3 was produced before him in the morning of 20.08.2004 and thereafter he was handed over to the DRI Officers.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 76
102. Though the IO/PW1 as well as PW2 have both stated on record that the above accused had appeared in the DRI office for tendering his statement on his own, but the IO has also subsequently admitted the fact that he was brought there by a team of the DRI Officers from the BSF Office. Hence, even despite the denial of PW2 in this regard, it is a part of the record that the above accused was brought in the DRI Office only from the BSF Headquarters at Delhi. However, even despite that, no such inference can be drawn, as is being argued by Ld defence counsel, that the above accused was already arrested by the BSF authorities or was being held captive or was under any sort of pressure etc. to give a statement which suited to the needs of the DRI. It cannot be ignored that the accused no. 3 was posted as a Deputy Commandant in BSF and since the matter pertaining to his involvement in a case of smuggling of heroin was a sensitive matter, there is nothing wrong and improper if his presence in the DRI Office was ensured through his departmental authorities and also through summons. Hence, simply because the summons sent to him was having a serial number prior to the summons sent to the other two accused and the panch witnesses and his presence in the DRI Office was ensured by the BSF authorities by bringing him to Delhi from Punjab, the same cannot by itself be made a ground to challenge the voluntariness of his above statement.
103. It is in evidence that the accused no. 1 and 2 were SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 77 apprehended in the morning time, i.e. at around 8 AM, on 18.08.2004 and thereafter they were brought to the DRI office and the panchnama proceedings with regard to the above contraband substance seized from the above car, in which they were sitting, had continued till about 4 PM. Though their statements U/S 67 of the NDPS Act were recorded in writing only after the conclusion of the panchnama proceedings, but the oral enquiries from them might have been certainly conducted and the name of the accused no. 3 disclosed in such enquiry. Hence, there was nothing wrong in issuance of a summons to accused no. 3 even prior to the issuance of the summons to accused no. 1 and 2 for recording of their statements as the accused no. 3 was being summoned not for that day but for 20.08.2004 and it has also come on record that he was posted at a distant place in Punjab.
104. On perusal of the statement Ex. PW2/E of the accused no. 3 also it is found that the same contains various details about the above accused, his family members and also about his official and other matters. The above statement has been tendered in his own handwriting and he being an officer of BSF of the rank of a Deputy Commandant cannot be expected to give any such statement, which is incriminating against himself, under any threats or coercion etc. The above statement is also duly signed by him, as well as PW2 before whom the same was tendered, on each page and SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 78 hence this court has no hesitation in concluding that even the statement U/S 67 of the NDPS Act of the accused no. 3 was a voluntary statement. Though during the defence evidence led on behalf of this accused a photocopy of one MLC dated 21.08.2004 of the above accused prepared at the time of his admission in jail, which is stated to be showing some swelling and scratches etc. on his person, has been brought on record, but the contents of the above MLC cannot be read into evidence as the same has not been proved on record. Moreover, as already stated above, he was a senior officer of BSF and the DRI Officers could not have dared to physically assault him for extracting any such statement against his will and wishes. As far as the retraction application filed by him in this court is concerned, it is observed that the same has been filed only on 04.04.2005, i.e. after a long delay of about 7½ months from the making of his above statement, and the same may outrightly be rejected to be the outcome of some legal advice tendered to him in the jail or during the court hearings as had there been any such physical excesses or coercion etc. committed or exercised upon him, then he should have promptly brought the same in the knowledge of this court as well as to his departmental authorities.
105. Therefore, in view of the above, it is held that the above statements U/S 67 of the NDPS Act made by all the three accused persons are very much admissible in evidence SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 79 and can be considered by this court. However, in view of the legal position discussed above, the above statements made by the accused persons cannot be made the sole basis of their conviction as such a confessional statement made by an accused under the NDPS Act is though admissible in evidence and can be acted upon by the court for basing his conviction, but as a matter of prudence the same is required to be corroborated by some independent or material evidence and the statement made by a co-accused can also not be used as a substantive piece of evidence and can only be used to lend credence to the prosecution story.
Possession of the Contraband Substance
106. As stated about, the recovery of the contraband substance in this case has been effected only from the possession of the accused no. 1 and 2 and no recovery of any contraband substance has been effected from the possession of or at the instance of accused no. 3. The IO/PW1 Sh R.Roy has made on record detailed depositions regarding the apprehension of the accused no. 1 and 2 from outside the above hotel and with the above vehicle and the bag containing the above packets of contraband substance kept inside the vehicle, the subsequent search, seizure and the sealing proceedings etc. conducted by him after the above accused persons were taken to the office of the DRI. He was cross examined at length by the Ld defence counsels, but SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 80 during his cross examination he had stood on his above depositions and nothing material could be extracted out from him for disproving his above depositions regarding the recovery of the above contraband substance from the above two accused. However, the arguments raised by Ld defence counsels challenging the veracity of his statement and the evidence led on regard in this aspect can be discussed herein below.
107. The first ground on which the veracity of the testimony of the IO/PW1 is being challenged is that he is the sole witness of recovery of the above contraband substance produced on record and even though the public witnesses were not subsequently available for their examinations in the court, but the other official members of the raiding team of DRI should have been produced on record to corroborate the depositions made by this witness. In his statement made on record, the IO/PW1 has even told some names of the officials of DRI, who according to him were also there in the raiding team on that day. However, the non examination of the other members of the raiding team cannot be made a ground for disbelieving the testimony of the IO/PW1, if the same is otherwise found to be trustworthy and reliable, as it is not the quantity but the quality of evidence which matters and a conviction can safely be based on the sole testimony of the investigating or seizing officer, as also discussed above.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 81
108. The next ground on which the prosecution story and the depositions made by the IO/PW1 regarding the recovery of the above contraband substance have been assailed is that the same should outrightly be discarded as the secret information reduced into writing as Ex. PW18/A itself suggests that the same was fabricated subsequently and the entire story of the prosecution can be falsified by the very fact that the factum of booking of room no. 201 by the accused persons is found to be incorporated in the above information, though it could never have been known even to the accused persons as to what room number they were going to be alloted in the said hotel, even if the prosecution case is believed as it is.
109. As per the prosecution story and the evidence brought on record, the prior information which was received in this case was admittedly that the above two persons bringing the contraband substance from Punjab to Delhi in the above vehicle would check-in the room no. 201 of the above hotel. However, it does not mean that the above document Ex. PW18/A is a manufactured document as the information could have been as specific as it was recorded in the said document. It cannot be ignored that during the investigation of the case the statements of two officials of the above hotel, i.e one Sh Mohd Israil, Manager of the above hotel and one Sh Dharam Singh, a Waiter of the above SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 82 hotel, were also tendered before PW6 Sh K.K.Gupta and this witness has made specific depositions in this regard. The summons issued by this court to the above two witnesses have been brought on record as Ex. PW6/C and PW6/E and the statements of the above witnesses as Ex. PW6/D and PW6/F respectively. The above statements have been tendered on 26.08.2004, i.e about a week after the seizure of the above contraband substance. It has also come in the statement Ex. PW6/F of the above Sh Dharam Singh that prior to the arrival of one of the above persons in the morning of 18.08.2004, i.e. the arrival of accused no.1 at the reception of the hotel as per the prosecution story, one person named Goldy had come in the hotel in the night of 17.08.2004 and had given him advance of Rs 200/- for keeping reserved a room in the name of his friend Ashok Kumar, who was to arrive in the hotel in the morning of 18.08.2004. It has also come in his statement that no receipt was given of the above amount and no entry in the hotel register was also made as the same was only to be made by the guest himself on arrival.
110. However, the above staff members of the above hotel could not be produced by the prosecution on record during the trial and it has also come on record that they had already left the above hotel and even the previous owners of the hotel had sold the said hotel to some other persons in the year 2006 and the relevant record of the year 2004 was also not available in the hotel. Hence, the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 83 prosecution cannot be faulted in not producing the above witnesses or record in this court and the only effect of non examination of the above two witnesses and the non proving of the contents of their above statements as per law is that the relevant part of the prosecution story that the accused no. 1 Ravinder Singh Mann had gone inside the hotel and had made the entry Ex. DX1 and DX2 (also Ex. PW3/A1 and PW3/A2) in the hotel visitor ' s register in the name of one Ashok Kumar stands not proved, but by reason thereof the evidence regarding the apprehension of the accused persons from the above car and with the above contraband substance from outside the above hotel cannot be disbelieved.
111. It is also argued by Ld defence counsels that the IO/PW1 had admitted that he had returned back to his office with the accused and the above vehicle and contraband substance and had not searched the above room no. 201 of the said hotel and this conduct of the IO/PW1 also shows the falsehood of the prosecution story as when the information received in this case was to the fact that the accused persons were to check-in the above room, he should also have searched the said room simultaneously. This submission of Ld defence counsels is also not found to be forceful as it has also been brought on record that another team of the DRI Officers led by PW5 Sh D.P.Saxena conducted the search of the above room of the hotel on the same day in the forenoon SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 84 period, on the basis of the search authorization Ex. PW5/A issued by PW7 Sh R.K.Aggarwal, and the same as conducted vide panchnama Ex. PW5/B, as deposed by the above witnesses. However, since nothing incriminating was seized in the above search of the room hotel and only some record, i.e. the copies of the above visitors' register of the hotel were seized during such search proceedings, the detailed discussion regarding the above search proceedings is not required.
112. It is also argued by Ld defence counsels that the above Maruti Zen car no. DL-9CJ-5397 could not be connected by the prosecution with the accused no. 1 and 2 as according to the alleged statements made by the above two accused as well as by the accused no. 3, the same was given to them by accused no. 3, but this fact could not be corroborated by any independent evidence. It is held that when there is trustworthy evidence on record in the form of depositions of the IO/PW1 that the above car and the contraband substance was found in the possession of accused no. 1 and 2, there is no need of looking for any corroborative evidence in this regard. Moreover, the above car was also seized in this case and is still lying deposited with the prosecuting agency, under the custody of this court.
113. It is also argued that the prosecution has not been able to prove on record that the above entry of the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 85 visitors' register of the hotel is in the handwriting of accused no. 1 and hence there is no corroboration of the case of the prosecution in this regard. As stated above, the above entry cannot be said to be proved on record as per law as the original register has not been produced in the court. The same cannot also be said to be in the handwriting of accused no. 1 as the IO had not taken any steps to get the specimen handwriting or signatures of the accused no. 1 for comparison. However, as stated above, it is only a part of the prosecution story, and even if the same is not proved on record, it does not affect credibility of the remaining evidence of the prosecution regarding the seizure of the above contraband substance from the possession of the accused no. 1 and 2.
114. The IO/PW1 has also specifically stated on record that some documents pertaining to the above vehicle were recovered from the dashboard of the above car and some documents were also recovered in the personal search of the accused no. 2, which included the leave sanction certificate of the above accused and also some slips of the toll points falling on the way from Punjab to Delhi and pertaining to the above vehicle. All these documents were seized in this case and are a part of the judicial record and the same are also found to be bearing the dated signatures of the accused no. 1 and 2, the IO as well as the two panch witnesses, which had been put on these documents on the date of the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 86 seizure itself, i.e 18.08.2004.
115. Coming to the defence of the accused no. 1 and 2, it is observed that both of them in their statements made in this court U/S 313 Cr.P.C have claimed that they were falsely implicated in this case by the DRI Officers. The accused no. 1 has stated that he was at Karnal by-pass when he was asked by two persons claiming themselves to be DRI Officers to accompany them to the DRI Office and there he was asked to be a secret informer and to be a witness in some case and on his refusal he was falsely implicated in this case. However, he has even not told the date on which he was so picked up by the DRI Officers from the Karnal by- pass nor he has stated the purpose of his visit to Delhi on that day. There is also not found to be any complaint or grievance made by any of his family members after his alleged false implication in this case and he has also not led on record any evidence in his defence to substantiate his above claim.
116. Similarly, the accused no. 2 has also submitted that he had come to Delhi on 18.08.2004 in connection with the engagement of his son and while he got down at the Karnal by-pass chowk, Delhi, he was surrounded by the DRI Officials in plain clothes and they wanted him to become a witness in some case. He has also submitted that he was then taken to DRI Office where he was asked about some SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 87 dealings in narcotics smuggling and when he had denied the same he was confined and was subsequently falsely implicated in this case and his family members had also sent some complaints to the NHRC in this regard.
117. During his defence he has also examined on record an official of the NHRC namely Sh K.L.Gandhi as DW1 and though this witness has stated about the receipt of one complaint dated 20.07.2005 from the wife of the accused no. 2 in their office, but the contents of the above complaint have not been brought on record as neither any copy of this complaint was available by that time in the office of the NHRC nor the same was brought on record by the family members of the above accused. Hence, the contents of the above complaint have remained a mystery and even otherwise this complaint has been received in the office of the NHRC admittedly after about 11 months from the date of apprehension of the above accused and the seizure of the contraband substance in this case. Moreover, DW1 has also stated it on record that the above complaint was dismissed in limine on 26.08.2005, i.e. the date on which it was put up before the Commission and this very fact is sufficient to show the falseness of the allegations which might have been made in the above complaint as the Commission had even not thought it necessary to seek a reply from the investigating agency/ DRI in this regard.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 88
118. The accused no. 1 and 2 in their above statements U/S 313 Cr.P.C have not even claimed that they both were known to each other prior to their involvement in this case or that they were picked up together from the Karnal by-pass by the DRI Officers and this court is not able to digest their above claims of being picked up from the above place by DRI at different times and that too without any previous enmity or even familiarity between the above two accused and the officials of the DRI as it is not the case of the above two accused that any one of them was known to the DRI Officers or was having any inimical terms with them. This court is also not able to accept their contention that they both were asked to become secret informers of the DRI for the simple reason that none of them was known to the DRI members prior to the date of their apprehension and none of them has also claimed that he had anything to do with the drug trafficking business. No record of the mobile location of the accused persons has also been summoned or filed on record in defence to corroborate their above claims of being apprehended from some different places as during the course of arguments it has also been submitted on their behalf that their call detail records were not obtained by the investigating to strengthen their case, which argument shows that they were having mobile phones at the relevant time.
119. It cannot be ignored that in this case a very heavy recovery of contraband substance, i.e about 23 KG of heroin, SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 89 has been effected from the possession of the accused no. 1 and 2 and keeping in view this huge quantity, the possibility of plantation thereof by the DRI Officers upon the above accused does not appear possible to this court and that too when both the above accused are residents of Punjab and were not even known to the DRI Officers, what to say of having any inimical terms with them. In the CRCL report Ex. PW11/B the purity percentage of diacetylmorphine in the 23 samples tested vide the said report has been opined to be ranging between 63.6% to 81.0% and hence even going by that purity percentage, the purity weight of the above contraband substance comes to be around 17 KG, which is still a huge commercial quantity of heroin as in the Table notified under the NDPS Act 5 Grams of heroin has been prescribed to be a ' small quantity' and 250 Grams to be a ' c ommercial quantity' .
Conscious Possession of the Contraband Substance
120. Section 35 of the NDPS Act deals with the culpable mental state of an accused in a prosecution under the NDPS Act and it prescribes that in any offence under this Act which requires such a culpable mental state of the accused, the court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Section 54 of SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 90 the NDPS Act also lays down that in trials under this Act, it may be presumed, until and unless the contrary is proved, that the accused has committed an offence under this Act in respect of any narcotic drug or psychotropic substance etc, for the possession of which he fails to account for satisfactorily.
121. A combined effect of the above two provisions is that if an accused is found to be in possession of any contraband substance, then the court shall presume that he has committed an offence under the above said Act pertaining to the said substance, unless and until the contrary is proved, if he fails to account satisfactorily for the said possession. Further, if a criminal mental state of the accused is required to be established for the said offence, then the court shall also presume that the accused had that criminal mental state and it shall only be a defence of the accused to prove that he had no such mental state.
122. In the instant case, since the accused no. 1 and 2 have been held to have been found in physical possession of the above contraband substance, they are presumed to be having the criminal mental state to possess the above contraband substance and to have committed an offence regarding the same and the burden lies upon them to prove the absence of the above criminal mental state or to account for their possession of the above contraband substance.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 91 However, the above accused are found to have failed to discharge the above burden as nothing has been brought on record to establish that they were not aware regarding the presence of the above contraband substance in the above bag kept in their abovesaid car, in which they were sitting at the time of their apprehension in this case. Rather, the contents of their above statements U/S 67 of the NDPS Act and the other evidence led on record, when read in entirety, establish their possession of the above contraband substance to be a conscious possession of the said substance.
123. While dealing with the concept of 'conscious possession' the Hon' b le Supreme Court in the case of Madan Lal & Another Vs State of H.P. 2003 (7) SCC 465 has held as under:-
" 26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. "
124. Further, the Hon' b le the Apex Court in case of Dharampal Singh Vs State of Punjab 2010 (10) SCALE has also held as under :-
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 92 " From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act given statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to account for satisfactorily the possession of opium. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence. "
125. The judgments to the contrary being relied upon by Ld defence counsels can be distinguished and are held to be not applicable to the facts and circumstances of this case.
126. The evidence led on record also establishes that both the accused persons were apprehended from the above Maruti Zen car and the accused no. 2 was on the driving seat of the above car and the accused no. 1 was sitting on the front seat of the car and the above shoulder bag containing the above packets of contraband substance was found kept between the front and back seat of the car in the leg space of the car. It was already reduced in writing in Ex. PW18/A that the two persons will be bringing narcotics drugs from Punjab and will be travelling in the above car and will check-in the above room of the above hotel and both the accused no. 1 and 2 are residents of Punjab and they have SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 93 also been apprehended together with the above contraband substance kept in the said car and have been held to be in conscious possession of the above contraband substance. Their statements U/S 67 of the NDPS Act also contain the details as to how they both had met each other and had brought the above contraband substance in Delhi for delivery. Hence, the evidence led on record not only establishes the conscious possession of the above contraband substance by the accused no. 1 and 2, but also a prior meeting of mind between them to possess, carry and to import the above contraband substance in Delhi from Punjab in furtherance of their criminal conspiracy.
Independent Material or Evidence for Corroboration of the Statement U/S 67 of the NDPS Act of Accused No. 3
127. As stated above, the above contraband substance was not recovered from the possession or at the instance of the accused no. 3 Harpreet Singh Bahad and hence as far as this accused is concerned, there are only the confessional statements made by this accused as well as the other two co- accused for proving the charge for the offence of abetement or criminal conspiracy punishable U/S 29 of the NDPS Act, which has been framed against this accused. However, as also discussed above, these statements of the accused and of the above two co-accused only are not sufficient to bring home the guilt of the accused no. 3 for the abovesaid offence and SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 94 the same are required to be corroborated by some material or independent evidence.
128. As per the prosecution story the accused no. 3 had handed over the above bag containing the above packets of the contraband substance to accused no. 1 Ravinder Singh Mann, who was his friend, and to accused no. 2 Roshan Lal who was the official driver posted with him, at his residence in the BSF Headquarters, Gurdaspur, Punjab. However, this vital part of the prosecution story could not be corroborated by any independent or material evidence as during the course of investigation, though some letters were written by the officers of DRI seeking the details of the movement of the accused no. 3 and of the abovesaid vehicle in the BSF area around the date of incident. It has come on record during the statements U/S 67 of the NDPS Act of all the three accused that the above contraband substance was handed over to the accused no. 1 and 2 at around 10.30/11 PM on 17.08.2004. However, in response to the letters sent by the DRI Officers, it was reported vide letter Ex. PW7/D of an officer of the DRI at Ludhiana, on the basis of information gathered from the BSF authorities, that the above Maruti Zen car no. DL-9CJ-5397 is a private vehicle and as such no record is available in their Headquarters with regard to its movement. One letter Ex. PW2/D2 of PW14 Sh M.P.S.Sandhu, the Second Officer in Command (Ops) of BSF Gurdaspur was also enclosed with this letter Ex. PW7/D in SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 95 which it was mentioned that the above vehicle was not seen there after 08.08.2004 and it was also mentioned in the above letter Ex. PW2/D2 that the residence and office of the accused no. 3 is outside the main BSF campus of Gurdaspur.
129. It is also on record that another letter Ex. PW7/E was sent by PW7 Sh R.K.Aggarwal of DRI for knowing the movement of the above vehicle prior to 08.08.2004 in time, in the main BSF campus or else where and same was replied vide another letter Ex. PW2/D1 of PW14 in which it was written that the above vehicle was brought there by accused no. 3 approximately 40-50 days prior to 08.08.2004 and the same was almost kept standing in his office garage and occasionally used by him for his personal use. However, during the examination of the prosecution witnesses or from the documents placed on record, it is not made clear as to on what basis it was mentioned or reported in the above letter Ex. PW2/D1 by PW14 of the BSF that the above vehicle was brought at Gurdaspur approximately 40-50 days prior to 08.08.2004. No oral or documentary evidence has been brought on record by the prosecution to show that the above vehicle was actually seen by anybody outside the residence of accused no. 3 at Gudaspur in the evening of 17.08.2004 when the above contraband substance was loaded in the said vehicle or even prior to that though as per the statement U/S 67 of the NDPS Act of the accused no. 2, the abovesaid vehicle was parked outside the residence of accused no. 3 SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 96 for the last about one month prior to that date. The evidence of the prosecution is even found to be contradictory on the aspect as to whether the resident of accused no. 3 was situated inside or outside the BSF main building as though according to the above document Ex. PW2/D2 the same was outside the main BSF campus, but some witnesses from the BSF Gurdaspur have stated on record that the same was inside the BSF campus. In any case no register or record being maintained at the reception or gate of the BSF main building has been produced on record to show the presence of the above vehicle at the residence of the accused no. 3 at around the relevant time when the above contraband substance was loaded in the said vehicle or the vehicle was handed over to accused no. 1 and 2.
130. The next incriminating circumstance relied upon by the prosecution against the accused no.3 is that one leave sanction order Ex. PW1/D11 was found in possession of accused no. 2 at the time of his apprehension in this case and his above leave was allegedly sanctioned by the accused no. 3. This fact in itself could not have been incriminating against the accused no.3 and even against the accused no. 2 and this court is constrained to observe that even the above leave sanction order Ex. PW1/D11 could not be proved by the prosecution on record to be under the signatures of the accused no. 3 as this fact was neither verified by the IO/PW1 or any other officer of DRI during the investigation SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 97 nor any specimen signatures of the accused no. 3 were taken for comparison with the signatures of the sanctioning officer appearing on this document and hence, there is no independent evidence on record to prove the alleged statements made by the accused no. 2 and 3 to the effect that the same was signed by the accused no. 3 or that the above leave of accused no. 2 was sanctioned by the accused no. 3 in furtherance of any such criminal conspiracy to deliver the above contraband substance by the accused no. 1 and 2 in Delhi.
131. The most incriminating part of the prosecution evidence against the accused no. 3 as one of the conspirators for the possession and transportation etc. of the above contraband substance by the accused no. 1 and 2 was that the above Maruti Zen car no. DL 9CJ 5397 was provided by him to the other two co-accused. As per the evidence collected during the investigation and also brought on record, PW4 Sh Ravi Kumar Bhatia is the registered owner of the above said vehicle. During the investigation the statement of this witness U/S 67 of the NDPS Act Ex. PW4/B was also tendered before PW5 Sh D.P.Saxena, in response to the summons Ex PW4/A issued to the witness by PW5. The above statement was tendered by the witness in his own handwriting and in the said statement he had supported the prosecution case that he had left his above said vehicle at the residence of the accused no. 3 Harpreet Singh Bahad, while SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 98 returning back from Dalhousie as the vehicle had developed some technical problems and the same was to be sent back to him by the accused no. 3 after getting it repaired.
132. However, when Sh Ravi Kumar Bhatia was examined in this court as PW4, he has not supported the above prosecution story and though, he has stood to his depositions that the above vehicle had developed some technical problems during his return back from Dalhousie, but he has stated in the court that it was given to one mechanic named Harpreet Singh and he has not identified the accused no. 3 as the person or mechanic to whom the above vehicle was given or left for repairs. He was also cross examined at length on behalf of DRI, after he was got declared hostile, but even during his such examination he has stood to his above claim and has refused to identify the accused no. 3 to be the same person to whom the above vehicle was handed over by him. He has also stated further that his previous statement Ex. PW4/B was written on the dictation of the officers of the DRI and he had simply signed some documents and photographs at the instance of the DRI officers, including one photograph Ex. PW4/C which was shown to the witness by Ld proxy counsel appearing for Ld SPP for DRI in the court. Hence, in view of the above specific depositions made by this witness in this court and his refusal to identify the accused no. 3 to be the person with whom he had left his above vehicle, it can be held that SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 99 the prosecution has failed to connect the above vehicle with the accused no.3 or to prove that the same was provided to the other two accused by him.
133. No call detail record of any mobile phone of the accused no.3 or of any land line number of his office or residence has also been collected during the investigation and this fact was specifically admitted by the IO/PW1 during his examination in this court and hence, there is also no documentary evidence on record to show any conversation between the accused no.3 and either of the accused no.1 and 2 at around the time when the above contraband substance was allegedly handed over by him to the other two co-accused or even after that. The record of movement of the accused no. 3 furnished during the investigation by the BSF authorities at Gurdaspur, Punjab, which is Ex. PW2/D2 on record and is also admitted to be correct by the accused during his statement U/S 313 Cr.P.C., is also not found to be incriminating against the accused no. 3 in any manner. Nothing incriminating could also be recovered in the searches of his house and office and though some documents, which are Ex. PW9/A1 and PW9/A2, pertaining the service of one other Maruti Zen car no. DL 4CA 0598 belonging to PW19A Sh Manish Chopra (re-numbered as such), were recovered in the house search of accused no. 3, but neither these documents nor the depositions of PW19A are found to be incriminating against this accused.
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 100
134. Again, though it has also come on record in the statements of accused no. 1 and 3 that they had met each other in connection with the repair of deep freezer of the Cremica ice-cream factory of the accused no. 3, but even this fact could not be verified during the investigation and it was reported vide letter Ex. PW2/N of DRI, Ludhiana that no such factory existed at the given address, as disclosed in the above statements. Further, as per the statement U/S 67 of the NDPS Act made by the accused no. 3, the above contraband substance was delivered to accused no. 3 by one Sultan, who had met him at some religious function at Peer Baba in July in Kathua, J & K during his posting with the BSF at that place, but even the above facts could not be confirmed during the investigation as the above Sultan could not be made to join the investigation and even no record of any such posting of the accused no. 3 at the above place or of any such function was collected during the investigation.
135. Hence, in view of the above, it is held that there is no independent material or evidence on record to corroborate the statement Ex. PW2/E U/S 67 of the NDPS Act of the accused no. 3 Harpreet Singh Bahad to prove on record that he was part of any such conspiracy in furtherance of which the above contraband substance was transported or brought into Delhi in the above vehicle found in possession of accused no. 1 and 2 or he had abetted the commission of SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 101 any offences under the NDPS Act by the other two co-accused. Therefore, it is held that the prosecution has not been able to prove its charge for the offence punishable U/S 29 of the NDPS Act against the accused no. 3, which only was framed against him.
136. In view of the above discussion, the accused no. 3 Harpreet Singh Bahad is being acquitted in this case and the accused no. 1 Ravinder Singh Mann and accused no. 2 Roshan Lal are being held guilty and convicted for the offences punishable U/S 21(c) and Section 29 read with Section 21(c) of the NDPS Act. Let they both be now heard on the quantum of sentence.
Announced in the open
court on 08.10.2012 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors
102
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST SAKET COURT COMPLEX, NEW DELHI Sh R.Roy Intelligence Officer Directorate of Revenue Intelligence Headquarters, New Delhi.
V E R S U S
1. Ravinder Singh Mann S/o Sardar Harbhajan Singh R/o W.H. 53, Adda Kapurthala Jalandhar, Punjab.
2. Roshan Lal S/o Late Sh Kapoor Singh R/o Village Rahara Tehsil Assandh, District Karnal, Haryana.
SC No. : 08/05 U/S : 21/23/29 NDPS Act Computer ID No. 02403R0080552005 ORDER ON SENTENCE
Present: Sh Vikas Gautam proxy counsel for SPP for DRI.
Convict No. 1 in JC with Sh Faheem Shah proxy counsel for Sh Tanvir Ahmed Mir Advocate.
Convict No. 2 in JC with Sh Yogesh Saxena Advocate.
After having convicted both the accused for the offences punishable U/S 21(c) and Section 29 read with Section 21(c) of the NDPS Act vide my judgment dated SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 103 08.10.2012 arguments have been heard today as advanced by Sh Vikas Gautam, proxy counsel for Sh Satish Aggarwal, Ld SPP for DRI, Sh Faheem Shah, proxy counsel for Sh Tanvir Ahmed Mir, Ld counsel for convict Ravinder Singh Mann and Sh Yogesh Saxena, Ld counsel for convict Roshan Lal on the point of sentence to be awarded to the convicts. The submissions made by the convicts themselves have also been heard.
2. It has been submitted on behalf of the prosecution that the maximum term of imprisonment be imposed upon the convicts and they does not deserve any leniency from this court as they had been found guilty of possessing a commercial quantity of heroin and also being part of a criminal conspiracy to possess the same. The offences punishable U/S 21(c) and Section 29 read with Section 21(c) of the NDPS Act, which have been proved against the convicts, carry a minimum term of rigorous imprisonment for a period of 10 years extending up to 20 years each and also a fine of not less than Rs 1 Lac and extending up to Rs 2 Lacs each.
3. On the other hand, it is submitted on behalf of convict Ravinder Singh Mann that he is aged only about 40 years and he is having the liability to maintain his old parents, wife, one minor daughter aged around 11 years and one minor son aged around 8 years. It is also stated that SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 104 he is in custody in this case since the day of his arrest, i.e. 18.08.2004, and there is also no other previous involvement of the convict in any similar case. Hence, request has been made for imposing the minimum sentence upon the convict.
4. On behalf of the convict Roshan Lal also, it has been submitted that he is aged about 53 years and is having the liability to maintain his wife and one son aged about 22 years, who is still unmarried and is not earning anything, and his other son and two daughters are already married and living separately. It has also been submitted that he is also in custody since the above date, except for a small duration of about 25 days when he was released on interim bail on different grounds. It is also submitted that he is not involved in any other criminal case of any nature and hence leniency has also been requested for him.
5. I have thoughtfully considered the above submissions being advanced on the point of sentence. As per the prosecution story both the above convicts were only acting as carriers of the contraband substance for some petty monetary considerations and they are not alleged to be the kingpin of any drug trafficking racket. No previous involvement of any of the two convicts is also brought on record till date. Hence, keeping in view the age, family background and all other attending circumstances, both the SC No.08/05 DRI Vs Ravinder Singh Mann & Ors 105 convicts are being awarded the minimum sentence of rigorous imprisonment for a period of 10 years each and a fine of Rs 1 Lac each for the abovesaid offences. In case of non payment of fine they shall further undergo simple imprisonment for a period of six months each. Both the sentences shall run concurrently. The period of custody already undergone by both the convicts is allowed to be set off in terms of the provisions of Section 428 Cr.P.C. Let them to undergo the above sentence as per law.
6. A copy of the judgment and the order on sentence be supplied to both the convicts free of cost.
7. The case property, i.e. the seized contraband substance as well as the Maruti Zen car no. DL 9CJ 5397, is also confiscated and be disposed of as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment and order on sentence. File be consigned to the record room.
Announced in the open
court on 17.10.2012 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No.08/05 DRI Vs Ravinder Singh Mann & Ors