Delhi District Court
Sc No. 21A/06 Dri vs Mankhanching Tombing on 7 April, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURTS COMPLEX, NEW DELHI
Sh M.C.Maheshwari,
Intelligence Officer,
Directorate of Revenue Intelligence,
Headquarters,
New Delhi.
V E R S U S
Mankhanching Tombing
D/o Sh Tombing Nengzakham,
Governor' s Road, Paona Bazaar,
Opposite to Social Welfare Board,
Imphal, Manipur.
SC No. : 21A/06
U/S : 21/23/29 NDPS Act.
COMPUTER ID NO. : 02403R0115882006
ORDER ON SENTENCE
Present: Sh Vikas Gautam, Proxy Counsel for SPP for DRI.
Convict in JC with Counsel Sh R.D.Tyagi.
After having convicted the accused for the
offence punishable U/S 21 (c) of the NDPS Act vide my
judgment of the even date arguments have also been heard
today as advanced by Sh Vikas Gautam, Ld Proxy Counsel
for Ld SPP for DRI and Sh R.D.Tyagi, Ld counsel for the
convict on the point of sentence to be awarded to the
SC No. 21A/06 DRI Vs Mankhanching Tombing
2
convict. The submissions made by the convict herself
have also been heard.
2. It has been submitted on behalf of the DRI that
the maximum term of imprisonment be imposed upon the
convict and she does not deserve any leniency from this
court as she has been found guilty of possessing a
commercial quantity of Heroin.
3. On the other hand, it is submitted on behalf of
the convict that she is only aged about 37 years and is
still unmarried. It is stated that no other previous
involvement of the convict in any similar case is on
record and hence, request has been made for awarding the
minimum sentence to the convict.
4. I have thoughtfully considered the above
submissions being advanced on the point of sentence. The
offence punishable U/S 21 (c) of the NDPS Act, which has
been proved against the convict, carries a minimum term
of rigorous imprisonment for a period of 10 years
extending up to 20 years and also a fine of not less
than Rs 1 Lac and extending up to Rs 2 Lacs. Admittedly,
as per the story of the DRI, the convict was only acting
as a carrier of the contraband substance for some
monetary considerations and she herself is not alleged to
be the kingpin of any drug syndicate. Hence, keeping in
SC No. 21A/06 DRI Vs Mankhanching Tombing
3
view the totality of the facts and circumstances, the
convict is being awarded the minimum sentence of rigorous
imprisonment for a period of 10 years and a fine of Rs 1
Lac for the abovesaid offence. In case of non payment of
fine she shall further undergo simple imprisonment for a
period of six months. The period of custody already
undergone by the convict is allowed to be set off in
terms of the provisions of Section 428 Cr.P.C. Let the
convict to undergo the above sentence as per law.
5. A copy of the judgment and the order on sentence
be supplied to the convict free of cost.
6. The case property be also confiscated and
disposed of as per law, after the expiry of the period
of limitation for filing of the appeal and subject to
the outcome of any appeal to be filed against this
judgment and order on sentence. File be consigned to the
record room.
Announced in the open
court on 07.04.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 21A/06 DRI Vs Mankhanching Tombing
4
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURTS COMPLEX, NEW DELHI
Sh M.C.Maheshwari,
Intelligence Officer,
Directorate of Revenue Intelligence,
Headquarters,
New Delhi.
V E R S U S
Mankhanching Tombing
D/o Sh Tombing Nengzakham,
Governor' s Road, Paona Bazaar,
Opposite to Social Welfare Board,
Imphal, Manipur.
SC No. : 21A/06
U/S : 21/23/29 NDPS Act.
COMPUTER ID NO. : 02403R0115882006
Date of institution : 07.03.2006
Date of reserving judgment : 26.03.2012
Date of pronouncement of judgment : 07.04.2012
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence (hereinafter referred to as DRI) through Sh M.C.Maheshwari, Intelligence Officer against the accused Mankhanching Tombing for commission of the offences SC No. 21A/06 DRI Vs Mankhanching Tombing 5 punishable U/S 21, 23 and 29 of the NDPS Act, 1985.
2. In brief, the case of the DRI is that on 27.09.2005 at about 03:00 PM a specific information was received by PW1 Sh Madan Singh, Intelligence Officer (IO), DRI Headquarters, New Delhi that a lady passenger named Mankhanching Tombing bound for Chennai by Jet Airways Flight No. 9W-0832 having scheduled departure time at 04:55 PM on that day would be carrying narcotic drugs concealed in her baggage. The above information was reduced into writing by him as Ex PW1/A and the same was put up by him before his Deputy Director Sh. Vinod Kumar/PW11 and PW11 had discussed the same with his Joint Director and had directed the complainant Sh M.C. Maheshwari, to rush to the spot alongwith a team of officers for identifying the above passenger and to take appropriate action.
3. It is alleged in the complaint that the complainant/IO Sh M.C.Maheshwari, alongwith some other officers of DRI including a lady officer, had reached the Domestic Airport, New Delhi in time and after reaching there they had come to know that the departure of the above flight was delayed due to the late arrival of the incoming flight. The officers of the DRI had subsequently identified the above said lady passenger and had also apprehended her, after she had completed her security SC No. 21A/06 DRI Vs Mankhanching Tombing 6 check, obtained the boarding pass and had proceeded to the security lounge of the Airport. The members of the DRI team had introduced themselves to the above lady passenger by showing their identity cards and she was asked whether she was carrying any narcotic drugs in her baggage, to which she had replied in negative. On being asked by the complainant/IO, the above lady passenger had produced her flight ticket No. 589 4275 793 972 2 and the boarding pass of the above flight, having the stamp of the security check.
4. It is also alleged in the complaint that thereafter the above lady passenger, i.e. the accused herein, was escorted by the DRI officers to the room of the Assistant Commandant, CISF, Terminal 1B and at that time the accused was carrying one black colour shoulder purse bearing brand name " F abia Paris" embossed on the same and also a black colour trolley bag bearing brand name " Delsey " . Two witnesses were called there and they were told about the above information and were also introduced with the accused and the accused had also disclosed her identity in the presence of the witnesses. She was again asked whether she was carrying any narcotic drugs in her baggage and she had again replied in negative. Then the complainant/IO had apprised the accused about the above information and had also told her that the search of her person and baggage was to be SC No. 21A/06 DRI Vs Mankhanching Tombing 7 conducted in view of the above information and she was also given an option in writing by a notice U/S 50 of the NDPS Act Ex. PW3/A to the effect that the search of her person and the baggage could be conducted before a Gazetted Officer or a Magistrate, but the accused vide her written reply given in her own handwriting on the said notice itself had declined for the same and had offered her search as well as the search of her baggage to any officer of the DRI.
5. It is further alleged that thereafter the search of the ' p erson ' of the accused was conducted by the lady officer of the DRI, but nothing incriminating was recovered in such search and also in the search of the above shoulder purse bearing brand name " F abia Paris" of the accused. The above black colour trolley bag bearing brand name " D elsey " of the accused was found secured with one black colour small pad lock and the same was opened with the key provided by the accused herself and after removal of some personal effects of the accused therefrom, it was observed that there was a plastic bottom lining secured with screws on a metallic frame inside the cloth zipper lining towards the base/bottom of the above trolley bag. The above screws were unscrewed and the plastic bottom lining was lifted and it was found that one brown colour polythene bag was concealed therein, which was taken out and a pungent smell was SC No. 21A/06 DRI Vs Mankhanching Tombing 8 emanating therefrom. On opening, the above plastic bag was further found to contain some off white colour substance, which on testing with the help of a Narcotic Drug Detection Kit had answered positive for Heroin. The gross weight of the above polythene bag was found to be 1.459 Kgs and the net weight of the Heroin to be 1.431 Kgs on an electronic scale and the above polythene bag was marked as X for the purposes of identification.
6. It is further alleged that the above recovered Heroin, polythene bag, black colour trolley bag with pad lock and key and all the personal effects of the accused found therein etc. were then seized for violation of the provisions of the NDPS Act. The above flight ticket, boarding pass, the baggage tag found affixed on the above trolley bag and some more flight tickets found in possession of the accused for Chennai-Singapore-Penang- Singapore-Chennai for her further journey were also seized by the complainant/IO.
7. The complainant/IO had then drawn two representative samples of 5 grams each from the above Heroin and the same were kept in separate zip locked polythene bags and marked X-1A to X-1B and the same were further individually packed in brown colour paper envelopes and were sealed with the seal of DRI 10, over and above a paper slip bearing the dated signatures of SC No. 21A/06 DRI Vs Mankhanching Tombing 9 the witnesses, accused and the complainant and the same were also given corresponding markings as X-1A to X-1B. The remaining Heroin was put back in its original packing and the above polythene bag was wrapped with a white cloth, which was stitched and sealed with the above seal and a similar paper slip bearing the signatures of the above persons were also pasted thereon. The above sealed parcels of the remaining Heroin, the personal effects of the accused used for concealing the above contraband substance, the above trolley bag, pad lock etc. were all kept in a steel trunk and the same was also wrapped with white cloth, stitched and sealed in the similar manner over a similar signed paper slip. A panchnama Ex. PW3/B with regard to the above proceedings was also drawn at the spot, which was signed by all the above, and a facsimile of above seal of DRI was affixed thereon. Before conclusion of the panchnama proceedings, the complainant/IO had also resumed the passenger manifest of the above flight from Delhi to Chennai and a computer generated check-in history of the accused from the office of the Jet Airways.
8. It is also the case of the DRI that in response to the summons Ex. PW3/E issued to the accused U/S 67 of the NDPS Act, she had tendered her voluntarily statements Ex. PW3/F dated 27.09.2005 and Ex. PW3/G dated 28.09.2005 before the complainant/IO in their office wherein, SC No. 21A/06 DRI Vs Mankhanching Tombing 10 besides disclosing her personal details, she had admitted her apprehension with the above contraband substance from the above place and also the entire search, seizure and sealing proceedings etc. In her statement Ex. PW3/G the accused had also disclosed, inter-alia, that she was carrying the above trolley bag containing the above packet of Heroin for one Malaysian lady Maliska, whom she had met in July 2005 in Delhi, and the same was to be collected from her by the above Maliska at the Airport of Penang and the accused was promised by Maliska to be paid 1,000 US $ on return. She had also disclosed therein that the above trolley bag containing the above contraband substance was got delivered by the above Maliska to her through a Nigerian male at about 12:00 Noon on 27.09.2005 outside the Mc Donald restaurant in the District Centre, Janakpuri and thereafter she had brought the same to her home at Munirka and had put in some clothings inside the above bag, as advised by the above Nigerian male, before going to the Airport for taking the above flight. It was further disclosed by her in the said statement that on being asked by the above Maliska, she had already delivered her passport to Maliska on 19.09.2005 and the same, alongwith the above said tickets, were also delivered to her by the above Nigerian male on 27.09.2005, at the time of delivery of the above trolley bag containing the above Heroin.
SC No. 21A/06 DRI Vs Mankhanching Tombing 11
9. Since, the accused appeared to have committed offences punishable U/S 21, 23 and 29 of the NDPS Act, she was arrested in this case vide the arrest-cum- jamatalshi memo Ex. PW3/J. She had also surrendered her passport No. E-7634812 before the complainant/IO for necessary enquiries. The intimation of the arrest of the accused was conveyed to her father through a telegram Ex. PW2/B on 28.09.2005 and on the same day a report U/S 57 of the NDPS Act Ex. PW2/A was also submitted by the complainant/IO to his immediate superior officer about the arrest of the accused and the above seizure of the contraband substance. The sealed sample parcel marked X-1A was got deposited with the CRCL on 28.09.2005 itself vide forwarding letter Ex. PW2/D and against receipt Ex. PW4/A and parcel of the remaining case property was also deposited in the New Customs House, New Delhi on the same day vide deposit memo Ex. PW3/L.
10. Though, the residential premises of the accused at Munirka were also subsequently raided, but nothing incriminating was recovered in the said search. During investigation the above two panch witnesses Sh Ashwini Kumar Gaind and Sh Vimal Kumar had also tendered their statements U/S 67 of the NDPS Act Ex. PW3/S and PW3/S1 respectively and the statement Ex. PW3/T1 of one official of a travels firm named Sh Trilok Chand under the same provision was also recorded regarding the booking of the SC No. 21A/06 DRI Vs Mankhanching Tombing 12 above tickets, which were found to have been booked by one Nigerian male. In the test report Ex. PW4/B received subsequently, the above sample was confirmed to be having diacetylmorphine and ultimately a complaint was filed against the accused for the commission of the above said offences, after completing the other formalities of the investigation.
11. This complaint against her was filed in the court on 07.03.2006 for commission of the offences punishable under section 21, 23 and 29 of the NDPS Act and cognizance thereof was taken on the same date. A prima facie case for the offence punishable U/S 21 (c) and Section 23 read with Section 28 of the NDPS Act was found to be made out against the accused and charges for the above said offences were also framed against her on 05.04.2006.
12. Total 11 witnesses have been examined by the DRI in its evidence on record. The names of the above witnesses and the purpose of their examination is being stated herein below:-
13. PW1 Sh Madan Kumar, Intelligence Officer is the person who had received the above information and had reduced it into writing as Ex. PW1/A. He has stated the same was put up by him before his senior officer Sh Vinod SC No. 21A/06 DRI Vs Mankhanching Tombing 13 Kumar, Deputy Director.
14. PW2 Sh B.K.Banerjee, Appraiser had issued the above seal of DRI used in this case to the IO on 27.09.2005 and the above fact was also entered by him vide entry at Serial No. 13 Ex. PW2/E of the seal movement register. He has stated that the seal was returned back to him on the same day. Subsequently, he had also received the report U/S 57 of the NDPS Act Ex. PW2/A from the complaint/IO and sent telegram Ex. PW2/C. He had also sent the samples parcel of this case to CRCL vide his forwarding letter Ex.PW2/D and subsequently one report Ex. PW3/Q regarding the execution of some search warrant Ex. PW3/N was also submitted to him by the IO/complainant.
15. PW3 Sh M.C.Maheshwari, Intelligence Officer is the main investigating officer of this case and he has broadly deposed on the above lines of the prosecution story regarding the apprehension of the accused from the above Airport and the recovery of above contraband substance from her baggage. He has also identified the accused as well as the entire case property and has also deposed about the various aspects connected with the investigation of this case.
16. PW4 Sh R.P.Meena, Assistant Chemical Examiner, SC No. 21A/06 DRI Vs Mankhanching Tombing 14 CRCL had received the above sealed sample parcel from the IO/PW3 on 28.09.2005, alongwith the tests memos and the forwarding letter, and had issued the receipt Ex. PW4/A in this regard. Subsequently, he was involved in the analysis of the above samples which had started on 07.11.2005 along with the Chemical Examiner Sh M.D. Mondal and the Chemical Assistant Sh Sanjeev Singh and has proved on record the test report dated 10.11.2005 thereof as Ex. PW4/B and also Section-II of the test memo Ex. PW3/M in this regard. He has also identified remnant of the above samples.
17. PW5 Sh R.S.Kashyap was Inspector of the Valuable Godown, New Customs House on 28.09.2005 when the sealed parcel of the case property of this case was deposited by the IO/PW3 with him. This witness had made his endorsement with regard to the deposit of the same on the deposit memo Ex. PW3/C and had also made the entry Ex. PW5/A in the relevant register of the valuable godown.
18. PW6 Ms Kanwaljit Bakshi, Intelligent Officer of DRI was only joined to remain present at the time of recording of the statements Ex. PW3/F and Ex. PW3/G U/S 67 of the NDPS Act of the accused. She has deposed regarding the above fact and also about the personal search of the accused conducted by her, subsequent to the arrest of the accused in this case vide memo Ex. PW3/J. SC No. 21A/06 DRI Vs Mankhanching Tombing 15
19. PW7 Sh Trilok Chand is a sub agent of a IATA agent firm named M/S Impact Travels and he had booked the above travel tickets Ex. PW3/C1 and Ex. PW3/C2 of the accused. On being summoned by the DRI officers vide summons Ex. PW3/T, this witness had also tendered his statement Ex. PW3/T1 in this regard.
20. PW8 Sh Ashwini Kumar Gaind, Manager Jet Airways and PW9 Sh Vimal Kumar, Senior Security Officer of Jet Airways are the two panch witnesses joined by the IO/PW3 during the above proceedings and they had deposed about their participation in the said proceedings and have also identified their signatures on various documents, connected with and prepared during the above search proceedings and also their statements U/S 67 of the NDPS Act tendered in this regard. They both have identified the accused as well as the case property.
21. PW10 Ms Baneeta Khurana is the female member of the above raiding team of DRI and she has also broadly deposed on the above lines of the prosecution story regarding the apprehension of the accused and the above search and seizure proceedings etc. She has also identified the accused as well as case property.
22. PW11 Sh Vinod Kumar, Deputy Director, DRI is the person to whom the above information Ex. PW1/A was put up SC No. 21A/06 DRI Vs Mankhanching Tombing 16 by PW1 Sh Madan Singh and this witness had directed the complainant/IO to take further action in the matter vide his endorsement made on the above information itself. His name was not originally included in the list of the witnesses filed with the complaint but he was subsequently allowed to be summoned vide order dated 10.01.2012 of this court on an application U/S 311 Cr.P.C. moved by the DRI.
23. After the conclusion of the prosecution evidence, the entire incriminating evidence brought on record was put to the accused in her statement recorded U/S 313 Cr.P.C. and the same was denied by her to be incorrect. Though she has not disputed her apprehension by the members of the DRI team from the Airport premises, but she has specifically denied the recovery of any contraband substance or the above Heroin from her baggage. It is claimed by her that her baggage was cleared by the security check staff through the X-ray machines installed in the security check area, but the same was recalled back by the DRI Officers and this fact has been concealed by them in this case and the above contraband has been planted by the DRI Officers. She has claimed the prosecution story to be false and fabricated. However, she has not led on record any evidence in her defence, though initially she has desired to lead defence evidence.
SC No. 21A/06 DRI Vs Mankhanching Tombing 17
24. I have heard the arguments advanced on behalf of the DRI as well as the accused and have also perused the evidence led by the prosecution on record as well as the other record of the case, including the written arguments filed on record by Sh Satish Aggarwal and Ms Mala Sharma, Ld SPPs for DRI.
25. The first challenge made by Ld defence counsel Sh R.D.Tyagi to the prosecution case is on the ground that the mandatory provisions of Section 50 of the NDPS Act have not been complied with in this case and though a notice U/S 50 of the NDPS Act Ex. PW3/A was allegedly given to the accused by the IO/PW3 Sh M.C.Maheshwari, but even the above notice is defective and is not in compliance with the abovesaid provisions because nowhere it is incorporated in the above notice that it was a legal right of the accused to get her search as well as the search of her baggage conducted before a Gazetted Officer or a Magistrate. He has pointed out that in the abovesaid notice it is only recorded that it was an ' option ' given to the accused under the abovesaid provision for getting the search conducted in the presence of the aforesaid officers and even the depositions made by the IO/PW3 and the other recovery witnesses do not suggest that the accused was told that to exercise the above ' o ption ' was infact her legal right. Reliance in this regard has also been placed upon SC No. 21A/06 DRI Vs Mankhanching Tombing 18 the judgment of the Constitutional Bench of the Hon' b le Supreme Court in case of Vijay Sinh Chandubha Jadeja Vs State of Gujarat AIR 2011 SC 77 and also in subsequent cases titled Narcotics Control Bureau Vs Sukhdev Raj Singh Sodhi AIR 2011 SC 1939 and State of Delhi Vs Ram Avtar AIR 2011 SC 2699.
26. There is no dispute with regard to the prepositions of law as laid down by the Hon' b le Supreme Court in the cases of Vijay Sinh Chandubha Jadeja and Sukhdev Raj Singh Sodhi (SUPRA) that the compliance of the provisions of Section 50 of the NDPS Act is mandatory and the theory of ' s ubstantial compliance' , as developed in some earlier judgments of the Hon' b le Supreme Court will not be acceptable. However, the same is good only when the search of the ' p erson ' of an accused is involved and the provisions of Section 50 of the NDPS Act have no application when the recovery of the contraband substance is to be effected not from the ' p erson ' of an accused but from a briefcase, suitcase, bag or thaila etc. being carried by the accused. Reference in this regard can be made to the judgments of the Hon ' b le Supreme Court in cases of State of H.P. Vs Pawan Kumar 2005 (4) SCC 350, Madan Lal Vs State of H.P. 2003 Crl.L.J 3868 and Ajmer Singh Vs State of Haryana 2010 (2) SCR 785 (Crl. Appeal No. 436/09). The prepositions of law laid down in these cases have not been over ruled SC No. 21A/06 DRI Vs Mankhanching Tombing 19 or modified in the judgments of the Hon ' b le Supreme Court being relied upon by the Ld defence counsel. Coming to the facts of the present case, since the secret information received was with regard to the presence of some narcotic drugs in the baggage of the accused and further since the recovery of the Heroin was also effected from her baggage only and not from her ' person ' , hence, the provisions of section 50 of the NDPS Act are held to be not applicable in the present case.
27. It has also been argued by Ld defence counsel that there was no Gazetted Officer in the raiding team of the DRI and it has further been pointed out that the reply of the accused given on the notice U/S 50 of the NDPS Act Ex. PW3/A nowhere shows that the accused had refused to exercise the above option regarding the conduction of her search before a Gazetted Officer or a Magistrate. It is held that no Gazetted Officer is or was required to be a part of the raiding team under any provision of the NDPS Act or the rules framed thereunder. The reply of the accused given at portion X1 to X1 of the above notice Ex. PW3/A clearly shows that after understanding the contents of the above notice, the accused had offered her personal search as well as the search of her baggage to any officer of the DRI and that necessarily means that the accused had refused for the SC No. 21A/06 DRI Vs Mankhanching Tombing 20 above search to be conducted in the presence of a Gazetted Officer or a Magistrate, as was offered to her vide the above notice Ex. PW3/A. Moreover, since the above notice U/S 50 of the NDPS Act was not legally required to be served upon the accused in the instant case, the above submissions being made by Ld defence counsel are not of any help to his case.
28. The next contention of the Ld defence counsel is that the evidence lead by the prosecution on record regarding the recovery of the above contraband substance from the baggage of the accused, i.e. the above black colour trolley bag of make ' D elsey ' , is highly doubtful as the evidence nowhere suggests as to from where and how the key of the padlock affixed on the above trolley bag was supplied or handed over by the accused to the IO/PW3 when the personal search of the accused had already been conducted, i.e. prior to the search of the above trolley bag, and the abovesaid key was not recovered in such search. It has been pointed out that neither the IO/PW3 nor any other witness of recovery, i.e. PW8 Sh Ashwini Kumar Gaind, PW9 Sh Vimal Kumar or PW10 Ms Baneeta Khurana, has clarified as to whether the above key of the padlock was found in any pocket of the wearing clothes of the accused or the black colour shoulder purse of brand name ' F abia Paris' , which was being carried by the accused with her, besides the above trolley bag SC No. 21A/06 DRI Vs Mankhanching Tombing 21 containing the contraband substance. It is also stated that even in her alleged statement Ex. PW3/G U/S 67 of the NDPS Act the accused had nowhere stated that the above key of the lock affixed on the above trolley bag was provided by her.
29. On appreciation of the evidence led on record in this regard, it is found that IO/PW3 in his examination has stated that the baggage of the accused consisted of the above shoulder bag and the trolley bag, which was locked with a small padlock, and he has also stated further that first of all the personal search of the accused was conducted by Ms Baneeta Khurana, but nothing incriminating was recovered. Then he has deposed about the search of the above shoulder purse and the trolley bag while stating that the above trolley bag was opened by the key provided by the accused. PW8 has also stated that the search of the ' p erson ' of the accused as well as of her shoulder purse was first conducted by a lady officer of the DRI before searching the trolley bag of the accused, but he has not stated specifically that the key of the said padlock of the above trolley bag was provided by the accused. PW9 Sh Vimal Kumar straightaway talks about the search of the above trolley bag of the accused when he had joined the proceedings in the CISF room and he is silent in his chief examination with regard to the personal search of the accused or as to SC No. 21A/06 DRI Vs Mankhanching Tombing 22 from where the key of the above trolley bag had come, but in his cross examination he has stated that the personal search of the accused was not conducted in his presence. However, PW10 Ms Baneeta Khurana has deposed specifically regarding the conduction of the search of the ' p erson ' of the accused first and then the search of her shoulder purse and then the above trolley bag, but she has not made any depositions about the providing of the above key of the said bag by the accused.
30. However, it is the admitted case of the prosecution, as set out in the complaint itself and further as brought on record during the statements of the IO/PW3 and some other witness of recovery, that the search of the person of the accused was conducted first and nothing incriminating was recovered in such search, as well as the search of the above shoulder purse of the accused conducted next, and the search of the above trolley bag leading to the recovery of the above contraband substance was conducted thereafter. However, no inference can be drawn or possible from the above fact that the above contraband substance was not recovered from the above trolley bag or the possession of the accused simply because it has come on record during evidence, and also as submitted in the complaint, that nothing ' i ncriminating' was recovered in the personal search of the accused.
SC No. 21A/06 DRI Vs Mankhanching Tombing 23
31. The key of the above padlock cannot be said to be incriminating in itself nor the above depositions of the IO/PW3 or the other recovery witnesses suggest that no other article was found to be on the ' p erson ' or in the search of the above shoulder bag. A bare perusal of the arrest-cum-jamatalshi memo Ex. PW3/J of the accused shows that a number of articles, like 6 currency notes of US $ in denomination of 50, 4 currency notes of US $ in denomination of 100, various notes in Indian currency of different denominations, ATM and PAN Card, six yellow colour metal ear-rings, wrist watch and a pendant etc. of the accused, were recovered in the personal search of the accused and hence the depositions of the witnesses that nothing incriminating was recovered in the personal search or the search of the above shoulder purse of the accused can only have one meaning in the given context that no contraband substance or other illegal article was recovered in such search and the same cannot be given any different meaning, as desired and interpreted by the Ld defence counsel.
32. Hence, the failure of the prosecution witnesses to state specifically as to from where the key of the above padlock affixed on the above trolley bag of the accused was provided by the accused or recovered by the IO/PW3 is not material, when there are specific depositions made by the witnesses on record that the SC No. 21A/06 DRI Vs Mankhanching Tombing 24 above key was provided by the accused herself and the above padlock was opened with the help of that key. This fact is even specifically recorded in the panchnama Ex. PW3/B, which is signed by the IO/PW3, all the above recovery witnesses and also by the accused herself, which stands duly proved on record. Though the report U/S 57 of the NDPS Act Ex. PW2/A is silent with regard to the above fact, as pointed out by Ld defence counsel, but the above report was only required to be sent for the arrest and seizure of the contraband substance and the same is never supposed to contain each and every minute detail of the facts and circumstances.
33. Another argument of Ld defence counsel is that it was not specifically mentioned in the secret information reduced into writing as Ex. PW1/A that the contraband substance/narcotic drugs will be concealed or hidden in a false cavity of the baggage of the accused, but this argument of Ld defence counsel is also without any merits as the same was not necessary as the secret informations are meant only for providing the leads to the investigating agencies, which may further lead them to effect some arrests and seizures and the same are not required to contain all the details of the facts and circumstances. Even otherwise, it depends upon the knowledge of the informer in a particular case as to what extent he was having the information in a particular SC No. 21A/06 DRI Vs Mankhanching Tombing 25 case.
34. It is also argued that the depositions of the IO/PW3, PW8, PW9 and PW10 are contradictory even on the aspect as to whether the above contraband substance was recovered from any such false cavity of the above trolley bag, but it is observed that no such contradictions are visible from the testimonies of the above witnesses. Though PW10 is silent with regard to the above false cavity of the above trolley bag, but the IO/PW3 has made specific and detailed depositions in this regard. Even PW9 talks about the recovery of the Heroin from the bottom side of the trolley bag on opening of the cloth zipper and PW8 also speaks about the recovery from under the base of the trolley bag. All of them have also identified the above trolley bag with the above cavity and cloth lining etc. as Ex. P5.
35. One other argument of Ld defence counsel is that the complainant and the investigating officer in this case is the same, i.e. PW3 Sh M.C.Maheshwari, and it was not required from the IO/PW3 to have subsequently filed the complaint in this court when the entire investigation of this case was conducted by him. I fail to understand as to how the accused has been prejudiced from the above. The secret information in this case was received by PW1 Sh Madan Singh and he had reduced the same into writing SC No. 21A/06 DRI Vs Mankhanching Tombing 26 as Ex. PW1/A. The IO/PW3 Sh M.C.Maheshwari had come into picture only subsequently when the above information Ex. PW1/A was directed to him for the necessary action by their senior officer Sh Vinod Kumar/PW11. Since, PW3/IO was deputed for the conduction of the investigation of this case, the further filing of the complaint by him in the court cannot in any way be said to be an act to the prejudice of the accused as this subsequent act of the IO/PW3 is formal in nature.
36. The next contention of Ld defence counsel is that the evidence led on record is contradictory regarding the stage of the joining of the above two public witnesses and the above contradiction makes the entire story of the prosecution to be doubtful. It has been pointed out that though the depositions of the IO/PW3 Sh M.C.Maheshwari, PW8 Sh Ashwini Kumar and PW10 Ms Baneeta Khurana suggest that the above two public witnesses were joined prior to the service of the notice U/S 50 of the NDPS Act upon the accused and the commencement of the search proceedings, but the statement of PW9 clearly shows that he was made to join the proceedings only at the stage of search of the above trolley bag containing the above contraband substance as this witness is silent with regard to the proceedings conducted prior to the search of the above trolley bag during his examination in chief and has also stated specifically in his cross-examination that the SC No. 21A/06 DRI Vs Mankhanching Tombing 27 personal search of the accused was not conducted in his presence. It has also been argued that admittedly the two public witnesses namely PW8 Sh Ashwini Kumar Gaind and PW9 Sh Vimal Kumar were joined only after the accused had already been identified and intercepted and not prior to her interception.
37. In this regard also, there are clear and specific depositions made by all the recovery witnesses, i.e. the official witnesses of the DRI as well as by the above two public witnesses, that the above public witnesses have already been joined by the IO/PW3 prior to the conduction of the above search of the above trolley bag of the accused and the recovery of the above Heroin therefrom. The above contradiction being pointed out in the evidence led on record cannot be said to be material enough and can be ignored as the same can be attributed to the loss of memory on the part of PW9 Sh Vimal Kumar, who is otherwise an independent witness of recovery of the above contraband substance being an official of the Jet Airways, or the time gap between the date of his joining of the proceedings and the date of his making depositions in this court. It can not be ignored that even the notice U/S 50 Of the NDPS Act Ex. PW3/A given to the accused bears the signatures of PW9 also and no explanation has been sought from this witness during his cross-examination by Ld defence counsel as to when or at SC No. 21A/06 DRI Vs Mankhanching Tombing 28 what time he had put his signatures on the said document. As far as the argument of the Ld defence counsel regarding the late joining of the public witnesses, i.e. joining them not before and after the interception of the accused, is concerned, the same also cannot be given much weight as the priority for the members of the raiding team, after their arrival at the above airport, was first to trace out and locate the accused as per the secret information Ex. PW1/A and not to go in search of the public witnesses. It cannot be ignored that the time of reduction of the above information in writing as Ex. PW1/A was 3.00 PM and directions for action thereon were given at about 3.20 PM, whereas the scheduled departure of the flight of the accused was to be at 4.55 PM. Hence, there was hardly any sufficient time available to the DRI team to make sincere efforts to join the public witnesses prior to the interception of the accused as they had reached at the Airport only at around 4.00 PM.
38. One other major contention of Ld defence counsel is that the alleged statements U/S 67 of the NDPS Act Ex. PW3/F and PW3/G of the accused are not her voluntary statements and the same have been extracted from her by the exercise of physical as well as mental torture. It has also been argued that the accused vide her retraction application/statement filed in the court had subsequently retracted the above statements and hence the same cannot SC No. 21A/06 DRI Vs Mankhanching Tombing 29 be considered to be incriminating against the accused and cannot be believed and acted upon by this court.
39. The legal position with regard to a statement made by an accused U/S 67 of the NDPS Act is now that such a statement is admissible in evidence and can be acted upon if the same is found to be made voluntarily. Earlier the view of the higher courts had been that if such a statement of an accused is found to be voluntary then the same can be made the sole basis of conviction of the accused, but if the same is not voluntary then the same is only a waste paper. To find out if such a statement of the accused is voluntary or not, the court has to see and examine the circumstances under which the same was made. In the case of M. Prabhu Dayal Vs The Assistant Director, DRI 2003 (Suppl. 2) SCC 459 it was held by the Hon' b le Supreme Court that even if such a statement is subsequently retracted by the accused, the same should be believed and acted upon by the court, if found to be made voluntarily, unless the retraction statement of the accused is proved on record as per the Evidence Act.
40. However, the view which has subsequently developed is that the court must look for some independent corroboration and conviction should not be based solely on a statement U/S 67 of the NDPS Act of the SC No. 21A/06 DRI Vs Mankhanching Tombing 30 accused and that too when the same has already been retracted. Reference in this regard can be made to the judgments in the cases of Noor Agah Vs State of Punjab & Anr. 2008 (3) JCC (Narcotics) 135, Union of India Vs Bal Mukund & Ors. 2009 (2) Crimes 171 (SC) and NCB Vs Aziz Ahmed 2010 (1) JCC (Narcotics) 6 etc.
41. In the instant case the accused was apprehended with the above contraband substance on 27.09.2005 in the evening time from the Domestic Airport of Delhi and her statement U/S 67 of the NDPS Act Ex. PW3/F was recorded in this case on the same day, i.e. after the conclusion of the panchnama proceedings. However, her above statement only contains her personal details and the circumstances under which she had come to Delhi from her native State and since she was feeling tired, on her request the recording of her further statement was deferred till next date. In continuation of her above statement Ex. PW3/F, one more statement of her Ex. PW3/G dated 28.09.2005 was also recorded next morning and it is in this statement that she had admitted her apprehension by the DRI Officers from the above Airport and the recovery of the above contraband substance from her baggage and had also stated specifically as to the circumstances under which she was carrying the above baggage containing the above contraband substance for the above Malaysian lady named Maliska for some monetary SC No. 21A/06 DRI Vs Mankhanching Tombing 31 considerations. Her above two statements Ex. PW3/F and PW3/G, which were made prior to her formal arrest in this case, are to be read together and in continuity.
42. One hand written retraction application/ statement of the accused (undated) was also received in this court through the Jail Superintendent concerned on 07.10.2005 and after the same was seen by the court, it was directed to be placed on record. However, there is nothing on record to show that any copy thereof was supplied to Ld SPP for DRI for filing any reply to the same and the reply of the DRI to the above retraction application was only filed on 06.07.2011, when during an inspection of the case file the above retraction of the accused had come to their knowledge. In any case, the above reply of the DRI is also to be considered by this court.
43. In the above retraction application, the accused had alleged that her earlier statements dated 27.09.2005 and 28.09.2005 taken by the DRI Officers were not her voluntary statements and no recovery was effected from her. She had also claimed that the above statements were extracted from her by pressurizing and coercing her and hence the same should not be read against her.
44. However, apart from the vague submissions made in SC No. 21A/06 DRI Vs Mankhanching Tombing 32 the above retraction application regarding the exercise of any pressure or coercion etc. upon her to extract the said statements, there is nothing on record to suggest or infer the use of any force, pressure or other compulsive means by the DRI officers to force the accused to make such confessional statements. Rather, her personal details disclosed in the above statement Ex. PW3/F by the accused in her own handwriting are suggestive of the voluntariness of the same and the above retraction of the accused is found to be belated as the same had not been made at the first instance or the initial opportunity.
45. After her formal arrest in this case she was also got medically examined from the RML Hospital vide MLC Ex. PW3/V and vide application of the IO/PW3 Ex. PW3/U addressed to the CMO of the above hospital. Though the doctor concerned has not been examined on record by the prosecution, but the exhibition of the above MLC was never objected to on behalf of the accused and as per the above MLC no fresh external injuries were observed in the said MLC of the accused. Hence, there is no evidence or material on record to substantiate the claim of the accused regarding the exercise of any physical or mental torture upon her by the DRI Officers for forcing her to make the above statements. Rather, the voluntariness of the above statements stands also proved on record from the depositions made by PW6 Ms Kanwaljit Bakshi, who had SC No. 21A/06 DRI Vs Mankhanching Tombing 33 remained present throughout during the recording of the above statements of the accused before the IO/PW3.
46. However, as a prudence the court has still to look for some independent corroboration of the facts disclosed and the confessions made in the said statement, in view of the legal position discussed above. But, in this case, apart from the above statement Ex. PW3/G of the accused, there is also sufficient evidence to prove the recovery of the above contraband substance from the above trolley bag or the possession of the accused and the knowledge on per part regarding the presence of the above substance in her baggage.
47. On appreciation of the evidence led on record by the DRI it is observed that there are clear and specific depositions made by the IO/PW3 Sh M.C.Maheshwari regarding the apprehension of the accused from the above Airport and the recovery of the above contraband substance from the above baggage of the accused. In this regard his depositions are duly corroborated on all the material particulars by the depositions of PW10 Ms Baneeta Khurana, who being a female official of the DRI was joined in the raid, and also by the depositions made by the two independent witnesses joined at the time of the search and seizure proceedings. It is one of the few cases where not only two independent witnesses were SC No. 21A/06 DRI Vs Mankhanching Tombing 34 joined in the search and seizure proceedings by the DRI officers, but both the above witnesses had also appeared and deposed in the court regarding their participation in the said proceedings. They both being the officials of Jet Airways can be said to be independent and not having any personal interest in the false prosecution of the accused. There is also nothing on record to suggest that they were interested or stock witnesses and rather they are the natural witnesses who could have been joined in the above search and seizure proceedings from the Airport premises itself.
48. Though, the above two panch witnesses, i.e. PW8 and PW9, have both not deposed regarding each and every minute detail of the proceedings, but it is well settled that they were not expected to do so and being witnesses from outside the investigating agency and not familiar with the technicalities of investigation, it is enough if they had supported the case of the prosecution and the depositions of the other officials witnesses on material particulars, i.e. the search and seizure proceedings pertaining to the above contraband substance from the above baggage of the accused in their presence and the proceedings conducted at the spot.
49. The original tickets, the boarding pass as well as the baggage tag etc. found to be in possession of the SC No. 21A/06 DRI Vs Mankhanching Tombing 35 accused were also seized by the IO/PW3 in this case and the same were made as annexures to the panchnama Ex. Ex. PW3/B, which was drawn at the spot and which also stands duly proved on record. The above tickets and other documents have also been duly identified by the witnesses during the trial, alongwith the remaining case property and the samples etc. During the course of recording of her statement U/S 313 Cr.P.C., the accused has also not disputed her apprehension from the above Airport with some luggage, though she has denied the recovery of any contraband substance from her or her baggage. However, nowhere during the course of the trial or during the recording of the above statement it has been suggested or claimed on behalf of the accused that the above black colour trolley bag from which the above contraband substance was recovered did not belong to the accused or she has no knowledge of the presence of the above contraband substance in the above baggage.
50. It has also specifically come on record during the evidence that the above trolley bag of the accused was also having a baggage clearance tag and the same has also been duly identified by the witnesses on record and the same is found to contain the signatures of all the above recovery witnesses as well as of the accused herself. There is also no challenge to the evidence led by the prosecution in this regard by the defence. Hence, SC No. 21A/06 DRI Vs Mankhanching Tombing 36 the above trolley bag in which the above contraband substance was found can be safely linked to the accused. Even otherwise, it has been specifically deposed by PW3/IO, PW8 as well as PW10 that the same was with the accused, when she was apprehended by the DRI Officers at the above Airport.
51. Ld defence counsel has also pointed out that it has been deposed by PW10 Ms Baneeta Khurana that the above trolley bag of the accused was not with the accused at the relevant time as the same had already been cleared through the X-ray machine and was in the custody of the above Airways staff and the same was got retrieved by the DRI team from the above Airlines. He has further argued that the above depositions of PW10 are in clear contrast and contradiction to the depositions made by the other witnesses of recovery, i.e. the IO/PW3 Sh. M.C.Maheshwari as well as PW8 Sh Ashwini Kumar Gaind, who have stated on record that the above trolley bag was in the possession of or being carried by the accused herself, and the above contradiction in the prosecution story is a material contradiction and this is sufficient ground for discarding the entire case of the prosecution and to acquit the accused.
52. However, in the considered opinion of this court, the above contradiction in the statements of the above SC No. 21A/06 DRI Vs Mankhanching Tombing 37 prosecution witnesses is though found on a material aspect, but cannot be given so much weight so as to discard the entire case of the prosecution. It cannot be ignored that PW10 was called upon to depose in this court after a gap of about 5-6 years from the date of seizure of this case and being a human, she could never have been expected to recall each and every facts correctly and in the same manner in which the same had happened. Such contradictions in the testimonies of eye-witnesses are bound to occur with the lapse of time or the loss of human memory etc. Apart from the above, there is no other evidence or material on record to suggest that the above trolley bag of the accused was retrieved from the possession of the staff of the above Airlines and hence the above depositions made by PW10 Ms Baneeta Khurana can be safely ignored.
53. In any case, all the witnesses corroborate each other on the points that the above trolley bag belonged to the accused and the above contraband substance was recovered from the same. All the relevant documents, i.e. the information Ex. PW1/A, panchnama Ex. PW3/B, the summons U/S 67 of the NDPS Act Ex.PW3/E given to the accused and her statements Ex. PW3/F and Ex. PW3/G as well as the statements of the above public witnesses Ex. PW3/S and Ex. PW3/S1 recorded under the above provisions also stand proved on record as per law. All the case SC No. 21A/06 DRI Vs Mankhanching Tombing 38 property and sample etc. have also been identified by the recovery witnesses during the trial, besides identifying the accused.
54. Though, the provisions of Section 57 of the NDPS Act are not mandatory and are only directory in nature, but the report under the above provisions sent by the IO/PW3 to his senior officer has also been duly proved on record as Ex. PW2/A. No violation of any other mandatory provision of the NDPS Act or the rules framed thereunder has been alleged or argued by Ld defence counsel. It is also not the case of the accused that she was previously known to any member of the raiding team, which could have furnished a ground for her false implication in this case. A bald plea of her false implication and the planting of the above contraband substance upon her by the DRI Officers is not tenable in the absence of any corroborative material to substantiate the same.
55. No tampering with the parcel of the case property or of the sample drawn therefrom at any stage has been alleged or argued on behalf of the accused. Even otherwise the depositions made by PW2 Sh B.K.Banerjee, the IO/PW3 Sh M.C.Maheshwari, PW4 Sh R.P.Meena and PW5 Sh R.S.Kashyap as well as the documents proved by these witnesses rule out any such possibility of tampering or inference thereof at any stage.
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56. In the CRCL report Ex. PW4/B the sample drawn out of the above Heroin and sent for testing was found positive for the presence of diacetylmorphine (heroin) and percentage thereof was opined to be 71.5%. Going by this average percentage, the purity weight of the Heroin found to be in possession of the accused comes to above 1 Kg. The seizure of the above Heroin in this case has been effected on 27.09.2005 and hence the Notification No. S.O.2941(E) dated 18.11.2009 of the Ministry of Finance, vide which it was provided that the entire mixture of the contraband substance shall be taken into consideration in such a case, is not applicable in the present case. However, even the above quantity of 1 Kg of Heroin by purity weight is still a commercial quantity of the above contraband substance as under the NDPS Act only a small quantity of 250 grams of Heroin has been prescribed to be a commercial quantity.
57. Therefore, in view of the above discussion, it can be said that the prosecution has been able to prove on record the conscious possession of the above Heroin by the accused, which offence is punishable U/S 21 (c) of the NDPS Act. Even otherwise, the onus of proving that she had no knowledge about the presence of the above Heroin in her baggage was upon the accused herself, in view of the presumptions contained U/Ss 35 and 54 of the SC No. 21A/06 DRI Vs Mankhanching Tombing 40 above Act, which she had failed to discharge.
58. Though, charge was also framed against the accused for offence punishable U/S 23 read with Section 28 of the NDPS Act, which pertain to the attempt to export the above contraband substance out of India, but the said charge cannot be said to have been proved against the accused simply because she had been found to be in possession of the above contraband substance or the further tickets of her journey for going out of India, as she was apprehended well before taking a flight from Delhi and the flight was also bound for Chennai only.
59. In view of the above discussion, it is held that the prosecution has been successful in establishing the guilt of the accused for the offence punishable U/S 21(c) of the NDPS Act, beyond reasonable doubts. She is, therefore, held guilty for the above said offence and is convicted thereunder.
Let she be now heard on the point of sentence.
Announced in the open
court on 07.04.2012 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi.
SC No. 21A/06 DRI Vs Mankhanching Tombing