Tarsem Singh vs Disrectorate Of Revenue ...
2015 Latest Caselaw 6604 Del

$~R-71
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Judgment reserved on :31.8.2015
                                    Judgment delivered on :04.9.2015


+      CRL.A. 637/2013


TARSEM SINGH                                         ..... Appellant
                           Through       Mr.Neeraj Bhardwaj, Advocate.
                           versus


DISRECTORATE OF REVENUE INTELLIGENCE ....Respondent
                           Through       Mr.Satish Aggarwal, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 16.7.2012 and 20.7.2012 respectively wherein the

appellant Tarsem Singh stood convicted under Section 21(C) read with

Section 29 of the Narcotic and Psychotropic Substances Act,

(hereinafter referred to as the NDPS Act). He has been sentenced to

undergo RI for a period of 10 years for each of his convictions and to

pay a fine of Rs.1 lac each in default of payment of fine to undergo SI

for a period of 6 months. Sentences were to run concurrently.

2 The nominal roll of the appellant has been requisitioned. This

reflects that as on date he has undergone incarceration of about 6 years

and 10 months; remissions being inapplicable to a conviction under the

NDPS Act.

3 The version of the prosecution is that pursuant to a secret

information (reduced into writing) on 02.01.2009. The accused was

intercepted in a TATA Sumo Vehicle at Singhu Border at about 2.00

a.m. on 03.01.2009. Two public witnesses had been asked to join the

raid. The vehicle was asked to stop, initially it did not stop, but

thereafter on chasing it was stopped. On checking the vehicle the

appellant was apprehended. There was one more person Shera who was

a passenger in the car but he managed to flee. Notice under Section 50

of the NDPS Act (Ex.PW-4/A) was served upon the accused informing

him about his right to get his search conducted before a Gazetted Officer

or a Magistrate. He declined the same. From a cavity behind the tail

light of the TATA Sumo Vehicle, Heroin/diacetylmorphine was

recovered which after weighing was found to be 7.896 kg. Accused was

apprehended and arrested. His statement under Section 67 of the NDPS

Act was recorded. The case property was seized; from the case property

5 gram samples were taken at the spot. Test memos were prepared at

on spot. The case property was deposited in the Malkhana and

thereafter sent to the CRCL; which on analysis, tested positive for

diacetylmorphine.

4 On the basis of the aforenoted evidence oral and documentary, the

accused was tried, convicted and sentenced as aforesaid.

5 On behalf of the appellants, arguments have been addressed in

detail. It is pointed out that the mandate of Section 50 of the NDPS Act

has not been complied with in true letter and spirit. It was incumbent

upon the Investigating Agency to have produced the accused before a

Gazetted Officer or a Magistrate but this has not been done. To support

this submission, learned counsel for the appellant placed reliance upon

AIR 2011 SC 1939 Narcotics Central Bureau Vs. Sukh Dev Raj Sodhi.

There was no DD entry recorded regarding the secret information. This

is a lacuna which is not explained. To support this submission learned

counsel for the appellant has placed reliance upon 2005 [1] JCC

[narcotics] 57 Eze Val Okeke @ Val Eze Vs. Narcotic Control Bureau.

Co-accused Shera was permitted to escape. He was the real culprit.

This was the defence of the appellant right from inception and even in

his statement recorded under Section 313 Cr.P.C. He had disclosed that

he was only the driver of the vehicle and had been directed to go to

Delhi. The contraband had been planted upon him. Shera was the

passenger who was travelling in the car and the contraband belonged to

him and not to the appellant. It is pointed out that the statement of the

appellant recorded under Section 67 of the NDPS was retracted vide

Ex.PX; this statement could not have been read against him. On all

counts the appellant is entitled to benefit of doubt and consequent

acquittal.

6 Arguments have been refuted. It is pointed out that the judgment

suffers from no infirmity.

7 Arguments have been appreciated. Record has been perused.

8 There were 13 witnesses who were examined by the prosecution.

The members of the raiding party have been examined as PW-1 (B.K.

Banerjee), PW-7 (R.Roy) and PW-9 (Hari Om).

9 PW-4 was a Tax Assistant, working in the DRI Headquarters. He

had deposed that on the fateful day he was called to the ground floor of

the building where he had joined the raid. He was informed by PW-7

that accused and his vehicle was required to be searched and notice

under Section 50 of the NDPS Act (Ex.PW-4/A) was prepared in his

presence. Two public witnesses were also present. The accused stated

that he could not write Hindi but could understand it. An option was

given to the accused informing him about his right to have his search

conducted either before a Gazetted Officer or a Magistrate and the same

was explained to him. This option was also reduced into writing. It was

read over to him and the endorsement of PW-4 was identified by him at

point A. Accused declined to get his search conducted either before a

Gazetted Officer or a Magistrate. Endorsement by accused has been

identified at point B. PW-4 was not cross-examined.

10 Before adverting to the testimony of other members of the raiding

party a perusal of Ex.PW-4/A shows that it bears an endorsement of the

appellant at point A. Ex. PW4/A was prepared by PW-7 and witnessed

by PW-4. Even otherwise it would be relevant to state that the recovery

had been effected not from the person of the appellant but from the

cavity behind the left tail light of TATA Sumo Vehicle which the

appellant was driving. As such in view of the judgment of the Apex

Court reported in 3(1999) 6 SCC 172 State of Punjab V. Baldev Singh

and 2005 SCC (Cri.) 943 State of H.P.V. Pawan Kumar notice under

Section 50 of the NDPS Act was not a mandate which was required to

be followed by the Investigating Agency. In this context, the following

observations of the Supreme Court are relevant.

"Sec.50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Sec. 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the N.D.P.S. Act is also recovered, the requirements of Sec. 50 of the Act are not attracted."

In the second judgment (supra), the Apex Court had held:

"Sec. 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying."

11 The second member of the raiding party who was examined was

the Investigating Officer R.Roy (PW-7). He deposed that on 02.01.2009

a secret information (Ex.PW-2/A) reduced into writing was received at

5.00 p.m. in the office of the DRI which was to the effect that two

persons would be carrying some narcotic drugs on their person or

concealed in a white colour Tata Sumo Vehicle No.PB 02X 6373 to

deliver it to some person in Delhi and they would be crossing the Singhu

Border around 2.00 a.m. on 03.1.2009.

12 Ex.PW-2/A has been perused. This document discloses that this

secret information had been reduced into writing by Inderjit Singh Sahni

(PW-2) and was discussed with Pankaj K.Singh, Deputy Director of

DRI (PW-8). At point B in Ex.PW-2/A the endorsement of PW-8 is

there which states that suitable action for seizure of the contraband may

be taken. Testimony of Inderjit Singh Sahni (PW-2) is to the effect that

he had received this specific secret information which he had forwarded

to his senior officer (PW-8). PW-8 has also corroborated this version

stating that this secret information was passed on to him by PW-2 and

he had made his endorsement at point B. Mandate of Sections 42(1) and

42(2) of the NDPS Act stood complied with. A separate DD entry

recording the secret information was not required as it was a secret

information. The same was written in Ex.PW-2/A. It was not

separately required to be endorsed in the dak register by a separate D.D.

It was on the basis of this secret information that PW-7 had been handed

over this investigation.

13 Further deposition of PW-7 is that pursuant to the secret

information two public witnesses Hari Om and Ashok Giridhar were

asked to join the raid. On reaching the spot the Tata Sumo Vehicle

No.PB 02X 6373 was found approaching from Singhu Border. A signal

was given to stop the vehicle but the vehicle did not stop. The vehicle

was chased and thereafter when the vehicle took a U turn and started

proceedings towards the Singhu Border at a high speed, the vehicle

suddenly stopped near Yadav Greens situated at GT Karnal Road, Delhi.

One of the two persons sitting in the vehicle managed to escape. He

was chased on foot but the effort was fruitless. The second accused i.e.

the appellant was apprehended. He was informed about the purpose for

which he had been apprehended. He disclosed his identity as Tarsem

Singh. Notice under Section 50 of the NDPS Act (Ex.PW-4/A) was

served upon him. He declined to get his search conducted before a

Gazetted Officer or a Magistrate. Reply was given by the accused to the

said effect at point B on Ex.PW-4/A. His search was conducted.

Nothing was recovered from his personal search. On the examination of

the vehicle 8 cloth packets having similar rubber stamping which were

concealed in a cavity behind the left side tail light of the vehicle were

recovered. These 8 cloth packets were taken to the office of DRI which

was on the 7th Floor; public witnesses were also present. A detailed

examination of the 8 cloth packets was carried out which disclosed that

these 8 cloth packets contained a polythene packet each which contained

a white coloured granular substance from which a pungent smell was

emanating. These packets were marked as X1 to X8. The total weight

of the contraband was 7.896 kg. This without the cloth packet and the

polythene packet; the gross weight was 7.891 kg. Three representative

samples 5 gram each from the recovered substance from the 8 cloth

packets were taken for the purpose of analysis. Remaining contraband

was sealed. A panchnama (Ex.PW-7/A) was drawn up. It was signed by

the appellant and the witnesses. The statement of the appellant under

Section 67 (Ex.PW-7/F) was recorded wherein he admitted that this

recovered contraband had been brought to him by Shera and this was to

be carried to Delhi by concealing it in the vehicle. The contraband

which was seized along with the samples and the test memo were

deposited in the malkhana.

14 Another member of the raiding party who was examined was Hari

Om. He was a public witness. He was examined as PW-9. He had also

supported the version of the prosecution and had stated that in his

presence the accused was apprehended and after notice had been served

upon him under Section 50 of the NDPS Act, the contraband was

recovered from his vehicle.

15 The owner of the Tata Sumo Vehicle, Harjinder Singh was

examined as PW-10. He had stated that this vehicle bearing registration

no.PB 02X 6373 was purchased by him in partnership with one Pragat

Singh and the vehicle had been given to Pragat Singh. Pragat Singh

was examined as PW-11. He had deposed that this vehicle was

purchased in the joint name of himself and PW-10 and this vehicle had

been given by PW-11 to his driver i.e. the appellant Tarsem Singh for

plying it as a taxi. He had told the appellant not to take the vehicle out

of the jurisdiction of Taran Taaran. He learnt later on, that this vehicle

had been impounded by the police for having recovered contraband

from it. In his cross-examination he admitted that the appellant was

working with him for the last about 2 -2 ½ years and he was not

involved in any earlier criminal activity. He denied the suggestion that

Shera, co-passenger, had been given this vehicle on an earlier occasion

and Shera was known to him.

16 Although an argument has been propelled before this Court about

the statement of the accused under Section 67 of the NDPS Act has

since been retracted and thus cannot be read against him. This Court

notes that the appellant has retracted this statement on 14.02.2009 i.e.

after a lapse of 40 days. In his statement recorded under Section 67 of

the NDPS Act, the appellant had revealed the information which was

only written on his own personal knowhow. He had stated that he was

working as a driver and had taken this vehicle to Delhi to drop the

contraband. This piece of evidence was disclosed by him in his

statement (Ex.P4/B). It was retracted more than 1 month and 10 days

later after he had made this statement which was clearly only after a

legal advice. Even otherwise it is relevant to note that this statement

recorded under Section 67 of the NDPS Act although is a piece of

evidence against the accused yet it is not a substantive piece of evidence

and has been used by the Trial Judge only for the purposes of

corroboration. There is no fault in this.

17 Testimony of PW-10 and PW-11 had established that the Tata

Sumo Vehicle which had formed the subject matter of the secret

information (Ex.PW-2/A) was admittedly registered in the name of PW-

10 who had come into the witness box. This vehicle was purchased

jointly by PW-10 and PW-11 but was in the custody of PW-11. PW-11

had given it to the appellant for the purpose of plying it as a taxi. The

appellant was warned not to take it out of Taran Taaran but the appellant

had disobeyed the instructions of his employer. He had taken this

vehicle to Delhi where on the way he was apprehended. Compliance

under Section 57 of the NDPS Act was effected vide Ex.PW-1/D.

B.K.Banerjee (PW-1) had in this context deposed that while he was

working as an Appraiser in the DRI headquarters, a report under Section

57 of the NDPS Act was submitted by PW-7 about the seizure and arrest

of the accused; the same was proved as Ex.PW-1/D. Nothing had

emerged in the evidence of PW-7 which could discredit his version.

The defense of the appellant as emanated in his statement under Section

313 Cr.P.C, that it was Sher Singh to whom the contraband belonged

and the appellant had no connection with the same is a defense which

did not emanate in the cross-examination of the witnesses and had

appeared only at the stage when the statement of the accused was

recorded under Section 313 Cr.P.C. which was after 3 years. That apart

this Court notes that in this statement the appellant had stated that he

used to park the vehicle in the night at the residence of his employer

(PW-11) and used to pick it up the next morning which he had done on

the fateful day as well. His further version is that Shera had hired this

vehicle. It is not his defense that Shera had hired this vehicle from his

employer Pragat Singh. If Shera had hired this vehicle from the

appellant and the appellant having picked up the vehicle in the morning

from the house of his owner, the further defense of the appellant that he

was not aware that the contraband had been fixed in a part of the tail

light of the vehicle is contrary to the rest of the defense adopted by him

as the vehicle was admittedly never in possession of Shera and thus

Shera would not have had a chance at any point of time to implant the

contraband in the vehicle. The defense of the appellant appears to be

dishonest and an afterthought.

18 After the samples and contraband had been received by Lakhi

Ram (PW-3) who was working as inspector in Valuable Godown

(through PW-7) entries in the Register were made after tallying the seal

impression which was affixed on case property with the facsimile of the

seal appearing in the test memo. These endorsements were proved as

Ex.PW-3/A and Ex.PW-3/B.

19 The sample tested positive for diacetylmorphine. The report of

the CRCL Ex.PW-6/B had also checked the purity percentage of

diacetylmorphine was found to be between 79-88% of the total 7.896 kg

which was above the commercial quantity (250 grams).

20 On no count does the impugned judgment calls for any

interference. The sentence imposed upon the appellant is also the

minimum.

21     Appeal is without any merit. Dismissed.




                                       INDERMEET KAUR, J
SEPTEMBER 4, 2015
ndn