9911796707
TMI Blog2015 (4) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants challenge judgment/order dated 08.03.2013 and 11.03.2013, passed by the Additional Sessions Judge, Chandigarh, convicting and sentencing them in the following terms:- Charge Sentence Under Section 21(C) of the NDPS Act, 1985 Saji Mohan and Balwinder Kumar are sentenced to undergo RI for 13 years each and to pay fine of Rs. 1 ,50,000 /- each. In default of payment of fine they shall further undergo RI for two years each. Under Section 29 of the NDPS Act, 1985 Saji Mohan and Balwinder Kumar are sentenced to undergo RI for 13 years each and to pay fine of Rs. 1 ,50,000 /- each. In default of payment of fine they shall further undergo RI for two years each. Under Section 32 of the NDPS Act, 1985 Naveen Kumar is sentenced to undergo RI for six months and to pay fine of Rs. 10 ,000 /-. In default of payment of fine he shall further undergo RI for one month. Under Section 21 (C) of the NDPS Act, 1985 Naseeb Chand is sentenced to undergo RI for 10 years and to pay fine of Rs. 1 ,50,000 /-. In default of payment of fine he shall further undergo RI for two years. Under Section 29 of the NDPS Act, 1985 Naseeb Chand is sentenced to undergo RI for 10 years and to pay f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it would be appropriate to point out that the trial Court has acquitted all the accused of charges of pilferage from the malkhana at Jammu. Counsel for the appellants and revision petitioners have addressed separate arguments most of which are common and, therefore, wherever necessary, separate arguments shall be referred to. Counsel for the appellants submit that the prosecution story regarding pilferage from the NCB malkhana at Chandigarh, is belied by the deposition of PW-2 R.C.Bodh, Superintendent, NCB, JZU, Jammu, who has admitted during his cross-examination that the board constituted by Sandeep Mittal, IPS, the Zonal Director to check and personally verify contents of the godown revealed that seals were intact and narcotics stored were in accordance with the weight recorded in the malkhana register. The prosecution has, therefore, failed to prove any pilferage from narcotics stored in the malkhana. The statements by Naseeb Chand and Naveen Kumar, recorded under Section 67 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'), which are the basis of the conviction, are, therefore, meaningless. The prosecution has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2009 in the NCB office at Chandigarh, thereby admitting that Naseeb Chand was already in the custody of the NCB, Chandigarh and that notice under Section 67 of the NDPS Act was a mere charade to show that Naseeb Chand has made a statement under Section 67 of the NDPS Act, and then claim that the statement is admissible against Naseeb Chand and his co-accused. It is argued that Naseeb Chand is a resident of Jammu, the notice dated 26.03.2009 was sent for service through NCB, Jammu. The said facts read alongwith the admission made by PW-2 R.C.Bodh that the notice was served at Chandigarh, prove that the prosecution story is false and notice under Section 67 of the NDPS Act was never served and statement recorded under Section 67 of the NDPS Act was manipulated or was made under duress and coercion. Counsel for the appellants further submit that notice Ex.P8, refers to an inquiry under Section 53(1) of the NDPS Act. Section 53(1) of the NDPS Act refers to exercise of power under Section 42 of the NDPS Act namely the power of investigation as opposed to the power to hold an inquiry, conferred by Section 67 of the NDPS Act. The statement, therefore, cannot be said to be recorded du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial with respect to Chandigarh and as evidence regarding Jammu has been discarded, it is surprising that he has been convicted with respect to pilferage at Chandigarh. The deposition by PW-6 Vijay Kumar that he introduced Naseeb Chand to Saji Mohan, must also be rejected as it is not corroborated by any other statement. Counsel for the appellants further submit that Naseeb Chand and Naveen Kumar filed applications for retracting their statements on 21.05.2009 and 28.03.2009, before the Special Court but no order was passed. The trial Court has construed the retraction as belated and unfairly held that the fact that no order was passed on the retractions, it is sufficient to conclude that the statements were not retracted. It is further submitted that statements made by Saji Mohan and Balwinder Kumar, as also held by the trial Court, do not contain any incriminating material but they have been convicted on the basis of statements Ex.P9 and Ex.PW18, made by Naseeb Chand and Naveen Kumar, respectively. A perusal of the statements reveals that they are not corroborated by any evidence, are clearly coerced and fabricated, were recorded on a blank paper and Naseeb Chand and Naveen Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heroin brought by Naseeb Chand from Chandigarh, on the intervening night of 27/28.08.2008, was used by the customs department to reflect an unclaimed seizure to add credit to their record. The findings recorded by the trial Court are not borne out from the evidence on record much less is any material available to suggest that recovery of unclaimed seizure of 10 kgs of heroin, was the heroin entrusted to Naseeb Chand. The inference drawn by the trial Court is not warranted from the depositions of PWs 10 and 17. The mere fact that Naseeb Chand was known to them as an informer and informed them about the possibility of heroin being smuggled on the intervening night of 26/27.08.2008, has been wrongly linked to the present case. It is prayed that as the impugned order directing proceedings against Virat Dutt Chaudhary and Pushpdeep Singh is without jurisdiction, this part of the order may be quashed. As regards Naveen Kumar, it is argued that as no offence has been made out, his conviction under Section 32 of the NDPS Act to undergo RI for six months and to pay fine of Rs. 10,000/-, is not warranted. Counsel for the respondent submits that statements made by Naseeb Chand and Naveen Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional charge of Zonal Director, Jammu but was transferred to Enforcement Directorate, Cochin on 31.12.2008. Dr. Saji Mohan was arrested by the ATS, Mumbai on 24.01.2009 for conscious possession of a large quantity of heroin. An FIR was registered against Saji Mohan on 24.01.2009, under Sections 8 (C), 21 and 29 of the NDPS Act. The trial is in progress at Mumbai. Sh.K.P.Raghuvanshi, the then Additional Director General of ATS, addressed a letter dated 06.02.2009 to the Director General, NCB, New Delhi, forwarding information regarding the arrest of Dr.Saji Mohan and alleging that Saji Mohan had pilfered contraband seized from various places in Punjab and Jammu, manipulated the record and retained pure contraband for personal gain. The letter also alleges that these illegal acts were made possible with the connivance of raiding parties/subordinate staff. The letter named Balwinder Singh, Superintendent, NCB, Chandigarh, Constable Navin Kumar and Devenderpal Singh, PSOs of Saji Mohan and directed that records pertaining to seizures in Punjab, Haryana, Himachal Pradesh and Jammu be verified. It was also ordered that the chemical analyser's reports be compared with contraband in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned statement Ex.PW18/H. Naveen Kumar was arrested vide memo Ex.PW18/I. Information of his arrest was forwarded vide Ex.PW18/J etc. to persons disclosed by Naveen Kumar. Notices under Section 67 of the NDPS Act Ex.PW18/L, Ex.PW18/M and PW18/N, were served upon Balwinder Kumar, the then Superintendent, NCB, Chandigarh, who made statements in his own handwriting Ex.PW18/O, Ex.PW18/P, Ex.PW18/Q and Ex.PW18/R. Balwinder Kumar was arrested vide memo Ex.PW13/D etc. but concededly his statements do not contain any incriminating material. Notice dated 26.03.2009, Ex.P8 was issued to Naseeb Chand by Sh.H.S.Gill through the NCB, Jammu. Naseeb Chand made a statement on 27.03.2009, Ex.P9, at NCB office, Chandigarh, which was recorded by Sh.R.C.Bodh, Intelligence Officer. Naseeb Chand appended his thumb impression on the statement which was signed by Sh.H.S.Gill and R.C.Bodh. Naseeb Chand was arrested vide memo Ex.P10 etc. The statement Ex.P9, records that Saji Mohan handed over 10 kgs of heroin to Naseeb Chand for sale. Naseeb Chand handed over this 10 kgs of heroin to an officer of the Customs Department. The Customs Department showed a recovery of 10 kgs of heroin as an unclaimed seizure. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Chandigarh. The accused were separately charged but as they pleaded their innocence, the prosecution was directed to lead evidence. The prosecution, in order to prove its case, has examined 19 witnesses, proved statements made by the accused and other witnesses under Section 67 of the NDPS Act, proved orders passed allowing retesting of the samples, test memos, panchnamas, chemical examiners' reports, letters received to initiate investigation, notices served upon the accused, their arrest memos, jamatalashis, interrogation reports, packaging details of samples, seizures reports and office noting etc. PW-1 is M.M.S.Bhandari, Intelligence Officer, NCB, Delhi , who has deposed with respect to recovery of 60 kgs of heroin by the BSF and entrustment of heroin to officers of the NCB, Jammu. The depositions by PW-1 pertains to seizure and deposit of heroin at the malkhana in Jammu for which all the appellants have been acquitted. The NCB has not filed any appeal. It would not be necessary to recount his deposition except to the extent that Saji Mohan was Zonal Director and Balwinder Kumar was Superintendent, NCB, Chandigarh at that time, with additional charge of the Jammu Unit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table Vijay Pal Singh, 141, BSF Battalion, Kashmir, and PW-7 is Constable Manjit Singh, J&K Police, Security Wing, Jammu . We need not narrate their depositions as their depositions pertain to narcotics allegedly pilfered from the malkhana at Jammu for which the appellants have been acquitted. PW-8 is Vijay Kumar, Sepoy, NCB Office, Indore , who was Sepoy-cum-driver of Saji Mohan. Vijay Kumar has deposed that in 1998, the office of NCB was at Palora Camp. Naseeb Chand used to come to the BSF Camp and, therefore, he came to know that Naseeb Chand is the source of information for the BSF. Saji Mohan asked him to provide an informer. PW-8 has deposed about the contact between Naseeb Chand and Saji Mohan and, therefore, it would be necessary to reproduce a relevant extract from his deposition, which reads as follows:- "Saji Mohan asked to me to provide some informer when he was Zonal Director of NCB Jammu. On one day, when I was in the market of Jammu, I met Nasib Chand on the way and I requested him to come to the office of NCB as the Zonal Director wants to meet him. On my asking Nasib Chand met Saji Mohan in the office. I do not know what transpired between Saji Mohan and Nasib Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted two wheeler coming from the side of BSF picket and we challenged the said persons. The said persons lost the balance on the Scooter and fell down and his belongings also fell down on the ground and therefore, those persons taking the benefit of darkness ran towards the BSF pocket and as such, we could not fire. After search the belongings were taken into custody and upon checking same was found to be 10 packets of Heroin. The weights of 10 packets were 1 Kg each and in all there were 10 packets and thus it was 10 Kg. I identify Nasib Chand, who is present in Court and he is the same person, who provided the information. Notice Ex.P20 was given to me and I appeared before the NCB official and I tendered my volunteered statement Ex.P21." During his cross-examination, PW-10 emphasised that 10 Kgs of heroin was an independent seizure of Department of Customs and the customs team did not visit Chandigarh before this seizure, thereby denying a link between this seizure and the narcotics allegedly entrusted by Saji Mohan to Naseeb Chand. PW-11 is S.C.Mathur, Chemical Examiner, Grade-I, Custom House, Kolkata and PW-12 is S.K.Mittal, Chemical Examiner, Grade-II, CRCL, New Delhi, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summoned by the NCB office in this regard and my statement was recorded which is Ex.PW17/E. The notice under Section 67 is Ex.PW17/F. The statement Ex.PW17/E is in my handwriting." PW-18 is Harcharan Singh Gill, Assistant Commandant, CISF, CISF Unit, BTPP, Bongaigaon, Assam, who was posted as Superintendent in February, 2009 and received letters Ex.PW18/A, Ex.PW15/A and Ex.PW15/B and commenced inquiry. PW-18 has proved service of notices upon the appellants as well as statements recorded under Section 67 of the NDPS Act and other material evidence relating to the investigation which we have already detailed in the opening part of this judgment. PW-19 is K.Natarajan, Under Secretary to the Government of India, Ministry of Home Affairs, North Block, New Delhi, who proved the sanction etc. Upon completion of prosecution evidence, the incriminating circumstances were put to the accused while recording their statements under Section 313 of the Cr.P.C., who denied these circumstances, pleaded innocence and false implication. Saji Mohan stated that:- "I am innocent, have been involved in this false case by NCB to strengthen a false case which was planted upon me by the ATS Mumbai by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this false case, as I was over all incharge of NCB Godown/Malkhana. My false involvement was also required by the NCB as well as ATS Mumbai with a view to project false pilferage of heroin on account of the reason that I was incharge and supervisory authority of NCB, Godown/Malkhana and for that reason I have been involved as an accomplice in the said episode. This all drama was staged by the NCB to strengthen a case registered against Dr.Saji Mohan at Mumbai in consultation with ATS, to show the source of alleged recovery of heroin at Mumbai." The accused produced the following witnesses in defence:- DW-1 Anand Chetia, Constable, BSF, to prove unclaimed seizure of 16 Kg of heroin on 19.07.2007 which was handed over to the NCB Zonal Unit, Chandigarh. DW-2 HC Dondia, Intelligence Officer, NCB, Headquarters Delhi, who deposed with respect to seizures at Jammu but we need not refer to his deposition as his deposition pertains to narcotics allegedly pilfered from the malkhana at Jammu for which the appellants have been acquitted. DW-3 Sanjiv Chandel, Sub Area Organiser, SSB, Training Centre, Ghitorni, New Delhi, proved another unclaimed seizure. DW-4/5 Partap Singh Yadav, Intel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oborative evidence relating to pilferage of the case property lying in the malkhana. The prosecution story as discernible from the complaint as well as the evidence is that Saji Mohan and Balwinder Kumar, who were Zonal Director and Superintendent, NCB, Chandigarh, respectively, pilfered 10 Kgs. of heroin from the malkhana at NCB, Chandigarh by replacing the heroin, lying in the malkhana with slaked lime. Saji Mohan thereafter got in touch with Naseeb Chand, an informer of the Customs Department and handed over 10 Kgs. of heroin to Naseeb Chand 26.08.2008 for sale. Naseeb Chand is alleged to have transported the heroin to Amritsar where he informed officers of the Customs Department that on the intervening night of 27/28.08.2008 an attempt would be made to smuggle heroin. The customs department formed a raiding party and detected two persons riding a scooter. The persons on the scooter were asked to stop, but made good their escape and in the process dropped 10 packets of heroin weighing 1 kg each. The heroin was shown as an unclaimed seizure by the Customs Department at Amritsar. The trial Court has concluded that this unclaimed recovery is false and was intended to cover up the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur and Saji Mohan told me that he would pay him Rs. 50 ,000 /- if I sold Heroin for him. I told him that the work was dangerous upon which Saji Mohan said that his name should not crop up, but if I was caught, he would manage my release. I told him that I would search for a customer, but would require some money on which he paid me Rs. 1000/- which I spent. After 15-20 days, I again went to Meet Saji Mohan in Chandigarh and told him that I could not find a buyer. Saji Mohan paid me Rs. 500/- and asked me to search for a buyer and that Heroin to the extent of 10 to 20 kg would be supplied. Then, I went to Amritsar and met Inspector Baljinder Singh of Custom Department in his office. I told him that an official of Narcotics Department, Chandigarh trusted me and was ready to deliver Heroin for sale and if he wanted, I could give drug to him. Thereupon, Inspector Baljinder Singh spoke to his senior officer Sh. Chaudhary, A.C. Customs & Central Excise and told me to bring sample of Heroin. Again in August 2008, I met Saji Mohan and asked him for a sample. Saji Mohan gave me sample in two small packets and told me that he would pay me Rs. 50 ,000 /- per kg and the amount beyond Rs. 5 lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh who stated that the quality of the heroin is very good. Naseeb Chand thereafter goes on to state that he was accompanied to Chandigarh by Baljinder Singh, a driver and an armed Constable. They reached Chandigarh in a vehicle at 13:00 hours. He was dropped near NCB office where he met Saji Mohan who sent him to the latter's residence. After some time, Saji Mohan arrived at his residence removed 10 packets of heroin from a white packet and handed them over to Naseeb Chand after which he and Inspector Baljinder Singh returned to Amritsar. He came to know on 29.08.2008 that Baljinder Singh had shown 10 kgs of heroin as an unclaimed seizure on 27.08.2008. He was paid Rs. 50 ,000 /- by Baljinder Singh. The statement which is self-inculpatory admits that 10 kgs of heroin was handed over by Saji Mohan to Naseeb Chand for sale but Naseeb Chand handed it over to Baljinder Singh an official of the Customs Department, Amritsar who showed it as an unclaimed seizure on 27.08.2008. The next piece of evidence is the statement Ex.PW18/H, by Naveen Kumar, which reads as follows:- "..... I have been informed that this statement u/s 67 of the Act can be used against me in the court...... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od retracted they could not form the basis of an opinion of culpability vis-a-vis any of the appellants. The statement by Naveen Kumar has drawn similar criticism and in addition it is urged that as Naveen Kumar has alleged to have stated that in November, 2008 Saji Mohan and Balwinder Kumar had in his presence taken out several lots of heroin and on the directions of Saji Mohan he and Balwinder Kumar mixed slaked lime in the lots and made another big lot which was handed over to Saji Mohan for showing a big seizure at Chandigarh but a perusal of the chemical analysis reports reveals that the samples were not analysed for presence of slaked lime, thereby in essence, nullifying the statement Ex.PW1/H made by Naveen Kumar under Section 67 of the NDPS Act. Admittedly, at the time of the alleged pilferage, handing over of narcotics to Naseeb Chand, the recovery of 10 kgs of narcotics of unclaimed seizure at Amritsar by officers of the Customs Department, Saji Mohan was the Zonal Director, NCB Chandigarh and Balwinder Kumar was Superintendent, NCB Chandigarh. The charge of the malkhana was with Balwinder Kumar. The overall control and supervision was with Saji Mohan. After receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er arguments advanced by counsel for the appellants. An argument that the statement under Section 67 of the NDPS Act cannot be read against Naseeb Chand, as it was not recorded during an inquiry based upon use of the words "an inquiry under Section 53(1) of the NDPS" in the notice Ex.P8, must also fail. The notice Ex.P8 refers to Section 53(1) of the NDPS Act but as is apparent from the facts, no investigation was pending on the date of service of the notice on 26.03.2009 or recording of the statement on 27.03.2009. All that was pending was an inquiry during which statements as provided under Section 67 of the NDPS Act were recorded. The statement recorded under Section 67 of the NDPS Act, therefore, cannot be said to be a statement recorded before a police officer during investigation, so as to be ruled out of consideration. The next question is whether the statement Ex.P9 made by Naseeb Chand can be relied for convicting Naseeb Chand. A statement made under Section 67 of the NDPS Act, if it records an inculpatory admission can be read against an accused making such a statement as an admission as to the contours of a factual situation within his special knowledge and is, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses to succeed and render meaningless provisions in various statues relating to economic crimes and smuggling of drugs. We shall not be misunderstood to have held that in each and every case, a selfinculpatory statement recorded under Section 67 of the NDPS Act has to be accepted or that retractions cannot be accepted. All that we propose to hold is that the final arbiter is the evidence on record i.e. the contents of the statement, the timing of the retraction, the particulars of the allegations of force and coercion and then depending on the fact and circumstances of a case, the judicial perception of a Court while accepting or rejecting the retraction. The facts of the present case do not enable us to accept the retraction as not only was it not proffered when Naseeb Chand was produced before the Magistrate for the first time but the application for retraction is devoid of even rudimentary particulars of any acts that may constitute force or coercion. The mere fact that Naseeb Chand was in the NCB office, is irrelevant as Naseeb Chand is not an ordinary individual. Naseeb Chand is an informer and has been in jail before and, therefore, would not capitulate easily. We, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a confession but also against the other accused being tried with such person. As we have accepted the truth and the evidentiary value of the statement made by Naseeb Chand, have no hesitation in holding that the admission made by Naseeb Chand can and may be read against Saji Mohan to raise an inference of culpability. A perusal of the statement Ex.P9, made by Naseeb Chand reveals that it contains a categoric admission that 10 kgs of narcotics were handed over by Saji Mohan to Naseeb Chand for sale. As we have already held that the admission made by Naseeb Chand can be read against Naseeb Chand, we are inclined to invoke Section 30 of the Evidence Act to hold that as Saji Mohan who was tried alongwith Naseeb Chand, the statement Ex.P9 made by Naseeb Chand has to be read against Saji Mohan to infer the commission of offences under the NDPS Act. Considering for a moment that the statement made by Naseeb Chand requires corroboration, we need not travel too far to seek corroboration. Naseeb Chand in his statement Ex.P9 stated that after receiving 10 kgs of heroin from Saji Mohan he reached Amritsar where he handed it over to Inspector Baljinder Singh of the Customs Department and he ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment u/s 67 of the Act can be used against me in the court........ One evening, in Nov., 2008, Saji Mohan told me to pick him up from the office. At about 7.30/8 p.m., Saji Mohan Sahib reached the office where Superintendent Balwinder Kumar was present. They had taken out several lots. In the presence of Saji Mohan Ji, on his direction, I and Balwinder Kumar mixed lime in the lots and made another big lot and that packet was given to Saji Mohan Sahib. I asked Saji Mohan and Balwinder Sahib what they would do with the packet upon which they told me that some big seizure would be shown in Chandigarh. This incident occurred on two occasions, but I can not correctly remember the date. Many a times, whatever money was recovered in the raids, was given to Saji Mohan through Balwinder Kumar Superintendent....." Naveen Kumar has clearly stated while making a statement under Section 67 of the NDPS Act that under instructions of Saji Mohan he and Balwinder Kumar took out heroin from various lots and then handed it over a packet to Saji Mohan. Balwinder Kumar was incharge of the malkhana i.e. all narcotics seized under the jurisdiction of the Narcotics Control Bureau, Chandigarh were in his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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