9911796707
TMI Blog2023 (9) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 preferred by Balwinder Singh Appellant in Criminal Appeal No. 1136 of 2014 and the appeal CRA No. D-371-DB of 2012 filed by Satnam Singh Appellant in Criminal Appeal No. 1933 of 2014. 1.1 By the impugned judgment, the death sentence imposed upon Balwinder Singh3 was set aside under the Reference, thereby declining the Reference and imposed a sentence on him to undergo rigorous imprisonment for 14 years and to pay a fine of Rs.1,50,000/- [Rupees one lakh fifty thousand only] and in default, to undergo rigorous imprisonment for one year for commission of offence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 For short 'NDPS Act'. The appeals preferred by the accused were dismissed except for the modification in the order of sentence. Both the accused are before this Court in these appeals by way of special leave. I. FACTUAL MATRIX: (a) THE INCIDENT IN QUESTION 2. The incident in question relates back to 11th December, 2005, when as per the version of the prosecution, the Narcotics Control Bureau For short 'NCB' received secret information that some persons who were indulging in the sale of contraband, were travelling in a white coloured In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Superintendent Incharge of the godown and the parcels of the samples Exhibit P-12 were sent to the Chemical Examiner Chemical Examiner Shri. S.K. Mittal, PW-4 who forwarded the report Exhibit P-11 later on. 2.3. Till this stage, the co-accused named by Satnam Singh5, i.e., Balwinder Singh3 was nowhere in the picture. The prosecution claims that sometime later, the NCB officers came across a newspaper report stating that Balwinder Singh3 had been arrested by Amritsar Police in an NDPS case and was lodged in the Central Jail, Amritsar. Based on the said information, Balwinder Singh3 was arrested and a notice Exhibit P - 6 was served on him under Section 67 of the NDPS Act. Thereafter, his voluntary statement Exhibit - P-17 was recorded and duly signed by him and he was arrested. 2.4 On conclusion of the investigation, the NCB submitted a complaint Exhibit P-13 before the Judge, Special Court, Chandigarh stating that Satnam Singh5 and Balwinder Singh3 had committed offences punishable under Sections 8, 21, 27A and 60 of the NDPS Act. Charges were framed against the two accused under Section 21 r/w Sections 8, 27A and 60 of the NDPS Act. On 02nd July, 2007, both the accused p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness of NCB and was on its pay rolls as a daily wager. The testimonies of DW-331 and DW-432 was referred to, wherein it was deposed that Mukesh Kumar was joined in as a witness in another complaint registered by the NCB. 2.8. After discussing the entire evidence, vide judgment dated 10th March, 2012, the learned Judge, Special Court, Chandigarh held both the accused guilty and convicted them under Section 21 read with Section 8 of the NDPS Act. Subsequently, on 15th March, 2012, after hearing arguments on the quantum of sentence, noting that Balwinder Singh3 had been previously convicted under Section 21(c) of the NDPS Act for the offence involving commercial quantity of narcotic drugs and applying the provisions of Section 31A of the NDPS Act, he was sentenced to death under Section 21(c) read with Section 31A(1a) of the NDPS Act. 2.9. Coming to the co-accused Satnam Singh5, the learned Judge, Special Court, Chandigarh took note of the fact that he was a government servant working as a Warden in Punjab Jail and was posted at Sangrur at the time of committing the offence, which added to the gravity of the offence. Therefore, he was sentenced under Section 21(c) of the NDPS Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1]. Even though Balwinder Singh3 was not identified by PW-325 and PW-511, his statement22 was duly recorded under Section 67 of the NDPS Act and the co-accused, Satnam Singh5 had also stated in his confessional statement that Balwinder Singh3 was involved in the crime. Both the confessional statements when read together, were held to be sufficient to hold that Balwinder Singh3 was guilty of the offence committed. Added to this was the fact that Balwinder Singh3 had already been convicted and sentenced in a case under the NDPS Act and his appeal against the said conviction was pending at that time in the High Court. Therefore, he had a propensity towards committing such crimes. The High Court opined that merely because Balwinder Singh3 had escaped from the car just before the point where the naka had been laid and could not be apprehended, would not be a ground to acquit him or exonerate him of the charge of conscious possession of heroin. 3.2. The High Court went on to reject the defence version sought to be projected by Satnam Singh5 that Sonu8 [PW-1] was the real culprit and it was from him that the contraband was recovered but he got away by bribing the NCB team who cleverly p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Singh3 that the statement of confession made by Satnam Singh5 before the NCB officials is not admissible in law and could not be read in evidence against him in view of the recent decision of this Court in Tofan Singh36 (supra), Mr. Akshay Nagarajan, learned counsel for the said appellant has assailed the impugned judgement primarily on five counts. Firstly, that an offence committed under the NDPS Act being a grave one, all the procedural safeguards provided under the Statute to the accused require strict compliance and strict scrutiny and in the instant case, as the prosecution failed to establish a prima facie case, the burden did not shift to the accused. To buttress the said submission, learned counsel has cited Ritesh Chakarvarti v. State of M.P. (2006) 12 SCC 321; Noor Aga v. State of Punjab and Another (2008) 16 SCC 417; Bhola Singh v. State of Punjab (2011) 11 SCC 653; State of Delhi v. Ram Avatar alias Rama (2011) 12 SCC 207; and Gorak Nath Prasad v. State of Bihar (2018) 2 SCC 305. 4.2 The second plea taken is that the entire story setup by the prosecution is shaky inasmuch as the independent witnesses who were joined in, have a murky background and their testimonies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supported the impugned judgement and stated that there was ample evidence brought on record by the NCB for indicting Balwinder Singh3 and Satnam Singh5. He asserted that none of the witnesses produced by the NCB were planted, as alleged; that NCB had successfully established a prima facie case against the appellants whereafter the burden had shifted on them to prove their innocence and that they had miserably failed to discharge the said burden; that the prosecution had amply proved the foundational facts to attract the rigours of the NDPS Act and the actus reus, namely possession of contraband by the appellants was convincingly established for holding them guilty of the offence for which they were charged. It was thus stated that the impugned judgement does not deserve interference. III ANALYSIS AND DISCUSSION (a) SIGNIFICANCE OF TOFAN SINGH'S DECISION 6. We have perused the impugned judgement and the records and given our thoughtful consideration to the arguments advanced by learned counsel for the parties. 7. When the present matter was considered by the High Court in the year 2013, it had accepted the arguments advanced by learned counsel for the respondent-NCB that offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis to convict a person under the NDPS Act, without any non obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India. 156. The judgment in Kanhaiyalal [Kanhaiyalal v. Union of India, (2008) 4 SCC 668 : (2008) 2 SCC (Cri) 474] then goes on to follow Raj Kumar Karwal [Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409 : 1990 SCC (Cri) 330] in paras 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us. 157. On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] and Nirmal Singh Pehlwan v. Inspector, Customs [Nirmal Singh Pehlwan v. Inspector, Customs, (2011) 12 SCC 298 : (2012) 1 SCC (Cri) 555] are correct in law. 158. We answer the reference by stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement22 as a confessional statement, Balwinder Singh3 was arrested. 12. Once the confessional statement13 of the co-accused, Satnam Singh5 recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to Balwinder Singh3 and the subsequently recorded statement22 of Balwinder Singh3 himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh36 (supra), there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting Balwinder Singh3 under the NDPS Act. On ignoring the said confessional statements13&22 recorded before the officers of the NCB in the course of the investigation, the vital link between Balwinder Singh3 and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained. 13. As a result of the above discussion, we are of the opinion that Balwinder Singh3 deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act. Ordered accordingly. (c) HOW IS SATNAM SINGH'S CASE PLACED ON A DIFFERENT FOOTING 14. We next come to the case of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion , a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. 54. Presumption from possession of illicit articles-In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of- (a) any narcotic drug or psychotropic substance or controlled substance; (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily. , but went on to hold that since the provisions of the NDPS Act and the punishments prescribed therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it was the appellant - Satnam Singh5 who was driving the car9, when he was accosted at the spot where the naka was laid by the NCB Officers on the relevant date. A photocopy of the registration certificate of the car9 was recovered on a search of the appellant - Satnam Singh5. He was the owner of the car9. The car9 was searched by the NCB Officers in the presence of two independent witnesses. The contraband was recovered from the car9 being driven by the appellant - Satnam Singh5 in the presence of the independent witnesses and P.K. Sharma, a Gazetted Office25, who was part of the NCB team. Even though one of the two independent witnesses [Mukesh Kumar] had turned hostile and was dropped by the prosecution, the testimony of the other independent witness [Sonu8] was consistent and nothing material could be elicited by the accused during his cross-examination. 18. Through the deposition of the Chemical Examiner [S.K. Mittal22], the prosecution successfully proved the report20 submitted by him stating inter alia that on testing the samples18, the substances drawn from the bags recovered from the car9 of the appellant - Satnam Singh5, were heroin. The samples18 drawn and sealed wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Office of the Zonal Director at Chandigarh, was not of any assistance as the mobile phone bills summoned by the appellant were not proved in accordance with law. The trial Court observed that the bill in question Ex.DW-1/A was only a computer-generated one. The records pertaining to the bill were not produced by the witness summoned and the bill did not bear the signature of any authority even to prove that the mobile phone number asserted by the appellant - Satnam Singh5 as belonging to him, stood in his name. We see no reason to take a different view. 23. Reliance placed by learned counsel on the decisions in Dudh Nath Pandey v. State of Uttar Pradesh (1981) 2 SCC 166, State of Haryana v. Ram Singh (2002) 2 SCC 426, Adambhai Sulemanbhai Ajmeri and Others v. State of Gujarat (2014) 7 SCC 716 and Jumi and Others v. State of Haryana (2014) 11 SCC 355 to urge that defence witnesses are entitled to equal treatment with those produced by the prosecution and different yardsticks cannot be prescribed for prosecution witnesses as compared to defence witnesses is a well-settled principle of criminal jurisprudence, but cannot take the case of the appellant - Satnam Singh5 any further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Jalandhar towards Chandigarh, were flagged down by the NCB officers and joined in the investigation. Therefore, the shadow of doubt sought to be cast on the testimony of Sonu8 by claiming that he was the real culprit, is clearly a trumped up story that cannot be sustained. The other independent witness, Mukesh Kumar, had turned hostile and the prosecution did not examine him. As a consequence, the two defence witnesses, Parkash Ram31 and Ravi Kant Pawar32 produced by the appellant - Satnam Singh5 to demonstrate that Mukesh Kumar was a stock witness, would hardly be of any assistance. The other procedural discrepancies sought to be pointed out by learned counsel for the appellant - Satnam Singh5 and referred to in paras 4.3 and 4.4 above, are not considered so vital in nature as to unsettle or demolish the entire case set up by the prosecution against the appellant - Satnam Singh5. (IV) CONCLUSION 27. In view of the aforesaid discussion, we are of the opinion that the appellant - Satnam Singh5 has failed to make out a case for acquittal. Therefore, the order of conviction and the sentence imposed on Satnam Singh5 is maintained. Criminal Appeal No. 1933 of 2014 is accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
