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2015 (4) TMI 687 - PUNJAB & HARYANA HIGH COURT

2015 (4) TMI 687 - PUNJAB & HARYANA HIGH COURT - TMI - Pilferage of 10 kg Heroin from malkhana of Narcotic Control Bureau - Sentence awarded by the trial court under Sections 21(C), Section 29 and Section 32 of the NDPS Act - Reliance on retracted statement - Admission by the co-accused - Held that:- An inculpatory statement, which is in the nature of an admission, can be legitimately retracted but such a retraction can only be accepted if it is made expeditiously namely at the time when the acc .....

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not specifically set out the acts that constitute coercion and force for otherwise it would be near impossible for a prosecution in such cases to succeed and render meaningless provisions in various statues relating to economic crimes and smuggling of drugs.

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 eve .....

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stage, it would be appropriate to point out that even a retracted statement may, circumstances so permitting, form the basis of a conviction. The trial Court has duly considered various judgments of the Hon'ble Supreme Court on the point of retraction and the consideration of a retracted statement and only thereafter proceeded to rely upon the statement made by Naseeb Chand. We find no reason to differ with the opinion recorded by the trial Court that statement made by Naseeb Chand is suffi .....

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y a co-accused being jointly tried against another may be taken into consideration not only against the person making such 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 aforesaid table reveals a ma .....

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he statements made by the experts who conducted the test further corroborate the statements Ex.P9 and Ex.PW18/H made by Naseeb Chand and Naveen Kumar respectively, and conclusively establishes the guilt of the appellants.

As regards Criminal Revisions filed by Virat Dutt Chaudahry and Pushpdeep Singh, we have perused the impugned order as well as submissions made by counsel for the petitioners and as we have already held that a prima-facie perusal of their statements reveals that they .....

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as to make it difficult to distinguish one from the other. The shadowy world of informers, spies, drug traffickers, officers of the Customs Department, the Narcotic Bureau are so enmeshed in a web of deceit and greed, as to be indistinguishable. A sad commentary on the functioning of these agencies. The case, in hand, is a glaring example of what fortifies our opinions. - appellants, apart from doubting the legality of a statement, under Section 67 of the NDPS Act, have criticised the statements .....

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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 .....

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lwinder Kumar, Mr Sandeep Kumar, Adv. Naveen Kumar, Mr Gaurav Singla, Adv. Mr Sandeep Kumar, Adv. Naseeb Chand, Mr Kamal Sehgal, Adv. Virat Dutt Chaudhary & Pushpdeep Singh For the Respondents : Mr Sandeep Kumar, Adv. Davinder Pal Singh, Naveen Kumar, Mr Gaurav Singla, Adv. Naseeb Chand, Mr D D Sharma, Adv. NCB Chandigarh ORDER Rajive Bhalla,J. By way of this order, we shall decide CRA-D-375-DB- 2013, filed by Saji Mohan, CRA-D-410-DB-2013, filed by Balwinder Kumar, CRA-S-1472-SB-2013, filed .....

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,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 ₹ 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 ₹ 10 ,000 /-. In default of payment of fine h .....

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fficers of the Customs and Central Excise have filed revisions to challenge order dated 11.03.2013, passed by the Additional Sessions Judge, Chandigarh, directing the filing of a complaint before the Chief Judicial Magistrate, Chandigarh for initiation of proceedings under Sections 193 and 340 of the Cr.P.C. The appellants apart from Naseeb Chand, are officers of the Narcotics Control Bureau. Naseeb Chand was an informer working for the Central Excise and Customs Department. The revision petitio .....

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from the malkhana at Jammu by replacing heroin with slaked lime. Saji Mohan is thereafter alleged to have got in touch with Naseeb Chand, an informer of the Customs Department and handed over 10 Kgs. of heroin pilfered from the malkhana at Chandigarh to Naseeb Chand on 26.08.2008 for sale. Naseeb Chand is alleged to have transported the heroin to Amritsar where he allegedly told PWs 10 and 17 Virat Dutt Chaudhary and Pushp Deep Singh, officers of the customs department of an attempt to smuggle .....

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ed over to Naseeb Chand by Saji Mohan, from the Malkhana at Chandigarh. The trial Court has also relied upon test reports produced by the prosecution to prove variation in the chemical contents of heroin stored in the malkhana. Before we proceed any further, 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 a .....

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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 not proffered any explanation for its failure .....

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e percentage of diacetyl morphine. The absence of any evidence on record to even remotely suggest the presence of slaked lime in the contraband lying in the malkhana, disregards the very foundation of the prosecution case i.e. the appellants mixed slaked lime while pilfering heroin. Counsel for the appellants further submit that a perusal of the notice Ex.P8, served upon Naseeb Chand reveals that it was served through Zonal Director, NCB, Jammu and refers to an inquiry in connection with the arr .....

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and was recorded on the next very day i.e. 27.03.2009. The prosecution is required to explain as to how it could serve Naseeb Chand, within a few hours at Jammu, as to how Naseeb Chand reached Chandigarh from Jammu a total distance of more than 400 kilometers and recorded his statement on 27.03.2009. The foundation of the prosecution case, namely the statement by Naseeb Chand recorded under Section 67 of the NDPS Act is highly suspicious and must be ruled out of consideration as neither PW-2 R.C .....

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der 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 no .....

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tatement, therefore, cannot be said to be recorded during an inquiry under Section 67 of the NDPS Act and cannot partake the nature of an admission that can be read against an accused or his coaccused. It is further submitted that the statement made by Naseeb Chand must be ruled out of consideration as he has a shady past. Naseeb Chand who was admittedly an informer of the Customs Department and was imprisoned for spying against the country. The prosecution manipulated Naseeb Chand and put him u .....

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aseeb Chand and Naveen Kumar recorded under Section 67 of the NDPS Act have been treated as the gospel truth by the trial Court without considering these serious flaws. It is further submitted that the statement made by Naseeb Chand that Saji Mohan handed over heroin to him for sale, is belied by the fact that if Saji Mohan had entrusted pilfered heroin for sale, there was no reason for Naseeb Chand to have handed over the heroin to the Customs Department, at Amritsar where the prosecution alleg .....

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a in a false case. The officers at Delhi and Chandigarh could not detect any discrepancy in the heroin stored in the malkhana and, therefore, hatched a plan to frame Saji Mohan. Naseeb Chand was procured and forced to make a statement under Section 67 of the NDPS Act falsely implicating the appellants. The statement by Naveen Kumar who has been sentenced for six months and was said to be the PSO of Saji Mohan does not contain any incriminating material with respect to Chandigarh and as evidence .....

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as 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 reve .....

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which provides that a confession made by an accused can be used against another accused tried together with the accused making the statement, does not apply to the present case as the statement under Section 67 of the NDPS Act was not made during investigation or before a Magistrate but is a statement made during an inquiry. As regards the reports received from the forensic science laboratory, it is argued that second samples were not taken in the presence of any of the appellant and even other .....

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ine, cannot fasten culpability on the incharge of the malkhana namely Balwinder Kumar as the seals were found intact and the prosecution has not been able to prove its allegation namely the removing of seals, the pilferage of heroin and the mixing of slake lime. CRR-2176-2013 and CRR-2180-2013 Counsel for the petitioners in these revisions, submits that Virat Dutt Chaudary and Pushpdeep Singh, officers of the Central Excise and Customs have been examined as witnesses but surprisingly, the trial .....

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carrying 10 kgs of heroin, thereby proving that 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 tria .....

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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 ₹ 10,000/-, is not warranted. Counsel for the respondent submits that statements made by Naseeb Chand and Naveen Kumar are admissible as confessions made during an inquiry are not hit by Section 27 of the Evidence Act, 1872. Naseeb Chand and Naveen Kumar have not been able to prove by any prima facie evidence that the statements were made under duress or coercion .....

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used this 10 Kgs. of heroin delivered to them by Naseeb Chand, by transporting it to the border and eventually showing a recovery of unclaimed heroin by alleging that persons carrying heroin fled leaving behind 10 Kgs. of heroin. The statements made by Naseeb Chand and Naveen Kumar being relevant and capable of being read against Saji Mohan and Balwinder Kumar, the appellants have been rightly convicted and sentenced by the trial Court. The argument relating to notice served upon Naseeb Chand, .....

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agencies set up to stamp out the menace of narcotics, where the lines between the smuggler and the law enforcer are so blurred as to make it difficult to distinguish one from the other. The shadowy world of informers, spies, drug traffickers, officers of the Customs Department, the Narcotic Bureau are so enmeshed in a web of deceit and greed, as to be indistinguishable. A sad commentary on the functioning of these agencies. The case, in hand, is a glaring example of what fortifies our opinions. .....

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s 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/subord .....

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to the Director General of Narcotics Control Bureau, New Delhi, alleging that the interrogation of Saji Mohan has revealed certain facts which need to be verified, namely:- "1) Pilfering from the seizures of the unclaimed drugs started from May 2007. 2) Slaked lime was added to the contraband to enhance the quantity. 3) Sometimes part of the pure contraband was removed and the quantity of the seized contraband was managed by adding slaked lime. 4) The mixing of the slaked lime was done on .....

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band. 8) In some cases, the cash seized from the spot was distributed amongst raiding staff including Supdt. Balvinder Kumar and PSOs as reward. 9) In some cases, the samples of the seized contraband were taken after they were mixed with slaked lime to avoid detection of adulteration in future. 10) Not all pilfered contraband was brought to Mumbai. In all he had pilfered about 60 Kgs of Heroin, and out of that about 10 Kgs was handed over to one known drug smuggler of Jammu area namely Naseeb Ch .....

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Singh who made a signed statement Ex.PW18/D and was thereafter arrested, vide memo Ex.PW18/E. Devinder Pal Singh, however, was not arraigned as an accused. Sh.H.S.Gill, thereafter served a notice, Ex.PW18/G, upon Naveen Kumar who made a signed 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 .....

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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. Saji Mohan was issued a notice under Section 67 of the NDPS Ac .....

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nchnama Ex.P1 was summoned from the Jammu Zonal Unit alongwith test memo Ex.P2 and its report Ex.P3. A sample of the narcotics relating to these memos was sent for retesting. The memo is Ex.P4 and its report Ex.P5. A notice Ex.P7 was served upon M.M.S.Bhandari, Intelligence Officer, Zonal Unit, Jammu , who made a statement Ex.P6, pertaining to seizure of 60 kgs of heroin on 15.05.2008 and also stated that Balwinder Kumar was holding additional charge of Superintendent, Jammu Zonal Unit etc. Noti .....

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Ex.PW17/E. A request was made to the concerned Courts and the Additional Chief Judicial Magistrate, Chandigarh, to allow resampling in order to check for pilferage in unclaimed seizures during the period Saji Mohan remained Zonal Director i.e. 2006-2008. Vide order dated 10.04.2009 the application was allowed. After taking out fresh samples, the samples were forwarded for chemical examination. A similar order Ex.PW18/AY was taken from the CJM, Amritsar. The details of the test memos, their sampl .....

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e 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, D .....

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onal charge of the Jammu Unit. PW-2 R.C.Bodh, Superintendent, NCB, Jammu Zonal Unit, Jammu, who was on the relevant date posted at Chandigarh, has deposed that H.S.Gill issued a notice dated 26.03.2009, under Section 67 (Ex.P8) to secure the presence of Naseeb Chand who was served and came to their office on 27.03.2009. Naseeb Chand recorded his statement Ex.P9, which was taken down by this witness on the directions of H.S.Gill. After completion of the statement, Naseeb Chand appended his thumb .....

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o reproduce this part of his cross-examination, which reads as follows:- "It is correct that the charge of NCB godown was handed over to me by Balwinder Kumar the then Superintendent NCB, Chandigarh on 27.1.2009. It is correct that Balwinder Kumar is an accused in the present case. It is correct that the board constituted by Zonal Director Shri Sandeep Mittal, IPS, who was the then Zonal Director to check and physically verify the articles/contraband lying in the godown. It is correct that .....

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ult to write and that Vijay Kumar signed the statement in his presence. PW-4 is N.R.Sharma, Superintendent, NCB, HQ, Delhi, who at the relevant time was posted as Superintendent, Zonal Unit, NCB, Jammu and has deposed that Saji Mohan was holding additional charge of Zonal Director, NCB, Jammu and Balwinder Kumar was holding additional charge of the godown. PW-5 is Kaushal Kumar, Sepoy, NCB, Jammu Zonal Unit, Jammu . PW-6 is Head Constable Vijay Pal Singh, 141, BSF Battalion, Kashmir, and PW-7 is .....

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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 .....

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NCB officials." PW-8 Vijay Kumar has also admitted that he was served with a notice Ex.P17 and recorded a statement Ex.P12 in the office of the NCB, Chandigarh. During his cross-examination, he denied that he knew any person by the name of Naseeb Chand or that he has identified Naseeb Chand in Court at the instance of the NCB. PW-9 is Kartar Singh son of Ajit Singh, who has deposed that on 14.05.2008 he dropped Saji Mohan and Manjit Singh at Jammu. We need not refer to his deposition as his .....

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ourt has directed initiation of proceedings under Sections 193 and 340 of the Cr.P.C. against Virat Dutt Chaudhary after drawing an inference that the seizure recorded by the Customs Department on 27.08.2009 was fictitious and appears to have been used to cover up the narcotics pilfered from the Narcotics Control Bureau from the NCB malkhana at Chandigarh:- "I advised my staff to keep a vigilance on said Nasib Chand. For first two months he did not provide any information, in spite of the f .....

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naka. At about 2.30/3.00 AM on 27.8.2009 we intercepted 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 .....

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eby 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, who have examined and proved various samples and forwarded the samples for chemical examination. PW-13 is Ganesh Balooni, Superintendent, NCB, Chandigarh, who has proved the 'jamatalashi' of the accused particularly the packaging material of .....

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ar Roshan, Inspector BSF, Jammu . 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. PW-17 is Pushp Deep Singh, Inspector, Customs and Central Excise, Amritsar, who was produced to prove seizure of 10.030 Kgs. by the Custom Department on 27.08.2008. As the trial Court has directed initiation of proceedings under Sections 193 and 340 of the Cr.P.C against him, it would be appropria .....

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was brought to the office of custom office. The weight of the said contraband comes to be 10.030 Kilograms. It was an unclaimed seizure. We prepared documents regarding seizure of the contraband. I have brought the original file with me today. The said recovery was sealed after taking out the samples from each packet and sent for testing before CRCL New Delhi and we received the report from CRCL and the same is Ex.PW17/A. Copy of Form F is Ex.PW17/B. Panchnama is Ex.D5 and the weight of each pa .....

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ters 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 .....

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case with a view to establish the source and origin of false recovery in which I was allegedly involved by ATS Mumbai and for that reason the evidence and the statements have been fabricated by NCB, Chandigarh to cover upon the false investigation carried out by the ATS Mumbai and for that reason a team of my co-accused has also been projected alongwith me to show the false pilferage of heroin. I have not committed any such offence as projected rather I am a victim of false accusation and taint .....

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al." Naveen Kumar stated that:- "I am innocent and have been implicated in this false case by the NCB to create the alleged source of heroin allegedly recovered from Dr.Saji Mohan. I was also summoned by ATS Mumbai in that regard and was thoroughly interrogated thereat. When nothing incriminating was found against me, a clean chit was given to me. Later on to establish the alleged source of the recovery of contraband, the ATS Mumbai in league of high ups of NCB started a malafide move .....

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r move, the ATS Mumbai joined hands with NCB officials/officers and after fabricating various memos, statements under Section 67 of the NDPS Act, had projected the present case of pilferage of heroin from different unclaimed recoveries including the Malkhana of NCB by involving me 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 t .....

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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, Intelligence Officer, N .....

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56. Presence of accused Balwinder Kumar, Davinder Pal Singh and Naveen Kumar in NCB, JZU on 15.5.2008 not having been established, the panchnama Ex.P-1 relied upon by the prosecution, proved to be a false document, statements of prosecution witnesses regarding the meeting convened by accused Saji Mohan not being reliable, it is held that prosecution has failed to prove that on 15.5.2008 in the area of NCB, JZU, accused Balwinder Kumar, Saji Mohan and Davinder Pal Singh, in conspiracy and in conn .....

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res lying in the malkhana of NCB, Chandigarh but the statements by Naseeb Chand Ex.P9, and Ex.PW18/H by Naveen Kumar prove that on 26.08.2008 Saji Mohan and Balwinder Kumar pilfered 10 kgs of heroin from the malkhana at Chandigarh and handed it over to Naseeb Chand. The Trial Court thereafter went on to doubt the depositions by PWs 10 and 17 about recovery of 10 kgs of heroin at Amritsar by holding that the heroin entrusted by Saji Mohan to Naseeb Chand was shown in connivance with PWs 10 and 17 .....

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iscernible 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 transpo .....

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rt has concluded that this unclaimed recovery is false and was intended to cover up the pilferage by Saji Mohan and Balvinder Singh from Malkhana at Chandigarh. The prosecution also relies upon test reports to prove variation in diacetyl morphine in the contents of heroin stored in the malkhana and bases its case upon test reports after heroin stored in the malkhana was retested. A perusal of the evidence on record reveals that the prosecution in order to prove its charge of pilferage of narcoti .....

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een produced to prove recovery of 10 kgs of heroin on 27.08.2008 as unclaimed seizure. The pilferage from the malkhana is sought to be proved by the depositions of PW-11 S.C.Mathur, Chemical Examiner, Grade-I, Customs House, Kolkata and PW-12 S.K.Mittal, Chemical Examiner, Grade-II, CRCL, New Delhi, who examined the contents of narcotics and forwarded their reports. At this stage, it would be necessary to record that the prosecution admits that statements made by Saji Mohan and Balwinder Kumar u .....

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ourteen month for illegally crossing the border. In May, 2008, C. Vijay Kumar introduced me to Saji Mohan, who was the then Zonal Director of NCB, JZU. Saji Mohan asked me to meet him in Chandigarh where he had been transferred and gave me ₹ 500/-. After some time, C. Vijay of Jammu NCB told me to meet Saji Mohan in kothi no.80, Sector 2, Chandigarh. In June, 2008, I reached house no.80 to meet Saji Mohan and I was taken to him by a Sikh Sepoy. I spoke to Saji Mohan for about half an hour .....

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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 sampl .....

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der Singh, a driver and armed Constable came to Chandigarh from Amritsar in a vehicle and reached Chandigarh at about 1300 hrs. Inspector Baljinder Singh dropped me near NCB office and I met Saji Mohan who sent me to his residence and lateron, himself reached. I was given meals and ten packets of Heroin from a white box. After 10-15 minutes, I reached Sector 43, Chandigarh in an auto where I met Inspector Baljinder Singh and we started for Amritsar in the vehicle. At about 12/1 a.m., they reache .....

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ail in Pakistan and Jammu and that he was introduced to Saji Mohan by Vijay Kumar, appellant. After some time, he was asked by Vijay Kumar to meet Saji Mohan at House No.80, Sector 2, Chandigarh . He reached the aforesaid house in June, 2008, met Saji Mohan for half an hour. Naseeb Chand stated that Saji Mohan told that he would pay him R.50 ,000 /- if he sold heroin for him. Saji Mohan paid him ₹ 1000/- at that time. After 15-20 days, he met Saji Mohan in Chandigarh and told him that he c .....

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met Saji Mohan and asked for a sample. Naseeb Chand took the sample from Saji Mohan and took it to Amritsar and showed it to Baljinder 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, Sa .....

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ed 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........ 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 .....

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ecovered in the raids, was given to Saji Mohan through Balwinder Kumar Superintendent....." A perusal of the statement Ex.PW18/H made by Naveen Kumar reveals that the statement was recorded to prove the modus of pilferage from the malkhana at Chandigarh. Naveen Kumar states that he and Balwinder Kumar mixed lime in the narcotics and made a big lot of narcotics which was handed over to Saji Mohan. The trial Court has placed reliance upon statements Ex.P9 and Ex.PW18/H and held that though th .....

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as if the department had used force and coercion they would have recorded self-inculpatory statements by Saji Mohan and Balwinder Kumar also. Counsel for the appellants, apart from doubting the legality of a statement, under Section 67 of the NDPS Act, have criticised the statements by alleging that the notice served upon Naseeb Chand does not contain his address or the name of the officer who effected service and it has not been explained as to how notice dated 26.03.2009, issued from Chandiga .....

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008 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 .....

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ile in possession of a large quantity of narcotics and pursuant to letters received from the Director General of NCB, New Delhi etc. investigation commenced into narcotics stored by particular reference to the malkhana at Chandigarh and Jammu. PW-18 Harcharan Singh Gill, who was posted as Superintendent at the relevant time, issued notice dated 26.03.2009, Ex.P8 to Naseeb Chand, who appeared at NCB, Chandigarh on 27.03.2009 and made a statement Ex.P9, which we have already reproduced. A perusal .....

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ould have served this notice upon him and asked him to reach Chandigarh on 26.03.2009. Furthermore, Naseeb Chand does not deny that his statement was recorded on 27.03.2009 as while retracting his statement, admitted that a statement dated 27.03.2009 was recorded at NCB Chandigarh though by alleging threat and coercion, thereby admitting that he was present in NCB, Chandigarh on 27.03.2009 and recorded the aforesaid statement Ex.P9. We are, therefore, not inclined to discard this statement on ac .....

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f heroin to Naseeb Chand, a casual acquaintance, falls within the realm of speculation as what actually transpired between Naseeb Chand and Saji Mohan is within their special knowledge. We are, therefore, not inclined to discard the statement made by Naseeb Chand whether on account of ambiguities in the notice or on the basis of the other 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 wa .....

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ent 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 situatio .....

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e NDPS Act as sufficient to enable the prosecution to prove Naseeb Chand's culpability without having to prove mens rea, which is even otherwise writ large on the statement recorded under Section 67 of the NDPS Act. We, therefore, have no hesitation in holding that statement Ex.P9 made by Naseeb Chand has to be read in evidence as an admission by Naseeb Chand of the commission of the offences for which he has been charged, convicted and sentenced subject, however, to our accepting the opinio .....

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or retraction reveals that Naseeb Chand has not set out the particulars of the acts of force and coercion. An inculpatory statement, which is in the nature of an admission, can be legitimately retracted but such a retraction can only be accepted if it is made expeditiously namely at the time when the accused is produced before the Magistrate or soon thereafter and then also by putting forth credible facts that would indicate, but would not prove force/coercion. The ultimate principle that govern .....

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ious 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 .....

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s not an ordinary individual. Naseeb Chand is an informer and has been in jail before and, therefore, would not capitulate easily. We, therefore, affirm the opinion recorded by the trial Court that the retraction by Naseeb Chand does not detract from the admission made in his statement recorded under Section 67 of the NDPS Act. At this stage, it would be appropriate to point out that even a retracted statement may, circumstances so permitting, form the basis of a conviction. The trial Court has .....

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alwinder Kumar. As referred to above, the statement made by Naseeb Chand implicates Saji Mohan as the person who entrusted 10 kgs of heroin to him for sale. As a normal rule, the statement of a co-accused, cannot be read against the other but an exception to this rule is set out in Section 30 of the Evidence Act, 1872, which reads as follows: - "30.Consideration of proved confession affecting person making it and others jointly under trial for some offence: - When more persons than one are .....

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vidence Act postulates that where more persons than one are tried jointly for the same offence and one such person makes a confession affecting himself and the other accused, a Court may take into consideration such a confession not only against the person making the confession but also against others who have been implicated. The illustration appended below Section 30 of the Evidence Act, makes it amply clear that an admission made by a co-accused being jointly tried against another may be take .....

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rcotics 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 corroborat .....

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oon after Naseeb Chand handed over 10 kgs of heroin to Balwinder Singh, is duly admitted and proved from the depositions of PW-10 Virat Dutt Chaudhary, Assistant Commissioner (Retd.) Customs, Amritsar who has admitted that Naseeb Chand was an informer of the Customs Department and was helped by the department with secret funds. To similar effect is the statement made by PW-17 Pushpdeep Singh, Inspector Customs, Amritsar . The trial Court has in view of the admitted link between Naseeb Chand and .....

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ssing on this 10 kgs of heroin to an officer of the Customs Department, Amritsar and the sudden unclaimed seizure of 10 kgs of heroin near the Amritsar border completes a chain of facts implicating Saji Mohan and Naseeb Chand and two officers of the Customs Department who for reasons best known to the prosecution were not cited as accused but were cited as witnesses. We desist from recording any adverse comment on the conduct of the prosecuting agency except to the extent that after Naseeb Chand .....

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n the statement Ex.PW18/H made by Naveen Kumar which we would like to once again reproduce and reads as follows: - "..... I have been informed that this statement 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 .....

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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 direct control. The statement made by Naveen Kumar was retracted at a later stage and as we have already held in the case of Naseeb C .....

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the concerned Magistrate. The result is as follows: - CASES OF CHANDIGARH ZONAL UNIT, NCB, CHANDIGARH Sr. No. Crime No./Date Drug Seized Qty. of Drug (in KG) % of DAM in initial Testing % of DAM after Resampling Variation in % of DAM 1 1/2007 dt. 27.3.07 Heroin 05 56.00 13.3 -42.7 2 2/2007 dt. 25.4.07 Heroin .690 38.58 1.7 -36.88 3 3/2007 dt. 3.5.07 Heroin 08 A-1 40.9 B-1 55.5 C-1 79.8 C-2 26.1 +38.9 -29.4 4 5/2007 dt. 19.7.07 Heroin 16 Negative Twice C-I 2.8 C-II 31.7 +2.8 +31.7 5 6/2007 dt. 15 .....

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