Satpal Singh @ Gogi vs The Narcotics Control Bureau
2014 Latest Caselaw 1682 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of Decision: 28.03.2014
+                               CRL. A.995 of 2010
SATPAL SINGH @ GOGI                                      ..... Appellant
             Through:           Mr. Ajay Verma, Adv.
                                   versus
THE NARCOTICS CONTROL BUREAU                  ..... Respondent
              Through: Mr. Subhash Bansal, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN

                                  JUDGEMENT

V.K. JAIN, J. (Oral)

On 3.3.2006 at about 5:00 p.m., a secret information was received by

Avnesh Kumar, Intelligence Officer (I.O.), from Shri Satender Kumar,

another IO of NCB that a truck bearing No.PB-08P-9805 would pass

through Haryana-Delhi border via Kapashera, NH8 at about 8:00 a.m. on

4.3.2006 with opium in it. It was also informed that Satpal Singh @ Gogi

would be the driver of the truck. After it had been reduced into writing the

information was submitted to the superior officer Mr. R.R. Kumar,

Superintendent, NCB and a team was constituted. The aforesaid team

reached Kapashera Border at about 7:00 a.m. and requested some persons

present there, to be associated with it. One Neki Ram, resident of Chhawla

Village and Shri Mahender Singh resident of Village Rangpuri agreed to

remain present during the search and seizure. At about 8:00 a.m. truck

bearing No.PB-08P-9805, which was coming towards Delhi was made to

stop. The appellant Satpal @ Gogi was found driving the said vehicle.

Another person, namely Aman, was the cleaner on the truck. The appellant

Satpal was apprised of the information, NCB officials had with them and

was told that the search of his person and the truck could be conducted in the

presence of a Magistrate. The appellant Satpal, however, declined and

stated that any officer could search him. After serving notice under Section

50 of the NDPS Act on him and explaining its contents to him, the truck was

searched in the presence of the appellant as well as his cleaner and the

public witnesses. During the aforesaid search, a plastic bag was found

amongst the items loaded in the truck. On the bag being opened, black

coloured substance kept in a white plastic was found in it. A small quantity

of the aforesaid substance, when tested with field testing kit, gave positive

result for opium. On being weighed, the opium inside the bag was found to

be weighed 12.500 kg. Two samples of 25 gram each were drawn from the

aforesaid substance and were sealed after keeping them into two envelopes

which were marked as A1 & A2. The slips affixed on them were signed by

NCB officials, the appellant, his cleaner and the public witnesses. The seal

used for the purpose was NARCOTIC CONTROL BUREAU DZU-3. The

residual substance was also duly sealed using the aforesaid seal.

2. The appellant Satpal @ Gogi as well as his cleaner Aman were served

summons under Section 67 of the NDPS Act requiring them to appear in

NCB office at 2:00 p.m. on 4.3.2006. The public witnesses Neki Ram and

Mahender Singh were also served with similar notices to appear in NCB

office on 4.3.2006 and 6.3.2006.

On reaching NCB office the case property was deposited with the

Malkhana In-charge along with test memos and the seal used.

3. Shri Avnesh Kumar came in the witness box as PW5 and inter alia

stated that on 3.3.2006, he received a telephonic information from Shri

Satender Tomar, I.O. that a truck bearing No.PB-08P-9805 would pass

through Kapashera border NH8 on 4.3.2006 and would lead to Ludhiana.

He was also informed that the truck would be driven by one Satpal @ Gogi

and narcotic drugs would be carried in the said truck. The information was

reduced into writing Ex.PW5/A and was brought to the notice of Shri R.R.

Kumar, PW9, who signed the same at point „C‟. He further stated that on

4.3.2006, he along with Rajesh Kumar, Hawaldar Jagdish Chand, Sepoy

Babu Lal and Sudhir Naik left NCB office in a Government vehicle and

reached Kapashera border at about 7:30 a.m. There they met Neki Ram and

Mahender Singh and requested them to be present during search and seizure.

They agreed to the request made by him and stayed with them. I.O.

Satender Tomar also reached the aforesaid spot at about 8:00 a.m.

Thereafter the above-referred truck was spotted passing through the border

towards Ludhiana and was stopped. The truck was being driven by the

appellant Satpal @ Gogi. He as well as his cleaner came down once the

truck was stopped. After introducing themselves to the appellant, they

apprised him of the information which they had with them and told him that

they had to search the truck as well as the persons moving in the truck. A

notice under Section 50 of the NDPS Act was then served upon Satpal and

Aman, who put their signatures on the same and desired that they could be

searched by NCB officers. On searching the truck a plastic bag was

recovered from it. On opening the bag, semi solid black substance was

found in the aforesaid bag, which, on testing, gave positive result for opium

and, therefore, two (2) samples of 25 gram each were drawn from it. The

samples were kept first in two (2) separate white polythenes and in two (2)

separate envelopes and sealed with the seal of NCB, DZU-3. The substance,

on being weighed, was found to be 12.500 kg. The paper slip signed by the

appellant Satpal, his cleaner, the public witnesses and by him (PW5) was

pasted on both the samples before they were sealed. The remaining material

was also sealed in the same manner, using the same seal. Summons under

Section 67 of the NDPS Act were served upon the appellant as well as his

cleaner Aman requiring them to appear in NCB office at 2:00 p.m. on the

same day. He also stated that the seal used by him for the purpose of sealing

had been taken from Shri R.R. Kumar, Superintendent vide entry Ex.PW9/A

made in the movement register and the case property was deposited by him

in the malkhana vide entry made in the register Ex.PW4/A. He also stated

that on 4.3.2006, the appellant Satpal @ Gogi had appeared before him at

NCB office and his statement was recorded by him.

The appellant Satpal appeared before NCB officer Shri Avnesh

Kumar that on 4.3.2006 and his statement under Section 67 of the NDPS Act

was written by Shri Satender Kumar on his dictation and was signed by him.

The cleaner also appeared before NCB and made a voluntary statement

under Section 67 of the Act. Neki Ram and Mahender Singh also appeared

in NCB office on the date on which they were required to appear and made

statements which were duly recorded. On being tested in CRCL, the

samples of the substance seized from the truck was found to be opium. The

appellant was accordingly prosecuted under Section 18 of the NDPS Act.

Vide impugned judgement dated 16.4.2010, the appellant was convicted

under Section 18 of the Act and vide impugned Order on Sentence dated

16.4.2010, he was sentenced to undergo RI for ten (10) years and to pay a

fine of Rs.1.00 lakh or to undergo SI for one (1) year in default. Being

aggrieved from his conviction and the sentence awarded to him, the

appellant is before this Court by way of this appeal.

4. Shri Satender Tomar came in the witness box as PW10 and stated that

on 3.3.2006, he had received a secret information at about 5:00 p.m. that a

truck bearing No.PB-08P-9805 would be passing through Delhi-Haryana

border NH8 Kapashera and would be driven by Satpal Singh @ Gogil. The

information was conveyed by him on telephone to Shi Avnesh Kumar. He

further stated that he also reached the aforesaid spot at about 8:00 a.m. on

4.3.2006. He corroborated the deposition of PW5 Shri Avnesh Kumar with

respect to stopping truck No.PB-08P-9805 being driven by the appellant and

recovery of opium from the aforesaid truck kept in a bag. He also

corroborated the deposition of PW5 with respect to sealing of the samples as

well as the residual product after serving notice under Section 50 of the Act,

on the appellant as well as his cleaner.

5. PW1 Shri K.K. Singh is an official of CRCL, New Delhi. He inter

alia stated that on 6.3.2006, he received the sample brought by one Babulal

from NCB. At that time the sample was sealed with four (4) seals of

NARCOTIC CONTROL BUREAU DZU-3 as per the test memo.

PW3 Shri S.K. Mittal is the Chemical Examiner who examined and

analysed the sample sent to CRCL. He inter alia stated that the aforesaid

sample was kept in strong room under lock and key and was taken out from

there on 12.6.2006, under his supervisions with the help of Shri P.R. Meena,

Chemical Assistant. According to the witness the seals were found intact on

the sample at that time and a paper slip was also found pasted over it. The

facsimile of the seal tallied with the seal impression on the test memo. He

further stated that on being examined the sample was found to be opium

with the percentage of morphine at 7 per cent.

PW4 Shri P.C. Khanduri is the official with whom the case property

including the samples in envelopes marked as A1 & A2 was deposited by

PW5 Shri Avnesh Kumar at about 1:00 p.m. on 4.3.2006. He inter alia

stated that all the parcels were sealed with the seal of NARCOTICS

CONTROL BUREAU DZU-3 and an entry in this regard was made by him

in the malkhana register which is Ex.PW4/A. He further stated that on

6.3.2006, the sample marked as A1 and its memo in duplicate were sent to

CRCL through Constable Babulal vide entry Ex.PW4/B. The remnant

sample was received from CRCL and an entry Ex.PW4/C was made in this

regard. He also stated that there was no tampering with the sample or the

test memos.

PW2 Babulal is the NCB official who took the sample from PW4 Shri

P.C. Khanduri on 6.3.2006, with seals intact on it and deposited the same

with CRCL vide receipt Ex.PW1/A. He maintained that there was no

tampering with the seal so long as the sample was in his custody.

PW9 Shri R.R. Kumar was posted as Superintendent in NCB at the

relevant time. He inter alia stated that the information Ex.PW5/A was

brought to his notice by Shri Avnesh Kumar, Intelligence Officer and he

signed the same at point „C‟. He further stated that on 4.3.2006, the official

seal of NARCOTICS CONTROL BUREAU DZU-3 was handed over to

him by Avnesh Kumar after making entry Ex.PW9/A in the relevant register

and the same was returned to him on the same day at about 1:15 p.m. vide

his signatures at Point „C‟ on Ex.PW9/A.

PW11 Rajesh Kumar is the NCB official who was driving the vehicle

in which Avnesh Kumar and other members of the NCB team went to

Kapashera border on 4.3.2006.

6. In his statement under Section 313 Cr.P.C., the appellant denied the

allegations against him and claimed to be innocent. He claimed that he was

not the owner of the truck though he knew driving.

7. The impugned judgement has been assailed by the learned counsel for

the appellant on the following grounds:

i. Neither of the public witnesses has been examined to prove the

alleged recovery of opium.

ii. The statement made under Section 67 of the NDPS Act cannot

be the sole basis of conviction since it was denied in the statement under

Section 313 Cr.P.C.

iii. The notice under Section 50 of the NDPS Act was meaningless

since the appellant did not know reading or writing either English or Hindi.

8. As far as the failure of the complainant/respondent to examine the

public witnesses Neki Ram and Mahender Singh is concerned, a perusal of

the record would show that neither Mahender Singh was found residing at

the Rangpuri address given by him nor was Neki Ram found at the Chhawla

Village address provided by him. Obviously either the witnesses gave

wrong address to NCB officials or they shifted from the place where they

were earlier residing without intimating the new address to the NCB

officials. In either case, the NCB cannot be held responsible for not

producing them in the witness box. Moreover, since the recovery was

effected at a public place in a day time, it was not mandatory to associate

public witnesses with the search of the truck in which the contraband was

found.

9. The search was carried out by NCB officials in exercise of their

official duty as public servant. The appellant does not claim any previous

animosity between him and NCB officials. Therefore, they had no reason to

implicate him in a false case of possession of narcotic drug. In fact, the

appellant in his statement under Section 313 Cr.P.C. did not even admit

either that he was driving the aforesaid truck or that the said truck was

stopped and seized by NCB officials at Kapashera border on 4.3.2006. The

deposition of PW5 with respect to seizure of the opium from the truck being

driven by the appellant finds full corroboration from PW6 Vikas Kumar in

whose presence the seizure was effected. Therefore, the respondent NCB

has proved beyond reasonable doubt that the appellant was driving the truck

from which the substance in question was recovered by its officials, in the

morning of 4.3.2006, at Kapashera border.

10. The complainant/respondent has produced the entire oral as well as

documentary link evidence to rule out any reasonable possibility of the

sample having been tampered with before it was analyzed in CRCL, New

Delhi. PW4 Avnesh Kumar had taken the seal of NCB DZU-3 from PW9

Shri R.R. Kumar in the morning of 4.3.2006. An entry in the relevant

register was made by Shri R.R. Kumar, while handing over the aforesaid

seal to PW5 and the same is Ex.PW9/A. The seal was returned to Mr R.R.

Kumar on the same day at about 1:15 PM. The complainant also examined

PW4 Shri P.C. Khanduri with whom the samples duly sealed with the seal of

NCB DZU-3 as well as the test memos were deposited on 4.3.2006 at about

1:00 PM. The samples were sent by the aforesaid officials to CRCL through

PW2 Babulal on 6.3.206. Babulal has also corroborated the deposition of

PW4 in this regard and stated that there was no tampering with sample,

which he had received with seals intact on it and had deposited with CRCL

on the same date. The sample taken by PW2 Babulal was received by PW1

Shri K.K. Singh, at CRCL on 6.3.2006. At that time, the sample was duly

sealed with the aforesaid seal and the seal impressions tallied with the

impressions which PW5 had put on the test memos at the place of seizure.

Thus, it can be safely said that the substance analysed in the laboratory was

the same which PW5 had seized from the truck being driven by the

appellant.

Section 35 of the Act, to the extent it is relevant, provides that in any

prosecution for an offence under this Act which requires a culpable mental

state of the accused, the Court shall presume the existence of such mental

state but it shall be a defence for the accused to prove the fact that he had no

such mental state with respect to the act charged as an offence in that

prosecution. Such culpable mental state includes intention, motive,

knowledge of a fact and belief in or reason to believe a fact. Since the

appellant was found driving the truck in which opium was found, the Court

must draw a statutory presumption that he knew that he was carrying the

aforesaid psychotropic drug in his truck. Neither any evidence has been led

by the appellant nor has he shown existence of circumstances from which it

can be inferred that he was not aware of the aforesaid opium which was

seized from his truck. In his statement under Section 313 Cr.P.C., the

appellant does not claim that though substance from the truck driven by him

was seized by NCB officers, he was not aware of the said substance being

opium. In fact, the appellant in his statement under Section 313 Cr.P.C. did

not offer any explanation at all for the aforesaid opium being found in his

truck. The plea taken by him was of a total denial. Thus, the complainant

has been able to prove that the appellant contravened the provisions of

Section 8 read with Section 18 of the NDPS Act by possessing, in the truck

driven by him, opium weighing about 12.500 kg.

11. Section 54 of NDPS Act, to the extent it is relevant, provides that

until and unless the contrary is proved, the Court can presume that the

accused has committed an offence under the provisions of the Act in respect

of any narcotic drug or psychotropic substance or substance for the

possession of which he fails to account satisfactorily.

12. The seizure of the drug from the truck being driven by the appellant

finds corroboration from the statement which he made under Section 67 of

the NDPS Act. Though the aforesaid statement was denied by him in his

statement under Section 313 Cr.P.C., the statement has been duly proved by

PW5 who had recorded the same, and this is not the case of the appellant

that it is not signed by him. The appellant does not even claim that the

aforesaid statement was obtained from him by subjecting him to any kind of

duress or inducement. Therefore, the said confessional statement having

been voluntarily made, can be safely used for convicting the appellant.

Since the conviction of the appellant is not based solely upon the statement

made by him under Section 67 of the NDPS Act, the same being only a

piece of corroborative evidence, there is no merit in the contention that the

conviction of the appellant could not have been based on the said statement.

13. As regards notice under Section 50 of the NDPS Act, a perusal of the

said notice Ex.PW5/B would show that the it is a printed document in Hindi

as well as English. It has come in evidence that the contents of the aforesaid

notice were duly explained to the appellant and the meaning of the

expression "Gazetted Officer" was also explained to him. There is no reason

to disbelieve the deposition of NCB officials in this regard. Vide aforesaid

notice, the appellant was clearly informed of his legal right to be searched in

the presence of a Magistrate or a Gazetted Officer. Therefore, there was due

compliance with the requirement of Section 50 of the NDPS Act.

14. For the reasons stated hereinabove, I find no ground for interference

with the conviction of the appellant and the fine imposed on him, the same

being the minimum prescribed under the Act. It is, however, directed that in

case of default of payment of fine, the appellant shall undergo SI for three

(3) months as against one year awarded by the trial court.

The appeal stands disposed of accordingly.

One copy of this order be sent to the concerned Jail Superintendent

for information and necessary action.

The LCR be sent back along with a copy of this order.

MARCH 28, 2014                                            V.K. JAIN, J.
b'nesh/BG