Vimal Kumar Bahl vs Dri
2009 Latest Caselaw 4477 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on:23rd October, 2009
                    Judgment Delivered on:5th November, 2009

                     CRL.APPEAL 694/2005

       VIMAL KUMAR BAHL                                     ..... Appellant

                            Through: Mr. K.K.Sud, Sr. Advocate with
                                     Ms. Nandita, Advocate &
                                     Mr. Sunil Mehta, Advocate.

                            versus
       DRI                                                  ..... Respondent

                            Through: Mr.Satish Aggarwala,
                                     with Mr. Shirish Aggarwal,
                                     Advocates.

                                      WITH

                  CRL.APPEAL 779/2005 &
             Crl.M.A.Nos.11243/2006 & 4196/2008


       SURINDER RAJ SINGH                     ........Appellant
                       Through: Mr. K.K.Sud, Sr. Advocate with
                                Ms. Nandita, Advocate & Mr.Sunil
                                Mehta, Advocate.

                            Versus

       DRI                                                  .......Respondent.

                            Through: Mr. Satish Aggarwala,
                                     with Mr. Shirish Aggarwal,
                                     Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

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

    3. Whether the judgment should be reported in the
       Digest?                                        Yes
Crl. Appeal Nos.694/2005 & 779/2005          Page 1 of 45
 INDERMEET KAUR, J.

1. On 17.4.2001 at about 9.30 AM pursuant to a secret

information dated 16.04.2001 Ex. PW12/A received by A. K. Prasad

PW-12 the officers of the Directorate of Revenue Intelligence,

Headquarters, New Delhi (hereinafter referred to as the DRI)

intercepted two cars bearing registration No.DL-3CQ-4785, a silver

grey coloured Matiz car and DL-9C-3785 a white coloured Maruti

car at the National Highway No.8, opposite Shiv Temple, Delhi-

Gurgaon Road, Delhi. The occupant of the Maruti car introduced

himself as Vimal Kumar Bahl and the occupant of the Matiz car

introduced himself as Surender Raj Singh. The said cars were

being driven by the said respective persons.

2. Investigative team was headed by P.R.Lakra PW-4 and joined

by D.P.Saxena PW-2 and Sudhir Puthran PW-3. The DRI officials

informed the apprehended persons that they were to be searched

and if they so wished they have a right of getting their search

effected either in the presence of a gazetted officer or a

Magistrate. Notice under Section 50 of the Narcotic Drug and

Psychotropic Substance Act, 1985 (hereinafter referred to as the

NDPS Act) was served upon each of the two apprehended persons.

The said notice served upon Vimal Kumar Bahl is Ex.PW-2/B and

that served upon Surinder Raj Singh is Ex.PW-2/C. Both the

persons declined this request and their endorsements appear at

point B-1 to B-1 and C-1 to C-1 of Ex.PW-2/B and Ex.PW-2/C

respectively. These documents were witnessed by the Panchas

i.e. PW Ashok Kumar and PW Rajesh Kumar.

3. The white Maruti vehicle was rummaged first; from the

dickey of the said vehicle one blue coloured check canvas bag was

recovered; on opening the same it was found to contain 17

packets containing a white substance. The registration certificate

of the vehicle evidencing the ownership of Rajesh Pandoh was also

seized. Nothing incriminating was recovered from the silver grey

Matiz car. Registration certificate of the vehicle evidenced its

ownership in the name of Urmil Guaba wife of Surinder Raj Singh

was seized.

4. Personal search of both the apprehended persons was

conducted vide memos Ex. PW2/F and Ex. PW2/G.

5. The blue coloured check canvas bag was examined which

was found to contain 17 packets in all. They were marked as X-1

to X-15, Y-1 and Z-1. The field test kit opined that the powder

contained in the said packets had tested positive for heroin; the

total weight of the packets was 17.504 kgs. Four samples of 10

gms. each were drawn in duplicate from all the 17 packets; this

was after mixing the contents of X-1 to X-10 and thereafter the

mixing of the contents of X-11 to X-15, Y1 & Z1; remaining

contraband as also the seized samples were sealed in khaki

envelops sealed with the DRI seal no.10 on papers slips affixed on

each packet bearing the signatures of the public witnesses, both

the accused as also the signatures of the complainant.

6. Panchnama Ex.PW-2/D was drawn running into 13 pages;

each page having been signed by the Panch witnesses i.e. Ashok

Kumar and Rajesh Kumar as also the complainant D.P.Saxena

PW-2 and both the accused persons.

7. Statement of Vimal Kumar Bahl Ex.PW-1/B was recorded

under Section 67 of the NDPS Act by Ms.Sanyogita Mishra PW-1.

This statement is in the handwriting of Vimal Kumar Bahl and is

running into seven pages. Statement of Surinder Raj Singh Ex.

PW3/B was also recorded under Section 67 of the NDPS Act by

Sudhir Puthran PW3 and this statement is also in the handwriting

of Surinder Raj Singh running into six pages.

8. Accused persons were arrested at 23.50 hours on 17.4.2001

vide arrest memos Ex.PW1/G & Ex.PW1/H and the grounds of

arrest were explained to them by PW-2. Compliance of Section 57

of the NDPS Act i.e. the report of the arrest and seizure by PW-2 to

his senior officer was made vide document Ex.PW-1/G.

9. Mahavir Prasad PW-10 was the incharge of the godown of

valuables at the New Customs House and the trunk containing the

contraband was kept in his custody on 18.4.2001; entries in the

register in the Valuable Godown are Ex.PW-10/A. The drawn

samples were sent through PW-2 and received in the CRCL along

with duplicate test memo by Sh. B.L.Jain PW-5 who issued receipt

Ex.PW-5/A to the said effect. Narender Kumar PW-8 in his capacity

as the Chemical Examiner, Grade-I personally verified the seals of

the samples as per the description mentioned on the test memo

Ex.PW-2/K and under his supervision the report Ex.PW-5/B had

been prepared testing the drawn samples as positive for

heroin/diacetylmorphine i.e. a drug prohibited under the provisions

of the NDPS Act.

10. The Maruti vehicle no. DL-9C-3785 was registered in the

name of Rajesh Pandoh. Ex.PW-1/K was the letter addressed by

B.K.Pandoh, the father of Rajesh Pandoh to PW-1 stating that this

vehicle had been sold by his son Rajesh Pandoh to Dheeraj

Manchanda PW-6. Ex.PW-6/A was the delivery receipt of this

vehicle evidencing that Dheeraj Manchanda had sold this vehicle

to one Ashu Malhotra PW-9 resident of D-120 Suraj Vihar, New

Delhi, who in turn had lent it to Vimal Kumar Bahl for use.

11. On the basis of the aforenoted evidence which had been

collected by the prosecution vide impugned judgment dated

12.8.2005 both the accused persons were held guilty for having

committed offences punishable under Section 21 read with Section

29 of the NDPS Act. They were sentenced vide order of sentence

dated 23.9.2005. Convict Vimal Kumar Bahl had been sentenced

to undergo RI for a period of sixteen years and to pay a fine of

Rs.2 lakh; in default of payment of fine to undergo RI for a period

of two years. Convict Surinder Raj Singh had been sentenced to

undergo RI for a period of 11 years and to pay a fine of Rs.1 lakh;

in default of payment of fine to undergo RI for one year.

12. It is this judgment which is the subject matter of the present

appeal.

13. On behalf of the accused the following arguments have been

addressed:

(i) The Maruti Car no. DL-9C-3785 from the dickey of which the

alleged contraband had been recovered was admittedly not in the

name of Vimal Kumar Bahl; its registered owner is Rajesh Pandoh

and Vimal Kumar Bahl had no connection with the same.

Conscious possession of the drug qua Vimal Kumar Bahl has not

been proved. Rajesh Pandoh has not come into the witness box.

Dheeraj Manchanda PW-6 has stated that he had sold this vehicle

to Ashu Malhotra through Pankaj; Pankaj has not been examined;

Ashu Malhotra examined as PW-9 has not supported this version of

the prosecution and had categorically stated that he had not lent

this vehicle to Vimal Kumar Bahl as is the contention of the

prosecution; the foundation of the version of the prosecution

having been destroyed by this version of PW-9 it is clear that the

prosecution has failed to establish that this vehicle from which the

contraband had been recovered was in possession of Vimal Kumar

Bahl; in the absence of this crucial averment not having been

proved, the prosecution has no legs to stand. Identification by PW-

9 of the photographs of the A1 are not a substantive evidence in

the absence of PW-9 not identifying A1 in Court. For this

preposition reliance has been placed upon 2001 SCC 1 138 U.A.

Sakoor Sardhana vs. I.O. NCB. Attention has also been drawn to

the testimony of I.K.Jatali PW-11, the landlord of B.K.Pandoh who

has stated that B.K.Pandoh has left his premises about 8 to 10

years ago i.e. sometime in the year 1994; in these circumstances

how the summons could have been served upon B.K.Pandoh by

the DRI officials is not explained; Ex.PW-1/K the letter purported to

have been written by B.K.Pandoh, the father of Rajesh Pandoh to

the DRI officials is a sham document. The delivery receipt

Ex.PW-6/A has given the address of Ashu Malhotra as of Suraj

Vihar, Ghaziabad, which is different from the address given by

Vimal Kumar Bahl in his statement under Section 67 of the NDPS

Act; PW-9 Ashu Malhotra has given yet a different address.

Occupation of the car by Vimal Kumar Bahl at the relevant time

not having been proved, the obvious corollary is that the

contraband recovered from this vehicle also cannot be foisted

upon Vimal Kumar Bahl.

(ii) Statements under Section 67 of the NDPS Act are valueless;

they are to be equated with a disclosure statement of an accused

recorded under Section 26 of the Evidence Act and such

statements having been made while the accused were in the

custody of the police are presumably statements made under the

coercion and pressure and have no value in the eyes of law.

Reliance has been placed upon 2009 (2) Crimes 171 Union of India

vs. Bal Mukand as also upon 2009 (3) Crimes 109 SC Raju Premji

vs. Customs as also another judgment of Supreme Court reported

in 2008 (9) Scale 681 Noor Aga vs. State of Punjab & Anr. It is

submitted that in this case the said statements were retracted by

the accused persons on the very next day i.e. 18.4.2001 itself and

such a retracted confession is even otherwise valueless. The

information collected in the said statements have not been

verified; whether any Pakistani national by the name of Haji Aizam

exists or not is not known.

(iii) Section 42 of the NDPS Act has not been complied with. The

complaint had been filed on 4.7.2001; admittedly, along with the

complaint the document Ex.PW-12/A the purported secret

information had not been filed. On 5.12.2002 an application had

been filed on behalf of the accused wherein it had been stated

that there had been a non-compliance of the Section 42 of the

NDPS Act as no such document purporting to be a secret

information had been filed along with the complaint; the

subsequent permission sought by the department to file this

document on record was clearly malafide. This document is

fabricated and prepared as an afterthought. It was only on

7.1.2002 that this document had been permitted to be taken on

record i.e. even after the date of the framing of charge. Attention

has been drawn to the contents of Ex.PW-12/A. Admittedly,

Sh.P.K.Mishra who had received this secret information has not

been examined; he is the immediate superior of PW-12; it is

submitted that on the second page of the document it has been

mentioned that the secret intelligence was to the effect that Vimal

Kumar Bahl would be handing over 17 kgs. heroin to Surinder Raj

Singh at about 9 AM opposite Shiv Murti Temple; how this

information could have been known on 16.4.2001 is not explained

as in the statements of the accused recorded under Section 67 of

the NDPS Act Ex.PW-1/B and Ex.PW-3/B, both the accused persons

have stated that in the course of their conversation on the way on

17.4.2001, Vimal Kumar Bahl had instructed Surinder Raj Singh to

meet him at the Shiv Murti Temple; this information could not

have been possibly known one day prior i.e. on 16.4.2001. This by

itself clearly establishes that this document is a sham document.

(iv) There has been no compliance of the mandate of Section 50

of the NDPS Act; neither of the two documents i.e. Ex.PW-2/B and

Ex.PW-2/C have made a reference to the word „right‟ which is the

essential ingredient required to be explained to the accused; in the

absence of which the service of these notices would be an empty

formality.

(v) The requirements of Section 57 of the NDPS Act have not

been complied with. Attention has been drawn to Ex.PW-1/G

where the information recorded by PW-2 has been forwarded to

PW-1; it is submitted that Section 57 speaks of the particulars of

the arrest and seizure to be given to the immediate official

superior; PW-1 is not the immediate official superior of PW-2; non-

compliance of this provision of law also vitiates the trial.

(vi) The standing instructions 1/88 of the DRI department

containing the procedural safeguards to be followed for a search

and seizure effected under the provisions of the NDPS Act have

not been followed. The test memos are to be prepared in triplicate;

along with a forwarding letter; PW-4 has stated that there were

two test memos which had been prepared; PW-5 in his cross-

examination has admitted that there was no forwarding letter in

this case and only test memos were received; test memos have

not been prepared by the IO PW-2; Panchnama is also silent on

this score. The documents are typedwritten which is not possible

if the same were prepared at the spot; essential safeguards of

sampling and seizure not having been followed in true letter and

spirit, benefit of doubt has accrued in favour of the accused.

(vii) The burden of proof in a criminal trial is always on the

prosecution. Resort cannot be taken to the provisions of the

Section 35 and Section 54 of the NDPS Act until and unless the

prosecution has discharged its initial burden. In the instant case

this has not been done. The trial judge has wrongly in para 57 of

the judgment shifted the onus from the prosecution to the defence

by holding that the mental state and culpability of the offender can

only be known to him for which an adverse presumption has been

drawn against the accused.

(viii) There are inherent contradictions in the version of witnesses

of the prosecution. Admittedly, the accused persons had been

apprehended on the Delhi-Gurgaon Road but for reasons

unexplained the search and seizure had been effected at the office

i.e. at the ground floor of the Indraprastha Bhawan, I.P.Estate. No

reasons are forthcoming as to why and how the investigation was

shifted. Admittedly, the office of the DRI is a place which is closely

guarded by the DRI officials. The unexplained threat and

pressures on apprehended persons in such a chagrined

atmosphere would be much more than in a free atmosphere i.e. on

the Gurgaon Highway where the accused persons had purportedly

been apprehended; this speaks of the malafides of the

department. The car from where the contraband had been

recovered had not been produced in court; whether it had a dickey

or not could not have been known to the accused; this is

prejudicial to the interest of the accused. The key of the vehicle

has also not been produced; physical evidence has evaporated.

(ix) The Panch witnesses have not been produced deliberately.

This is for the reason that they were non-existent persons, adverse

inference for withholding this material evidence has to be drawn

against the prosecution; support has been drawn from the

provisions of Section 114 (g) of the Indian Evidence Act.

(x) The reasons given by the judge are not only perfunctory but

also non-discernable. He has mentioned that written submissions

have been filed by the respective parties, but there is no

discussion on the same. Attention has been drawn to paras 16, 29-

55, 62, 78 and 84 of the impugned judgment.

14. Arguments have been heard. Record has been perused.

15. Possession and recovery of contraband from Maruti Car DL9C

3785:-

The white maruti vehicle bearing no.No.DL-9C-3785 is

admittedly registered in the name of Rajesh Pandoh. The

registration certificate of this vehicle had been seized from the

dash board of the car. This had triggered off the investigation qua

the role of Rajesh Pandoh. PW-2 had issued summons to Rajesh

Pandoh. B.K.Pandoh his father vide reply Ex.PW-1/K addressed to

PW-1 stated that this vehicle had been sold to Dheeraj Manchanda

of B-29, Lajpat Nagar-II, New Delhi on 23.2.2001. Dheeraj

Manchanda PW-6 had been summoned in the office of PW-1 vide

summons Ex.PW-1/O and his statement under Section 67 of the

NDPS Act running into two pages Ex.PW-1/P was recorded. On

oath PW-6 had stated that in February, 2001, he had purchased

this car from Rajesh Pandoh and in the next month i.e. in March

2001 through Pankaj he had sold it to Ashu. Delivery receipt Ex.

PW-6/A evidenced the sale of this vehicle to Ashu Malhotra

through Pankaj and signatures of Pankaj at point A have been

identified by PW-6.

16. Ashu Malhotra was summoned before Investigating Officer

PW-1 through summons Ex.PW-1/H. He had given his statement

under Section 67 of the NDPS Act on 25.4.2001 Ex.PW-1/J. Ashu

Malhotra has come into witness box as PW-9. On oath he has

deposed that he has no concern with the white maruti car; this

witness was declared hostile and thereafter Special P.P. was

allowed to cross-examine this witness. In his cross-examination

PW-9 had denied that he had lent his vehicle to Vimal Kumar Bahl

2-3 days prior to the date of incident i.e. 17.4.2001 as Vimal

Kumar Bahl was a family friend of theirs. He, however, admitted

that he had given his statement Ex.PW-1/J to PW-1 pursuant to the

summons Ex.PW-1/H which he had admittedly received; he had

also admitted his signatures on the two photographs Ex.PW-9/X

and Ex.PW-9/Y in token of identification of Vimal Kumar Bahl. On

oath he, however, categorically denied that he knows Vinod Kumar

Bahl.

17. The vehement argument of the learned defence counsel is

outlined on this version of PW-9 wherein he had denied that he

had lent his maruti vehicle to Vimal Kumar Bahl; the argument

being that admittedly the registered owner of the vehicle is Rajesh

Pandoh and Ashu Malhotra denying that he knows Vimal Kumar

Bahl or that he had ever lent his vehicle to Vimal Kumar Bahl, the

question of Vimal Kumar Bahl being in possession of the vehicle

does not arise; the entire evidence on this score has been

fabricated. The very foundation of the case having not been

established the consequent recovery of the contraband from this

vehicle cannot now be foisted upon Vimal Kumar Bahl.

18. Record of the case does not support this submission of the

learned defence counsel. There is no dispute that Vimal Kumar

Bahl is not the registered owner of this vehicle; this is not the case

of the prosecution. Prosecution version is that this vehicle was

being driven by A-1 on the fateful day i.e. 17.4.2001 when

pursuant to the secret information he had been apprehended and

the contraband after having been transferred from the Matiz car of

A-2 to the maruti vehicle of A-1, witnessed by PW-2, PW-3 and

PW-4, the subsequent recovery of the contraband from this vehicle

established the conscious possession of this drug qua A-1.

19. Before adverting to the oral version of the witnesses, the

statement of A-1 recorded under Section 67 of the DPS Act would

be relevant. This statement Ex. PW-1/B was recorded by PW-1

pursuant to a summon Ex.PW-1/A issued by PW-1. This statement

is running into seven pages; on page five it categorically recites,

"White maruti car No.DL-9C-3785 in possession of mine."

20. The secret information Ex.PW-12/A recorded on 16.4.2001

one day prior to the incident also specifically records that Vimal

Kumar Bahl would be coming in a white maruti car DL-9C-3785;

the Panchnama Ex.PW-1/D, the first document prepared after the

recovery also specifically recites that Vimal Kumar Bahl was

driving the said vehicle at the time when the vehicle was

intercepted and from the dickey of the said vehicle contraband

was recovered.

21. It is relevant to point out that at no stage has A-1 put up any

defence that this maruti vehicle was not in his possession on the

fateful day; the witnesses to the recovery PW-2. PW-3 and PW-4

have not been cross-examined on this score and no suggestion

has also been given to either of them that on 17.4.2001 when A-1

was apprehended with the contraband, this vehicle was not in his

possession or he was not driving it. A bald suggestion has been

given to PW-1 that the accused was not in possession of the said

car and that Ashu Malhotra had not lent it to him. This witness i.e.

PW-1 was not an eye-witness to the recovery; she had only

recorded the statement of A-1 under Section 67 of the NDPS Act.

The recovery witnesses i.e. the PW-2, PW-3 and PW-4 have not

been suggested this defence which is now sought to be

propounded.

22. The second stage when the accused is permitted to adduce

his defence strategy, in a criminal trial is at the stage when his

statement under Section 313 of the Cr.P.C. is recorded. In this

entire statement there is no specific averment that this vehicle i.e.

the maruti car No.DL-9C-3785 was not in his possession on the

fateful day. Question nos.2,3,4 and 5 specifically state that maruti

car bearing no. DL-3CQ-4785 was intercepted on the fateful day

which was in the occupation of A-1, secreting a narcotic drug and

being transported in the said vehicle; at this stage also there is a

routine reply given by A-1 that this version is false; no specific

averment has been made that this vehicle was not in his

possession on the fateful day.

23. The third stage when the accused is permitted to set up his

defence is at the stage of evidence of the defence; no evidence

has been adduced by A-1.

24. It would be relevant to point out that the entire investigation

with relation to the ownership and possession of the vehicle

started after the registration certificate of the vehicle was

recovered from its dash board. The owner of the vehicle Rajesh

Pandoh through his father informed PW-1 that this vehicle had

been sold to Pw-6. PW-6 appeared before the investigating officer

and gave his statement corroborating the version of B.K.Pandoh

that he had purchased this vehicle from his son Rajesh Pandoh.

This version was reiterated on oath by PW-6. PW-6 had led the

investigative team to the role of Ashu Malhotra as he was the

purchaser and the transfree of this vehicle which is evident from

the deposition of PW-6. Ashu Malhotra in the witness box had

denied his friendship with A-1 but at the same time he had

admitted that he received a summon Ex.PW-1/H. This document

recites that PW-1 had summoned him in her office i.e. the officer

of the DRI in connection with the seizure of 17.5 Kg of a white

substance suspected to be heroin on 17.4.2001 from a white

maruti car No.DL-9C-3785. This summon is addressed at HIG Flat-

9, Chandan Nagar near Surya Nagar, Ghazaibad, U.P. PW-9 has

also admitted that he has given his statement Ex.PW-1/J which is

hand written running into two pages before PW-1. In this

statement he has admitted that on 16.4.2001 Vimal Kumar Bahl

i.e. A-1 had telephonically asked him to lend him his maruti 800

bearing No.DL-9C-3785. He had thereafter left the vehicle in

Defence Colony Market in front of Col. Kabab Restaurant. Further

details of Vimal Kumar Bahl i.e. about his father‟s name being O.P.

Bahl and his residence at the IInd Floor Hudson Lane had also

been recorded. Statement has been signed at point A by PW-9

and phone No.4623148 had been penned by him. PW-9 has also

put his signatures on the two photographs Ex. PW-9/X and Ex.PW-

9/Y in token of the identification of A-1. The telephone number

given by PW-9 in this version Ex. PW-1/J which was recorded on

25.4.2001 is the same number which has been given by A-1 in his

statement under Section 67 of the NDPS Act wherein on page five

he has stated that he knows Ashu Malhotra for the last 17-18 years

and his telephone number is 4623148. In his statement A-1 has

further stated that father of Ashu Malhotra used to deal in watches

in Lajpat Rai Market which has been confirmed by PW-9 in his

statement Ex.PW-1/J. Ex.PW-1/B i.e. the statement of A-1 under

Section 67 of the NDPS Act was recorded on 17.4.2001 and Ex.

PW-1/J was recorded on 25.4.2001; the information contained in

both the versions are corroborative of one another. It is also not

the case of PW-9 that he had made any complaint to any higher

authority that he had been coerced or forced or pressurized to

give this statement Ex.PW-1/J.

25. In T. Shanker Prasad v. State of Andhra Pradesh 2004

(1) JCC 200 the Court while dealing with the question of a hostile

witness had held that if the judge find that in the process of the

testimony of that witnesses, the credit of the witness has not been

completely shaken, he may after reading and considering

evidence of the said witness accept it in the light of the other

evidence on record and relying upon that part of his testimony

which he found to be creditworthy and act upon it. It is a well

established rule of criminal jurisprudence that for certain purposes

the statement of even a hostile witness can be believed. Gagan

Kanojia v. State of Punjab 2007(2) Supreme 23.

26. In the instant case by applying the aforestated principle, it

is clear that PW-9 had subsequently been won over; he has,

however, not disputed his version which he had given before the

Investigating Officer Ex.PW-1/J which statement was recorded

under Section 67 of the NDPS Act. Such a statement is not at par

with a statement recorded by the police under Section 161 of the

Cr. P.C.; it can be used to lend assurance; version of PW-9 on oath

admitting that he had appeared before the Investigating Officer in

relation to a case of recovery of 17.5 kg of heroin from a white

maruti car bearing No.DL-9C-3785 and details elicited in the said

version which information corroborated the information given by

A-1 in Ex.PW-1/B and which facts have not been disputed by

PW-9; the necessary corollary is that PW-9 in one way or the other

is trying to protect A-1 for some ulterior purpose.

27. However, accepting the version of PW-9 as it is, it has been

established that PW-9 was known to A-1, he had identified him in

the photograph as well; why would Ex.PW-1/K, PW-6, Ex.PW-6/A lie

about the ownership of this disputed vehicle; neither had any axe

to grind; the investigation qua this vehicle had in fact been set into

motion after the recovery of its registration certificate evidencing

the vehicle in the name of Rajesh Pandoh.

28. PW-2 D.P. Saxena is the Investigating Officer of this case;

PW-3 Sudhir Puthran, the Intelligence Officer; P.R.Lakra PW-4, the

Deputy Director of the DRI; all have witnessed the aforenoted

recovery. These witnesses have categorically stated that the

maruti car no.DL-9C-3785 was being driven by Vimal Kumar Bahl

at the time when it was intercepted on the Delhi-Gurgaon Road;

they have further categorically stated that the narcotic drug was

transferred from silver grey matiz to the white colour maruti car

and it was only thereafter that the occupants of the cars were

apprehended by the raiding party. A1 has not been nailed on his

photo identification by PW-9 alone; judgment relied upon by

defence counsel on this score is of no help to him.

29. PW-7 Chander Bhan, official form Licensing Office, had

appeared in the office of DRI pursuant to the summons issued to

him. He had produced the entire record of this vehicle; the file of

the same has been exhibited in the Court as Ex. PW-7/DA1 to 32

pages. Record has established that this vehicle continues to be

registered in the name of Rajesh Pandoh. M.K.Jetali PW-11 was

the landlord of B.K.Pandoh father of Rajesh Pandoh; PW-11 has

deposed that B.K.Pandoh was a tenant in his premises for about 8

to 10 years and he had left the premises sometimes in the year

1994. He has further stated that relations of B.K.Pandoh and

PW-12 were cordial and he used to come to visit him even after

leaving the tenanted premises; Ex.PW-11/A addressed to

B.K.Pandoh had been handed over by him to B.K.Pandoh. This

answers the submission of learned defence counsel that although

B.K.Pandoh had shifted his residence from Vivek Vihar yet he was

in touch with PW-11 who had handed over Ex.PW-11/A to him.

30. This vehicle has been exhibited in the court as Ex.P-1; the

non-seizure of the key does not in any manner dent the case of

the prosecution; it is obvious that without the key the car would

not have been set in motion; non seizure of the same is nothing

but inconsequential.

31. The aforenoted oral and documentary evidence has

established that on the fateful day at 9.30 AM on 17.4.2001 the

raiding party had apprehended two vehicles i.e. a maruti car

No.DL-9C-3785 and a matiz car bearing No.DL-3CQ-4785; maruti

car was in occupation and being driven by Vimal Kumar Bahl; the

drug was transferred from matiz car to the dickey of the maruti car

and thereafter the recovery of the same was effected. The

recovery of this drug contained in 17 packets from dickey of this

car and the conscious possession of the same qua A-1 has been

fully established.

Section 67:

32. Vimal Kumar Bahl pursuant to the summons Ex.PW-1/A

served upon him by PW-1 had given his statement in his own

handwriting running into seven pages, under Section 67 of the

NDPS Act. The said statement is Ex.PW-1/B. This was recorded on

17.4.2001 by PW-1 bearing his endorsement at point B. Each page

of the said statement has been signed at point A by Vimal Kumar

Bahl. In her cross-examination PW-1 has stated that this

statement is based exclusively on the disclosure statement made

by Vimal Kumar Bahl; she denied the suggestion that this

statement was not voluntary. This statement was recorded after

6.00 PM on 17.4.2001.

33. Surinder Raj Singh tendered his statement under Section 67

of the NDPS Act before Sudhir Puthran PW-3 which is Ex. PW-3/B.

This is also in the handwriting of Surinder Raj Singh and runs into

six pages. Summons had been issued by PW-3 to A-2 vide Ex.PW-

3/A. Each page of Ex.PW-3/B has been signed by A-2 at points B

as also by PW-3 at points A. On oath PW-3 has stated that at

about 6.00 PM PW-4 had asked him to record this statement of

A-2.

34. It is, thus, clear that the respective statements of both the

accused persons Ex.PW-1/B and Ex.PW-3/B were recorded after

6.00 PM on 17.4.2001 by two independent officers of the DRI i.e.

the statement of A-1 by PW-1 and the statement of A-2 by PW-3.

They were recorded at almost the same time. Till this time the

accused were not under arrest; they had been arrested at 23.45

hours on 17.04.2001, vide arrest memos Ex.PW-1/G &Ex.PW-1/H.

35. Ex.PW-1/B & Ex.PW-3/B have been perused. The vehement

argument of the learned defence counsel is that no verification on

the facts elicited in these statements has been done; in the

absence of which the department is not in a position to

categorically state that the so called voluntary versions given by

the accused in these statements are correct or not.

36. This submission has little force. It is not in dispute that from

the evidence on record it has been established that the

statements were recorded almost simultaneously. In Ex.PW-1/B,

A-1 has given the details of his family i.e. his parents living in

Dehradun along with his youngest brother; his other two brothers

living separately in Dehradun; his father O.P. Bahl was running a

watch business in the Paltan Bazar under the name and style of

M/s Gian chand & Bros; his father being 75 years of age and being

a retired man; his mother being a house wife; his sister married to

an advocate in Delhi; he having started the business of watches in

Lajpat Rai Market under the name of Vimal Watch Co. and

thereafter A-1 had gone to Bomaby to carry on business of marine

products. This statement further recites that he had requested his

friend Surinder Raj Singh to take delivery of the narcotic drug on

payment of Rs. 1,02,000/- from a person at Ravi Dhaba; further

that on the fateful day his car was behind the car of Surinder Raj

Singh and he was watching him and on the way he had instructed

Mr.Singh to meet him at the Shiva Temple.

37. Statement Ex.PW-3/B of A-2 corroborates that Vimal Kumar

Bahl was engaged in the export of fisheries from Bomaby; he is

the son of Mr.O.P.Bahl; he had been requested by his friend Vimal

Kumar Bahl to take delivery of a bag containing the narcotic drug

from a person outside Ravi Dhaba, Manesar, Gurgaon on payment

of Rs.1,02,000/-; further that on the fateful day i.e. on 17.4.2001

on the way Vimal Kumar Bahl told him to follow him and stop

outside the Shiv Temple at Delhi- Gurgaon Road; A-2 had a Matiz

car which was purchased in the name of his wife financed by the

Standard Chartered Bank on EMI of Rs.7500/-. His father‟s name is

Jagtar Singh , mother‟s name is Manjit Kaur, his elder brothers is

Rajinder Singh and his younger brother is Inderjeet Singh; name of

his wife is Urmil Gauba and she is daughter of H.L.Vashist.

38. This version in Ex.PW-3/B qua the relationship of A-2 with

A-1 and the statement of A-1 has also been corroborated by Ashu

Malhotra in his statement Ex.PW-1/J. Ex.PW-1/J has detailed that

the father of Vimal Kumar Bahl is Mr.O.P.Bahl; they had a shop in

Lajpat Rai Market; Vimal Kumar Bahl is doing business of export of

marine products; earlier he was carrying on business of watches

from his shop at Lajpat Rai Market; Ashu Malhotra has penned his

residence number 4623148 which is also the phone number given

by A-1 of Ashu Malhotra in Ex.PW-1/B. While addressing

arguments on the quantum of sentence on 23.8.2005 this

submission that A-1 was doing export of marine products has been

corroborated by his counsel.

39. Information contained in Ex.PW-3/B has been confirmed by

Urmil Gauba when she had come into the witness box as DW-1.

On oath she had admitted that that her father-in-law‟s name is

Jagtar Singh, her mother-in-law‟s name is Manjeet Kaur; her elder

brother-in-law is Rajinder Singh and her younger brother-in-law is

Inderjeet Singh; her father‟s name is H.L.Vashist who has retired

from the Railways. All these facts i.e. the details of the family

history given by A-2 on 17.4.2001 in Ex. PW-3/B have been

corroborated on a much later date i.e. 21.4.2004 by his wife when

she had come into witness box as DW-1. DW-1 had also given a

false statement that her husband A1 cannot write English; this is

contrary to Ex.PW-3/B which is in the handwriting of A2; A2 has not

denied that his statement is not in his hand; even in his retraction

application he has only stated that he was coerced to write this

statement; for this incorrect statement of DW-1 Court is inclined to

draw an adverse inference against A-2 for having projected a false

defence.

40. In these circumstance, there is little doubt left with this

Court but to hold that the statement given by each of the accused

i.e. Ex. PW-1/B and Ex. PW-3/B are their voluntary versions

detailing the facts which were only in their special know how and

not known to any other person; submission of learned defence

counsel that these facts have not been verified is, thus, falsified.

41. Within 24 hours of their arrest both the accused persons

were produced before a magistrate i.e. on 18.4.2001; they had

purportedly retracted their confessions; retracted confession of

Vimal Kumar Bahl is mark DX; there is no exhibit on the retraction

of Surinder Raj Singh. Order sheet of 18.4.2001 is relevant and

reproduced below:-

"....... Heard on application for granting judicial remand of both these accused. Ld. SSP stated that accused have been arrested on the night of 17.4.2001 on the ground that 17 Kg of Heroin has been recovered from the car of accused No.1 and they have admitted their involvement in their statement U/s 67 of NDPS Act

inter alia. He made a request that their judicial remand may be granted. Defence counsel presented a retraction application before each of the accused which has been signed by both the accused in the court in my presence. Thereafter both the applications placed on the record. Defence counsel is directed to supply the copy of both these applications to the SPP who is at liberty to file reply of the same. Ld. Defence counsel submitted that he will supply the copy of this application to SPP on or before the next date against receipt.

File perused. Judicial remand of both the accused is granted till 2.5.2001.

At this stage an application is moved by defence counsel signed by the accused no.2 stating that he is ill and he be allowed to take medicine with him. Request allowed. He can take medicine with him for his personal use which he will use after getting the same certified from Jail Doctor.

At this another application is moved by defence counsel for having legal interviews with the accused. Legal interview of accused is allowed for 10 minutes by the counsel Sh.Mehta."

42. A-1 in mark DX has stated that he has been falsely

implicated in the case; the officers had maltreated him; he was

coerced and forced to write false statement as per the dictation of

the officers.

43. The retracted confession of A-2 Surinder Raj Singh has been

signed by him at point A and inter alia read as under:-

" I respectfully submit that I have been falsely implicated by the officers of the DRI on false allegation. I was not allowed even to meet my advocate. I was maltreated, beaten and was forced, induced and coerced to make a confessional statement on the dictation of the DRI officers.

44. It is relevant to state that both the accused persons were

also medically examined on the same day i.e. on 18.4.2001. They

were examined in the LNJP Hospital and this is evident from the

documents Ex.PW-2/H1 &Ex.PW-2/H2 that is the application

submitted by the Investigating Officer to the Chief Medical Officer

of the LNJP Hospital seeking their medical examination. The

endorsement of the concerned doctor categorically records that

both the accused persons were conscious and well oriented with

their condition stable; no fresh injuries were recorded on the

person of either of the two accused at the time of their

examination. Their versions in their retracted confession that they

have been beaten by the officers of the DRI, have thus no force.

45. It is also clear that a retracted confession drafted by the

Advocate had been placed before the accused persons who had

blindly signed on the same; it was a legal formality on the legal

advise of the respective counsels for the accused; legal interview

with the counsel was yet to take place; such a retraction even

otherwise has no value.

46. In Kanhaiyalal v. Union of India 2008 I AD(Cr.)( S.C.) 277,

Supreme Court had held that the statement made by an accused

at a time when he was not under arrest the bar of section 24 to 27

of Evidence Act would not operate nor would the provisions of

Article 20(3) of the Constitution be attracted. In Raj Kumar Karwal

v. Union of India & Ors. (1990) 2 SCC 409, it has been held that

power of an officer-in-charge of a Police Station under Section 53

of the NDPS Act are not to be read as the power of the "police

officer" within the meaning of Section 25 of the Evidence Act; a

statement under Section 67 of the NDPS Act is not the same as a

statement made under Section 161 of the Cr.P.C., unless it is

made under threat or coercion; this being a vital difference, a

statement under Section 67 of the NDPS Act is excluded from the

operation of Sections 24 to 27 of the Evidence Act.

47. Judgments relied upon by the accused do not come to his

aid. In Bal Mukund(supra) Supreme Court had held that a

conviction cannot be based merely on a statement under Section

67 of the NDPS Act; further the confessional statement of a

accused cannot be used as a substantive evidence against another

co-accused. This proposition is not in quarrel. In Raju Premji

(supra) it has been held that the voluntariness of a confession

under Section 67 has to be judged on the facts and circumstances

of each case; in Noor Aga (supra) the physical evidence being the

case property including the samples were destroyed and not

produced in Court and no convincing explanation for such non-

production having been given by the Department; this fact had

weighed heavily in the mind of the Court while recording an

acquittal. Its conclusion is contained in para no.160 of the said

judgment. It inter alia reads as follows:-

"160. Our aforenoted findings may be summarized as follows:-

1. The provisions of Sections 35 and 54 are not ultra vires the Constitution of India.

2. However, procedural requirements laid down therein are required to be strictly complied with.

3. There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant‟s guilt.

4. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecution‟s case must he held to be lacking in credibility.

5. The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law.

6. The investigation of the case was not fair.

We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly."

48. The Supreme Court in this case had not conclusively decided

on the powers vested under Section 53 of the NDPS Act;

arguments of the learned defence counsel on this score are

without force. It is, thus clear that a statement made before an

officer vested with the powers under Section 53 of the NDPS Act

cannot be equated with a statement made under Section 161 of

the Cr.P.C. before a police officer and a statement made before

such an officer would not be excluded by virtue of provisions of

Section 25 to 27 of the Evidence Act; this question not having

been examined and conclusively decided by the Supreme Court in

the Noor Aga case cited supra. In this view of the matter, this

judgment does not come to the aid of the petitioner on this

ground.

49. In this case accused persons had been arrested at 23.45

hours; their statements under Section 67 of the NDPS Act were

recorded sometime after 6 PM; i.e. when they were not under

arrest; bar of Sections 24-27 of the Evidence Act would not

operate. Ex.PW-1/B and Ex.PW-3/B are not hit by Section 25 to 27

of the Evidence Act; they were correctly relied upon by the trial

Judge for the purpose of corroboration. Para no.137 of the

impugned judgment clearly states that the statement of the

accused under Section 67 of the NDPS Act have only been used to

lend assurance to the conclusion which otherwise has been well

established even in the absence of such statements. It is also

not the case of the accused that these statements have formed

the sole basis of the conviction of the accused.

Section 42:-

50. There is no dispute to the proposition that the provisions of

Section 42 of NDPS Act are mandatory; there is a distinction

between Section 42 and Section 43 of the said Act; Section 42

relates to the procedure to be adopted in a case where the

recovery has been effected from a private place and Section 43

applies to the procedure to be adopted when the recovery is

effected from a public place.

51. Section 42 and Section 43 contemplate two different

situations. Section 42 authorises an officer of the departments

enumerated therein who are duly empowered in this behalf, to

enter into and search any such building conveyance or place, if he

has reason to believe from personal knowledge or information

given by any person and taken down in writing that any narcotic

drug or psychotropic substance etc. is kept or concealed in any

building conveyance and place. This power can be exercised

freely between sunrise and sunset but between sunset and sunrise

if such an officer proposes to enter and search such building,

conveyance or enclosed place, he must record the grounds for his

belief that a search warrant or authorization cannot be obtained

without affording opportunity for the concealment of evidence of

facility for the escape of an offender.

52. Section 43 of the NDPS Act provides that any officer of any

of the departments mentioned in Section 42 may seize in any

public place or in transit any narcotic drugs or psychotropic

substance etc. in respect of which he has reason to believe that an

offence punishable under the Act has been committed. He is also

authorized to detain and search any person whom he has reason

to believe to have committed an offence punishable under the Act.

Explanation to Section 43 lays down that for the purposes of this

section, the expression "public place" includes any public

conveyance, hotel, shop, or other place intended for use by or

accessible to, the public.

53. The argument urged before this Court is that there has been

a non-compliance of Section 42 of the NDPS Act; this document

Ex.PW-12/A had not been filed along with the complaint and had

been filed subsequently i.e. even after the stage of framing of

charge. Attention has been drawn to the order dated 7.2.2002

wherein the Court has permitted this document to be taken on

record. Attention has also been drawn to Ex.PW-12/A i.e. the

purported secret information as also a respective statements of

the accused recorded under Section 67 of the NDPS Act i.e. the

Ex.PW-1/B and Ex. PW-3/B. In Ex. PW-1/B, it has been stated by

A-1,

"I was behind Surinder Singh in white maruti DL-9C-3785

and watching them on my way to Delhi. I instructed Mr.Singh to

meet me at Shiva Temple, Delhi-Gurgaon Road, Delhi."

A-2 in Ex.PW-3/B has stated,

"On the way Vimal told me to follow him and stop out side

Shiva Temple at Delhi- Gurgaon Road."

It has been vehemently been argued that this conversation

between A-1 and A-2 wherein A-1 instructed A-2 to meet him at

Shiva Temple on the Delhi-Gurgaon Road was a conversation

made between the two accused while they were on the way and as

such could not have found mention in Ex.PW-12/A which was

recorded one day prior i.e. 16.04.2001 to an actual conversation

which was held on 17.4.2001.

54. This argument has little force as perusal of Ex.PW-12/A

clearly recites that the intelligence gathered was to the effect that

Surender Raj Singh was involved in the procurement of narcotic

drug and supply of the same; he was using a silver grey colour

matiz car bearing no. DL-3CQ-4785; they along with Bezamin

Franco used to meet at Defcol Junction restaurant; intelligence

developed on the activities of Vimal Kumar Bahl and Surinder Raj

Singh evidenced that they would be carrying approximately 17 Kg

heroin in the matiz car at around 9.30 AM opposite Shivmurti

Temple, Highway No.8, Delhi Gurgaon Road, where Vimal Kumar

Bahl would be coming in a white maruti car. This intelligence was a

detailed information; the quantity of the contraband, vehicle

make/colour/number details and the residential address of both

the accused were all penned in this document; the intelligence

was also to the effect that two co-accused would be meeting

opposite Shiv Murti Temple on the Delhi-Gurgaon Road. The

conversation of A-1 and A-2 on the way was only a confirmation of

these facts.

55. Ex.PW-12/A is dated 16.4.2001. This document is in the

handwriting of A.K.Prasad PW-12 who has confirmed this on oath.

PW-12 had forwarded this information to his senior officer Mr. P.K.

Mishra. Non-examination of P.K.Mishra does not dent the version

of the prosecution in any manner. PW-12 was reporting to

Mr.P.K.Mishra, Deputy Director, on the questioned date i.e.

16.4.2001 and thereafter. This is the categorical version of PW-12

in his cross-examination.

56. Ex.PW-12/A had inadvertently not been filed along with the

complaint; the fact that there was secret information/secret

intelligence before the accused persons were apprehended is

specifically found mentioned in Ex.PW-1/D which was the

Panchnama prepared on 17.4.2001 and records this fact. The

notices under Section 50 of the NDPS Act served upon accused,

Ex.PW-2/B and Ex.PW-2/C also states that the officers of the DRI

have reason to believe that narcotic drug has been concealed.

These documents are also dated 17.4.2001.

57. In this view of the matter, the submission of the learned

defence counsel that Ex. PW-12/A has been prepared subsequently

and is a fabricated document, appears to be meritless. Trial Judge

has correctly appreciated this evidence and held that there has

been a compliance of Section 42 of the NDPS Act.

58. This apart, it would be relevant to state that accused

persons have been apprehended on the National High Way No.8

on the Delhi Gurgaon Road. The recovery of the contraband had

been effected at the DRI Office i.e. the ground Floor, B- Block,

Indrapratha Bhawan, I.P. State, New Delhi. This is a public place;

applicability of Section 42 does not arise. Section 43 is the

applicable provision.

59. In Narayanswamy Ravishanker v. Astt. Director, Directorate

of Revenue Intelligence 2007 Crl.L.J. 27, the seizure of the drug

had been effected at the Airport; Section 43 was held to be the

applicable section; there was no requirement for the procedure of

Section 42 to be followed. In State of Haryana v. Jarnail Singh &

Ors. 2004(2) JCC 1026, recovery of contraband had been effected

from a tanker which was moving on the public highway. Supreme

Court had held that Section 43 would apply to the facts of the case

and there would be no requirement of the officer conducting the

search to record the ground of his belief as contemplated by the

proviso to Section 42. In this judgment, relying upon M. Prabhu

Lal v. The Assistant Director, Directorate of Revenue Intelligence JT

2003 (Suppl.2) SC 459, it had been further held that where search

is conducted by a gazetted officer himself acting under Section 41

of the NDPS Act it was not necessary to comply with the

requirements of Section 42.

60. In the instant case, the recovery having been effected from

a public place, it is clear that the Section 43 would be applicable.

P.R.Lakra, PW4 is an officer of the rank of a Deputy Director; he

was the gazetted officer heading the raiding team and the search

was conducted in his presence. On this count also provisions of

Section 42 do not have to be resorted to.

Section 50:-

61 Notice under Section 50 of the NDPS Act was served upon

both the accused persons. Ex.PW-2/B is the notice served upon

Vimal Kumar Bahl and Ex.PW-2/C is the notice served upon

Surinder Raj Singh; both these notices are in the hand writing of

PW-3 and this has come in his deposition; these documents

categorically recite that there is intelligence that narcotic drug had

been concealed in the respective vehicle of each of the accused

which was in their occupation at the time of interception by the

DRI officers; accused persons had been apprised of their rights of

having their search conducted in the present of a magistrate or a

gazetted officer. These notices had been signed at point X by

PW-2; reply of A-1 appears at point B1 to B1 on Ex.PW-2/B and

reply of A-2 appears at point C1 to C1 on Ex.PW-2/C. A-1 had

replied that he does not require his search in the presence of a

magistrate or a gazetted officer; A-2 has agreed for search of his

car and person by any officer of the DRI. The Panches i.e. Ashok

Kumar and Rajesh had also signed at point C and D of the

respective notices.

62. There is no dispute that the word "right" has not been

mentioned in either of these documents but a reading of the

contents of these documents clearly show that both the accused

persons had been apprised of this option of having their search

conducted either in the presence of a magistrate or a gazetted

officer and it is only after they had understood the contents of the

same that they had given their replies at points B1 to B1 and C1 to

C1 on Ex.PW-2/B and Ex.PW-2/C; their signatures in lieu of having

received the notices appear at point B. The oral versions of PW-2

and PW-3 have also been perused. The notices were also given in

the presence of PW-4. PW-2 in his cross-examination has admitted

that the notices were prepared at the ground floor and after that

on the ground floor the bag containing the contraband was

opened; so also is the version of PW-3 and PW-4; PW-2 has further

stated that no other document was prepared at the ground floor

except the notices Ex.PW-2/B and Ex.PW-2/C; this is also

corroborated by the version of PW-3 and PW-4. The mandate of

Section 50 of the NDPS Act stood complied with.

63. In the instant case, the contraband had been recovered from

the dickey of the maruti vehicle driven by A-1. The recovery had

not been effected from the personal search of the accused;

Section 50 even otherwise would not apply. In Narayanswamy

Ravishanker v. Astt. Director, Directorate of Revenue Intelligence

2007 Crl.L.J. 27, it has been held by Supreme Court that where

search is undertaken not of a person but a suit case applicability

of Section 50 is excluded. In State of Haryana v. Jarnail Singh &

Ors. 2004(2) JCC 1026, where contraband had been recovered

from a tanker i.e. a vehicle, not being the case of a personal

search, Section 50 was held inapplicable.

64. In the instant case as well provisions of Section 50 are not

attracted.

65. Section-57:-

Ex.PW-1/G is the intimation given by PW-2 to his immediate

senior officer i.e. the PW-2; that PW-2 is the immediate senior

officer of PW-1 has been reiterated by both PW-2 and PW-1. This

is even otherwise a directory provision which stood complied with.

66. Standing instruction no.1/88/ sampling procedure not followed:-

PW-2 has on oath detailed the manner in which the samples

were drawn; out of the 17 packets 4 duplicate samples were

drawn after homogenous mixing; these details also find mention in

the panchnama Ex. PW-1/D. The drawn samples were put into zip

lock polythene bags and then put into a khaki envelope which was

pasted with gum and sealed with the DRI seal no.10 and also

pasted with a paper slip containing the date and signatures of the

witnesses, both the accused as also signatures of the complainant

on each and every samples. Fascimile of the DR seal no.10 was

also affixed on each page of the panchnama.

67. On the following day i.e. on 18.4.2001 PW-2 deposited these

samples with PW-10 posted as In-charge of the godown of the

valuables situated at New Customs House, New Delhi. PW-10 has

deposed that he had received these samples entries of which were

entered in his register; photocopy of the entries have been proved

as Ex.PW-10/A. On the same day PW-2 had taken one set of these

samples along with the test memo in duplicate, in an intact

condition and handed them over to the Chemical Examiner, PW-5

vide acknowledgment receipt Ex.PW-5/A. PW-5 has corroborated

this version; he has on oath deposed that he had received four

sample packets with the seals intact along duplicate test memo

through PW-2 and he had issued receipt Ex.PW-5/A. These

samples were examined under the direct supervision of PW-8, the

then Chemical Examiner and the report was prepared on the back

page of the test memo Ex.PW-2/K; it was under his supervision

that these samples had been taken out from strong room by PW-5

and the chemist. The report dated 18.12.2003 at the back of

Ex.PW-2/K had opined that the samples contained

diacetylmorphine. It further recites that facsimile of the seal of the

chemical examiner was affixed on the remnant samples.

68. The case property i.e. the 17 packets of the contraband, one

set of duplicate samples and also remnant samples were exhibited

in the testimony of PW-2. PW-2 had admitted that the test memos

were prepared at the spot in duplicate; Ex.PW-2/K and Ex.PW-2/J;

Ex.PW-2/K has been sent along with the samples to the CRCL and

back page of the Ex.PW-2/K contained the report of the CRCL in

the handwriting of PW-8.

69. The test memos are cyclostyled documents, the details have

been filled in type written form and column-5 of Ex.PW-2/J and

Ex.PW-2/K recites that the samples had been drawn on 17.4.2001

and the date of dispatch has been mentioned as 18.4.2001. It is

not in dispute that the proceedings have been conducted in the

office of the DRI; type writer was available with the department at

the time when the test memos were prepared in the department;

that is why the columns were filled in typed form. PW-2 in his

cross-examination has stated that he had been instructed by PW-4

that samples are to be deposited on 18.4.2001 and therefore on

his instructions both the dates i.e. 17.4.2001 and 18.4.2001 find

mention in column no.5. It is also not the case of the accused that

the seals affixed on the paper slips were not intact when they

were received in the department CRCL; PW-5 & PW-8 were the

officers in the department of the CRCL at the relevant time. PW-5

has deposed that the samples packets have been received in the

department along with duplicate test memo in intact condition.

Every possibility of tampering stands excluded.

70. In Kulwant Singh vs. Narcotics Control Bureau, Crl.

A.No.248/1997 decided on 18.1.2008, it has been held by this High

Court that there is no legal requirement that the test memo has to

be filled in at the spot on the same day; it can also be filled in on

a subsequent day. In, Gurminder Singh v. Directorate of Revenue

Intelligence 2007(1) JCC (Narcotics) 11. It has been held that it is

not incumbent upon the customs department to deposit the case

property with the malkhana in the police station as such officers

are fully empowered to deposit the case property in their own

malkhana, which was done in this case. In Siddiqua v. Narcotics

Control Bureau, 2007(1) (Narcotics) 22, it has been held that there

is no provision under the NDPS Act for handing over the seal by

the Investigating Officer after use to some independent witness; it

is also not the case of the accused that the seals on the samples

have been tampered with.

71. In State of Punjab v. Makhan Chand (2004) 3 SCC 453, the

Supreme Court, on the issue of the Standing Instruction issued by

the Central Government under Section 52 A of the NDPS Act

requiring a particular procedure to be followed at the time of

sampling had held that in view of the ratio of the judgment in the

case of Khet Singh v. Union of India (2002) 4 SCC 380 these

standing orders are merely intended to guide the officers to see

that a fair procedure is adopted by the officer in charge of the

investigation; they are not inexorable rules; even if there is some

kind of a procedural irregularity if prejudice is not caused to the

accused the evidence adduced would not become inadmissible.

72. In the instant case the paper slips appended on the samples

were found intact; samples could not have been tampered without

tampering with the paper slips; since the paper slips were intact;

possibility of tampering of the samples is necessarily excluded.

73. Standard of Proof:-

The burden of proof in a criminal trial is always on the

prosecution; it is for the prosecution to prove its case beyond

reasonable doubt; however, this test of proof beyond reasonable

doubt is a guideline; not a fetish and the guilty cannot get away

with because truth suffers from some infirmity when projected

through this human process. 1978 Cr. L.J. 766 Inder Singh vs.

State.

74. The legislature while incorporating certain provisions in the

NDPS Act did so with an intention. Section 35 of the NDPS Act is a

presumption of the culpable mental state of the accused; the court

shall presume the existence of such a mental state but it shall be

the duty of the accused to prove the fact that he had no such

mental state with respect to the act charged as an offence in that

section. AIR 2001 SC 821 Abdul Rashid Ibrahim Mansuri v. State of

Gujrat while expounding the provisions of Section 35 of the NDPS

Act the Supreme Court had held that the burden of proof cast on

the accused under Section 35 can be discharged through different

modes; he can rely on materials available in the prosecution

evidence; he can elicit answers from prosecution witnesses

through cross-examination to dispel any such doubt; he may also

adduce other evidence when he is called upon to enter on his

defence. None of this has been done so in the instant case.

75. Section 54 of the NDPS Act is the presumption from

possession of an illicit article. Under this provision of law it is not

required for the prosecution to prove that the possession of the

contraband by the accused is illegal to raise a statutory

presumption against the accused. Once the prosecution proves

the possession and recovery the burden shifts on the accused.

These presumptions also come to the aid of the prosecution.

76. Shift of Place and Public Witnesses not examined:-

The submission of the learned defence counsel that there is

no explanation that if the accused persons have been

apprehended on the National Highway i.e. Delhi-Gurgaon Road

why the search of the accused persons could not be effected

there; the arbitrary decision of the DRI officials to shift the place to

their office is uncalled for. There was every possibility of taint in

the investigation in the coercive surroundings of the DRI office.

77. This submission is not borne out from the record. PW-2 in

his examination-in-chief has categorically stated that the place of

interception was not a proper place for conducting the search and

as such both the cars along with their occupants were escorted to

the DRI office. PW-3 has also deposed that the place of

interception was not conducive for the search of the vehicle; both

the cars were escorted to the office of DRI. PW-4 also in his

version on oath explained that after the apprehension of the

accused persons they were taken to the DRI Quarter as it was not

safe and secure to seize and conduct other formalities at the spot.

This answers the first part of the argument of the learned defence

counsel.

78. The statement of the panch witnesses was recorded by

PW-1; summons issued to Rajesh Kumar are Ex.PW-1/C and his

statement tendered in three pages is Ex.PW-1/D. Summons sent

to second panch witness Ashok Kumar are Ex.PW-1/E and his

statement running into three pages is Ex.PW-1/F. Both these

panch witnesses were cited as witnesses of the prosecution. Both

the witnesses were residents of D-2/12, Lalita Park, Laxmi Nagar,

Delhi; their statements in the course of the investigation was

recorded on 17.4.2001; thereafter inspite of repeated summons

having been sent by the Court to secure their presence they could

not be traced; this is reflected in the order sheets dated 7.3.2003,

13.3.2003 and 19.8.2003. In these circumstances the question of

an adverse inference to be drawn against the prosecution under

Section 114(g) of the Indian Evidence Act does not arise; it is not

as if the prosecution was deliberately withholding this evidence.

79. In M. Prabhu Lal v. The Assistant Director, Directorate of

Revenue Intelligence JT 2003 (Suppl.2) SC 459, the seizure was

effected 20 k.m. away from the place where the search was

conducted; panch witnesses were not examined; Supreme Court

had held that no prejudice has been caused to the accused.

80. Conspiracy of A-1 and A-2 for the possession and

transportation of this narcotic drug is prima facie evident. A-1 and

A-2 in their statements under Section 67 of the NDPS Act have

detailed private informations about one another; it has been

corroborated that at the asking of A-1, A-2 had paid a sum of

Rs.1,02,2000/- to a contact of A-1 outside Ravi Dhaba, Manesar

Haryana to collect a bag of narcotic drug; accused persons in their

statements under Section 313 of the Cr.P.C. have made a vague

denial that they both are not known to one another; such a

defence had not been adopted at the time of cross-examination of

the prosecution witnesses; eye-witness accounts of the recovery

witnesses coupled with the documentary evidence proved by them

as also the presumptions of law as contained in Section 35 and 54

of the Act; the complicity of A-1 and A-2 is borne out.

81. There is no infirmity in the order of the trial Court. The

conviction of the accused persons calls for no interference.

However, on the point of sentence this Court feels that the interest

of justice demands that a modification is called for.

82. Offence relates to April, 2001 i.e. eight and half years from

today. There is no dispute that the recovery in the instant case is

a commercial quantity. The sentence prescribed for the

contravention of any provisions of this Act involving a commercial

quantity is rigorous imprisonment for a term not less than 10 years

but which may extend to 20 years and also a fine which shall not

be less than Rs.1 lac but which may extend to Rs.2 lacs.

83. Proportion between the crime and punishment is a goal

respected in principle, and in spite of an errant notion, it remains a

strong influence in the determination of sentence. The Supreme

Court in Dhananjoy Chatterjee v. State of West Bengal ( 1994)

2SCC 220 observed that the imposition of an appropriate

punishment is the manner in which the court should respond to

the society‟s cry for justice against the criminal. Justice demands

that Courts should impose punishment befitting the crime so that

the courts reflect public abhorrence of the crime. The court must

not only keep in view the rights of the criminal but also the rights

of the victims of the crime and the society at large while

considering the imposition of an appropriate punishment.

84. The minimum punishment prescribed for the offence of this

nature is rigorous imprisonment for ten years. Petitioner Vimal

Kumar Bahl had been convicted on two counts i.e. under Section

21 & 29 of the NDPS Act and sentenced to undergo rigorous

imprisonment for 16 years besides fine. Petitioner Surinder Raj

Singh had been convicted under Section 29 of the Act and had

been sentenced to undergo rigorous imprisonment for 11 years

besides fine.

85. The word „may‟ used in Section 20 gives a discretion to the

court which has been ascribed by the Legislature as regard the

awarding of sentence. This discretion which has been vested with

the Court, has to be exercised legally, properly and reasonably

and not arbitrarily or disproportionately.

86. In the instant case the sentence of rigorous imprisonment

for 16 years to A-1 appears to be excessive and on the higher side.

This Court is of the view that ends of justice would be well met if

the sentence of RI for 16 years is reduced to RI for 13 years. No

modification is made in the fine imposed. Similarly, while

maintaining the conviction of A-2 his sentence of RI for 11 years is

reduced to the minimum i.e. RI for 10 years. No modification is

made in the fine imposed.

87. With these directions, appeals are disposed of.

(INDERMEET KAUR) JUDGE

5th November, 2009 nandan