Delhi District Court
Sc No. 23A/10 Dri vs . Gurtej Singh Batth on 14 August, 2014
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IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
Directorate of Revenue Intelligence
Delhi Zonal Unit
Through Sh Rajender Verma, Intelligence Officer
V E R S U S
Gurtej Singh Batth
S/o Sh Gurnam Singh
R/o Village Kacher Bhan
P.O. Mehar Singh Wala
Tehsil Zira
District Firozpur, Punjab
Presently lodged in Central Jail
Tihar, New Delhi.
SC No.: 23A/10
U/S : 21/23 NDPS Act
Computer ID No:02406R0319052010
Date of institution : 07.10.2010
Date of reserving judgment : 13.08.2014
Date of pronouncement : 14.08.2014
Decision : Convicted
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, Delhi Zonal Unit, New Delhi (hereinafter referred to as DRI) through Sh Rajender Verma, Intelligence Officer (hereinafter referred to as the IO/PW1), against the above accused for commission of the offences punishable U/S 21 and 23 of the NDPS Act, SC No. 23A/10 DRI Vs. Gurtej Singh Batth 2 1985.
2. The facts on the case, in brief, are that on 12.04.2010 the IO/PW1 had received a specific intelligence from a reliable source that one person by the name of Gurtej Singh Batth would be travelling from Delhi to Toronto (Canada) by Air India Flight Number AI-187, scheduled to depart at 6:30 AM on 13.04.2010 from IGI Airport, New Delhi, and the said person would be carrying contraband/narcotic drugs with him concealed in his baggage. The IO/PW1 had immediately reduced the said information into writing and had put it up before his immediate official superior/PW6 Sh Man Singh Yadav, who discussed the matter with his senior officer and directed the IO/PW1 to form a team and to act upon the said information.
3. It is alleged that a team of DRI officers led by the IO/PW1 had reached at the departure hall of the IGI Airport on 13.04.2010 at around 4:00 AM and joined two independent panch witnesses there, after they both were apprised about the above information. A surveillance was maintained near the check-in counters of Air India and at around 5:30 AM, the DRI officers spotted the accused near the check-in counter number 6 of check-in row-G and the accused was intercepted after he had handed over his air ticket and luggage for checking to the officials of Air India at the above check-in counter and had collected his boarding card and baggage claim tags SC No. 23A/10 DRI Vs. Gurtej Singh Batth 3 etc. The DRI officers had withdrew the two checked-in baggages/suitcases of the accused from the conveyor belt and he was also found to be carrying one hand baggage at that time.
4. After the introductory session, the accused was apprised about the above secret intelligence and was asked as to if he was carrying any contraband/narcotic drugs with him or in his baggage, to which he replied in negative. Thereafter, the accused, alongwith his baggage and the two panch witnesses, was taken to the traffic office of Air India situated nearby for his personal search and the search of his baggage. After reaching there, the IO/PW1 had served upon the accused a written notice U/S 50 of the NDPS Act Ex. PW1/A informing him that he had an option to be searched before a Magistrate or a Gazetted Officer and the accused, vide his reply given on the said notice itself, is alleged to have refused for his search to be conducted before the aforesaid officers and had offered the same to be conducted by any officer. The search of his person was conducted first by the DRI officers and the same led to the recovery of his original passport, driving license, air ticket and baggage claim tags etc of his above flight and also the itinerary/invoice of his earlier flights between New Delhi and Toronto.
5. The two checked-in baggages of the accused consisted of one grey colour and one black colour zipper SC No. 23A/10 DRI Vs. Gurtej Singh Batth 4 suitcase of EMBLEM make, which were having affixed thereon baggage tags numbering AI-829918 and AI-829919 respectively and the counter parts of these baggage tags were recovered from the possession of the accused, alongwith the other documents and articles. Both the above suitcases were fond locked and the same were then opened one by one, with the help of the keys recovered from the possession of the accused, and the same were found to be containing some old and used cloths and some personal effects of the accused. On removing the said cloths from the above suitcases, the DRI officers observed that the back walls of these suitcases were abnormally thick and the weights of the empty suitcases were heavier than the normal expected weights of such empty zipper suitcases of the size of measuring about 28 X 20 inches. The cloth pockets running from the back walls of these zipper suitcases, which were found pasted with the help of adhesive, were removed and it was noticed that there was a wooden frame running alongwith the back walls in the zipper suitcases and there was also a plastic sheet pasted on the front of the wooden frames, which was covered by the above cloth pocket, and the inner side of the wooden frames, as well as the above plastic sheets, were found to have been covered with KORES carbon paper pasted thereon.
6. The DRI officers had then opened the above wooden sheets, which were found affixed with the help of nails, and it was found having a cavity containing some SC No. 23A/10 DRI Vs. Gurtej Singh Batth 5 transparent polythene packets and one transparent polythene packet having markings of EMBLEM and wrapped with black adhesive tapes was recovered from the suitcase of grey colour and three packets wrapped with yellow colour adhesive tapes were recovered from the suitcase of black colour. The packet recovered from the grey colour suitcase was marked as A and the three packets recovered from the black suitcase were marked as B, C and D respectively, for the purposes of identification. The above packets were found to be having different types of packings and on opening, all these packets were found to contain some off white colour powdery substance, which on testing with the help of a UN Drug Testing Kit had given positive results for heroin. The gross weight of the above four packets came to be 3.036 KG, 1.025 KG, 1.044 KG and 1.058 KG and the net weight of the heroin contained in the said packets came to be 2.960 KG, 0.956 KG, 1.004 KG and 1.033 KG respectively and thus heroin weighing 5.923 KG in net and valuing around six crore rupees was recovered from the above four packets. The hand bag carried by the accused, which was a zipper strolley bag of red colour and make 'TRACKER', was also searched and one Sony handycam and some personal effects of the accused were recovered therefrom. All the above packets of heroin, alongwith its packing material etc, the above two checked-in bags and the cloths and articles found therein and all the articles and documents recovered in the personal search of the accused, were seized for violation of the provisions of the NDPS Act.
SC No. 23A/10 DRI Vs. Gurtej Singh Batth
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7. Thereafter, the IO/PW1 had drawn two
representative samples of 5 gms each out of the above four recovered packets of heroin and these samples were put in separate transparent polythene pouches and correspondingly marked as A-1, A-2, B-1, B-2, C-1, C-2 and D-1, D-2 and these polythene pouches were stapled and put in brown colour paper envelopes and individually sealed with the DRI seal over a paper slip bearing the dated signatures of the IO/PW1, the accused and the two panch witnesses. The remaining heroin was put in white and pink colour polythene bags and these polythenes were marked as A, B, C and D and put in yellow colour envelopes, which were stapled and sealed in the same manner and given the same markings A, B, C and D. The packing material was also kept in a white and pink colour polythene bag and also sealed separately in the same manner in separate yellow colour paper envelope. The above sealed packets of heroin and packing material were further kept in a metal box, which was also wrapped with a white cloth stitched and sealed in the same manner and the old and used cloths, Sony handycam and the personal effects of the accused were repacked in the same bags from which these were recovered and separate cloth parcels thereof were also prepared in the same manner. The IO/PW1 had also drawn a detailed panchnama Ex. PW1/D regarding the above proceedings and further prepared the test memos in triplicate, including the test memos Ex. PW1/E and PW1/F, and a facsimile of the above DRI seal used in the seizure proceedings was affixed on the SC No. 23A/10 DRI Vs. Gurtej Singh Batth 7 panchnama as well as on the test memos. The contents of the panchnama were explained to all the above signatories of paper slips and they had also signed it, after understanding the same, and the panchnama proceedings stood completed at 12:00 noon on 13.04.2010.
8. The IO/PW1 had also served upon the accused summons U/S 67 of the NDPS Act Ex. PW1/G and in response to the above summons, the accused had also tendered his statement Ex. PW1/H in the DRI Office subsequently, in his own handwriting and before the IO/PW1 on the same day. Besides admitting his apprehension from the above Airport and the seizure of the above heroin from his above checked-in baggage and further besides disclosing his various personal and family details, the accused is alleged to have disclosed in his above statement, inter- alia, that though he was already married with one Smt Kuldeep Kaur in the year 2001, but he had married again with another lady named Smt Kiran Preet Kaur, who was a Canadian Citizen, in the year 2004 for going to Canada and had also reached Canada in November 2005 and after staying with his second wife for about one year at her residence, he separated from her and started leaving separately at some other address. He also disclosed therein that he had obtained a heavy driving license there in the year 2008 and started working as a truck driver for some company at a monthly salary of 5000 Canadian Dollars and he used to visit India every year for a month or two to meet his first wife and other SC No. 23A/10 DRI Vs. Gurtej Singh Batth 8 family members. He further disclosed in his above statement that this time he reached India on 19.02.2010 and remained in his native village in Punjab and he was also having return ticket to Canada for 30.03.2010. He has also disclosed that in Canada, he became friendly with another truck driver named Bhupender Singh since the last about three years and Bhupender Singh had told him to bring two suitcases of narcotic drugs to Canada from some person at Jalandhar, who was already provided his (accused's) Indian mobile number 9465309717 and was to contact him with his nick name of Bhajji and Bhupender Singh also told him that he will be paid 15,000/- Canadian Dollars for carrying the above suitcases of narcotic drugs from India to Canada.
9. It was further disclosed by the accused in his above statement that after receiving calls from the above Bhajji on his above mobile number on 25.02.2010 and 29.03.2010, he had cancelled his return to Canada, which was scheduled for 30.03.2010, as Bhajji told him that he will make a fresh programme for his return to Canada. On 03.04.2010, he again received a call from Bhajji and Bhajji asked him to meet on 04.04.2010 at Wonderland in Jalandhar as Bhajji wanted to discuss about his return tickets and though he had gone to the above place on 04.04.2010 and remained there from 12:00 noon till 5:00 PM, but Bhajji did not turn up and even Bhajji's mobile was found switched off. On 05.04.2010, Bhajji again called him on his mobile and asked him to arrange for his SC No. 23A/10 DRI Vs. Gurtej Singh Batth 9 return ticket for Canada fastly and then he (accused) had contacted his travel agent named Man Travel & Tours at Jagrawan, near Ludhiana, for arranging his return ticket for Canada and he was told by them that a seat in Air India Flight for Canada was available on 11.04.2010. When the accused had told the above fact to Bhajji, Bhajji asked him to get the above ticket, but on visiting the office of the Air India at Jalandhar on 06.04.2010, the accused was told that a confirm ticket for Canada in the above flight was not available on 11.04.2010, but the same was available for 13.04.2010 and after seeking telephonic instructions from Bhajji, the accused had got the above ticket.
10. The accused has further disclosed in his above statement Ex. PW1/H that on receiving telephonic instructions from Bhajji in the evening of 11.04.2010, he had reached outside the Wonderland at Jalandhar with his luggage in the evening of 12.04.2010 at around 4:20 PM and met Bhajji, who had reached there in an Indica car at around 4:45 PM, near the entry gate of Wonderland. At the instance of Bhajji, he (accused) had gone to sit in the above Indica car and at that time, he was carrying one carry bag and one suitcase and his suitcase was kept in the dickey of the car while he kept his carry bag in the car and at that time, one other person was also in the said car with Bhajji and two other suitcases were also lying on the back seat of the said car. Bhajji had then told the accused that narcotic drugs had been kept SC No. 23A/10 DRI Vs. Gurtej Singh Batth 10 concealed in the above two suitcases lying on the back seat and the same have been concealed in specially designated cavities made in the said suitcases and Bhajji further told him that the driver of the Indica car named Jeetu had been informed as to what was to be done on the way. They all had then started from the Wonderland in the said car, but after some distance, Bhajji got down of the car and asked the driver to take the accused to Delhi.
11. It was further disclosed by the accused in his above statement that after travelling for some distance, he came to know the name of the other person present in the said car to be Jittu and Jittu had also taken with them his one friend from a village on Delhi road, whose name he was told as Bobby. On their way to Delhi the said car was stopped at a Dhaba on the road side for taking dinner at around 12:00 midnight, i.e. the night of 12-13.04.2010, after crossing Karnal. While an order was placed for dinner at the above Dhaba, the suitcase of the accused was taken out of the dickey of the car and the cloths of the accused were taken out of that suitcase carried by him and the same were put in the two other suitcases which were brought in the said car by the above persons and they had also purchased two locks from the above Dhaba for locking these two suitcases and these suitcases were then placed on the back seat of the car, while the empty suitcase of the accused was put back in the dickey of the car. The accused was told by the above SC No. 23A/10 DRI Vs. Gurtej Singh Batth 11 driver Jittu that the above suitcases were to be handed over to Bhupender Singh in Toronto and then they had reached at the IGI Airport at around 4:45 AM and after relaxing in the vehicle for about 15 minutes, he (accused) got down of the vehicle with the above two suitcases containing the narcotic drugs concealed therein and had entered the Airport and was then intercepted by the DRI officers, as already stated above. However, the accused could not provide any concrete particulars of the above persons named in his above statement, which could have led to the identification or arrest of the said persons.
12. Since the accused appeared to have committed offences punishable under the NDPS Act, he was arrested in this case vide memo Ex. PW1/J on 13.04.2010 itself and after he was got medically examined from RML Hospital on application Ex. PW6/G and vide MLC Ex. PW1/K, he was kept in the lock-up of PS Daryaganj vide application Ex. PW6/F for that night. The intimation regarding his arrest was also given to his both the wives vide letters dated 13.04.2010 Ex. PW6/B and PW6/C respectively, which were dispatched vide postal receipts Ex. PW6/D and PW6/E respectively, but the letters sent to the second wife of accused at her address of Canada was received back undelivered. The residential premises of accused at his native place in Punjab were also got searched on 13.04.2010 through the officers of DRI, Amritsar, but nothing incriminating was recovered therefrom.
SC No. 23A/10 DRI Vs. Gurtej Singh Batth 12
13. On 13.04.2010 itself, the sealed parcels of the case property of this case were also got deposited in the Valuable Godown of the New Customs House through PW5 Sh Rohitash Pandey vide deposit memo/inventory Ex. PW2/A and one set of the sealed sample parcels was also got deposited with the CRCL, New Delhi on the same day, through PW3 Head Hawaldar K.P.Singh of DRI, alongwith the duplicate test memos and vide forwarding letter Ex. PW6/A and the authorization letter Ex. PW3/A issued by PW6, and the said sample parcels were received there vide acknowledgment Ex. PW3/B issued by PW7 Sh Raj Kumar of the CRCL. On 14.04.2010, the accused was again got medically examined from the above hospital vide MLC Ex. PW1/L and on application Ex. PW6/M and thereafter, he was produced in the court and remanded to judicial custody. A report U/S 57 of the NDPS Act Ex. PW6/J was also submitted to PW6 by the IO/PW1 regarding the arrest of the accused and seizure of the above heroin from him on that day. Vide the test report Ex. PW7/A of the CRCL, which is per-se admissible in evidence U/S 293 Cr.P.C., the four samples analyzed in the CRCL were found positive for the presence of diacetylmorphine (heroin) and the percentage thereof in the said samples was opined to be ranging between 65.8% to 84.8%. After completing some other formalities and on conclusion of the investigation, a complaint for commission of the offences punishable U/S 21 and 23 was ultimately filed in this court.
14. The complaint was filed against the accused in SC No. 23A/10 DRI Vs. Gurtej Singh Batth 13 this court on 07.10.2010 and cognizance of the above offences was taken on the same day. A prima facie case for commission of the offences punishable U/S 21(c) and 23 r/w Section 28 of the NDPS Act was also found to be made out against him vide order dated 05.03.2011 of this court and charges for the above said offences were also framed against him on the same day.
15. The prosecution in support of its case has examined on record total 10 witnesses and their names and the purpose of examination is being stated herein below:-
16. PW1 Sh Rajender Singh, an Intelligence Officer of DRI, is the person who had received the above secret intelligence, reduced it into writing as Ex. PW1/A and is also the complainant as well as the main investigating officer of this case as he was heading the above raiding team of DRI, which had apprehended the accused from the above Airport and recovered the above contraband substance. He has broadly deposed on the above lines of the prosecution story and has proved the various documents prepared by him in connection with the investigation of this case. He has also identified the accused as well as the case property.
17. PW2 Sh Lakhi Ram, is the then Inspector and In- charge of the Valuable Godown, New Customs House, with whom the sealed parcels of the case property of this case were deposited on 13.04.2010 by PW5 Sh Rohitash Pandey in SC No. 23A/10 DRI Vs. Gurtej Singh Batth 14 intact condition. He has also proved on record his endorsement made on the deposit/inventory memo Ex. PW2/A and also the copy of the Valuable Godown register Ex. PW2/B in this regard.
18. PW3 Sh K. P. Singh is the then Head Hawaldar of DRI who had deposited one set of four sealed sample parcels in the CRCL on 13.04.2010, alongwith the duplicate test memos, on the basis of the authority letter Ex. PW3/A and vide forwarding letter Ex. PW6/A given by his senior officer/PW6. He has stated that the said parcels were received in the CRCL vide acknowledgment receipt Ex. PW3/B.
19. PW4 Sh Pramod Kumar is the then Assistant Manager, Security of Air India and was posted at the check-in counters of the above Airlines at IGI Airport at the relevant time. He is one of the two independent panch witnesses joined at the time of apprehension of the accused and is a witness of the entire search and seizure proceedings. He has identified the accused as well as his signatures appearing on different documents signed in the said proceedings.
20. PW5 Sh Rohitash Pandey is also an Intelligence Officer of DRI who had deposited the above parcels of case property in the Valuable Godown on 13.04.2010 vide deposit memo Ex. PW2/A and on the basis of the authority letter Ex. PW5/A issued in his favour for the said SC No. 23A/10 DRI Vs. Gurtej Singh Batth 15 purpose.
21. PW6 Sh Man Singh Yadav is the then Deputy Director before whom the above secret intelligence Ex. PW1/A was put up by the IO/PW1 and he had further put up the same before his senior officer Sh D. A. Nistane and then directed the IO/PW1 to act upon the same. He has also claimed himself to be a part of the raiding team of DRI, which had apprehended the accused from the Airport and is also a witness of the entire search and seizure proceedings. The sealed parcels of the case property and samples etc were further handed over to him by the IO/PW1, after conclusion of the panchnama proceedings on 13.04.2010, and he got deposited the same with the Valuable Godown and CRCL respectively on the same day and had issued the above authority letters for deposit thereof and further countersigned the above deposit memo. He had also given the above arrest intimations of the accused to his wives, wrote letters for his medical examination and lodging in the lock-up of PS Daryaganj and was further submitted the report U/S 57 of the NDPS Act Ex. PW6/J by the IO/PW1. He has also identified the accused as well as the case property.
22. PW7 Dr Raj Kumar of CRCL had received the above sealed parcels of samples and test memos etc and issued the above acknowledgment Ex. PW3/B. He has stated that the samples were diarized by him and kept in the strong room on the same day. The samples were taken out on SC No. 23A/10 DRI Vs. Gurtej Singh Batth 16 26.04.2010 for analysis and the same were done under the guidance and supervision of his senior officer and concluded vide test report Ex. PW7/A and all the above four samples were found positive for diacetylmorphine. He had also given the short analysis report of the said samples in the test memo Ex. PW1/F.
23. PW8 Sh Sanjay Kumar, a Tax Assistant of DRI had issued the above seal of DRI used in the search and seizure proceedings to the IO/PW1 on 12.04.2010 at around 6:30 PM and the same was returned back to him by the IO/PW1 on 13.04.2010 at around 4:00 PM, on conclusion of the panchnama proceedings. He has proved on record the relevant entry of the seal movement register as Ex. PW4/A.
24. PW9 Sh D. A. Nistane is the then Deputy Director of DRI to whom the above secret intelligence Ex. PW/A was put up by PW6 and who directed the taking of necessary action thereof.
25. PW10 Sh Sonaram Chaudhary was working as a Customer Agent of Air India at the above terminal of IGI Airport at the relevant time and he is the other independent panch witness joined during the above search and seizure proceedings. However, he has not completely supported the case of the prosecution and was got declared hostile as neither he had identified the accused nor has claimed himself to be present at the time of the SC No. 23A/10 DRI Vs. Gurtej Singh Batth 17 actual search of the above checked-in baggage of the accused and recovery of the above packets of heroin therefrom.
26. After the conclusion of the evidence of the prosecution, all the incriminating evidence brought on record by the prosecution was put to the accused in his statement recorded U/S 313 Cr.P.C and the same was denied by him to be incorrect. He has claimed himself to be innocent and to have been falsely implicated in this case. Though, the accused has specifically admitted that he was intercepted from the counter of Air India at IGI Airport on the above date and time and further that he had already checked-in two baggages at that time and was also having one handbag, but it is his case that no heroin or other contraband substance was recovered from his two checked-in baggages and the two baggages/suitcases from which the same is being alleged to have been recovered do not belong to him. He has also claimed that no search or seizure proceedings of the above suitcases were conducted in his presence and he was only made to stand outside a room for about 20-25 minutes and thereafter, he was taken inside the room and shown some packets and was told that the same were recovered from his checked-in baggages. He has also denied the conduction of any proceedings regarding the above packets in his presence and further though he has admitted his signatures on various documents and also that the statement Ex. PW1/H SC No. 23A/10 DRI Vs. Gurtej Singh Batth 18 is in his handwriting, but it is his case that he was forced to sign on many documents and further made to write/copy one statement in English language and the above statement is not his voluntary statement. He has also claimed that he had come to India on 19.02.2010 from Canada and was going back on 13.04.2010 and his above tickets were were booked by him from the office of Man Travel & Tours at Toronto, Canada and on 13.04.2010, his wife Kuldeep Kaur and his one friend Raja had come to see him off and dropped him at the Airport and the entire case and story of the DRI is false. He has also chosen to lead evidence in his defence.
27. The accused has also examined his wife Smt Kuldeep Kaur as DW1 in his defence and she has claimed that the accused was dropped by her and one friend of the accused named Raja at the above Airport at around 4:00/4:30 AM on 13.04.2010 in a Tata Indica car being driven by the above Raja and after that, her husband entered the above Airport.
28. I have heard the arguments advanced by Ms Mala Sharma, Ld SPP for DRI and Sh Nitin Rai Sharma, Ld defence counsel representing the accused. I have also gone through the evidence led and the other record of the case, including the written submissions filed on behalf of both the parties.
29. The first legal ground on which Ld defence SC No. 23A/10 DRI Vs. Gurtej Singh Batth 19 counsel has challenged the prosecution case is that the alleged notice U/S 50 of the NDPS Act Ex. PW1/C was admittedly not served by the IO/PW1 upon the accused at the place of apprehension of the accused, i.e. the check-in counter of Air India, and rather the same was served after the accused was taken to a room/office of Air India situated at the Airport and hence there is violation of the mandatory provisions of Section 50 of the NDPS Act. No merit is found in this argument of Ld defence counsel as there is no mandatory requirement of law that the above notice should have been served at the above check-in counter itself from where the accused was apprehended and he does not stand prejudice in any manner if the said notice was served upon him in a room or office of the above Airlines situated at a small distance therefrom, i.e. 10-15 meters as stated by the IO/PW1 and 20-25 yards as stated by PW4, as it could never have been practicable for the DRI officers to prepare and serve the said notice at the same place, except at the cost of great disturbance to the other passengers waiting for check-in at the said place and also to the officials of the Air India on duty there. Moreover, since the recovery of above heroin in this case has been effected from the checked-in baggages of the accused and not from his 'person', even the above notice was not legally required to be given as the provisions of Section 50 of the NDPS Act are found to be not applicable in this case. Reference in this regard can be made to the judgments in cases State of H.P. Vs. SC No. 23A/10 DRI Vs. Gurtej Singh Batth 20 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): 2010 (1) JCC (Narcotics) 28 (SC) and Jarnail Singh Vs. State of Punjab, AIR 2011 SC 964.
30. The next legal contention of Ld defence counsel is that the entire seizure of contraband effected in this case and the proceedings conducted with regard to the same are illegal by reason of the fact that the IO/PW1 Sh Rajender Verma, who had received the above secret information in this case, is also the person who was authorized to conduct the above investigation and to effect the above seizure and even this complaint Ex. PW1/M against the accused has been filed in this court by him. It is his submission that since the complainant and the investigating officer of this case is the same, the entire proceedings against the accused stand vitiated and the accused is entitled to be acquitted on this ground only.
31. Even this argument of Ld defence counsel is found to be without any merits as nothing wrong is found in the authorization given in favour of the IO/PW1 by his senior officers, to effect the above seizure of contraband substance, simply by reason of the fact that he was also the person who had received the above secret information, and the accused cannot be said to have been prejudiced in any manner by the above fact. As far as SC No. 23A/10 DRI Vs. Gurtej Singh Batth 21 the subsequent filing of the complaint by the IO/PW1 in this court is concerned, the same is also found to be only an administrative act on his part and no illegality is found in the mere act of filing of the complaint by the IO/PW1, after he has already completed the entire investigation of the case. The judgment in case of Maddu Lakshmana Rao Vs. State of Andhra Pradesh 2000 (4) ALD 663 being relied upon by Ld defence counsel on this aspect can be distinguished as there is not found to be any similarity between the facts of the above case and the present one.
32. As already stated above, the IO/PW1 Sh Rajender Verma is the person who was heading the above raiding team of DRI officers which had seized the above contraband substance. He has made specific depositions on record regarding the receipt of the above information, the reduction thereof in writing as Ex. PW1/A, placing it before his senior officer/PW6 Sh Man Singh Yadav and the directions given to him in writing for conduction of the above raid, vide endorsement made on the said information itself. He has also stated that the said information was further placed by PW6 before Sh D. A. Nistane/PW9, though not in his presence, and the said directions were given on the above information by PW9. He has further deposed about the constitution of the above raiding team, in compliance of the said directions.
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33. It is also specifically stated by him that they had reached at the check-in counter of Air India at about 4:00 AM and joined two public witnesses and though initially he was able to collect the name of only PW10 Sh Sonaram Chaudhary, but subsequently, he was also able to recollect that the other public witness joined in this case was Sh Pramod Kumar/PW4. He has also stated that about the apprehension of the accused from the above check-in counter number 6, row-G, of the above Airlines at around 5:30 AM, in the presence of the above two public witnesses, when the accused had handed over his two checked-in baggages at the said counter and was already issued a boarding pass and two baggage claim tags. The accused had replied in negative regarding the presence of some narcotic drugs with him, during the enquiries made by this witness from him, and thereafter, this witness has also stated that the accused, alongwith his above two checked-in baggages, which were retrieved from the conveyor belt of the above Airlines and one hand baggage in his possession and also with the above two public witnesses, was taken to the traffic room of Air India situated near the check-in counters.
34. There are also specific depositions made by the IO/PW1 on record that after he had complied with the provisions of Section 50 of the NDPS Act, the search of the two checked-in baggages, i.e. one of grey colour and one of black colour and both of make EMBLEM, was conducted by him one by one and after the cloths and SC No. 23A/10 DRI Vs. Gurtej Singh Batth 23 other personal effects of the accused contained therein were taken out of the said suitcases, it was observed that the back walls of the above suitcases were abnormally thick and on further examination of the said suitcases, false cavities were found in both the suitcases and one packet was found concealed in the grey colour suitcase and three packets in the other black colour suitcase, which were having different types of packings, secured with adhesive tapes and were covered with black carbon papers of KORES brand. He has also deposed about the testing of the off white colour powdery substance found in these packets as heroin, with the help of a UN Drug Testing Kit, the process of drawing of samples and sealing etc of the parcels of samples and case property. It was also stated by him that the above two suitcases were found locked and were opened with the help of the keys recovered from the possession of the accused in his personal search and has further proved the detailed panchnama Ex. PW1/D drawn by him regarding the said proceedings and also the test memos Ex. PW1/E and PW1/F etc prepared by him in the said process. The above documents and articles recovered from the possession of the accused are Ex. PW1/D1 to PW1/D12 on record, which include the two locks removed from his two suitcases and the bunch of keys recovered from his possession.
35. During his cross examination, the IO/PW1 has clarified that the above information was given to him at SC No. 23A/10 DRI Vs. Gurtej Singh Batth 24 around 5:00/5:30 PM on 12.04.2010 and the same was put up before PW6 at around 5:50 PM and he has also stated that the above raiding team consisted of Sh Man Singh Yadav and driver Sh Shivraj, besides himself, and some other officers, whose names he could not remember. He has further stated that all the above documents pertaining to the seizure work were prepared in the office of the Air India itself situated near the above check-in counter and has also denied the suggestions given to him that the above heroin was planted by him upon the accused when the accused appeared in their office subsequently, in pursuance to the summons U/S 67 of the NDPS Act. Nothing material could be extracted out from him during his cross examination, which could have the effect of disproving the seizure of above contraband substance effected by him from the above baggage of the accused or of making his depositions regarding the above seizure to be doubtful.
36. Besides the IO/PW1, the prosecution has also examined on record PW4 Sh Pramod Kumar, who is one of the two public and independent witnesses joined at the time of the above seizure and this witness was posted as an Assistant Manager, Security with Air India and was on duty at the above Airport itself at the relevant time when he was made to join the above proceedings by some DRI officers. He has stated that he was told by the DRI officers about the above information regarding one passenger named Gurtej Singh Batth of their above flight SC No. 23A/10 DRI Vs. Gurtej Singh Batth 25 number AI-187 being in possession of some narcotic drugs and he has also stated about the interception of the above passenger from a check-in counter of their Airlines in his presence, after the above passenger was issued the boarding pass and baggage tags etc in respect of his checked-in baggages, which he had handed over to the official of Air India present at the said counter. He has further corroborated the depositions of the IO/PW1 regarding taking the accused and his luggage to the above office of their Airlines and the recovery of the above four packets from the false cavities of the above two baggages/suitcases during the search conducted in the said office, after one notice regarding the said search was given by the IO/PW1 to the accused. He has also deposed specifically about the testing of the powdery substance contained in the said packets, the drawing of two sets of samples and the preparation of the parcels of samples and remaining heroin and has further identified his signatures on the notice Ex. PW1/C given to the accused, the documents recovered from him, and also the test memos Ex. PW1/E and PW1/F. He has also identified the accused as well as the case property produced before him in the court, besides his signatures appearing on various paper slips pasted on the parcels of the case property, which were produced before him for identification.
37. Even, PW4 was cross examined at length by Ld defence counsel and though during his cross examination, SC No. 23A/10 DRI Vs. Gurtej Singh Batth 26 the date of apprehension of the accused and the conduction of proceedings was initially stated by him as 14.04.2010, but subsequently, he has clarified that the same was 13.04.2010 and not 14.04.2010. He has also stated that he was working in Air India since 1992 and he joined his duties on 12.04.2010 at 11:00 PM and the same were were to end on 7:30 AM on the next day. He has also stated that he had never been a witness in any other case under the NDPS Act, though he was made a witness by the police in some other cases of fake passports etc. He has also stated during his cross examination that he was not deputed for duty on any particular check-in counter as his job was to supervise the check-in counters, but the accused was intercepted from the above check-in counter in his presence and he has also reiterated that the accused and his luggage were taken to the above office of Air India in his presence and he had also been present in the above traffic office throughout the conduction of the entire search and seizure proceedings. He has also reiterated that the accused was intercepted only after he had already handed over his above two checked-in baggages to the official present at the said counter and he was already issued a boarding pass and the baggage tag for the said luggage. He has also stated that besides him, one other official of Air India named Sh Sonaram Chaudhary, who was on duty on that check-in counter itself from where the accused was intercepted and was working as a checking agent of their company, was also SC No. 23A/10 DRI Vs. Gurtej Singh Batth 27 present at the time of interception of the accused and the above search and seizure proceedings and the above officers had also been present in the said proceedings throughout and had signed all the documents prepared during the said process.
38. During the cross examination of this witness also, nothing material could be extracted out from him by Ld defence counsel to counter his claim of joining of the said proceedings and on being questioned regarding the proving of his identity and presence as such on one day of his cross examination, the witness has produced on record his duty slip dated 12.04.2010 Ex. PW4/DX1 on the next date, though he has stated that he has not able to locate the muster roll of that day, which could have also shown the timings of his duty. He has also stated that the above DRI team consisted of Sh Rajender Verma and Sh Man Singh Yadav, besides other officers and has again reiterated that he did not return back to join his duties at any check-in counter, after the accused was intercepted and taken to the above room/cabin, and remained present with the DRI officers during the entire search and seizure proceedings, which continued till around 12:00 noon. He has further stated that he has joined the said proceedings with telephonic permission of his senior officers and besides the above two checked-in suitcases, the accused was also carrying one handbag. He has also produced some record of e-mail sent by him to his senior officer, which was further SC No. 23A/10 DRI Vs. Gurtej Singh Batth 28 forwarded by the said senior officer to his superiors, regarding the above seizure of contraband and his participation in the said proceedings as Ex. PW4/DX2 collectively, though the contents of the said computerized record cannot be read in evidence for want of the compliance of the provisions of Section 65B of the Evidence Act.
39. The second official witness of recovery of the above contraband substance from the possession of the accused is PW6 Sh Man Singh Yadav, who also claims himself to have accompanied the above team of DRI to the IGI Airport and a witness of interception of the accused and seizure of the above heroin from his above checked- in baggage. He has also deposed in detail, likewise the IO/PW1, regarding their above visit to Airport and the seizure work done regarding the said substance and has further identified the accused as well as the case property. During his cross examination, he has told about the timings of leaving of their office and arrival at the spot, deposed about the joining of the two public witnesses by the IO/PW1, the preparation of the notice U/S 50 of the NDPS Act given to the accused by the IO/PW1 and the other work done there. However, he has denied the suggestion that he was not a part of the above raiding team or was deposing merely on the basis of the contents contained in the complaint. Nothing material could also be extracted from him to show that he had not so participated in the above proceedings or SC No. 23A/10 DRI Vs. Gurtej Singh Batth 29 was not a truthful witness.
40. PW10 Sh Sonaram Chaudhary is the other public witness who was joined by the IO/PW1 in the above seizure and he is also an official of the above Airlines posted at the concerned check-in counter of the said Airlines at the IGI Airport. He has stated that he was working as a customer agent at that time and was on duty from 11:00 PM to 7:30 AM. He has though supported the case of the prosecution regarding the interception of one passenger named Gurtej Singh Batth, alongwith his two checked-in baggages, from the above check-in counter, but was declared hostile on the other material aspects of search of the above two checked-in baggages in his presence, the recovery of the four packets of heroin concealed in the said suitcases and the other seizure and sealing work etc done with regard to the above substance. He has also expressed his inability to identify the accused as the said passenger, though, during his cross examination done on behalf of DRI, he has admitted that the photographs appearing in the passport, driving license and Resident Card of Canada etc of the said passenger resemble with the accused, if the accused is not wearing a turban (it has been submitted on behalf of the prosecution that the accused was not wearing a turban at the time of his apprehension and had started wearing it only during his confinement in the court). However, he has identified the case property as well as his signatures on different SC No. 23A/10 DRI Vs. Gurtej Singh Batth 30 documents likewise the other public witness/PW4 Sh Pramod Kumar, though he maintained that the above cavities of suitcases were not found and the parcels of heroin recovered in his actual presence.
41. It has been argued by Ld defence counsel that the evidence led on record by the prosecution in the form of statements of the above four witnesses of recovery is not sufficient to prove the recovery of the above contraband substance from the possession of the accused as neither any of the documents prepared at the time of the alleged proceedings is found to be signed by PW6 Sh Man Singh Yadav nor there is any other document showing his name as a member of the raiding team. It is also argued that even the depositions made by the two public witnesses do not corroborate the case of the prosecution regarding their participation in the said proceedings. It is further argued that PW10 Sh Sonaram Chaudhary has not supported the case of the prosecution at all as he specifically states on record that the above two suitcases of the accused were not searched in his presence and the above packets of heroin were not recovered therefrom in his presence and he was told about the same and was also made to sign various documents only subsequently and even PW4 is not supporting the other witnesses on various particulars.
42. As far as the non appearance of the signatures of PW6 on any document or the non mentioning of his name SC No. 23A/10 DRI Vs. Gurtej Singh Batth 31 as a member of the raiding team of DRI in any document is concerned, it is not felt necessary by this court as when the above notice U/S 50 of the NDPS Act, the panchnama and the other documents prepared at the spot were already being signed by the IO/PW1 himself and the two public witnesses, besides the accused, there was no need of getting these documents signed from all the other members of the raiding team. Even the non mentioning of the name of PW6 as a participant in the said raiding team or in the secret information Ex. PW1/A or the panchnama etc is held to be not fatal as the above documents nowhere give the names of the participants of such team and were not meant for the said purpose. Nothing has come on record during the cross examination of PW6 which could have raised any doubts in the mind of this court regarding his non participation in the said raid and rather a detailed and clear account of the incidents given by him in his statement shows that he had very much participated in the said proceedings and because of the same, he has rightly denied the contrary suggestions given to him on the above aspect during his cross examination. His participation in the above proceedings is even proved from the depositions of one public witness/PW4 Sh Pramod Kumar who has specifically stated on record that Sh Man Singh Yadav was also a member of the above raiding team.
43. As far as the depositions made by the two public witnesses are concerned, it is well settled that SC No. 23A/10 DRI Vs. Gurtej Singh Batth 32 the testimony of a hostile witness cannot be disbelieved or discarded outrightly and the same has to be considered in toto by the court to find out the truth contained therein and there is no bar even in relying upon a part of the statement made by such a hostile witness, if the same is found to be truthful and also corroborated by the other evidence led on record and further if the court is convinced that there might have been some circumstances under which such a witness might not have supported the case of the prosecution or shifted from his earlier stand. Coming to the depositions made by PW4, there is no force in the contentions being raised by Ld defence counsel that he is not a truthful witness or was not present at the time of conduction of the said proceedings and rather he is not only found to be a natural witness of the above seizure, being an official of the said Airlines, but has also given a detailed and minute account of the above proceedings. Since he was not known to the accused or having any inimical terms with him, there no reason on his part to depose falsely in this court against the accused and by providing a proof of his being on duty during the night of 12/13.04.2010 during his cross examination, he can be said to have dispelled the doubts of Ld defence counsel regarding his non presence and non participation in the said proceedings.
44. As far as the testimony of PW10 Sh Sonaram Chaudhary is concerned, it is observed that even this SC No. 23A/10 DRI Vs. Gurtej Singh Batth 33 witness is a natural witness present at the spot at the relevant time and he is the person who was posted at the same check-in counter of Air India at which the accused had reported for check-in. Though he has not supported the prosecution case regarding the search of the above suitcases and seizure of the above heroin in his presence, but he has also made clear depositions on record that the above passenger named Gurtej Singh Batth had handed over his passport and ticket etc to him for check-in and prior to that, he was approached by the DRI officers in connection with some information pertaining to the above passenger. He has also stated that the above passenger had checked-in his two baggages which were kept on the conveyor belt and he had also issued a boarding pass to the said passenger, who was apprehended by the DRI officers as soon as he had affixed the baggage tags on the said two luggages of the passenger and thereafter, the said passenger, alongwith the two luggages, was taken to the above office of their Airlines situated nearby. Hence, even this witness supports the case of the prosecution to a major extent as he not only corroborates the other evidence about the interception of the accused from the above check-in counter with his two checked-in baggages, but has also stated that the photograph appearing on the identity documents of the said passenger, which were produced before him by the said passenger and were subsequently shown to him in the court, was resembling with the accused present in court. His participation in the SC No. 23A/10 DRI Vs. Gurtej Singh Batth 34 entire proceedings is further corroborated from the depositions made by PW4, who has also stated on record that this witness had participated and had been present throughout the said proceedings, which lasted till 12:00 noon/12:30 PM on 13.04.2010. Even, according to this witness, he had been present at the above place of proceedings till the conclusion of the entire proceedings, which, as per him, lasted till around 3:00 PM.
45. Though, some vague and general suggestions were given to some of these witnesses that the above packets of heroin were not recovered from the baggages of the accused, but no suggestion was given to any of the above recovery witnesses that the two checked-in baggages, from which the above packets of heroin were recovered from the false cavities, were not the baggages of the accused. The above two suitcases of the accused were even identified by the witnesses during the trial as Ex. P26 and P27, alongwith their false cavities, and it is only PW10 who has stated that the same were not opened or the cavities found and the packets not recovered or checked in his presence, whereas the other three witnesses have duly identified the said suitcases, the other entire case property as well as the other articles and documents recovered from the accused.
46. During the course of recording of his statement U/S 313 Cr.P.C., the accused has taken a stand/defence SC No. 23A/10 DRI Vs. Gurtej Singh Batth 35 that though he had checked-in two baggages and was also having one handbag at the relevant time of his apprehension in this case, at the time of check-in for the above said flight, but the two suitcases/baggages from which the above packets of heroin are alleged to have been recovered do not belong to him and the same were also not searched and the heroin recovered in his presence. However, even these submissions of the accused are found to an afterthought only as no suggestions are found to have been given to any of the two witnesses that the two checked-in suitcases of the accused were not the same from which the seizure of above heroin was effected or his suitcases were different from the above two suitcases, i.e. one of grey and one of black colour and both make of EMBLEM, from which the above concealed packets of heroin were recovered. Even the other defence of the accused that he was dropped at the Airport by his wife/DW1 Smt Kuldeep Kaur and his one friend named Raja in a Tata Indica car being driven by Raja has remained unsubstantiated as there is no oral or documentary evidence to corroborate the above fact. Even the above Raja has not been produced for statement in this court. Moreover, the above defence of the accused has come on record only for the first time during the recording of his above statement and even no complaint or application was given by his wife in this court or to any other authority regarding her above claim or the false implication of the accused and even no suggestions were given to the SC No. 23A/10 DRI Vs. Gurtej Singh Batth 36 above recovery witnesses in this regard. Therefore, even this plea of defence can only be held to be an afterthought. No enmity is also alleged to be there between the accused and the members of the raiding team of DRI, which could have furnished any ground to the DRI officers to falsely implicate him in this case.
47. Hence, in view of the above, the above oral evidence led on record in the form of statements of the above witnesses is found to be duly corroborated by the documents proved on record and it stands established beyond reasonable doubts that the above two suitcases belonged to the accused and the above four packets of heroin containing the above quantity of heroin were recovered from the said suitcases.
48. Besides the above evidence led on record regarding the recovery of the above contraband substance from the possession of the accused, there is also his statement Ex. PW1/H, which was tendered by him U/S 67 of the NDPS Act and in response to the summons Ex. PW1/G given to him by the IO/PW1, which can be considered by this court for arriving at a conclusion about his guilt. It is now well settled that such a statement made by an accused is very much admissible in evidence and the same can also be made the sole basis of the conviction of an accused, if the same is found to be made voluntarily. Further, it cannot be equated with the statement of an accused made in custody, even if it is confessional in SC No. 23A/10 DRI Vs. Gurtej Singh Batth 37 nature, as the same is made by an accused prior to his arrest in the case and hence, the bar of Sections 24 to 27 of the Evidence Act and even Article 20(3) of the Constitution would not be attracted to such a statement. However, if such a statement is found to be made by an accused under some pressure, coercion or influence etc. and is not made by him voluntarily, then it cannot be believed and acted upon.
49. Again, if the accused subsequently retracts from such a statement, then the court has to look into the entirety of the facts and circumstances leading to the making of the above statement and its subsequent retraction, so as to form an opinion regarding the voluntariness of such a statement and the effect which has to be given to his subsequent retraction thereof. However, it is also well settled that such a retracted statement is a weak piece of evidence and the court should not proceed to base a finding of conviction on the basis of such a retracted statement, unless there is some other independent evidence to corroborate the same. Reference with regard to the above can be made to some of the judgments in cases Raj Kumar Karwal Vs. Union of India & Ors. (1990) 2 SCC 409; Kanhaiya Lal Vs. Union of India 2008 (1) AD (Crl.) (SC) 277 : 2008 (1) JCC (Narcotics) 23; Francis Stanly @ Stalin Vs. Intelligence Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124; Noor Aga Vs. State of Punjab & Anr. 2008(9) Scale 681; Union of India Vs. Bal Mukund and SC No. 23A/10 DRI Vs. Gurtej Singh Batth 38 Ors. 2009 (2) Crimes 171 (SC); Ram Singh Vs. Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 and DRI Vs. Raj Kumar Mehta & Ors.2011 (3) JCC (Narcotics) 156.
50. Coming to the present case, in his above statement Ex. PW1/H, the accused is found to have disclosed his various personal and family details like the date and place of his birth, the names of his family members, his educational standard, his two marriages and the circumstances under which he had migrated to Canada and also his present employment as a professional truck driver in Canada, the name of his employer and his salary etc. None of these details have been alleged by the accused to be false or untrue as during the entire trial and even during the course of recording his statement U/S 313 Cr.P.C., the accused has never denied the correctness of the above facts. These details constitute the specific facts which could have been in the knowledge of the accused only and not of the DRI officers as they were never supposed to know the above details. The accused has further admitted therein the fact that he had come to India from Toronto, Canada on 19.02.2010 and also his apprehension from the Airport on 13.04.2010, when he was returning back to Canada by the above flight and thus, the presence of the accused at the above Airport at the relevant time and his apprehension from the check-in counter of Air India of the above flight also stands specifically admitted on record. However, it has been submitted on behalf of SC No. 23A/10 DRI Vs. Gurtej Singh Batth 39 accused that despite the correctness of the above facts mentioned in his statement, his above statement is not a voluntary statement and rather the accused was made to write the above dictated statement under force and compulsion of the DRI officers and he had never confessed that he was carrying the above concealed contraband in his above checked-in baggage or that the above two checked-in baggages/suitcases belonged to him. It is further submitted that the accused was not educated enough to write the above statement in English language as he had studied only up-to 12th standard only and further there was no reason or occasion on his part to write the above statement in English language when his alleged reply given on the notice U/S 50 of the NDPS Act was written by him in Hindi language.
51. In this regard, it is observed that there is no denial on record of the fact that the above statement of the accused Ex. PW1/H has though been written in English language, but the same is not in the handwriting of the accused. Even though the accused had studied up-to 12 th standard, as claimed, but from a perusal of the above statement it can be observed that he is having a good knowledge of the English language as the above statement is found to be written in a very good flow of that language. Hence, simply because, the reply of the accused given on the notice U/S 50 of the NDPS Act was written by him in Hindi language, the same cannot be a ground to doubt the veracity of the above statement SC No. 23A/10 DRI Vs. Gurtej Singh Batth 40 written by him in English language. Moreover, the accused was though born in India, but he had already married a Canadian Citizen, though it is stated to be his second marriage, and he was already residing and working in Canada for a considerable time and hence, he cannot be heard to say that he was not having the spoken, written or working knowledge of English language. Further, even regarding his tickets, it is found recorded therein that the accused had booked his tickets for Canada to Delhi and back to Canada, from the office of M/s Maan Travels and Tours at Ontario, Canada and he came back to India on 19.03.2010 and was having a return ticket for 30.03.2010. He had also disclosed therein about the reasons as to how and why he could not go back to Canada on 30.03.2010 as the above Bhajji advised him to do so and Bhajji was to plan his fresh return schedule. He had further stated therein that his next return ticket of 13.04.2010 was purchased by him only with Bhajji's consent and he could not even cancel the previous return ticket of 30.03.2010. Though during the course of recording of his statement U/S 313 Cr.P.C., he has claimed that he had came to India on 19.02.2010 and was going back on 13.04.2010, but he is silent about the return ticket of 30.03.2010, which could not be cancelled by him. The documents and the travel itinerary recovered from his possession clearly corroborate the submissions made in his statement Ex. PW1/H that he was having a return ticket for 30.03.2010 also, which was booked through the above travel agency, SC No. 23A/10 DRI Vs. Gurtej Singh Batth 41 and it is also a circumstance to show the correctness and voluntariness of his above statement.
52. There is also no evidence or material on record to suggest or infer that the accused was extended any sorts of threats or force to make him write the above statement or it was dictated to him. The two MLCs of the accused of RML Hospital, i.e. one Ex. PW1/K dated 13.04.2010 and the other Ex. PW1/L dated 14.04.2010, which are brought on record during the evidence, have not been disputed or challenged on behalf of the accused during the trial and these also rule out the presence of any fresh external injuries on the person of accused at the time of his medical examination vide the said MLCs and his MLC Ex. PW1/K is of the date of arrest of the accused itself and was made after the accused was formally arrested in this case, after making of the above statement Ex. PW1/H, and before he was put in the lock-up of PS Daryaganj.
53. Though, one retraction application of the accused written in English language and filed in the court on 12.05.2010 is also a part of the judicial record, but on perusal thereof also it is found that the same cannot be given much weight and was filed on the basis of some legal advise. It is so because the above retraction application of the accused has come on record after about one month from the date of his first appearance in the court and is also found to be using SC No. 23A/10 DRI Vs. Gurtej Singh Batth 42 various words, which could have been used only on some legal advise tendered to the accused by some jail visiting advocate or some senior and experienced inmate of the concerned jail. Moreover, the above retraction application is even not found to be in the handwriting of the accused and only contains his signatures in English language and though it also mentions therein that one statement of accused in Punjabi language, which is claimed to be the only language known to the accused properly, is also claimed to be enclosed therewith, but no such statement in Punjabi language is found to be enclosed with the said application or is a part of the judicial record. The above retraction application of the accused was duly replied and the allegations made therein denied by the DRI and hence, simply by claiming therein that he was forced to sign various blank documents or copy or write a dictated statement, the accused cannot get out of what he had stated earlier or confessed in his previous statement Ex. PW1/H and rather the presence of his signatures in English language on this retraction application is a circumstance to show that he was knowing this language very well, which again is a circumstance to show that his previous statement Ex. PW1/H in English language was written by him on his own in the said language.
54. Hence, the above statement Ex. PW1/H of the accused is held to be his voluntary statement and the accused has clearly admitted therein not only the fact SC No. 23A/10 DRI Vs. Gurtej Singh Batth 43 that he was found in physical possession of the above contraband substance, but also that the same was his conscious position as he was very much aware of the concealment of the said substance in his above luggage and was willingly and voluntarily carrying the same to Canada for some monetary considerations. Moreover, in the present case, the above statement Ex. PW1/H of the accused is not the only incriminating evidence against him and it is only being used to corroborate the main evidence led by the prosecution to show the recovery of the said substance from his possession.
55. Besides the above, there are also the legal presumptions contained U/S 35 and 54 of the NDPS Act which operate against the accused. 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 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 satisfactorily.
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56. 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.
57. In the instant case, since the accused has been held to have been found in physical possession of the above contraband substance, he is 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 the accused to prove the absence of the above criminal mental state or to account for his possession of the above contraband substance. However, the accused is found to have failed to discharge the above burden as nothing has been brought on record to establish that he was not aware regarding the presence of the above contraband substance concealed in his above checked-in-baggages and rather the statement U/S 67 of the NDPS Act Ex. PW1/H made by the accused clearly shows that he was aware regarding the above concealed contraband and was willingly carrying the same from India SC No. 23A/10 DRI Vs. Gurtej Singh Batth 45 to Canada for monetary consideration.
58. While, dealing with the concept of 'conscious possession' the Hon'ble 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."
59. Further, the Hon'ble the Apex Court in case of Dharampal Singh Vs State of Punjab : 2010 (10) SCALE has also held as under:-
"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."
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46
60. Further, there is also not found to be any
merit in the contention of Ld defence counsel that since none of the other persons named by the accused in his above statement could be interrogated or apprehended in this case and made accused by the DRI, the evidence led on record is not sufficient to convict the accused for the alleged offences. It is so because no charge for the offence of criminal conspiracy punishable U/S 29 of the NDPS Act is found to be framed against him in this case and the evidence led on record is fully admissible and relevant with reference to the other charges framed against him regarding the possession and attempt to export the above contraband substance, which are punishable U/S 21(c) and Section 23 r/w Section 28 of the NDPS Act. Further, simply because the above secret information was not entered into any separate register or diary, the genuineness thereof cannot be doubted as the same was atleast reduced into writing in the form of Ex. PW1/A, even though it was not mandatorily required to be so reduced by any provision of the NDPS Act or the Rules framed thereunder. No violation of any other mandatory provision of the NDPS Act or the Rules thereof has also been pointed out by Ld defence counsel or visible from the evidence led on record. No challenge has also been made to the intactness of the parcels of the samples and case property of the case at any stage and even otherwise, the evidence led on record duly establishes that the same had remained safe and intact at all the times and were also produced in intact SC No. 23A/10 DRI Vs. Gurtej Singh Batth 47 condition, during the trial in this court.
61. Under the NDPS Act, a quantity of 5 Grams of heroin is prescribed as a small quantity and 250 Grams to be a commercial quantity and the quantity recovered from the accused in this case is weighing 5.932 KG. Since the seizure of this case has been effected on 13.04.2010, i.e. after the issuance of the Notification No. S.O.2941(E) dated 18.11.2009 of the Ministry of Finance, Department of Revenue, Government of India, the entire seized quantity of heroin is to be considered by this court and not just the purity percentage of diacetylmorphine contained therein. The test report of the samples of this case stands duly proved on record as Ex. PW1/F, from the depositions made by PW7 Sh Raj Kumar, Assistant Chemical Examiner of CRCL, and even otherwise the said report is found to be per-se admissible in evidence U/S 293 Cr.P.C. All the four samples tested vide the said report are found to have tested positive for diacetylmorphine (heroin) and there is also no challenge to the above evidence led in this case.
62. Therefore, in view of the above discussion, it is held that the evidence led by the prosecution on record is sufficient to prove the charges for the offences punishable U/S 21(c) and 23(c) r/w Section 28 of the NDPS Act as framed against the accused, with SC No. 23A/10 DRI Vs. Gurtej Singh Batth 48 regard to the possession of the above heroin and also of an attempt to export the above heroin outside India, and the accused is held guilty and convicted for the above said offences. Let he be now heard on the quantum of sentence.
Announced in the open
court on 14.08.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No. 23A/10 DRI Vs. Gurtej Singh Batth
49
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT SAKET COURT COMPLEX, NEW DELHI Directorate of Revenue Intelligence Delhi Zonal Unit Through Sh Rajender Verma, Intelligence Officer V E R S U S Gurtej Singh Batth S/o Sh Gurnam Singh R/o Village Kacher Bhan P.O. Mehar Singh Wala Tehsil Zira District Firozpur, Punjab Presently lodged in Central Jail Tihar, New Delhi.
SC No.: 23A/10 U/S : 21/23 NDPS Act Computer ID No:02406R0319052010 ORDER ON SENTENCE Present: Ms. Mala Sharma, SPP for DRI. Convict in JC with Sh. Nitin Rai Sharma, Advocate. After having convicted the accused for commission of the offences punishable U/S 21(c) and
23(c) r/w Section 28 of the NDPS Act vide my judgment dated 14.08.2014, arguments have been heard today, as advanced from both the sides, on the point of sentence to be awarded to the convict. The submissions made by the convict himself have also been heard and considered.
SC No. 23A/10 DRI Vs. Gurtej Singh Batth 50
2. The offences U/S 21(c) and 23(c) of the NDPS Act carry a minimum term of rigorous imprisonment for a period of 10 years each extending up to 20 years and also a fine of not less than Rs 1 Lac each and extending up to Rs 2 Lac and the court is further empowered to impose even a fine exceeding Rs 2 Lac for reasons to be recorded for the same. The attempts for the above offences made punishable by Section 28 of the said Act also prescribe the same punishment which is provided for the substantive offences.
3. It has been submitted on behalf of the prosecution that the maximum terms of imprisonment and fine be awarded to the convict and he does not deserve any leniency from this court as he has been found guilty of possessing a commercial quantity of heroin.
4. On the other hand, it has been submitted on behalf of the convict that a lenient view be taken in the matter and the minimum sentences of imprisonment and fine be awarded to him. It is submitted by the convict that he is aged just about 33-34 years and is having the sole liability to maintain his wife and one school going son aged about 12 years and also to take care of his aged widow mother, who all are residing in their native village in District Firozpur, Punjab and are being presently looked after by his elder brother. He further submits that he is not having any previous involvement in any criminal case and is in custody since his arrest SC No. 23A/10 DRI Vs. Gurtej Singh Batth 51 in this case on 13.04.2010.
5. I have thoughtfully considered the above submissions being advanced on the point of sentence. As per the case of the prosecution, the convict was only acting as a carrier of the contraband substance for some monetary considerations and he himself has not been alleged to be a kingpin of any drug racket. No previous involvement of the accused in any criminal case has also been alleged or brought on record by the prosecution.
6. Therefore, keeping in view the above submissions being made by the convict and the totality of the facts and circumstances, the convict is being awarded the minimum sentence of rigorous imprisonment for a period of 10 years each and a fine of Rs 1 lac each for both the above said offence. In case of non payment of the above amounts of fine, he shall further undergo simple imprisonment for a period of three months each. Both the above sentences shall run concurrently and the period of custody already undergone by him is allowed to be set off in terms of the provisions of Section 428 Cr.P.C. Fine has not been paid. Let him to undergo the above sentences as per law.
7. A copy of the judgment and the order on sentence be supplied to the convict free of costs.
8. The case property be also confiscated and SC No. 23A/10 DRI Vs. Gurtej Singh Batth 52 disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of any appeal to be filed against this judgment and the order on sentence and the orders of the appellate court, as the case may be.
Announced in the open
court on 19.08.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No. 23A/10 DRI Vs. Gurtej Singh Batth