Delhi High Court

Karma Phuntsok & Ors. vs N.C.B. on 9 December, 2009

Author: A. K. Pathak

                HIGH COURT OF DELHI: NEW DELHI
+               CRL. APPEAL NO. 202/2003
%
KARMA PHUNTSOK & ORS.           ..... Appellants
                 Through: Ms. Neelam Grover, Adv.


                            Versus

N.C.B.                                                .....Respondent
                            Through: Nemo.

                       Judgment reserved on: 28th October, 2009
                       Judgment delivered on: 9th December, 2009

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?              Not
                                                           Necessary

       2. To be referred to Reporter or not?                Not
                                                            Necessary
       3. Whether the judgment should be
          reported in the Digest?                          Not
                                                           Necessary

A.K. PATHAK, J.

1. Appellant No. 2, namely, Narendra Bodh along with other

appellants and one Wu Yen La was convicted under Section 29

read with Section 20(b)(ii)(c) of the Narcotic Drugs &

Psychotropic Substances Act, 1985 (for short hereinafter

referred to as „Act‟) for having entered into a conspiracy, to

illegally acquire, possess and transport 51.8 kgs of hashish. So

far as Wu Yen La is concerned, he was also convicted under

Section 20(b)(ii)(c) of the Act. Appellant No. 2 was sentenced

to undergo rigorous imprisonment for ten years and to pay

fine of Rs. 1,00,000/- and in default of payment of fine, to

further undergo SI for six months. Benefit under Section 428

Cr.P.C. was also given. Appellant Nos.1,3, 4 and Wu Yen La

were also sentenced, details whereof need not to be referred

herein, as present appeal survives only in respect of appellant

No. 2.

2. Appeal qua the appellant Nos. 1, 3 and 4 was dismissed

for non-prosecution on 6th November, 2006.

3. Brief facts of the case are that Shri D.C. Mishra,

Superintendent, Narcotics Control Bureau, Delhi (for short

hereinafter referred to as „NCB‟) received a secret information

on 19th December, 1997 that some persons having features of

hill area, would be coming to New Delhi Railway Station to

receive two persons, coming from Calcutta by the Poorva

Express Train at about 8:00 am, carrying drugs. This

information was reduced in writing and put up before Zonal

Director of NCB, namely, Shri Mukesh Khullar. Thereafter, a

team headed by PW-2 Shri D.C. Mishra was formed and

reached New Delhi Railway Station towards Ajmeri Gate side.

Team was divided in two parts for keeping surveillance in the

parking area on both the sides of the Railway Station.

4. At about 8:30 am some persons, having features of hill

area, arrived in two cars, which were parked in the parking

area towards Ajmeri Gate side. Thereafter, the persons sitting

in the car went inside the Railway Station. At about 9:00 am

they came out along with two more persons, out of whom one

was female. Luggage was put in white Maruti Van bearing No.

DL 8CC 4970. Two persons sat in green colour Cielo car and

three male and one female occupied the aforementioned

Maruti Van. At that stage, officials of NCB intercepted them.

5. Names of the occupants sitting in Maruti Van were

disclosed as Narendra Bodh, Wu Yen La, Tuan Hsiao Ling,

Karma Phuntsok. The names of persons sitting in Cielo car

were disclosed as Tenpa Dhargyal and Sharap Gyaltsen.

Notice under Section 50 of the Act was jointly served on all the

accused persons as well as on Ms. Tuan Hsiao Ling. They were

asked, whether they desired their search and the search of

their luggage, to be conducted before a Gazetted Officer or a

Magistrate. Accused persons answered that they could be

searched by anyone. Nothing incriminating was recovered

from their personal search. Nothing was recovered from the

Cielo car.

6. There were five luggage pieces in Maruti Van in which

accused Narender Bodh along with Wu Yen La, Karma

Phuntsok and Ms.Ling were sitting. Out of these five luggage

pieces, nothing was recovered from three luggage pieces,

however, on examination of the other two suitcases i.e. red

and green colour respectively, two packets each wrapped in

white foam sheets and pasted with brown coloured tape, were

recovered. All the four packets were opened and it was found

to be containing black coloured substance in stick, cylindrical,

tablet and other shapes, wrapped in polythene. Small quantity

of the recovered substance from all the four packets was

tested with the Drug Testing Kit which tested positive for

charas. Recovered substance was weighed separately and the

total weight came out to be 51.8 kgs. Two sets of samples

were drawn and sealed with the seal of NCB. Recovered

quantity of contraband was also sealed with the seal of NCB.

7. Panchnama was prepared at the spot and signed by the

members of the team and two independent public witnesses.

Statement of appellant No. 2 as well as of the co-accused were

recorded under Section 67 of the Act. Accused were arrested.

Report under Section 57 of the Act was sent to superior officers

of NCB. In their statement under Section 67 of the Act,

appellant No. 2 as well as other accused disclosed that they

knew each other and were acting in concert with each other.

The manner in which hashish was procured was also disclosed

by them. According to them hashish was to be sent to France

through accused Wu Yen La. So far as Ms.Ling was concerned,

NCB officials did not find any incriminating material against her

as they were satisfied that she was having no knowledge about

the accused being in possession of the contraband or of their

intention to send it to abroad. Samples, which were deposited

in Malkhana, were sent to CRCL for chemical analysis and its

report was obtained. After completion of investigation,

complaint was filed in the Court.

8. Charge under Section 29 read with 20(b)(ii)(c) of the Act

was framed against appellant No. 2 on 1st May, 1998. Charges

against other accused were also framed on the same day.

Appellant No. 2 and his co-accused pleaded not guilty.

9. Prosecution examined fourteen witnesses to support their

case. Shri D.N. Tyagi, Intelligence Officer, NCB was examined

as PW1; Shri D.C. Mishra, Superintendent, NCB was examined

as PW 2. PW3 Bobby is the independent panch witness. PW4

N. Mohanta, investigating officer, had deposed about the

investigations carried out by him, as also about seizure of Ceilo

Car. PW5 R.K.Kanwar had recorded statement of accused

Tempa Dhargyal. PW8 Pramjeet, Senior Station Master had

provided photocopy of reservation chart of Poorva Express to

the NCB officials. PW9, S.P.Tripathi, had recorded statement of

accused Karma Phuntsok. PW12, Vinod Kumar, Manager of

Baljit Lodge, had produced the guest register pertaining to the

relevant period. PW14 Harpreet, produced guest register,

evidencing that co-accused Karma had stayed in Lytton hotel,

Calcutta.

10. After prosecution concluded evidence, statements of

appellant No. 2 and other accused were recorded under

Section 313 Cr.P.C. on 23rd July, 2002. Entire incriminating

material, which had come on record against appellant No. 2,

was put to him. Appellant denied his complicity in the crime

and claimed himself to be innocent. He stated that he had

been falsely implicated. However, Appellant No. 2 did not lead

any evidence in his defence.

11. I have perused the statement of material witnesses and

find that they had fully supported the prosecution case, which

has already been stated in brief, in the preceding paragraphs

here in above. PW2 i.e D.C. Mishra was posted as

Superintendent, NCB and was heading the raiding team. He

has categorically deposed that on 19th December, 1997 he

received information at his residence that some persons

having features of hill area would be coming to New Delhi

Railway Station on 20th December, 1997 to receive two

persons, arriving from Calcutta by Poorva Express Train,

carrying hashish with them. Information was reduced in

writing (Ex. PW2/A) and was placed before PW10 Mukesh

Khullar. On 20th December, 1997, he reached office at 6:15 am

and constituted a raiding team. At about 7:00 am he along

with other officials reached New Delhi Railway Station. Team

was divided in two parts. Surveillance was kept on both sides

of the Railway Station i.e. Paharganj side and Ajmeri Gate side.

He was towards Ajmeri Gate parking area. He noticed two cars

coming in the parking wherein persons having features of hill

area were sitting. At that stage, he called his other team

members, who were present towards Paharganj side, to come

Ajmeri Gate side parking. Persons sitting in the car went inside

the Railway Station and after some time they came out along

with two more persons out of whom, one was female. They

were having some luggage with them which was kept in Maruti

Van. Two persons, who had arrived by the train, sat in the

Maruti Van along with two accused. Remaining two accused

sat in green colour Cielo car. At that stage accused were

intercepted. Names of persons sitting in Maruti Van was

disclosed as Karma Phuntsok, Narendra Bodh (appellant No. 2),

Wu Yen La and Tuan Hsiao Ling.

12. Notice under Section 50 of the Act, prepared by Shri D.N.

Tyagi, PW1, was jointly served on all the accused. By this

notice they were given option to get their search conducted in

presence of Magistrate or Gazetted Officer. Nothing

objectionable was recovered from personal search of the

appellant No. 2. NCB officials also offered their search before

starting search of the luggage. Nothing was recovered from

the luggage kept in Cielo car. From the two suitcases kept in

the Maruti Van, four packets each wrapped with brown colour

tape were recovered. Two packets from each suitcase were

recovered. On opening the packets, black coloured semi solid

substance was recovered. It was in different shapes and sizes.

On testing with Drug Testing Kit, it tested positive for hashish.

Total weight of the recovered substances was found to be 51.8

kgs. Two samples each weighing 25 grams from the four

packets were drawn and kept in separate envelopes and

sealed. A paper slip, duly signed by all the accused two

independent witnesses and NCB officials was pasted on the

sealed envelopes. Remaining hashish was packed in their

original packets and sealed. The above said suitcases were

also seized. PW1 D.N. Tyagi prepared test memo in triplicate

at the spot. Case property was deposited in Malkhana and

necessary entries in the register were made. Relevant pages

of the register containing entries were proved as Ex. PW2/H.

Appellant No. 2 and other accused were arrested. Samples

were forwarded to CRCL on 22nd December, 1997 for chemical

analyses. Maruti Van as well as Cielo Car were also seized

vide seizure memos Ex. PW2/E and PW2/F respectively.

Relevant document, regarding sending of the sample to CRCL,

was proved as Ex. PW2/C. Case property was exhibited as Ex.

P1 to P33.

13. Testimony of PW1 was found to be trustworthy by the

learned Special Judge, NDPS. No discrepancy in his testimony

could be pointed out by the learned counsel, during the course

of arguments. I have perused his deposition and I also find it

trustworthy and reliable. In my opinion, his testimony being

trustworthy has rightly been occupied by the learned trial

Judge. His testimony has been fully corroborated by the PW1

D.N. Tyagi, who was also one of the member of the raiding

team.

14. PW10 Mukesh Khullar, Zonal Director, NCB, also

corroborated PW1 and PW2. He deposed that on 19th

December, 1997, PW2 D.C. Mishra informed him regarding the

secret information and discussed the plan for conducting the

raid at New Delhi Railway Station. PW10 has proved the above

information as Ex. PW2/A. He further deposed that NCB seal

was handed over by him to PW1 D.N.Tyagi, Investigating

Officer of the case, in the morning of 20th December, 1997 and

seal was returned to him in the evening of 20th December,

1997.

15. PW1 D.N. Tyagi has categorically deposed that after

issuing a notice to appellant No.2 (Narendra Bodh) he recorded

his statement under Section 67 of the NDPS Act on 20th

December, 1997. Appellant voluntarily made the statement

and admitted the recovery of contraband as also his

involvement in procuring and transporting the same.

Statement has been proved by him as Ex. PW1/O. PW1 also

deposed that the appellant had identified photographs of other

accused in his statement Ex. PW1/P. From the statement of

PW1, I am satisfied that appellant No. 2 had made statement

Ex. PW1/O voluntarily and without any pressure or coercion.

16. PW6 A. Alam, Assistant Chemical Examiner, CRCL, New

Delhi deposed that on 22nd December, 1997 he received four

samples in sealed condition from NCB. PW7 Dr. Y.K.S. Rathore,

Chemical Examiner Grade I, CRCL supported this version of

PW6 A. Alam. According to PW7, on chromatographic

examination, each of the sample was found to be charas.

Thus, it can be safely concluded that the contraband recovered

was charas.

17. From the testimony of aforesaid witnesses, it is clear that

the prosecution had succeeded in proving that appellant was

sitting in white colour Maruti Van along with co accused Wu

Yen La and Karma Phuntsok and on search of luggage lying in

the same Van, 51.8 kg of charas was recovered. Appellant had

failed to give any explanation of his being in company of other

accused and as to how the contraband was present in the van.

On the contrary, statement Ex. PW1/O shows that appellant

had carried the contraband from Manali to Delhi where it was

packed in two suit cases and thereafter taken to Calcutta and

handed over to Wu Yen La for onward transmission to France.

For some reasons, Wu Yen La could not do so and brought the

suitcases containing contraband from Calcutta to Delhi by

Poorva Express where appellant No. 2 along with co-accused

had gone to receive him. After receiving Wu Yen La and Ms.

Ling appellant along with other co-accused came in the parking

lot and thereafter, sat in the Maruti Van when they were

apprehended by the officials of NCB. Statement of appellant

No. 2 recorded under Section 67 of NDPS Act, indicated that he

had conspired with his co-accused in procuring, packaging and

transporting of the contraband. In my view, learned trial court,

on the basis of alone evidence had rightly convicted appellant

No. 2 under Section 29 read with Section 20(b)(ii)(c) of NDPS

Act.

18. Learned counsel for appellant No. 2 has contended that

the statement under Section 67 of the NDPS Act, recorded on

20th December, 1997, was not voluntary and it was extracted

by the officials of the NCB by exercising third degree methods.

Statement was made by the appellant on the dictation of NCB

officials. Statement was extracted by extending threats. Since

the statement was not voluntary, appellant had retracted from

the same on 20th January, 1998, while he was in jail. Appellant

had retracted from his statement within a short period of four

weeks. Learned trial court has erred in placing reliance on the

retracted statement of the appellant. No other evidence was

available on record to corroborate the retracted statement of

the appellant. As per the learned trial court, retracted

statement of the appellant could not have been made basis for

his conviction without corroboration from other independent

evidence indicating the culpability of the appellant in the

crime. Reliance has been placed on Francis Stanly @ Stalin

vs. Intelligence Officer, Narcotic Control Bureau reported

in 2007 1 AD (S.C.). She further contended that reliance

placed by the trial court on the statements under Section 67 of

the NDPS Act of the co-accused thereby implicating the

appellant, is misplaced. Statement of co-accused under

Section 67 of the NDPS Act is not a substantive piece of

evidence and could not have been made a ground for holding

the appellant guilty more so, when there was no other

evidence available on record showing the involvement of the

appellant. Reliance has been placed on Monish H. Bhalla vs.

Satya Prakash Bahl reported in 2005 Criminal Law Journal

1827.

19. I do not find any force in the above contentions of the

learned counsel for the appellant. PW1 D.N. Tyagi, had

recorded the statement Ex. PW1/O. He had categorically

deposed that in pursuance of the summons Ex. PW1/G

appellant Narender Bodh tendered his voluntary statement Ex.

PW1/O under Section 67 of the NDPS Act running into four

pages in his own handwriting. Appellant No. 2 had also

appended his signatures on his statement under Section 67 of

the Act. Signatures of the appellant had been identified by

him at appoint A. PW1 has further deposed that during the

course of rendering of statement, appellant No. 2 was shown

photographs of all the five accused and he identified the same

and appended his signatures on all the photographs in token of

their identification. His statement in this behalf is Ex. PW1/P.

His testimony on this point has remained unshaken in his cross

examination. No material discrepancy in his statement could

be pointed out by the learned counsel for the appellant.

Appellant No. 2 has neither disputed his handwriting nor his

signatures on Ex. PW1/O and Ex. PW1/P. There is no reason to

disbelieve PW1 that the appellant had voluntarily tendered his

statement in his own handwriting. Even otherwise, retraction

made by the appellant, on the face of it, appears to be an

afterthought and based on legal advice. Legal terminology has

been used in the application dated 23rd January, 1998 filed

before the learned Metropolitan Magistrate. That apart,

statement of the appellant was recorded by PW1 on 20th

December, 1997; thereafter, appellant was produced before

the learned Metropolitan Magistrate on 21st December, 1997.

Appellant did not make any grievance, when he was produced

before the Metropolitan Magistrate on 21st December, 1997,

that he was tortured or was forced to give any such

incriminating statements. Learned Metropolitan Magistrate

has specifically mentioned that all the five accused persons

were produced before him at his residence by the Investigating

Officer and none of them stated that they had received any

injury or that they were beaten. On the contrary, they stated

that they were not interested in their medical examination.

Had the statement under Section 67 of the NDPS Act been

extracted by the NCB officials from the appellant by torturing

or applying undue force upon them, they would have certainly

brought this fact to the notice of concerned Metropolitan

Magistrate on 21st December, 1997 itself. This clearly shows

that the statement Ex. PW1/O of appellant No. 2 was made by

him voluntarily. In my view, learned trial court has rightly

placed reliance on this statement while convicting the

appellant.

20. Apart from this, I find that the statement Ex. PW1/O is

duly corroborated from the independent evidence i.e. appellant

No. 2 being in company of co-accused in the same car from

which contraband was recovered. It is not a case where charas

from the possession of co-accused was recovered and on their

interrogation the name of the appellant No. 2 surfaced during

the investigation, pursuant thereof he was arrested and his

statement was recorded. In such a situation, in absence of any

other independent evidence, it could have been pleaded that

such a statement required corroboration from other

independent evidence. In this case appellant No. 2 was

apprehended at the spot. He was sitting in the same vehicle

from which contraband was recovered. He was in company

with co-accused. This fact itself lends credence to his

statement Ex. PW1/O. It is well settled that the statement

under Section 67 of the Act recorded by a competent officer is

not hit by Section 25 of the Evidence Act.

21. Francis Stanly @ Stalin‟s case (supra) is of no help to the

appellant. In para 17 of the judgment it has been specifically

mentioned that the said case was not to be used as a

precedent for other cases. In the facts involved in the said

case conviction of the appellant was set aside by giving benefit

of reasonable doubt to him.

22. Facts of the present case are more or less similar to the

facts involved in the judgment rendered by the Supreme Court

titled Madan Lal & Anr. Vs. State of Himachal Pradesh

reported in 2003 SC 3642. In the said case Assistant

Superintendent of Police, Sunder Lal received a secret

telephonic message on 5th October, 1999 that charas was

being transported in a blue colour Maruti Esteem bearing No.

CHO-TE-2764. He reduced this information in writing and gave

directions to the SHO, Police Station, Solan to send the

information to the Superintendent of Police and thereafter

proceeded towards the spot. He formed a raiding party and

stopped the Maruti Esteem car. On personal search of the

accused persons nothing incriminating was recovered,

however, on search of the car a black colour bag containing

820 gm charas was found. Car along with the documents and

keys was seized. All the occupants of the car were convicted

under Section 20 of the NDPS Act. In the above facts Supreme

Court held as under :-

"In fact the evidence clearly establishes that they knew about transportation of charas, and each had a role in the transportation and possession with conscious knowledge of what they are doing. The accused-appellant Manjit Singh does not stand on a different footing merely because he was a driver of the vehicle. The logic applicable to other accused- appellants also applies to Manjit Singh. "

23. In this case appellant Narender Bodh was occupant of the

Maruti Van from which hashish was recovered. In this

scenario, his statement Ex. PW1/O that he conspired in

procuring and transporting the hashish has to be relied.

Appellant No. 2 cannot claim himself to be innocent. He

cannot claim ignorance about the procurement and

transportation of the contraband after being found in company

of co-accused and having failed to render any plausible

explanation in this regard.

24. Learned counsel for the appellant has next contended

that the notice under Section 50 of the NDPS Act was given to

all the accused persons jointly, by way of formality. Non-

compliance of Section 50 is fatal and the appellant is liable to

be acquitted. I do not find any force in this contention of the

appellant either. Bare reading of Section 50 shows that it only

applies in the cases of personal search of a person. It would

not extend to search of a vehicle or a container or a bag or

premises. The language employed in Section 50 makes it clear

that the search has to be in relation to a person as contrasted

to search of premises/vehicle/articles. Also refer to

Constitution Bench judgment titled Baldev Singh vs. State

of Punjab reported in AIR 1999 SC 2378 wherein it was

observed as under :-

"Section 50 would come into play only in the case of a search of a person as distinguished

from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."

25. In this case contraband was recovered from the vehicle,

therefore, Section 50 of the NDPS Act would not be attracted.

26. Appellant No. 2 was in the company of co-accused in

Maruti Van from where contraband was recovered.

Accordingly, a presumption can be drawn against him under

Section 35 and 54 of the Act of his involvement, more so when

appellant had failed to rebut the same. It was for him to

explain by plausible and acceptable defence to demonstrate

that he was not in any manner involved in procurement,

packaging, transportation and that he had nothing to do with

the contraband recovered from the luggage found in Maruti

Van wherein he was found sitting.