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2015 (10) TMI 330 - DELHI HIGH COURT

2015 (10) TMI 330 - DELHI HIGH COURT - TMI - Offence under NDPS ACT - secret information. - validity of evidence oral and documentary - From a cavity behind the tail light of the TATA Sumo Vehicle, Heroin/diacetylmorphine was recovered which after weighing was found to be 7.896 kg. Accused was apprehended and arrested. - Held that:- in this statement the appellant had stated that he used to park the vehicle in the night at the residence of his employer (PW-11) and used to pick it up the next mor .....

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of the defense adopted by him as the vehicle was admittedly never in possession of Shera and thus Shera would not have had a chance at any point of time to implant the contraband in the vehicle. The defense of the appellant appears to be dishonest and an afterthought.

After the samples and contraband had been received by Lakhi Ram (PW-3) who was working as inspector in Valuable Godown (through PW-7) entries in the Register were made after tallying the seal impression which was affixed .....

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nt is also the minimum. - Decided against the appellant. - CRL. A. No. 637/2013 - Dated:- 4-9-2015 - Indermeet Kaur, J. For the Petitioner : MrNeeraj Bhardwaj, Adv For the Respondent : Mr Satish Aggarwal, Adv JUDGMENT Indermeet Kaur, J 1. This appeal is directed against the impugned judgment and order of sentence dated 16.7.2012 and 20.7.2012 respectively wherein the appellant Tarsem Singh stood convicted under Section 21(C) read with Section 29 of the Narcotic and Psychotropic Substances Act, ( .....

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The version of the prosecution is that pursuant to a secret information (reduced into writing) on 02.01.2009. The accused was intercepted in a TATA Sumo Vehicle at Singhu Border at about 2.00 a.m. on 03.01.2009. Two public witnesses had been asked to join the raid. The vehicle was asked to stop, initially it did not stop, but thereafter on chasing it was stopped. On checking the vehicle the appellant was apprehended. There was one more person Shera who was a passenger in the car but he managed t .....

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property 5 gram samples were taken at the spot. Test memos were prepared at on spot. The case property was deposited in the Malkhana and thereafter sent to the CRCL; which on analysis, tested positive for diacetylmorphine. 4. On the basis of the aforenoted evidence oral and documentary, the accused was tried, convicted and sentenced as aforesaid. 5. On behalf of the appellants, arguments have been addressed in detail. It is pointed out that the mandate of Section 50 of the NDPS Act has not been .....

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ant has placed reliance upon 2005 [1] JCC [narcotics] 57 Eze Val Okeke @ Val EzeVs. Narcotic Control Bureau. Co-accused Shera was permitted to escape. He was the real culprit. This was the defence of the appellant right from inception and even in his statement recorded under Section 313 Cr.P.C. He had disclosed that he was only the driver of the vehicle and had been directed to go to Delhi. The contraband had been planted upon him. Shera was the passenger who was travelling in the car and the co .....

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examined by the prosecution. The members of the raiding party have been examined as PW-1 (B.K. Banerjee), PW-7 (R.Roy) and PW-9 (Hari Om). 9. PW-4 was a Tax Assistant, working in the DRI Headquarters. He had deposed that on the fateful day he was called to the ground floor of the building where he had joined the raid. He was informed by PW-7 that accused and his vehicle was required to be searched and notice under Section 50 of the NDPS Act (Ex.PW-4/A) was prepared in his presence. Two public wi .....

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e. Endorsement by accused has been identified at point B. PW-4 was not cross-examined. 10. Before adverting to the testimony of other members of the raiding party a perusal of Ex.PW-4/A shows that it bears an endorsement of the appellant at point A. Ex. PW4/A was prepared by PW-7 and witnessed by PW-4. Even otherwise it would be relevant to state that the recovery had been effected not from the person of the appellant but from the cavity behind the left tail light of TATA Sumo Vehicle which the .....

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emises etc. However, if the empowered officer, without any prior information as contemplated by Sec. 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the N.D.P.S. Act is also recovered, the requirements of Sec. 50 of the Act are not attracted." In the second judgment (supra), the Apex Court had held: "Sec. 50 will come into play only in the case o .....

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mo Vehicle No.PB 02X 6373 to deliver it to some person in Delhi and they would be crossing the Singhu Border around 2.00 a.m. on 03.1.2009. 12. Ex.PW-2/A has been perused. This document discloses that this secret information had been reduced into writing by Inderjit Singh Sahni (PW-2) and was discussed with Pankaj K.Singh, Deputy Director of DRI (PW-8). At point B in Ex.PW-2/A the endorsement of PW-8 is there which states that suitable action for seizure of the contraband may be taken. Testimony .....

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n in Ex.PW-2/A. It was not separately required to be endorsed in the dak register by a separate D.D. It was on the basis of this secret information that PW-7 had been handed over this investigation. 13. Further deposition of PW-7 is that pursuant to the secret information two public witnesses Hari Om and Ashok Giridhar were asked to join the raid. On reaching the spot the Tata Sumo Vehicle No.PB 02X 6373 was found approaching from Singhu Border. A signal was given to stop the vehicle but the veh .....

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ity as Tarsem Singh. Notice under Section 50 of the NDPS Act (Ex.PW-4/A) was served upon him. He declined to get his search conducted before a Gazetted Officer or a Magistrate. Reply was given by the accused to the said effect at point B on Ex.PW-4/A. His search was conducted. Nothing was recovered from his personal search. On the examination of the vehicle 8 cloth packets having similar rubber stamping which were concealed in a cavity behind the left side tail light of the vehicle were recovere .....

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e gross weight was 7.891 kg. Three representative samples 5 gram each from the recovered substance from the 8 cloth packets were taken for the purpose of analysis. Remaining contraband was sealed. A panchnama (Ex.PW-7/A) was drawn up. It was signed by the appellant and the witnesses. The statement of the appellant under Section 67 (Ex.PW-7/F) was recorded wherein he admitted that this recovered contraband had been brought to him by Shera and this was to be carried to Delhi by concealing it in th .....

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a Sumo Vehicle, Harjinder Singh was examined as PW-10. He had stated that this vehicle bearing registration no.PB 02X 6373 was purchased by him in partnership with one Pragat Singh and the vehicle had been given to Pragat Singh. Pragat Singh was examined as PW-11. He had deposed that this vehicle was purchased in the joint name of himself and PW-10 and this vehicle had been given by PW-11 to his driver i.e. the appellant Tarsem Singh for plying it as a taxi. He had told the appellant not to take .....

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en propelled before this Court about the statement of the accused under Section 67 of the NDPS Act has since been retracted and thus cannot be read against him. This Court notes that the appellant has retracted this statement on 14.02.2009 i.e. after a lapse of 40 days. In his statement recorded under Section 67 of the NDPS Act, the appellant had revealed the information which was only written on his own personal knowhow. He had stated that he was working as a driver and had taken this vehicle t .....

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boration. There is no fault in this. 17. Testimony of PW-10 and PW-11 had established that the Tata Sumo Vehicle which had formed the subject matter of the secret information (Ex.PW-2/A) was admittedly registered in the name of PW-10 who had come into the witness box. This vehicle was purchased jointly by PW-10 and PW-11 but was in the custody of PW-11. PW-11 had given it to the appellant for the purpose of plying it as a taxi. The appellant was warned not to take it out of TaranTaaran but the a .....

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W-7 which could discredit his version. The defense of the appellant as emanated in his statement under Section 313 Cr.P.C, that it was Sher Singh to whom the contraband belonged and the appellant had no connection with the same is a defense which did not emanate in the cross-examination of the witnesses and had appeared only at the stage when the statement of the accused was recorded under Section 313 Cr.P.C. which was after 3 years. That apart this Court notes that in this statement the appella .....

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