Santokh Singh vs State Of Nct Of Delhi
2011 Latest Caselaw 3773 Del

*      HIGH COURT OF DELHI : NEW DELHI

+       CRL.REV.P.691 OF 2009


%                                                 Decided on: August 05, 2011

SANTOKH SINGH                                                ..... Petitioner
                                 Through:   Mr. Vikram Singh, Adv.

                        versus

STATE OF NCT OF DELHI                                         ..... Respondent
                  Through:                  Mr. C.L. Gupta, APP for State.
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. (ORAL)

1. This is a petition against the order dated 5th October, 2009 framing

charge against the Petitioner for offences punishable under Section 25A and

Section 29 of the Narcotic Drugs and Psychotropic Substance Act (in short

NDPS Act).

2. Learned counsel for the Petitioner contends that no recovery was made

from the Petitioner. The Petitioner was neither inside the vehicle from which

recovery was made nor was he present at the scene of occurrence. The

Petitioner has not even been named in the FIR. Further no role has been

assigned to him. Statement of Constable Vijay Kumar in this regard has been

recorded who has stated that from the personal search of the Petitioner

nothing has been recovered. The Petitioner has been sought to be implicated

on the strength of telephone calls between the Petitioner and the co-accused.

However in the absence of any recorded conversation it cannot be said that the

Petitioner had entered into a conspiracy with the co-accused. Similarly

situated Milap Singh has not been made an accused. Moreover, co-accused

Pyare Lal has been discharged. The evidence placed on record is not

sufficient for sustaining the conviction of the Petitioner. Reliance is placed on

Union of India Vs. Prafulla Kumar Samal and Anr. AIR 1979 SC 366 to

contend that the Court has the power to shift and weigh the evidence and only

in case if the material placed on record discloses grave suspicion against the

accused, the Court would be justified in framing a charge and proceeding with

the trial. Relying on Century Spinning and Manufacturing Co. Ltd. and Ors.

Vs. State of Maharashtra AIR 1972 SC 545 it is contended that the order

framing charge does substantially affect the person's liberty and it is not

possible to countenance the view that the Court must automatically frame the

charge merely because the prosecution by relying on certain documents

considers it proper to institute the case. Learned counsel for the Petitioner

further states that the trial is proceeding at a snail's pace.

3. Learned APP on the other hand contends that initially one Amarjit was

arrested on the 19th February, 2008 who disclosed that the Petitioner was a

financer and on the Petitioner's interrogation it was found that one more

Satpal Singh was also involved. Recoveries were made from Amarjit Singh,

Satpal Singh and Ismael. Besides the call detail records have been traced by

the Investigating agency which shows that the Petitioner was in constant touch

with the co-accused from whom recoveries have been made and, thus, there is

no infirmity in the impugned order. It is submitted by the Learned APP that

the evidence of the Prosecution is likely to be concluded soon as 12 out of 17

witnesses have already been examined and only formal witnesses remain to be

examined.

4. I have heard learned counsels for the parties. Briefly, the case of the

prosecution is about a conspiracy to procure acetic anhydrate, a controlled

substance illegally and export the same out of India to Afghanistan. A secret

information was received that on 19th February, 2008 one Amarjit Singh and

Kalim Akhtar would be coming to Delhi from Jaipur via National High Way

No.8 having large quantities of acetic anhydrate in a white colour Qualis

bearing No. DL-IV-7178. This information was recorded vide DD No.14. A

Police party was constituted, and the vehicle was intercepted while

approaching from the Haryana border at about 6.00 PM. Three persons were

found occupying the vehicle that is Amarjit Singh, Kalim Akhtar and Smt.

Rabia Begum wife of Kalim Akhtar. They were informed about the

information and also about their legal right to be searched before a Gazetted

Officer or a Magistrate. Notice under Section 50 NDPS Act was given and

thereafter search was conducted. From the dickey of the vehicle 50.368 k.g.

of acetic anhydrate was recovered kept in a plastic can. On their disclosure

further investigations were conducted and pursuant thereto on 20th February,

2008 150 k.g. of acetic anhydrate was recovered from a car bearing No. DL-

2CV-6225 driven by one Surender Singh, owned by Satpal Singh. As per the

disclosure statement of the accused the Petitioner was the financer and made

payments of contraband delivered in Afghanistan from here in India after

receiving money through hawala. The role assigned to the other co-accused in

the conspiracy was that Amarjit Singh, Smt. Rabia Begum and Kalim Akhtar

used to handover the same to Satpal Singh who would then take it to

Afghanistan. Accused Surender Singh while working as driver with Satpal

Singh assisted him in packing etc. of acetic anhydrate and used to take the

substance and Satpal to the airport for his visit to Afghanistan. Co-accused

Ismael also used to procure acetic anhydrate through various truck drivers.

5. Indubitably no charge can be framed against an accused merely on the

basis of the confessional statements of the accused or co-accuseds.

However, in the present case the telephone call details shows that accused

Santokh Singh and Satpal Singh were in constant touch with each other and

Amarjit Singh. Accused Sampat Singh and Pyare Lal have been discharged

for the reason that no role was assigned to them and there was no evidence

against them. Though Petitioner has not been named in the FIR however his

name has surfaced during the disclosure of the co-accused pursuant to which

the call details were verified which shows that the two were together.

6. A perusal of the call record of phone No. 981195762 in the name of

Speed Line International Co. Ltd. which is the Petitioner's company revealed

that the Petitioner was in touch with the co-accused from 11th November till

12th February, 2008. Telephone records of co-accused persons Amarjit having

no. 989991952 and Satpal having no. 9810698795 were also scrutinized.

From a scrutiny of call records of all the three accused persons it has surfaced

that co-accused Amarjit called the Petitioner on 10.11.07 at about 2:19 pm

and on the same day around 6:21 pm co-accused Satpal called Amarjit. The

Petitioner and Amarjit had conversation on 12.11.07 and also on 15.11.07

there were four calls made between co-accused Amarjit and Santokh, the

Petitioner at 4:47 pm, 4:48 pm, 6:21 pm and then at 6:27 pm. On 16.11.07

eight calls were made to the Petitioner by co-accused Amarjit and soon after

the last call at 7:13 pm the next call is made to co-accused Satpal by Amarjit

at 7:30 pm and thereafter at 10:21 pm.. There are calls made on 16 th and 17th

November, 2007 also between all the three accused persons. On 18th

November, 2007 there are consecutive calls between the Petitioner and co-

accused Amarjit and then between Amarjit and Satpal. The accused persons

were in constant touch with each other even thereafter. Call details show that

they all were in touch on 20.11.07, 21.11.07, 29.11.07, 1.12.07, 7.1.2008,

8.1.2008, 12.2.2008 and number of calls were made between them. A perusal

of the record of all the accused persons and Petitioner shows that

intermittently as and when the calls are made on that date a number of calls

are made, unlike in the case of an acquaintance where there would be regular

calls. This also leads to the suspicion that as and when operation had to be

carried out parties were in touch with each other. This conduct of the

Petitioner and co-accused persons is also relevant under Section 8 of Evidence

Act.

7. In State v. Mohd. Afzal and others, 107 (2003) DLT 385 a Division

Bench of this Court observed as under:-

"327. Let us download the facts emerging from the cellphone records. Mobile number 9811489429 was

first activated on 6.11.2001. The SIM card of this number was used in the handset recovered from deceased terrorist Mohd. and Raja. On 13.12.2001 it was used on the handset recovered from the truck when accused Afzal and Shaukat were intercepted in the truck at Srinagar. Afzal for the first time took on rent premises at 281, Indra Vihar in the first week of November, 2001 coinciding with the activation of mobile No. 9811489429. This number was regularly in touch with the number of Shaukat Gilani and the terrorists. All these proved facts lead to only one hypothesis that this was the number of accused Afzal. We have already noted that the SIM card of this number was used on the mobile sets recovered from deceased terrorists Mohd. and Raja. This establishes frequent contact between accused Afzal and the terrorists. It also establishes that accused was in touch with the same satellite number as was in touch by the deceased terrorists. The learned Special Judge has relied upon eye witness evidence to hold that Afzal was interacting with the terrorist. We have preferred to use the unimpeachable evidence pertaining to the use of mobile numbers, their Sim cards and handsets. Our conclusion is the same."

8. As observed above, call records data is unimpeachable evidence. At

this stage a perusal of the call details record creates a strong suspicion and it

cannot be said that there is no evidence against the Petitioner warranting his

discharge.

9. Petition is dismissed.

( MUKTA GUPTA ) JUDGE

AUGUST 5, 2011/'ga'