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2016 (2) TMI 241 - DELHI HIGH COURT

2016 (2) TMI 241 - DELHI HIGH COURT - TMI - Conviction for Carrying narcotics drug in their baggage while travelling from Jallandhar to Delhi - The charge for offence under Section 21(C) read with Section 8(C) as well as under Section 29 of NDPS Act was framed against both the accused to which they pleaded not guilty and claimed trial.

In the instant case, the statement under Section 67 of the Act was written by the appellant - Lydia Ninglianting in her own handwriting while that of t .....

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y observed by learned Special Judge that the statement made by the appellants were voluntarily in nature and could form the basis of convition. Moreover, the conviction was based not only on the basis of statement under Section 67 of the Act but also ample corroborative evidence in the shape of testimony of intelligence officers coupled with the recovery effected from the bags.

The impugned judgment and order on sentence does not suffer from any infirmity which warrants any interferen .....

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r baggage while travelling from Jallandhar to Delhi by Punjab Roadways bus and likely to reach ISBT, Kashmere Gate, Delhi between 1400 hours to 1430 hours. The said information was reduced into writing vide Ex.PW1/A and was submitted to Pankaj K Singh, Deputy Director DRI, (PW3), New Delhi for suitable action. 2. Mr Pankaj K. Singh called the Intelligence Officer - M.C. Maheshwari and directed him to take necessary action on the information. Thereupon, Mr. Maheshwari (PW-6) and other officers of .....

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t they have an intelligence that they may be carrying narcotic drugs with them and since that place was a busy place and was not suitable, therefore, they were asked to come to DRI office to which they agreed. Thereafter, all of them alongwith both the ladies intercepted at the bus stand reached DRI office where two panch witnesses were called and asked to join the proceedings. Both the ladies revealed their names as Lydia Ninglianting and Sheikh Dilshad. Notice under Section 50 of the NDPS Act .....

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inglianting was searched and after removing her personal effects, two heat sealed polythene packets containing some substance were found. On checking, it was found to contain off-white colour powdery substance which was given mark X1 and X2. Thereafter, the blue colour bag of brand name 'Splendid' was searched which was found to be containing three heat sealed polythene packets containing off-colour powdery substance. The packets were given mark Y1, Y2 and Y3. The small quantity of powde .....

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RCL which were examined by R.P.Meena, Assistant Chemical Examiner, CRCL (PW-5) who gave his report Ex.PW5/A opining that the samples analyzed by him were found to be heroin (diacetyl morphine). Summons were issued to both the accused in pursuance of which they appeared and their statements Ex.PW6/H and Ex.PW6/K were recorded under Section 67 of the Act. After completing investigation, the complaint under Section 21 and 29 of the NDPS Act, 1985 was filed against them. 3. The charge for offence un .....

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ing to do with the contraband nor anything was recovered from their possession. As regards their statement under Section 67 of the Act, it was alleged that no such statement was given by them and they were made to sign documents against their will. 5. Vide impugned judgment dated 29.07.2010, both the accused were convicted for offence punishable under Section 21(C) read with Section 8(C) of the Act. However, they were acquitted of the charge under Section 29 of the Act on the ground that no evid .....

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₹ 1 lac each, in default to undergo simple imprisonment for a period of one month. 7. Feeling aggrieved separate appeals being CRL.A. Nos. 770/2011 and CRL.A. 1046/2012 have been preferred by both the convicts. Since both the appeals are arising out of the common judgment and order on sentence as such they are taken up together. 8. Assailing the findings of learned Special Judge, NDPS Act, learned counsel for the appellants submits that prosecution has failed to prove the guilt of the acc .....

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ISBT, Kashmere Gate, Delhi, however, no person from the public was asked to join the proceedings at ISBT. Counsel further submits that the tampering of the case property is not ruled out. 9. Counsel further submitted that there is contradiction in the testimony of PW6 - M.C. Maheshwari and PW8 - Parminder Kaur as according to PW6 the statements of the accused was recorded from 7.15 to 10.15 pm by PW8, however, PW8 has deposed that she left the office of DRI at 7 pm. Reliance was placed on Narcot .....

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that the panch witnesses were not examined does not weaken the case of DRI as no animosity has been alleged by any of the appellants with any officer of DRI for which reason they would falsely implicate the accused in this case or would plant such a heavy recovery upon them. It is further submitted that the judgment relied upon by learned counsel for the appellants has no applicability to the present case as Hanan (supra) relied upon by learned counsel for the appellants pertains to the recover .....

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is no delay in depositing of case property as the recovery was effected on 20.11.2006 and the same was deposited with CRCL on 21.11.2006. Further, besides the testimony of the Intelligence Officer, recovery of contraband articles recovered from the possession of the appellants, there is statement of accused recorded under Section 67 of the Act wherein they have admitted the recovery from their possession, which is another clinching evidence against the appellants as such the impugned judgment d .....

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ived back with the report that he is not residing at the given address. However, as regards the other panch witness, Rohan Malik, there is no report. Therefore, at best it can be said that he was not examined by the prosecution. 13. Substantially similar plea was taken in Sumit Tomar vs. The State of Punjab, (2013) 1 SCC 395 which was a case under Narcotic Drugs and Psychotropic Substances Act, 1985. One Kaur Singh was joined by the prosecution, but was not examined. It was held by the Hon'b .....

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Narcotic Drugs and Psychotropic Substances Act, 1985, where the independent witness was given up as having been won-over by the accused. Similar plea was taken that on the uncorroborated statements of official witnesses, conviction cannot be based. Repelling the contentions, it was observed by Punjab and Haryana High Court that rule of prudence demands that there should be some corroboration through independent source of the statements of the official witnesses, but if the independent witness th .....

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tic Drug and Psychotropic Substances Act, where two public witnesses were joined in the proceedings but could not be produced since it was reported that no such person was residing at the given address. Similar plea was taken that non-examination of independent witness is fatal. Repelling the contention, it was held that: 13. If the public witnesses chose not to disclose their correct address to the NCB officials, NCB cannot be faulted for not producing them in the Court. It is quite possible th .....

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from the appellant, that by itself cannot be a good ground to reject the testimony of NCB officials, who, on receipt of an information, which was duly reduced in writing and brought to the notice of the superior officer, went to the spot and apprehended the appellant, on his being identified by the informer and seized the narcotic drug from him. The appellant does not claim any previous enmity or ill-will between him and the NCB officials. Therefore, they had no reason to depose falsely against .....

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Investigating Officer deposed that public persons were available when contraband was recovered, however, none acceded to their request of joining investigation, Court below found it unbelievable but no reason for same was recorded, all persons possessed contraband samples were brought on record to support that no tampering was done with samples hence accused were held guilty under Section 20 of the Act for possession of contraband substance. 16. Learned counsel for the appellants relied upon Gu .....

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he appellant; the seals of gunny bags were cracked and not legible and therefore the possibility of tampering with the case property could not have been ruled out; co-accused had been acquitted. In those circumstances, the appellant in that case was acquitted. 17. Similarly Narcotics Control Bureau v. Anju Tiwari & Anr. (supra) was an appeal against acquittal of the accused persons under Section 21 and 29 of the NDPS Act. The learned Trial Court had acquitted the appellant on several counts .....

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18. In the instant case, despite lengthy cross examination, nothing material could be elicited to discredit the testimony of PW6 - M.C.Maheshwari and PW8 - Parminder Kaur. Both these witnesses stood the test of cross examination. Learned counsel for the appellants pointed out a slight discrepancy in their testimony that according to PW6, statements of the appellants was recorded from 7.15 pm to 10.15 pm by PW8, however, PW8 stated that she left the office at 7 pm. However, the recovery was effec .....

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of learned counsel for the appellants that the possibility of tampering with the case property cannot be ruled out is devoid of any substance. The recovery of contraband was effected in the presence of PW6 - Mr M.C. Maheshwari and PW8 - Ms Parminder Kaur. It has come in the statement of Mr M.C. Maheshwari that after recovery of the articles and taking samples from them, the packets were wrapped in a white cloth bag and sealed with the seal of Directorate of Revenue Intelligence. Paper slip was .....

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d the seal on the sample packets with the facsimile given on the test memo and after testing the same, directed him to receive the samples. He received the samples in intact condition alongwith forwarding letter and test memo and handed the same to Mr S.K. Mittal, the Chemical Examiner. The seal on the sample packets were in intact condition. On 21.11.2006, Mr S.K. Mittal, In-charge Narcotic Section allotted two samples to Mr R.P. Meena (PW5), test memo in duplicate and forwarding letter with se .....

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with PW2 at CRCL on the very next day i.e. 21.11.2006. Moreover, all the link evidence have been examined. Furthermore, after sealing the samples, the paper slip was also affixed on the same bearing the signatures of the officer of DRI, panch witnesses as well as the accused persons. The same were found in intact condition throughout. All the persons who possessed the contraband sample have been brought on record to support that no tampering was done with the samples. The defence failed to bring .....

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samples were sent on 28.08.2006. There was material contradictions in the statement of witnesses regarding colour and description of the bag, colour of substance recovered. Moreover, it was alleged that after sealing the samples and the case property, the seals were handed over to HC Samim Akhtar but he was silent about the seals and till when they were in his custody. The details of FSL were not given in register number 9 though mentioned in road certificate. There was no clinching evidence th .....

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ts which were within their special knowledge and also recovery of the contraband articles from their possession . Moreover, the statement under Section 67 of the Act was reduced into writing by the appellant - Lydia Ninglianting in her own handwriting while that of the appellant - Sheikh Dilshad was recorded by PW8 - Parminder Kaur. Although it is alleged that the accused persons were made to sign the statement against their will, however, at no point of time they retracted from their statements .....

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s within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was further observed that statement made under Section 67 of the N.D.P.S. Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of .....

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thin a reasonable time, same shall be a relevant factor to adjudge as to whether the confession was voluntary or not. Here in the present case appellant was produced before the Court on several dates and at no stage he made any complaint before the Special Judge of any torture or harassment in recording the confession. It is only when his statement was recorded under Section 313 of the Code of Criminal Procedure that he retracted and denied making such a confession and went to the extent of sayi .....

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at the Customs Office was about 20 km from the place where the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with Accused 2, 3 and 6 were brought to the Customs Office. Further, Accused 1 and 2 did not know Tamil. A Hindi-knowing officer had to be arranged. There was, under the circumstances no delay in recording the statements of the appellants. Further, it is also to be borne in mind that the appellants did not make any complaint befor .....

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en reiterated by this Court in the case of Kanhaiyalal (supra) (2003) 8 SCC 449 in which it has been observed as follows: "Since it has been held by this Court that an officer for the purposes of Section 67 of the NDPS Act read with Section 42 thereof, is not a police officer, the bar under Sections 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such p .....

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