Delhi High Court

Vijender Singh vs Directorate Of Revenue ... on 8 April, 2013

Author: S. P. Garg

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 28th February, 2013
                                 DECIDED ON : 8th April, 2013

+              CRL.A. 108/2012 & CRL.M.B.175/2012

      VIJENDER SINGH                                   ....Appellant
               Through :         Ms.Puja Srivastava, Advocate.

                                 versus

      DIRECTORATE OF REVENUE INTELLIGENCE
                                              ....Respondent
              Through : Mr.Sushil Kaushik, Advocate.
AND

+     CRL.A. 1561/2011 & CRL.M.B.Nos.2249/2011 & 1503/2012

      ROZY VIJENDER @ ELIZABETH SAMUEL ....Appellant
               Through : Ms.Puja Srivastava, Advocate.

                                 versus

      DIRECTORATE OF REVENUE INTELLIGENCE
                                              ....Respondent
              Through : Mr.Sushil Kaushik, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellants- Vijender Singh (A-1) and Rozy Vijender @

Elizabeth Samuel (A-2) impugn judgment dated 15.10.2011 in Sessions

Case No. 28A/2006 arising out of Complaint ID No.02403R0183302006

(Ex.PW-2/A) by which they were held guilty for committing offence

under Section 21(c) NDPS Act and acquitted of the charges under Section

29 read with Section 21(c) of the Act. Vide order dated 17.10.2011, they

were sentenced to undergo RI for ten years with fine ` 1 lac, each.

2. Allegations against the appellants were that on 23.11.2005 at

around 07.30 P.M., at Bus stop, outside New Delhi Railway Station, they

were found in possession of 5.022 kg. of Heroin meant to be delivered to

an individual. The prosecution examined ten witnesses to substantiate the

charges. In their 313 Cr.P.C. statements, the appellants pleaded false

implication and came up with the plea that they were lifted from their

rented house on 22.11.2005 at about 02.00 P.M. by DRI officials. DW-1

(Rajbir Singh) stepped in their defence. On appreciating the evidence and

considering the rival submissions of the parties, the Trial Court, by the

impugned judgment, held both the appellants guilty for the offence

mentioned above. Being aggrieved, they have preferred the appeals.

3. Learned counsel for the appellants urged that the Trial Court

did not appreciate the evidence in its true and proper perspective and fell

into grave error to base conviction on the testimonies of official witnesses

without seeking independent corroboration. Mandatory provisions of

Section 50 were not complied with. No reasonable explanation was

offered for withholding independent panch witnesses. No such

independent witnesses were associated at the time of alleged recovery. It

was the duty of the complainant to ascertain the address of panch

witnesses to examine them in the Court. Counsel for the appellants further

pointed out that material discrepancies and improvements emerging in the

statements of the prosecution witnesses were ignored without any valid

reasons. The prosecution was unable to prove that the accused travelled in

Malwa Express. No attempt was made to ascertain the time when Malwa

Express was to arrive at its destination. Statement under Section 67 was

recorded under duress. Their signatures were taken on blank papers. The

confessional statements were retracted by the appellants at the earliest

opportunity. The proceedings were conducted at DRI office. Log book

was not maintained and proved. The prosecution was unable to establish

A-2's identity beyond reasonable doubt.

4. Learned Spl.P.P urged that there are no good reasons to

disbelieve the cogent and reliable testimonies of the official witnesses.

Two panch witnesses were associated at the time of recovery of the

contraband from the conscious possession of the accused. Bona fide

attempts were made to produce them in the Court. However, they could

not be served at the address given by them. Section 50 is not applicable as

recovery was effected from the 'baggage'. The confessional statements

were never retracted by the appellants.

5. I have considered the submissions of the parties and have

perused all the relevant materials. The counsel for the appellants could not

demonstrate what provisions of law were violated while effecting

recovery from their possession. The contraband was recovered from the

'baggage' of the accused persons and not from their person. Under such

circumstances, no notice was required to be served or given to the accused

persons. In 'Jarnail Singh vs. State of Punjab', AIR 2011 SC 964, the

Supreme Court held :

"13. This apart, it is accepted that the narcotic/opium, i.e., 1 kg. and 750 grams was recovered from the bag (thaili) which was being carried by the Appellant. In such circumstances, Section 50 would not be applicable. The aforesaid Section can be invoked only in cases where the drug/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted. This Court in the case of Kalema Tumba v. State of Maharastra : (1999) 8 SCC 257 discussed the provisions pertaining to 'personal search' under Section 50 of the NDPS Act and held as follows;

...if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person.

Similarly, in the case of Megh Singh v. State of Punjab : (2003) 8 SCC 666, this Court observed that;

A bare reading of Section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises."

6. The prosecution associated Deep Chand and Kuldeep

Sharma, independent public witnesses at the time of recovery. Their

signatures were taken on the panchnama (Ex.PW-2/K) and annexures

(Ex.PW-2/B to Ex.PW-2/F). They were cited witnesses in the case. Efforts

were made to serve the summons for their appearance before the Court.

However, the addresses given by them were found fake. Their presence

could not be secured during trial. No adverse inference can be drawn

against the prosecution for their failure to examine independent panch

witnesses. The secret information (Ex.PW-1/A) was received on

23.11.2005 around 06.30 P.M. A raiding party was organised at about

07.30 P.M., the accused were arrested at a Bus stop, outside New Delhi

Railway Station at a distance of 3 or 4 km. from the office of the

complainant. Apparently, the officials had no sufficient time to arrange

independent public witness before proceeding to the spot. Their anxiety

was to intercept the culprits at the earliest. Even then before apprehending

the accused, they joined Deep Chand and Kuldeep Sharma who were

available at the Railway Station. They were not acquainted with the

officials. There was no time for them to verify and ascertain their identity.

The name and address disclosed by them were believed. No fault can be

found on this account with the members of the raiding team. The non-

examination of the witnesses, who joined in the investigation per se is not

fatal. It is no rule of law but of prudence that public witnesses should be

joined. This is insisted so as to lend authenticity and credibility to the

search and the recovery that are effected, it is of course not an absolute

rule. Though it is desirable to examine an independent witness, in the

absence of any such witness, if the statements of the official witnesses are

reliable and when there is no animosity established against them by the

accused, their version cannot be doubted or discredited.

7. Secret information with DRI officials was that two persons

were coming from Punjab to Delhi in Malwa Express and they were

carrying a bag consisting of narcotic drug concealed therein. Out of the

two, one was a lady wearing purple colour salwar-suit and red sweater,

aged around 30 years and other was male, aged 30 to 35 years, medium

built and height. With this specific description, DRI officials arrived at

New Delhi Railway Station and found that Malwa Express had already

arrived. They went to the Bus stop outside New Delhi Railway Station

and identified and recognised both the appellants with the bags in their

possession. They were taken to DRI office and recovery of the contraband

was effected. It is true that the DRI officials did not verify the timings of

arrival of Malwa Express. Since the raid was sudden and there was time

constraint it was not possible to ascertain the timings of arrival of Malwa

Express. The evidence was collected that the appellants had travelled from

Ludhiana to Delhi. Railway ticket (Ex.PW-2/L) was recovered from A-2.

It was issued in the name of fictitious persons Rajesh and Smt. Razi. The

accused did not produce any cogent evidence to deny that they had not

travelled from Ludhiana by Malwa Express that day. They claimed that

DRI officials lifted them from their residence on 22.11.2005 at 02.00 P.M.

but defence witness DW-1 (Rajbir Singh) A-1's brother contradicted them

and deposed that they were lifted from the said premises on 23.11.2005 in

the evening when they were going to sleep, after taking dinner. They did

not examine any independent witness to establish their presence at their

residence on 23.11.2005 before their apprehension. The prosecution

witnesses were not acquainted with the accused. They did not have their

photographs. They were not aware as to what was the relationship

between the two appellants. Only after their apprehension, they came to

know that A-1 and A-2 were husband and wife. The appellants did not

deny this relationship. When house No.E-397, East Vinod Nagar was

searched on 25.11.2005, some documents including passport, bank

passbook, driving licence and ATM card in the name of A-1 were seized

vide seizure memo (Ex.PW-6/A). The accused did not explain as to what

business or job was being carried out by them to earn their livelihood.

8. Confessional statement under Section 67 was made by A-2 in

her own handwriting. She did not deny that Ex.PW-2/P & Q were not in

her handwriting. She did not specifically allege that she was forced to

write down the confessional statement. Confessional statement of A-1 was

recorded by PW-2 (S.D.Sharma, Intelligence Officer, DRI HQ, New

Delhi) which is Ex.PW-2/N. The Trial Court has dealt with aspect

minutely and found that the confessional statements were not retracted

categorically by the accused persons. In their 313 statements, they did not

in clear words stated to have retracted the confessional statements. In the

absence of prior animosity or ill-will, DRI officials were not expected to

fabricate their confessional statements. Statement under Section 67 NDPS

Act is admissible in evidence and can be relied upon by a Court against an

accused provided it is found to be made by the accused voluntarily. Even

retracted statement can be acted upon as per law if the retraction is found

to be the product of some legal advice or after thought etc. The

confessional statements recorded under Section 67 contain many personal

facts about the accused and their family which are expected to be known

only to the accused and not to an outsider/ stranger. These statements

were voluntary statements of the accused and can be relied upon without

independent corroboration. In 'Raju Premji vs. Customs NER Shillong

Unit & Arun Kanungo vs. D.Pakyntein ', 2009 Crl.L.J. 3972, the Supreme

Court held :

XXX XXX XXX

"22. We would, for this purpose, assume that such confessions are not hit with Section 25 of the Evidence Act, 1872 but even then they must receive strict scrutiny.

This Court in Kanhaiyalal v. Union of India :

AIR2008SC1044 , upon taking into consideration number of decisions, held as under:

43. The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava case. The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence."

9. Contradictions, discrepancies and improvements highlighted

by counsel do not affect the core issue of recovery of contraband from the

conscious possession of the accused. These do not go to the root of the

case to throw away the otherwise unimpeachable testimony of official

witnesses. Testimonies of official witnesses have to be considered at par

with that of independent witnesses. Testimony of complainant was

corroborated by confessional statements of the accused persons. It was

further corroborated by recovery memo and other documents which had

been prepared at the time of recovery and proved before the Trial Court.

All the contentions raised by the appellants have been dealt with in the

impugned judgment and no interference is called for.

10. In the light of above discussion, I find no merit in the appeals