Rehmatullah Khan vs Narcotic Control Bureau (Ncb)
2008 Latest Caselaw 1057 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       CRL APPEAL No. 90 of 2005

                                              Reserved on April 3, 2008
                                              Date of decision: July 18, 2008

       REHMATULLAH                                      ... Appellant
                                     Through: Mr. H.M Singh, Advocate


                                     versus

       NARCOTICS CONTROL BUREAU            .... Respondent
                       Through : Mr. Satish Aggarwala,
                       Sr.Standing counsel

                               AND
                       CRL APPEAL No. 105 of 2005

       YAKUB KHAN                                       ... Appellant
                                     Through: Mr. H.M Singh, Advocate


                                     versus

       NARCOTICS CONTROL BUREAU            .... Respondent
                       Through : Mr. Satish Aggarwala,
                       Sr.Standing counsel

       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

                                     JUDGMENT

1. Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported Yes in Digest?

Dr. S. Muralidhar, J.

1. These appeals are directed against the common judgment dated 1 st

December 2004 passed by the learned Special Judge in SC No. 45 of 2004

convicting the Appellants for the offence under Section 29 read with Section

21of the Narcotics Drugs and Psychotropic Substances Act, 1985 („NDPS

Act‟) and order dated 13th December 2004 sentencing them to undergo

rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh each and

in default of payment of fine to undergo simple imprisonment for one year.

2. On 21st December 1999, at around 2 pm a secret information was

received by the Narcotics Control Bureau („NCB‟) through a source that

approximately 80 kgs of heroin had been dispatched by Yakub by truck

bearing No. GJ-8T 4417. Gom Singh @ Ram Singh along with the driver

of the truck was to hand over the heroin to Noor Haider and Mohd. Gani. A

raid team was constituted and the truck was intercepted at about 8.30 pm on

the same date on National Highway No.8 near Rajokri Chowk. One person

was sitting in the cabin and another was standing near the truck with a bag.

A stationary car No.DL-3SC F 4593 with the boot open was intercepted. An

Afghani national was found standing near the car and another was sitting in

it. The persons intercepted at the spot revealed their names as Gom Singh @

Ram Singh, Kamal Singh, Mohd. Gani and Noor Haider Siddiqui. The

search of the truck and the car yielded four plastic gunny bags containing

heroin-two in the cabin of the truck, one in the boot of the car and the fourth

on the road near the truck. The persons were apprehended immediately and

escorted to the office of the NCB and their bags were opened, searched and

the contents were marked. The seizing, sealing and sampling was conducted

at the NCB office. The recovered substance of heroin was stated to have

been collected weighed around 77 kgs net. The truck and the car were also

seized.

3. The search of the residential premises of Noor Haider Siddiqui

yielded a passport and air tickets in the name of Raymond Bernard Dun.

Gom Singh and Kamal Singh on interrogation revealed that the heroin had

been supplied by Yakub. Upon this statement, Yakub was interrogated and

in his statement under Section 67 of the NDPS Act he revealed that he had

supplied heroin to Kamal Singh and Gom Singh. Yakub was then arrested.

It is stated that in the subsequent statement Yakub admitted that the heroin

had been supplied to him by Rehmatullah. Statements of the other accused

under Section 67 NDPS Act were recorded. Each of them admitted their

role and also that of the co-accused. Chemical examination of the sealed

substance confirmed that it was heroin. Accordingly, the complaints were

filed.

4. Twenty witnesses were examined on behalf of the prosecution. On

behalf of the accused Yakub two witnesses were examined. The trial by the

court by the impugned judgment and order, convicted and sentenced the

appellants in the manner referred to earlier.

5. The arguments on behalf of the Appellants were advanced by Shri

H.M. Singh, learned counsel and on behalf of the Respondent NCB by Shri

Satish Aggarwala, learned Senior standing counsel.

6. The first submission is that the conviction of the Appellants is

essentially based on the statements of the accused recorded under Section 67

NDPS Act. The accused Yakub is stated to have made two statements. One

dated 22nd December 1999 at Jodhpur and other dated 23rd December 1999

at the NCB office in New Delhi. The accused Rehmatullah was arrested on

30th May 2000 on the basis of the statement of Yakub which was recorded at

Delhi on 23rd December 1999 while he was in judicial transit remand. He

did not name Rehamatullah when he made the first statement at Jodhpur. It

is submitted that the first complaint/charge sheet by the NCB was filed on

18th March 2000 against Gom Singh, Kamal Singh and Mohd. Gani

(subsequently declared as proclaimed offender), Noor Haider Siddiqui and

Yakub. Therefore, with the filing of this complaint, the enquiry had come to

an end. A statement of an accused could be recorded only „during the

course‟ of the enquiry by an officer and not after the filing of a

complaint/chargesheet. It is submitted that therefore, the statement of

Rehmatullah under Section 67 NDPS Act recorded by PW-18 Mr. Suresh

Trivedi, Intelligence Officer, NCB, Jodhpur, Rajasthan on 30th May 2000

had to be discarded since it was not during the course of an enquiry. The

complaint against Rehmatullah was filed subsequently on 26th August 2000.

7. Learned counsel for the accused further submitted that in the

statement of Yakub recorded by PW-18 Mr. Suresh Trivedi on 23rd

December 1999 he did not name Rehmatullah at all. It was only thereafter,

when he was brought to the NCB office at Delhi, that he named

Rehmatullah. That statement was made under duress and coercion and in

fact instead of producing him before the learned Magistrate in Delhi after

having obtained transit order from the Magistrate at Jodhpur, he had been

brought to the NCB office, Delhi. He further submitted that the alleged

service of notice under Section 67 NDPS Act upon Rehmatullah on 30th May

2000 by PW-18 Mr. Suresh Trivedi, his appearance and recording of his

statement on that date were highly doubtful. The case of the prosecution is

that notice was served at BSF Camp, Barmer and that the statement was

recorded at the BSF Camp, Barmer indicating that no notice was actually

served and that in any event it cannot be regarded as voluntary.

8. It is further submitted that in the first statement made by Yakub before

PW-18 Mr. Suresh Trivedi on 22nd December 1999, he did not admit of his

involvement and therefore, that statement was not inculpatory in nature. He

was brought to Delhi in handcuffs. He in fact named three persons Ganpat,

Sadia and Ariya as suppliers. No action was taken against those persons to

verify the truth of the statements. It is further submitted that the accused

Rehmatullah retracted the statement made under Section 67 NDPS Act.

Both the accused Yakub and Rehmatullah retracted their respective

statements when appearing in Court and these factors show that the

statements under Section 67 NDPS Act were neither voluntary nor truthful.

9. It is submitted that the statements under Section 67 NDPS Act were

not truthful and reliable. They contained contradictions in the material

aspects including the description of the consignment recovered, and the

names of the persons who had allegedly supplied the consignement. While

Yakub in the second statement is alleged to have named Rehmatullah as

supplier, Rehmatullah in his statement under Section 67 NDPS Act made on

30th May 2000 only spoke about loading of the consignment in the truck

without referring any date, month or year. It is further submitted that

statements of the co-accused cannot be considered to be a substantive

evidence but only corroborative piece of evidence. It is submitted that the

cross-examination of the PW-9 and PW-18 would reveal that the statements

were neither voluntary nor truthful. It is then submitted that the case

involving these accused has been dealt with in just two paragraphs of the

impugned judgment of the learned trial court and that therefore, the

conviction and sentence of the Appellants should be set aside.

10. On behalf of the Respondent NCB, it is pointed out that the statement

under Section 67 NDPS Act is admissible as evidence. This stands on a

different footing from a statement made by an accused in a case involving

IPC offences. The statements contain some minor contradictions which do

not affect their truthfulness or voluntariness. There is no basis for the

contending that the statements were made under duress and coercion and the

cross-examination of either PW-9 or PW-18 did not support the case of the

accused in this regard. The medical examination of Rehmatullah in the Govt.

District Hospital, Barmer did not reveal any injuries.

11. The main point to be considered is whether the statements under

Section 67 NDPS can be relied upon by the prosecution. The statements are

required to be examined both for their voluntariness and their truthfulness.

The details regarding the arrest and questioning of Yakub are available in

the evidence of PW-18 Mr. Suresh Trivedi. He has spoken in detail about

having received information regarding recovery of 77 kgs of heroin by the

NCB at Delhi and pursuant thereto along with officers of NCB Jodhpur, he

visited village Dhanua. He speaks of having issued summons by him to

Yakub Khan to appear at BSF Chautan. The statement was reduced to

writing on Yakub‟s dictation as the latter could not write or read. PW-8

proved the arrest memo and Jamatalashi memo. He states that Yakub was

examined by a doctor of Government Hospital, Barmer who had certified

that there were no external injuries. He moved an application before the

Special Judge for transit remand. Not much has yielded from this witness in

cross-examination by learned counsel for the accused Yakub. He denied

that the statement was recorded under coercion.

12. A reference was made by learned counsel for the accused to the order

dated 22nd December 1999 passed by the learned Special Judge at Jodhpur

granting transit remand. The order reads as under:

"P.C. remand for transit is granted upto 24.12.1999

- 11 am. Produced accused Yakub in concerned court."

13. It is true that in a statement made in Jodhpur, Yakub did not name

Rehmatullah. He was named only in the second statement recorded on 23rd

December 1999 at Delhi by PW-9 Mangal Dass. According to him, the

practice was that the statement under Section 67 is first recorded and then an

arrest is effected. The submission is that in bringing Yakub to the NCB

office at Delhi, the NCB officers had violated the judicial transit remand

order which required them to produce him before the court in Delhi at 11 am

on 24th December 1999. It was further submitted that the statement under

Section 67 NDPS Act ought not to have been recorded and that by itself

would make the statement involuntary.

14. In the first place, it is noticed that Section 67 NDPS Act permits the

recording of the statement made by officers of NCB, who are not police

officers. Therefore, the prohibition that would apply to a statement made in

police custody does not apply to this statement made before the Intelligence

Officer operating under the powers vested in him by the NDPS Act.

Consequen upon the statement of Rehmatullah made on 30th May 2000

before PW-18 Mr. Suresh Trivedi, Jodhpur, a separate complaint was filed

in respect of him. It could not have been possible for the Officers to

anticipate in December 1999 as to when Rehmatullah would be arrested and

whether he would make any statement thereafter. Thus it cannot be said that

no statement of Rehamatullah could have been recorded after the first

chargesheet was filed. Since a separate complaint has any way been filed on

26th August 2000 as far as Rehamtullah is concerned, his statement under

Section 67 NDPS Act made on 30th May 2000 was a relevant piece of

evidence as far as the prosecution is concerned. Therefore there is no merit

in the contention the statement of Rehamatullah made on 30th May 2000 had

to be discarded.

15. The order of transit remand required the accused to be produced in

Delhi by 24th December 1999 at 11am. Admittedly the accused was brought

to Delhi on 23rd December 1999. Did the NCB commit any illegality in not

producing him immediately before the Court? Unfortunately there is no

cross-examination of the PWs, who recorded the statement, on this point. In

fact, a suggestion was made to the officer concerned that no statement of

Yakub was recorded by him on 23rd December 1999 which he denied. The

relevant portion of the deposition of PW-9 reads as under:

"It is correct that on 23.12.1999 accused Yakub Khan had come to NCB office under judicial transit remand. It is correct that the judicial transit remand of Yakub Khan was up till 11 am of 24.12.1999. I gave notice to Yakub Khan on 23.12.1999 at about 12 noon. It is correct that time of giving notice is not mentioned in the notice nor any such proceeding i.e. of giving of notice was separately prepared. My Supdt. Informed me about the identity of Yakub Khan as he was brought by officers of Jodhpur Unit. It is correct that one statement of Yakub Khan was already recorded by Mr. Trivedi at Jodhpur. I did not record in the summons/notice under Section 67 NDPS Act that I am not satisfied with the statement of Yakub Khan recorded under Section 67 of NDPS Act by Mr. Trivedi at Jodhpur, no any separate memo was prepared to this effect. Superintendent gave me the statement under Section 67 NDPS Ac t recorded at Jodhpur in open condition, and it was not in sealed cover. I had given the statement of Yakub Khan which was recorded by me to Superintendent. On the same day I have not taken any receipt from Supdt. Above giving of statement to him as there is no such procedure in our office. I returned the Supdt. the statement of Yakub Khan which was written at Jodhpur on the same day simultaneously. While returning the stt. to Supdt. I had verbally informed in the statement given before me name of new person has appeared. It is correct that there was difference regarding the name of supplier and the weight as mentioned by Yakub Khan in his statement at Jodhpur and the statement which was given before me.

Vol. Yakub Khan has given clarification regarding the difference of weight and name. On the test memo which were prepared in triplicate I mentioned the crime No. as 29/99. No memo in writing was prepared at the time taking of FSL forms from Madan Singh and returning of FSL forms to Madan Singh. I took official seal from Madan Singh but no memo in writing was prepared regarding taking of seal from Madan Singh. Vol. He was present there. It is incorrect to suggest that the statement of Yakub Khan has been recorded under duress, coercion and pressure, and

in fact he has made no statement to me on 23.12.1999. It is further incorrect to suggest that I had not prepared the test memo nor I fixed the official seal thereon. It is further incorrect to suggest that I am deposing falsely being an officer of NCB."

In the absence of cross-examination by learned counsel for the defence of

PW-9 on this point, little is available as evidence to suggest that the

recording of the statement of Yakub at Delhi was done improperly or under

duress.

16. In order to examine the contention that successive statements cannot

be recorded under Section 67 NDPS Act, the provision itself requires some

detailed examination. It reads as under:-

Section 67 - Power to call for information, etc. Any officer referred to in section 42 who is authorized in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,--

(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;

(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) examine any person acquainted with the facts and circumstances of the case."

The words "during the course of any enquiry in connection with the

contravention of any provisions of this Act" indicate that the statements

could be recorder at any stage of the enquiry. There is nothing in the

wording of Section 67 that forbids the recording of the successive

statements. The words "examine any person acquainted with the facts and

circumstances of the case" in clause (c), by no means can be interpreted as

permitting only a single examination of a person. A comparison could be

drawn with Section 91 of the Code of Criminal Procedure, („CrPC‟) 1973

which empowers the officer-in-charge of a Police Station to require any

person to produce a document or thing. Likewise, under Section 161 CrPC,

the power to examine persons who may be acquainted with the facts and

circumstances of the case, by no means indicates that such statements of a

person can be recorded only once and not on successive occasions.

17. A reference may be made to the judgments concerning the

interpretation of Section 67 NDPS Act. In Raj Kumar Karwal v. Union of

India 1991 Cr LJ97 (SC), the Supreme Court was examining whether

officers of the Department of Revenue Intelligence were police officers

within the meaning of Section 25 of the Evidence Act, 1872 and, therefore,

whether the confessional statement recorded by such officers in the course of

the investigation of a person accused of an offence under the revenue laws

was admissible in evidence against him. The question was answered in the

negative and it was held that such statements made to the officers of the

Department of Revenue Intelligence were not hit by Section 25 of the

Evidence Act.

18. Still the twin tests of voluntariness and truthfulness will have to be

satisfied. As far as the statement not being voluntary is concerned, there is

no evidence to substantiate the plea of the accused that they were subjected

to physical torture by the officers of the Respondent. The other circumstance

relied upon is that both the accused have retracted their confessions on the

ground that they were compelled to give statements earlier. In Kanhaiyalal

v. Union of India AIR 2008 SC 1044, the Supreme Court was dealing with a

case where, after making a statement under Section 67 NDPS Act, an

application was filed by the accused for retracting the confession. However,

no order was passed on that application. The Supreme Court then held

(AIR, p.1052):

"40. It may also be recalled that though an application was made for retracting the confession made by the appellant, neither was any order passed on the said application nor was the same proved during the trial so as to water down the evidentiary value of the said statement. On the other hand, in the absence of such evidence on record, the High Court had no option but to proceed on the basis of the confession as made by the appellant under Section 67 of the NDPS Act. 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 person. Since a conviction can be maintained solely on the basis of a confession made under Section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant."

19. As far as the present case is concerned, although in paras 19 and 20 of

the order of the trial court it is recorded that the accused sought to retract the

statements which were made earlier, it is also noticed that they did not make

any such retraction when they were produced before the Magistrate for the

first time after the recording of such statements. In any event they did not

appear to have filed any formal application retracting the confession. The

observations of the Supreme Court in Kanhaiyalal would appear to squarely

apply in the instant case. It has been emphasized that the retraction should

be made at the earliest point in time (Hegdus Lahel Saba v. Union of India

120 (2005) DLT 341).

20. As regards the submission that a statement of an accused made while

in custody cannot be relied upon, the observations of the Supreme Court in

Kanhaiyalal appear to indicate otherwise. In para 36 of the said judgment, it

was explained as under (AIR, p. 1051):

"36. A parallel may be drawn between the provisions of Section 67 of the NDPS Act and Sections 107 and 108 of the Customs Act and to a large extent Section 32 of the Prevention of Terrorism Act, 2002 and Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. These are all special Acts meant to deal with special situations and circumstances. While the provisions of the Prevention of Terrorism Act, 2002, and TADA Act, 1987, are much more stringent and excludes from its purview the provisions of Sections 24 to 27 of the Evidence Act with regard to confession made before a police officer, the provisions relating to statements made during inquiry under the Customs Act and under the NDPS Act are less stringent and continues to attract the provisions of the Evidence Act. In the case of both the latter enactments, initially an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been any contravention of the provisions of the Act or any Rule or Order made thereunder. At that stage the person concerned is not an accused although he may be said to be in custody. But on the basis of the statements made by him he could be made an accused subsequently. What is important is whether the statement made by the person concerned is made during inquiry prior to his

arrest or after he had been formally charged with the offence and made an accused in respect thereof. As long as such statement was made by the accused at a time when he was not under arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20(3) of the Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play. Of course, this Court has also held in Pon Adithan's case (supra) that even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence." (emphasis supplied)

21. A reference was made to the evidence of DWs 1 and 2 who were

examined by accused Yakub in support of the plea that he was removed

from his residence forcibly and beaten by the officers. However no

complaint appears to have been recorded at their instance in this regard.

Medical evidence was also not produced in support of such allegation. In

this context, the following observations of the Supreme Court in

M.Prabhulal v. Assistant Director, DRI JT 2003 (Suppl) 2 SC 459 are

relevant:

"The confessional statements recorded by such officers are admissible in evidence....... Further it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced or any torture or harassment..... The statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of appellants‟ conviction."

22. In view of the categorical pronouncement of the Supreme Court in

regard to the admissibility of the statements under Section 67 NDPS Act, it

cannot be said that the statements recorded in the instant case were not made

voluntarily and are therefore inadmissible in evidence.

23. The other point made is regarding the truthfulness of the statements. It

is submitted that the failure by Yakub to name Rehmatullah in his first

statement on 22nd December, 1999 and the failure by the Respondent to

question Ganpat, Sadia and Ariya, the persons named in that statement,

shows that the statement cannot be truthful. As pointed out by the

Respondent, the subsequent statement dated 23rd December, 1999 explains

that Yakub had omitted to name Rehmatullah out of fear and that reasons for

this could possibly be explained only by Yakub himself. A perusal of the

two statements does inculpate both the accused. Yakub has admitted that

what was recovered from Gom Singh had in fact been sent by him. On their

part, Rehmatullah and Gom Singh had both stated that the contraband had

been sent by Yakub. The contradiction as to the exact quantity and the

omission by Rehmatullah to specifically state that he supplied the

contraband to Yakub or that the truck number was a different in the

statement given by Rehmatullah are not material discrepancies.

Rehmatullah, in fact, named Yakub. He states that after Yakub was arrested

he had gone away to Gujarat and that he knew that the NCB Officers were

looking for him. He states that he evaded arrest for about 90 days under the

mistaken impression that after that period that accused could not be arrested.

It is not possible, therefore, to come to the conclusion either that the

statements of the accused were not voluntary or truthful.

24. In A.K. Mehaboob v. Intelligence Officer NCB (2001) 10 SCC203, the

Supreme Court upheld the conviction of the accused since the statement was

found to be truthful. In Francis Stanly v. Intelligence Officer, NCB AIR

2007 SC 794, it was emphasized that the statement made under Section 67

NDPS Act "must be subject to closer scrutiny than a confession made to

private citizens or officials who do not have investigating powers under the

Act." There is also force in the contention of the Respondent that unlike the

Indian Penal Code, the statement of a co-accused under Section 67 NDPS

Act is not inadmissible. This was explained by this Court in Yudhister

Kumar v. State II (1992) CCR 1122 in the context of a similar provision in

Section 108 of the Customs Act which has been approved by the Supreme

Court in Naresh J. Sukhwani v. Union of India 1992 (83) ELT 258 (SC) in

the following words:

"4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India."

25. It is accordingly held that there is no merit in the contention on behalf

of the accused that the statements made by each of them were neither

voluntary nor truthful and, therefore, could not have been relied upon for

convicting them. This Court finds no reason to differ with the conclusion

arrived at by the trial court in regard to the guilt of the two accused for the

offences under Section 29 read with 21 NDPS Act. No other point was

urged by the learned counsel for the accused.

This Court does not find any merit in either of these appeals and they are

dismissed as such.

S. MURALIDHAR, J.

JULY 18, 2008 sb/rk