Aziz Ahmed vs Surinder Gupta
1992 Latest Caselaw 41 Del

JUDGMENT

R.L. Gupta, J.

(1) Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure for quashing proceedings against him In a complaint filed by the respondent Sh. Surinder Gupta. Intelligence Officer, Narcotics Control Bureau (NCB fot short). The allegations are that in the evening of 21-11-87 some officers of Ncb lifted him from his house and took him first to Ashoka Hotel and then Ranjit Hotel in Delhi. They detained him for about 3 days. During this period he was threatened and beaten mercilessly and asked to give a statement as desired by them or else all his family members will be involved in some Narcotics case. He, therefore, made statement as per the dictation of the Ncb officials. Statements of some other co-accused were also recorded. Ncb then filed a complaint against the petitioner and others on 20-2-1988. The petitioner and the remaining co-accused were committed to the Sessions Court. During his confinement in Jail, he was also served with a detention order dated 12-1-88 under COFEPOSA. In the complaint filed against him the petitioner was allowed bail on 1-7-1988. His detention was also quashed by the High Court vide order dated 3-10-88. But on the same date the Ncb filed another complaint against the petitioner and one Surinder Mehta for offences under Sections 29, 21 and 23 Ndps Act. It is alleged to have been done in a mala fide manner and to frustrate the orders of the High Court.

(2) Further case of the petitioner is that nothing new has been brought in the second complaint and the allegations in this complaint were the same as were levelled against him in the earlier complaint. Therefore, the petitioner seeks quashment of the second complaint.

(3) Respondent filed counter affidavit. The main defense is that the first complaint dated 20-2-1988 is with respect to export of 4.5 Kgs. of heroin to USA. 2 Kg 750 grams of heroin was recovered at New York from the possession of ene H. S. Gala, Petitioner in that case had acquired possession of 4 Kgs. of heroin at Janpath in March, 1987 and delivered the same to one Sukhdev Singh. He again acquired possession of 7 or 8 Kgs. of heroin from one Kuldeep from Janpath and delivered the same to Sukhdev Sing at Bengali Market in May, 1984. The petitioner is again alleged to have acquired possession of 2 Kgs. of heroin from Surinder Mehta at Mohan Singh Place and delivered the same to Sukhdev Singh near Gurdwara Bangla Sahib in September, 1987. The second complaint is alleged to be with respect to receiving of 2.4 Kgs. of heroin from Surinder Mehta in early 1987 by the petitioner for delivery to one Sardarji. Therefore, the contention is that these two com- plaints are with respect to two different conspiracies having no connection with each other. So the second complaint is comprtent.

(4) I have heard arguments advanced by learned Counsel for the parties. The main thing to be seen in this case is whether the second complaint which is sought to be quashed on behalf of the petitioner pertains to the same conspiracy as alleged in the first complaint or it deals with a separate conspiracy which has no nexus whatsoever with the conspiracy of the first complaint. For that purpose the whole matter can be disposed of with reference to the statement allegedly made by the petitioner under Section 67 of the Ndps Act. He stated that on 21-11-87 when he entered room No. 317 of Hotel Ashoka to meet Dev Singh alias Sukhdev Singh, he was intercepted by officers of Ncb and during his personal search one document was recoverd; the he met Sukhdev Singh at the residence of Surinder Mehta located at Vasant Vihar, that he was introduced to Surinder Mehta by his college friend Jamil Khan; that before introduction Jamil Khan had told him that Surinder Mehta deals in smack/heroin and they can get some work from Surinder Mehta by which they will earn good money; that he and Jamil wanted some work from Surinder Mehta In Heroin smuggling and in early 1987; Surinder Mehta gave him 2.4 Kgs. of heroin for delivering to one Sardarjee near Nanakpura Gurdwara on Ring Road; and that they carried the heroin on scooter. He knows nothing more about that Sardarjee, that Surinder Mehta had told them that this heroin will be sent to Usa and the profits of 40 grams will be shale by the petitioner and Jamil but afterwards Surinder Mehta gave only Rs. 20,000.00 as their share and on that account they were annoyed with Mehta and stopped going to him. So far as the complicity of the petitioner with Surinder Mehta is concerned, it does not go beyond the one transaction referred above. In para Xvi of the first complaint, he is alleged to have stated with reference to the conspiracy along with Jamil and Surinder Mehta, subject matter of the second complaint, also. But it may be noted that Surinder Mehta is not an accused in the first complaint although there is a reference to the conspiracy of the petitioner with him for export of 2.4 Kgs. of heroin. The aforesaid conspiracy between the 'petitioner, Jamil Khan and Surinder Mehta is not at all connected with the conspiracy of the petitioner with other accused in the first complaint. In the first complaint only those persons including the petitioner are accused wherein the kingpin of the conspiracy is Dev Singh alias Sukhdev Singh. Sukhdev Singh and his group in the first complaint had not to share any profits of conspiracy with the second conspiracy between the petitioner and Surinder Mehta and vice versa. In the case of Mohd. Hussain Umar Kochra etc. v. K.S. Dalip Singhji and another, Air 1970 Sc 43 the Hon'ble Supreme Court has dealt with a.t length the subject of criminal conspiracy in para I S. It will be useful to quote the aforesaid observations. 3."As to the second question the contention was that the evidence disclosed a number of separate conspiracies and that the charge of general conspiracy was not proved. Criminal conspiracy as defined in Section 120A of the Indian Penal Code is an agreement by two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. The agreement is the gist of the offence. In order to constitute a single general conspiracy there must be a common design and a common intention of all to work in furtherance of the common design Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be a general plan to accomplish the common design by such means as may from time to time be found expedient.................................A general conspiracy must be distinguished from a number of separate conspiracies having a similar general purpose. Where different groups of persons co-operate towards their separate ends without any privity with each other, each combination constitutes a separate conspiracy. The common intention of the conspirators then is to work for the furtherance of the common design of his group only."

(5) In the light of the aforesaid observations what is to be seen in the case of the conspiracy is whether the petitioner along with Jamil Khan and Surinder Mehta had a common design to be achieved along with the accused in the first complaint which includes the petitioner also. The first complaint does not include the names of Jamil Khan or Surinder Mehta. Even otherwise as has been stated earlier, the petitioner is stated to have worked for Surinder Mehta in one single act of conspiracy for the export of 2.4 Kgs. of heroin which he delivered to one Sardarjee at the instance of Surinder Mehta and received Rs. 20,000.00 for doing that job. Simply because there is a reference to that job. conspiracy in the first com plaint or that the second complaint was filed by Ncb after a gap of about 8 months, would provide no ground to hold that the second complaint is not maintainable. It is also significant to note that according to the statement of the petitioner himself, he stopped going to Surinder Mehta after one transaction which would show that thereafter the conspiracy between them ceased. It cannot also be called to be a case of double prosecution of the petitioner in the two separate complaints because the conspiracy in both the complaints are separate and do not form part of one single general conspiracy. Whether statement of the petitioner is the result of beating or coercion will have to be gone into during trial because it is a question of fact.

(6) Therefore, I do not find any ground to interfere with the prosecution of the petitioner and Surinder Mehta in the second complaint under Section 482 of the Code of Criminal Procedure. The petition is hereby dismissed. Petition Dismissed.