TMI Blog2009 (11) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by P.R.Lakra PW-4 and joined by D.P.Saxena PW-2 and Sudhir Puthran PW-3. The DRI officials informed the apprehended persons that they were to be searched and if they so wished they have a right of getting their search effected either in the presence of a gazetted officer or a Magistrate. Notice under Section 50 of the Narcotic Drug and Psychotropic Substance Act, 1985 (hereinafter referred to as the NDPS Act) was served upon each of the two apprehended persons. The said notice served upon Vimal Kumar Bahl is Ex.PW-2/B and that served upon Surinder Raj Singh is Ex.PW-2/C. Both the persons declined this request and their endorsements appear at point B-1 to B-1 and C-1 to C-1 of Ex.PW-2/B and Ex.PW-2/C respectively. These documents were witnessed by the Panchas i.e. PW Ashok Kumar and PW Rajesh Kumar. 3. The white Maruti vehicle was rummaged first; from the dickey of the said vehicle one blue coloured check canvas bag was recovered; on opening the same it was found to contain 17 packets containing a white substance. The registration certificate of the vehicle evidencing the ownership of Rajesh Pandoh was also seized. Nothing incriminating was recovered from the silver grey Matiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-I personally verified the seals of the samples as per the description mentioned on the test memo Ex.PW-2/K and under his supervision the report Ex.PW-5/B had been prepared testing the drawn samples as positive for heroin/diacetylmorphine i.e. a drug prohibited under the provisions of the NDPS Act. 10. The Maruti vehicle no. DL-9C-3785 was registered in the name of Rajesh Pandoh. Ex.PW-1/K was the letter addressed by B.K.Pandoh, the father of Rajesh Pandoh to PW-1 stating that this vehicle had been sold by his son Rajesh Pandoh to Dheeraj Manchanda PW-6. Ex.PW-6/A was the delivery receipt of this vehicle evidencing that Dheeraj Manchanda had sold this vehicle to one Ashu Malhotra PW-9 resident of D-120 Suraj Vihar, New Delhi, who in turn had lent it to Vimal Kumar Bahl for use. 11. On the basis of the aforenoted evidence which had been collected by the prosecution vide impugned judgment dated 12.8.2005 both the accused persons were held guilty for having committed offences punishable under Section 21 read with Section 29 of the NDPS Act. They were sentenced vide order of sentence dated 23.9.2005. Convict Vimal Kumar Bahl had been sentenced to undergo RI for a period of sixte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the NDPS Act; PW-9 Ashu Malhotra has given yet a different address. Occupation of the car by Vimal Kumar Bahl at the relevant time not having been proved, the obvious corollary is that the contraband recovered from this vehicle also cannot be foisted upon Vimal Kumar Bahl. (ii) Statements under Section 67 of the NDPS Act are valueless; they are to be equated with a disclosure statement of an accused recorded under Section 26 of the Evidence Act and such statements having been made while the accused were in the custody of the police are presumably statements made under the coercion and pressure and have no value in the eyes of law. Reliance has been placed upon 2009 (2) Crimes 171 Union of India vs. Bal Mukand as also upon 2009 (3) Crimes 109 SC Raju Premji vs. Customs as also another judgment of Supreme Court reported in 2008 (9) Scale 681 Noor Aga vs. State of Punjab Anr. It is submitted that in this case the said statements were retracted by the accused persons on the very next day i.e. 18.4.2001 itself and such a retracted confession is even otherwise valueless. The information collected in the said statements have not been verified; whether any Pakistani national by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and seizure to be given to the immediate official superior; PW-1 is not the immediate official superior of PW-2; non- compliance of this provision of law also vitiates the trial. (vi) The standing instructions 1/88 of the DRI department containing the procedural safeguards to be followed for a search and seizure effected under the provisions of the NDPS Act have not been followed. The test memos are to be prepared in triplicate; along with a forwarding letter; PW-4 has stated that there were two test memos which had been prepared; PW-5 in his cross- examination has admitted that there was no forwarding letter in this case and only test memos were received; test memos have not been prepared by the IO PW-2; Panchnama is also silent on this score. The documents are typedwritten which is not possible if the same were prepared at the spot; essential safeguards of sampling and seizure not having been followed in true letter and spirit, benefit of doubt has accrued in favour of the accused. (vii) The burden of proof in a criminal trial is always on the prosecution. Resort cannot be taken to the provisions of the Section 35 and Section 54 of the NDPS Act until and unless the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... role of Rajesh Pandoh. PW-2 had issued summons to Rajesh Pandoh. B.K.Pandoh his father vide reply Ex.PW-1/K addressed to PW-1 stated that this vehicle had been sold to Dheeraj Manchanda of B-29, Lajpat Nagar-II, New Delhi on 23.2.2001. Dheeraj Manchanda PW-6 had been summoned in the office of PW-1 vide summons Ex.PW-1/O and his statement under Section 67 of the NDPS Act running into two pages Ex.PW-1/P was recorded. On oath PW-6 had stated that in February, 2001, he had purchased this car from Rajesh Pandoh and in the next month i.e. in March 2001 through Pankaj he had sold it to Ashu. Delivery receipt Ex. PW-6/A evidenced the sale of this vehicle to Ashu Malhotra through Pankaj and signatures of Pankaj at point A have been identified by PW-6. 16. Ashu Malhotra was summoned before Investigating Officer PW-1 through summons Ex.PW-1/H. He had given his statement under Section 67 of the NDPS Act on 25.4.2001 Ex.PW-1/J. Ashu Malhotra has come into witness box as PW-9. On oath he has deposed that he has no concern with the white maruti car; this witness was declared hostile and thereafter Special P.P. was allowed to cross-examine this witness. In his cross-examination PW-9 had denie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ama Ex.PW-1/D, the first document prepared after the recovery also specifically recites that Vimal Kumar Bahl was driving the said vehicle at the time when the vehicle was intercepted and from the dickey of the said vehicle contraband was recovered. 21. It is relevant to point out that at no stage has A-1 put up any defence that this maruti vehicle was not in his possession on the fateful day; the witnesses to the recovery PW-2. PW-3 and PW-4 have not been cross-examined on this score and no suggestion has also been given to either of them that on 17.4.2001 when A-1 was apprehended with the contraband, this vehicle was not in his possession or he was not driving it. A bald suggestion has been given to PW-1 that the accused was not in possession of the said car and that Ashu Malhotra had not lent it to him. This witness i.e. PW-1 was not an eye-witness to the recovery; she had only recorded the statement of A-1 under Section 67 of the NDPS Act. The recovery witnesses i.e. the PW-2, PW-3 and PW-4 have not been suggested this defence which is now sought to be propounded. 22. The second stage when the accused is permitted to adduce his defence strategy, in a criminal trial is at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is father‟s name being O.P. Bahl and his residence at the IInd Floor Hudson Lane had also been recorded. Statement has been signed at point A by PW-9 and phone No.4623148 had been penned by him. PW-9 has also put his signatures on the two photographs Ex. PW-9/X and Ex.PW- 9/Y in token of the identification of A-1. The telephone number given by PW-9 in this version Ex. PW-1/J which was recorded on 25.4.2001 is the same number which has been given by A-1 in his statement under Section 67 of the NDPS Act wherein on page five he has stated that he knows Ashu Malhotra for the last 17-18 years and his telephone number is 4623148. In his statement A-1 has further stated that father of Ashu Malhotra used to deal in watches in Lajpat Rai Market which has been confirmed by PW-9 in his statement Ex.PW-1/J. Ex.PW-1/B i.e. the statement of A-1 under Section 67 of the NDPS Act was recorded on 17.4.2001 and Ex. PW-1/J was recorded on 25.4.2001; the information contained in both the versions are corroborative of one another. It is also not the case of PW-9 that he had made any complaint to any higher authority that he had been coerced or forced or pressurized to give this statement Ex.PW-1/J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aon Road; they have further categorically stated that the narcotic drug was transferred from silver grey matiz to the white colour maruti car and it was only thereafter that the occupants of the cars were apprehended by the raiding party. A1 has not been nailed on his photo identification by PW-9 alone; judgment relied upon by defence counsel on this score is of no help to him. 29. PW-7 Chander Bhan, official form Licensing Office, had appeared in the office of DRI pursuant to the summons issued to him. He had produced the entire record of this vehicle; the file of the same has been exhibited in the Court as Ex. PW-7/DA1 to 32 pages. Record has established that this vehicle continues to be registered in the name of Rajesh Pandoh. M.K.Jetali PW-11 was the landlord of B.K.Pandoh father of Rajesh Pandoh; PW-11 has deposed that B.K.Pandoh was a tenant in his premises for about 8 to 10 years and he had left the premises sometimes in the year 1994. He has further stated that relations of B.K.Pandoh and PW-12 were cordial and he used to come to visit him even after leaving the tenanted premises; Ex.PW-11/A addressed to B.K.Pandoh had been handed over by him to B.K.Pandoh. This answers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were recorded at almost the same time. Till this time the accused were not under arrest; they had been arrested at 23.45 hours on 17.04.2001, vide arrest memos Ex.PW-1/G Ex.PW-1/H. 35. Ex.PW-1/B Ex.PW-3/B have been perused. The vehement argument of the learned defence counsel is that no verification on the facts elicited in these statements has been done; in the absence of which the department is not in a position to categorically state that the so called voluntary versions given by the accused in these statements are correct or not. 36. This submission has little force. It is not in dispute that from the evidence on record it has been established that the statements were recorded almost simultaneously. In Ex.PW-1/B, A-1 has given the details of his family i.e. his parents living in Dehradun along with his youngest brother; his other two brothers living separately in Dehradun; his father O.P. Bahl was running a watch business in the Paltan Bazar under the name and style of M/s Gian chand Bros; his father being 75 years of age and being a retired man; his mother being a house wife; his sister married to an advocate in Delhi; he having started the business of watches in L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law is Inderjeet Singh; her father‟s name is H.L.Vashist who has retired from the Railways. All these facts i.e. the details of the family history given by A-2 on 17.4.2001 in Ex. PW-3/B have been corroborated on a much later date i.e. 21.4.2004 by his wife when she had come into witness box as DW-1. DW-1 had also given a false statement that her husband A1 cannot write English; this is contrary to Ex.PW-3/B which is in the handwriting of A2; A2 has not denied that his statement is not in his hand; even in his retraction application he has only stated that he was coerced to write this statement; for this incorrect statement of DW-1 Court is inclined to draw an adverse inference against A-2 for having projected a false defence. 40. In these circumstance, there is little doubt left with this Court but to hold that the statement given by each of the accused i.e. Ex. PW-1/B and Ex. PW-3/B are their voluntary versions detailing the facts which were only in their special know how and not known to any other person; submission of learned defence counsel that these facts have not been verified is, thus, falsified. 41. Within 24 hours of their arrest both the accused persons were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day i.e. on 18.4.2001. They were examined in the LNJP Hospital and this is evident from the documents Ex.PW-2/H1 Ex.PW-2/H2 that is the application submitted by the Investigating Officer to the Chief Medical Officer of the LNJP Hospital seeking their medical examination. The endorsement of the concerned doctor categorically records that both the accused persons were conscious and well oriented with their condition stable; no fresh injuries were recorded on the person of either of the two accused at the time of their examination. Their versions in their retracted confession that they have been beaten by the officers of the DRI, have thus no force. 45. It is also clear that a retracted confession drafted by the Advocate had been placed before the accused persons who had blindly signed on the same; it was a legal formality on the legal advise of the respective counsels for the accused; legal interview with the counsel was yet to take place; such a retraction even otherwise has no value. 46. In Kanhaiyalal v. Union of India 2008 I AD(Cr.)( S.C.) 277, Supreme Court had held that the statement made by an accused at a time when he was not under arrest the bar of section 24 to 27 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution‟s case must he held to be lacking in credibility. 5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law. 6. The investigation of the case was not fair. We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. 48. The Supreme Court in this case had not conclusively decided on the powers vested under Section 53 of the NDPS Act; arguments of the learned defence counsel on this score are without force. It is, thus clear that a statement made before an officer vested with the powers under Section 53 of the NDPS Act cannot be equated with a statement made under Section 161 of the Cr.P.C. before a police officer and a statement made before such an officer would not be excluded by virtue of provisions of Section 25 to 27 of the Evidence Act; this question not having been examined and conclusively decided by the Supreme Court in the Noor Aga case cited supra. In this view of the matter, this judgment does not come to the aid of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by or accessible to, the public. 53. The argument urged before this Court is that there has been a non-compliance of Section 42 of the NDPS Act; this document Ex.PW-12/A had not been filed along with the complaint and had been filed subsequently i.e. even after the stage of framing of charge. Attention has been drawn to the order dated 7.2.2002 wherein the Court has permitted this document to be taken on record. Attention has also been drawn to Ex.PW-12/A i.e. the purported secret information as also a respective statements of the accused recorded under Section 67 of the NDPS Act i.e. the Ex.PW-1/B and Ex. PW-3/B. In Ex. PW-1/B, it has been stated by A-1, I was behind Surinder Singh in white maruti DL-9C-3785 and watching them on my way to Delhi. I instructed Mr.Singh to meet me at Shiva Temple, Delhi-Gurgaon Road, Delhi. A-2 in Ex.PW-3/B has stated, On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used, Ex.PW-2/B and Ex.PW-2/C also states that the officers of the DRI have reason to believe that narcotic drug has been concealed. These documents are also dated 17.4.2001. 57. In this view of the matter, the submission of the learned defence counsel that Ex. PW-12/A has been prepared subsequently and is a fabricated document, appears to be meritless. Trial Judge has correctly appreciated this evidence and held that there has been a compliance of Section 42 of the NDPS Act. 58. This apart, it would be relevant to state that accused persons have been apprehended on the National High Way No.8 on the Delhi Gurgaon Road. The recovery of the contraband had been effected at the DRI Office i.e. the ground Floor, B- Block, Indrapratha Bhawan, I.P. State, New Delhi. This is a public place; applicability of Section 42 does not arise. Section 43 is the applicable provision. 59. In Narayanswamy Ravishanker v. Astt. Director, Directorate of Revenue Intelligence 2007 Crl.L.J. 27, the seizure of the drug had been effected at the Airport; Section 43 was held to be the applicable section; there was no requirement for the procedure of Section 42 to be followed. In State of Haryana v. Jarn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having their search conducted either in the presence of a magistrate or a gazetted officer and it is only after they had understood the contents of the same that they had given their replies at points B1 to B1 and C1 to C1 on Ex.PW-2/B and Ex.PW-2/C; their signatures in lieu of having received the notices appear at point B. The oral versions of PW-2 and PW-3 have also been perused. The notices were also given in the presence of PW-4. PW-2 in his cross-examination has admitted that the notices were prepared at the ground floor and after that on the ground floor the bag containing the contraband was opened; so also is the version of PW-3 and PW-4; PW-2 has further stated that no other document was prepared at the ground floor except the notices Ex.PW-2/B and Ex.PW-2/C; this is also corroborated by the version of PW-3 and PW-4. The mandate of Section 50 of the NDPS Act stood complied with. 63. In the instant case, the contraband had been recovered from the dickey of the maruti vehicle driven by A-1. The recovery had not been effected from the personal search of the accused; Section 50 even otherwise would not apply. In Narayanswamy Ravishanker v. Astt. Director, Directorate of Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong room by PW-5 and the chemist. The report dated 18.12.2003 at the back of Ex.PW-2/K had opined that the samples contained diacetylmorphine. It further recites that facsimile of the seal of the chemical examiner was affixed on the remnant samples. 68. The case property i.e. the 17 packets of the contraband, one set of duplicate samples and also remnant samples were exhibited in the testimony of PW-2. PW-2 had admitted that the test memos were prepared at the spot in duplicate; Ex.PW-2/K and Ex.PW-2/J; Ex.PW-2/K has been sent along with the samples to the CRCL and back page of the Ex.PW-2/K contained the report of the CRCL in the handwriting of PW-8. 69. The test memos are cyclostyled documents, the details have been filled in type written form and column-5 of Ex.PW-2/J and Ex.PW-2/K recites that the samples had been drawn on 17.4.2001 and the date of dispatch has been mentioned as 18.4.2001. It is not in dispute that the proceedings have been conducted in the office of the DRI; type writer was available with the department at the time when the test memos were prepared in the department; that is why the columns were filled in typed form. PW-2 in his cross-examination has st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slips; since the paper slips were intact; possibility of tampering of the samples is necessarily excluded. 73. Standard of Proof:- The burden of proof in a criminal trial is always on the prosecution; it is for the prosecution to prove its case beyond reasonable doubt; however, this test of proof beyond reasonable doubt is a guideline; not a fetish and the guilty cannot get away with because truth suffers from some infirmity when projected through this human process. 1978 Cr. L.J. 766 Inder Singh vs. State. 74. The legislature while incorporating certain provisions in the NDPS Act did so with an intention. Section 35 of the NDPS Act is a presumption of the culpable mental state of the accused; the court shall presume the existence of such a mental state but it shall be the duty of the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that section. AIR 2001 SC 821 Abdul Rashid Ibrahim Mansuri v. State of Gujrat while expounding the provisions of Section 35 of the NDPS Act the Supreme Court had held that the burden of proof cast on the accused under Section 35 can be discharged through different modes; he can rely on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of the investigation was recorded on 17.4.2001; thereafter inspite of repeated summons having been sent by the Court to secure their presence they could not be traced; this is reflected in the order sheets dated 7.3.2003, 13.3.2003 and 19.8.2003. In these circumstances the question of an adverse inference to be drawn against the prosecution under Section 114(g) of the Indian Evidence Act does not arise; it is not as if the prosecution was deliberately withholding this evidence. 79. In M. Prabhu Lal v. The Assistant Director, Directorate of Revenue Intelligence JT 2003 (Suppl.2) SC 459, the seizure was effected 20 k.m. away from the place where the search was conducted; panch witnesses were not examined; Supreme Court had held that no prejudice has been caused to the accused. 80. Conspiracy of A-1 and A-2 for the possession and transportation of this narcotic drug is prima facie evident. A-1 and A-2 in their statements under Section 67 of the NDPS Act have detailed private informations about one another; it has been corroborated that at the asking of A-1, A-2 had paid a sum of ₹ 1,02,2000/- to a contact of A-1 outside Ravi Dhaba, Manesar Haryana to collect a bag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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