Kulwant Singh vs Narcotics Control Bureau
2008 Latest Caselaw 96 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This appeal has been preferred against the judgment rendered by learned trial court dated 24th May, 1997 whereby the appellant was convicted under Section 21 of the Narcotics Drugs and Psychotropic Substances Act (for short ?the Act?) and against the order on sentenced on 26th May, 1997 whereby the appellant was sentenced to undergo rigorous imprisonment for a term of 10 years coupled with fine of Rs. 1 lac, in default, to further undergo rigorous imprisonment for a period of 6 months.

2. In his appeal, a question of law was raised by the appellant that the complaint filed by Narcotics Control Bureau (for short ?NCB?) was without authority of law and NCB had no power to effect seizure and arrest without warrants or authorization and, therefore, such recovery or action undertaken by NCB against him was bad in law. The issue of law raised by the appellant was considered by this Court and vide its judgment dated 13th December 2000, this Court came to conclusion that NCB was not an authority empowered to perform functions under Sections 41, 42, 53 or 67 of the Act and or to do investigation, recovery or proceedings under the Act. The appellant was, therefore, acquitted without going into the other aspects of the case raised by the appellant. An appeal was preferred by NCB against the order of this Court before the Supreme Court and vide its judgment dated 11th February 2003 in NCB v. Kulwant Singh being Criminal Appeal No. 1139 of 2000, the Supreme Court reversed the judgment rendered by this Court and held that NCB was a Wing/Branch of the Department of Revenue of Government of India and it had authority to act under Section 41, 42 and other provisions of the Act. The Act authorizes the Central Government to empower NCB officers to exercise powers under the various provisions of the Act. By so empowering the officials, the Central Government purports to effectively perform the obligation cast upon it by law. The Supreme Court allowed the appeal of NCB and set aside the judgment of this Court dated 13th December 2000 and remitted back the matter for its disposal on merits in accordance with law.

3. The case, as stated by NCB against the appellant, is that one Ajit Singh was in custody of NCB on 16.4.1996 and 860 gm of heroin was recovered from him. He gave information to the NCB that appellant was a supplier of heroin to him and he was to supply another consignment of 1 kg of heroin on that day i.e. 16th April 1996 at about 5.30 pm near Army Public School. This information was recorded by the Investigating Officer vide Ex.PW4/B and was given to senior officers who made endorsement on the information that the raiding party be constituted to intercept the appellant at the place and time as given in the information. It was recorded that the appellant was earlier also arrested by D- Zone and his photograph be shown to the officers before proceeding for operation.

4. The appellant is alleged to have come in a biscuit colour Maruti car near Army Public School, Daula Kuan where the members of raiding party were in wait for him at about 5.30 pm. He was signaled to stop but he did not stop and instead accelerated his car. He was chased by the teams of NCB and during this chase bullets were fired on his car. After a case of 4/5 km, the appellant's car collided against pavement opposite Gurudwara Sacha Sauda near Rajinder Nagar and thus the appellant could be apprehended only after he met with an accident. The appellant received some injuries in the accident. It is stated that he was conscious and was in a position to make statement. He was given an option to be searched before a Gazetted Officer. The appellant accordingly exercised this option to be searched before a Gazetted Officer and his search was taken in presence of PW-5 Mr. Surender Sharma, who was a part of NCB team and was leading the team. No drug was recovered from the person of the appellant, however, a blue colour polythene bag containing brownish powder was recovered from the glove compartment of his car. The polythene bag contained another transparent polythene pocket and it contained brownish powder. A pinch of powder was tested with the help of field testing kit by the raiding party and it gave positive indication for heroin. Two panch witnesses were joined at the time of search and seizure. Since it was getting dark, the appellant was taken inside Sacha Sauda Gurudwara along with the seized powder and remaining proceedings were conducted inside the Gurudwara. The brownish powder was weighed, it was found to weigh 980 gm. Out of this two samples of 5 gm each were drawn and separately sealed and the remaining powder was sealed separately. The paper slips, duly signed by panch witnesses and team members, were affixed on the samples as well as on the remaining quantity. The panchnama Ex.PW1/A was prepared and was signed by the panch witnesses and team members. Since the appellant had received injuries, he was taken to RML Hospital by the Investigating Officer Manoj Sharma and seized property was taken to NCB Office. The sealed samples were handed over to Mr. Surender Sharma and the sealed case property was deposited with Malkhana on the same very day.

5. The statement of appellant under Section 67 of the Act was recorded by NCB Officials after he was discharged from the hospital wherein he confessed his guilt. A report under Section 57 of the Act Ex.PW4/H was sent to Zonal Director on the same day.

6. Complaint Ex.PW4/A was filed by the NCB against the appellant after completion of investigation, and receipt of report from Forensic Laboratory.

7. Learned trial court after considering the evidence of the witnesses recorded before it and the documents proved, came to conclusion that the appellant was guilty of offence under Section 21 of the Act.

8. During arguments, counsel for the appellant contended that the Panchnama Ex.PW1/A could not have been considered by the trial court as a substantive piece of evidence in view of the fact that PW1 and PW2, the two panch witnesses, had turned hostile. The learned trial court should have accepted the testimony of the panch witnesses and held that the panchnama was a forged document. It is also contended that there was no compliance of Section 50 of the Act at the time of search of the appellant and the appellant was made to forcibly sign a statement written by one Mr. Surender Sharma (PW-5). It is stated that the appellant had agreed to get himself searched before some independent Gazetted Officer only. Moreover, PW-5 was leading the raiding party. Irrespective of the fact that he was a gazetted officer, the search could not have taken place in his presence and an independent gazetted officer should have been called. Thus, there was non compliance of Section 50 as well as of 42 of the Act and the trial court did not appreciate this argument. It is also argued that there was non compliance of mandatory provisions of Section 52 and 57 of the Act. Learned counsel for appellant also pointed out to the contradictions in the testimony of witnesses and stated that the prosecution version was highly improbable and does not reflect natural course of human behavior. It is stated that the appellant was served a notice Ex.PW3/B under Section 67 of the Act at his house and then he was taken to the Office of NCB whereby he was tortured and injured and was forced to sign statement under Section 67 of the Act. In order to cover up the injuries received by the appellant during torture, he was shown to have been met with an accident in the car opposite Gurudwara Sacha Sauda, while in reality the car was deliberately hit by the NCB officials with the pavement in order to concoct a story of an accident. Bullets were fired on the car in the stationary condition to concoct the story of chase. Neither the chase had taken place nor the accident occurred. It is also submitted that the confession made by the appellant was retracted on the first opportunity on 17th April, 1996, when he was produced before the concerned court and on his request he was again sent to RML Hospital for his medical examination. It is submitted that the appellant was falsely implicated in the case. Prosecution has failed to prove the charges beyond reasonable doubt and appellant deserves to be acquitted.

9. There is no denial of the fact that the panch witnesses viz PW1 and PW2 have turned hostile and have not supported the case of the prosecution. Both these witnesses, however, have admitted during their cross examination that they had signed the Panchnama Ex.PW1/A, signed the paper slips tied on the four sides of cardboard box containing remaining part of drug, after taking sample. They also admitted their signatures on the paper slip Ex.P2 pasted on the envelop Ex.A2 on four corners, sealed with the seal of NCB. Both the witnesses admitted that statement Ex.PW1/B and PW2/A were given by them to the NCB officials in their own handwriting on 9th July 1996. Both admitted that they had received summons for appearing before NCB for giving statements on 8th July 1996. Their stand, however, was that they were given written text of a statement which they copied on the paper and signed it and then gave it to the NCB. In the examination-in-chief, it is admitted by PW-1 that on 16th April 1996 at about 6.30 pm when he was coming from Rajinder Nagar road on his two wheeler scooter, he saw a crowd near Gurudwara and he stopped there. Some NCB officials disclosed their identity and asked him to participate in the proceedings for the Panchnama. He stated that he was in a hurry and so NCB officers obtained his signatures on the blank papers.

10. It is obvious that this witnesses has been won over. If he was really in a hurry, there was no necessity for him to sign blank papers. He was an educated person. He could have expressed his inability, like any other person present in the crowd, not to join the proceedings. PW-2 Balbir Singh stated in his examination-in-chief that while he was in Gurudwara Sacha Sauda, his wife informed him that something had happened on the road and the children had gone there. He rushed to the road. There was a crowd and 5/6 cars on the spot. Some people disclosed their identity as NCB officers. However, no search of vehicle was taken in his presence. In cross examination, he admitted his signatures on all documents.

11. No reason has been given by the two witnesses PW1 and PW2 as to why they signed the paper slips, documents and the Panchnama. It is not their case that NCB officials forced them to sign any document. No public witnesses can be allowed to take plea that he signed documents incriminating a person of a heinous crime without reading or without knowing. I consider that such a witness should be prosecuted by the Court conducting the trial for purgery. Signing of documents blank or with closed eyes or without reading cannot be believed. If such a stand is taken by a witness, the trial courts should take serious view.

12. In the instant case, it is apparent that both the witnesses were won over. Despite signing Panchnama, paper slips and other documents and despite making statements in their own handwriting, these witnesses turned hostile without assigning any reasons as to why they signed the documents. Both of them admitted their presence on the spot and being part of the crowd that gathered at the spot.

13. It is settled law that where a witness turns hostile, his entire testimony cannot be rejected outrightly on the ground of his turning hostile and that part of his testimony can be relied upon which is proved from the documents. In the instant case, the statements made by the witnesses in their handwriting, signing by the witnesses on Panchnama, paper slips, sealing material and other documents, all have been proved. Their presence at the relevant time at the spot was also proved. I consider that the learned trial court rightly believed the version of the complainant that the public witnesses were joined at the time of investigation and the recovery was made in their presence and that is the only reason they signed the documents of recovery being effected in their presence and Panchnama and the paper slips etc.

14. The recovery of the heroin from appellant has been proved otherwise also by PW4 and PW5, who were the members of the raiding party and had apprehended the appellant after a long chase. There is no reason to disbelieve the testimony of PW4 and PW5 only because they are police personnel. Both these witnesses have been cross examined at length. They have testified to the case of the complainant i.e. NCB about the information having been received regarding appellant's coming near Army Public School, Daula Kuan for delivery of consignment to Ajit Singh, an accused who was apprehended in another case by NCB on the same very day in the morning, not stopping of car by the appellant, chase of car of appellant by NCB officers for 4/5 km, firing of bullets on the car and meeting of an accident by the car of the appellant and then his apprehension and recovery of heroin from the car of the appellant. The police witnesses are equally competent witnesses as any other witness. They are subjected to cross examination like any other witness. The Court cannot reject the testimony of a police official only because he is a police official. Their testimony is to be weighed on the same parameters as the testimony of any other witness.

15. PW10 proved that on 16th April 1996 Mr. Surender Sharma PW5 had got issued one pistol, one magazine and six cartridges vide entry No. 53 in the register Ex.PW4/F and on the same day at about 9 pm he deposited back the above pistol with one magazine and only one cartridge since five cartridges were consumed by him.

16. The appellant was taken to RML Hospital on 16th April 1996 at around 8 pm. The MLC qua appellant Ex. PW3/A shows that history given to the doctor was of a road traffic accident. He was examined by the doctor Mr. Sandeep Prabhankar who referred him to Surgery Department where stitches were put on his forehead since he was having a CLW on his forehead. The injuries received by him were on the forehead and chest. There was tenderness on his lower part of chest and cut injury on his forehead. There is no reason to disbelieve that these injuries were received in the accident caused by the appellant while driving his car at a high speed when he was being chased. It is quite possible when the high speed car of appellant struck against the pavement. The forehead and chest would have struck against the driving wheel injuring his forehead and chest. He was again referred to RML Hospital on 17th April 1996 when he was produced before the Court as he wanted again to be sent to the hospital. The same doctor examined him again and an MLC was also prepared. This MLC has not exhibited but is on record and relied upon by the appellant to show that he complained to MM about his torture. Even in this MLC, the appellant has not stated to the doctor that he had received injuries due to torture and not due to road traffic accident.

17. I find no reason to disbelieve the version of the complainant NCB that the appellant was apprehended after a chase and recovery of narcotic substance weighing 980 gm (Heroin) was recovered from him.

18. The arguments of the appellant that there was non compliance of Section 50 of the Act must fail. It is settled law that Section 50 of the Act is applicable only in those cases where the contraband is found on the person i.e. body of the accused. Where a contraband is recovered from the place, other than the body of the of the accused, Section 50 is not attracted. Where there is recovery from the house, from the car, motorcycle or from the bag held by the accused, Section 50 would not be applicable. Reference can be made to Union of India and Ors. v. L.D. Balam Singh and Saikou Jabbi v. State of Maharashtra .

19. In the present case, recovery of heroin was made from the glove compartment of the car of the appellant. I, therefore, consider that Section 50 of the Act would not be applicable in this case.

20. The other provisions of NDPS Act have also been squarely complied with in this case. The information received from Ajit Singh an accused in another case was recorded by the Investigating Officer of that case and immediately forwarded to his senior officers whereby an action was decided. After arrest of appellant, a report in compliance with Section 57 of the Act was forwarded to the Director NCB. The case property was deposited in Malkhana. The samples were seized and sealed on the spot and weighed.

21. A plea has been taken by the appellant that weight of sample, as found by forensic laboratory was 4.6 gm and not 5 gm. The discrepancy in the weight of the sample as found in the test laboratory is no ground to doubt the case of the prosecution. Anybody having a little knowledge of science and the scientific instruments knows that every scientific instrument has a least count. The accuracy of a scientific balance is much more than the ordinary balance used by a I.O and there may be a variation of weight plus or minus depending upon the least count of the scientific balance. The atomic balances are more accurate than scientific balance. Such balances are used in more sensitive laboratories and are accurate to .0001 gm and even more accurate. An Investigating Officer, who draws sample for testing, need not have a balance of a high accuracy in order to draw the samples. He can draw sample weighing approximately 05 gm using ordinary balance. If the same sample is weighed at an accurate scientific balance used in CRCL, the weight of each sample is bound to differ. The difference in weights of samples rather shows the genuineness of the case. If the case had been a made up or a false case, the IO might have used more accurate balance and weighed the samples with accuracy. One may have doubt on the genuineness of the case if the each sample weigh the same on accurate balance used in CRCL, but one cannot doubt if the weight difference is found as in this case. Such difference in weight is natural. No malafide can be drawn by the appellant by this difference of weight. Thus the weight difference in the sample cannot be considered as a ground for acquittal.

22. It is also argued by counsel for the appellant that Test Form was not filled at the spot and was filled only on next day. There is no legal requirement that the Test Memo has to be filled at the spot on the same very day. The Test Memo can be filled on the subsequent day. Merely because the Test Memo has been filled on subsequent day, the case of the complainant cannot be doubted.

23. The argument of the counsel for the appellant is that statement of the appellant under Section 67 of the Act could not have been relied upon recorded as the appellant was, in police custody at the time when his statement under Section 67 of the Act was recorded. The case of the prosecution against the appellant has been proved by NCB independent of statement of appellant under Section 67 of the Act. He has not been convicted on the basis of his statement under Section 67 of the Act.

24. I find no merits in this appeal. The appeal is hereby dismissed.