Delhi District Court
Dri vs Nishan Singh & Anr. on 20 December, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURTS COMPLEX, NEW DELHI
DRI Versus Nishan Singh & Anr.
1) Nishan Singh
S/o Sh Harnam Singh
R/o Gali Harnam Singh,
House No.2,
Surta Singh Road,
Amritsar, Punjab.
2) Punjab Singh
S/o Late Sh Jaimal Singh
R/o V & PO Rajatal,
Amritsar, Punjab.
SC no. : 18A/06
U/S : 21/25/29 NDPS Act.
Computer ID no.: 02403R0092062006
Date of institution : 27.01.2006
Date of reserving judgment : 17.12.2012
Date of pronouncement of judgment : 20.12.2012
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence (hereinafter referred to as DRI) through Sh R. Roy, Intelligence Officer against the above two accused for commission of the offences punishable U/S 21/25/29 of the NDPS Act, 1985.
SC No. 18A/06 DRI Vs Nishan Singh & Anr.
2
2. The brief facts of the case are that on
02.08.2005 at about 11.00 AM PW1 Sh Yogesh Kumar
Chaudhary, an Intelligence Officer of DRI, had received an information that two persons of a given physical description had brought some narcotic drugs concealed in a truck bearing registration no. MP-09K-4230, which was parked near Gurudwara located near village Badli, Delhi, situated at G. T. Karnal Road, leading towards Karnal, since the previous afternoon/evening, i.e. (01.08.2005) and one of those persons was a turbaned man and the other was wearing kurta pyjama and the narcotic drugs were to be delivered by those persons to some persons in Delhi. The above information was immediately reduced into writing by PW1 as PW1/A and the same was put up by him before PW7 Sh Vinod Kumar, Deputy Director of DRI, who had called the complainant/PW2 Sh R. Roy, an Intelligence Officer of DRI, and had directed him to rush to the spot with a team of officers, to identify the truck and the suspects and to take the necessary action.
3. It is alleged that a team of the DRI Officers had reached at the spot and had identified the above truck which was parked adjacent to the above Gurudwara on the above said road and it was seen that a turbaned person was sitting on the driver's seat of the said truck. The members of the DRI team had kept a discreet watch watch on the truck and waited for the persons who were supposed to SC No. 18A/06 DRI Vs Nishan Singh & Anr.
3take the delivery of the drugs from the above turbaned person and after a considerable time they had seen the other person wearing white kurta pyjama approaching the said truck and after having some talks with the turbaned person sitting on the driver seat of the above truck, the above person wearing white kurta pyjama had boarded the truck and occupied the seat adjacent to the driver's seat. Thereafter, the turbaned person had started the truck and it started moving towards the road leading to Karnal and when the DRI Officers could not find any other person around the spot who could have come there to take the delivery of the above narcotic drugs, they had intercepted the above truck and had introduced themselves to both the occupants of the truck and on enquiry the occupants of the truck had also told their names to the DRI Officers and the name of the person on the driver seat of the truck was disclosed as the accused no.1 Nishan Singh and that of the other person sitting in the truck as the accused no.2 Punjab Singh, both residents of District Amritsar, Punjab.
4. It is also alleged that the officers of the DRI had then informed both the accused persons about the above specific information available with them regarding their being carrying some narcotic drugs on their persons or in their truck, but both the accused had replied in negative. They were further told by the DRI Officers that their persons and the truck were required to be searched for the SC No. 18A/06 DRI Vs Nishan Singh & Anr.
4same and since the place of their interception was a busy public place and not conducive for rummaging/search of the truck and their persons, they both, alongwith the truck, were escorted to the parking space of the drum shaped building in the Inderprastha Bhawan, I.P.Estate, New Delhi where the office of the DRI was located.
5. It is further alleged that two public witnesses were called there at about 6.00 PM and they both were shown the above truck and told about the above specific information and they both were also introduced with the accused persons and on being asked the accused persons had also disclosed their names and complete addresses in the presence of the public witnesses. The accused were again asked regarding the carrying of any narcotic drugs by them on their persons or in the above truck, in the presence of the public witnesses, but they had again replied in negative. Notices U/s 50 of the NDPS Act Ex. PW2/A and PW2/B respectively were then served upon the accused no.1 and accused no.2 by the complainant/PW2 informing them that they have a legal option to get their truck and their persons searched before a Gazetted Officer or a Magistrate, to which they both had replied that any officer of DRI could take the said search. They both had also stated that though they could understand Hindi and Punjabi languages and could sign in Gurmukhi/Punjabi language, but they did not know to read or write any other SC No. 18A/06 DRI Vs Nishan Singh & Anr.
5language and hence their above replies were recorded on the above notices itself by some officers of the DRI on their requests and the same were read over and explained to them and they had also signed on their respective notices, in token of service of the same upon them and the correct recording of their above replies.
6. It is further alleged that thereafter the DRI Officers had started rummaging/searching the said truck in the presence of the panch witnesses and the accused persons and had recovered 19 packets from a cavity located in front of the seat adjacent to the driver's seat of the said truck and the said cavity was found to be covered with a panel, which was found secured with bolts. Apart from the above 19 packets, some documents were also recovered from the compartment on the top of the driver's seat, which consisted of the Insurance Policy, one National Permit and one panchnama pertaining to the impounding of the said truck. The above recovered 19 packets and the documents, alongwith the panch witnesses and the accused persons, were then escorted to the 7th Floor Office of the DRI in the said building.
7. It is also alleged that thereafter the above 19 packets were opened individually in the presence of the panch witnesses and the same were found to contain some off-white colour granular powder, which was giving a sharp SC No. 18A/06 DRI Vs Nishan Singh & Anr.
6pungent smell, and on further examination it was observed that the above packets were having 4 different kinds of packings and cloth markings and 7 out of these 19 packets having similar packing and marking were numbered as X1 to X7, 4 packets having similar packing and marking were numbered as X8 to X11, 6 packets having similar packing and marking were numbered as X12 to X17 and 2 packets having similar packing and marking were numbered as X18 & X19. The substance of all the above 19 packets on testing with the help of a NIK Field Testing Kit had given positive test for heroin and the gross weight of the above 19 packets was found to be 19.933 Kgs and the net weight of the heroin contained therein to be 19.138 Kgs. All the above recovered contraband substance, alongwith its packing material, the above truck and documents etc were seized for violation of the provisions of the NDPS Act.
8. The complainant/PW2 had then taken out two samples of 5 Gms each out of the above 19 packets and the same were correspondingly marked as X1A to X19A and X1B to X19B and these samples were then put in separate paper envelopes, which were then sealed with the DRI seal number 10, over and above a paper slip bearing the dated signatures of the complainant/PW2, both the accused and the panch witnesses, and these sample packets were also correspondingly marked. The remaining heroin of the above 19 packets was put back in the same packings and the above SC No. 18A/06 DRI Vs Nishan Singh & Anr.
7packets were then wrapped with white cloth, stitched and sealed with the above seal of DRI, over and above a similar paper slip bearing the dated signatures of the above persons, and these packets were again marked as X1 to X19 and were further kept in a steel trunk, which was also wrapped with a white cloth, stitched and sealed in the same manner. A detailed panchnama Ex. PW2/C was drawn by the complainant/PW2 regarding the above proceedings and the same was also signed by the accused persons, the panch witnesses and the complainant/PW2 himself and a facsimile of the above DRI seal was affixed thereon and photocopies of the above 4 different types of cloth markings were also made as annexure 1 to annexure 4 to the above panchnama, which are Ex.PW2/D to PW2/G on record. Test memos in triplicate were also prepared by the complainant/PW2 and the same were also signed by all the above persons and a facsimile of the above seal affixed thereon.
9. It is also alleged in the complaint that in response to the summons Ex. PW2/K dated 03.08.2005, the accused no.1 had tendered his voluntary statement U/s 67 of the NDPS Act Ex. PW2/L on the same day before the complainant/PW2, which was reduced into writing in Hindi language by PW3 Sh Roshan Lal, Senior Tax Assistant of DRI, and in the above statement, besides admitting their apprehension in this case with the above contraband substance and the manner thereof and the other SC No. 18A/06 DRI Vs Nishan Singh & Anr.
8proceedings, he had also disclosed therein, inter-alia, that the above packets of heroin were concealed in the cavity of the above truck on 30.07.2005 at Jahaj Garh, Amritsar, where he had parked his truck before going to his house at Surta Singh Road, by his co-accused and brother-in-law Punjab Singh and he was told about the same by his co-accused in the evening of that day when he had come near his truck. He had also disclosed in his above statement that the accused no.2 had also told him that the above packets of heroin were to be delivered near the above Gurudwara at G. T. Karnal Road in Delhi and they were to get Rs. 60,000/- as consideration for the said delivery of the packets and he was also told by the accused no.2 to take the above packets concealed in the truck to Delhi and the accused no.2 would reach Delhi by bus.
10. The accused no.1 in his above statement Ex. PW2/L had also disclosed that he had proceeded from Jahaj Garh, Amritsar for Delhi at about 1.30 AM in the night of 30/31.07.2005 and had reached at the above place at about 4.00 PM on 31.07.2012 and the accused no.2 was already standing there and had told him that they would have to stay there till the evening of 02.08.2005, when the receiver of the contraband substance was to come there. They both had stayed near the above Gurudwara till 02.08.2005 and at about 6.30 AM of that day, accused no.2 SC No. 18A/06 DRI Vs Nishan Singh & Anr.
9had informed him that he was going to Panipat for some work and he had returned back there at about 3.30 PM, when the accused no.1 was sitting in the truck and the accused no.2 had enquired from him as to whether any person had come to take the delivery of the goods and on knowing that nobody had come till that time, the accused no.2 had directed him (the accused no.1) to drive the truck from Gurudwara towards Karnal Road, where the receiver may come to take the delivery, and it is at that time when they both were apprehended by the DRI Officers with the above said contraband substance concealed in the said truck.
11. It is further alleged that in pursuance to the summons dated 03.08.2005 Ex. PW11/A issued U/s 67 of the NDPS Act, the accused no.2 had also tendered his statement Ex. PW9/A under the above provisions and in the said statement he has also admitted their apprehension with the above contraband substance from the above said place and manner. He has also disclosed therein, inter-alia, that he had met one Bobby Singh about four months ago at Baba Deep Singh Gurudwara at Amritsar and during talks, the above Bobby Singh had told him that their fathers were friends and he had also offered the accused no.2 to take heroin for delivery in Delhi for monetary considerations, to which the accused no.2 had agreed. It was further disclosed by him in his above statement that after about a week of their above meeting, Bobby Singh had given him 7 SC No. 18A/06 DRI Vs Nishan Singh & Anr.
10packets of 1 Kg each of heroin and the same were delivered by him at the above Gurudwara at G. T. Karnal Road, Delhi to some person, as per the instructions of above Bobby Singh, and though he was promised to be paid a sum of Rs. 30,000/- for the above job, but the person taking delivery of the above consignment had paid him only Rs. 10,000/- and told him that the balance amount of Rs. 20,000/- will be paid by Bobby Singh and that Bobby Singh told him subsequently that the above balance amount will be paid alongwith the consideration amount of the next consignment of heroin. It was further disclosed by the accused no.2 in his above statement that Bobby Singh had again met him at the above Gurudwara in Amritsar about 15 days ago and as per his instructions he had again met Bobby Singh in the morning of 30.07.2005 at the same Gurudwara and then again in the evening at a place near a canal, which was 5 Kms away from Amritsar, the above Bobby Singh had come on a two-wheeler scooter with the 19 Kg heroin of this case and had handed over the same to him, to be delivered by him in Delhi at the above place and he was told to receive his balance amount of Rs. 20,000/- and a further amount of Rs. 60,000/- for the delivery of the above consignment. It was also disclosed by accused no. 2 that he had reached Jahaj Garh, Amritsar, where the above truck of his brother-in-law, i.e. accused no.1, was parked, with the above 19 Kg of heroin and had concealed the same in a secret cavity of the truck in front of cleaner's seat and SC No. 18A/06 DRI Vs Nishan Singh & Anr.
11though the accused no.1 was not present there at that time but he had told the accused no.1 regarding the above concealment of heroin in the said truck and also about the consideration amount for the said delivery of consignment after sometime when the accused no.2 had reached there. It was further disclosed by the accused no.2 that he had reached by bus at the above Gurudwara in Delhi at about 3.00 PM on 31.07.2005, i.e. prior to reaching of the accused no.1 there with the above truck, and had met the said person who was supposed to take the delivery of heroin at the said place and since that person was not having money at that time, he had told accused no.2 that he would take the delivery of heroin on 02.08.2005 at about 4.00 PM on payment of Rs. 80,000/- and the same will be taken not outside the above Gurudwara at G. T. Karnal Road in Delhi, but at a place little ahead from the same on the Karnal side. Thereafter, the accused no.2 had also made similar disclosures regarding the manner as to how he had gone to Panipat in connection with some personal work in the morning of 02.08.2005 and their apprehension with the above truck by the DRI Officers when he had returned back there and they both were moving the above truck towards Karnal side for delivery of the said consignment.
12. It is the case of the DRI that thereafter, both the accused persons were arrested in this case, got medically examined and remanded to J/C after their SC No. 18A/06 DRI Vs Nishan Singh & Anr.
12production in the court. The intimations about their arrests vide arrest memos Ex. PW2/M and PW2/N respectively were given to their family members vide telegrams Ex. PW2/C and PW12/B respectively, a report U/s 57 of the NDPS Act Ex. PW2/S regarding their arrest and seizure was also sent by the complainant/PW2 to his senior officer on 03.08.2005 and on 04.08.2005 the sealed parcel of the case property was deposited in the Valuable Godown, New Customs House in intact condition and the sealed sample parcels were also deposited with the CRCL in intact condition and the seized truck was deposited in the CWC godown.
13. Though, the residential premises of the accused persons in Amritsar were also raided, but nothing incriminating was recovered in such raids. Vide test report Ex. PW6/B of the CRCL, the above 19 samples of heroin sent for testing were found to have tested positive for the presence of diacetylmorphine and the percentage thereof was opined to be ranging between 64.2% to 91.2%. Efforts were also made to trace out the above Bobby Singh and the person who had to take the delivery of the above heroin, but no trace of them could be found for want of complete particulars and pending the receipt of a verification report regarding the ownership and other documents of the above truck, a complaint was ultimately filed in this court against both the accused persons for commission of the offences punishable U/s 21/25/29 of the SC No. 18A/06 DRI Vs Nishan Singh & Anr.
13NDPS Act, after recording the statements of the panch witnesses and completion of the other formalities.
14. The complaint was filed in this court on 27.01.2006 and cognizance of the above said offences was taken on the same day. A prima facie case for the above said offences was also found to be made out against the accused persons and charges for the said offences were also framed against them on 16.05.2006. However, it is necessary to mention here that subsequently the charges were directed to be amended and the amended charges were framed against the accused persons for the above said offences on 14.03.2012 as it was observed that the previous charges framed against them were having some technical defects. Though the matter was fixed for recording of the statements of the accused persons U/s 313 Cr.PC at that time, but since the amendment in the charges was formal in nature and did not incorporate any new charges, there was found to be no requirement of holding a de-novo trial of the accused persons and with the consent of Ld counsels for the parties, the matter was proceeded further.
15. The prosecution/DRI is support of its case has examined total 15 witnesses on record and their names and the purpose of their examination is being stated herein below:
SC No. 18A/06 DRI Vs Nishan Singh & Anr.
14
16. PW1 Sh Yogesh kumar Chaudhary is the person who
had received the above secret information and had reduced it into writing as Ex. PW1/A. He has stated that the same was put up by him before Sh Vinod Kumar, his Deputy Director, and he has also identified his signatures as well as the signatures and endorsement of Sh Vinod Kumar on the above information.
17. PW2 Sh R. Roy is the complainant and the main Investigating Officer of this case and he in his statement has broadly deposed on the above lines of the prosecution story. He has also identified the accused persons, the samples and the remaining case property and packing material etc and also his signatures and the signatures of the accused and other witnesses on different documents, including the paper slips pasted on the above parcels of the case property and samples.
18. PW3 Sh Roshan Lal, the then Sr. Tax Assistant of DRI, has stated that he had written the statement U/s 67 of the NDPS Act Ex. PW2/L of the accused no.1 Nishan Singh in Hindi language, in the presence of the IO/complainant Sh R. Roy, as the above accused did not know to write. He has identified the accused and his signatures in Gurmukhi language on the above statement.
19. PW4 Sh B. K. Bannerjee, Appraiser of DRI, had SC No. 18A/06 DRI Vs Nishan Singh & Anr.
15sent some letters Ex. PW4/A and PW/B to different authorities for some verification of the address of the accused no.1 of Indore and the ownership of the above vehicle and had also written another letter Ex. PW4/C to DRI, Amritsar for search of the residential premises of both the accused persons in Amritsar, Punjab.
20. PW5 Sh R. S. Kashyap was working as In-Charge of the Valuable Godown, New Customs House on 04.08.2005 when one sealed packet of the case property of this case was deposited in intact condition with him by the complainant/PW2 and he had also made his endorsement on the inventory/deposit memo Ex. PW2/W in this regard.
21. PW6 Sh R. P. Meena, Assistant Chemical Examiner of CRCL, had received the 19 sealed sample parcels of this case, alongwith the duplicate test memos and forwarding letter, from the complainant/PW2 on 04.08.2005 in intact condition vide/acknowledgment receipt Ex. PW6/A, on the directions of his Chemical Examiner Sh M. D. Mondal had kept the same in strong room. He has also stated that the above samples were taken out of the strong room on 22.08.2005 for testing and the analysis thereof were started and the same were concluded vide test report Ex. PW6/B and he has identified his handwriting and signatures thereon and also the signatures of Sh D. K. Beri on the above test report. He has further given the report Ex.
SC No. 18A/06 DRI Vs Nishan Singh & Anr.
16
PW2/V in Section II of the test memo.
22. PW7 Sh Vinod Kumar is the concerned Deputy
Director of DRI at the relevant time, before whom the
above secret information Ex. PW1/A was put up by PW1 and he had discussed the same with his Joint Director and had directed the complainant/PW2 to act upon the same.
23. PW8 Sh Rajesh Kumar Aggarwal is the then Assistant Director of DRI and according to him he was given the custody of the sealed trunk of the case property of this case after its seizure by the IO/PW2 and on 04.08.2005 he had handed over the same to the IO/PW2 for depositing the same in the Valuable Godown and had also counter signed the inventory/deposit memo Ex. PW2/W of t he same brought by the IO/PW2. He had also written one letter dated 05.08.2005 Ex. PW2/Y for deposit of the above seized truck to Assistant Commissioner, Disposal, New Customs House.
24. PW9 Sh Ram Kanwar, the then Tax Assistant of DRI, is the person who had written the reply of accused no.2 Punjab Singh on the notice Ex. PW2/B U/s 50 of the NDPS Act given to him and had also subsequently written the statement U/s 67 of the NDPS Act Ex. PW9/A of this accused. He has also stated that the accused was arrested in his presence and his arrest memo Ex. PW2/N was endorsed SC No. 18A/06 DRI Vs Nishan Singh & Anr.
17by him.
25. PW10 Sh D. K. Beri is the concerned Chemical Examiner under whose directions and supervision the testing of the above 19 samples of this case was done by PW6 Sh R. P. Meena and he has deposed in this regard and also regarding the test report Ex. PW6/B prepared under his signatures by PW6. He has further stated that the report of analysis in Section II of the test memo Ex. PW2/V was also given by PW6.
26. PW11 Sh Jyothimon had only issued the summons Ex. PW11/A dated 03.08.2005 to accused no.2 and according to him the statement Ex. PW9/A U/s 67 of the NDPS Act of the above accused was tendered in his presence, which was reduced into writing by PW9 Sh Ram Kanwar.
27. PW12 Sh S. K. Sharma, SIO of DRI had issued the above seal of DRI used in this case to the complainant/PW2 vide entry Ex. PW2/Z6 of the seal movement register on the date of seizure, i.e. 02.08.2005. He has stated that the seal was returned back to him by the IO/PW2 on the same day late in the night. He has further stated that after the seizure, the sealed 19 sample packets of this case, alongwith the triplicate test memos, were handed over to him by the IO/PW2 and on 04.08.2005 he had sent the sample parcels, alongwith duplicate test memos, to CRCL through SC No. 18A/06 DRI Vs Nishan Singh & Anr.
18the IO/PW2 vide forwarding letter Ex. PW2/T. On 03.08.2005, one report U/s 57 of the NDPS Act Ex. PW2/S was also submitted to him by the IO/PW2 and he had also sent the telegrams Ex. PW12/B and Ex. PW12/C to the family members of the accused regarding their arrests in this case and also one letter on 05.08.2005 to his counter-part at Amritsar for some follow up searches, which was replied vide letter dated 10.08.2005.
28. PW13 Sh V. K. Khosla was posted as SIO in the DRI office at Amritsar at the relevant time and he has only stated that on receipt of one fax message, the residential premises of the accused persons in Amritsar were raided out and he had sent the letters Ex. PW13/A and PW13/B, alongwith the documents Ex. PW13/C collectively, to his counter-part in Delhi in this regard. However, nothing incriminating is found to have been recovered in such searches.
29. PW14 Sh Himanshu Aggarwal had only received one letter Ex. PW2/X (wrongly typed as PW2/Y in his statement) while he was posted as an Inspector in the Disposal Branch of the Customs House, New Delhi from the IO/PW2 for the allocation of some space for deposit of the above seized vehicle.
30. PW15 Sh Shankar Lal Verma, a Clerk of the RTO SC No. 18A/06 DRI Vs Nishan Singh & Anr.
19office, Indore, has produced on record a copy of the relevant register of ownership of vehicles of their office as Ex. PW15/A, vide which the ownership of the above seized vehicle was transferred in the name of accused no.1 from the name of one Gurmeet Singh of Indore.
31. After the conclusion of the evidence led by the prosecution on record, statements of both the accused persons U/S 313 Cr.P.C. were recorded by this court and the entire incriminating evidence brought on record by the prosecution was put to them and the same was either denied by them to be incorrect or beyond their knowledge. Both the accused persons in their similar statements have claimed themselves to be innocent and to have been falsely implicated in this case while stating that no incriminating substance was ever recovered from their possession or from the above truck and no search of the same was ever conducted in their presence. Though they have claimed that they both had come from Punjab to Delhi on the above truck owned by the accused no. 1 Nishan Singh, but they have denied that they were apprehended with the above truck, in the manner and with the above contraband substance, as stated by the prosecution witnesses. It is submitted by them that the above truck was being driven by a driver and it was loaded with fruits and vegetables from Punjab to Azadpur Mandi and they both had come to Delhi on the above truck in connection with SC No. 18A/06 DRI Vs Nishan Singh & Anr.
20some personal work and they were to stay in a Gurudwara near Peer Baba Dargah on GT Karnal Road, New Delhi and when they had reached there, the above truck was stopped by some persons claiming themselves to be from the traffic police and under the garb of a criminal case/checking of the documents of the vehicle. It is also stated by them that though they both were permitted to visit the above Gurudwara, but thereafter they were taken to Azadpur Mandi with the truck and the driver and then to the office of the DRI, where they were brutally tortured and made to sign on many blank, semi written and written papers, without explaining the contents thereof and subsequently they were falsely implicated in this case, though the driver of the truck was let off. They both have also chosen to lead evidence in their defence.
32. One defence witness Sh Preetpal Singh was also examined by the accused persons in their defence as DW1 and he has claimed himself to be the driver of the above truck no. MP-09K-4230 owned by the accused no. 1 at the relevant time and he has also deposed on the above line of defence of the accused persons, as set up in their statements made U/S 313 Cr.P.C.
33. I have heard the arguments advanced by Sh Satish Aggarwal, Ld SPP for DRI and Sh S.S.Dass, Ld counsel for both the accused persons and I have also gone through the SC No. 18A/06 DRI Vs Nishan Singh & Anr.
21written arguments/submissions filed on record from both the sides and also the other record of the case.
34. On perusal of the evidence led by the prosecution on record, it has been observed by this court that all the proceedings and documents of this case appear to have been manipulated by the IO/PW2 and the things do not appear to the court to have happened or taken place in the manner in which the same have been brought before this court.
35. The first major challenge by the defence to the prosecution case is on the ground that one of the two alleged public witnesses joined in this case with the name of Bob Kang is either a stock witness of the DRI or he is a fake witness cited in the list of witnesses and no such person was ever joined during the investigation of this case. It has also been argued that even the other public witness cited with the name of Sh Anil Kumar was also a fake witness named by the IO/PW2 in the above list of witnesses filed on record. Though the above argument and claim being made on behalf of the defence were vehemently denied by the prosecution/DRI on record, but the things brought on record suggest otherwise.
36. It is a matter of record that none of the above two public witnesses has been examined on record of this case during the trial of the case and both these witnesses SC No. 18A/06 DRI Vs Nishan Singh & Anr.
22were dropped by the prosecution on 25.02.2011 as it was being reported on their summons sent at their given addresses that they were not existing/traceable at their given addresses. As per the prosecution case, both the above witnesses were joined from the area of CGO Complex after the accused persons were taken there in the parking area of the building where the above office of the DRI was located. However, it has not been brought on record as to from where and by whom the above two public witnesses were called for joining the search proceedings of the above vehicle conducted there, which had resulted in the seizure of the above contraband substance, and also the subsequent proceedings conducted in the office of the DRI situated at the 7th floor of the said building.
37. When the IO/PW2 was questioned in his cross examination by Ld defence counsel on the above aspects, he has specifically stated that the above two independent witnesses were not called by him and the same were called by some other officer of the DRI, but he has not been able to tell the name of the above officer who had called the above witnesses. He has also stated on record that he does not now remember the place from where the above two witnesses were called and also that none of the above two witnesses was previously known to him. He has also not taken any document in proof of their identity or residence etc at any stage of the investigation nor he had bothered SC No. 18A/06 DRI Vs Nishan Singh & Anr.
23to confirm their given residential addresses at any time. Though he has stated that his colleague Sh Jyothimon, who is an Intelligence Officer of DRI and a witness in this case examined as PW11, was earlier working with NCB and was presently on deputation with DRI, but he has expressed his ignorance regarding the fact if one of the above public witnesses named Sh Bob Kang was known to Sh Jyothimon and was also cited as a witness by Sh Jyothimon in some case of NCB. He has also expressed his ignorance with regard to the facts suggested to him during his cross examination that the above Sh Bob Kang was cited as a witness in at least two other cases titled NCB Vs. Chhagan Lal & Ors and NCB Vs. Usha & Ors.
38. PW11 Sh Jyothimon is alleged to have served the summons Ex. PW11/A U/s 67 of the NDPS Act to accused no.2 Punjab Singh and it is before him that the above accused had allegedly tendered his voluntary statement Ex. PW9/A under the above provision in writing, which was actually reduced into writing by PW9 Sh Ram Kanwar. PW11 was also questioned during his cross examination regarding the above public witness Sh Bob Kang or Bobby Kang and he has initially denied knowing the above witness or even knowing the fact that the above witness was cited as a witness by him in the above case titled NCB Vs. Usha & Ors, though he has admitted that earlier he was working with NCB and he had also appeared as a witness in the above case of SC No. 18A/06 DRI Vs Nishan Singh & Anr.
24NCB. However, when he was shown the panchnama Ex. DX1 of the above case titled NCB Vs. Usha & Ors, he has to admit that one Bob Kang was one of the public witnesses to the above panchnama prepared by him as a seizing officer.
39. During the cross examination of the IO/PW2, the copies of two panchnamas of the above two cases of NCB have also been brought on record and the panchnama of case titled NCB Vs. Chhagan Lal & Ors, SC No.145/04 has been exhibited as Ex. DX and the panchnama of the other case titled NCB Vs. Usha & Ors SC No.110/08 has been exhibited as Ex. DX1 and the IO of the above case titled NCB Vs. Usha & Ors is also Sh Jyothimon/PW11. The above documents have been taken on record from the originals of the above files summoned in the court and the above documents have not been disputed on behalf of DRI.
40. It is observed that though there are some variations in the name, parentage and address etc of the above witness cited in these three cases, but there are also strange similarities in the particulars of the above witness. The particulars of the above witness in these three cases are being mentioned herein below:
1. In this case of DRI Vs. Nishan Singh and Anr:
Sh Bob Kang, S/o Late B. Kang R/o 495, Hardev Puri, Gautam Nagar, New Delhi SC No. 18A/06 DRI Vs Nishan Singh & Anr.25
2. In case titled NCB Vs. Chhagan Lal & Ors Bobby Kang S/o Sh Biraen Kang R/o 454/A, Near Dispensary, Chirag Delhi, New Delhi-17 Occupation-Sales Executive
3. In case titled NCB Vs. Usha & Ors Sh Bobby Kang (Age 26 years), S/o Sh B. Kangabarn R/o C-1, Ist Floor, Gautam Nagar, New Delhi.
41. It is clear from the above that there are strange similarities between the name and even the initials of the name of father of the above witness and in two of the above cases the witness has also been shown to be a resident of Gautam Nagar, New Delhi, though with a different address. During the pendency of this trial, one application was also moved on behalf of accused persons seeking the comparison of the handwritings and signatures of the public witness cited with the name of Bob Kang or Bobby Kang in these three cases as it was alleged that the above panchnamas and the other documents of these three cases are having similar signatures and handwritings of the above witness. The above application dated 03.11.2011, was allowed vide order dated 21.10.2011 of this court and all the original documents of these three cases having the handwriting and signatures of the witness cited in the said cases in the above name of Bob Kang or Bobby Kang SC No. 18A/06 DRI Vs Nishan Singh & Anr.
26were sent to FSL Rohini for opinion and vide FSL report dated 05.01.2012, it was opined by the FSL authorities that there are significant and sufficient indications observed in the handwriting pattern of the signatures appearing on all these documents, on their comparison inter-se, and the signatures appearing in the above name on all these documents of the above three cases have been written by one and the same person. There is no challenge to the above report of the FSL made on behalf of the prosecution nor any request was made to the court to summon or call the handwriting expert concerned for cross examination on the above aspect and hence the above report can be considered by this court as it is, as the same is per-se admissible in evidence U/s 293 Cr.PC and was given on a direction given by the court itself.
42. Though the opinion of such an expert is not conclusive or binding on the court, but it has certainly got relevance in consideration of the facts connected with the same. The report does not state that the signatures may or might be of the same person or appear to be similar, but it states in clear terms that all the signatures on the above documents are of one and the same person. This leads this court only to the inference that all these signatures have been put by one and the same person, who can either be a stock witness of the DRI cited in different cases with slight variations in his name and SC No. 18A/06 DRI Vs Nishan Singh & Anr.
27other particulars, to prevent the detection of his identity, or he may be a fake person cited in all these cases with an assumed name. The possibility of the above witness named Bob Kang or Bobby Kang being a fake and assumed person is much more because the prosecution, i.e. DRI in this case and the NCB in the other two cases, could not secure the presence of the above witness in any of these three cases and this submission of Ld defence counsel could not be refuted or challenged on behalf of the DRI.
43. It cannot merely be a coincidence that all the three different addresses given by the above witness have been found to be not traceable or not existing and this strengthens the probability that no such witness by the above names ever existed at any of these addresses and these were only the assumed names introduced into the prosecution story by the Investigating Officer, apparently to strengthen the prosecution case by giving it the colour of joining of the public and independent witnesses to corroborate their claim of seizure of the contraband substance. The above conclusion also forces this court to doubt the existence and participation of the other public witness Sh Anil Kumar at the time of seizure and search proceedings etc as he was also subsequently not found to be traceable or existing at his given address and could not be examined on record. The effect of the above SC No. 18A/06 DRI Vs Nishan Singh & Anr.
28manipulation of the proceedings made by the IO/PW2 not only affects his own credibility on the aspect of joining of the independent witnesses, but it goes to the root of the case and has proved very much damaging for the credibility of the entire prosecution case. Though on behalf of DRI reliance has been placed upon judgments in cases of Deepak Ghanshyam Naik Vs. State of Maharashtra, 1989 Crl. L. J. 1181 and Joseph Fernandez Vs. State of Goa, 2002 Drug Cases, 22 (SC), in support of their argument that a witness does not loses his independence and cannot be termed to be a stock witness merely because of his examination in one or two cases, but the above judgments are found to be not applicable in this case as in this case the two panch witnesses appear to this court to be the fake witnesses cited in the list of witnesses of the prosecution.
44. Besides the above aspect of public witnesses, the manipulation of some other documents and proceedings is also visible from the record. As per the prosecution story and the depositions made by the IO/PW2, after their apprehension both the accused persons, alongwith the above truck, were brought to the parking area of their office in the CGO Complex and there the notices U/s 50 of the NDPS Act were served upon both the accused persons, in the presence of the above public witnesses. It is also the prosecution case that the replies of the accused no.1 & 2 SC No. 18A/06 DRI Vs Nishan Singh & Anr.
29on their respective notices were written by PW3 Sh Roshan Lal and PW9 Sh Ram Kanwar respectively in Hindi language and the contents of the same were also read over to the accused persons by the above two witnesses as the accused persons did not know to write in Hindi and they had only signed on the above notices in Punjabi/Gurmukhi language. The notices Ex. PW2/A and PW2/B given to the accused persons are also having the above replies of the accused persons written by and in the handwriting of above witnesses and the notices are claimed to have been written by the IO/PW2 himself.
45. However, when PW3 Sh Roshan Lal was examined in this court, he has not even uttered a word regarding his presence in the parking area of the above DRI building at the time when the above notice Ex. PW2/A was served upon or given to the accused no.1 Nishan Singh. He is also silent regarding writing of the above reply of the accused by him on the above notice given to the above accused. Even PW9 Sh Ram Kanwar, who claims to have arrived in the above parking area at the time of giving of the notice Ex. PW2/B by the IO/PW2 to the accused no.2 Punjab Singh, nowhere speaks about the presence of PW3 Sh Roshan Lal or even of the accused no.1 at that place at the said time, though as per the depositions made by the IO and the prosecution case set up in the complaint both the accused persons, alongwith the public witnesses and other members SC No. 18A/06 DRI Vs Nishan Singh & Anr.
30of DRI, were present in the parking area when the above notices were given to both of them together. The silence of PW3 regarding his presence at the above place, i.e. the parking area on the ground floor of the DRI building where the above notice Ex. PW2/A was given to the accused no.1, and also the silence on the aspect that he had written the above reply of the accused on the said notice is also a strong circumstance which makes this court to believe that no such notice as Ex. PW2/A was given to the accused at the said place nor any such reply of the above accused was written at the said time and the above is a document manipulated by the IO/PW2 subsequently.
46. Even regarding the notice Ex. PW2/B given to the accused no.2 Punjab Singh, the manipulation is apparently visible from the document itself as though this notice was allegedly given to the above accused in the above parking area at around 6.00 PM on 02.08.2005 and the reply of the accused was written on the same then and there, but the date 03.08.2005 has been put by the accused no.2 below his signatures appearing on his reply regarding the search of his person and vehicle by any officer of DRI and even PW9 Sh Ram Kanwar has himself put the date 03.08.2005 with his signatures put below the endorsement made by him that he had written the reply of the accused no.2 on the above notice on the request of the accused himself and the same was read over by him to the accused and the accused had SC No. 18A/06 DRI Vs Nishan Singh & Anr.
31put his signatures thereon only after finding its contents to be correct. However, their endorsement made by PW9 on the above document is not found to be signed by the accused, though the signatures of accused are there below his reply to the notice. The above date of 03.08.2005 appearing with the signatures of the accused no.2 and PW9 is a clear evidence of the fact that the above document has come into existence only on 03.08.2005 and not on 02.08.2005, which is the date of apprehension of the accused and of conduction of the entire search and seizure proceedings. Therefore, though the above notices U/s 50 of the NDPS Act were not legally required to be given to the accused persons in this case as the recovery of the contraband substance was not effected there 'persons' but from the above vehicle or conveyance found in their possession, but the credibility of the evidence of the prosecution and the authenticity of the above documents stands seriously affected as both the above documents appear to the court to have been manipulated and fabricated subsequently.
47. The next manipulation of the proceedings and documents reflected from the evidence led on record is with regard to the issuance of the seal of DRI used in this case in sealing of the parcels of the samples as well as the case property. The above seal was issued to the IO/PW2 by PW12 Sh S. K. Sharma, SIO, who was the custodian SC No. 18A/06 DRI Vs Nishan Singh & Anr.
32of the above seal and according to the depositions of both the above witnesses, the seal was issued vide entry Ex. PW2/Z6 of the seal movement register, which stands duly proved on record from their depositions as the above register was being maintained and was placed under the custody of PW12 and the relevant entry is found signed by both of them, i.e. PW12 and the IO/PW2.
48. A perusal of the above entry shows the date of issuance of the seal as well as of its return to be the same, i.e. 02.08.2005, which is the date of the seizure itself. However, no time of issuance of the above seal or its return is mentioned in the above entry. As per the IO/PW2, the above seal was got issued by him prior to the seizure, but after reaching in the parking area of the DRI building. Though he has not been able to tell the specific time of taking of the above seal, but it is visible from his statement made on record that it was some time after 5.00 PM when they had reached in the above parking area. On the other hand, according to PW12, he had issued the above seal to the IO/PW2 between 11.00 AM to 12.00 Noon, i.e. prior to the leaving of the DRI office by the members of the DRI team for the above raid and seizure. Admittedly, as per both the above witnesses, the seal was returned back after conclusion of the panchnama proceedings on the same day and as per the panchnama Ex. PW2/C, the above proceedings had concluded at around 11.30 SC No. 18A/06 DRI Vs Nishan Singh & Anr.
33PM on 02.08.2005 and hence the seal might have been returned back between 11.30 PM to 12.00 Mid Night.
49. However, on a perusal of the above entry Ex. PW2/Z6 of the seal movement register, it is found that as per column no.4 of the above entry, the above seal was required for the purpose of proceedings in seizure of 19.138 Kgs of heroin, which is the net weight of the heroin recovered in the above 19 packets from the above truck of the accused persons. It has been pointed out by Ld defence counsel that it is only the above entry no.12 Ex. PW2/Z6 of the seal movement register which contains the exact weight of the seized contraband substance, whereas all the other entries appearing on the page on which the above entry is contained are having written that the purpose of issuance of the above seal in the other cases was the 'expected' seizure of drugs. It is clear from the above that the above entry Ex. PW2/Z6 was not made in the said register prior to the seizure or weightment of the contraband substance and rather the same was made in the said register only after the weightment process of all the packets has already been concluded and the panchnama proceedings were over. It is only because of this reason that the exact net weight of the above seized heroin is found mentioned in the above entry. Hence, I do agree with the submission being made by the Ld defence counsel that the above document was also SC No. 18A/06 DRI Vs Nishan Singh & Anr.
34subsequently fabricated and the above contradiction in the statements of the above witnesses, coupled with the above purpose of issuance of the seal mentioned in the above document showing the exact net weight of the seized contraband substance of this case, lead this court to the only inference that the above document was also manipulated subsequently and no such seal of DRI was ever issued to the IO/PW2 prior to the above seizure or expecting the said seizure.
50. Again, according to the IO/PW2 as well as PW12, after the conclusion of the panchnama proceedings, not only the above seal of DRI was returned back to PW12, but one of the two sets of the sealed 19 sample parcels was also handed over to him by the IO/PW2 for keeping the same in safe custody and the same were got deposited with the CRCL only on 04.08.2005, through the IO/PW2 himself. Since the seal as well as the above sealed sample parcels were both put in the custody of PW12 Sh S. K. Sharma, there was every possibility of tampering of the sample parcels by him and it defeats the very purpose of maintaining of the records for the issuance of or return etc of the seal and also for placing the sealed parcels in the custody of some other person then the seizing officer himself.
51. There are also some discrepancies in the evidence SC No. 18A/06 DRI Vs Nishan Singh & Anr.
35of the prosecution regarding the safe custody of the parcels of the case property deposited in the Valuable Godown of the Customs House, in custody of PW5 Sh R. S. Kashyap. The parcels of the case property were also deposited there by the IO/PW2 himself on 04.08.2005 vide inventory/deposit memo Ex. PW2/W and prior to that the same were placed by him in the custody of PW8 Sh Rajesh Kumar Aggarwal, Assistant Director. However, it has been admitted by PW8 that except the seals affixed on the parcels of the case property, he has no means to check or compare the veracity of the above seals as no sample seal or facsimile thereof was made available to him by the IO/PW2 for comparison. No sample seal was also deposited by the IO/PW2 with the parcels of the case property in the Valuable Godown and even facsimile of the DRI seal used in this case was not found affixed on the above deposit memo Ex. PW2/W. PW5 has also stated on record that he has only checked the condition of the seals from the seals affixed on the parcels itself and he was not made available any sample seal or facsimile thereof for comparison. The above are also lacunae in the story of the prosecution regarding the safe custody of the case property and parcels and though independently these might not have been a ground for the acquittal of the accused persons, but coupled with the other manipulations and fabrications appearing on record, these certainly add to the troubles of the prosecution and prove to be additional holes in the SC No. 18A/06 DRI Vs Nishan Singh & Anr.
36credibility and acceptability of the same.
52. Further, the prosecution has also relied upon the alleged statements of the accused persons recorded U/s 67 of the NDPS Act, which have been proved on record as Ex. PW2/L and PW9/A respectively. The above statements have been tendered in pursuance of the summons served upon the accused persons under the above provisions and the summons have been proved on record as Ex. PW2/K and PW11/A respectively. Both the above statements of the above two accused have been recorded in Hindi language and the statement Ex. PW2/L of the accused no.1 has allegedly been recorded by PW3 Sh Roshan Lal, in the presence of the IO/PW2 who had served the above summons, and the statement of accused no.2 has been recorded in the handwriting of PW9 Sh Ram Kanwar, before PW11 Sh Jyothimon who had served the above summons Ex. PW11/A upon the said accused.
53. However, when the above documents are scrutinized in the light of the depositions made by all the concerned witnesses on record, it transpires to this court that there is every possibility of fabrication of the above statements by and at the instance of the IO/PW2 and the same cannot be believed by this court to corroborate the other evidence led by the prosecution record regarding the possession of the above contraband substance by the accused persons or the same being a conscious possession SC No. 18A/06 DRI Vs Nishan Singh & Anr.
37because of the various reasons, though these statements are found to be containing various personal details of the accused persons, which are not claimed to be incorrect by any of the accused.
54. Firstly, regarding the above statements, it is observed that both these statements have been recorded in Hindi language whereas both the accused persons were 'Sikh' persons and there is nothing on record to show or establish that any of them was conversant in the written Hindi language, though it has come on record that they were able to speak in Hindi. Both the accused persons have specifically claimed during the trial as well as in the course of recording of their statements U/s 313 Cr. PC that they were conversant only in Punjabi/Gurmukhi language and they both were also able to write in the above language, but there is no justification on record as to why their above statements have not been written or got written in a language known to the accused persons, i.e. the Punjabi or Gurmukhi language. PW3 Sh Roshan Lal, who has recorded the above statement Ex. PW2/L of the accused no.1, during his cross examination has clearly admitted that the accused Nishan Singh was knowing Punjabi language and he cannot say as to whether the above accused was able to read Hindi language or not. He has also stated that he himself was not only able to understand the Punjabi language but he could also write little much of Punjabi SC No. 18A/06 DRI Vs Nishan Singh & Anr.
38language and he has further stated specifically that if he was given time, he could also have written the above statement in Punjabi/Gurmukhi language. In view of the above admissions made by this witness, there is no justification as to why the IO/PW2 had not got written the above statement Ex. PW2/L of this accused in Punjabi language, which was the language known to the accused and well understood by him, so as to really apprise him of the contents thereof, which are not only containing his confession regarding their apprehension with the above contraband substance but also a conscious possession of the said substance. Even the IO/PW2 himself has not been able to give any satisfactory explanation on this aspect and it has also come on record in his statement and also the statement of PW3 that they did not even try to ascertain the languages known to the above accused.
55. Again, though PW3 has not told any specific time of writing of the above statement, but the IO/PW2 has stated on record that he had served the above summons for recording the above statement of the above accused and for appearance of the accused before him at 12.15 AM on 03.08.2005, i.e. in the night of 02-03.08.2005. He has also stated that the above accused was present with him in connection with the above statement for about 3 hours therefrom. On being asked by Ld defence counsel, he could remember whether he had suggested the accused to take some SC No. 18A/06 DRI Vs Nishan Singh & Anr.
39rest as it was midnight as he might have tired or even whether he had served any food to the accused or offered him any mattress or pillow etc to sleep.
56. Even regarding the confessional statement Ex. PW9/A of the accused no.2, apart from the above language issue, it is also observed that there are serious contradictions in the statements of PW9 and PW11 regarding the timing of recording of the same. As per PW9, the above statement of accused no.2 was recorded at around 12.15 AM on 03.08.2005 and the above accused was relieved after recording of his statement at around 2.00 AM. On the other hand, PW11 Sh Jyothimon has claimed that when the accused had appeared before him in the night, in response to the summons Ex. PW11/A, the above accused appeared to be tired and hence he had asked him to relax and take rest and his statement was recorded on the next morning, i.e. the morning of 03.08.2005, at around 10.00 AM. However, he has also admitted that the above facts were nowhere taken on record and even the timing of recording of the above statement was nowhere reflected in the said statement. Again, it is also not believable that the accused no.2 will himself approach PW9 for recording of his above statement, as deposed by PW9. Further, though the date 03.08.2005 has also been put by PW11 on summons Ex. PW11/A of the above accused, though it is deposed by him that the same were given on 02.08.2005 for SC No. 18A/06 DRI Vs Nishan Singh & Anr.
40appearance of the above accused at 12.15 AM before him.
57. The accused persons were apprehended in this case around 4.00 PM on 02.08.2005 and thereafter they were brought to the office of the DRI and as per the evidence led on record the proceedings had continued till the early morning of 03.08.2005 because of the above long stretched investigation and proceedings, the accused could never have been in a proper frame of mind to make any such confession regarding their involvement in this case. Hence, even if the above statements made by the accused persons are found to be containing some correct details of the accused persons and their family members etc, the same cannot be accepted as legally valid confessional statements of the accused persons as in view of the above circumstances and discussions, this court has serious doubts if the above confessional statements were made by the accused persons voluntarily and with their free will and consent, as claimed by the prosecution.
58. Though Ld SPP for DRI has relied upon the judgments in cases of M. Prabhu Lal Vs. A.D. DRI 2003(3) JCC 1631 SC and Rehmatulla Vs. NCB 2008(3) JCC (Narcotics) 23, in support of his argument that the above statements U/s 67 of the NDPS Act made by the accused persons should be believed and acted upon being their voluntary statements, but the same are not found to be applicable to SC No. 18A/06 DRI Vs Nishan Singh & Anr.
41the facts and circumstances of this case as various documents of this case, including the above statements, appear to the court to be the result of fabrication and manipulation. Judgment in case of Customs Vs. Konan Jean Crl. Appeal No.1098 of 2011 has also been relied upon by the prosecution in this regard, but the same is also held to be not applicable in this case for the same reasons.
59. It has also been submitted by Ld defence counsel that both the accused persons had subsequently retracted their above statements U/s 67 of the NDPS Act vide their retraction applications sent to this court through the Jail Superintendent. The retraction applications of the accused persons have also been brought on record as Ex. DX and DY respectively during the course of recording of their statements U/s 313 Cr. PC. Though reliance has been placed on behalf of DRI upon a judgment in case of Kanhaiya Lal Vs. Union of India 2008 (1) JCC (Narcotics) 23 that the above retraction applications of the accused persons cannot be considered by this court as the same have not been proved as per the evidence Act, but it is no more necessary in view of some subsequent judgments of the Hon'ble Supreme Court itself in cases Francis Stanley @ Stalin Vs. Investigating Officer NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124 and Union of India Vs. Bal Mukund & Ors 2009 (2) Crimes 171 (SC) etc, wherein it has been held that though a retracted statement U/s 67 of SC No. 18A/06 DRI Vs Nishan Singh & Anr.
42the NDPS Act is a weak piece of evidence, but it has no where been laid down that such a retraction placed on record should also be proved as per the provisions of Evidence Act.
60. It is observed on perusal of the record that the above retraction applications were received in this court on 18.08.2005, i.e. after about 15 days of making of the above statements. However, these retraction application are found to have been written/drafted on 09.08.2005 and the same are only bearing the thumb impressions of the accused persons and have been drafted by the jail visiting advocate and are also found to be signed by him. It is found that both these retraction applications have been drafted in a stereotyped manner and are containing a vague and general denial of the accused persons and a submission regarding their having been forced to sign on a number of documents under physical and mental torture in the DRI office. Since the above retraction applications are not found to be specific and only bear the thumb impressions of the accused persons and further that the same have been drafted by the jail visiting advocate, the same are outrightly discarded and cannot be given any weight.
61. Besides the above, there are also various other factors which make the prosecution story and the evidence regarding the recovery of the above contraband substance SC No. 18A/06 DRI Vs Nishan Singh & Anr.
43from the possession of the accused persons or from the above vehicle found in their possession to be doubtful. As stated above, besides the above two public witnesses which appear to the court to be the fake persons cited in the list, no other member of the raiding team of DRI has been examined on record, except the IO/PW2 Sh R.Roy himself. Though it has been argued on behalf of DRI and also accepted by the court that the conviction in such a case can be based upon the sole testimony of the IO/PW2, but it is also required that his testimony brought on record should have been free from any doubts and should have inspired confidence, which is not in the present case. Rather, the evidence led on record shows a grave and serious manipulation of the documents and proceedings conducted by him or the other officers of DRI, as also discussed above. Hence, in the absence of any satisfactory corroborative evidence, oral or documentary, the sole testimony of the IO/PW2 in this case regarding the seizure of the above contraband substance from the possession of the accused persons is not found to be inspiring any confidence and fit to be made the basis of conviction of the accused persons in a serious case like the present one under the NDPS Act where the minimum punishment prescribed is the rigorous imprisonment for a period of ten years and a fine of Rs one lakh.
62. As also discussed above, according to the SC No. 18A/06 DRI Vs Nishan Singh & Anr.
44prosecution story the above two public witnesses were joined only after the members of the raiding team had reached the parking area of their building after the apprehension of the accused persons. No public or independent person was joined in this case prior to the leaving of the DRI team for the spot or even at the spot of apprehension of the accused persons, though it has been admitted by the IO/PW2 on record that they had spent about 3 hours there while keeping a watch on the above truck parked there and there was more than sufficient time available with them to join any independent witness there. Though the IO/PW2 has vaguely stated that he had requested some passersby there to join the proceedings, but his above claim and depositions do not inspire any confidence as he himself has admitted that neither he had stopped any cyclist nor he had requested any person from the Gurudwara situated only at a distance of about 5-10 feet from that place to join the proceedings.
63. Further, what to say of examining any other member of the raiding team on record, the names of the other members or the constitution of the above team has also remained a mystery as none of the documents prepared regarding the search and seizure proceedings is found to be signed by any such other member of DRI nor the IO/PW2 has even been able to tell on record the names of such members. The conduct of the IO/PW2 is also required to be SC No. 18A/06 DRI Vs Nishan Singh & Anr.
45commented upon here as he has almost avoided giving reply to many material questions by simply stating that he does not remember the same now. Though PW11 Sh Jyothimon has stated on record that one of the members of the raiding team was Sh D.P.Saxena, besides the IO/PW2 Sh R.Roy, but his above depositions cannot be given much weight as he himself was not a member of the raiding team and the IO/PW2 has not made any such claim regarding Sh D.P.Saxena being with him in the above raiding team and further the name of Sh D.P.Saxena is even not cited in the list of the prosecution witnesses.
64. The defence evidence led on record by the accused persons is not found to be convincing or inspiring any confidence as the only witness/DW1 Sh Preetpal Singh's depositions are not found to be corroborated by any other oral or documentary evidence. No bilty or invoice etc. has also been brought on record in support of the defence of the accused persons and the depositions of DW1 that on the relevant day the above truck was actually brought from Pubjab to Delhi being loaded with fruits and vegetables and the same was first taken by the DRI Officers from the spot to the Azadpur Mandi for unloading thereof. However, the weakness of the defence cannot, in any way, be made a ground for conviction of the accused and it is always for the prosecution itself to prove its case against the accused persons beyond reasonable doubts, which it has SC No. 18A/06 DRI Vs Nishan Singh & Anr.
46failed to do so in the present case.
65. It has also been argued on behalf of DRI that there are presumptions U/s 35 and 54 of the NDPS Act, of culpable mental state against the accused persons because of their being in possession of the above contraband substance, and it was for the accused persons to rebut the above presumptions and to explain their possession of the above contraband substance and to prove on record that their possession of the said substance was not a conscious possession. Judgment in case of T.Shankar Prasad Vs. State of A. P. 2004 (1) JCC 200 has also been relied upon in this regard, though the above judgment is in a case pertaining to IPC and the Prevention of Corruption Act. However, in view of the prepositions of law laid down in many cases under the NDPS Act itself, it is now well settled that the initial onus or burden of proving its case beyond reasonable doubts is always upon the prosecution and even the presumptions contained under the above Sections can operate only after that initial burden has been discharged. A reference in this regard can be made to a judgment of the Hon'ble Supreme Court in the celebrated case of Noor Aga Vs State of Punjab & Anr. 2008(3) JCC (Narcotics) 135, wherein the following observations were made by their Lordships:
"Section 35 and 54 of the Act, no doubt, raise presumptions with regard SC No. 18A/06 DRI Vs Nishan Singh & Anr.47
to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
66. In view of the above discussion, the case of the prosecution fails and it is held that the charges framed against the accused persons have not been proved on record beyond reasonable doubts. Both the accused persons are accordingly acquitted of the above charges. They both are in judicial custody. Let the Jail Superintendent be directed to immediately release them from the custody, if they are not wanted to be detained in any other case.
SC No. 18A/06 DRI Vs Nishan Singh & Anr.48
Their bonds U/s 437A Cr. PC have already been furnished on record.
67. The case property, i.e. the above contraband substance and its packings etc, be also confiscated and disposed of as per law and the seized/impounded truck be released to its registered owner, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment.
File be consigned to record room.
Announced in the open
court on 20.12.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 18A/06 DRI Vs Nishan Singh & Anr.