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Netrapal, Vir Chand Rai Versus NCB

2015 (10) TMI 416 - DELHI HIGH COURT

Offence under NDPS Act - evidentiary value of the statements recorded under Section 67 of the NDPS Act - Held that:- True it is that independent persons are to join the investigation, especially the search and seizure proceedings. Nonetheless in the present case, absence of any independent person testifying to the search and seizure proceeding has not made the case doubtful a bit. - The minor contradictions with respect to time and place of search and seizure, in the testimony of witnesses, do n .....

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the nodal officer with regard to two numbers not being active on or at the relevant time does not impact the prosecution version.

Since no complaint was made either by DW-2 or his sister about the appellant Netrapal having been lifted and whisked away from the liquor vend at Sahibabad, the version of DW-2 also becomes unacceptable. Similar is the case with the statement made by appellant Vir Chand Rai before the Trial Court under Section 315 of the Code of Criminal Procedure.

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chanda, Advs ORDER Ashutosh Kumar, J. 1. Both the appeals are being disposed of by this common judgment. 2. The appellants have been convicted under Sections 20(b) (ii) (C) read with 29 of the NDPS Act by judgment of conviction dated 21.4.2011 passed by the Special Judge, NDPS, Patiala House Courts, New Delhi in Sessions Case No.N 149/08. By order of sentence dated 23.4.2011, the appellants were directed to undergo Rigorous Imprisonment for 10 years and a fine of ₹ 1 lakh, in default of wh .....

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ons unknown to the appellants, Bhupender Singh was not put on trial and he did not even step in the witness box to confirm the factum of the recovery from the said truck; (iii) the name of the appellants did not transpire in the secret information; (iv) independent persons were not examined and one person who joined investigation namely Sushil Gupta was not brought to the witness box to support the prosecution version; (v) contradictions in the date and time of the search and seizure proceedings .....

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50 of the NDPS Act; (ix) no recovery from the conscious possession of the appellants and finally non consideration by the Trial Court of the evidence of DW-2 in correct perspective. 4. It has also been argued on behalf of the appellants that the provisions of NDPS Act deal with very serious offences and more serious the offence, the stricter is the requirement of adherence to the provisions of the Act regarding search and seizure. It has been pointed out by the learned counsel for the appellant .....

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aforesaid information was forwarded to A.Shankar Rao (PW-8), Zonal Director, NCB who on receipt of such information commanded for conducting a raid after constituting a team for the same. 7. A team comprising P.C.Khanduri (PW-3), N.S.Yadav (PW-5) and Vikas Kumar (PW-7) found a truck by the aforesaid registration number parked in front of Adarsh Nagar police station. Three persons were found to be sitting in the driver's cabin, who disclosed their names as that of the appellants and one Bhup .....

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livered the 12 boxes of clothes. 8. The members of the team after disclosing their identity and making the appellants and another know about the information which they had about them, conducted search of the truck. Apart from the boxes of fruit juices, in each of the 12 boxes, stated to be containing clothes, two parcels wrapped in black polythene bag tied with jute thread were also found. The parcels, on being smelt was tentatively found to be ganja. In order to avoid obstruction of the traffic .....

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oceeding for the raid. A test memo in triplicate and recovery memo were prepared and the case property was later deposited in the malkhana. 9. The appellants gave their statement under Section 67 of the NDPS Act regarding their participation in the crime. 10. The samples which were drawn from the recovered contraband were sent for testing to CRCL which confirmed that the contraband was ganja. The appellants were, therefore, put on trial for the offences under Section 20 (b) (ii) (C) of the NDPS .....

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Officer, NCB, DZU, R.K.Puram, New Delhi he received a secret information on telephone that a person by the name of Veera was bringing ganja in huge quantity in truck No.UP-12H-7336 and the vehicle in question would reach AzadpurMandi Chowk between 2 PM to 3 PM. The aforesaid information was reduced in writing and transmitted to A.Shankar Rao, Zonal Director (PW-8) who directed for the search. He has testified to the fact that the contraband was recovered from the truck. In the cabin of the truck .....

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ce with the rules and the same were marked with the seal of NCB, DZU-3. The test memos and the recovery memos were prepared which too were affixed with the same seal. The proceedings concluded at about 11.40 PM in the office of NCB. The recovery memo has collectively been exhibited as Ex.PW-3/2 which bears the signature of Sushil Gupta, a public witness (not examined). PW-3 recorded the statement of the appellants under Section 67 of the Act which was signed by the appellants and Manoj Kumar Agg .....

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ham. 15. N.S.Yadav (PW-5) who at the relevant time was on deputation to NCB has confirmed the fact that on 30.10.2005, a raid was conducted and he was part of the raiding team. He has testified to the fact that the appellants were caught and contraband was recovered. 16. Similarly, Vikas Kumar (PW-7) was also a member of the raiding team as he was on deputation to NCB from CISF. He has testified to the fact that he was incharge of the seal and he issued the seal to P. C. Khanduri (PW-3) and made .....

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(PW-1) has stated before the Court that on 3.11.2005 Hawaldar Shiv Rattan (PW-2) brought 24 samples boxes marked A-1 to X-1; test memos in duplicate along with a forwarding letter to the CRCL. The same was received by him and was found to be sealed with seven intact lac seals of the description "Narcotics Control Bureau, DZU-3". The facsimile of seal affixed on each of the 24 sample boxes tallied with the specimen of seal as given on the test memo. After receiving the same, PW-1 gave .....

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ature of PW-1 and M.D.Mandol. PW-1 has categorically denied the suggestion that when the samples were produced before him they were found to be tampered. 21. Manoj Kumar Aggarwal (PW-4) has stated that he joined the raiding team in the office of NCB after the recovery of the ganja. He has testified to the fact that he issued summons to both the appellants to tender their statements. He also recorded the statement of one D.N.Sharma of M/s.Dabur Foods (Ex.PW-4/11). The driver of the truck namely B .....

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he seal, prior to it being analysed for determining the nature of the contraband. 23. The appellants have denied the entire set of allegation in their statement under Section 313 of the Code of Criminal Procedure. They have stated that it is a case of false implication. They have denied to have tendered any statement under Section 67 of the NDPS Act. The specific defence of the appellants are that they were picked up on 29.10.2005 from near a liquor vend at Sahibabad, Uttar Pradesh and that they .....

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aiding team. Aforesaid defence witness has also stated that these numbers were not active at that time. 26. Manak Chand who is the brother-in-law of appellant Netrapal has been examined as DW-2. Aforesaid Manak Chand has stated that his sister informed him that Netrapal had gone to his brother's house at Sahibabad from where he did not return. This information was provided to him by his sister at 8 P.M on 29.10.2005. The telephone number of Netrapal, according to DW-2 was found to be switche .....

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at in the secret information received by PW-3, one Veera was named and not the appellants, is of no significance. The secret information which was reduced in writing was to the effect that huge quantity of contraband is being brought on a truck by a person called Veera. The truck number was informed. Pursuant to such information, after obtaining approval of a superior officer of the NCB, a raid was conducted. The appellants were found to be occupying the driver's cabin. It is not necessary t .....

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e statements tendered by Bhupender Singh, the driver of the truck and Nokha Singh, the owner of the truck clearly establish that they were completely unaware of the contents of the 12 boxes which were stated by appellant Vir Chand Rai as containing clothes. Aforesaid Nokha Singh has been examined as PW-10 who has testified to the fact that Bhupinder Singh was the driver of the truck which he owned and also proved his statement (Ex.PW-4/13) which was given by him to the NCB officials. In this con .....

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tance. 29. The Trial Court has found, from the records, that summons were sent to Bhupender Singh but he was not found to be living at the said address. Sushil Gupta was issued summons under Section 67 of the NDPS Act to tender his statement on 31.10.2005 and pursuant to such a notice he appeared before the NCB officials and gave his statement. Since he was only a witness to the search and seizure, his address was not verified at the time of the request made to him to join the proceedings. 30. T .....

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mp; 7. 31. The minor contradictions with respect to time and place of search and seizure, in the testimony of witnesses, do not assume any significance. The testimony of even a single witness if found consistent and cogent could be the basis of conviction. 32. The contention of the appellants regarding non observance of the mandatory requirement of Section 56 of the NDPS Act is not tenable. The recovery of the contraband has been made from the truck, hence no notice under Section 50 also was req .....

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the ambit of the word "person" keeping in Section 50 of the Act. The Supreme Court in Pawan Kumar (Supra) at paragraphs 8, 9 and 10 has stated as follows:- 8. One of the basic principles of interpretation of statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical .....

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ice G.P. Singh, the learned author has enunciated the same principle that the words of the statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest the contrary (see the chapter -"The Rule of Literal Construction", p. 78, 9th Edn.). This Court has also followed this prin .....

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on is possible, the court must adopt the ordinary rule of literal interpretation." A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". 9. The dictionary meaning of the word "person" is as under: Chamber's Dictionary: "An individual; a living soul; a human being; b: the outward appearance, & c: bodily form; a distinction in form; according .....

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ack's Law Dictionary: "In general usage, a human being (i.e. natural person), though by statute term may include a firm, labour organizations, partnerships, associations, corporations," Law Lexicon by P. RamanathaAiyar: "The expression 'person' is a noun according to grammar and it means a character represented as on the stage, a human being; a self-conscious personality. 10. We are not concerned here with the wide definition of the word "person", which in th .....

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a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include f .....

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their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear." 34. Thus the aforesaid contention of the appellants has rightly been rejected by the Trial Court. 35. True it is that independent persons are to join the investigation, especially the search and seizure proceedings. Nonetheless in the present case, absence of any independent .....

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ly held by the Supreme Court that an officer under Section 63 of the NDPS Act is not a police officer. The aforesaid conclusion is based on a decision rendered in Raj Kumar Karwal vs. Union of India and Ors., (1990) 2 SCC 407 . The aforesaid judgments namely Raj Kumar Karwal and Kanihya (Supra) were considered by the Supreme Court in Noor Aga vs. State of Punjab and another, [2008 (9) Scale 681] wherein it was held that an officer under Section 53 of the Customs Act is a police officer and, ther .....

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