Narcotics Control Bureau vs Allauddin @ Mir @ Malik & Anr.
2010 Latest Caselaw 5726 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+               CRL.APPEAL No.111/1997

%                                        Reserved on: 3rd December, 2010

                                         Decided on: 16th December , 2010



NARCOTICS CONTROL BUREAU                  ..... Appellant
                Through: Mr. Satish Aggarwal, Advocate.

                          versus

ALLAUDDIN @ MIR @ MALIK & ANR.              ..... Respondents
                 Through: Mr. Sumeet Verma, Advocate for
                          Respondent No. 1.
                          Mr. Yogesh Saxena, Advocate for
                          Respondent No. 2.
Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may
   be allowed to see the judgment?                       Not necessary

2. To be referred to Reporter or not?                    Yes

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

MUKTA GUPTA, J.

1. On 20th August, 1993 on a secret information that one Allauddin is

likely to be found in the coffee shop of the hotel Janpath with heroin, Sarwan

Singh PW2 and Dhileep Kumar PW4 both intelligence officers of the

Appellant along with the team and B.N. Mishra PW4, Assistant Director went

to the hotel. The officers found Respondent No.1 Allauddin sitting in the

coffee shop with a rexine bag. Sarwan Singh introduced himself and other

NCB officers to Allauddin and expressed his intention to search his baggage

which was agreed to by the accused. Two panchas namely Amar Nath

Sharma and Sanjay Kumar, security guards of the hotel were associated with

the search and for that the Respondent No.1 was taken to a room in the hotel.

On search of the rexine bag, 5 packets were recovered which contained brown

powder, a small quantity of which was tested with the help of the field test kit

which gave positive test for narcotic drug. All the 5 packets found to be

weighing 5 kgs and 500 gms collectively were marked as A to E. Two

samples of 5 grams each were drawn from each of the 5 packets assigning

them markings A1 and A2 to E1 and E2 respectively. All these 10 samples

were transferred in a separate paper envelope with the seals of NCB. Besides

the panch witnesses, the panchnama was also signed by Allauddin and his son

Sirajuddin PW2, the seizing officer Sarwan Singh, and PW5 B.N. Mishra,

Assistant Director. The remaining brown powder was also sealed along with

the rexine bag. Respondent No.1 was served with the summon Ex. PW2/B by

PW2, pursuant to which he was interrogated by PW4 at the NCB office on

21st August, 1993. During interrogation Respondent No.1 tendered his

voluntary statement Ex.PW4/A written by his son Sirajuddin admitting the

recovery of the contraband and also disclosing that some more drug was lying

stored in a trunk in a house in the occupation of a blind man named Yamin

and his wife Hamida Bano at Mata Sundri Road. The Respondent No.1

allegedly voluntarily led the officers of the NCB to the said house. Ram

Narain Prasad, Uma Shankar and Sita Ram were associated as panch

witnesses. On search of the house, a trunk was found in the house which was

locked. On breaking the lock it was found to contain 17 cloth packets with

Urdu markings and some black substance wrapped in a polythene sheet. Each

of the 17 parcels was found to be containing one polythene packet containing

brown powder which tested positive for heroin. The blackish substance tested

positive for opium. The total weight of the heroin recovered was 16 kg and

515 gms and of the opium was 2½ kgs. Two samples of 5 gms were drawn

from each packet and thereafter the samples and the recovered articles were

sealed. A panchnama Ex.PW4/B was prepared at the spot with specimen seal

impressions, duly signed by the aforesaid persons. Respondent No.1

Allauddin was further interrogated by S. Shiva Prasad, Intelligence officer

who recorded his statement Ex. PW6/C written by his son Sirajuddin on 21st

August, 1993 confessing the recovery of contraband from the house at Mata

Sundri Road and disclosing the involvement of his associates co-accused

Rafiq and Akhlaq a Pakistan national. Accused Rafiq was summoned vide

summons Ex. PW1/B dated 30th September, 1993. In pursuance of the

summons, accused Rafiq appeared before PW1 J.S. Solanki on 30th

September, 1993 and tendered his voluntary statement Ex. PW1/C u/s 67,

NDPS Act. Thereafter, he was arrested vide arrest memo Ex. PW1/D.

2. On a complaint being filed, the Respondents were charged with a joint

charge of conspiracy under Section 29 read with Sections 23, 21 and 18 of the

Narcotics Drugs and Psyctrophic Substances Act, 1985 (in short „the Act‟). A

separate charge under Section 21 of the Act for the recovery of 5.5 kgs of

heroin and another separate charge under Section 21 and Section 18 of the Act

for recovery of 16.515 kgs heroin and 2.5 kg opium were framed against

Respondent No.1 Allauddin. After recording of the evidence and the

statement of the accused persons under Section 313 Cr. P.C., the learned Trial

Court acquitted both the Respondents. The reasons for the acquittal of the

Respondents are; firstly, non-compliance of Section 50 of the Act; secondly,

Respondent No.1 Allauddin in his statements Ex. PW4/A and Ex.PW6/C did

not admit that the heroin or opium contained in the trunk belonged to him or

that the trunk was kept by him in the quarter of Yamin and his wife Hamida

Bano; thirdly, Allauddin neither in his statement Ex.PW4/A nor in his further

statement Ex.PW6/C mentioned that he had any share in the profit or

commission or took storage charges regarding the heroin and opium lying

concealed in the said house and as per the statement Ex. PW4/A only

knowledge of concealment could be attributed to him. Lastly, it was held that

the Appellant failed to prove that the statements Ex.PW4/A and PW6/C made

by Respondent No.1 and written by his son Sirajuddin were voluntary in

nature. Impugning this judgment dated 1st August, 1996 the present appeal

has been filed.

3. Learned counsel for the Appellant contends that the findings of the

learned trial court acquitting the Respondents are perverse, warranting

interference by this court by setting aside the impugned judgment and

convicting and sentencing the Respondents for the charges framed. It is

contended that the finding that Section 50 of the Act was not complied with

while recovering heroin from the Respondent No.1 is perverse and contrary to

the law laid down by the Hon‟ble Supreme Court. Section 50 of the Act has

an application only when personal search of the accused is conducted. The

same does not apply when the recovery is from a bag or vehicle etc. Reliance

is placed on State of Punjab vs. Baldev Singh, JT 1999 (4) SC 495. It is next

contended that since the recovery, search and seizure of heroin is at hotel

Janpath which is a public place, therefore, Section 43 of the Act is applicable

and Sections 41 and 42 of the Act have no application. Reliance is placed on

Narayanaswmay vs. Assistant Director, Directorate of Revenue Intelligence,

AIR 2002 SC 3658, State of Haryana vs. Jarnail Singh and others, 2004 (2)

JCC 1036, Ravinderan vs. Superintendent of Customs, 2007 (6) SCC 410 and

Directorate of Revenue and Anr. Vs. Mohd. Nisar Holia, 2008 (2) SCC 370.

In the alternative it is submitted that even if it is held that Section 43 of the

Act is not applicable then also Section 41 (2) will apply and since the

standards laid down under Section 41(2) have been complied with thus it is

unnecessary to conform to the rigors of Section 42. As regards the search and

seizure of heroin and opium at the house at Mata Sundri Road, it is contended

that since Section 41(2) of the Act have been complied with, it is not

mandatory to conform to Section 42. Reliance is placed on M.Prabhulal v.

Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449.

4. It is next contended by learned counsel for the Appellant that the

finding that the statements tendered by Respondent No. 1 vide Ex.PW4/A and

Ex. PW6/C are not voluntary in nature, is highly perverse. The recoveries at

both the places have been witnessed by panch witnesses who have testified to

this effect. The statements are in the handwriting of the son of Respondent

No.1 and the statements also include the facts relating to the family of

Allauddin which would not be in the knowledge of the officers of the

Appellant. There is no reason for the officers of the Appellant to falsely

implicate the Respondents and lastly there is a presumption that official acts

have been preformed regularly. Relying on State of Kerala v. M.M.Mathew

and Another, (1978) 4 SCC 65 it is contended that the conviction can be based

solely on the testimony of the official witnesses.

5. Learned counsel for the Appellant next contends that the finding that

the respondent No. 1 was not in conscious possession of the contrabands

recovered from the house at Mata Sundri Road is also perverse as a huge

recovery of the contraband itself raises the presumption that the Respondent

No.1 was not only in possession of the contraband but he owned the same.

Relying on CBI v. Ashiq Hussain and others, 2003 (1) JCC 316 it is

contended that the procedure is the handmaid of justice and not the mistress of

law. The procedures are intended to subserve and facilitate the cause of

justice and not to govern or obstruct it. Minor deficiencies if any cannot be

considered to be fatal for the prosecution.

6. Learned counsel for the Respondent No.1 fairly states that as far as the

finding of the learned trial court with regard to non-compliance of Section 50

of the Act is concerned, the same is perverse and contrary to the law laid

down by the Hon‟ble Supreme Court. It is well settled that Section 50 of the

Act applies only to personal search and not to baggage, conveyance etc. It is

however contended that even if Section 50 is not required to be complied with

in the present case as regards the recovery from Room No.26 of Hotel Janpath

and from inside the trunk lying in the house at Mata Sundri Road, the

compliance of Section 42 of the Act is mandatory. Relying on State of Punjab

v. Balbir Singh, 1994 (3) SCC 299 it is stated that the appeal is liable to be

dismissed on account of non-compliance of Sec. 42 of the Act. The admitted

case of the prosecution is that they had received secret information in terms of

Section 42 of the Act. It was mandatory for the officer to reduce the same

into writing under Section 42 (1) and under sub-Section (2) to send the copy

of this writing to his immediate superior. Admittedly, in the present case

PW2 is the searching, seizing and sealing officer. It has not been proved on

record that this secret information was reduced into writing. Even if admitting

that the senior officer of PW2, that is, PW5 Mr. B.N. Mishra, Assistant

Director was present that at best can entail the intimation by PW2 to the

senior officer thus complying with Section 42(2) but Section 42(1) which is

also mandatory has not been complied with in the facts of the present case.

Reliance is placed on Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000

(1) Apex Decision (S.C.) 321 and Beckodan Abdul v. State of Kerala, 2002 (3)

SCALE 564. Reliance by the Appellant on M.Prabhulal (supra) is

misconceived as the Hon‟ble Supreme Court was dealing with the violation of

Section 42(2) only, Section 42(1) having been complied with. Admittedly, in

the present case neither PW2 nor PW4 is a Gazetted Officer, whereas in M.

Prabhulal the searching, seizing and sealing officer was a Gazetted Officer

himself. The learned trial court rightly held that Ex. PW4/A and Ex. PW6/C

neither stated that the trunk belonged to Allauddin nor that the trunk was kept

by him at that place. It was also not stated that he had any share or

commission or profit or storage or entitlement to storage charges. The

Respondent No. 1 can at best be attributed knowledge of concealment of the

contraband and the same will not invest in him the conscious possession or

ownership thereof. As regards the last finding, it is stated that the prosecution

witnesses have admitted in their cross examination that Sirajuddin s/o

Allauddin was taken from hotel Janpath by the NCB officers and detained

there throughout the night and thus the alleged voluntary statements of

Allauddin Ex. PW4/A and Ex.PW6/C written in the handwriting of his son

cannot be said to be voluntary. Thus, there is no infirmity in the impugned

judgment and the learned trial court rightly acquitted the Respondent No.1.

7. Learned counsel for the Appellant in relation to Respondent No. 2

contends that as per the statement of co-accused Allauddin, the contraband

recovered from the trunk at Mata Sundri Road was kept by Rafiq, the

Respondent No.2. Though Rafiq in his statement under Section 67 of the Act

does not admit the same but the statements of co-accused Allauddin

Ex.PW4/A and Ex.PW6/C are sufficient to prove the complicity of

Respondent No.2 for the conspiracy and recoveries made at Mata Sundri

Road. Reliance is placed on Ramesh Chandra v. State of West Bengal, AIR

1970 SC 940 to contend that a person does not become an accused till a

complaint is filed against him notwithstanding his prior arrest. Relying on

Naresh J.Sukhwani v. UOI, 1996 (83) ELT 258 (SC) it is contended that the

statements recorded before custom officials under Section 108 of the Customs

Act can be used as substantive evidence if it inculpates not only the other

person but also the maker of the statement.

8. Learned counsel for the Respondent No.2 contends that the Respondent

No.2 is sought to be involved in the second recovery merely on the basis of

the statement of Respondent No.1, however, the statement of the co-accused

can only bind the maker of the statement. Reliance is placed on Union of

India v. Bal Mukund & Ors., 2009 (2)Crimes 171(SC ) wherein the decision

rendered in Naresh J.Sukhwani (supra) was distinguished. Relying on Shiva

Karam Payaswami Tewari v. State of Maharashtra, JT 2009 (1) SC 625 it is

contended that an extra judicial confession given by a co-accused cannot be

proved by merely exhibiting the same. The person before whom confession is

made should state what was stated by the person making the confession. The

statement of Respondent No.2 under Section 67 of the Act is exculpatory.

Moreover, the statements of the co-accused recorded are without any warning,

with no time given for reflection and by detaining the person at night and then

extracting the same. Thus the statements Ex.PW4/A and Ex. PW6/C cannot be

said to be voluntary in nature. Relying on Ganpat v. State of Haryana & Ors.,

2010 (4) Crimes 217 (SC) it is contended that the findings of the learned trial

court are well reasoned and thus this Court will not interfere in the same even

if two views are possible.

9. Conscious of the limitation in an appeal against acquittal and in terms

of the parameters laid down by the Hon‟ble Supreme Court in Ganpat (supra),

the facts in the present case are required to be examined. In the said report

culling out the law the Hon‟ble Supreme Court held:

"The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly, against an order of acquittal:

(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.

(ii) The appellate court can also review the trial court‟s conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.

(iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order

is "clearly unreasonable", it is a compelling reason for interference.

(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. [Vide Madal Lal vs. State of J&K, (1997) 7 SCC 677, Ghurey Lal vs. State of U.P., (2008) 10 SCC 450, Chandra Mohan Tiwari vs. State of M.P., (1992) 2 SCC 105, Jaswant Singh vs. State of Haryana, (2000) 4 SCC 484].

10. The finding of the learned trial court as regards the recovery from

Respondent No.1 at Hotel Janpath being in violation of Section 50 of the Act

is perverse. The law on the point is well-settled. It is only in cases of

personal search that Section 50 of the Act is required to be complied with. In

State of Punjab v. Baldev Singh, 1999 (6) SCC 172, it was laid down that

Section 50 of the Act has no application to the search of baggage, conveyance

etc.

11. Coming to the contention raised by the learned counsel for the

Respondent No.1 that even if Section 50 of the Act was not required to be

complied with, it was mandatory on the part of the Appellant to have

complied with Section 42(1) of the Act as admittedly there was a secret

information which was not reduced in writing in violation of the mandate of

Section 42(1) of the Act. In Abdul Rashid Ibrahim Mansuri (supra) the

Hon‟ble Supreme Court held that the requirement of Section 42 (1) is two-

fold - firstly, that he should have taken down the information in writing and,

secondly, that he should have sent forthwith the copy thereof to his superior

officials. I find merit in the contention of learned counsel for the Appellant

that the present case falls under Section 43 of the Act and not under Section

42 as the Explanation to Section 43 includes a hotel in the expression public

place and thus there is no requirement of compliance of Section 42 of the Act.

In Directorate of Revenue (Supra) the Hon‟ble Supreme Court considered

whether a room in a hotel would be a public place or not. It was held that

though a hotel is a public place however a room occupied by a guest in a hotel

cannot be said to be a public place. This interpretation was resorted to,

striking a balance between the enforcement of law and the protection of

valuable human right of the accused, that is, the right to privacy. In the

present case the Respondent No. 1 Allaudin was in possession of the

contraband in a rexine bag while sitting in the hotel lobby. It is only after

intimating to the Respondent No. 1 that there was an information about the

contraband in his possession and he is required to be searched that he was

taken to a separate room in a hotel. This of course was done so that no

inconvenience is caused to the other people sitting in that public place. The

recovery of heroin in the facts of the case can only be stated to be from a

public place and thus the mandatory requirement of Section 43 and not

Section 42 of the Act has to be complied with.

12. As regards the next issue of recovery from the house at Mata Sundri

Road and the contraband not being in the conscious possession of the

Respondent No. 1, I find no perversity in the impugned judgment. As per the

two statements of Respondent No.1 Ex. PW4/A and Ex. PW6/C at best

knowledge of concealment of the contraband can be attributed to him. These

statements do not speak about any share or profit or commission or storage

charges in the said contraband. Moreover, the Respondent No.1 has not even

stated that this contraband was kept by him at the house at Mata Sundri Road.

The Hon‟ble Supreme Court in Raosaheb Balu Killedar v. State of

Maharashtra, 1995 Crl.LJ 2632 held that that the recovery of country made

revolver and cartridge pursuant to the disclosure statement by the accused

though attribute knowledge of the concealment of revolver and the cartridge at

the particular place but the same does not attribute a conscious possession

thereof.

13. I also do not find any perversity in the finding of the learned trial court

that the statements of the Respondent No.1 Ex.PW4/A and Ex.PW6/C cannot

be said to be voluntary. PW5 in his cross examination has admitted that the

Respondent No.1 and his son were taken from hotel Janpath to the office of

NCB and interrogated resulting in the statement of Shiraz whereafter he was

let off on the next morning. It would also be relevant to note a fact from Ex.

PW 4/C which demonstrates that the Respondent No. 1 along with his son was

taken to the NCB office from Janpath hotel on 20th August, 1993 itself. The

question put to Respondent No. 1 by PW4 was "why did you come to hotel

Janpath today evening?" In view of the evidence on record that the

Respondent No.1 and his son were taken to NCB Office from Hotel Janpath,

the story of the prosecution that summons were served on the Respondent

No.1 to appear on 21st August, 1993 before PW4 and in compliance of the

summons, Respondent No.1 along with his son came to the office of NCB on

21st August, 1993 and tendered his voluntary statements Ex. PW4/A and

further statement Ex.PW6/C written in the handwriting of his son Swaran

Singh is negated. PW4 in his cross examination has admitted that the

Respondent No.1 was not even warned that his statement can be used against

him or other persons nor was the provision of Sec. 67 of the Act read over and

explained to him. Indubitably, there is a presumption under Section 114 of the

Evidence Act that official acts are performed regularly but this presumption is

rebuttable and when the facts demonstrate otherwise and due compliances to

the procedural safeguards are not met then the statement cannot be said to be

voluntary in nature.

14. From the testimony of PW2 Sarwan Singh, Inspector, Customs and

Central Excise, the searching, seizing and sealing officer, PW3 Amar Nath

Sharma and PW5 B.N. Mishra, Assistant Director, NCB, the recovery of 5.5

Kgs of heroin from the possession of Respondent No. 1 has been proved

beyond reasonable doubt. The witnesses have stated about search of the rexine

bag, sampling, seizing and sealing of the case property and the samples. The

link evidence and the report of CRCL opining the contraband to be heroin has

also been proved. In view of the aforesaid discussion the impugned judgment

of the learned Trial Court acquitting the Respondent No. 1 for the charge

under Section 21 of the Act relating to the recovery from the rexine bag in his

possession at hotel Janpath is perverse, illegal and thus set aside. The

Respondent No. 1 is held guilty of offence punishable under Section 21 of the

NDPS Act and thus convicted of the said offence.

15. Qua Respondent No.2 the only evidence produced by the prosecution

are the two alleged voluntary statements of Respondent No.1 Ex. PW4/A and

Ex.PW6/C. As held above these statements cannot be said to be voluntary.

Moreover, the statement tendered by the Respondent No.2 Ex.PW1/C

recorded after one and half month of the incident does not inculpate him. The

contention of learned counsel for the Appellant is that the statements recorded

before the officers of the Appellant are not statements before the police

officers and thus they are admissible in evidence as substantive evidence and

the conviction of the co-accused can be based solely on the confessional

statement made by the co-accused. The confession made before the officers

of the Appellant is an extra judicial confession. The law relating to the

evidentiary value of the confession made by a co-accused under Section 30 of

the Evidence Act, is well settled that the same may be taken into consideration

to lend credence to the prosecution case. In the present case, the evidentiary

value of the statement of co-accused is not required to be gone into at length

because it has already been held that the statements of Respondent No.1

which incriminate the Respondent No.2 are not voluntary in nature. The same

cannot be the basis of conviction of Respondent No.2. Thus the Appellant has

not been able to prove the charges against Respondent No. 2 beyond

reasonable doubt and the finding of the learned Trial Court is not required to

be disturbed on this count.

16. The appeal is accordingly allowed. The Respondent No.1 is convicted

for the offence punishable under Section 21 of the NDPS Act.

(MUKTA GUPTA) JUDGE DECEMBER 16, 2010 mm