Narcotics Control Bureau vs Praveen Dua & Ors.
2014 Latest Caselaw 1049 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
2.
+                          CRL.L.P. No. 303 of 2013

         NARCOTICS CONTROL BUREAU               ..... Petitioner
                      Through: Mr. Subhash Bansal, Advocate.

                           versus

         PRAVEEN DUA & ORS.                           .......Respondents

         CORAM: JUSTICE S.MURALIDHAR

                           ORDER

% 26.02.2014

1. The Narcotics Control Bureau ('NCB') seeks leave to appeal against

the judgment dated 3rd November 2012 passed by the Special Judge,

NDPS, Patiala House Courts, New Delhi in SC No. 165 of 2008

acquitting the Respondents of the offences under Sections 21, 22, 23 and

29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS

Act').

2. The case of the prosecution was that information had been received

from the DEA, United States of America that one Dr. Brij Bhushan

Bansal (Respondent No.3 herein), resident of Kamla Nagar, Agra was

indulging in large scale smuggling of prescription drugs falling under the

category of Narcotic Drugs and Psychotropic Substances to US and other

countries. On the basis of the said information, the Zonal Director, NCB

prepared a report and constituted teams from the Delhi Zonal Unit

('DZU') for searches at the residence/godown premises of Dr. Bansal at

three locations in Agra and at one location in Delhi i.e. at the

godown/premises of one Praveen Dua (Respondent No.1), an alleged

associate of Dr. Bansal. For raiding the premises of Respondent No.1 at

East of Kailash, New Delhi on 19th April 2005, Mr. R.R. Kumar,

Superintendent, DZU issued a search authorisation in favour of the

Investigating Officer ('IO') Mr. Manoj Kumar Aggarwal.

3. The team headed by the IO comprising of one senior official and two

panch witnesses Mr. Vijay Kumar and Mr. Santosh Tiwari raided the

premises of Respondent No.1 who was running a courier agency under

the name and style of Renaissance Courier Pvt. Ltd. ('RCPL') at the said

premises. After Respondent No.1 gave in writing that he did not require

the presence of any Gazetted Officer/Magistrate, his premises were

searched by the NCB team. The search resulted in the recovery of 57

cardboard boxes containing Diazepam 16,58,000 Nos. (12.405 Kg),

Alprazolam 13,29,000 Nos. (1.816 Kg), Zolpidem 3,26,400 Nos. (3.264

Kg), Codeine 64,720 Nos. (1.8521 Kg). Since Respondent No.1 could

not produce any documentary evidence for lawful possession of the said

drugs, they were seized.

4. Upon service of summons under Section 67 of NDPS Act, Respondent

No.1 is supposed to have made a voluntary statement admitting the

possession of the drugs. He is supposed to have disclosed that the seized

material belongs to Respondent No.3 and that they were to be sent

abroad through his courier agency. Further, he is supposed to have

disclosed that Respondent No.3 used to send consignments of medicines

in cartons to him through one Mr. Raj Kumar Chauhan of AV Xpress

Courier of Agra, which he used to receive personally around midnight.

Respondent No.1 admitted to receiving Rs.65 lakhs as his service

charges from Dr. Bansal by way of 13 self-cheques out of which he got 8

cheques amounting to Rs.40 lakhs encashed and the remaining 5 cheques

of Rs.25 lakhs were lying with his friend Punit Ahuja. On the basis of the

above statement, Respondent No.1 was arrested.

5. On 28th April 2005, Mr. Raj Kumar Chauhan was summoned by the

NCB. He, inter alia, supposedly gave a statement that he had been

sending parcels from Agra to Delhi on behalf of Respondent No.3 for the

last 8 to 10 months to the address of RCPL, 62, Sant Nagar, East of

Kailash but from the previous month, on the directions of Respondent

No.1, the parcels, cardboard boxes consigned by Respondent No.3 were

being delivered at 87, Kallu Mohalla, Garhi, East of Kailash, New Delhi.

Since Respondent No.3 was in judicial custody in some other case under

the NDPS Act in Agra, the said Court in Agra was approached for

permission to examine Respondent No.3. However, he could not give a

statement due to his physical and mental condition.

6. Since the seized drugs were tablets under the brand name PEACE

(10,98,100 tablets) and ALP-1 (6,98,000 tablets) and shown as being

manufactured by M/s. Smith and Kenner Pharmaceuticals Pvt. Ltd, one

of its Directors Mr. S. Jaya Swami (Respondent No.2) was summoned

under Section 67 NDPS Act. Apart from stating that he had started the

said company, Respondent No.2 refused to answer further questions and

was arrested.

7. Charges under Section 22(c), 23 read with Sections 28 & 29 of NDPS

Act were framed against the accused on 16th July 2010. The NCB

examined as many as 19 witnesses. When examined under Section 313

CrPC, the accused pleaded innocence. No evidence was led by any of the

accused.

8. In the impugned judgment dated 3rd November 2012, the learned trial

Court first observed that the four drugs recovered were Schedule H drugs

under the Drugs and Cosmetics, Act, 1940 and Drugs and Cosmetics

Rules, 1945. Except Codeine Sulphate, the other three drugs were also

included in the Schedule to NDPS Act. The Special Public Prosecutor

('SPP') conceded in the trial Court that the Drug Controller General of

India had given an opinion to the NCB in some other cases that Codeine

Sulphate was not a narcotic drug but merely a prescription drug.

Consequently, the case revolved around the fact that Respondent No.1

was found in possession of three other drugs i.e. Diazepam, Zolpidem

and Alprazolam. These three drugs are found mentioned at entry Nos.

43, 109 and 30 respectively in the Schedule to NDPS Act. However,

they are not included in the Schedule to the NDPS Rules. It was

observed that in view of the judgment of the Supreme Court in D.

Ramakrishnan v. NCB 2009 (3) JCC (Narcotics) 149 SC although the

mere possession of the above three drugs may not be an offence under

the NDPS Act, if a person is found to have exported the said drugs

mentioned in Schedule I to the NDPS Act without export authorisation in

terms of Rule 58 of the NDPS Rules, then he would be deemed to have

committed an offence under Section 23 of the NDPS Act. Consequently,

the question that arose was whether the accused could be said to have

exported the aforementioned three drugs without export authorisation.

Para 33 of the impugned judgment of the trial Court notes that the

learned SPP conceded that in case the prosecution was unable to prove

that the accused persons had exported the said drugs, but was only able

to show that they were in possession of the said drugs, then as per the

law existing as on date, they could not be convicted under the NDPS Act.

The entire focus of the trial Court was, therefore, on determining whether

the prosecution had been able to prove beyond reasonable doubt that the

accused persons had acted in conspiracy to export the above

psychotropic substances outside India.

9. As far as Respondent No.2 was concerned, the trial Court found that

there was not a shred of evidence produced by the prosecution that he

had sold the said tablets illegally to Respondent No.3 with the

knowledge that they were being exported illegally outside India.

Respondent No.1 has not spoken a word against him in his purported

statement under Section 67 NDPS Act. The so-called fax message

purportedly sent by Respondent No.2 to his factory in Hyderabad for

destruction of the evidence even while in custody of NCB was not

proved in the trial Court.

10. As regards Respondent No.3, apart from the statement of Respondent

No.1 under Section 67 of the NDPS Act, there was no evidence on

record to show that Respondent No.3 had anything to do with the

premises at Kallu Mohalla from where the recovery of drugs was made.

In the absence of any corroboration of the so-called confessional

statement of the co-accused i.e. Respondent No.1, the said confessional

statement could not be used as substantive evidence. The trial Court

referred to the judgment of the Supreme Court in Union of India v. Bal

Mukund (2009) 12 SCC 161.

11. The only other statements against Respondent No.3 were the

statements of Mr. Raj Kumar Chauhan (PW-12) and Mr. Atul Pandey

(PW-15) recorded under Section 67 of the NDPS Act. However, both of

them turned hostile when they stepped into the witness box. While PW-

12 stated that the statement made by him under Section 67 NDPS Act

had been dictated by the NCB officials, he went on to say that NCB

officials had asked him questions about Respondent No.1 but not about

Respondent No.3. Further, although he admitted to sending parcels via

courier from Agra to Delhi, he did not remember whether he had sent

any parcel to Respondent No.1. As far as PW-15 was concerned, he

denied being an employee of Respondent No.3 and stated that he was

forced to give the evidence at the behest of NCB officials and that they

had threatened to destroy his career/business if he did not write as per

their dictation. He was even threatened to leave Agra and was forced to

shift to Menpuri thereafter where he stayed for 4-5 years. Although PWs-

12 and 15 resiled from their statements, the trial Court proceeded to

analyse their statements and concluded that they could not be said to be

voluntary. As a result, apart from the statement of Respondent No.1

under Section 67 NDPS Act, there was no substantive evidence produced

by the prosecution that it was Respondent No.3 who used to deliver the

goods to Respondent No.1 after getting them manufactured from

Respondent No.2 and that Respondent No.1 used to further export the

said drugs outside India.

12. Once it was evident that the prosecution had been unable to prove the

involvement of Respondent Nos. 2 and 3 in the conspiracy to illegally

export drugs outside India, Respondent No.1 alone could not be held

guilty for exporting the psychotropic substances outside India. The most

crucial evidence that the drugs recovered from the premises of

Respondent No.1 were meant for export purposes was missing. The IO

who was examined as PW-3 admitted in his cross-examination that he

did not find any evidence in the raided premises to show that the

recovered goods were stored there for export. There was no airway

bills/shipping documents which would show that the drugs were kept

there for export purposes. There was no evidence that earlier at any time

Respondent No.1 had exported drugs outside India either on his own or

through his courier agency.

13. It was also not shown by the prosecution as to how the premises from

where the drugs were recovered were under the control and possession of

Respondent No.1. The landlord of the premises had not stated a word

against Respondent No.1. It was the cousin of Respondent No.1, one Mr.

Vijay Kumar, to whom he had given the premises on rent. At the time

the basement was raided, it was Mr. Vijay Kumar who was in possession

and he had seen only Mr. Vijay Kumar bringing the boxes on a three

wheeler and unloading the boxes therein. He further stated that he had

never seen Respondent No.1 in the said premises and was not aware that

it was sublet by Mr. Vijay Kumar to the courier agency of Respondent

No.1. When panch witness Vijay Kumar was cross-examined by SPP, he

stuck to his stand that the door of the basement was not opened by

Respondent No.1. He further stated that the other panch witness Mr.

Santosh Tiwari had not accompanied the NCB officials to the basement

of the premises. He stated that when he was called in the morning on 20th

April 2005 in the NCB office, he found that Respondent No.1 had

already been detained in the said office and that Respondent No.1 was

also made to sign on the panchnamas in the NCB office.

14. Even the evidence of the IO (PW-3) did not inspire confidence since

he could not give any explanation why he had not taken into possession

the cardboard boxes at the time of the raid itself; although the raided

premises consisted only of the ground floor and the basement and the

owner resided in the ground floor, the IO did not remember how many

storeys or how many basements were there in the said premises and

whether the landlord was residing therein. He could not tell whether the

gate of the basement was from the gali or from inside the house. The trial

Court, therefore, concluded that the contention of the defence that the IO

was not even present in Delhi on the date of the raid could not be

brushed aside lightly. Even PW-1, the Zonal Director who had appointed

the IO to conduct the raid at Delhi stated that he could not recall if the IO

was present in Agra at the time of the search of the premises in Delhi. In

other words, there was no evidence to conclude that the IO was in Delhi

only. This probablised the defence of Respondent No.1 that the recovery

of the drugs had already been made at Agra and was planted upon

Respondent No.1 to falsely implicate him.

15. The Court also found numerous discrepancies as regards actual date

of the arrest of Respondent No.1 and the summoning of the other

Director of the courier agency Sanjeev Bahl (PW-18). According to PW-

18, Respondent No.1 had been picked up by the NCB officials on 19th

April 2005 in his presence from the premises at 62, Sant Nagar. PW-18

stated that he too was asked by the NCB officials to accompany them to

their office and was detained in the office for the entire night of 19th

April 2005. Therefore, the case of the prosecution that Respondent No.1

was summoned to appear only on 20th April 2005 and PW-18 on 21st

April 2005 stood falsified. The cutting of the date 20.4.2005 on Ex. PW-

2/B and the statement given by PW-18 on that day to read as 21.4.2005

probablised the case of the defence that PW-18 had been confined during

the night of 19th April 2005 and then allowed to go on 20th April 2005

after he wrote the statements dictated by the NCB officials.

16. It was argued before the trial Court, and it has been again urged

before this Court by Mr. Subhash Bansal, learned counsel for the

Petitioner, that the statement of Respondent No.1 recorded under Section

67 NDPS Act was itself sufficient to convict all the three accused for the

offences of exporting the narcotic substances that were seized from the

basement of the courier agency of Respondent No.1 at 87, Kallu

Mohalla. The trial Court noticed that Respondent No.1 had at the very

first opportunity retracted from the said statement by contending that he

has been coerced and threatened to write it as per the dictation of the

NCB officials. The trial Court referred to the decisions of the Supreme

Court in Bal Mukund and Noor Aga v. State of Punjab JT 2008 (7) SC

409 and observed that the trial Court had to be satisfied that the

statement made while in custody of the NCB officials was voluntary. In

the present case, the evidence on record indicated that Respondent No.1

was in the custody of NCB officials not only on the 19th but also on 20th

April 2005. He retracted the statement soon after he was remanded to

judicial custody. He stuck to the version that he had written it as per the

dictation of NCB officials who had threatened to kill him in an encounter

if he did not do so. Further, the evidence discussed by the trial Court

showed that the IO had indulged in manipulation of documents. The

evidence of the panch witness Vijay Kumar wherein he stated that he

had not signed the panchnamas and paper slips at the spot and where he

did not acknowledge the presence of the other panch witness Santosh

Tiwari also made the entire prosecution case highly doubtful.

17. This Court has carefully examined the entire trial Court record with

the help of Mr. Subhash Bansal, learned counsel for the NCB and

perused the petition seeking leave to appeal. Apart from relying on the

statement of Respondent No.1 under Section 67 NDPS Act, there is no

other substantive and independent corroborative evidence to show that

the Respondents conspired to export the seized drugs outside India.

Consequently, there could be no conviction of the Respondents under the

NDPS Act. The analysis of the evidence by the trial Court and its

reasoning and conclusions suffer from no legal infirmity.

18. No grounds have been made out for grant of leave to appeal. The

petition is dismissed.

19. The trial Court record be sent back forthwith.

S. MURALIDHAR, J FEBRUARY 26, 2014 dn