Narcotics Control Bureau vs Gurnam Singh & Anr.
2013 Latest Caselaw 4487 Del

$-
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               DECIDED ON : 27th SEPTEMBER, 2013

+                          CRL.L.P. 121/2012
       NARCOTICS CONTROL BUREAU                           ..... Petitioner
                           Through :   Mr.B.S.Arora, Advocate.

                           versus

       GURNAM SINGH & ANR.                              ..... Respondents

                   Through :           Mr.S.S.Das, Advocate.


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

S.P.Garg, J. (Open Court)

1. Narcotics Control Bureau (the petitioner) has filed Criminal

Leave Petition to challenge a judgment dated 30.08.2011 of learned

Special Judge, NDPS, New Delhi by which the respondents - Gurnam

Singh and N.C.Chellathambi were acquitted of the charges. The leave

petition is contested by the respondents. I have heard the learned counsel

for the parties and have examined the record. Allegations against the

respondents were that on or before 27.01.2003, they entered into criminal

conspiracy with Lal Man Pua (Chinese national), Gurbachan Singh,

Devinder Singh and Shekhar (not arrested) to illegally acquire, possess

and deal with controlled substance. On 27.01.2003, the Philippine Drug

Enforcement Agency (in short PDEA) seized one ton of Ephedrine, a

controlled substance, which was exported by the respondents in

furtherance of criminal conspiracy from India to Manila, Philippine.

During the course of investigation both the respondents were arrested and

their statements under Section 67 of NDPS Act were recorded. It

transpired that the Ephedrine was consigned to Philippine through M/s.

Gray Fox Inc., RZ-F-208, Nihal Vihar, Sayad Nangloi, New Delhi to M/s.

Premier Sea and Air Cargo Movers Corporation, Manila, Philippine in

container No. HDMU-2294884 through shipper Aquarius Logistic Pvt.

Ltd., 409, Ansal Tower, Nehru Place, New Delhi. The documents received

from the concerned agency from Manila were forwarded by the NCB

(Headquarters) to the Zonal Director, Delhi Zonal Unit, NCB. The

investigation was taken over by Mangal Das, who visited the premises

RZ-F-208, Nihal Vihar, Sayad Nangloi, New Delhi on 18.03.2004 and

found respondent No.1 - Gurnam Singh present there. Respondent No.1

in his voluntary statement under Section 67 of NDPS Act on 18.03.2004

disclosed that his brother-in-law Devinder Singh and younger brother

Gurbachan Singh had floated M/s. Gray Fox Inc. and two other companies

by the name of Sidana's Collection and Singh Cargo (Air and Sea). He

further disclosed that he was working in Singh Cargo and used to deliver

letters to M/s. Impex Trade Agencies, 37B, Pocket-A, Ashok Vihar Phase-

III, Delhi run by Gurnam Singh and Virender Singh. The Investigating

Officer visited B-2-B Block, Janakpuri, New Delhi, where Devinder

Singh was residing with his family. During search of the said house,

certain cargo bills and debit notes of Aquarius Logistic Pvt. Ltd. were

recovered and seized. In his second statement under Section 67 of NDPS

Act on 19.03.2004. Respondent No.1 revealed that he was aware that

Ephedrine was sent by his brother-in-law Devinder Singh and younger

brother Gurbachan Singh by concealing it along with bleaching powder

arranged through M/s. Impex Trade Agencies. Statements of Gurnam

Singh and Virender Singh, owner of M/s. Impex Trade Agencies were

recorded under Section 67 of NDPS Act and they revealed that they had

arranged the bleaching powder from New National Cohan Company,

Tilak Bazaar, Delhi and were aware that Devinder Singh had concealed

Ephedrine along with the said bleaching powder and exported to

Philippine. It also emerged that M/s. Impex Trade Agencies was dealing

with respondent No.2 - N.C.Chellathambi for procuring orders for supply

of stainless steel utensils from Myanmar for the last 3 - 4 years and they

were aware that respondent No.2 was exporting bleaching powder through

Devinder Singh's clearing agency Singh Cargo. They introduced

respondent No.2 to Devinder Singh and arranged for the bleaching

powder to be consigned to Manila. Statement of respondent No.2 was

recorded under Section 67 of NDPS Act and he admitted that Ephedrine

was sent by putting the same in bleaching powder to Manila for which he

got ` 2 lacs to ` 3 lacs as commission. After recording the statements of

the witnesses conversant with the facts, the respondents were charge-

sheeted under Sections 29 & 25A of NDPS Act. To establish the charges,

prosecution examined thirteen witnesses. In their 313 statements, the

respondents pleaded false implication. Second respondent appeared as

defence witness as DW-2. DW-1 (C.Kali Amma) and DW-3 (Ashwani

Kumar Gaind) were examined in defence. After appreciating the evidence

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

impugned judgment, for the detailed reasons acquitted the respondents of

the charges.

2. On 27.01.2003, Ephedrine, weighing a ton, was seized by

PDEA at Manila (Philippine) allegedly exported through M/s. Gray Fox

Inc., RZ-F-208, Nihal Vihar, Sayad Nangloi, New Delhi. No information

was conveyed by PDEA to the Indian authorities soon after its seizure on

27.01.2003. Only during a conference held in Bangkok, Mr.A.P.Kala,

Deputy Director General (Enforcement) was apprised about the seizure of

Ephedrine on 27.01.2003. He thereafter, on 31.12.2003 wrote a letter

(Ex.PW-13/A) to Mr.Avenido, Director General, PDEA for a detailed

report along with copies of the statements and relevant documents.

Pursuant to the said letter, vide letter dated 06.02.2004 (Ex.DX), he

received documents from the said agency collectively exhibited (PW-

13/B) running into 50 pages. It appears that no immediate steps were

taken to unearth the conspiracy soon after NCB came to know about the

seizure of Ephedrine during Bangkok conference. PW-13 (A.P.Kala)

admitted in the cross-examination that he did not see the case property and

no efforts were made to bring it into India. He had no personal knowledge

about the company who had exported the contraband. The documents

were not called from the said country through Letter of Rogatory. PW-7

(Mangal Dass), the Investigating Officer, also admitted in the cross-

examination that he had not seen the case property i.e. Ephedrine at any

point of time and had not requisitioned or asked the Philippine Authorities

to send it or its samples to India. He was not aware if any officer / staff of

NCB had gone to Manila for the purpose of investigation in this case. PW-

8 (Shankar Rao), who was overall incharge of the investigation, admitted

that he had not seen the substance at any point of time. He however,

admitted that he had never given any directions either to his subordinate

staff or to the Philippine counterpart to send the substance or sample in

the present case to India. Similarly is the testimony of PW-9 (Sandeep

Kumar), who also admitted that the case property was not seen at any

point of time physically either in India or in Manila. He disclosed the he

had visited Manila for discussion with PDEA. Oral discussions were

reduced into writing and were a matter of record in the office of NCB but

are not part of the judicial file. He elaborated that they could not see the

case property or sample at Manila due to legal complications despite their

efforts. No permission was sought to draw the samples of the substance to

bring it to India. Apparently, none of the witnesses was able to physically

inspect the case property i.e. Ephedrine and it was never brought to India

and exhibited in the Court. The prosecution also did not bring on record

any document to show the outcome of the investigation carried out by

PDEA at Manila or to place on record the judgment whereby any

individual with whom the respondents had allegedly conspired was held

responsible / guilty for importing the controlled substance from India. The

prosecution did not examine any witness from PDEA to establish recovery

of any controlled substance. In the absence of case property / sample and

in the absence of cogent and reliable evidence of its recovery, the

respondents cannot be held responsible for the controlled substance

allegedly recovered by PDEA at Manila. The Trial Court has discussed

the relevant contentions of the petitioner's counsel and has dealt with

them minutely with valid reasoning. The prosecution did not explain as to

why Devinder Singh, brother-in-law of respondent No.1 who was the

Director in M/s. Gray Fox Inc. was not implicated despite availability.

The prosecution could not produce any cogent material if respondent No.1

had any active role to play in M/s. Gray Fox Inc. or was responsible for its

day to day affairs. Mere presence of respondent No.1 at the office of M/s.

Gray Fox Inc. at the time of visit of PW-7 (Mangal Dass) is not enough to

connect him with M/s. Gray Fox Inc. PW-7 admitted that before

summoning Gurnam Singh, premises of M/s. Gray Fox Inc. were searched

but no incriminating article was recovered from there. Despite having

come to know that M/s. Gray Fox Inc. was constituted by Devinder Singh

as Director, no proceedings were initiated against them. The premises at

Nihal Vihar, Sayad Nangloi, New Delhi belonged to Devinder Singh's

father-in-law and it were a residential premises occupied by Devinder

Singh's father-in-law and family. Devinder Singh and his family were

staying at another place at Janakpuri. He admitted that the occupants at

RZ-F-208, Nihal Vihar, Sayad Nangloi, New Delhi were residing since

long. PW-7 was unable to disclose as to from where Devinder Singh used

to perform his day to day affairs of the company M/s. Gray Fox Inc.

3. Number of prosecution witnesses resiled from their previous

statements and turned hostile. No independent public witness was

associated. The whole case of the prosecution is based only upon the

statements recorded under Section 67 of NDPS Act of the respondents and

various other witnesses. However, the Trial Court came to the conclusion

that the statements were not voluntary. Detailed reasons have been

narrated in the impugned judgment to arrive at this conclusion. Moreover,

there was no corroborating material in support of the statements allegedly

recorded under Section 67 of the NDPS Act. The prosecution did not

investigate as to from where the contraband was procured by the

respondents. No call details were placed on record. The relevant

documents showing the export were not collected and proved. There is no

evidence as to how much consideration was received for the alleged

export of contraband, and if so, by whom and when. The prosecution was

unable to adduce clinching evidence to establish when and under what

circumstances, the respondent No.2 made statement under Section 67 of

NDPS Act. He appeared as DW-2 in his defence and categorically denied

to have made any such statement voluntarily.

4. Burden to prove the case beyond reasonable doubt was upon

the prosecution. The provisions of the Act and the punishment prescribed

therein being indisputably stringent, the extent of burden to prove the

foundational facts on the prosecution i.e. 'proof beyond all reasonable

doubt' would be more onerous. A heightened scrutiny test would be

necessary to be invoked. It is a well settled principle of criminal

jurisprudence that more serious the offence, the stricter is the degree of

proof. Defence witnesses have to be given weightage at par with that of

the prosecution witnesses.

5. Taking into consideration all these facts and circumstances, I

find no illegality or material irregularity in the impugned judgment which

is based upon fair appraisal of the evidence and needs no interference. The

leave petition is unmerited and is dismissed. Trial Court record be sent

back forthwith.

(S.P.GARG) JUDGE SEPTEMBER 27, 2013/tr