Narcotics Control Bureau vs Kulwant Singh
2013 Latest Caselaw 2443 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 26th FEBRUARY, 2013
                                DECIDED ON : 23rd MAY, 2013

+                           CRL.A. 470/1997

      NARCOTICS CONTROL BUREAU             ....Appellant
              Through : Mr.Satish Aggarwala, Spl.P.P. with
                        Mr.Sushil Kaushik, Advocate.

                                 versus

      KULWANT SINGH                                 ....Respondent
             Through :           Mr.Sunil Mehta, Advocate.

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

S.P.GARG, J.

1. Present appeal has been preferred by Narcotics Control

Bureau against judgment dated 17.05.1997 in Sessions Case No.12/1996

by which the respondents were acquitted. I have heard the learned Spl.P.P.

for the appellant and learned counsel for the respondent- Kulwant Singh

and have examined the record. It reveals that complaint for offences

punishable under sections 21 and 29 NDPS Act was filed by

Sh.S.K.Vadhera, Intellignce Officer, Narcotics Control Bureau on

10.09.1987 against Mkemaekolam Okorie Ugroyozer, Godfrey

Kelochechi Anyonwre, Ajit Singh Bhatia, Kulwant Singh and James W.

Litchfield (hereinafter referred as respondents No. 1, 2, 3, 4 & 5

respectively). It was alleged that on 15.06.1987, search was conducted at

room No.10, Panchsheel Inn, situated at C-4, Panchsheel Enclave where

respondents No. 1 to 4 were found present. During search of the room, 12

small boxes were found which contained brown powder. The total weight

of the brown powder was 2500 grams. It was further alleged that during

the course of the proceedings, respondent No.2 sought permission to go to

toilet. However, he escaped from the ventilator of the toilet and remained

untraced. A white Maruti Car bearing No. DDC-7826 in which

respondents No.3 and 4 had come to Panchsheel Inn was searched and

100 grams of narcotics drugs was recovered from a polythene bag

concealed in between the front seat under the floor mat. Respondents

No.1, 3 & 4 were examined under Section 67 of the NDPS Act and they

admitted the recovery of the brown powder. They further confessed that

2500 grams of narcotics drugs recovered from room No.10 was delivered

by respondents No.3 & 4. They also admitted to have delivered 10 grams

of heroin to respondent No.5 on 15.06.1987. On the basis of voluntary

statement of respondent No.3, room No.5 of Hotel Gautam located on

D.B.Gupta Road was searched on 16.06.1987. Respondent No.5 was

found present and he took out a small cardboard packet containing 10

grams white powder. In the statement under Section 67, he admitted the

recovery and stated that the article was supplied by respondent No.3. The

respondents were sent for trial after completion of the investigation.

2. It is relevant to note that respondent No.1 expired during the

course of proceedings and the proceedings were dropped as abated vide

order dated 11.01.1988. Respondent No.2 could not be found and was

declared Proclaimed Offender. Respondent No.5 absconded during the

trial and was declared Proclaimed Offender. Respondent No.3- Ajit Singh

expired during the pendency of the present appeal and the proceedings

against him were dropped. Only respondent No.4- Kulwant Singh has

been left to face the proceedings.

3. The prosecution examined fifteen witnesses in all. In his 313

statement, Kulwant Singh pleaded false implication. Two witnesses in

defence were also examined. On appreciating the evidence and

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

impugned judgment, acquitted both respondent No.3 (Ajit Singh) and

respondent No.4 (Kulwant Singh). Being aggrieved, the Narcotics Control

Bureau has preferred the present appeal.

4. Learned Spl.P.P. urged that the Trial Court did not appreciate

the evidence in its true and proper perspective and fell into grave error in

acquitting the respondents on technical grounds for non-compliance of

section 42 (1), 42 (2), Section 50 & 57 of NDPS Act. Learned Spl.P.P.

vehemently contended that Section 41 (1) was not attracted as secret

information is required to be recorded in writing only if the information is

that narcotics drugs are kept or concealed in any building, conveyance or

an enclosed place. In the instant case, the information was only to the

effect that respondents- Ajit Singh and Kulwant Singh would deliver

narcotics drugs. The information was not that the narcotics drugs was kept

and concealed in Panchsheel Inn. He further contended that Panchsheel

Inn was a public place and any recovery of drugs effected from there

would be governed under Section 43 of NDPS Act. Information was not

required to be recorded in writing. It was not secret information but was

mere suspicion. Again, recovery from Hotel Gautam was effected from a

public place and provision of Section 42 was not required to be complied

with. The Section 42 (1) & (2) were not applicable as there was search

from room No.10 Panchsheel Inn; of the car and room No.5 Hotel

Gautam. Section 50 of NDPS Act is not attracted when there is a search

other than „person‟. Section 57 of NDPS Act is not mandatory in nature

and its non-compliance does not vitiate the trial. The prosecution had

joined independent public witnesses and there were no good reasons to

disbelieve the cogent testimonies of the official witnesses who had no

prior animosity with the respondents.

5. Learned defence counsel for the respondent urged that there

is no illegality in the impugned judgment. The prosecution was under

legal obligation to comply with the mandatory provisions of Section 42

(1), (2), 50 & 57 of the Act. The public witnesses opted not to support the

prosecution case and despite their lengthy cross-examination, nothing

material could be extracted to point an accusing finger at the respondents.

6. Only allegations against the present respondent- Kulwant

Singh are that he and Ajit Singh had gone in Maruti Car bearing No.DDC-

7826 to deliver narcotics and were found present in room No.10,

Panchsheel Inn with respondents No.1 & 2. They had delivered the heroin

wheighing 2500 grams to them. Again, from the car in question, 10 grams

white powder was recovered at their instance. They also admitted that

they had delivered 10 grams of brown powder to respondent No.5 and on

search of room No.5, Gautam Hotel, it was produced by respondent No.5.

The Trial Court, in the impugned judgment, appreciated the evidence

minutely and concluded that the prosecution did not establish beyond

doubt that they had complied the provisions of Section 42 (1) of NDPS

Act. I find no valid and sound reasons to deviate from that conclusion.

There is no substance in the plea that the secret information was not

required to be recorded under Section 42 (1) of the Act as the information

with the office of the NCB was mere „suspicion‟ and no specific

information. The Trial Court categorically referred to various documents

including complaint (Ex.PW-1/A), Panchnama (Ex.PW-1/B), document

(Ex.PW-2/E), statements of PW-1 and PW-2 to ascertain that it was a case

of specific information with the officers of NCB. PW-1, in his

examination-in-chief, categorically deposed that "acting on an

„information‟ he along with other officers of NCB went to C-4,

Panchsheel Inn where they conducted search of room No.10." In the

cross-examination, he admitted that the information was to the effect that

two persons would be going to deliver heroin to two Nigerians in room

No.10 of Panchsheel Inn and the aforesaid information was disclosed to

him by Deputy Director of NCB. PW-2 also in his examination-in-chief

stated that they had information about two persons to come to Panchsheel

Inn to deliver heroin to two persons in the room No.10 in the said Inn. In

the cross-examination, he admitted that they had kept surveillance on Ajit

Singh and Kulwant Singh for 10-15 days prior to the seizure of the

aforesaid heroin. From the documents referred above and considering the

testimonies of PW-1 and PW-2, it is crystal clear that the officers of the

NCB had specific information that Ajit Singh and Kulwant Singh would

go to Panchsheel Inn to deliver the narcotics to two Nigerians staying in

room No.10 of Panchsheel Inn. The counsel‟s plea that it was a case of

mere „suspicion‟ cannot be accepted. There is no substance in the plea that

secret information was not to the effect that narcotics drugs were kept or

concealed in room No.10, Panchsheel Inn. The Trial Court considered

document (Ex.D8), search authorization and Panchnama (Ex.PW-1/B). In

Ex.D8, it was clearly mentioned that the information was to the effect that

the narcotics drugs was concealed in the premises at room No.10,

Panchsheel Inn situated at C-4, Panchsheel Enclave, New Delhi. In

Panchnama (Ex.PW-1/B), the panch witnesses have stated that before the

start of search, they had seen the search authorization issued by the then

Deputy Director, NCB. This documentary evidence clearly showed that

the information was that narcotics drugs were concealed at the aforesaid

place. Inference can be drawn that it was a case of specific information

with the officers of NCB with the narcotics drugs was kept in room

No.10, Panchsheel Inn. Contention of the counsel was rightly rejected by

the Trial Court that provisions of Section 43 of the Act only were attracted

and applicable. When there is specific information that narcotics drugs

were concealed at a particular place, it is immaterial whether the said

place is a public place or private place, provision of Section 42 of the

NDPS Act would apply. Since the information was not recorded in

writing, there was violation of Section 42 (1) of NDPS Act.

7. Regarding recovery from the car in question, again, the Trial

Court was of the opinion that it violated Section 42 of the NDPS Act. It

referred to Panchnama (Ex.PW-1/C), wherein it was mentioned "before

the start of search of the car, officers disclosed to S/Shri Ajit Singh and

Kulwant Singh that they had reasons to believe that in the car narcotics

drugs have been concealed and they want to search this car.......‟‟.

Inference can be drawn that officers of NCB had specific information

about the concealment of the narcotics drugs in the car. Since the officer

of NCB had reasons to believe that the respondents were in possession of

narcotics drugs in the car, they were supposed to comply with the

provision Section 42 (1) of the Act i.e. they should have recorded the

information in writing. As the said information was not reduced into

writing, there was violation of Section 42 (1) of the NDPS Act. In para

No. (29) of the judgment, the Trial Court categorically recorded that

learned PP for NCB had fairly and frankly conceded that there was

violation of Section 42 (1) (2) of the NDPS Act so far as recovery of

narcotics drugs from the car was concerned. Learned counsel for the

appellant attempted to wriggle out of concession stating that the learned

PP could not have given such concession on legal issue.

8. Again, regarding recovery of narcotics drugs from room No.5

of the Hotel Gautam conducted on 16.06.1987, the Trial Court referred to

the statements of respondent No.3- Ajit Singh (PW-13/A and PW-13/B)

recorded under Section 67 of the NDPS Act on 15.06.01987 and

16.06.1987 respectively as well as statement of PW-13 (B.C.Gogene). In

the statement of Ajit Singh recorded on 15.06.1987, there was no whisper

regarding recovery of heroin effected from Panchsheel Inn as well as from

the car in question. In his statement recorded on 16.06.1987 (Ex.PW-

13/B), it was mentioned that respondent No.3- Ajit Singh delivered 10

grams of heroin on 15.06.1987 to respondent No.5 in Hotel Gautam. This

plea does not inspire confidence as both Kulwant Singh and Ajit Singh

were under surveillance for the last 15-20 days. Had they gone to Hotel

Gautam on 15.06.1987 to deliver narcotics to him, the officers of NCB

must have apprehended them then and there. There is no positive evidence

as to when, at what time and by what mode Ajit Singh and Kulwant Singh

had delivered 10 grams of heroin to respondent No.5 on 15.06.1987 at

Hotel Gautam. The Trial Court rightly concluded that before conducting

the search of the room at Hotel Gautam, Empowered Officer was under

legal obligation to comply with the provision of Section 42 (1) as well as

42 (2). Since the said provisions were not complied with, there was a

violation of the said Sections.

9. The findings of the Trial Court regarding violation of Section

50 of the NDPS Act do not suffer from any irregularity. The car in

question was within the reach of the respondents. They had parked it

within the area of Panchsheel Inn. Allegedly key of the car was made

available by Ajit Singh before search of the car. Provision of Section 50

were applicable before search of the room No.10, Panchsheel Inn; search

of Ajit Singh and Kulwant Singh; car and room No.5, Hotel Gautam.

Similarly, findings of the Trial Court for violation of Section 57 are based

on proper appraisal of the evidence. It was rightly held that the document

(Ex.PW-2/A) was not a report under Section 57 of the NDPS Act.

Davinder Dutt, author of the document was not examined. He was neither

the seizing officer nor the officer who arrested the respondents. There is

inconsistent version whether Davinder Dutt was present at the spot or not.

PW-11 and PW-13 testified that Davinder Dutt was present at the spot but

the prosecution case was that he was never present at the spot. Therefore,

it was the duty of the seizing officer, PW-1 to send the report about

seizure and arrest to his immediate officer superior to him. Since it was

not done, there was non-compliance of the Section 57 of the NDPS Act.

10. In „Directorate of Revenue and Anr. Vs. Mohammed Nisar

Holia‟, 2008 (2) SCC 370, the Supreme Court held :

14. ".............

If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefore must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance. It is also possible to hold that rigours of the law need not be complied with in a case where the purpose for making search and seizure would be defeated, if strict compliance thereof is insisted upon. It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefore coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of

privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or house keeping of the room, the guest is entitled to maintain his privacy. The very fact that the Act contemplated different measures to be taken in respect of search to be conducted between sunrise and sunset, between sunset and sunrise as also the private place and public place is of some significance. An authority cannot be given an untrammeled power to infringe the right of privacy of any person. Even if a statute confers such power upon an authority to make search and seizure of a person at all hours and at all places, the same may be held to be ultra vires unless the restrictions imposed are reasonable ones. What would be reasonable restrictions would depend upon the nature of the statute and the extent of the right sought to be protected. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in a case of this nature, the least that a court can do is to see that such a right is not unnecessarily infringed. Right of privacy deals with persons and not places.

17. This Court times without number has laid great emphasis on recording of reasons before search is conducted on the premise that the same would the earliest version which would be available to a court of law and the accused while defending his prosecution. The provisions contained in Chapter IV of the Act are a group of sections providing for certain checks on exercise of the powers of the concerned authority which otherwise would have been arbitrarily or indiscriminately exercised. The statute mandates that the prosecution must prove compliance of the said provisions. If no evidence is led by the prosecution, the Court will be entitled to draw the presumption that the procedure had not been complied with. For the said purpose, we are of the opinion that there may not be any distinction between a person's place of ordinary residence and a room of a hotel.

19. In the instant case, the statutory requirements had not been complied with as the person who had received the first information did not reduce the same in writing. An officer who received such information was bound to reduce the same in writing and not for the person who hears thereabout........

18. "...........

If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised it on the strength of such unrecorded information, would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused."

11. In „Kishan Chand vs. State of Haryana‟, AIR 2013 SC 357,

the Supreme Court held :

"16. We are unable to contribute to this interpretation and approach of the Trial Court and the High Court in relation to the provisions of Sub-section (1) and (2) of Section 42 of the Act. The language of Section 42 does not admit any ambiguity. These are penal provisions and prescribe very harsh punishments for the offender. The question of substantial compliance of these provisions would amount to misconstruction of these relevant provisions. It is a settled canon of interpretation that the penal provisions, particularly with harsher punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The doctrine of substantial compliance cannot be called in aid to answer such

interpretations. The principle of substantial compliance would be applicable in the cases where the language of the provision strictly or by necessary implication admits of such compliance.

27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja, the theory of "substantial compliance" would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.

21. When there is total and definite non-compliance of such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance.

22. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure

that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance of these provisions in their entirety, the Court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance of the provision.

23. Reverting to the facts of the present case, we have already noticed that both the Trial Court and the High Court have proceeded on the basis of substantial compliance and there being no prejudice to the accused, though clearly recording that it was an admitted case of total non-compliance. The statement of PW7 puts the matter beyond ambiguity that there was 'total non-compliance of the statutory provisions of Section 42 of the Act'. Once, there is total non-compliance and these provisions being mandatory in nature, the prosecution case must fail.

24. Reliance placed by the learned Counsel appearing for the State on the case of Sajan Abraham (supra) is entirely misplaced, firstly in view of the Constitution Bench judgment of this Court in the case of Karnail Singh (supra). Secondly, in that case the Court was also dealing with the application of the provisions of Section 57 of the Act which are worded differently and have different requirements, as opposed to Sections 42 and 50 of the Act. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requirement to be adhered to 'pre-search'. The question of sending it immediately thereafter does not arise in the present case, as it is an admitted position that there is total non-compliance of Section 42 of the Act. The sending of report as required

Under Section 57 of the Act on 20th July, 2000 will be no compliance, factually and/or in the eyes of law to the provisions of Section 42 of the Act. These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Sections 42, 50 and 57 of the Act. They are neither inter-linked nor inter-dependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases."

12. Besides above, it is significant to note that no independent

public witness has supported the prosecution on material facts. Jai Parkash

Saini and Uttam Singh, independent witnesses of recovery from room

No.5, Hotel Gautam turned hostile. They were cross-examined after

Court‟s permission but nothing material could be extracted to establish the

guilt of the accused. PW-7 (Jug Lal Prashar) also resiled from his previous

statement and did not support the case of the prosecution at all. In his

cross-examination, after seeking permission of the Court, he revealed

nothing to point an accusing finger against the accused. The prosecution

did not examine independent witness PW- Vishan Dutt. The evidence of

the official witnesses is to be perused with great care and caution. It is

unbelievable that the NCB officers who were having surveillance over

Ajit Singh and Kulwant Singh for the last 10-15 days would allow

respondent No.1 to escape so easily from the toilet thorough ventilator.

Room No.10 was situated on the first floor of the Inn and it was highly

difficult for respondent No.1 to escape through the ventilator and

disappear. Nothing has come on record if any attempt was made to find

out his whereabouts thereafter. Even the ownership of the car in question

has not been established. The vehicle was found registered in the name of

S.K.Malhotra. He was not examined to depose as to whom he had sold the

vehicle in question. Name of Ajit Singh and Kulwant Singh did not appear

in the record of the Directorate of Transport as registered owners. There is

not a whisper in the statements of PWs that when Ajit Singh and Kulwant

Singh had entered the room No.10, they had any card board box with

them. The PWs immediately went inside the room and during short

interval, there was hardly any time to deliver the narcotics & also to

conceal them.

13. Law relating to appeal against acquittal is very clear. The

standards to be applied by the High Court while considering an appeal

against acquittal is one where the prosecution establishes substantial and

compelling reasons, which by and large are confined to serious or grave

mis-appreciation of evidence, wrong application of law and an approach

which would lead to complete miscarriage of justice. In the present case,

the Trial Court listed various grounds on which it acquitted the

respondent/accused. All of them, to my mind, are reasonable and none of

them can be termed as misapplication of law or wrongful appreciation of

the evidence placed before the Court by the prosecution.

14. Appeal against the acquittal is considered on slightly

different parameters compared to an ordinary appeal preferred to this

Court. When an accused is acquitted of a criminal charge, a right vests in

him to be a free citizen and this Court is cautious in taking away that right.

The presumption of innocence of the accused is further strengthened by

his acquittal after a full trial, which assumes critical importance in our

jurisprudence. The Courts have held that if two views are possible on the

evidence adduced in the case, then the one favourable to the accused,

should be adopted. In „State of Uttar Pradesh vs. Nandu Vishwakarma‟,

(2009) 14 SCC 501, Supreme Court held :

"23. It is a settled principle of law that when on the basis of the evidence on record two views could be taken- one in favour of the accused and the other against the accused- the one favouring the accused should always be accepted. This Court in „Chandrappa vs. State of Karnataka‟, SCC 432 observed as follows :

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, „substantial and compelling reasons‟, „good and sufficient grounds‟, „very strong circumstances‟, „distorted conclusions‟, „glaring mistakes‟, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of „flourishes of language‟ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) It two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court".

15. Considering all the facts and the circumstances of the case, I

find no infirmity in the impugned judgment. The appeal is unmerited and

is consequently dismissed. The Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE MAY 23, 2013/tr