Harley vs State
2014 Latest Caselaw 4122 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                         RESERVED ON : AUGUST 08, 2014.
                         DECIDED ON : SEPTEMBER 03, 2014.

+                              CRL.A.827/2011

      HARLEY
                                                      ....Appellant
                   Through :   Mr.Sunil Mehta, Advocate.

                               VERSUS

      STATE
                                                ....Respondent
                   Through :   Mr.Lovkesh Sawhney, APP.


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

S.P.GARG, J.

1. The appellant-Harley impugns the legality and correctness of

a judgment dated 26.04.2011 in Sessions Case No. 105/2006 arising out of

FIR No. 43/2003 registered at Police Station Sarai Rohilla Railway

Station by which he was convicted for committing offences punishable

under Section 21 (b) and 29 of Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred as 'NDPS Act'). By an order

dated 12.05.2011, he was awarded RI for 20 years with fine `2 lacs under

Section 29 and RI for ten years with fine `1lac under Section 21(b)

NDPS Act.

2. The prosecution case, as reflected in the charge-sheet, was

that on 20.09.2003, ACP Ravi Shanker of Inter State Crime Cell got

information that Raj Kumar Mehta was smuggling 'Smack' from Pakistan

and had been supplying it to other countries through his local and

foreigner conduits. A specific information was received by ACP Ravi

Shanker that on 20.09.2003 at about 01.00 P.M. Raj Kumar Mehta would

come at Sarai Rohilla Railway Station to deliver 'Smack' to an associate.

A raiding party was organised. At around 01.10 P.M., Raj Kumar Mehta

was seen coming on the platform No.1, Sarai Rohilla Railway Station. He

stood near a toilet which was under construction. Pradeep Kumar Chawla

came and shook hands with him. Raj Kumar Mehta exchanged the green

bag in his possession with the packet in possession of Pradeep Kumar

Chawla. They both were apprehended. The green bag recovered from

Pradeep Kumar Chawla contained two packets of 'Smack' each weighing

1 Kilogram. The packet recovered from Raj Kumar Mehta contained

23,000 US Dollars. Necessary proceedings were conducted and First

Information Report was lodged. Pursuant to Raj Kumar Mehta's

disclosure statement, Harjinder Singh @ Jinda and Inder Singh were

apprehended around 06.00 P.M. from near Gol Dak Ghar. Inder Singh

was found in possession of one kilogram 'Smack'. At that time, Harjinder

Singh @ Jinda was sitting in the driver-seat of Indica Car bearing No.

HR-38-FT-9720 and at his instance, a sweet box containing one kilogram

'Smack' was recovered from the dicky of the car. Subsequently,

Mohd.Hanif, a Pak national, was apprehended at 09.00 P.M. from outside

House No. H-3/45 in Sector-11, Rohini and at his instance 2 kilograms

and 50 grams 'Smack' kept in a tube and concealed under ground near

Japani Park was recovered. Pursuant to Harjinder Singh @ Jinda's

disclosure statement, Harley (the present appellant) was apprehended on

22.09.2003 at about 01.00 P.M. from Munirka T-Point at Nelson Mandela

Road near JNU and 300 grams 'Smack' was recovered from his

possession. On his personal search, a mobile phone and a telephone dairy

were also recovered. He was taken to his room at village Munirka,

however, nothing objectionable was recovered from there.

3. During investigation, two mobile phones from Pradeep

Kumar Chawla and two mobile phones and four SIM cards from

Harjinder Singh @ Jinda were recovered. Call details record revealed that

all the accused persons were connected with each other. The samples of

contraband were sent to Central Forensic Science Laboratory (CFSL), and

as per its report, these contained Diacetylmorphine (Heroin). Statements

of the witnesses conversant with the facts were recorded. After

completion of the investigation a charge-sheet under Sections 21/23/24/29

NDPS Act was submitted against all of them before the court. They were

duly charged and brought to trial. To substantiate its case, the prosecution

examined seventeen witnesses. In their 313 Cr.P.C. statements, the

accused persons pleaded false implication. They examined Harjit Singh

(DW-1), Ashok Kumar (DW-2), Vijender Singh (DW-3), Sandhya Meta

(DW-4), Krishna Rani (DW-5) and Avtar Singh (DW-6) in defence. After

appreciating the evidence and considering the rival contentions of the

parties, the Trial Court, by the impugned judgment, held all of them guilty

for committing offence under Section 29 of NDPS Act. In addition

Pradeep Kumar Chawla, Harjinder Singh @ Jinda and Mohd. Hanif were

convicted under Section 21 (c) of NDPS Act; Inder Singh and Harley

were convicted under Section 21 (b) of NDPS Act. By an order on

sentence dated 12.05.2001 they were awarded various prison terms. All

the sentences were directed to operate concurrently.

4. Aggrieved by the impugned order, all the convicts preferred

appeals before this Court. It is relevant to note that Inder Singh expired

during the pendency of the appeal and proceedings against him stood

abated. Convict Raj Kumar Mehta in Crl.A.No.895/2011 decided on

18.09.2013 opted not to challenge the findings of the Trial Court recorded

under Section 29 of NDPS Act and prayed for modification of the

sentence order. Keeping various facts and mitigating circumstances in

view, the substantive sentence was reduced to RI for 12 years with fine `1

lac and in default of payment of fine to further undergo SI for three

months. In Crl.A.No.860/2011 filed by Pradeep Kumar Chawla @

Chhottu, the substantive sentence was reduced to RI for 12 years by an

order dated 04.04.2013. Similarly, in Crl.A.No.911/2011 and

Crl.A.No.1261/2011 filed by Harjinder Singh @ Jinda and Mohd. Hanif,

while maintaining their conviction, the sentence order was modified.

5. I have heard learned counsel for the parties and have

examined the record. During the course of arguments, learned counsel for

the appellant restricted/confined his arguments only to challenge

conviction under Section 29 NDPS Act. He vehemently urged that there

was no material before the learned Trial Court to infer 'conspiracy' of the

present appellant with co-convicts. The recovery from each of the

convicts was independent. The disclosure statement made by co-accused

Harjinder Singh @ Jinda on 21.09.2003 cannot be relied upon under

Section 27 of Evidence Act. Harjinder Singh did not state if he had any

connection or nexus with the contraband found from the possession of the

appellant. Only inference which can be drawn from the disclosure

statement is that the appellant was one of the persons who dealt in such

type of contraband. The investigating agency did not collect call details

of phone No.9818278778 allegedly recovered from the appellant. Learned

Additional Public Prosecutor urged that the conspiracy is formulated in

secrecy and direct evidence is rarely available to establish it. The

prosecution has brought on record cogent circumstances from where

inference can be drawn that all the convicts were hand in glove and ran a

racket or syndicate to possess and dispose of contraband.

6. Since the appellant-Harley has not opted to challenge the

findings of the Trial Court regarding recovery of contraband i.e. 300 gms.

Heroin from his possession, his conviction under Section 21 (b) stands

affirmed. The prosecution examined PW-13 (Darshan Lal), an

independent public witness, who was associated at the time of recovery of

contraband from him. He fully supported the prosecution and identified

Harley in the court to be the individual from whom Heroin weighing 300

gms. was recovered besides one mobile phone. No material discrepancy

could be elicited in his cross-examination. PW-12 (Pankaj Sood), PW-14

(SI Harbir Singh) and PW- 16 (SI Ramesh Sharma) all have deposed of

the apprehension of the present appellant on 22.09.2003 pursuant to the

disclosure statement (Ex.PW-14-B) made by Harjinder Singh at around

1:00 pm at 'T' point, Nelson Mandela Marg and Munirika Marg. Earlier

they had gone to the room of the appellant which was found locked. Their

testimony on material facts remained unchallenged in the cross-

examination. They denied if Darshan Lal (PW-13) was acquainted with

them prior to the occurrence. Darshan Lal categorically deposed that he

had never appeared as a police witness in any other case. The appellant

did not produce any document to show if Darshan Lal was a stock witness

of the police, as alleged.

7. Criminal conspiracy is committed when two or more persons

agree to do or cause to be done an illegal act or legal act by illegal means.

Unlawful agreement is the gist or essence of the offence of conspiracy.

The offence takes place with the meeting of minds even if nothing further

is done. In reaching the stage of meeting of minds, two or more persons

share information about doing illegal act or legal act by illegal means.

This is the stage where each is said to have knowledge of a plan for

committing illegal act or legal act by illegal means. Among those sharing

the information, who do form the requisite intention would be parties to

the agreement and would be conspirators. Criminal conspiracy is

generally hatched in private or in secrecy and is rarely possible to

establish it by direct evidence. In most cases, proof of conspiracy is

largely inferential though the inference must be founded on solid facts.

Surrounding circumstances and antecedents and subsequent conduct,

among other factors, constitute relevant material. Criminal conspiracy is a

partnership in crime and there is in each conspiracy a joint or mutual

agency for the prosecution of a common plan.

8. In the instant case, the prosecution was not aware about the

appellant's involvement prior to the recording of the disclosure statement

(Ex.PW-14-B) made by co-convict Harjinder Singh @ Jinda on

21.09.2003. At the first instance, the investigating agency was successful

to apprehend Raj Kumar Mehta and Pradeep Kumar Chawla from Sarai

Rohilla Railway Station. During investigation, Raj Kumar Mehta

disclosed names of his associates and informed the police team about their

whereabouts. On the pointing of Raj Kumar Mehta, Harjinder Singh @

Jinda and Inder Singh were apprehended at 06:00 p.m. from near Gol Dak

Ghar and recoveries were effected from their possession. On the basis of

disclosure statement made by Harjinder Singh @ Jinda, the appellant-

Harley was apprehended and the recovery was effected from his

possession. Co-convict Harjinder Singh had disclosed the residential

address of the present appellant i.e. House No.33- E, second floor, village

Munirika. It was found locked. After the appellant's arrest, he was taken

to this residence but nothing objectionable was found. The appellant did

not deny that the said accommodation was not in his occupation. The

apprehension of the present appellant and recovery of the contraband from

his possession pursuant to Harjinder Singh's disclosure statement speaks

volume of their acquaintance with each other.

9. At the time of appellant's arrest, a mobile phone

9818278778 (M-7) was recovered from him. There is no specific denial

about its recovery. Two mobiles and four sims 9891010713 (M-3);

36502705 (M-4); 9818357749 (M-5) and 9815836701 (M-6) were

recovered from the possession of Harjinder Singh. The prosecution has

produced on record call details showing connectivity of mobile M-7 with

Mobile M-3 and M-4. It reflects that from 14.09.2003 to 20.09.2003,

there were number of incoming/outgoing calls for various duration on

these three mobile phones. Harjinder Singh who has already confessed

the guilt did not deny genuineness and authenticity of the call details. The

appellant admittedly, a foreign national was apprehended with contraband

in his possession in Delhi. At the time of his arrest, he did not have any

passport or visa. He did not elaborate or explain as to how and in what

connection he was in constant touch with co-convict Harjinder Singh from

his mobile M-7 to his mobile M-3 and M-4. Being a foreigner,

apparently, he had no close association or link with co-convicts. It was

within appellant's special knowledge as to when and for what purpose, he

came into contact with co-convict Harjinder. Nothing was divulged by

him in 313 statement. This connectivity among the convicts is a strong

circumstance to show their equation with each other. The appellant did

not explain as to when and for what purpose he visited India; since when

he was staying in India; and what business or job he was performing in

Delhi prior to his arrest. He even did not disclose from where he had

procured the contraband and for whom it was meant.

10. The very fact that co-convicts have confessed their guilt and

have not challenged their conviction under Section 29 NDPS Act, goes to

show that they all were in conspiracy to deal in contraband recovered

from their possession. Learned Trial Court has already dealt with this

aspect minutely in the impugned judgment. On the basis of the call details

and the recovery of the mobile phones (M-1 to M-7), the Trial Court

concluded that the convicts used to have constant conversation on the

mobiles from time to time. Minor discrepancies or lapses highlighted by

the appellant's counsel are not material to disturb the findings of the Trial

Court on this issue. Accordingly, the conviction of the appellant under

Section 29 NDPS Act stands affirmed.

11. Regarding sentence order, on parity the sentence awarded to

the present appellant for RI for 20 years under Section 29 NDPS Act

needs modification. Considering all the facts and circumstances of the

case, the fact that the appellant is not a previous convict; co-convicts have

been given similar relief, the sentence order is modified to the extent that

RI for 20 years with fine `2 lacs would be RI for 12 years with fine `1 lac

under Section 29 NDPS Act. The default sentence for non-payment of

fine of `1 lac shall be SI for three months. Sentence under Section 21 (b)

of NDPS Act would remain RI for ten years with fine `1 lac. However,

the default sentence for non-payment of fine would be SI for three months

instead of SI for one year. Both the sentences shall run concurrently and

the appellant will be given benefit under Section 428 Cr.P.C.

12. The appeal stands disposed of in the above terms. Trial

Court record be sent back along with the copy of this order.

(S.P.GARG) JUDGE SEPTEMBER 03, 2014/sa