Delhi High Court
Gurminder Singh vs Directorate Of Revenue Intelligence on 27 November, 2006
Author: J.M. Malik
Bench: J.M. Malik
JUDGMENT J.M. Malik, J.
1. The trial court handed down a verdict of guilty against the appellant and sentenced the appellant to undergo Rigorous Imprisonment for ten years and to pay a fine in the sum of Rs.1,00,000/-, in default of payment of fine, he was further ordered to undergo Simple Imprisonment for six months for the offence of possessing heroin weighing 5 Kilograms under Section 8/21 NDPS Act. Aggrieved by that order, the appellant has filed the present appeal. Adumbrated in brief, the case of the prosecution is that following a tip off, the appellant was nailed with the above said heroin, on 28.12.1996 at about 8.45 PM near Police Check Post of Singhu Border, while he was coming in a car along with one Jagdeep Singh.
2. The argument urged by the learned Counsel for the appellant is many branched. First of all, it was submitted that the search should have been conducted at the spot itself. However, the proceedings were conducted at ITO at the Office of respondent, which is situated at a distance of 25 kilometers from the spot. The appellant followed respondent's vehicle up to ITO. The learned Counsel for the appellant stressed that it is surprising to note that on such a long distance the appellant could have managed dodge to the Officers of the respondent. It was easy for him to slip away as there remains heavy traffic and a large number of red lights intervene in the way. Again, if the appellant was having the contraband, he could have thrown it out of the car during the travel of 25 kilometers with the help of Jagdeep Singh, who was accompanying him. He argued that this is a clear pointer to the fact that the appellant did not have the contraband and has been framed in this case.
3. These arguments carry no conviction. In an authority reported in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence , the facts were these. The car and truck having contraband were apprehended on 15.05.1993. The seizure of the narcotics took place between 6.00-9.00 PM at the Customs House and the statements of the accused were recorded on 16th and 17th May, 1993. The Apex Court held:
It has been established that the Customs Office was about 20 kms. from the place where the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with accused Nos. 2, 3 and 6 were brought to the Customs Office. Further accused Nos.1 and 2 did not know Tamil. A Hindi knowing office had to be arranged. There was under the circumstances, no delay in recording the statements of the appellants.
4. In another celebrated authority reported in Khet Singh v. Union of India , it was held:
17. In the present case, though the mahazar was not prepared at the spot where the accused persons were found to be in possession of the contraband article but the same was done only at the Office of the Customs Department while the accused persons were very much present throughout, there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. Therefore, we are of the view that the appellant has rightly been found to be in possession of the opium. We find no reason to interfere with the conviction and sentence entered against the appellant. The appeal is dismissed accordingly.
5. Now let us turn to the instant case. The accused was escorted by the Custom Officers and the question of running away from the spot could not have possibly arisen. It is clear that the raiding party consisted of a number of officers of the department. Mr. S.K. Handa, Inspector PW1, stated that he had associated with him four-five officers. K.S. Duhan, PW4 deposed that accused himself was driving the maruti vehicle and one or two officers of their department were sitting in the car. The evidence also reveals that at that time, the light was not available on the spot, PW1 stated that they had used head-lights of their car for the purpose of preparation of summons. The court must take a down to earth view in such like situation.
6. The next submission made by learned Counsel for the appellant was that the search of the appellant was not conducted in presence of a Gazetted Officer as required under Section 50 NDPS Act, though the appellant himself had demanded that he should be searched in presence of a Gazetted Officer. The plea set up by the respondent that since Mr. B.S. Bakshi, one of the members of the raiding party is a Gazetted Officer, therefore, there was no need to call the Gazetted Officer. The learned Counsel for the appellant pointed out that the presence of Mr. B.S. Bakshi does not fulfilll the mandatory requirement. In order to bring his point home, he has drawn the attention of the court towards an authority reported in Ahmed v. State of Gujarat , wherein it was held:
In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been affordedthe minimum right to be searched before another gazetted officer or the Magistrate and that right cannot be taken away, merely because the officer going to search happens to be a gazetted officer, who has been empowered either by the Central Government or by the State Government by a general or special order. In fact the legislature has enacted the safeguard contained in Section 50 to obviate any doubt of the illicit articles under the Act and this provision was engrafted having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable.
7. This plea is more palliative and does not delve deep to the roots of malady. The recovery of the contraband was affected from the car. The evidence on the record goes to show that five packets in a white cloth pouch were recovered from the specially built-in cavities from the right hand rear door panel of the car, which on opening contained light brown coloured powder in four packets and white coloured powder in one packet, which on testing gave positive test for heroin. The appellant as such was never personally searched.
8. In State of H.P. v. Pawan Kumar , it was held:
A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.
9.In the latest authority reported in State of Haryana v. Ranbir Singh @ Rana , the recovery of contraband article from plastic bag carried by the accused was effected. It was held that in view of State of H.P. v. Pawan Kumar 2005 (4) SCC 385, Section 50 was not applicable in such a case. Similar view was taken in State of Punjab v. Balwant Rai 2005 III AD (S.C.) 407. It is, therefore, crystal clear that Section 50 has no application in this case.
10. It was further submitted that both the independent witnesses Ramesh Rawat, PW7 and Bobby PW10 refused to latch on to the prosecution story. They are witnesses to the recovery and panchnama. It would not be safe to place reliance on official testimony. Secondly, although, the team was headed by Alok Tewari PW8, yet, PW8 and K.S. Duhan, PW4 did not sign the recovery memo. The memos were signed by S.K. Handa PW1 and B.S. Bakshi PW2. The learned Counsel stressed that the case of prosecution wallows in doubt and uncertainties.
11. These arguments lack conviction. In Nathusingh v. State of Madhya Pradesh , the case was investigated by the police. Both the public witnesses did not support the prosecution case. Reliance was placed on the testimonies of two police officers and it was held:
The mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused.
12. Again, the reliance was placed upon the statements of the police officers in the cases reported in Ahir Raja Kohmia v. State of Sorashtra ; State Govt. of N.C.T. of Delhi v. Sunil Kumar 2001 (1) C.C. Cases (SC) 6. In T. Shankar Prasad v. State of Andhra Pradesh Crl. Appeal No. 909 of 1997, decided by Hon'ble Supreme Court on 12.01.2004, it was held:
The Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent.
13. In State of Kerala v. M.M. Mathew , it was held that public servants have to be presumed to have acted honestly and conscientiously and their evidence cannot be discarded merely on the ground that they be interested in getting the accused convicted. In this case the conviction of the accused was based on the testimonies of Sales Tax officers.
14. Similar view was taken in Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. 2001 IV AD (SC) 393; State of U.P. v. Anil Singh , Pal Singh and Ors. v. State of U.P. and M. Prabhulal v. The Assistant Director DRI 2003 (3) CC Cases (SC) 67.
15. This is well settled that there is a statutory presumption of correctness of official acts in their favor. This was so held in authorities. Mohd. Hussain v. State 1989 (3) Crimes 679, The State of Bihar v. Basawan Singh , Paramjit Singh and Anr. v. The State , Shanker v. State of U.P. , Modan Singh v. State of Rajasthan (1978) 4 SCC 435, Dalbir Kaur and Ors. v. State of Punjab and Pal Singh and Ors. v. State of U.P. 1979 Cr.L.J. 917. In State of U.P. v. Anil Singh , it was held:
It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.
16. In the instant case, the independent witnesses have proved their signatures on the Panchnama and no explanation is forthcoming as to why did they sign the panchnama. Consequently, they also support the evidence of the Custom Officers in a measure.
17. It is not necessary that all the members of the raiding party must sign the recovery memo. The signatures of two Custom Officers namely S.K. Handa, B.S. Bakshi and two independent witnesses are enough. This argument does not rock the boat to a dangerous extent.
18. It was also argued on behalf of the appellant that Section 55 was not complied with. Learned Counsel for the appellant urged that as per practice, the prosecution should have deposited the case property in the malkhana of local Police Station as is required under Section 55 NDPS Act. However, instead of doing so, the Investigating Officer sent one set of sample to CRCL, New Delhi through K.S. Duhan, PW4 on 24.12.1996. One Packet of case property was deposited on 26.12.1996 and that too, not with the Police Station but with the Valuable Godown of Cutsoms. Sohan Pal, Inspector, Central Excise, who was on duty as Inspector Valuable Godown Customs, PW12, deposed that only one packet was deposited with him on 26.12.1996 and no test memo was deposited by Mr. S.K. Handa on 26.12.1996. He could not say whether Mr. Handa had come to him during morning or afternoon or in the evening. He could not recollect who had recorded the entry in the malkhana register. It was argued that when two sets of samples were taken out, one was sent to CRCL for testing and the second set which was in the custody of Mr. S.K. Handa was not deposited anywhere.
19. I see no merit in these arguments. It is not incumbent upon the Officers of the Custom Department to deposit the case property with the malkhana of the Police Station. The Officers of the department are equally empowered to deposit the case property in their own malkhana in accordance with notification No.7/85 dated 14.11.1985, which is reproduced as follows:
S.O. 823 (E) - In exercise of the powers conferred by Sub-section (1) of Section 53 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985), the Central Government, after consultation with all the State Governments hereby invests the officers of the above the rank of inspector in the Central Excise, Narcotics, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau with the powers specified in Sub-section (1) of that Section.
20. The CRCL received the duly intact samples. They matched the description in the test memo. The sample as well as the case property had been sealed with the paper slips which also bore the signatures of the accused. In Ruiz Gurerrero Dolores v. Customs 2000 (1) CC Cases (HC) 8, it was held in para 6:
The reason being that the aforesaid paper slips appended on samples were found intact and the sample cannot be tampered with without tampering with these paper slips. Therefore, there is no force in the contention of the learned Counsel for the appellant that the prosecution has failed ruled out the possibility of tampering with the samples in question.
21. In Babubhai Odhav ji Patel and Ors. v. State of Gujarat , it was held:
The learned Counsel further contended that the seized articles were not kept in proper custody and that there was violation of Sections 52, 55 and 57 of the NDPS Act. He placed reliance on Valsala v. State of Kerala (1993) 3 Supp. 665. We do not think that there is much force in this contention. This Court in Gurbax Singh v. State of Haryana (2001) 3 SCC 28 held that these provisions are not mandatory provisions and they are only directory. In the present case, we do not find any serious violation of these provisions. The prosecution adduced evidence to prove that these provisions have been substantially complied with and the Sessions Judge discussed these matters in detail and accepted the prosecution case.
22. The next submission made by the learned Counsel for the appellant was that the CRCL report filed with the case is not admissible in evidence. Dr. Y.K.S. Rathore, who, was a Chemical Examiner in CRCL, New Delhi has failed to exhibit Chemical examiner report in his statement. As per his statement, the samples were received with Anwar Alam, ACE and were allotted to him for analysis. Said Anwar Alam with assistance of B. Kumar, CA II was to analyze the sample. Dr. Y.K.S. Rathore PW6 admitted that the report did not bear the signatures of Anwar Alam or B. Kumar. It is pointed out that since witness has not touched the samples, therefore, it is difficult to fathom as to how he can speak about its authenticity.
23. These arguments are devoid of force.It is apparent that Anwar Alam and B. Kumar CA II were working under the supervision of Dr. Y.K. S. Rathore. This is not the requirement of law that every body, whosoever, has handled the sample must sign it. Again, it is well settled that the report sent by Chemical examiner is per se admissible in evidence without any formal proof. The report was proved on the record as Ex. PW8/C. This view finds support from an authority reported in State of Himachal Pradesh v. Mast Ram 2004 IX AD (SC) 57.
24. It was also argued on behalf of the appellant that one Jagdeep was also apprehended in this case. Notice under Section 50 NDPS Act was served upon him and he was served with summons under Section 67 NDPS Act. It is not understood as to why he was released in this case. It is explained that either he should have been arrayed as an accused or a witness. However, the needful was not done for the reasons best known to the prosecution.
25. The learned Counsel for the appellant kept on veering from the main topic. Although, Gurminder Singh has confessed his guilt, yet, at the same time, he has given clean chit to his companion. I have also perused the statement of Jagdeep Singh recorded under Section 67 NDPS Act. He denied the knowledge about the fact that his companion was carrying the above said contraband. There was no use to involve an innocent person in this case, in absence of evidence that both of them worked cheek by Jowl. Again, it was also not useful to array him as a witness. Being a companion of the accused-appellant, his support to prosecution case was open to doubt.
26. Learned Counsel for the appellant lastly pleaded that in view of the latest authority reported in Bhola Ram Kushwah v. State of M.P. , the accused should be acquitted because evidence led by the prosecution is contradictory and unreasonable.
27. Without evidence to support the appellant, the appellant is on thin ice with the said argument. No attempt was made to elaborate the above said contention.
28. Besides the above said evidence, there is enough evidence produced by the prosecution. The confessional statement made by the appellant puts the prosecution in an impregnable position. It is surprising to note that learned Counsel for the appellant did not advance even a single argument about the confessional statement made by the appellant. The evidence in confessional statement has substance, it can do without frills. There is no need of corroboration. This view finds support in number of authorities reported in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, DRI JT 2003 (Suppl. 2) SC 459, Ravinder Singh @ Bittoo v. State of Maharashtra 2002 (2) JCC 1059 SC; A.K.Mehboob v. IO, NCB ; Pon Adithan v. Deputy Director, NCB, Madras 1999 (2) JCC SC 335; Kalema Tumba v. State of Maharashtra ; Raj Kumar Karwal v. UOI and Ors. 1991 Cr.L.J. 97 (SC); Emmannuel Uchenna Ezenwosu v. NCB and Ors. 2003 (1) JCC 417; Ruiz Guerrero Dolores v. Customs 2000 (2) JCC (Delhi) 357 : 2000 (1) CC Cases High Court 8; Strino Juen Antanio v. Customs, 2000 (2) JCC (Delhi) 349; Collector of C.E. v. Duncan Agro Industries Ltd. AIR 2000 SC 2001; K.I. Pavunny v. Asstt. Collector ; F. Mario Pires v. Directorate of Enforcement, New Delhi 1982 Cr. L.J. 461 Goa; Namdi Francis Nwazor v. NCB 1994 (1) Crimes 579 (DHC) and Triveni Prasad v. State of Maharashtra .
29. In his statement recorded under Section 313 Cr. P.C., for the first time the accused contended that he was beaten and the statement was got recorded against his wishes. Learned Counsel for the appellant failed to point out that any complaint was made against the Custom Officers by the accused. This statement was made for the first time on 31.11.2000. S.K. Handa, PW1, was not cross-examined on this point.
30. The confessional statement read in confunction with recovery of contraband forms the most telling and unflappable evidence against the accused. All the doubts have been proved to be purile and baseless. The evidence on record manifests the guilt of the accused. The appeal is, therefore, dismissed.
Copy of this judgment be furnished to the accused/appellant through Jail Superintendent. Lower court record be sent back forthwith, with a copy of the judgment.