Delhi High Court
Fazal Haq vs State on 26 October, 2009
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on:14th October, 2009
Judgment Delivered on: 26th October, 2009
+ CRL.A. 866/2008
FAZAL HAQ ..... Appellant
Through: Ms. Nitya Ramakrishanan &
Ms. Yamini Jai Shanker,
Advocates.
versus
STATE ..... Respondent
Through: Mr. Manoj Ohri, APP
WITH
+ CRL.A. 867/2008
MOHD.RAHIM ..... Appellant
Through: Ms. Nitya Ramakrishanan &
Ms. Yamini Jai Shanker,
Advocates.
versus
STATE ..... Respondent
Through: Mr. Manoj Ohri, APP
WITH
+ CRL.A. 292/2009
MOHD. NASIR ..... Appellant
Through: Mr. A.J.Bhambhani, Advocate.
versus
THE STATE (GOVT.OF NCT) DELHI ..... Respondent
Through: Mr. Manoj Ohri, APP
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
Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 1 of 32
3. Whether the judgment should be reported in the
Digest? Yes
INDERMEET KAUR, J.
1. On 2.6.2007 at about 2.20 PM a secret information was
received by Inspector Joginder Singh PW-4 of Police Station Nabi
Karim that two Afghan nationals namely Mohd.Nasir and Fazal Haq
through another Afghan national Mohd.Rahim, would be supplying
heroin near the Airlines Hotel. This information was reduced into
writing vide DD No.23-A Ex.PW-4/A. Ex.PW-4/A was forwarded to
the senior officer Inspector Randhir Singh PW-6 who in turn
apprised the ACP B.L.Meena PW-11.
2. Thereafter on the same day at 5 PM a raiding party was
constituted headed by PW-4 comprising of PW-6, ASI Ashwani
Kumar, Const.Pradeep, Const.Karam Singh, Const.Jahari and Const.
Homender Singh. At the spot i.e. near the corner of Qutub
Road/Arakansa Road near the Airline Hotel two persons whose
names later on were revealed as Fazal Haq and Mohd.Nasir were
seen coming towards the Airline Hotel. They started talking to a
third person whose identity was revealed as Mohd.Rahim. At the
pointing out of the secret informer the aforestated persons were
apprehended. Since they were Afghan nationals and could not
understand the Indian language an interpreter who was
conversant with the Persian language namely Raghunath PW-1
was summoned. Independent witness Durga Dayal PW-2 had also
joined the raid.
3. Notice under Section 50 of the NDPS Act was served upon
each of the accused persons informing them of their right to have
their search conducted either before a gazetted officer or a
magistrate. Notice served upon Fazal Haq is Ex.PW-4/B; that upon
Mohd. Nasir is Ex.PW-4/C; the notice served upon Mohd.Rahim is
Ex.PW-4/D. Each of the said notices are penned in the hindi
language and bear endorsements at point A to the effect that the
subject matter of the notice has been translated to the respective
accused persons. These endorsements have been signed by PW-
1, the interpreter. The replies given by the accused persons also
written in the hand of PW-1 are Ex.PW-4/E to Ex.PW-4/G
respectively.
4. In the course of the investigation Mohd.Nasir was searched
first. He had a cloth belt tied around his waist from where four
packets were found. These packets contained a whitish powder
which when tested with the field testing kit, tested positive for
heroin. The quantity of the said powder was 4 Kg. and 400 grams.
Two samples of 100 grams each were extracted and the sample
pulandas were seized and sealed with the seal of JS followed by
the seal of the SHO i.e. RS. The contraband was seized vide memo
Ex.PW-4/H; it was deposited in the malkhana on the same day.
CFSL Form was filled in at the spot. Search of Fazal Haq and
Mohd.Rahim was conducted vide memos Ex.PW-4/K and Ex.PW-4/L
respectively.
5. At 9.15 PM, the rukka was dispatched, pursuant to which the
FIR was registered by HC Ombir Singh PW-7 Ex.PW-7/A.
Investigation was marked to SI Kishan Chand PW-10. Site plan
Ex.PW-4/J was prepared. The accused persons were arrested at
1.35 AM vide arrest memos Ex.PW-10/A to Ex.PW10/C and their
personal search was conducted vide memos Ex.PW-10/D to Ex.PW-
10/F. The disclosure statements of the accused Ex.PW-10/G1 to
Ex.PW-10/G3 were recorded; they were translated and the
contents thereof were explained to the accused persons through
translator PW-1. Provisions of Section 57 of the NDPS Act were
complied; intimation of the offence was duly transmitted to the
senior officers on 3.6.2007 vide document Ex.PW-3/A.
6. In the further course of the investigation statement of the
Branch Manager of Shiv Dev hotel Varun Mandal PW-9 was
recorded. He had revealed that Mohd. Rahim had checked in at
his hotel at Pahar Ganj on 31.5.2007 at about 7.15 PM and had
been allotted room no.205. Const.Tara Chand PW-8 had taken the
sample pulandas to the CFSL Rohini on 28.6.2007 and the CFSL
vide its report Ex.PX dated 16.8.1997 had confirmed the said
samples to be diacetylmorphine i.e. a prohibitive contraband in
terms of the provisions of the NDPS Act.
7. In their respective statements recorded under Section 313
Cr.P.C. accused Fazal Haq and accused Mohd.Nasir have admitted
their presence in the two photographs Ex.P-19 and Ex.P-20. Their
respective passports and air tickets seized from their personal
search were also admitted documents. Mohd.Nasir in his
statement under Section 313 Cr.P.C. had set up a defence that he
was not the third person depicted in the said two photographs
Ex.P-19 and Ex.P-20; he does not know either Fazal Haq or
Mohd.Rahim.
8. Abdul Qayyum DW-1, father of Fazal Haq had come into the
witness box and testified that third person in the photograph is
Hamidulla a resident of Mahallakhana, District Ghuriyan, State of
Hirat. To the same effect is the deposition of Bismillah DW-2.
9. Vide the impugned judgment dated 8.10.2008 all the
accused persons had been convicted. Accused Nasir stood
convicted for the offence under Section 21 and 29 of the NDPS Act
whereas accused Fazal Haq and Mohd.Rahim stood convicted
under Section 29 of the NDPS Act. All the accused persons had
been sentenced to undergo RI for 10 years and to pay a fine of
Rs.1 lakh each, in default of payment of fine to undergo SI for
three months.
10. Common arguments have been addressed on behalf of the
accused Fazal Haque and Mohd.Nasir. Six broad submissions have
been made on their behalf:
i. There is no evidence of conspiracy under Section 29 of
NDPS Act; admittedly from Fazal Haq and Mohd.Rahim no
recovery had been effected and even presuming that three
persons were found standing in the same vicinity of the
Qutub Road near Airline Hotel would not by itself be
sufficient to hold that all the aforestated persons are guilty
of a conspiracy. To establish the ingredients of conspiracy, it
is necessary to show that there was an agreement to do an
illegal and/or an agreement to do a legal act by illegal
means, a physical manifestation of the act must follow the
common meeting of the minds. Reliance has been placed
upon, (2000) 10 SCC 257 Ismail Khan Aubkhan Pathan vs.
State of Gujrat and (2004) 5 SCC 151 Narcotics Control
Bureau, Jodhpur vs. Murlidhar Soni to substantiate the
submission that a mere presence at a particular place would
not by itself be sufficient to draw a presumption that the
person present there shall be presumed to be in possession
of a narcotic or a psychotropic substance. Presumption of
Section 114 of the Evidence Act is not attracted. A
conscious possession has to be established which is not so in
the instant case. It is submitted that to the same effect
would be the proposition as enunciated by the Supreme
Court in (2004) 3 SCC 582 State of Punjab vs. Balkar Singh.
It is argued that in 1987 3 SCC 609 Kehar Singh vs. State it
has been held that the offence of conspiracy requires some
kind of a physical manifestation of an agreement and a mere
knowledge or discussion of the plan is not per se enough.
The said ingredients are absent in the instant case.
Attention has also drawn to the contradictory versions given
by PW-2, PW-4 and PW-6 qua the presence of the accused
persons present at the spot as to which two out of the three
accused persons had come together and who was the third
person standing at the spot. It is argued that the
photographs and the Airline tickets relied upon by the
prosecution to establish the ingredients of a conspiracy are
insufficient to hold the accused guilty for the aforestated
offence. Reliance has been placed upon the judgment
reported as 1974 SCC Crl. 647 State Vs. Nalini to advance
the submission that there has to be cogent and convincing
evidence against each of the accused charged with the
offence of conspiracy and merely because there had been
frequent and unexplained meetings of some of the accused
with the others who had been charged with conspiracy it
cannot be assumed that they were all members of the
conspiracy; by applying the same analogy the mere
presence of the accused persons at the spot even
presuming it to be correct would not by itself be sufficient to
establish the ingredients of Section 29 of the NDPS Act.
ii. The second submission relates to the mandate of the
provision of Section 50 of the NDPS Act. In the instant case,
admittedly the accused persons were Afghan nationals. The
so-called interpreter PW-1 in his cross-examination has
admitted that he had not been taken to the corner of Qutub
Road i.e. to the spot; further he had explained the notices
under Section 50 of the NDPS Act i.e. the notices Mark A to C
on 3.6.2007 when he was called at the police station; it is
submitted that these admissions of PW-1 throw out the case
of the prosecution in toto as this version clearly establishes
that the interpreter had not gone to the spot and the search
of the accused persons had already been conducted; the
provisions of Section 50 of the NDPS Act had been explained
to them only later on in the police station. This salutary
provision not having been complied with, it is clear that the
accused persons are entitled to an acquittal on this ground
alone. Attention has also been drawn to the version of PW-
10 and PW-2 in this regard. It is submitted that PW-10 has
admitted that the public person Dr.Ragunath had been
summoned in the early morning in the police station which
substantiates and corroborates the version of PW-1. PW-2 in
his cross-examination has stated that he had left the spot for
the police station at about 8 or 9 PM which again throws
doubt on the veracity of this version as the arrest memos
show that the accused persons had been arrested at the
spot at 1.35 AM.
iii. Attention has been drawn to para 60 of the impugned
judgment. It is submitted that the Trial Court has set up its
own case and it appears as if the judge himself had entered
the witness box. His finding that after the initial
apprehension of the accused persons, the entire
investigation including the search and the seizure of the
accused persons was done at the police station is
contradictory to the version as set up by the prosecution.
The version of the prosecution is that the search and seizure
of the accused persons had been completed at the spot. It is
submitted that the judge cannot himself set up a new case
which is contrary to the substratum of the main case.
Reliance has been placed AIR 1965 SC 277 Ugar Ahir vs.
State of Bihar to substantiate the proposition that where the
court chooses to disable the substratum of the prosecution
case on the material parts of the evidence and reconstructs
a story of its own out of the rest, it would amount to the
court having removed the grain and accepted the chaff and
convicted the appellant on the basis of the chaff which is per
se not admissible; it is submitted that applying the ratio of
the aforestated judgment accused persons are entitled to an
acquittal.
iv. The next submission made by the learned counsel for
the appellants relates to the contradiction of the witnesses
of the prosecution. Attention has been drawn to the
testimony of PW-4 who had stated that PW-1 had been
summoned to the spot in a car whereas PW-6 had stated
that PW-1 had been brought to the spot on foot; on the same
count PW-10 had stated that PW-1 had been summoned to
the police station in the early morning hours. PW-4 had
further stated that he had not seen PW-2 at the police
station although he had remained there throughout the night
whereas PW-6 had stated that PW-2 had accompanied the
raiding party back to the police station; on the same count
PW-10 had stated that PW-2 had not come to the police
station at all. It is submitted that these contradictions on the
first blush, may appear to be trivial yet keeping in view their
cumulative effect they would go to the root of the matter
and derail the case of the prosecution.
v. It is submitted that the secret information in this case
which had been recorded vide DD No.23-A dated 02.6.2007
cannot be relied upon as admittedly the secret informer has
not been examined. Reliance has been placed upon a
judgment of this Court dated 13.4.2005 titled as
Manu/De/0819/2005 Kassu Ram vs. State to support this
submission. Reliance has also been placed upon another
judgment titled as AIR 1983 SC 906 Bhugdomal Gangaram
& Ors. vs. State of Gujarat.
vi. It has lastly been submitted that an incriminating
circumstance which has not been put to the accused in his
statement under Section 313 Cr.P.C. cannot be read against
him; in this case it had not been put to either of the two
appellants Fazal Haq and Mohd. Rahim that they were
depicted in the photograph Ex.P-19 and Ex.P-20 which is a
resort at Kabul; in the absence of this, such a circumstance
cannot be read against them. Reliance has been placed AIR
1953 SC 468 Sharad Birdhichand Sarda vs. State of
Maharashtra to support this argument.
11. On behalf of Mohd.Nasir, arguments propounded by Fazal
Haq and Mohd. Rahim have been adopted. In addition, it has
been submitted that the recovery of the contraband from
Mohd.Nasir has not been proved beyond reasonable doubt as
different witnesses have given different versions and for this
proposition; attention has been drawn to the versions of PW-2,
PW-4, PW-6 and PW-11. It is stated that each of them have given
different statements about which accused was standing at the
spot and which of the two had joined him; how the translator PW-1
was brought to the spot; whether on foot or whether by car are not
explained. These contradictions as pointed out are the same which
have been highlighted by the counsel for the co-accused and
noted in the submissions supra. Additional support has also been
drawn from a judgment reported in (2000) 1 SCC 300 T. Hamza vs.
State of Kerala to support the arguments that the provisions of
Section 50 of NDPS Act have not been complied with qua Mohd.
Nasir as well.
12. Record has been perused and the submissions and counter
submission have been noted.
13. Notice under Section 50 of the NDPS Act:-
The notice under Section 50 of the NDPS Act is a mandatory
requirement; this Section mandates that before an accused is
searched he has to be informed of his valuable right of having his
search conducted either before a gazetted officer or a magistrate
and this has to be duly informed and brought to the knowledge of
the said accused, non-compliance of this salutary provision of law
would render the entire trial futile.
14. Notice under Section 50 of the NDPS Act served upon Fazal
Haq is Ex.PW-4/B. It is in the hindi language and has been
prepared by Investigating Officer Inspector Joginder Singh PW-4.
The endorsement of Raghunath PW-1, the translator, appears at
point A which recites,
" I Raghunath translated above said notice to Fazal Haq."
Below this there is an endorsement in the Persian language
signed by Fazal Haq. After this there is yet another endorsement
of the Investigating Officer that in front of the witnesses Fazal Haq
has informed that he does not wish to get his search conducted
either before a gazetted officer or a magistrate. On Ex. PW-4/E
which is the second page of this document there is a second
endorsement by Raghunath PW-1 which states,
"The above said subject was translated by me Raghunath to
Fazal Haq."
This document has been attested by Durga Dayal PW-2,
Inspector Randhir Singh PW-6 and ASI Ashwani Kumar.
15. Notice under Section 50 of the said Act issued to Mohd. Nasir
is Ex.PW-4/C and the second page of the said document is Ex. PW-
4/F wherein again there is endorsement at point A by Raghunath
which reads,
"I Raghunath shopkeeper of Main Bazar Pahargaj
(Former Afghan National) have translated the notice to Mr.Nasir."
This notice has also been attested by the aforestated
witnesses i.e. PW-1, PW-6 and ASI Ashwani Kumar.
16. The third notice under Section 50 of the NDPS Act issued to
Abdul Rahim is Ex.PW-4/D. This document is also in two pages i.e.
Ex.PW-4/D and Ex. PW-4/G and has two endorsement of Raghunath
PW-1 one on the first page and another on the second page. The
first endorsement states,
"I Raghunath Shopkeeper of Main Bazar Paharganj have
translated above said notice to Mr.Abdul Rahim verbally."
The second endorsement recites that the above said subject
was translated by Mohd. Rahim to Raghunath and is duly signed
by Raghunath at point A. The said notice is also attested by
PW-1, PW-6 and ASI Ashwani Kumar.
17. All the aforenoted documents are dated 02.6.2007.
18. Raghunath PW-1 was the translator who had translated the
contents of the aforenoted notices to the accused. All the accused
being not conversant either with the hindi or english language and
knowing only the persian language a translator conversant with
the said language has been called. This is the version of Inspector
Joginder Singh PW-4.
19. Raghunath PW-1 has deposed that on 02.6.2007 at about
7.00-7.30 PM he was present at the shop of his brother in Main
Bazar Paharganj. He was a medical practitioner educated in
Pakistan that is how he knew the persian language. A police
officer came to him and requested him to be present before the
ACP. He i.e. PW-1 went to the ACP where a police officer of the
rank of an Inspector requested him to assist him as some Afgan
persons had been apprehended who knew only the persian
language. PW-1 joined the interrogation of the accused.
Whatever questions were put to the accused persons in hindi were
interpreted to the accused persons in the persian language and
similarly whatever answers were given by the accused in persian
were translated and interpreted by PW-1 to the police in hindi.
PW-1 has further deposed that the police had prepared the
documents on the basis of the answers given by the accused
persons which had been reduced into writing. PW-1 had given
certificate below the questions put to the accused that the same
were correctly put and replied. He has identified his endorsements
as Ex.PW-1/A, Ex.PW-1/B and Ex.PW-1/C respectively; PW-1 has
further deposed that he was not taken to the corner of Qutub Road
Arakasha Road by the police officials at the request of Inspector
Joginder Singh as such the question of his meeting the accused
persons does not arise. He was declared hostile by learned APP as
this was a deviation from his version given to the Investigating
Officer. In his cross-examination, he has reiterated that he had
not gone to the place of incident near Qutub Road/ Arakansa Road
near Airlines Hotel at the request of Inspector Jognder Singh. He
has admitted that mark A to C i.e. the carbon copy of the notices
bear his endorsement at point A. He has further admitted that he
was called to the Police Station at about 12.00 at night on
2.6.2007 to translate the communication between the police and
the accused persons; the notices mark A to C were explained to
the accused persons by him on 03.6.2007 when he was called in
the police Station.
20. It is this part of the cross-examination which has been
highlighted by the learned defence counsel; it has vehemently
been argued that it has come on record in the version of PW-1 that
he had not gone to the spot i.e. the place of incident and he
having explained the substance of the notice to the accused
persons on 03.6.1997 when he was called to the Police Station,
clearly shows that the mandate of Section 50 of the NDPS Act has
not been complied with; the accused persons had been searched
prior to their having been served with the a notice informing them
of their right of search before a gazetted officer or a magistrate; in
the absence of the compliance of this statutory provision, non-
compliance going to the root of the matter, the entire trial stands
vitiated.
21. This Court has carefully perused the testimony of PW-1.
There are two places in this deposition of PW-1 wherein he has
stated that he had not gone to the corner Qutub Road / Arakansa
Road; both these statements have been qualified by subsequent
words wherein PW 1 has stated that he had not gone to Qutub
Road/Arakansa Road at the request of Inspector Joginder Singh,
thereby clearly implying that PW 1 had not gone to the spot i.e
Qutub Road / Arakansa Road on the asking of Inspector Joginder
Singh; he had gone there at the asking of the ACP; this is fortified
by his opening version wherein on oath he has stated that he had
been requested by some police official to be present before the
ACP.
22. It is thus clear that PW-1 has not gone to the spot at the
request of Inspector Joginder Singh but he had gone there at the
request and asking of the ACP; the argument of the defence
counsel on this score is meritless and an incorrect appreciation of
the testimony of PW-1.
23. PW-1 has been categorical that the translation of the
contents of the said documents had been translated by him from
hindi into persian language and explained to each of the accused
and thereafter their replies which were given in persian were
translated by him in hindi and informed to the police. The
aforenoted documents i.e. the notices under Section 50 of the
NDPS Act and the replies of the accused and the consequential
endorsement of PW-1 at point A on Ex.PW-4/B to PW-4/D and
Ex.PW-4/E to Ex. PW-4/G are all dated 02.6.2007. Submission of
PW-1 that he had explained these notices on 03.6.1997 is
answered by the fact that PW-1 had admittedly gone to the police
station at 12.00 midnight i.e. in the intervening night of 2.6.1997-
3.6.1997 to translate the communication between the accused and
the police officials; this communication refers to the disclosure
statements which had been given by the accused and the
translation of the said documents. This is evident from the
endorsements Ex.PW-1/A to Ex.PW-1/C on the three respective
disclosure statements of each of the accused i.e. on Ex.PW-10/G1
to G3. This part of the version of PW-1 does not have any
reference to the translation of the notices under Section 50 of the
NDPS Act. This is also fortified by the version of SI Kishan Chand
PW-10 who had recorded these disclosure statements; these
documents are dated 3.6.2009. PW-10 has deposed that public
person Dr.Raghunath was summoned in the early morning of
03.6.2007 and he had translated the communication with the
accused persons pursuant to which these disclosure statements
were recorded.
24. It is, thus, clear that PW-1 had gone to the spot at the
request of the ACP where he had translated the notices served
upon each of the accused from Persian to hindi and their replies
were translated vice-versa; he has admitted his endorsements at
point A on each of said notices as also the replies of the accused.
He had thereafter in the early morning hours of 3.6.2007 gone to
Police Station wherein he had translated the disclosure
statements made by the accused.
25. Version of PW-1 has also been corroborated by another
independent witness Durga Dayal PW-2 who is the public witness
who had been asked to join raiding party. He had joined the raid
at about 3.30 PM pursuant to a secret information which had been
received at 2.15 PM. PW-2 on oath deposed that he reached hotel
Airlines, Arakansa Road at about 5.00 PM and after about half an
hour two persons were spotted coming from the New Delhi
Railway Station and they joined the third person who was already
standing there. PW-2 had correctly identified each of the accused
persons i.e. Fazal Haq and Rahim as the persons who were coming
from the Railway Station and Nasir was the person who was
standing at the spot. PW-2 has further deposed that Dr. Raghunath
had been called at the spot as the accused persons were speaking
a foreign language. Inspector Joginder Singh informed the SHO
that a person conversant with the said language has been
summoned. Dr.Raghubath explained the communication between
the police and the accused and vice-versa. Thereafter on the
search of Nasir from a cotton belt three to four packets of a
granular powder were recovered. This witness was cross-
examined by the learned APP as there was a variation in his
version as to which of the two persons were coming from the
railway station and who was the third person standing at the spot.
He has clarified that Mohd.Nasir and Fazal Haq were seen coming
from the railway station and they joined Mohd. Rahim who was
standing on the patri near hotel Airlines. He has further deposed
that notices under Section 50 of the NDPS Act were served upon
upon the accused persons in the presence of Raghunath and the
contents of the same were explained by Raghunath to the accused
persons. PW-2 has also identified his signatures at point „C‟ on
each of the three notices Ex.PW-4/B, Ex.PW-4/C and Ex.PW-4/D and
their replies Ex.PW-4/E, Ex.PW-4/F and Ex.PW-4/G. He has
reiterated that the accused persons had been informed through
Raghunath that they a have legal right to have their search
effected either in the presence of a gazetted officer or a
magistrate but each of the said accused persons had refused this
offer. He has stated that he does not know what a notice under
Section 50 of the NDPS Act; PW-2 is a layman and obviously not
conversant with the legal provisions of the special statute; he has,
however, otherwise in the first part of his testimony clearly stated
that the accused persons through these notices had been
informed of their legal right of search either before a gazetted
officer or a magistrate.
26. Inspector Joginder Singh PW-4 was the scribe of the
aforenoted documents Ex.PW-4/B to Ex.PW-4/D. The replies
appended by the accused persons Ex.PW-4/E to Ex.PW-4/G were as
per the version of PW-4 in the handwriting of PW-1. PW-4 has on
oath deposed that after the accused persons had been
apprehended, Raghunath was called who reached the spot; PW-4
has prepared the notices and gave them to Raghunath who
explained the contents of the same to the accused. PW-4 has
admitted that Raghunath stayed at the spot for about one hour. In
his cross-examination, he has stuck to his stand; he denied the
suggestion that the proceedings were conducted in the Police
Station.
27. Inspector Randhir Singh PW-6 another member of the raiding
party, has deposed that after the accused persons had been
apprehended, PW-4 had called one Raghunath at the spot as he
knew the language spoken by the accused persons. Notice under
Section 50 of the NDPS Act was prepared and served on the
accused Nasir, the contents of the notice had been explained by
Raghunath and the reply given by the accused was reduced into
writing by Raghunath.
28. It is clear from this aforenoted evidence both oral and
documentary that the mandate of Section 50 of the NDPS Act has
been fully complied with; there is no lacuna whatsoever. Each of
the accused persons have been fully informed about the right of
having their search conducted either before a gazetted officer or a
magistrate; their refusal was also communicated by Raghunath to
the police and these endorsements have been made by Raghunath
and admitted by him in the said documents Ex.PW-4/B to Ex.PW-
4/D. Replies of the accused Ex.PW-4/E to Ex.PW-4/G also establish
that the said persons after having understood this option had
declined the offer of search either before a gazetted officer or a
magistrate.
29. Contradictions qua the witnesses:-
The contradictions as pointed out by the learned defence
counsel qua the version of PW-2, PW-4 and PW-6 as to which of the
two persons had come from the Railway Station and who was the
third person standing at the spot are inconsequential. PW-2 had,
in a clarification sought by the learned public prosecutor, deposed
that Mohd. Nasir and Fazal Haq were seen coming from the New
Delhi Railway Station where Mohd. Rahim was already standing; to
the same effect is the version of PW-4. Whether PW-1 had come on
foot or whether he had come in a car is also of little consequence
as PW-4 and PW-6 who have deposed to the said effect had come
into the witness box in February 2008 whereas the offence is
related to the year 1997; witnesses had deposed in the court after
more than one decade. It cannot possibily be expected that they
would have a photographic memory and would be able to retain all
minor details which have little bearing on the facts in issue.
Testimony of a witness has to be read as a whole; it is not liable to
be discredited merely because he has not been able to reveal the
truth in respect of a trivial matter or in respect of an
inconsequential fact.
30. Criminal Conspiracy and Recovery of the Contraband from
Mohd. Nasir:-
Section 29 of the NDPS Act is the penal provision for the
offence of criminal conspiracy. The definition of criminal
conspiracy has to be borrowed from the Indian Penal Code as has
been denfined in Section 120A of the said Code. It necessarily
postulate that two or more persons agree to do or cause to be
done an illegal act or an act which is not illegal but is done by
illegal means; such an agreement is designated as a criminal
conspiracy. The prosecution in order to bring home a charge
under Section 29 of the Act must prove the ingredients of the
section; surmises or conjectures cannot take the place of a proof.
31. In the instant case prosecution has relied upon two
photographs Ex.P-19 and P-20. These photographs depict the
presence of three persons of whom admittedly two persons are
Fazal Haq and Mohd. Rahim. Presence of Mohd. Nasir is disputed.
Mohd. Nasir in his statement under Section 313 of the Cr.P.C. has
denied that he is the third person in the photographs. Fazal Haq in
his statement under Section 313 of the Cr.P.C. has stated that the
third peson is Mohd. Hamim who is presently in Afghanistan and
he is not Mohd. Nasir. Mohd. Rahim and Fazal Haq have both
stated that the third person is not Nasir. DW-1 Abdul Qayyum is
the father of Fazal Haq. As per his version on oath the third
person in Ex.P-19 and Ex.P-20 is Hamiddulla who is resident of
Mahallakhana, District Ghuriyan, State of Hirat. Bismillah DW-2
the brother of Mohd.Rahim has also deposed that the third person
is Hamiddulla. DW-2 has further stated that the resort shown in
the said photographs is in Kabul in Afghanistan. Ex.P-19 is a
photograph of three persons which is taken on a boat and all the
three persons appear to be in a relaxed and comfortable posture;
Ex.P-20 is a photograph taken along side a lake, it appears to be a
picnic spot or luxury resort.
32. From this evidence gathered it has been established that
Fazal Haq and Mohd.Rahim are together with a third person; both
Fazal Haq and Mohd.Rahim had denied that they know Mohd.Nasir
yet in the same breath they have gone on to categorically state
that the third person in the photograph is not Mohd.Nasir; if
Mohd.Nasir is not known to them it would have been difficult for
them to make such a categorical averment. DW-1 and DW-2 have
also stated that the third person is not Mohd.Nasir but is one
Hamiddulla resident of Mahallakhana, District Ghuriyan, State of
Hirat. DW-1 is the father of Fazal Haq and DW-2 is the brother of
Mohd. Rahim; this relationship has been disclosed by DW-2;
meaning thereby that both Fazal Haq and Mohd. Rahim are closely
known and associated with one another that is why the close
relatives of one another are known to their close relatives.
33. Personal search of each of the accused persons had been
conducted vide memos Ex.PW-10/D,Ex.PW-10/E & Ex.PW-10/F.
The passport, airlines ticket and immigration form of each of the
accused persons had been found in their personal search. The
photographs Ex.P-19 and Ex. P-20 had been recovered from the
pesonal search of Mohd. Rahim.
34. Airline ticket of Mohd. Rahim is Ex.P-17. This is a return
ticket showing departure of Mohd.Rahim from Kabul to Delhi on
31.5.2007 within an expected return on 3.6.2007. His immigration
from Ex.P-18 shows that he had entered India on 31.5.2007. His
passport Ex.P-16 shows a valid visa for India w.e.f. 205.2007 to
19.8.2007.
35. The airlines ticket of Mohd.Nasir Ex.P-14 shows that he had
left Kabul on 01.6.2007 with a return ticket dated 4.6.2007. His
immigration form Ex. P-15 shows his entry in Delhi on 2.6.2007.
His passport Ex. P-13 shows the validity of his visa w.e.f. 17.5.2007
to 16.8.2007.
36. The air ticket of Fazal Haq is Ex.P-11. This is a return ticket
from Kablul to Delhi and back as per which Fazal Haq left Kabul on
01.6.2007 and he was to return back on 04.6.2007. His
immigration form Ex.P-12 shows his entry in Delhi on 02.6.2007.
His passport Ex.P-10 shows the validity of his visa w.e.f. 20.5.2007
to 19.8.2007.
37. This documentary evidence collected by the prosecution has
established that each of the accused persons had return tickets
from Kabul to Delhi and back for a limited period only;
Mohd.Rahim‟s ticket was between 31.5.2007 to 3.6.2007 and the
return airlines ticket of Mohd. Nasir and Fazal Haq were between
the period 1.6.2007 to 4.6.2007 i.e. for a limited period of three
days each. This obviously implies that each of the three persons
had entered India only for a limited period and for a limited
purpose. What was that purpose? this is the query which the
prosecution has to answer.
38. Testimony of PW-2, PW-4 and PW-6 is clear and cogent; all
the said witnesses have stated that Mohd.Nasir and Fazal Haq
were seen coming from the New Delhi Railway Station where they
met the third person Mohd.Rahim; this was near the Airlines Hotel
Arakansa Road, which was in the proximate vicinity of Hotel Shiv
Dev where Mohd. Rahim had checked in on the late evening of
31.5.2007. Varun Mandal PW-9 had deposed that on 31.5.2007
Mohd.Rahim had checked in Hotel Shiv Dev, Arakasha Raod,
Paharganj at 7.15 PM and room no.205 had been alloted to him.
He has proved the relevant entries in his register Ex.PW-9/A and
Ex.PW-9/B. Accused Mohd.Rahim in his statement under Section
313 Cr.P.C. had also admitted that he had checked in at this hotel
on 31.5.2007. His defence is that he had been picked up from
outside his hotel and falsely implicated; no such suggestion had
been given to any of the witnesses of the prosecution; this defence
has surfaced for the first time only in his statement under Section
313 of the Cr.P.C.
39. The aforenoted documentary evidence has established that
Mohd.Rahim had come from Kabul to Delhi on 01.6.2007; one day
later i.e. on 2.6.2007 Mohd.Nasir and Fazal Haq had travelled
together from Kabul to Delhi on the same flight i.e. RQ No.13 and
they had to return back to Kabul on 04.6.2007 on the same flight
i.e. RQ No.14. Mohd. Nasir and Fazal Haq were also the two
persons who were found seen coming from New Delhi Railway
Station towards the spot where Mohd. Rahim was standing. Both
Mohd. Nasir and Fazal Haq have in their statements under Section
313 of Cr.P.C. stated that they did not know each other;
40. It would but be a strange co-incidence that two Afghan
nationals travelling together on the same day by the same flight
with an expected return on the same flight on the same day being
together in the company of one another wherein they are joined
by a third party; coming to India for a limited period of three days
and yet they have stated that they did not know one another; this
is nothing short of misleading the Court. Fazal Haq for the first
time in his statement under Section 313 Cr.P.C. has stated that he
had been picked up by the police while he was buying mangoes.
No such defence had been propogated at the time when he had
cross-examined the witnesses of the prosecution. This court also
had the opportunity to physically see Mohd. Nasir; he had been
called in Court on a production warrant from Jail; his physical
features and attributes were examined and they co-relate with the
third questioned person in Ex.P-19 and Ex.P-20. Submissions
made by each of the three persons under Section 313 Cr. P.C. are
palpably false. The secret information Ex.PW-4/A received at 2.20
PM had also mentioned the names of all the three accused persons
i.e. Mohd.Nasir and Fazal Haq who would be coming to Airlines
Hotel where they would meet the third person Mohd.Rahim who
would be supplying contraband to them.
41. A conspiracy is always hatched in darkness. What is going
on in the mind of a person is only known to that person; his
thought process and mental faculties are not overt features which
can be physically seen; it is only from the attendant circumstances
that the evidence of conspiracy can be gathered.
42. From the evidence brought on record, it is clear that all the
three accused persons had come to India for a limited purpose and
for a concerted object i.e. the supply of contraband; the conspiracy
to commit the offence is clearly evident.
43. The possession of the contraband from Mohd. Nasir has been
proved by the cogent version of all the recovery witnesses i.e.
PW-2, PW-4 and PW-6. The contraband had been seized vide
memo Ex.PW-4/H duly attested by PW-1, PW-6 and ASI Ashwani
Kumar; that this recovery was a prohibitive contraband has been
established by the report of CFSL Ex.PX dated 16.8.2007; the
samples sent for examination were found to contain
Diacetylmorphine. Recovery of this narcotic drug from the
possession of Mohd. Nasir is fully established.
44. New Case set up by the Prosecution:-
Prosecution has by clear and cogent evidence established
that after the accused persons had been apprehended, due notice
informing them of their right of having their search conducted
either before a gazetted officer or a magistrate was served upon
them through the translator PW-1 who explained thus this valuable
right to them. On their declining this offer, their search has been
conducted and from the possession of Mohd. Nasir 4.6 Kg. of
heroin was recovered. These proceedings were conducted at the
spot; they commenced at 5.30PM and were continued after
10.10PM when PW-6 left the spot. Thereafter the accused had
been taken to the Police Station where their disclosure statements
were recorded by PW-10. PW-1 had also been summoned in the
Police Station to translate this communication between the
accused persons pursuant to which these disclosure statements
were reduced into writing; this is the version of PW-10.
45. It is, thus, clear that the prosecution has in no manner
deviated from its original stand. Part of the investigation i.e. the
part up to the search and seizure of the contraband had been
conducted at the spot; thereafter in the late hours of
02.6.2007/early morning of 03.6.2007 the investigative team with
the accused persons returned back to police station where the
other documents were prepared including the disclosure
statement of these accused.
46. Para no.60 of the impugned judgment is a mis-appreciation of
the evidence collected by the prosecution; this however does not
enure for the benefit of the accused.
47. Section 42 of the NDPS Act
The secret information had been reduced into writing vide
DD No.23-A Ex.PW-4/A. This information has been received by
Inspector Joginder Singh PW-4 and he had forwarded the same to
his senior officer ACP B.L.Meena PW-11. This has been come in
the deposition of both PW-4 and PW-11. The mandate of Section
42 of the NDPS Act stands duly complied with.
48. The judgments relied upon by learned defence counsel that
unless the secret informant is examined, the secret information
cannot be read, is not the ratio of the said judgments. In Kassu
Ram‟s case supra this was only a submission made by the defence
counsel recorded in a bail matter; it was not a finding of the Court.
Bhugdomal Gangaram‟s case supra was an appeal against
conviction under Section 65(a),(d),(e), 66(1)(b) and Section 81 of
the Bombay Prohibition Act 1949. Para no.13 of the said judgment
makes a reference to an information; but this is not an information
in relation to a narcotic or a psychotropic substance as is
contemplated under Section 42 of the NDPS Act. The ratio of the
said judgment is clearly inapplicable.
49. Incriminating circumstances under Section 313 of the Cr.P.C.:-
The accused persons have been put all the incriminating
circumstances upon which the prosecution has relied upon
including the photographs Ex.P-19 and Ex.P-20. The question of
the circumstance that the resort depicted in Ex.P-19 and Ex.P-20
was at Kabul, has not been put to the witnesses, does not arise as
this was not the version of the prosecution. This fact had been
disclosed for the first time by DW-2 in his version which was at the
stage of the defence evidence i.e. a stage after the statements
Section 313 of the Cr.P.C. have been recorded. The submission of
the learned defence counsel on this score is without merit.
50. False plea by accused:
Accused persons have taken false pleas in their statements
under Section 313 of the Cr.P.C. Fazal Haq and Mohd.Rahim have
stated that they did not know Mohd.Nasir and vice-versa; Mohd.
Nasir has stated that he did not know that Fazal Haq was travelling
to Delhi on the same flight. Evidence has established otherwise. In
(1999) 9 SCC 242 Swapan Patra & Ors. Vs. State of W. B. , it has
been held by Supreme Court that an explanation offered by an
accused if found to be untrue is an additional link in the chain of
circumstances to complete the chain against him. An adverse
inference for misleading the Court can well be drawn against the
accused person.
51. It is clear that the prosecution has been able to prove its
case against all the accused beyond all reasonable doubt.
Mandatory requirements of the law i.e. the mandates of Sections
50 and 42 of the NDPS Act stand complied with. The evidence of
conspiracy as discussed supra and the recovery of the contraband
from the conscious possession of Mohd.Nasir having been proved,
the judgment of the trial Court convicting Mohd.Nasir under
Section 21 of the NDPS Act and Fazal Haq and Mohd.Rahim under
Section 29 read with Section 21 of the NDPS Act calls for no
interference. Each of the accused persons have been sentenced
with a minimum sentence i.e. an imprisonment for ten years. The
sentences imposed also call for no interference. Appeals are
without merit; they are dismissed.
(INDERMEET KAUR)
JUDGE
26th October, 2009
rb/nandan
