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TMI Blog2024 (5) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... r ten years and fine of Rs. 1 lakh each in default of payment of fine to undergo simple imprisonment for two years. Brief facts : - 2. Shri Deepak Pareek(PW-2) posted as Intelligence Officer in the Narcotic Control Bureau(hereinafter being referred to as 'NCB'), Ahmedabad received a secret information at his office in the morning of 30th January, 2003. The informer divulged that two persons would be delivering contraband/illicit substance at the ST Bus Stand, Kheda between 4:30 pm and 5:00 pm. The secret information also contained the description of features of the suspects and the clothes which they would be probably wearing. The information also provided that the contraband substance had been received from one Adilkhan and that the miscreants would be delivering it to a third person. Deepak Pareek(PW-2) jotted down the secret information, translated and converted it into a typewritten script and forwarded a copy thereof to his immediate superior officer. 3. Two panchas i.e. Manubhai(PW-1) and Amit R. Dantani were summoned to the NCB office, Ahmedabad where a preliminary panchnama taking their consent to participate in the proceedings was drawn. Deepak Pareek(PW-2) accompanied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) claims to have proceeded to Shah Jahan Pur Police Station, Madhya Pradesh where the second suspect was found and identified to be Firdoskhan(A-2) who volunteered to come down to the Office of NCB, Ahmedabad for participating in investigation. Accordingly, Firdoskhan(A-2) was brought to NCB Office, Ahmedabad by Deepak Pareek(PW-2) on 9th February, 2003 where summon under Section 67 of the NDPS Act was served to him. Deepak Pareek(PW-2) recorded the statement of Firdoskhan(A-2) under Section 67 of the NDPS Act during the intervening night of 9th and 10th February, 2003 whereafter, Firdoskhan(A-2) was also arrested in the present case. 5. One part of samples was forwarded to the FSL and second part of samples was forwarded to the Central Revenues Control Laboratory, New Delhi(hereinafter being referred to 'CRCL'). After analysis, a report was received to the effect that the samples gave positive test for presence of ingredients of brown sugar/heroin and Diacetyl Morphine contents were found therein. 6. A complaint came to be filed by Intelligence Officer, Vikram Ratnu(PW-3) against both the accused in the Court of learned Sessions Judge, Nadiad. The case was transferred to the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an interested witness. (v) That Firdoskhan(A-2) was neither arrested at the spot nor his name was recorded in the seizure memo. The witness Vikram Ratnu(PW-3) identified the accused Firdoskhan(A- 2) for the first time in the Court without any Test Identification Parade being held and thus, the identification of Firdoskhan in the Court by PW-3 cannot be treated to be reliable. (vi) That the witness Vikram Ratnu(PW-3) at para 20 of the deposition admitted that the contraband articles were found in Ahmedabad unattended and hence it is clearly a case of the narcotic drugs being planted upon the accused. (vii) That the statements of the accused appellants recorded by NCB officials under Section 67 of the NDPS Act which have been heavily relied upon as incriminating evidence by the trial Court as well as the High Court have to be omitted from consideration. In this regard, he placed reliance on the judgment rendered by this Court in the case of Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1. 11. On these counts, learned counsel for the appellants urged that the appellants deserve to be acquitted of all the charges. Submissions on behalf of Respondents : - 12. Per cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interested witness. Manubhai(PW- 1) in his sworn testimony proved the recovery panchnama(Exhibit P-30) and also fully supported the prosecution case regarding the search and seizure of contraband effected from Anwarkhan(A-1). Nothing significant could be elicited by the defence in the prolonged cross-examination undertaken from Manubhai(PW-1) and hence, we have no hesitation in holding that the evidence of Manubhai(PW-1) being the panch witness associated in the search and seizure effected from Anwarkhan(A-1) is reliable and trustworthy. Thus, it is well established that independent panch witness was associated in the search and seizure procedure. 17. It was the fervent contention of learned counsel for the appellants that the search and seizure proceedings are vitiated on account of non-compliance of the mandatory procedure provided under Section 42 of the NDPS Act. The said contention is on the face of record, misplaced. The secret information which was received by Deepak Pareek(PW-2) was to the effect that two suspects would be bringing contraband substance at the ST Bus Stand, Kheda which is a public place. 18. Section 42 of the NDPS Act deals with search and seizure from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khan(A-1) has been duly established by the prosecution beyond all manner of doubt. The link evidence required to prove the sanctity of the sampling and transmission of the samples to the Chemical Analyst is also sacrosanct. The search and seizure procedure is free from all doubts. 21. Learned counsel for the appellants harped upon a discrepancy as appearing in the statement of Vikram Ratnu(PW-3) wherein he stated that the contraband was found lying abandoned at Ahmedabad. This discrepancy was explained by the witness in his examination-in-chief at a later point of time. The witness clearly stated that the mudammal was not found in an abandoned condition and we have no reason to disbelieve the explanation so offered by the witness. 22. In these circumstances, we are of the view that the prosecution has duly proved the guilt of Anwarkhan(A-1) beyond all manner of doubt by leading convincing and satisfactory evidence. 23. Now, coming to the case of appellant Firdoskhan(A-2) in Criminal Appeal No. 2044 of 2010. 24. It is not in dispute that the appellant Firdoskhan(A-2) was not apprehended on the spot or at the time of seizure. On a perusal of the panchnama(Exhibit-30), it is evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed exercise of recording his statement under Section 67 of the NDPS Act is full of doubt and creates grave suspicion. Even otherwise, the confession of the accused recorded under Section 67 of the NDPS Act cannot be admitted in evidence as a confession as had been held in the case of Tofan Singh(supra). Hence the confessional statement(Exhibit-42) does not lend any succour to the prosecution in its quest to prove the charges against the accused Firdoskhan(A-2). 29. The witness Vikram Ratnu(PW-3) identified Firdoskhan(A-2) as the person who had escaped from the spot, when he testified on oath. However, we feel that the first time identification of Firdoskhan(A-2) by Vikram Ratnu(PW-3) is not trustworthy and reliable. 30. We may observe that as per the case set out in the complaint and the evidence of the NCB officials, the team of narcotic officers/officials was divided into two groups. However, it is not clear from the evidence of any of the four prosecution witnesses as to what was the composition of these two groups. Neither the panch witness Manubhai(PW-1) nor the Intelligence Officer Deepak Pareek(PW-2) identified Firdoskhan(A-2) as the accused who had escaped from the bus st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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