Delhi High Court

Narcotics Control Bureau vs Ramesh Kumar on 29 May, 2013

Author: R.V. Easwar

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Reserved on:9th May, 2013
%                                    Date of Decision: 29th May, 2013

+      CRL.A. 419/1997

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

                         versus

       RAMESH KUMAR                                ..... Respondents
                  Through:           Mr. Chetan Lokur, Advocate.


CORAM:
MR. JUSTICE R.V. EASWAR

                            JUDGMENT

R.V. EASWAR, J.:

This is an appeal filed by the Narcotics Control Bureau („NCB‟,

for short) against the judgment dated 16.8.1997 in sessions case

No.22/1995, acquitting the respondent, Ramesh Kumar from the charges

made against him under the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter shortly referred as „NDPS Act‟).

2. The case of the prosecution is that the NCB received secret

information on the basis of which surveillance was mounted on room

No.116, Hotel Janpath, New Delhi. A search party knocked at the door

of the room and the door was opened by accused Ramesh Kumar. Two

public witnesses were called as panch witnesses to witness the search.

After giving due notice under section 50 of the NDPS Act, a search of

the accused and the room was undertaken, which resulted in the seizure

of a black polythene bag containing a powdered white substance. The

powder was tested with the help of the field testing kit. It showed

positive for diacetyl morphine/heroin which is a banned drug under the

Act. The search party drew two samples from the drug, each weighing

five grams and they were kept in separate small polythene packets and

sealed with a paper slip bearing the signature of the panch witnesses as

also the signature of the accused and the gazetted officer and sealed by

NCB. The balance contraband was packed in a cardboard box and

sealed by NCB. All other formalities, such as drawing up of the

panchnama were carried out on the spot. A statement from the accused

Ramesh Kumar was recorded by PW5, which was written in the

handwriting of the accused himself and running into 10 pages. It may

be mentioned here that this statement was retracted by the accused while

he was in judicial custody and a copy of the same was sent to the trial

court on 14.6.1995.

3. The CRCL reported positive for the banned drug. Thereafter

charges were framed against Ramesh Kumar on 21.9.1995 by the trial

court for having found to be in illegal and unlawful possession of 500

gms of heroin in contravention of section 8 of the NDPS Act and

thereby prima facie guilty of the offence under section 21 of the Act.

4. The prosecution examined 11 witnesses. In the statement

recorded from the accused under Section 313 of the Cr.P.C., he stated

that the room in the hotel was booked in the name of Ajay Karan and

not in his name and that the seizure was manipulated and he was

brought into the room subsequent to the seizure and falsely implicated in

the case. He stated that he was tortured and coerced into giving the

statement under section 67 of the Act (Ex.PW5/A) and that there was no

material to connect him with the possession of the banned drug or with

the occupation of the room in the hotel.

5. In support of the defence, 3 witnesses were examined. Two of

them were the manager and supervisor of Hotel Janpath. The last

witness was the owner of house No.C-305, Vikas Puri, New Delhi

which was owned by one Pradeep Kumar Soni. This house was

searched after the accused made the statement in the hotel. A

panchnama in respect of the search of the aforesaid house was prepared

and according to the accused nothing incriminating was recovered from

the house.

6. The preliminary objection of the accused raised under sections 42,

50 and 57 of the NDPS Act to the effect that the mandatory provisions

of these sections were not satisfied, was rejected by the trial court. It is

not necessary to reproduce these objections and the findings of the trial

court in any detail since that part of the judgment of the trial court has

become final and the accused has not filed any appeal against those

findings. The findings of the trial court with regard to the question

whether the prosecution has successfully established that the accused

was in conscious possession of the banned drug when it was recovered

from him are contained in paragraphs 22 onwards of the judgment. The

trial court found that though the case of the prosecution was that the

room had been booked in the hotel in the name of one Ajay Karan, this

fact did not find mention in the panchnama or in the complaint or even

in the examination-in-chief of PW1, who was one A. P. Singh, called in

as a panch witness. According to the trial court there was no

explanation as to why no investigation was carried out to find out the

identity and whereabouts of Ajay Karan. According to the trial court, it

was in evidence that the search party checked the guest register of Hotel

Janpath on reaching the hotel at about 2.30 p.m. and found that room

No.116 was booked in the name of Ajay Karan. The trial court noticed

that the defence witnesses, namely, the manager and supervisor of Hotel

Janpath had deposed that once the room is booked in the name of a

guest, a guest registration card is allotted to the guest and at the time of

surrendering/vacating the room, the guest has to surrender the key of the

room along with the guest registration card. The trial court found from

the evidence of PW11, who was Jacob Paul, gazetted officer, that no

enquiry was made by the search party as to when the room was occupied

or whether any snacks or food were sent to the occupant of the room.

PW1 had also admitted that no waiter was examined to ascertain

whether any food/snacks were sent to the room. The search party,

according to the admission made by Jacob Paul (PW11) had not lifted

any finger prints from the hotel room and no opinion of any handwriting

expert had been taken to identify the person who had booked the room,

by making a comparison of the same with the signature and the

handwriting of the accused. It was also argued before the trial court that

there was no evidence brought on record to establish that Ajay Karan

and the accused Ramesh were one and the same person and that no

paper, file, bag or document or any other thing was recovered so as to

connect the accused with the room except the sole polythene bag lying

under the cot containing the contraband.

7. The trial court was of the view that having regard to the evidence

of PW11, the prosecution had failed to establish that the accused who

was present in the room at the relevant time, was in conscious

possession of the recovered contraband. It opined that if the accused

had booked the room, he would have been in possession of the guest

registration card as deposed by the defence witnesses; however no such

card was recovered from the accused. Moreover no luggage or any

other item belonging to the accused was also recovered from the room.

No fingerprints were taken from the room and no efforts were made by

the prosecution to trace the whereabouts of Ajay Karan. According to

the trial court, the prosecution could not establish that Ajay Karan and

the accused were one and the same person. The trial court placed strong

reliance on the fact that the guest register was not produced before the

court, even though PW3 had gone to the hotel on 18.5.1995 where he

was orally told that the same would be produced by the hotel staff at the

relevant time in court. The trial court noted that the request allegedly

made by PW3 to the hotel staff was only a one time oral effort and there

was nothing in writing to support the claim that such a request was

made. This, according to the trial court, "cast a serious doubt as to

whether the prosecution in fact had made any effort to retrieve this

guest registration card as admittedly no such writing to the said effect

was done". The trial court thereafter referred to several judgments,

including the judgment of the Supreme Court wherein a distinction

between mere possession and conscious possession was pointed out and

it was held that unless conscious possession is shown, the accused

cannot be convicted.

8. It appears that one of the points urged before the trial court was

that the possibility of tampering with the samples cannot be ruled out,

but this argument did not find favour with the trial court which held that

the possibility of tampering with the samples was totally excluded.

9. In fine, the trial court acquitted the accused.

10. The main points urged by the learned counsel for the appellant are

that: -

(a) the accused ought to have been convicted on the basis of his own

statement made on 17.5.1995, the date of search and this aspect of the

matter was overlooked by the trial court;

(b) there is no finding by the trial court that the confession made on

17.5.1995 was under coercion, threat or force;

been proved under section 313 of the Cr.P.C.; and

(d) the presumption as to the mental state of the respondent referred

to section 35 of the Act operates in this case, and has not been displaced

by the respondent.

11. It was further urged on behalf of the appellant that it is wrong to

show that the respondent was falsely implicated in the case, that the

recovery of the narcotics is supported by the panchnama, that the

respondent did not retract from the confession at the time of remand

which was the first available opportunity and that the retraction in the

form of a letter written by the accused from the jail does not amount to a

valid retraction.

12. The learned counsel for the respondent submitted that the onus

was on the appellant to show that the statement made under section 67

of the Act was voluntary which onus has not been discharged in the

present case. He submitted that there was nothing on record to connect

the respondent with possession of room No.116, Hotel Janpath or with

any of the articles found/recovered therefrom. In this connection he

pointed out that nobody from the hotel was examined by the prosecution

in an attempt to connect the respondent with the said room. He strongly

supported the finding of the trial court that no investigation had been

carried out to show that the identity of Ajay Karan and the present

respondent Ramesh were one and the same. He pointed out that the

guest register or the photograph of the person in whose name the room

was booked was not shown to the trial court or exhibited, as per the

statement of PW11, nor were the fingerprints from the room lifted.

With regard to the validity of the confession made under section 67, the

learned counsel for the respondent submitted that the confession was

made while in custody of the customs officials and therefore it could not

have been voluntary and in any case it was retracted at the earliest

opportunity and therefore cannot be relied upon. He also relied on the

fact that no personal effects of the respondent were seized either from

the hotel room or from the house in Vikas Puri, which was also searched

after the search of the hotel room.

13. In his rejoinder, the learned counsel for the appellant raised a plea

that the so-called retraction was not hand-written, but was typed and

was "smuggled into the record" and therefore no credibility should be

attached to the same. He pointed out that the confession made under

section 67 of the Act refers to certain facts which are in the exclusive

knowledge of the respondent and therefore it must be taken to be a true

confession. According the learned counsel, a mere statement retracting

the earlier confession is not sufficient to exonerate the accused and that

the accused ought to have entered the witness box to retract from the

earlier confession, which he has not done in the present case. The

allegation that the confession was obtained by coercive methods does

not hold water since there is no evidence of any external injury on the

body of the respondent as clarified by the report of the DDU hospital

and thus the version of the accused that he was tortured into submission

stands falsified.

14. In support of the rival arguments, both sides cited and relied upon

several authorities which will be noticed at the appropriate juncture.

15. I have carefully considered the rival contentions in the light of the

judgment of the trial court and the evidence on record. This is an appeal

against acquittal. In an appeal against acquittal, it is well-settled that the

jurisdiction of the appellate court is limited, as held by the Supreme

Court in M. S. Narayana Menon Vs. State of Kerala (2006) 6 SCC 39

and Mahadeo Laxman Sarane Vs. State of Maharashtra (2007) 12

SCC 705. It was observed that the appellate court shall not reverse a

judgment of acquittal only because another view is possible to be taken.

However, if the trial court has adjudged the evidence on an incorrect

premise or has taken an irrational or perverse view of the evidence on

record or has ignored relevant material or has taken note of irrelevant

material, then it is well within the jurisdiction of the appellate court to

reverse the judgment of acquittal. I shall therefore approach the verdict

of the trial court having in mind the aforesaid well-settled principles.

16. The trial court has held that the prosecution has failed to establish

that Ajay Karan and the respondent are one and the same person and

that it has even failed to prove the identity of Ajay Karan. Another

finding of the trial court is that the prosecution could not establish that it

was the respondent who was the registered guest of Hotel Janpath, room

No.116 or that it was he who paid the hotel bills. The finding is that no

guest registration card was recovered from the respondent and even the

guest register was not produced before the trial court. The trial court

has pointed out that no effort was taken by the prosecution, except an

oral request allegedly made to the hotel authorities, to produce the guest

order to link the respondent with the occupation of the room. These

findings have not been sought to be rebutted by the learned counsel for

the appellant, but his argument is that it was for the respondent to show

how he came to be in the room and how he came to open the door of the

room when the search party knocked the door of the room. A perusal

of the defence statement made under section 313 of the Cr.P.C. shows

that the respondent has stated the he was carrying on some wool

business from 1986 and it was in that connection that he had come to the

room to meet Ajay Karan. The prosecution is under an obligation to

prove the guilt of the accused beyond any reasonable doubt. In the

present case, the evidence on record creates a reasonable doubt about

the involvement of the respondent in the offence. Firstly, the room was

not booked in the name of the accused. It was in the name of Ajay

Karan, the identity and whereabouts of whom were not established by

the prosecution. The prosecution also failed to make any attempt to

show that the room was in fact booked in the name of the respondent, by

producing the guest registration card or the guest register. The

prosecution also did not attempt to find out who paid the bill for the

room. No bearer or waiter or room service boy was examined by the

prosecution in a bid to prove that the respondent was occupying the

room in his own right and was even in conscious possession of the

prohibited article. The presumption under section 54 of the Act that the

accused has committed an offence under the NDPS Act because he was

found in possession of the offending articles, which he failed to account

for satisfactorily, is a rebuttable presumption. In order to invoke the

presumption it must first be proved that the offending articles were

recovered from his possession. "Possession" means conscious

possession of the accused. Once that is shown, then the presumption

gets triggered and it is thereafter for the accused to prove the contrary.

17. Arguments were addressed by both the sides on the question

whether the seized article was found in the possession of the respondent.

According to the learned counsel for the appellant, conscious possession

by the respondent has been fully established. When the search party

knocked at the door of the room, it was the respondent who opened the

door. The plastic bag containing the contraband was found under the

cot and thus it was recovered from the respondent. The room was in the

occupation of the respondent and therefore the plastic bag containing the

contraband can be stated to be in his conscious possession. So ran the

logic of the argument. The question is whether the fact that the accused

was found in the room can connect him to the possession of the

contraband. That would have been possible, in my opinion, only if it

was established that the room was in the possession of the accused.

There is no evidence to show that the room was in the possession of the

respondent; the evidence only shows that he was found in the room

when the search party entered it. The respondent can be said to have

been in possession of the room and consequently in conscious

possession of the contraband, only if the room was registered/booked in

his name. Admittedly, there is no evidence to show that the room was

booked in the name of the respondent. On the contrary, the evidence

shows that the room was booked in the name of Ajay Karan. In fact, it

was the case of the prosecution that the room was booked in the name of

Ajay Karan and there was no attempt to show, by producing the guest

name of the respondent.

18. In the statement made by the accused under section 313 of the

Cr.P.C., he has stated that he was dealing in second grade woollens from

Ludhiana and that in the course of the dealings he was given `2.5 lakhs

by somebody to make purchases. He could not make the purchases and

also failed to return the money. He received a telephone call from the

buyer from abroad who stated that he was sending his representative to

India and the matter could be settled. Accordingly, one Ajay Karan

came to Delhi in May 1995 and telephoned to him (the accused) twice

or thrice from Delhi at which the accused agreed to meet him. Ajay

Karan called the accused on 16.5.1995 and asked him to meet him at

room No.116, Hotel Janpath, New Delhi. The accused Ramesh Kumar

came by train from Punjab, was received by a relative who dropped him

in Patiala House Courts where the accused had to ascertain the date of

an earlier case pending against him. In the meantime he had sent a

message to the hotel that he would be coming there only after

completing the work at the Patiala House Courts. Thereafter, he was

picked up by the NCB officials from Patiala House Courts and taken to

Hotel Janpath where he was asked to sign certain blank papers. This

was the statement given by Ramesh Kumar, the accused, under section

313. He denied that he was in possession of the hotel room and stated

that either Ajay Karan had implicated him at the instance of someone

known to him or he himself might be a wrong man on whom the NCB

officers foisted the case. He denied the room was ever in his possession

or occupation. He also stated that the statement which he gave in

writing at Hotel Janpath was torn off at the NCB office where he was

made to write a dictated statement.

19. In Mohd. Alam Khan Vs. Narcotics Control Bureau and Anr. JT

1996 (2) S.C. 636, it was held by a three judge bench of the Supreme

Court that in order to invoke section 66 of the NDPS Act, the

prosecution should establish that the accused was the owner and in

actual possession of the premises and since the prosecution has failed to

establish the ownership of the flat as belonging to the accused, there can

be no conviction under the said Act. In that case the agreement

executed by the accused purporting to be an agreement signed by both

the accused and the contractor/builder was recovered in the course of the

search and on the basis of the agreement it was contended by the NCB

that the accused was the owner of the premises from which the

contraband articles were recovered. The Supreme Court held that the

prosecution should have produced independent evidence to establish

that the accused was the owner of the flat in question or by producing

documents from the concerned office of the registrar or by examining

the neighbours. Since there was no evidence to show that the flat

belonged to the accused, the Supreme Court held that it cannot be

concluded that the recovery was made from the flat belonging to the

accused. The case before me is a fortiori. No documentary evidence

was produced by the prosecution to show that the accused was in lawful

possession of the room so that the contraband could be connected to him

as being in his conscious possession.

20. In Madan Lal and Anr. Vs. State of Himachal Pradesh 2003 (3)

JCC 1330, a decision cited by the learned counsel for the appellant, five

accused were travelling in a private vehicle from which contraband was

seized. All the five accused were known to each other. It was held that

they were in conscious possession of the contraband and they could not

displace the presumption. This judgment is clearly inapplicable to the

present case. In the cited case, all the five accused knew about the

transportation of charas and each was found to have played a role in the

transportation and possession with the conscious knowledge of what he

was doing. That is not the factual position in the case before me. In

Jagdish Badhroji Purohit Vs. State of Maharashtra (1998) 7 SCC 270,

another decision cited on behalf of the appellant, the narcotic substance

was recovered from the factory belonging to the accused who was the

sole proprietor. The accused was found to be absconding and appeared

after two months. He could not explain how the offending articles came

to be stored in his factory. In the case before me the facts are different.

Herein the hotel room was not even in the possession of the respondent.

Moreover, the circumstances following which he came to the hotel room

were stated by him in the statement made under section 313. Similarly,

in Bahadur Singh Vs. State of Haryana (2010) 4 SCR 402, the poppy

husk weighing 32 kilograms were packed in six packs and all of them

were recovered from the premises of the accused and that too from a

room which was opened by him with a key in his possession. This is an

extreme case and a very clear case for the prosecution where conscious

possession was clearly established. Not only were the articles found in

the house of the accused, but the key of the room was also with the

accused who opened the lock. These cases cited by the learned counsel

for the appellant are factually different from the present case and are

therefore, not applicable.

21. The contention of the learned counsel for the appellant that the

respondent ought to have been convicted merely on the basis of the

statement made by him under section 67 of the NDPS Act, ignoring the

retraction made by him, cannot be accepted. The alleged confession

was made under section 67 of the NDPS Act. Section 67 says that "any

officer referred to in section 42 who is authorised by the Central or

State Government may, during the course of any enquiry in connection

with the contravention of any provision of this Act, interalia, examine

any person acquainted with the facts and circumstances of the case".

Section 42 provides for the power of entry, search, seizure and arrest

without warrant or authorisation. This Section authorises any officer of

the department of central excise, narcotics, customs, revenue

intelligence or any other department of the Central Government,

including para military forces or armed forces empowered generally or

specially by the Central Government or any other officer of the revenue,

drugs control, excise, police or any other department of a state

government who is generally or specially authorised in this behalf, has

the power to search, seize and also detain any person, if he has reason to

believe that such person has committed an offence punishable under the

Act. The only condition is that the officer exercising the power under

section 42 should be an officer superior in rank to a peon, sepoy or

constable. In the present case, the search party consisted of Mukesh

Kullar, Kamal Kant and Jacob Paul. There were two panch witnesses.

Mukesh Kullar was the Director, Delhi Zonal unit of the NCB, R. K.

Puram. Kamal Kant was an intelligence officer of the NCB and Jacob

Paul was a superintendent in the NCB. All of them are officers working

for the appellant. The statement was made on 16.5.1995 by the accused

Ramesh Kumar and was recorded by Pradeep Kumar, IO of the NCB. It

is in the form of question and answer. This statement was retracted on

27.6.1995 by the accused Ramesh Kumar, who was in judicial custody

in Central Jail No.4, Tihar by writing a letter to the Magistrate. In the

retraction, the respondent has stated that he was taken by NCB officers

to Janpath Hotel on 16.5.1995 who obtained his signatures on blank

papers, that the security guards of the hotel who also reached the room

objected to this, that they were threatened by the NCB officers and

finally the NCB officers were able to pacify the security guards by

stating that they will ensure that the incident is not published in the

media and that these circumstances would show that the respondent was

forced to write out a confessional statement which was being retracted

by the application dated 27.6.1995.

22. It has to be remembered that the statement under section 67 of the

Act was made by the accused before the officers of the NCB and

therefore has to be subjected to closer scrutiny than a confession made

to private citizens or officials who do not have investigating powers

under the Act, as was held by the Supreme Court in UOI vs. Bal

Mukund & Ors., (2009) 12 SCC 161, a decision cited by the learned

counsel for the respondent. It was observed by the Court as follows: -

"28. Where a statute confers such drastic powers and seeks to deprive a citizen of its liberty for not less than ten years, and making stringent provisions for grant of bail, scrupulous compliance with the statutory provisions must be insisted upon. While considering a case of the present nature where two persons may barely read and write

Hindi, are said to have been used as carrier containing material of only 1.68% of narcotics, a conviction, in our opinion, should not be based merely on the basis of a statement made under Section 67 of the Act without any independent corroboration particularly in view of the fact that such statements have been retracted."

Earlier in Francis Stanly vs. NCB, (2006) 13 SCC 210, the

Supreme Court observed as under: -

"15. We are of the opinion that while it is true that a confession made before an officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required.

16. We have carefully perused the facts of the present case, and we are of the opinion that on the evidence of this particular case it would not be safe to maintain the conviction of the appellant, and he must be given the benefit of reasonable doubt."

The officers of the NCB who recorded the statement of the respondent

under section 67 constituted the search party and were therefore

interested in the success of the search. The statement, which is alleged

to be a confession made by the respondent, cannot therefore form the

sole basis of the conviction. The statement has been retracted on

29.06.1995 by the respondent by writing a letter to the Magistrate on

that date. That was the earliest effective opportunity which the

respondent got to retract from the earlier statement. I am unable to

uphold the contention of the learned counsel for the appellant that the

respondent should have retracted at the time of his remand or should

have entered the witness box to make a retraction. There is also no

inordinate delay in the retraction. I therefore hold that there is no force