Mandeep Singh @ Anr. vs The Directorate Of Revenue ...
2015 Latest Caselaw 8280 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON: 3rd AUGUST, 2015
                                DECIDED ON : 3rd NOVEMBER, 2015

+                         CRL.A. 1543/2014

      MANDEEP SINGH @ ANR.                               ..... Appellants

                          Through :    Mr.Kamal J.S.Mann, Advocate
                                       with Mr.Nitin Joshi, Advocate.


                          VERSUS


      THE DIRECTORATE OF REVENUE INTELLIGENCE

                                                         ..... Respondent

                          Through :    Mr.Amish Aggarwala, Advocate.


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

S.P.GARG, J.

CRL.M.A.No.17607/2014 (Delay)

1. For the reasons mentioned in the application for condonation of

delay in filing the appeal, the delay is condoned.

2. The application for condonation of delay is disposed of.

CRL.A. 1543/2014

1. Challenge in this appeal is to a judgment dated 18.11.2013 of

learned Addl. Sessions Judge / Special Judge - NDPS in Sessions Case

No. 71A/07 by which the appellants - Gurudev Singh and Mandeep Singh

were held guilty for committing offences under Sections 21 (c) and 29 of

NDPS Act. By an order dated 25.11.2013, they were sentenced to undergo

Rigorous Imprisonment for ten years with fine ` 1 lac each under both the

heads. The sentences were to run concurrently.

2. Briefly stated, the prosecution case as reflected in the

complaint filed by Directorate of Revenue Intelligence (hereinafter

referred to as 'DRI') through Gurjit Singh, Intelligence Officer, was that

on 07.05.2007, a secret information was received at DRI Headquarters by

Kamal Kumar, Intelligence Officer at around 03.00 p.m. to the effect that

a silver colour vehicle make Mahindra Scorpio bearing registration No.

DL 7CC 8955, in which some narcotics drugs were concealed would

arrive near Trilokpuri T-Point, adjacent to Block No.8 at Gazipur, Noida

Road, Delhi in between 05.30 to 06.30 p.m. The secret information was

reduced into writing (Ex.PW-1/A) and put up before Pankaj K.Singh,

Deputy Director. He, after discussing the matter with Seniors, directed the

Investigating Officer to take necessary action.

3. Further case of the DRI is that a raiding party was organised

and two independent public witnesses PW-11 (Mohd.Idris) and PW-12

(Irfan Khan) were associated. The raiding team reached the spot and

started maintaining surveillance there. At around 05.30 p.m., they spotted

one silver colour Mahindra Scorpio vehicle bearing registration No. DL

7CC 8955 coming from the side of Khichripur. The vehicle was signalled

to stop. It was being driven by the appellant - Mandeep Singh and the

other occupant was the appellant - Gurudev Singh. They were apprised

about the secret information and were shown search authorisation

(Ex.PW-2/A). Since the spot being a crowded place was not conducive to

conduct further search proceedings, the Investigating Officer asked both

the appellants to accompany them to the office of DRI situated at Drum

Shape Building, IP Bhawan, IP Estate, New Delhi to which they

consented. Notices under Section 50 of the NDPS Act (Ex.PW-3/A and

Ex.PW-3/B) respectively were served upon the appellants there. Search of

the vehicle resulted in recovery of 33 transparent polythene packets

containing a cloth packet each, stuffed with some off-white colour

powdery / granular substance. Out of 33 packets, 10 packets were found in

a light green colour shoulder bag placed in the space for leg room between

the front and the middle seat; 12 packets were found concealed beneath

the foot mat of the middle and rear seat and the remaining 11 packets were

found concealed inside the Stepney of the vehicle.

4. Further case of the DRI is that all the said packets when

opened in the DRI Office situated at 7th floor were found to contain white

colour cloth bags. On opening the cloth bags, it was found that 23 cloth

packets were containing a single layer transparent polythene packet, each

containing some off-white colour granular / powdery substance and the

other 10 packets were found containing double layer of transparent

polythene containing similar off-white colour granular / powdery

substance. These packets were opened one by one and a sharp pungent

smell was found emanating therefrom. A small quantity of substance was

taken from each of these packets and was tested individually and it gave

positive results for heroin. Gross weight of the packets was found to be

34.022 KG and the net weight came to be 33.065 KG. Some documents

including photocopies of RC, Insurance Certificate, Pollution Certificate,

Delivery Receipt, Toll payment slips and service book of the above

vehicle were also recovered from the dashboard of the vehicle. These

were seized vide seizure memo. Personal searches of both the accused

persons were conducted. Necessary proceedings were conducted at the

spot. Two representative samples of 5 grams each out of the heroin of

eight different lots were taken and marked. The samples were put in

separate zip locked polythene pouches. Test Memos in triplicate and a

detailed panchnama (Ex.PW-3/C) were prepared with regard to the

proceedings conducted at the spot.

5. On 08.05.2007, summons (Ex.PW-3/D) under Section 67 of

the NDPS Act were issued to the appellant - Mandeep Singh who

tendered his statement (Ex.PW-3/E) in his own handwriting in Punjabi.

Summons (Ex.PW-3/F) dated 08.05.2007 under Section 67 of the NDPS

Act were also served upon the appellant - Gurudev Singh who tendered

his voluntary statement (Ex.PW-3/G). They were arrested on 08.05.2007

and medically examined. Statements of the witnesses conversant with the

facts were recorded. Residential premises of the appellant - Gurudev

Singh at Trilokpuri were searched but nothing incriminating were

recovered from there. One red colour Tata Safari vehicle bearing No.DL

3CJ 8034 parked in the street near Gurudev Singh's house belonging to

accused Mandeep Singh was seized and searched but nothing

incriminating was recovered from there.

6. During investigation, eight sealed sample packets were

deposited with the CRCL Delhi on 09.05.2007 by PW-6 (Jagdish Rai)

along with duplicate Test Memos and the forwarding letter (Ex.PW-5/B)

given by PW-5 (Alok Aggarwal). The sealed parcels of the case property

were deposited in the Valuable Godown of the New Customs House

through PW-4 (D.P.Saxena). During investigation, it revealed that Rajbala

Gupta was registered owner of the vehicle in question. It was purchased

by the appellants for a sum of `5,15,000/- from M/s. Durga Motors, Preet

Vihar. `5,00,000/- were paid in cash and they took the delivery of the

vehicle on 04.05.2007. Balance amount of `15,000/- was to be paid at the

time of transfer of the vehicle in Gurudev Singh's name. The other vehicle

Tata Safari bearing No.DL 3CJ 8034 was found in the name of one

Muzzafar Shah. He had already sold it to one Nirmal Singh on 28.02.2003

who further sold it to one Surender Kumar of District Amritsar on

26.05.2003. Surender Kumar had further sold it to one Harchand Singh

after about three months of its purchase. Harchand Singh was found to be

confined in a case of NDPS Act in Amritsar Jail.

Upon completion of investigation, a complaint for

commission of the above said offences was filed against the appellants in

the Court on 01.11.2007. The learned Trial Court took cognizance of the

offence. The appellants were charged for commission of offences under

Sections 29 and 21 read with Section 29 of the NDPS Act. Appellant -

Mandeep Singh was further charged under Section 25 read with Section

29 of the NDPS Act. The appellants pleaded false implication and claimed

trial. DRI examined twenty-eight witnesses in all to establish their guilt.

In 313 Cr.P.C. statements, the appellants denied their involvement in the

crime and pleaded false implication. After hearing the learned counsel for

the parties and on appreciating the evidence, the Trial Court held both the

appellants guilty of the offences mentioned previously. Being aggrieved

and dissatisfied, the appellants had preferred the instant appeal.

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

examined the file. Learned counsel for the appellants urged that the Trial

Court did not appreciate the evidence in its true and proper perspective.

Mandatory provisions of Sections 42, 50, 55 and 57 of the NDPS Act

were not followed during investigation by the Investigating Agency. PW-

11 (Mohd. Idris) and PW-12 (Irfan Khan) have made vital improvements

in their depositions before the Court. Material discrepancies and

contradictions have emerged in their statements to suspect their presence

at the time of recovery of the contraband; their signatures were obtained

on blank papers. They being illiterate were unable to decipher the contents

of the documents written in English. Notices under Section 67 of the

NDPS Act were manipulated. The appellants were not apprised of their

legal right to be searched in the presence of Magistrate or Gazetted

Officer. Learned counsel further urged that delay in sending the samples

has remained unexplained. The vehicles recovered have not been

connected to the appellants. Rajbala Gupta, the registered owner of the

vehicle has not been examined. Gurudev Singh did not have conscious

possession of the contraband. There are infirmities about the colour /

quantity of the contraband recovered in this case. Learned counsel for the

respondent urged that there are no sound reasons to disbelieve the

statements of the prosecution witnesses including that of the public

witnesses. Huge recovery effected from the appellants cannot be planted.

Minor discrepancies here and there are of no consequence.

8. At the outset, it may be mentioned that all the above

contentions raised before this Court were urged by the learned counsel for

the appellants before the Trial Court at the time of final disposal of the

case. The Trial Court has dealt with all the relevant submissions minutely

in the impugned judgment and has given valid reasons to reject them. This

Court finds no good reasons to have a different view.

9. Secret information was received on 07.05.2007 on phone.

PW-1 (Kamal Kumar) testified that the secret information (Ex.PW-1/A)

received by him on phone in DRI office was reduced into writing bearing

his signatures at point 'A'. The said information was put up before PW-9

(Pankaj K.Singh), the then Deputy Director, who was administratively

immediate Senior to him and to whom he used to report directly. In the

cross-examination, he disclosed that the secret information was received

on official landline phone. Obviously, testimony of PW-1 (Kamal Kumar)

remained unchallenged on relevant facts. Merely because the secret

information was reduced into writing on a loose paper (Ex.PW-1/A), it

cannot be inferred that no such secret information was received. It is true

that there remains possibility of manipulation in case such a vital

information is recorded on a 'loose' paper. Efforts must be made by the

Investigating Agency to record such a crucial information in a proper

register duly maintained for such purpose to avoid any misuse or

manipulation. No motive was assigned to PW-1 (Kamal Kumar) to fake

the secret information received by him. PW-9 (Pankaj K.Singh) has

corroborated PW-1's statement. He deposed that the secret information

was put up before him by PW-1 (Kamal Kumar), Intelligence Officer on

07.05.2007. He perused it and after having discussion with Kamal Kumar

and Senior officers, directed Gurudev Singh, Intelligence Officer, to take

appropriate action for possible interception. The secret intelligence report

(Ex.PW-1/A) contained his endorsement from point 'D' to 'D' under his

signatures at point 'B'. He further claimed that PW-1 (Kamal Kumar) was

administratively subordinate to him and was bound to report him the

intelligence reports, if received directly. There are no good reasons to

disbelieve the statement of PW-9 (Pankaj K.Singh) which is in

consonance with the statement of PW-1 (Kamal Kumar). Nothing has

come on record to show that PW-9 (Pankaj K.Singh) was not immediate

superior officer of PW-1 (Kamal Kumar). This secret information was

brought to the notice of PW-11 (Mohd.Idris) and PW-12 (Irfan Khan) at

the time of associating them in the raid.

10. Crucial testimony to infer the appellants' guilt is that of PW-

3 (Gurjit Singh), Intelligence Officer. The investigation was assigned to

him after the secret information was received in DRI Office. In his Court

statement, he deposed that a raiding team consisting of he himself, Kamal

Kumar, S.K.Sharma and other Intelligence Officers was constituted. Two

public witnesses PW-11 (Mohd.Idris) and PW-12 (Irfan Khan) were

associated. At around 05.35 p.m., vehicle DL 7CC 8955 driven by

Mandeep Singh was signalled to stop. Gurudev Singh was also sitting in

the said vehicle that time. They were informed about concealment of

narcotics drugs on their person or in the vehicle. Contents of search

warrants were explained to them and they put their signatures over it

(Ex.PW-2/A). Since the place of interception being a busy road was not

suitable to conduct search proceedings, the accused persons were

requested to accompany them to Drum Shape Building, IP Bhawan, IP

Estate, New Delhi, to which, they agreed. Notices under Section 50 of

NDPS Act (Ex.PW-3/A & Ex.PW-3/B) were served upon them there.

Subsequently, recovery of the contraband was effected from the vehicle.

Punchnama and other proceedings were conducted. Certain documents

were also recovered from the dash-board of the vehicle. The accused

persons were arrested and from their search, two mobile phones along

with driving licence, etc. were recovered He further deposed that the case

property was deposited as per law after completion of proceedings at the

spot. He further deposed that on 08.05.2007 summons under Section 67 of

the NDPS Act were issued to Mandeep Singh and in response to that, he

tendered his statement (Ex.PW-3/E). Similarly, Gurudev Singh tendered

his statement (Ex.PW-3/G) voluntarily pursuant to the summons issued on

08.05.2007. During investigation, it revealed that Raj Bala Gupta was the

original owner of the vehicle in question. Summons (Ex.PW-3/R) were

issued for her appearance on 15.06.2007. She herself did not appear but

sent a letter along with documents (Ex.PW-3/S) informing that the vehicle

was sold by her to one Sirajuddin for ` 3 lacs. After recording statements

of various other witnesses including PW-13 (Onkar Singh) and PW-14

(Gaurav Mittal), it was found that the vehicle in question was purchased

by accused Gurudev Singh for a sum of `5,15,000/- on 04.05.2007.

11. In the cross-examination, the witness informed that PW-1

(Kamal Kumar) was not present when secret information was discussed

by him with Mr.P.K.Singh, Deputy Director. He fairly admitted that in the

secret information, there was no physical description of the accused and

number of its occupants. He further admitted that information was not

conveyed to the local Police Station before or after apprehension of the

accused. No document was prepared at the spot. Entire writing work has

done at DRI Office except notices under Section 50 of NDPS Act which

were given to both the accused on the ground floor of the building where

DRI Office was situated. He added that legal rights of the accused persons

were explained to them and they had stated that any DRI Officer could

take their search. Accused Mandeep Singh was comfortable with Punjabi

whereas accused Gurudev Singh was conversant with Hindi language. He

further disclosed that the contraband had been placed inside the stepney,

and under the mat and part of it was recovered from a bag, though there

was no specific cavity created in the vehicle for hiding it. He denied the

suggestion that the accused persons were used as scapegoats and real

culprit Sirajuddin was permitted to go scot free.

12. On scrutinising the entire statement of this crucial witness, it

reveals that despite lengthy and searching cross-examination, no material

discrepancies or infirmities could be extracted to suspect his version. The

appellants did not deny their apprehension on the date and time disclosed

by the witness. No suggestion was put to the witness as to when and under

what circumstances and from where, both these accused persons were

apprehended at the spot. In 313 Cr.P.C. statements, the appellants came up

with the plea that they were lifted from their respective houses. However,

they did not elaborate as to when and from where they were lifted and

how the Investigating Officer came to know about their presence at any

specific place of residence. Nothing has come on record to show if the

Investigating Officer was acquainted with accused persons before the

incident or had any animosity or ill-will to falsely implicate them in this

case. Mandeep Singh is a resident of Amritsar. He did not explain as to

how and for what purpose, he happened to visit the accused Gurudev

Singh in Delhi. None of the accused persons disclosed as to in which

specific business, they were involved.

13. Both the accused persons were found in possession of the

vehicle No. DL 7CC 8955. They failed to explain as to how the vehicle in

question of substantial value came in their possession and if so, from

whom and when. The vehicle having huge value is not expected to be

planted upon the accused persons. No other individual had approached the

Investigating Agency to claim its ownership or possession. During

investigation, it revealed that original registered owner of the vehicle was

Raj Bala Gupta. Investigating Officer had issued notice (Ex.PW-3/R) to

her to explain about the vehicle in question. She herself did not appear but

sent a letter along with certain documents (Ex.PW-3/S) informing that the

vehicle in question was sold by her on 23.02.2007 to one Sirajuddin. The

Investigating Officer issued notice to Sirajuddin who made statement

(Ex.PW-3/U). On that, summons (Ex.PW-3/V) were issued on 07.08.2007

to Onkar Singh. He surrendered certain documents i.e. delivery receipt,

vehicle registration certificate, insurance note, Form 29/30 and insurance

papers of ICICI Lombard (Ex.PW-3/W1 to Ex.PW-3/W9) pursuant to his

statement (Ex.PW-3/W). Summons (Ex.PW-3/X) were issued thereafter to

PW-Gaurav Mittal on 07.08.2007 who gave his statement (Ex.PW-3/Y)

and identified photos of both the accused persons (Ex.PW-3/Y1 to

Ex.PW-3/Y2). He informed that the photos were of Mandeep Singh and

Gurudev Singh who had purchased the vehicle from Onkar Singh and had

taken the delivery on 04.05.2007 at around 03.30 pm. The prosecution

examined PW-13 (Onkar Singh), Commission Agent for sale and

purchase of cars. In his Court statement, he deposed that on 04.05.2007,

he had sold the vehicle DL 7CC 8955 for a sum of `5,15,000/- to

Mandeep Singh and Gurudev Singh. On the date of deal for purchase of

the vehicle, they had given `5,00,000/- and were to make the balance

payment within 3 - 4 days. The vehicle was to be transferred in the name

of Gurudev Singh. On the day of deal, they had given him copy of the

driving licence and assured to supply voter I-card on return from Punjab.

The possession of the vehicle and the receipt of `5,00,000/- were given on

04.05.2007. They had kept the original papers as balance payment was

due towards the accused. Subsequently, the accused persons did not turn

up. He corroborated PW-3's statement of tendering statement (Ex.PW-

3/W) and of furnishing various documents (Ex.PW-3/W1 to Ex.PW-

3/W9). Nothing material emerged in the cross-examination to disbelieve

him. PW-14 (Gaurav Mittal) has corroborated in its entirety the statement

of PW-13 (Onkar Singh). He also revealed that he was running a

partnership firm in the name of M/s. Durga Motors. Vehicle No. DL 7CC

8955 was purchased by them from one Sirajuddin and at that time it stood

in the name of Raj Bala. The said vehicle was sold by them through PW-

13 (Onkar Singh) to the accused Gurudev Singh and Mandeep Singh for a

sum of `5,15,000/-. Both these witnesses had no ill-will / enmity against

the accused persons to falsely implicate them in this case. The prosecution

was able to establish complete chain of transactions from the registered

owner of the vehicle Rajbala Gupta to the accused persons. The

independent public witnesses PW-11 (Mohd.Idris) and PW-12 (Irfan

Khan) have also categorically deposed about the apprehension of the

accused persons from the vehicle in question in their presence. Recovery

of the several documents pertaining to the accused persons including their

photographs and driving licence lends credence to the prosecution case

about the vehicle in question to be in their possession at the relevant time.

14. PW-3's version has been fully corroborated by independent

public witnesses PW-11 (Mohd.Idris) and PW-12 (Irfan Khan). PW-11

(Mohd. Idris) deposed that on 07.05.2007, he was working as 'carpenter'

in CR building at ITO. On that day, when he along with his acquaintance

Irfan Khan (PW-12) was taking tea, 2 - 3 Officers requested them to join

some investigation. Both of them accompanied them in their vehicle at

Trilokpuri. After waiting for about 15 - 20 minutes, a silver colour vehicle

arrived at the spot which was in the occupation of two individuals. At the

spot, the occupants of the vehicle were shown a paper by the Officer and

thereafter the vehicle and both its occupants were escorted to DRI Office.

They also accompanied them to Drum Shape Building. On reaching at the

parking area of the DRI Office, both the occupants alighted from the

vehicle. They were again shown some papers by the officers. Some

inquiries about search of the vehicle in the presence of a Magistrate were

made. Both the occupants gave their replies that any officer of DRI could

take search of their vehicle. On search of the vehicle, 20 - 25 packets

were recovered; 10 -15 packets were concealed in the dickey and some

were recovered from below the mat. The recovered packets were taken by

the officers to 7th floor of the building. They examined the recovered

packets with some white colour powder. Thereafter, recovered material

i.e. white powder and its packing were seized and sealed by the officers.

Certain documents prepared by them were signed by him and his

associate. He identified his signatures on various documents. He further

deposed that after 2 -3 days again, he was called to sign certain

documents. He identified both the accused persons in the Court. In the

cross-examination, he informed that he was illiterate and could only sign

his name in Hindi. He was working as a carpenter for the last 15 - 16

years. Irfan Khan was working with him for the last 8 years as carpenter.

He and Irfan Khan both were approached and asked simultaneously by

DRI Officers to accompany them on the day of occurrence. The officers

had two vehicles. No barricades were put on the road by DRI staff. He

fairly admitted that no special space was created for concealing the

substance and it was kept below the mat and stepney. He admitted the

suggestion that they had remained present in DRI Office till late evening.

He volunteered to add that they were there till 09.00 pm. He denied if they

had put any signatures under pressure from DRI Officers. Similar is the

testimony of PW-12 (Irfan Khan) who has corroborated PW-11's version

in its entirety without major deviations.

15. Presence of both these witnesses at the time of recovery of

the contraband has not been challenged. No ulterior motive was assigned

to them for falsely making statements against them. In the absence of

prior ill-will or animosity, both these independent witnesses who had no

familiarity with the accused persons whatsoever were not expected to

depose falsely. They were available to the prosecution even after the

recovery of the contraband and pursuant to summons issued under Section

67 of the NDPS Act, they had tendered their statements on 08.05.2007.

Minor contradictions, inconsistencies and discrepancies in their statements

highlighted by appellants' counsel are inconsequential. They do not go to

the root. Moreover, their statements before the Court were recorded after

a considerable period of the occurrence. They were not so well educated

to give minute details of the documents prepared long back by DRI

officers. The fact remains that both these independent public witness were

present at the time of appellant's apprehension and recovery of the

contraband from their possession in the vehicle. They have clearly and

categorically identified both of them to be the individuals arrested in their

presence and from whom the contraband was recovered. They clearly

deposed that the appellants were duly apprised their legal rights to be

searched in the presence of the Magistrate or a Gazetted Officer. The

Court has no reasons to disbelieve them. Nothing has come on record to

infer if they were stock witnesses and were in the habit of making such

statements in various other similar cases.

16. I find no merit in the appellants' contention that there was no

substantial compliance of Section 50 of the NDPS Act. Record reveals

that after the appellants were brought in the parking area of Drum Shape

Building, notice under Section 50 of the NDPS Act (Ex.PW-3/A) was

served and explained to accused Gurudev Singh and he was given option

to get conduct the search in the presence of a Magistrate or a Gazette

Officer. In response to it, the accused Gurudev Singh in its own

handwriting from portion 'B' to 'B' clearly permitted any DRI officer to

search. It also bears signatures of PW-11 (Mohd.Idris) and PW-12 (Irfan

Khan) at point 'D' and 'E'. Similarly, notice under Section 50 of the

NDPS Act (Ex.PW-3/B) was served to Mandeep Singh. His endorsement

in Punjabi script, finds mention from portion 'B' to 'B' under his

signatures at point 'C'. It also bears signatures of independent public

witnesses at point 'D' and 'E'. Apparently, there was due compliance of

Section 50 of the NDPS Act. The Trial Court has discussed this aspect in

detail in the impugned judgment.

17. The prosecution was fair enough to inform that the premises

of co-accused Gurudev Singh were searched on 08.05.2007 and nothing

incriminating was recovered from there. PW-7 (Poonam Aggarwal)

informed that one Raj Kaur was present in the house at Trilokpuri at the

time of search. She had informed that a vehicle of red colour brought by

accused Mandeep Singh was lying parked outside in the 'gali' and she

provided its key. On search of the said vehicle, nothing incriminating was

found. PW-10 (Jyotimon) also stated that the vehicle Tata Safari bearing

No. DL 3CJ 8034 and Gurudev's residence were searched vide

punchnama (Ex.PW-10/A). The execution report (Ex.PW-10/B) was

submitted by him to Assistant Director. During inquiry, it revealed that

vehicle No. DL 3CJ 8034 was registered in the name of Muzzafar Shah a

resident of B-20, 2nd Floor, Pamposh Enclave, New Delhi. He could not

be traced at the given address and was found to be residing in the State of

Jammu and Kashmir. PW-23 (Taseem Sultan) of DRI conducted enquiry

regarding him and submitted report (Ex.PW-23/B) and letter (Ex.PW-

23/A) whereby it came to the knowledge of the Investigating Agency that

said vehicle had already been sold to Nirmal Singh in 2003. Nirmal Singh

was working as a broker and was resident of Punjab. He did not get the

vehicle transferred and his statement (Ex.PW-25/C) was recorded. He also

produced original documents including the delivery receipt of the said

vehicle sold to one Surender Kumar. On examination, PW-22 (Surender

Kumar) stated that he has purchased the vehicle in 2003 itself and had

sold it to one Harchand Singh. He also tender statement (Ex.PW-22/A)

during investigation. Harchand Singh was fond to be confined in jail in

some other case. Ownership and possession of the vehicle No. DL-3CJ

8034 is of no much relevance as on its search, nothing incriminating was

recovered from inside it.

18. Regarding non-compliance of Section 55 of the NDPS Act

about safe deposit and custody of the case property, nothing has come on

record to show that it was tempered with any time in any manner. Since

DRI did not have any 'malkhana' for deposit of the case property, it was

kept in the Valuable Godown of the New Customs House. PW-3 (Gurjeet

Singh) specifically deposed that the sealed parcels of the case property

and samples along with Test Memos were handed over by him to PW-5

(Alok Aggarwal) for safe custody after its seizure. PW-5 (Alok Aggarwal)

deposed that on 08.05.2007 after getting the case property and samples

along with Test Memos in triplicate for safe custody after its seizure from

PW-3 (Gurjeet Singh), he had kept it in his custody under lock and key.

On 09.05.2007, he had written a letter (Ex.PW-5/B) to the Chemical

Examiner, CRCL whereby he had authorised PW-6 (Jagdish Rai) to carry

eight sample packets in sealed condition for depositing in CRCL besides

the forwarding letter and sample packets. He had also handed over the

Test Memos in duplicate to PW-6 and after depositing the same, he had

handed over to him the acknowledgment issued by CRCL in token of its

receipt. PW-6 (Jagdish Rai) also deposed and corroborated PW-5's

statement regarding handing over of eight sealed sample packets having

the seal of Directorate of Revenue Intelligence 10 along with Test Memos

in duplicate and forwarding letter (Ex.PW-5/B) for depositing in CRCL.

He had deposited the said samples in intact condition vide

acknowledgement (Ex.PW-6/A). PW-16 (Jaiveer Singh), Lab Assistant,

CRCL had received the sealed samples from PW-6 and had issued the

acknowledgment (Ex.PW-6/A) indicating that all these samples were in

intact condition. He further deposed that he had checked the seals and

found these in intact conditions. These bore impression of Directorate of

Revenue Intelligence-10 and matched with the facsimile of seal given on

the Test Memos. These statements prove beyond doubt that the case

property was deposited in intact condition with CRCL.

19. PW-5 (Alok Aggarwal) informed that on 10.05.2007, he had

directed PW-4 (D.P.Saxena) to prepare a deposit memo with the

assistance of IO PW-3 (Gurjeet Singh) for depositing the case property in

Valuable Godown. After the preparation of the memos, he had signed it

and had also handed over the memos and sealed case property to PW-4

(D.P.Saxena) to deposit in the Valuable Godown. Subsequently, its

acknowledgment was given to him by PW-4. PW-4 (D.P.Saxena) also

corroborated his version regarding the preparation of the deposit of

memos and deposit of the sealed parcels of the case property by him in the

Valuable Godown on the said date. He also informed that he had handed

over the sealed parcel of the case property to PW-8 (D.B.Sharma) of

Valuable Godown and he had made an endorsement about its receipt in

safe condition. Similar is the statement of PW-8 about the deposit of the

case property and the endorsement made by him. He was specific to say

that at the time of deposit of the case property, he had checked the

detailed particulars given in the deposit memo and the seal affixed on it

which were of the impression of Directorate of Revenue Intelligence-10

and had sent to the Godown for safe custody. He proved entry (Ex.PW-

8/A) entered by him in the relevant register of Valuable Godown in this

regard. Moreover, when the case property was produced before the Court,

it was found in intact condition. It cannot be inferred at all that the parcels

were tempered with at any stage during investigation / trial.

20. Statements recorded under Section 67 of the NDPS Act made

by the accused further corroborate the prosecution's version. The personal

details recorded therein are not expected to have come into the knowledge

of the Investigating Officer without their disclosure by the accused

concerned.

21. In 313 Cr.P.C. statements, the accused persons did not give

plausible explanation about the incriminating circumstances proved

against them. They did not produce any cogent and reliable evidence in

defence to prove their false implication. The impugned judgment based

upon fair and proper appreciation of the legal evidence can't be faulted at

all. No intervention by this Court is required. Conviction of the appellants

is, thus, sustained.

22. Regarding sentence, the appellants have been granted

minimum sentence prescribed under the NDPS Act which cannot be

altered or reduced.

23. While maintaining conviction, Sentence Order is modified to

the extent that the default sentence for non-payment of fine under both the

heads will be one month each. Other terms and conditions of the Sentence

Order are left undisturbed.

24. The appeal stands disposed of in the above terms. Trial Court

record be sent back forthwith with the copy of the order. A copy of the

order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE NOVEMBER 03, 2015 / tr