Sc No. 33A/08 Dri vs Ravinder Kumar & Anr. on 25 April, 2014

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Delhi District Court

Sc No. 33A/08 Dri vs Ravinder Kumar & Anr. on 25 April, 2014

IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI

Directorate of Revenue Intelligence
Head Quarters, New Delhi
Through Sh Jyothimon Dethan, Intelligence Officer

V E R S U S

1. Ravinder Kumar
S/o Sh Prem Nath
R/o House No. 10, East Extension
Village Enclave, Trikuta Nagar
Friends Colony, Jammu, J&K.

2. Rakesh Kumar Mehra
S/o Late Sh Gyan Chand
R/o House No. 279, Prem Nagar
Jogi Gate, Jammu, J&K.

SC No.: 33A/08
U/S : 21/25/29 NDPS Act
Computer ID No. 02403R0800512008

ORDER ON SENTENCE

Present: Ms Mala Sharma SPP for DRI.
Both the convicts in JC with Sh Raj Tilak
Amicus Curiae.

After having convicted both the accused for the
offences punishable U/S 29 as well as Section 21(c) read
with Section 29 of the NDPS Act vide my judgment dated

SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.
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25.04.2014, arguments have been heard today as advanced
by Sh Raj Tilak, Ld Amicus Curiae for the convicts, as
well as the convicts in person, on the point of sentence
to be awarded to the convicts.

2. The offence punishable U/S 21(c) of the NDPS
Act carries a minimum term of rigorous imprisonment for
a period of 10 years extending up to 20 years and also a
fine of not less than Rs 1 Lac and extending up to Rs 2
Lac and even the other offence punishable U/S 29 of the
NDPS Act proved against the convicts carries the same
punishment.

3. It has been submitted on behalf of the
prosecution that the maximum terms of imprisonment and
fine be awarded to the convicts and they do not deserve
any leniency from this court as they have been found
guilty of possessing a huge commercial quantity of heroin
weighing around 20 KG and even as per the purity, the
weight of the above heroin comes to around 11.500 KG, as
against the prescribed commercial quantity of 250 Grams.

4. On the other hand, it has been submitted on
behalf of the convicts that a lenient view be taken in
the matter and the minimum sentence of imprisonment and
fine be awarded to them as they both are in custody for
last about six and half years. It is submitted by the

SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.
3

convict Ravinder Kumar that he is aged around 39-40
years and is having the responsibility to maintain his
wife, two younger brothers and one younger sister as his
parents have already expired and his one elder brother
is residing separately. It is submitted the convict
Rakesh Kumar Mehra that he is aged around 46 years and
he is having the liability to maintain his wife, who is
ill and presently hospitalized, and also one minor son
and one minor daughter and as his other son had fled
away from home and married against their wishes and his
other daughter is also married.

5. I have thoughtfully considered the above
submissions being advanced on the point of sentence. As
per the evidence brought during the trial, both the
convicts were only acting as carriers of narcotic drugs
for some petty monetary considerations and they
themselves are not alleged to be running any drug racket
on their own. They are also from poor financial
backgrounds and as per their statements on record they
had adopted the above illegal profession out of
compulsions of their poverty.

6. Hence, keeping in view the age, family
background and all other attending circumstances, both
the convicts are being awarded the minimum sentence of
rigorous imprisonment for a period of 10 years each and a

SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.
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fine of Rs 1 Lac each for the above said offences. In
case of non payment of fine they shall further undergo
simple imprisonment for a period of six months each.
Both the sentences shall run concurrently and the period
of custody already undergone by both the convicts is
allowed to be set off in terms of the provisions of
Section 428 Cr.P.C. Fine has not been paid. Let them to
undergo the above sentence as per law. A copy of the
judgment and the order on sentence be supplied to both
the convicts free of cost.

7. The case property, i.e. the seized contraband
substance and the vehicle etc., be also confiscated and
disposed of as per law, after the expiry of the period of
limitation for filing of the appeal and subject to the
outcome of any appeal to be filed against this judgment
and order on sentence.

Announced in the open
court on 30.04.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi

SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.
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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
Head Quarters, New Delhi
Through Sh Jyothimon Dethan, Intelligence Officer

V E R S U S

1. Ravinder Kumar
S/o Sh Prem Nath
R/o House No. 10, East Extension
Village Enclave, Trikuta Nagar
Friends Colony, Jammu, J&K.

2. Rakesh Kumar Mehra
S/o Late Sh Gyan Chand
R/o House No. 279, Prem Nagar
Jogi Gate, Jammu, J&K.

SC No.: 33A/08
U/S : 21/25/29 NDPS Act
Computer ID No. 02403R0800512008

Date of institution : 22.05.2008
Date of reserving judgment : 19.04.2014
Date of pronouncement of judgment : 25.04.2014
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 SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

Revenue Intelligence, Head Quarters, New Delhi (hereinafter referred to as DRI) through Sh Jyothimon Dethan, Intelligence Officer, against both the above accused persons for commission of the offences punishable U/S 21, 25 and 29 of the NDPS Act, 1985.

2. The facts of the case, in brief, are that on 25.11.2007 at about 07:00 AM, PW2 Sh Yogesh Kumar Chaudhary had received a secret information from some reliable source that a white colour Maruti 800 car bearing registration no. JK 02G 4126 and having atleast two male occupants would cross the Singhu Border on GT Karnal Road and enter Delhi between 09:30 AM to 10:30 AM on that day and some narcotic drugs would be concealed in that car. PW2 had reduced the said information in writing as Ex. PW2/A and had put up the same before his senior officer/PW5 Sh Pankaj.K.Singh, who after having discussions with his senior officers had directed the IO/PW8 Sh Jyothimon for the formation of a team of officers to reach at the spot and to take appropriate action in the matter immediately.

3. It is alleged that based on the said information, two public witnesses were called in the parking area of the office of DRI situated in the Drum Shape Building, IP Bhawan, IP Estate, New Delhi and they were apprised about the above information and made to SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

join the raiding team and the team of DRI Officers, accompanied by two panch witnesses, had reached the above Singhu Border and had started keeping a watch on the vehicles entering into Delhi from the above border from 9 AM onwards. At around 10:15 AM, one white colour Maruti 800 car bearing the above registration number was seen entering into Delhi and the said car was made to stop by giving a signal. It was found to be occupied by three persons and two male persons were found sitting on the front seat of the car and one female was sitting on the back seat of the car. The DRI officials had introduced themselves to the three occupants of the car and on the inquiry, the identity of the person driving the said car was revealed as the accused no. 1 Ravinder Kumar, the identity of the person sitting on his adjoining seat was revealed as the accused no. 2 Rakesh Kumar Mehra, both residents of Jammu, J&K, and the identity of the third female occupant of the car was revealed as one Ms Sharifa Bibi, a resident of Sri Nagar, J&K. It was also revealed that the above car belonged to accused no. 1. The IO/PW8 had also introduced the public witnesses to the occupants of the car and then the occupants of the car were apprised about the above secret information available with the DRI team and they were asked as to whether they were carrying any narcotic drugs on their persons or in their above car, to which all of them had replied in negative. The IO/PW8 had then informed them that in view SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

of the above specific information, their persons as well as the above vehicle were required to be searched and since the above place, being a busy highway having heavy traffic, was not found suitable for conducting the above searches, all the three occupants of the vehicle, alongwith their above vehicle and the two panch witnesses, were escorted to the parking area of the above building of DRI Office.

4. It is further alleged that after reaching there, the IO/PW8 had also called a female officer of DRI, i.e. PW6 Ms Poonam Aggarwal, and had served separate written notices U/S 50 of the NDPS Act Ex. PW8/P, PW8/Q and PW6/A respectively upon the above three occupants of the car while explaining them their legal rights of being searched in the presence of a Gazetted officer or a Magistrate, but vide their written replies given on the said notices itself, all of them had refused to exercise their above rights. The replies of accused no. 1 and 2 were recorded by them in their own handwritings while the reply of Ms Sharifa Bibi was recorded on her notice by accused no. 1 on her request. The above Ms Sharifa Bibi had offered her personal search to be conducted by any female officer of DRI, while both the accused persons had offered the search of their persons as well as of the above car to be conducted by any officer of DRI. The above notices were also signed by the two panch SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

witnesses, in token of the same having being served in their presence.

5. It is further alleged in the complaint that thereafter, the examination of the above car was conducted and the same had resulted into the recovery of 11 cloth packets stuffed inside a speaker box lying in the dickey of the said car and also 9 other white cloth packets kept in one white HDPE bag, which was concealed in the bonnet of the said car. The above recovered cloth packets were found to be bearing four different types of rubber stamp markings. Besides the above 20 cloth packets, 8 documents, which included the photocopy of the driving license of accused no. 1 and one ticket of Toll Plaza, Karnal, Haryana, of the said car, were also recovered from the dashboard of the car. All the above recovered 20 cloth packets, alongwith the above speaker box, HDPE bag and documents, were then taken to the 7th floor office of the DRI situated in the said building, alongwith three occupants of the car and the two panch witnesses, for the detailed examinations. On checking, each cloth packet was found to contain one transparent polythene packet, which was further found to contain some off white colour granular substance giving a sharp pungent smell. The recovered packets were marked as W-1 to W-12, X-1 to X-2, Y-1 to Y-4 and Z-1 to Z-2, as per the similarity of the rubber stamp markings appearing on SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

the cloths of these packets. A small quantity of the off white colour granular substance contained in each of these packets was tested separately by the IO/PW8 with the help of a Drug Detection Kit and the same gave positive results for heroin. The gross weight of the recovered 20 packets was found to be 20.474 KG and the net weight of the heroin contained therein to be 20.073 KG. The recovered heroin, alongwith its packings, the above speaker box, HDPE bag, the above car and the documents recovered therefrom were all seized for violation of the provisions of the NDPS Act.

6. Thereafter, the IO/PW8 had drawn two representative samples of 5 Grams each from each of the above recovered packets and these samples were kept in separate zip lock small polythene packets and the same were correspondingly marked as W-1-A to W-12-A, X-1-A to X-2-A, Y-1-A to Y-4-A and Z-1-A to Z-2-A and W-1-B to W-12-B, X-1-B to X-2-B, Y-1-B to Y-4-B and Z-1-B to Z-2-B and these polythenes were then kept in separate brown colour paper envelopes and these were also similarly marked and then sealed with the DRI Seal No. 10 over a paper slip bearing the dated signatures of the witnesses, the IO/PW8, both the accused as well as the above Ms Sharifa Bibi. The remaining heroin of the said packets was put back in the same packings and these packets were also converted into cloth parcels and were given markings SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

of the original packets. These sealed parcels of remaining heroin, as well as the above HDPE bag, were then kept in a steel trunk, which was wrapped with a white cloth and also sealed with the above DRI seal and similar paper slips containing the signatures of the above persons were also pasted thereon. A separate cloth parcel of the above speaker box was also prepared in the same manner. Though nothing incriminating was recovered in the personal search of the accused no. 1 and the above Ms Sharifa Bibi, but one mobile phone make Nokia was recovered in the personal search of accused no. 2 and the same, alongwith its SIM card, was also resumed for the purposes of the investigation. The IO/PW8 had also drawn a detailed panchnama Ex. PW6/B regarding the above proceedings and the contents of the panchnama were read over to all and the same was signed by the two panch witnesses, both the accused persons, PW6 Ms Poonam Aggarwal and the IO/PW8 himself and they all had also signed the above 8 documents recovered from the car, which are Ex. PW6/B-5 to B-12 on record. Photocopies of the above four different types of rubber markings found on the cloth of the said packets were also made as annexures to the said panchnama and the same are Ex. PW6/B-1 to B-4.

7. In response to the summons U/S 67 of the NDPS Act Ex. PW8/A served upon the accused no. 1, he had also SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

allegedly tendered his voluntary statement Ex. PW8/B under the said provisions and therein, besides disclosing his personal and family details, he had admitted their interception from the above place and with the above car and also the entire subsequent proceedings of search, seizure and sealing etc. pertaining to the above recovered heroin. It was disclosed by the above accused, inter-alia, in his above statement that he was doing the business of property dealing at Jammu and he met one Tarsem, who was also a resident of Jammu, and the said Tarsem had called him on 24.11.2007 near the Jewel Chowk, Jammu (written as Jival Chowk in the statement of the above accused as well as in the complaint) and on reaching there, he was introduced to his co-accused Rakesh by above Tarsem and Tarsem asked him to take some goods and to accompany the above co-accused to Delhi. The accused had also disclosed therein that he informed Tarsem that the tyres of his vehicle were not in good condition and on his enquiry about the type of goods to be taken, he was told by Tarsem that he had to accompany his co-accused to Delhi with some illicit articles (nasheela padaarth) and Tarsem also promised to pay him some monetary consideration as fuel expenses and also to get the tyres of his vehicle replaced. The accused further stated in his above statement that accordingly, he had accompanied co-accused Rakesh and reached near the broken bridge, Ukhnoor, where the co-accused got down SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

from the vehicle and returned after collecting two bags from some person at the said place and kept the same in his vehicle and then they both had returned to Jewel Chowk, where his above co-accused had got down from the vehicle, alongwith the above bags, and directed the accused to get his tyres replaced and the co-accused had also paid him an amount of Rs 6,000/- for this purpose and further directed the accused to meet him (co-accused) at about 7 PM on the same day at the Jewel Chowk, after getting the tyres replaced.

8. The accused no. 1 had also disclosed in his above statement that then he got the tyres of his car replaced from Gandhi Nagar and thereafter, he reached at Jewel Chowk in the evening, after purchasing one speaker also from the market of Gandhi Nagar, for which he was paid Rs 500/- by his above co-accused, and the co- accused was already waiting there for him, with the above two bags, and he (co-accused) was also accompanied by a woman and then they all started for Delhi in his above car. It was further disclosed by him that at Gandhi Nagar, he had got filled petrol in his car and the amount thereof was paid by the co-accused and after travelling for about 1 KM from Gandhi Nagar, he stopped his vehicle at a place, where he as well as the co-accused had concealed 11 packets of drugs in the speaker box bought by him and 9 packets of drugs below the bonnet, near the SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

battery, and the said speaker was kept by both of them in the dickey of the car and during the above entire proceedings, the above lady remained seated in the car. He had further stated therein that after concealing the above packets of the contraband in the car in the above manner, they had started for Delhi at about 8:00 PM and it was also disclosed by him therein that they all were apprehended at about 10:00 AM on 25.11.2007, when they all had crossed the Singhu Border in the above vehicle and entered Delhi and he had also admitted the entire search and seizure proceedings of the above contraband substance recovered from the speaker as well as from the bonnet of the car.

9. Similarly, in response to the summons Ex. PW8/C issued to the accused no. 2 Rakesh Kumar Mehra, he had also tendered his statement Ex. PW8/C, (it appears that inadvertently the summons as well as statement of the accused have both been marked as Ex. PW8/C) in which, besides disclosing his personal and family details and admitting the above recovery of contraband substance, he had stated that he was introduced to one Bodhraj by one Purshottam, who used to meet him occasionally in Raghunath Bazar and was running a ladies tailoring shop in Janipur, Muthhi Camp, and the above Bodhraj had told him that if he would deliver Heroin, then he would get good amount of money, and he had agreed to the above SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

proposal of Bodhraj.

10. In his above statement he had also disclosed that on 23.11.2007, Bodhraj had met him and told him that he (accused no. 2) had to take delivery of the Heroin from the adjoining village Jorian near the broken bridge on 24.11.2007 and Bodhraj had further told him that he (Bodhraj) will arrange a vehicle, alongwith driver, for him for taking the contraband to Delhi on 24.11.2007 itself for its onward delivery in Delhi and he was also told by Bodhraj that in the said vehicle, he had to be accompanied by a woman so that nobody gets suspicious. In his above statement he had also disclosed that on 24.11.2007, as per the plan, he had reached at Jewel Chowk, Jammu, at about 4:00 AM, where he found one Maruti car bearing registration No. JK 02G 4126 parked and there he was introduced to his co-accused Ravinder Kumar, who was the driver of the above Maruti car, and one other person was also there, whom he did not know and who left shortly thereafter, and from there they both, i.e., both the accused, had come down to broken bridge, Jorian Village, from where he (accused no. 2) had collected 2 bags containing Heroin from a person and he had also given the physical description of that person in his above statement. It was further stated by him therein that after collecting 20 packets of Heroin contained in the above 2 bags, both of them reached at Jewel Chowk, SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

Jammu, where he (accused no. 2) got down from the vehicle, alongwith the said 2 bags, and Bodhraj gave him Rs 8,000/- for bearing the travel expenses and also promised to pay him Rs 30,000/- further, after the delivery of the contraband at Delhi, and the said amount of Rs 30,000/- was to be shared by him with his above co- accused as well as the above woman who were to accompany him to Delhi. It was further disclosed therein by accused no. 2 that out of the above amount of Rs 8000/-, he had given Rs 6,000/- to accused no. 1 for the purposes of replacement of the tyres and Rs 500/- for the purchase of the speaker box, which amounts were to be adjusted out of the share to be paid to his co-accused.

11. He had also disclosed further in his above statement that he had concealed the above 2 bags of Heroin in the bushes there and as per the directions of Bodhraj, he met his co-accused Ravinder again on 24.11.2007 itself in the evening at about 7:00 PM at Jewel Chowk, where his (accused no. 2's) tenant Ms Sharifa Bibi was also accompanying him for proceeding to Delhi as he had promised to pay her some money after delivery of the goods at Delhi, but he did not inform her about the nature of the goods. They all had then started for Delhi in the above car of his co-accused, alongwith the above 2 bags of Heroin, and at a little distance he had got filed petrol of Rs 1000/- in the car and after SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

travelling some distance therefrom they both, i.e., both the accused, had concealed the above packets of the contraband substance of the above 2 bags in the speaker box as well as in the bonnet of the vehicle, while Ms Sharifa Bibi had remained seated in the car itself and was not aware of the presence and concealment of the above contraband substance in the car.

12. In response to the summons Ex. PW8/D, similar statement of the above Ms Sharifa Bibi Ex. PW3/A was also reduced into writing, on her dictation by PW3 Ms Kanwal Kanta Malhotra of DRI and in the presence of the IO/PW8, and in her above statement she had also deposed regarding her accompanying both the accused persons in the above car and their interception by the DRI Officers and the subsequent proceedings conducted in the case regarding the recovered substance, but she has also stated therein that she was not aware that any Heroin or other contraband substance was being carried by the accused persons or concealed in the above car and she had only accompanied her landlord Rakesh Kumar Mehra, i.e. the accused no. 2, from Jammu to Delhi for some promised monitory consideration.

13. Thereafter, both the accused persons were formally arrested in this case on 26.11.2007 vide arrest memos Ex. PW8/E and Ex. PW8/F respectively and SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

intimations regarding their arrest were given to their family members vide telegrams Ex. PW9/B and PW9/C respectively. They were also got medically examined from RML Hospital vide MLCs Ex. PW8/J and PW8/K, on applications Ex. PW8/G and PW8/H, and were then produced in the court and remanded to custody. The IO/PW8 had also submitted one report U/S 57 of the NDPS Act dated 26.11.2007 Ex. PW2/B, regarding the arrest of the accused persons and the seizure of the above heroin from their possession, to PW1 Sh S.K.Sharma, from who he had also earlier obtained the above DRI seal used in the seizure proceedings vide entry Ex. PW1/A of the seal movement register. The sealed sample parcels were got deposited with CRCL, New Delhi on 26.11.2007 through PW10 Sh Jagdish Rai, vide forwarding letter Ex. PW9/A and alongwith the duplicate test memos, in intact condition and the same were received there by PW11 Sh Jaiveer Singh, who had issued an acknowledgement receipt Ex. PW10/A in token of receiving of the same. The sealed parcels of the case property were also deposited in the Valuable Godown of the New Customs House in intact condition on 27.11.2007 by the IO/PW8 Sh Jyothimon himself and till the above time and after the seizure, the case property and samples are alleged to have remained in the safe custody of PW9 Sh K.K.Sood. The address of the accused no. 1 of Jammu, as given in the photocopy of his driving licence recovered from the car SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

could not be traced out and the other address disclosed by him, which is also of Jammu, was found to be untraceable. The residential house of accused no. 2 at Jammu was also got raided, but nothing incriminating was recovered in the said search.

14. In the CRCL report Ex. PW4/A dated 11.01.2008, all the above 20 samples were reported to have tested positive for the presence of diacetylmorphine (heroin) and the purity thereof was given to be ranging between 45.2% to 69.5%. After recording the statements of the relevant witnesses and completing some other formalities of investigation, a complaint for commission of the offences punishable U/S 21, 25 and 29 of the NDPS Act against the accused no. 1 and U/S 21 and 29 of the NDPS Act against the accused no. 2 was ultimately prepared and filed in the court.

15. The complaint was filed in this court on 22.05.2008 and cognizance of the above offences was taken on the same day. A prime facie case for commission of the offences punishable U/S 29 and Section 21(c) r/w Section 29 of the NDPS Act was also found to be made out against both the accused persons vide order dated 07.03.2009 and charges for the above said offences were also framed against them on the same day.

SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

16. The prosecution in support of its case has examined on record total 12 witnesses and their names and the purpose of examination is being stated herein below:-

17. PW1 Sh S.K.Sharma, a Senior Intelligence Officer of DRI, had issued the above seal of DRI to the IO/PW8 on 25.11.2007 vide entry no. 36 of the seal movement register Ex. PW1/A and the same was returned back to him on the same day, after the conclusion of the seizure proceedings. Subsequently, the report U/S 57 of the NDPS Act Ex. PW1/B dated 26.11.2007 was also submitted to him by the complainant/ PW8 and he had also issued some letter calling for some factual verification report from his counterparts at Jammu.

18. PW2 Sh Yogesh Kumar Chaudhary, an Intelligence Officer of DRI, is the person who had received the above secret intelligence, reduced it into writing as Ex. PW2/A and had put up the same before his official superior/PW5 Sh Pankaj.K.Singh.

19. PW3 Ms Kanwal Kanta Malhotra is a Tax Assistant of DRI at the relevant time and she had only reduced into writing the statement U/S 67 of the NDPS Act Ex. PW3/A of the above Ms Sharifa Bibi.

20. PW4 Sh V.P.Bahuguna, an Assistant Chemical SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

Examiner in CRCL, New Delhi, was allotted the above 20 samples of this case on 26.11.2007 by his Chemical Examiner Sh S.C.Mathur and he had kept the same in the strong room on that day. He has stated that the above samples were taken out for analysis on 08.01.2008 and the same were concluded, under the guidance and supervision of Sh S.C.Mathur vide test report Ex. PW4/A dated 11.01.2008, which was given under the signatures of both of them. He had also given the short report regarding the above analysis in Section II of the test memo Ex. PW4/B.

21. PW5 Sh Pankaj.K.Singh, is the then Deputy Director of DRI, to whom the above secret intelligence Ex. PW2/A was put up and he had directed the IO/PW8 to act upon the same vide his endorsement made in writing on the said information itself.

22. PW6 Ms Poonam Aggarwal, who is also an Intelligence Officer of DRI, had joined the raiding team of DRI in the parking area of the building of their office and she is a witness of the recovery of the above packets of heroin from the car of the accused persons and also the subsequent proceedings of sealing and seizure etc. conducted with regard to the same in their office. She has also conducted the personal search of the Ms Sharifa Bibi and made an endorsement in this SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

regard on the notice Ex. PW6/A U/S 50 of the NDPS Act given to Ms Sharifa Bibi and has further witnessed the panchnama Ex. PW6/B and its annexures Ex. PW6/B-1 to PW6/B-4 and the documents Ex. PW6/B-5 to PW6/B-12 recovered from the said vehicle.

23. PW7 Sh D.B.Sharma, is an Inspector of Customs Department and the then In-charge of the Valuable Godown, New Customs House on 27.11.2008, when the sealed parcels of the case property of this case were deposited there by the IO/PW8 Sh Jyothimon in intact condition. He had made an endorsement on the deposit memo Ex. PW7/A and had also made the entry Ex. PW7/B in the Valuable Godown register in this regard.

24. PW8 Sh Jyothimon Dethan, an Intelligence Officer, is the main Investigating Officer and the complainant of this case and he has broadly deposed on the above lines of the prosecution story regarding the interception of the accused persons from the above place and with the above car and the search and seizure proceedings etc. and has further proved the various documents prepared by him in connection with the same. He has also identified the accused persons as well as the entire case property.

25. PW9 Sh K.K.Sood was working as an Assistant SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

Director in the DRI Office at the relevant time and he has stated that he was handed over the custody of the sealed parcels of the case property as well as of the samples and test memos on 25.11.2007 by the IO/PW8 Sh Jyothimon Dethan and on 26.11.2007 he had sent the samples, alongwith the duplicate test memos, for deposit in CRCL, through Sh Jagdish Rai, Stenographer, vide his forwarding letter Ex. PW9/A and after deposit, the acknowledgement receipt thereof was brought back and shown to him by Sh Jagdish Rai. He has further stated that on 27.11.2007 he had also handed over the sealed parcels of the case property to the IO/PW8 Sh Jyothimon Dethan for deposit thereof in the Valuable Godown and had countersigned the deposit memo/inventory Ex. PW7/A thereof. He had also sent the above intimations Ex. PW9/B and PW9/C regarding the arrest of the accused persons to their family members, issued one letter dated 26.11.2007 Ex. PW9/D to DRI Jammu for some follow up action and also one letter Ex. PW9/E dated 16.01.2008 authorizing Sh Jagdish Rai to collect the test report of the above samples from the CRCL.

26. PW10 Sh Jagdish Rai, a Stenographer of DRI, had taken the above set of 20 sealed sample parcels of this case to CRCL, alongwith the duplicate test memos, vide the above forwarding letter Ex. PW9/A and had deposited the same there vide acknowledgement receipt Ex. PW10/A SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

issued by the CRCL.

27. PW11 Sh Jaiveer Singh, a Lab Assistant of CRCL, had received the above samples, alongwith the test memos, from PW10 on 26.11.2007, on the directions of Sh S.C.Mathur, Chemical Examiner, and had issued the above acknowledgement receipt Ex. PW10/A.

28. PW12 Sh H.R.Sharma is the then Senior Intelligence Officer of DRI Jammu and he had only forwarded some reports and documents vide Ex. PW12/A and PW12/D (collectively), regarding some follow up action taken by Jammu unit of DRI pertaining to the search of the residential houses of the accused persons as well as the search of some other persons. However, nothing incriminating was recovered in the above searches and even no person named or referred by the accused in their statements could be traced out for want of their complete particulars.

29. After the conclusion of the evidence of the prosecution, all the incriminating evidence brought on record by the prosecution was put to both the accused persons and the same was denied by both of them to be incorrect or beyond their knowledge. They both have claimed themselves to be innocent and to have been falsely implicated in this case. They have specifically SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

denied recovery of any heroin from their possession. They both have claimed that they were picked up by the DRI Officers from a place which was about 20 KMs before Chandigarh and the accused Rakesh Kumar Mehra has further claimed that at that time he was on his way to a fabric (handicraft) factory at Sector 14, Mohali. However, they have not specifically denied their signatures on the documents of this case while claiming that the same are obtained forcibly on blank papers and slips. Though they both had opted to lead evidence in their defence, but subsequently, no defence evidence was led by them and their evidence was closed at their requests and after giving few opportunities for the purpose.

30. I have heard the arguments advanced by Sh Satish Aggarwal and Ms Mala Sharma, Ld SPPs for DRI and Sh Raj Tilak, Ld Amicus Curiae for both 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 sides.

31. The first contention of Ld Amicus Curiae is that two public witnesses namely Sh Sandeep Singh and Sh Akshit @ Sonu allegedly joined during the seizure proceedings have not been examined by the prosecution on record and due to their non examination an adverse inference is required to be drawn against the prosecution SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

and the accused are entitled to be acquitted in this case. On this aspect, it is observed that as per the case of the prosecution the above two public witnesses were joined from the nearby area of the above office of the DRI, prior to the leaving of the office by the DRI Officers for the spot, and the above two public witnesses had remained present throughout the proceedings and had witnessed the interception of the accused persons, the search of the above vehicle and the entire seized and sealing proceedings conducted with regard to the recovered substance. The material documents of this case, i.e. the notices U/S 50 of the NDPS Act Ex. PW8/P and PW8/Q and Ex. PW6/A given to the accused persons and the above Ms Sharifa Bibi are also found to be signed by both these public witnesses and they are also signatories to the panchnama Ex. PW6/B, its annexures Ex. PW6/B-1 to PW6-B4 and the other documents Ex. PW6/B-5 to PW6/B-12 recovered from the the said car. There are also specific depositions made by the IO/PW8 as well as Ms Poonam Aggarwal/PW6 regarding the participation of the above two panch witnesses in the proceedings of this case, though PW6 was not able to recollect the names etc. of the said witnesses.

32. Though, as per the record, the prosecution was not able to secure the presence and examine the above two witnesses, but it was not because of any fault of the SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

prosecution and there is no document or other material available on record to show or infer that the prosecution has intentionally withheld or not examined the above two witnesses during the trial. Similarly, there is also no evidence or material to infer that the above two witnesses cited in the prosecution case were fake or assumed witnesses or they never existed in reality. Besides there participation in the proceedings of this case and being witness to the above documents, the IO/PW8 had even recorded the statements U/S 67 of the NDPS Act Ex. PW8/O and PW8/M respectively, in response to the summons Ex.PW8/N and Ex.PW8/L respectively dated 25.11.2007 served upon them, and these statements were tendered by them subsequently on 10.12.2007 in their own handwritings. The above summons were served upon the witnesses by the IO/PW8 on the date of seizure itself, i.e. 25.11.2007, for 10.12.2007. Hence, simply because it was subsequently reported that the above two witnesses were found to be not existing at their given addresses, the prosecution can not be faulted for their non appearance and non examination and no adverse inference is required or warranted to be drawn against them for the above said reason. The record reveals that process to both the above witnesses was taken for services/execution at their given addresses on few occasions, but the same could not served/executed due to the above reasons and though the summons of the public witness Sh Sandeep Singh SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

were served for one date, i.e., 28.04.2011, but subsequently, on his bailable warrants issued for the next date, i.e., 25.05.2011, it was reported by the process server that the same were accepted by someone due to some mistake and no person of the above name was actually existing at the given address and hence, both the above witnesses, alongwith one other witness Ms Sharifa Bibi, who was one of the occupants of the above car alongwith accused persons, were dropped by the prosecution on 25.05.2011 itself.

33. Ld SPPs for DRI in their oral submissions have rightly referred to the judgments in cases M.Prabhu Lal Vs A.D. DRI 2003 (3) JCC 1631 (SC) and Ajmer Singh Vs State of Haryana 2010 (1) JCC (Narcotics) 28 (SC) on this aspect of non examination of the public witnesses in such a case and it was held in these cases that the case of the prosecution can not be thrown away only due to the non examination of the public witnesses, if the other evidence led by the prosecution and the testimonies of the official witnesses are found convincing and sufficient to bring home the guilt of the accused. Reference on this aspect can also be made to another common judgment dated 08.04.2013 of the Hon'ble High Court in Criminal Appeal No. 1561/2011 titled Rozy Vijender @ Elizabeth Samuel Vs DRI and Criminal Appeal No. 108/2012 titled Vijender Singh Vs DRI, wherein also SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

similar observations were made.

34. The next argument of Ld Amicus Curiae is regarding the non compliance of the mandatory provisions of Section 50 of the NDPS Act. It was argued that the notices U/S 50 of the NDPS Act allegedly served upon the accused persons were prepared as a single copy only and not in duplicate as no copy thereof was admittedly given or handed over to the accused persons or recovered subsequently in their personal search. In this regard also, it is observed that as per the provisions of Section 50 of the NDPS Act it is not even necessary that any such written notice is required to be given to the accused and all that is required is that when the search is required to be conducted by an officer mentioned in the above Section, then the officer shall, if the accused so requires, take the accused to the nearest Gazetted Officer of any of the departments mentioned in Section 42 of the NDPS Act or to the nearest Magistrate, without unnecessary delay. It has also been interpreted in number of pronouncements of the Hon'ble Supreme Court as well as of different High Courts that the above is a legal right of the accused and the non violation thereof will vitiate the trial. Hence, the spirit of the above Section will stand satisfied if the accused is told about and made aware of his above legal right and it nowhere lays down that such a thing has to be done in writing by preparing SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

such a notice, what to say of preparing the same in duplicate or in triplicate.

35. Moreover, it is also now well settled that the provisions of Section 50 of the NDPS Act are applicable only in case where the recovery of a contraband substance is effected from the 'person' on an accused and this Section has got no applicability if the same is recovered in the search of or from any suitcase, bag, briefcase, thaila etc. being carried by or found in possession of the accused and the above provisions are also certainly not required to be complied with in case of recovery of a contraband substance from a vehicle found in possession of the accused persons. Reference in this regard can be made to some of the leading judgments in cases of State of HP Vs Pawan Kumar 2005 (4) SCC 350, Madan Lal Vs State of HP 2003 Crl.L.J 3868, Ajmer Singh Vs State of Haryana 2010 (2) SCR 785 (Crl. Appeal No. 436/09) and Jarnail Singh Vs State of Punjab, AIR 2011 SC 964.

36. One other contention of Ld Amicus Curiae is that the mandatory provisions of Section 42 of the NDPS Act have not been complied with in this case as there is no convincing evidence led on record by the prosecution to show that the above secret information was reduced into writing in any diary or register etc., which could not have been tampered with, and the reduction thereof SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

simply on a plain paper is not the due compliance of the provisions of the above Section. In this regard, it is observed that, though as per the provisions of Sub- Section (1) of Section 42 of the NDPS Act such an information pertaining to the concealment etc. of such a contraband substance in any building, conveyance or enclosed place etc. has to be reduced into writing by the officer receiving it and further in terms of the provisions of Sub-Section (2) thereof the same is also to be communicated to the immediate official superior of such an officer, but it is nowhere laid down or prescribed by the above Section that such information, apart from being reduced into writing in any form, has also to be separately or additionally written or entered into any such diary or register etc. Hence, the above argument of Ld Amicus Curiae is beyond the scope and purview of the above Section.

37. It has been specifically deposed by PW2 Sh Yogesh Kumar Chaudhary that after receiving the secret information, he had immediately reduced the same in writing as Ex. PW2/A and had also put up the same before Sh Pankaj Kumar Singh, the then Deputy Director, DRI, New Delhi and he has also identified his signatures as well as signatures of Sh Pankaj Kumar Singh on the above document. During his cross examination, he has also denied the suggestion given by Ld Amicus Curiae to the SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

effect that he had not reduced the above information into writing or that the above secret information was manipulated by him. His above depositions are further corroborated by PW5 Sh Pankaj.K.Singh and he has also stated on record that the above information was put up to him by PW2 and he has also identified his endorsement and signatures made on the said document, vide which he had directed the IO/PW8 to act upon the same. He has even stated further that at the relevant time PW2 Sh Yogesh Kumar Chaudhary was administratively subordinate to him and was bound to report to him all the intelligences directly and thus for the purposes of intelligence, PW5 can be said to be the immediate official superior of PW2. He has further denied the suggestions given by Ld Amicus Curiae that no such information was put up to him by PW2 on that day or he did not give any directions to the IO/PW8 to act upon the same. Hence, the oral depositions made by PW2 as well as PW5 are further corroborated by the contents of the above document Ex. PW2/A and duly establish on record the compliance of the provisions of Section 42 of the NDPS Act.

38. The next contention of Ld Amicus Curiae is that the third occupant of the above car of the accused persons namely Ms Sharifa Bibi was not arrested or made an accused by the DRI Officers and rather she was cited as a witness for the prosecution, though even not SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

examined as a witness during the trial. It is the contention of the Ld Amicus Curiae that the accused persons were falsely implicated in this case while the above Ms Sharifa Bibi was intentionally let away by the DRI Officers, as per their case on record. In this regard also, no merit is found in the above submissions made by Ld Amicus Curiae as according to the prosecution case, it had transpired during the statements U/S 67 of the NDPS Act made by both the accused persons as well as the above Ms Sharifa Bibi that she was not aware that any heroin or other contraband substance was concealed or being transported in the above car, of which she was one of the occupants. Hence, since she was not conscious of the presence of the above contraband substance concealed in or recovered from the above car of the accused persons, she was not rightly arrested or prosecuted in this case and this fact does not lead to an inference in any way that she was wrongly let off or the accused persons were falsely implicated in this case by the DRI Officers and rather this fact shows the fairness of the investigation conducted by the DRI Officers.

39. It has also been argued by Ld Amicus Curiae that though one mobile phone was allegedly recovered from the search of the accused no. 2, but the same was not seized by the IO/PW8 vide a separate memo and it is also his contention that as per the call details of the above SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

mobile of the accused obtained by the DRI Officers during the investigation, the above mobile was in operation till 29.11.2007, though the accused persons were allegedly intercepted and the above mobile phone taken into possession in this case on 25.11.2007. In this regard, it is observed that the factum of seizure of the above mobile phone as well as the SIM card of above accused no. 2, with details of EMI number of phone and SIM card, is duly reflected in the panchnama Ex. PW6/B dated 25.11.2007 itself and no separate seizure or recovery memo of the above phone or SIM was required to be prepared by the complainant. As far as reference to some call detail record of the mobile number 9906075868, of accused no. 2, which as per his statement Ex. PW8/C was being used in his above mobile set, is concerned it is found that above call detail record is not a record relied upon by the prosecution or proved during the trial. Even the accused has taken no steps to prove the above document on record and hence the above record cannot be referred to or used for any purposes. Similarly, the Nodal Officer of the concerned service provider of the above mobile number was also not required to be examined as a witness, as argued by the Ld Amicus Curiae, if the prosecution has chosen to not rely upon and prove the above record or document. Had the above record or document been of any use or benefit to the defence, steps should have been taken from their side for SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

proving the above record or document and hence, the above submissions of Ld Amicus Curiae on this aspect are also not found to be of any help to the accused persons.

40. The next contention of Ld Amicus Curiae is that the evidence led by the prosecution on record is not sufficient to prove the recovery of the above heroin from the possession of the accused persons and there is no corroboration to the sole depositions made by the IO/PW8 in this regard as no other member of the raiding team of DRI, which had visited the spot, has been examined by the prosecution. It is also argued that even the very constitution of the raiding team and their visit at the above spot is made doubtful by the depositions made by the IO/PW8 as well as PW1 regarding the participation of the PW1 in the said raiding team.

41. In this regard, it is found that out of the 12 witnesses examined by the prosecution on record, it is the IO/PW8 only who has participated in the above raid, and infact was heading the above raiding team, which had intercepted the above car of the accused persons from the above spot. He has made detailed depositions in his statement regarding the constitution of the raiding team and their visit to the spot, interception of the accused persons and their above vehicle from the spot and the subsequent search and seizure proceedings conducted with SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

regard the above recovered 20 packets of heroin from the said car. Though no other witness has claimed himself to be a part of the above raiding team which had visited the spot, but it is found that the depositions of the complainant are duly corroborated on all material aspects by the depositions made by PW6 Ms Poonam Aggarwal, who though had not visited the spot but had subsequently joined the proceedings in the parking area of the above office of DRI. She is a witness to the compliance of the provisions of Section 50 of the NDPS Act by the complainant, in the form of the service of the above notices Ex. PW8/P, PW8/Q and PW6/A upon both the accused persons and the above Ms Sharifa Bibi, and also of recovery of the above 20 packets of heroin from their car, i.e 11 packets from the speaker box kept in the dickey of the car and 9 packets from one HDPE bag concealed in the bonnet of the said car. She is also a witness of the subsequent seizure and sealing proceedings conducted by the IO/PW8 in their 7th floor office of the said building and further a signatory to the panchnama Ex. PW6/B, its annexures Ex. PW6/B-1 to PW6/B-4 and the documents Ex. PW6-B-5 to PW6/B-12 recovered from the said car. Her presence at the time of conduction of the above proceedings is further established from the endorsement from portion A to A of the notice U/S 50 of the NDPS Act Ex. PW6/A given by the IO/PW8 to Ms Sharifa Bibi and the said endorsement was made by PW6 with regard to the SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

conduction of the personal search of Ms Sharifa Bibi by her. She being a female officer of DRI was associated with and made to join the above proceedings by the IO/PW8 since one of the three occupants of the above car, i.e. Ms Sharifa Bibi, was a female.

42. Though the IO/PW8 as well as PW6 have both been cross examined at length on behalf of the accused persons, but during their such examinations nothing material could be extracted out from them which could have made their veracity or truthfulness to be doubtful or could have disproved the factum of recovery of the above contraband substance from the possession of the accused persons. They both have also specifically deposed regarding the process of weighing, sampling and preparation of the parcels of the case property and samples etc. in the proceedings conducted by the IO/PW8 in their office regarding the above recovered substance. They both have further duly identified the accused persons and though the case property was not shown or got identified from PW6 during the trial, but the complainant has identified the entire case property, including the remnants of samples, above car, speaker box and HDPE bag etc. during his statement made in the court.

43. The only material contradiction which has come in their statements, in the considered opinion of this SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

court, is regarding the constitution of the raiding team or the participation of PW1 Sh S.K.Sharma in the above raid as though PW6 has not been able to remember the names of the members of the above raiding team of DRI which had visited the spot, but according to the IO/PW8 the raiding team consisted of himself, Sh S.K.Sharma SIO and Sh D.P.Saxena, Sh Sujeet Kumar, Sh Kamal Kumar and Sh R.Roy IOs, besides the two public witnesses Sh Sandeep Singh and Sh Akshit @ Sonu. However, PW1 Sh S.K.Sharma has only deposed regarding the issuance of the above seal of DRI to the IO/PW8 and receiving of the report U/S 57 of the NDPS Act and the issuance of some follow up correspondence and not regarding his participation in the raid. He was even specifically questioned during his cross examination regarding joining of the investigation of this case, but he has specifically stated that he did not join the investigation of the present case and he even do not remember the names and the number of persons who had accompanied the IO/PW8 Sh Jyothimon. However, the above sole contradiction in the prosecution story cannot be given much weight and cannot be blown out of proportion, so as to defeat and disbelieve the other unimpeachable evidence led by the prosecution on record to prove the interception of the accused persons from the above spot, alongwith the above car, and the recovery of the above contraband substance from the possession of the accused persons.

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44. As discussed above, total 8 number of documents were also recovered from the dashboard of the said car during the search of the car and one of these documents was a computerized slip of Toll Plaza of National Highway Authority of India (NHAI) at Karnal, Haryana and same is Ex. PW6/B-12 on record. The above document is a part of the case file and it bears the signatures of both the accused persons and panch witnesses, Ms Sharifa Bibi, PW6 Ms Poonam Aggarwal and the IO/PW8 himself. The exhibition of the above document, alongwith other documents recovered from the car, has nowhere been disputed or objected to on behalf of the accused persons during the trial and the accused persons have even not specifically denied or disputed the recovery of the above documents from the above car. As per the above Toll Tax slip Ex. PW6/B-12, the time of crossing of the Toll Plaza by the above car no. JK 02G 4126 of the accused persons is stated to be 07:48:42 on 25.11.2007 and the time of interception of the above car of the accused persons at the above Haryana Delhi Border is around 10:15 AM, as per the case of the prosecution. The above document also corroborates the case of the prosecution and their evidence led on record regarding the interception of the accused persons from the said spot, alongwith their above car, as after crossing the above Toll Plaza at around 07:48 AM they might have entered into the limits of Delhi at around 10:15 AM on that day. Much weight cannot be SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

given to the depositions made by the IO/PW8 during his cross examination when he had stated that in his opinion it takes about 45 minutes in reaching at Singhu Border from Karnal, as the distance between the Karnal Toll Plaza and the above border should be around 100 KMs. Further, though the IO/PW8 has also at one stage stated that he had no idea if the car bearing registration no. JK 02G 4126 had or not entered into Delhi at the abovesaid time and place, but immediately thereafter he had also volunteered that the registration number of the car of this case is JK 02G 4129 as far as he recollected and his these voluntarily depositions clearly suggest that at the time of giving reply to the above question he was harboring under some misconception with regard to the registration number of the seized car being JK 02G 4129, instead of its correct number JK 02G 4126 and hence his above depositions cannot also be given much weight.

45. It is also one of the arguments of Ld Amicus Curiae that the prosecution has failed to prove the ownership of the above seized car being in the name of the accused no. 1 Ravinder Kumar and the IO/PW8 has also specifically admitted during his cross examination that he had not conducted any investigation on this aspect and hence, the case and story of the prosecution becomes doubtful because of the same. Even this argument of Ld Amicus Curiae is without any merits as the ownership of SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

the above car was never required to be proved to be in the name of the above accused or of the co-accused and it was only required that the evidence led on record should establish beyond reasonable doubts that the above car was intercepted from the possession of the accused persons and from the abovesaid place and further that the above recovered heroin was being transported in or recovered from the said car. Moreover, from the very beginning the prosecution has claimed that during the enquiry conducted from the accused persons at the spot, it was revealed by the accused no. 1 that the above car belonged to him and this fact finds a specific mention in the panchnama Ex. PW6/B as well as in the complaint filed in the court itself and even in his statement Ex. PW8/B the accused had claimed the above car to be his and had also not denied its ownership during the entire trial, the above fact of the car being owned by accused no. 1 was never in dispute during the trial.

46. Though during the recording of their statements U/S 313 Cr.P.C both the accused persons have claimed to have been picked up by the DRI Officers from a place at about 20 KMs before Chandigarh and further though the accused no. 2 has also claimed that at that time he was going to a fabric (handicraft) factory situated at Sector 14, Mohali, but no such suggestions are found to have been given either to the IO/PW8 or to PW6 Ms Poonam SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

Aggarwal. Even no defence evidence has been led by the accused persons in this case to substantiate their above claim of being picked up from some place near Chandigarh or of their false implication in this case. There is also no claim or submission made on behalf of any of the two accused persons that any of them was even previously known to the IO/PW8 or any other member of DRI or was having any inimical terms with them, which could have furnished a ground to the DRI Officers to falsely implicate them in this case. Ld SPP for DRI has rightly referred to a recent judgment of the Hon'ble Delhi High Court dated 10.01.2014 in a case K.R.Vengadeswar Vs Narcotics Control Bureau in Criminal Appeal No. 830/2010, wherein their Lordship had upheld the conviction of an accused in a case under the NDPS Act while relying upon the prepositions of law laid down by the Hon'ble Supreme Court in case of Sumit Tomar Vs State of Punjab 2012 (10) SCALE 507 in which it was held by the Hon'ble Supreme Court that in such a case under the NDPS Act, in the absence of any animosity between the accused and the official witnesses, there is nothing wrong in relying upon the testimonies of the official witnesses and convicting an accused. In view of the above, it is held that the evidence led by the prosecution on record is found to be convincing and sufficient to prove the recovery of the above heroin from the possession of the accused persons.

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47. Besides the above, there are also the legal presumptions contained in Section 35 and 54 of the NDPS Act which operate against the accused in such a case. 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.

48. 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 SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

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.

49. In the instant case, since both the accused persons have been held to have been found in physical possession of the above contraband substance, they are presumed to be having the criminal mental state to possess the above contraband substance and to have committed an offence regarding the same and the burden lied upon them to prove the absence of the above criminal mental state or to account for their possession of the above contraband substance. However, the accused are found to have failed to discharge the above burden as nothing has been brought on record to establish that they were not aware regarding the presence of the above contraband substance in their above vehicle.

50. 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 SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

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."

51. 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."

52. Apart from the above evidence regarding the recovery of the above heroin from the possession of the accused persons, there are also their statements made U/S 67 of the NDPS Act Ex. PW8/B and PW8/C respectively which are to be considered by this court in this trial.

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It is now well settled that such a statement made by an accused U/S 67 of the NDPS Act is admissible in evidence and can be acted upon by the court if it is found to be made voluntarily. In the case of Raj Kumar Karwal Vs Union of India & Ors. (1990) 2 SCC 409 it was held by the Hon'ble Supreme Court that a statement U/S 67 of the NDPS Act made by the accused is not the same as a statement U/S 161 Cr.P.C., unless it is made under some threat or coercion etc., this being a vital difference, the same is excluded from the operation of Sections 24 to 27 of the Evidence Act. Even in the case of Kanhaiya Lal Vs Union of India 2008 (1) AD (Crl.) (SC) 277 : 2008 (1) JCC (Narcotics) 23 it was held by the Hon'ble Apex Court that such a statement made by an accused is admissible in evidence as the same is made by him at a time when he was not under arrest and hence neither the bar of Sections 24 to 27 of the NDPS Act would operate nor the provisions of Article 20(3) of the Constitution would be attracted. Several other judgments of the Hon'ble Supreme Court and of different High Courts are also to the same effect and it is settled that such a statement alone can form the basis of conviction of an accused in such a case and the only requirement for the court before acting upon such a statement is that the court has to satisfy itself that such a statement was not made under some threat, coercion or influence etc. and was made by the accused voluntarily.

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53. However, if such a confessional statement made by an accused is retracted subsequently, then the position is changed and it is well settled that in such a case the court has to look into the facts and circumstances of the case and the above retraction to see if the confessional statement of the accused was in fact made voluntarily or not and the law is that it will not be safe for the court to arrive at a finding regarding the guilt or conviction of the accused solely on the basis of such a retracted statement and the same is required to be corroborated by some independent material evidence on record.

54. In this case also, the above two statements of the accused persons were recorded in response to the summons Ex. PW8/A and PW8/C respectively issued to them under the above provisions and these statements were recorded prior to their arrest in this case as these summons dated 25.11.2007 were issued to them for their appearance before the IO/PW8 at 9:00 PM and 5:15 PM respectively. The time of arrest of the accused persons in this case is 12:00 noon and 12:15 PM on 26.11.2007, as per their arrest memos Ex. PW8/E and PW8/F respectively. As per the record, the above statements were not retracted by the accused persons at any point of time. Though during the course of suggestions given to the IO/PW8 as well as during the course of recording SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

of the statements of the accused persons U/S 313 Cr.P.C., the vague defence taken by the accused persons regarding the above statements, inter-alia, is that their signatures on many blank documents were taken forcibly by the DRI Officers, but it is also observed that the above two statements of the accused persons have been tendered by them in their own handwritings and there is no specific claim made or defence taken by any of them that they were made to forcibly write down the above statements consisting of 7 and 8 pages respectively in their own handwritings.

55. In these statements, both the accused persons have disclosed their various personal and family details which could never have been in the knowledge of the DRI Officers and they had further admitted therein not only the recovery of the above contraband substance from their possession and their abovesaid car, but also the entire subsequent proceedings conducted with regard to the same in the DRI Office. They both have further disclosed therein as to how they had met at Jammu, J&K, and had brought the above 20 packets of heroin concealed in the above speaker box and HDPE bag, which were further kept and concealed in the abovesaid car. Though the other persons named in their above statements, i.e. one Tarsem and Bodhraj, could not be traced out and apprehended in this case, but it was only due to the SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

reason that either intentionally or otherwise, the accused persons had not provided the complete details of the abovesaid persons. In these statements, both the accused had also stated about the replacement of the old tyres of the above car of accused no. 1 at Jammu, prior to their leaving for Delhi with the above contraband substance and in the above car and two original cash memos/bills dated 24.11.2007 of a shop named Gupta Tyres at Gandhi Nagar Jammu, which are Ex. PW6/B-9 and PW6/B-10 on record, were also recovered from the dashboard of their car. As stated above, there is a specific mention of these two documents also in the panchnama Ex. PW6/B as well as the complaint etc. and these documents were also put to the accused persons during their statements recorded U/S 313 Cr.P.C., but no specific depositions or suggestions are found to be made by or on behalf of the accused persons regarding the said documents and they had vaguely denied questions put to them in their such statements. The recovery of the above documents from the said car is also a corroborative substance of the correction of the contents stated and recorded in their above statements and further to show the voluntariness thereof.

56. Further, there is no claim or submission in the statement made by any of the accused that they were subjected to any physical torture for extracting the SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

above statements. Both the accused persons are residents of different localities of the city of Jammu, J&K and as per their above statements they both had come to and entered into the State of Delhi in their above car and having the above concealed packets of heroin in the said car, with an intent to deliver the above contraband substance to someone in Delhi, as per the instructions of some other persons. Hence, the above statements made by the accused persons can certainly be looked into evidence against them and the same further corroborate the case of the prosecution against them, not only with regard to the recovery of the above heroin from their possession and the consciousness of the said possession, but further established that they both were part of a criminal conspiracy enter into between them and some other persons, including the above Bodhraj and Tarsem for dealings in, possessing and for importing into the State of Delhi from the State of Jammu, J&K the above quantity of heroin.

57. One other vehement contention of Ld Amicus Curiae is that the parcels of samples and remaining heroin of this case were tampered with and had not remained safe and intact and for this he has referred to certain discrepancies observed by this court with regard to the colour and form etc. of the remaining heroin, remnant of samples tested by the CRCL as well as the SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

second set of samples. It is his contention that the colour and form of the remnant samples and the second set of samples was not found tallying with the remaining heroin when the above samples and remaining case property was produced in this court during the cross examination of the IO/PW8.

58. In this regard, it is observed that when the packets of remaining heroin were produced in this court for the first time on 28.07.2012 during the examination of the IO/PW8 it was observed that the colour of the contraband of packets Mark W-1 to W-2 was dark brown, of substance of packets Mark X-1 to X-2 it was light yellow, of substance of packets Mark Y-1 to Y-2 it was light brown and of substance of packets Mark Z-1 to Z-2 it was blackish brown and the form of substance of packets Mark W-1 to W-12 was granular, whereas the colour of the remnants of the 20 samples of Batch A, which were drawn out of the above packets and tested in the CRCL, was noted to be off white/light yellow and the form to be powdery cum granular, except for remnant of the sample Mark Y-2-A for which it was recorded to be off white/light brown colour. For the second set of samples of Batch B drawn out of the above packets also, the colour was found to be off white/light yellow and the form to be powdery cum granular, except the remnant of samples Mark Y-2-B to Y-4-B for which it was found to SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

off white/light brown colour.

59. It is also pointed out by Ld Amicus Curiae that some parcels of the remaining heroin and samples were again opened in this court during the cross examination of the IO/PW8 on 24.04.2012 on his request and the discrepancies and the differences which were noted in the colour and form of the above opened parcels are being reproduced herein below:

" he color of the sample Mark X1A T and X1B as well as the packet of case property mark X1 according to the witness is same and the color is stated by the witness to be yellow and it is found that the substance of the packet Mark X1 has become very hard.

The color of the sample Mark Z1A is off white color granular substance and Z1B is of yellow color granular substance and the color of the contraband of the packet mark Z1 according to the witness is dark brown color hard granular substance and according the the Defence Counsel the color of the substance of the packet Mark Z1 is of dark brown blackish color hard granular substance.

The color of the sample Mark Y1A is yellow color granular substance and Y1B is of yellow color granular substance and the color of the contraband of the packet mark Y1 according to the witness is dark brown color hard granular substance and according the the Defence Counsel the SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

color of the substance of the packet Mark Y1 is of dark brown blackish color hard granular substance.

The color of the sample Mark W1A is yellow color granular substance and W1B is of yellow color granular substance and the color of the contraband of the packet mark W1 according to the witness is dark brown color hard granular substance and according the the Defence Counsel the color of the substance of the packet Mark W1 is of dark brown blackish color hard granular substance."

60. In this regard, it is observed that earlier one application dated 23.05.2012 was also moved on behalf of the accused persons seeking the drawing of fresh samples from the remaining case property for the purposes of testing and the above application was dismissed vide a detailed order dated 25.05.2012 of this court while observing, inter-alia, that there was a long gap between the seizure of the above case property on 25.11.2007 and its production in this court for the first time for identification before the IO/PW8 on 28.07.2010 and also some of the case property again on 23.02.2012 and hence, the above differences in the colour and form etc. of the case property were not material enough and could be result of the passage of time and the natural chemical reactions etc. It was further observed that even the presumptions of different persons regarding the SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

observations of colours can be different. The above order of this court was challenged by the accused persons in Criminal M.C. No. 2346/2012, but the same was dismissed as withdrawn on the request of the accused persons, with liberty to approach this court again, if considered necessary, at the defence stage.

61. It is also observed from the record that subsequently, one application U/S 311 Cr.P.C was also moved on behalf of the accused persons seeking the recalling of PW4 Sh V.P.Bahuguna, Assistant Chemical Examiner of CRCL, and the above application was allowed and PW4 was recalled and further cross examined in this court on 19.11.2012 regarding the above changes observed in the form and texture of the case property and samples etc. After his above examination, the accused persons had again moved one other application dated 17.12.2012 seeking the drawing of fresh samples and the above application was again dismissed by this court vide order dated 06.02.2013, in view of the extensive cross examination of PW4 done on the above date and further in view of the law laid down by the Hon'ble Supreme Court in case of Thana Singh Vs Central Bureau of Narcotics, Criminal Appeal No. 1640/2010 decided on 23.01.2013. The main extracts of the above cross examination of PW4 conducted in this court on 19.11.2012, which are found relevant on this aspect are being reproduced herein SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

below:

Question: Can the colour of heroine change off-white to light brown or dark brown within 2/3 years of preparation of the sealed parcels thereof, as was done in the present case?

Ans: Yes, the above change in the colour of the case property or samples of heroine is possible within the above time, if the parcels thereof are not stored or preserved properly or the same are brought in contact with heat or moisture etc. Question: If the parcels of samples and remaining case property are stored or preserved in the same condition and in the same trunk kept in the same room , then whether it is possible that the change in colour or form in the above parcels can be different or should there be similar in colour and form etc of such parcels.

Ans: If these parcels of samples and case property are kept stored under exactly same conditions then the changes in their colours and form etc should be same but it is possible that even in the same room or in the same trunk there may be difference in temperature or moisture etc as in one corner or side of the trunk there may be some moisture and the same may not be in the other side of the trunk. Again the above changes will be same only in case of the same chemical substance, i.e diacetylmorphine which in this case was 45.2 to 69.5% and the different changes may occur differently in the remaining substance of the contents of the above parcels, SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

depending the constitution of the remaining substance. Again said, under exactly same conditions the colour of diacetylmorphine will reflect similar changes, but the changes in the remaining constituents of the substance may be different depending upon their constituents and if the remaining constituents are also same then the changes in colour will be same and if the same are different then the changes in colour will also be different. If all the samples are of pure diacetylmorphine and the same are stored properly then their colour may slightly change after a long passage of time like 8-10 years.

Question: If the samples of pure diacetylmorphine are not stored properly and are exposed to some kind of moisture or heat, then within how much time the changes in it colours and texture will be reflected and to what extent?

Ans. Though there may be some chemical changes in its composition and texture, but there will not be any material changes in its colour in short time like 2/3 years.

Question: Did you notice the presence of any other chemical substance, except the diacetylmorphine, in the above samples examined by you?

Ans. No, because the test were conducted only for the determination of the presence of diacetylmorphine as per the query.

                Question: What     will    be    chemical
                reaction    of   diacetylmorphine    with
                moisture and to what extent it can

convert into other chemical substance?

SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

Ans. On exposure to moisture, diacetylmorphine will partially convert into monoacetylmorphine, but I can not say about the colour change of the diacetylmorphine and I also can not say to the percentage of conversion to the monoacetylmorphine.

Question: In the present case main case property when opened in the court was found to be a dark brown colours in granular, light yellow colour, light brown colour and blackish brown colour respectively whereas in the report Ex.

PW4/A prepared by you colour and physical texture of all samples was off-

white with lumps? After noticing the above aspect regarding difference in colours and texture of case property produced in the court and samples examined by you, being an expert in the field can you say with certainty that the samples analyzed by you were representative samples of the above noted case property?

Ans. I have already explained that there may be a colour change in diacetylmorphine/heroin due to different factors and I have already observed at the time of testing of the samples, with the help of my Chemical Examiner Sh. S.C.Mathur , that the samples contained diacetylmorphine , I can say that the samples examined by me could have been drawn from the above case property.

62. PW4 has specifically denied the suggestion given to him by the Ld Amicus Curiae that the said samples could not have been drawn from the above case SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

property. It is clear from his above depositions that he has supported the case of the prosecution to the effect that the above samples and remnants of the samples of this case were drawn from the heroin seized in this case, which according to the evidence led on record was seized from the possession of the accused persons, and has ruled out the possibility that the same did not pertain to this case. As per this witness, who is an expert in the field and whose opinion is relevant and can be considered by this court, the changes observed in the form and colour of the above case property and samples can be attributed to the loss of time, the poor storage conditions thereof and the chemical reactions caused thereby.

63. One other contention of Ld Amicus Curiae connected with the safe custody of the case property is that the gross weight of the above 20 samples of 5 Grams each, as mentioned in the test report Ex. PW4/A, was found to be 5 Grams in one sample and 5.3 Grams in one other sample, whereas in all the remaining samples the same was found to be less than 5 Grams and the above difference in the weights is a circumstance to show the tampering of the sample parcels. Here also, it is observed that the gross weight of the 20 samples of batch A tested vide the test report Ex. PW4/A is mentioned as 4.6 Grams, 4.3 Grams, 4.7 Grams, 4.6 Grams, 4.5 Grams, 4.2 Grams, 3.8 Grams, 5.0 Grams, 4.8 Grams, 4.1 Grams, SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

3.7 Grams, 4.7 Grams, 4.1 Grams, 4.1 Grams, 4.5 Grams, 4.6 Grams, 4.1 Grams, 4.1 Grams, 5.3 Grams, 4.2 Grams and the above discrepancy or difference in the weight is not found to be much, so as to raise any inference of tampering of the sample parcels as the above discrepancy in the weight is almost on the similar pattern as out of the 20 samples, for 17 samples the weight is mentioned to be between 4 to 5 Grams.

64. Moreover, the depositions made by the IO/PW8 and PW6 clearly establish on record that the parcels of case property and samples were duly sealed at the spot with the above seal of DRI and it also stands established from the depositions of the IO/PW8 and PW9 Sh K.K.Sood that the same were placed in the safe custody of PW9 after the seizure, alongwith the test memos, till the sample parcels were dispatched to CRCL on 26.11.2007 through PW10 and the case property was sent for deposit in the Valuable Godown through the IO/PW8 on 27.11.2007. The depositions made by PW10 and PW11 further prove that the sample parcels were received in the CRCL in intact condition vide acknowledgment Ex. PW10/A and it is also specifically mentioned in the above test report Ex. PW4/A that the seals of the above parcels were found to be in intact condition and were tallying with the impression thereof as affixed on the test memos. Even the depositions of the IO/PW8 and PW7 Sh D.B.Sharma establish SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

the safe deposit of the parcels of the case property in the Valuable Godown and the same are further corroborated by the contents of the deposit memo Ex. PW9/A. All the above parcels of case property and samples were also found to be in intact condition and the paper slips pasted on the parcels of the case property, on the envelopes of the remnant parcels and the second set of samples were also found to be untampered with when the entire case property was produced in this court for the first time on 28.07.2010 during the cross examination of the IO/PW8.

65. Moreover, Ld SPP for DRI has rightly referred to and relied upon the recent judgments of the Hon'ble Delhi High Court in cases Sunil Kumar Yadav @ Soni Vs NCB Criminal Appeal No. 944/2010 decided on 18.03.2014, Akabuogu Godwinn Ojimba Etc. Vs Customs Criminal Appeal Nos. 9999, 1355 and 1238 of 2010 decided vide a common judgment dated 26.03.2014 wherein their Lordship, after discussing the relevant law on the subject, has held that such type of discrepancies in the weight of the samples cannot be held to be material, so as to doubt the genuineness of the samples, and the mere possibility of tampering of the samples cannot be made a ground to draw an inference that the same were actually tampered with. Hence, this court is also of the considered opinion that the evidence led on record is not sufficient to show any SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

tampering of the case property and samples of this case or to make this court to draw any such inference regarding the tampering thereof.

66. In this case heroin weighing around 20 KG has been recovered from the possession of the accused persons and keeping in view the above huge quantity and the value of the above substance in market, the same could not have been planted upon the accused persons by the DRI Officers from their own pocket. Moreover, as already discussed above, the accused persons were not even known to the DRI Officers, which could have furnished any ground to have falsely implicate the accused persons in this case.

67. Since the seizure of this case was effected on 25.11.2007, the Notification No. S.O. 2941(E) dated 18.11.2009 of the Ministry of Finance, Department of Revenue, vide which it was laid down that the entire seized contraband substance would be considered for arriving at the commercial or a small quantity of a contraband substance prescribed under the said Act, irrespective of their purity percentage, is not applicable to this case. However, even as per the purity percentage of the diacetylmorphine given in the above test report Ex. PW4/A, the weight of the above heroin comes to around 11.500 KG which, is still a huge commercial quantity of the above substance as under the SC No. 33A/08 DRI Vs Ravinder Kumar & Anr.

NDPS Act any quantity of heroin exceeding 250 Grams is a commercial quantity.

68. Hence, 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 29 as well as Section 21(c) read with Section 29 of the NDPS Act, as framed against both the accused persons. Therefore, both the accused are held guilty and convicted for the abovesaid offences. Let they both be now heard on the quantum of sentence.



Announced in the open
court on 25.04.2014                                  (M.K.NAGPAL)
                                                ASJ/Special Judge NDPS
                                                    South District
                                                 Saket Court Complex
                                                       New Delhi




SC No. 33A/08                                          DRI Vs Ravinder Kumar & Anr.

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Sc No. 33A/08 Dri vs Ravinder Kumar & Anr. on 25 April, 2014