Delhi High Court
Binod Kumar @ Bindu vs State on 24 August, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18th August, 2018
Pronounced on: 24th August, 2018
+ CRL.A. 557/2016
BINOD KUMAR @ BINDU ..... Appellant
Through: Ms. Naomi Chandra, Adv.
versus
STATE ..... Respondent
Through: Mr. G. M. Farooqui, APP for
State with SI Ramkishan, Crime
Branch, Shakarpur, Delhi
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
% JUDGMENT
1. Vide the impugned judgment dated 3rd March, 2016, followed
by order on sentence dated 10th March, 2016, the appellant stands
convicted, by the learned Special Judge, NDPS, under Section 20 of
the Narcotics Drugs and Psychiatric Substances Act, 1985 (hereinafter
referred to as "the Act"), and sentenced to rigorous imprisonment for
12 years and fine of ₹ 1,00,000/-, with default simple imprisonment of
six months.
2. The relevant facts, as set out in the Special Report, submitted by
SI Virender Singh (PW-15) under Section 57 of the Act, read thus:
"It is submitted that on 29/7/2012, secret information was
received vide DD No.4 at 10:30 AM and after compliance of
sec. 42 NDPS Act, a trap was laid near Monkey Bridge
behind Red Fort, ring road, Kotwali, Delhi. At about 12 Noon
one person namely Binod Kumar @ Bindu s/o Sumer Prasad
r/o N-9 B/274, Jhuggi Lal Bagh, Azadpur, Delhi was
apprehended along with a hired vehicle tempo No. DL 1 LL
9760, Notice U/S 50 NDPS act was served upon him and his
legal rights were explained. After his refusal, search of the
hired vehicle was conducted as per law. During search 5
plastic bags were recovered from his hired vehicle. All bags
were given mark 1 to 5. All bags were opened and checked. In
the plastic bags sl no. 1 & 2 was having 25-25 packets,
sl.no.30 was having 30 packets, Sl. No.4 was having 36
packets and Sl.No. 25 was having 23 packets. Weight of each
packet was 1 Kg each. Some small quantity was taken out
from each parcel and two sample of 250/250 gms each were
prepared. marked A & B. Rest of the Ganja recovered was
kept as it was recovered and all were kept in 5 pulandas and
marked as sl. No.1 to 5, FSL form filled up. All the pulandas
and FSL forms were sealed with the seal of SP. After use, the
saal was handed over to HC Suresh Kumar No. 1221/Cr. SI
Samar Pal took all the 7 pulandas and vehicle into police
possession through seizure memo and prepared rukka u/s
20/25 NDPS Act against the accused person and handed over
to Ct. Anil No. 1701/Cr. Along with the case property, FSL
form and carbon copy of the case property seizure memo for
registration of the case and depositing the case property by
SHO/Crime Branch, Delhi. The further investigation of the
case is being carried over by under signed. I reached on the
spot i.e. Monkey Bridge, behind Red Fort, Ring Road,
Kotwali. Delhi and prepared the site plan, interrogated the
accused persons, arrested the accused person namely Binod
Kumar @ Bindu s/o Sumer Prasad r/o N-9 B/274, Jhuggi Lal
Bagh, Azadpur, Delhi at 7 p.m. dated 29/7/2012 after his
sufficient evidence and recorded his disclosure statement.
Then I went to PS-Crime Branch and recorded the statement
of SHO/Crime Branch and MHCM/Crime Branch, later that I
again came back to the office of SOS and recorded the
statement of witnesses. Information of his arrest has been
given to his wife Savita personally. The investigation of the
case is in progress."
Witnesses cited by the prosecution
3. The witnesses cited by the prosecution may be divided into
three categories, viz.
(i) witnesses to the seizure and recovery of the ganja, i.e.
PW-9, PW-10, PW-11, PW-12, PW-14 and PW-15,
(ii) witnesses to the sampling and testing of the seized ganja,
i.e. PW-3, PW-5, PW-6, PW-7 and PW-13 and
(iii) other witnesses, i.e. PW-1, PW-2, PW-4, PW-9.
4. Of the various officers who constituted the raiding party,
evidence was led, by the prosecution, of HC Suresh, Constable Anil
Kumar and SI Samarpal Singh, who deposed as PW-10, PW-12 and
PW-14 respectively. To a large extent, the evidence of these three
officers was identical; so much so that the examination-in-chief of
PW-12 Const. Anil Kumar is a near unsettlingly verbatim
reproduction of the examination-in-chief of PW-10 HC Suresh. These
three witnesses deposed, in one voice, that (i) the raid team was
constituted by SI Samar Pal Singh (PW-14), (ii) the team left the
police station at 10:45 am and reached the area behind the Monkey
Bridge, Red Fort (iii) passers-by were requested to join the
investigation but they did not cooperate, (iv) the raiding team,
thereupon, constituted a nakabandi, (v) on the prompting of the secret
informer, a green Vikram tempo, bearing No. DL-1L-L9760, was
stopped by them, (vi) the driver of the tempo disclosed his identity to
be Om Prakash (PW-9), (vii) the person sitting beside the driver was
pointed out, by the secret informer, to be Bindu @ Binod Kumar who,
according to the secret informer used to carry ganja for Vinod Jha,
(viii) on being queried, the said co-passenger admitted that he was
Binod Kumar @ Bindu, (ix) a written notice, under Section 60 of the
Act (Ex.PW-10/A) was given to Binod Kumar, but he refused, (x) the
tempo was found to be carrying five kattas which, on being searched,
was found to contain ganja, (xi) the IO interrogated Binod Kumar,
whose disclosure statement was exhibited as Ex.PW-10/C, (xii) Binod
Kumar was arrested vide Arrest Memo Ex.PW-10/D and (xiii)
personal search of Binod Kumar was also conducted vide Personal
Search Memo Ex.PW-10/E.
5. All the aforementioned three witnesses, i.e., PW-10 HC Suresh,
PW-12 Const Anil Kumar and PW-14 SI Samar Pal Singh, correctly
identified the appellant, in court, as the co-passenger seated on the
front seat of the tempo beside Om Prakash (PW-9). The fact of
conducting of raid by SI Samar Pal Singh (PW-14) was also
confirmed by PW-8 Insp. Suhail Ahmed.
6. PW-9 Om Prakash was the key witness of the prosecution. He
deposed that, on 20th July, 2012, he was approached by one Binod
Kumar, who requested him to load five plastic bags, belonging to him,
on his vehicle and to transport the bags to Azadpur Delhi, for which he
offered to pay ₹800. He identified the appellant, in court, as the person
who had approached him. He confirmed that, while they were en route
to Azadpur, with the aforementioned consignment of Binod Kumar,
his vehicle was stopped by Police officials near Red Fort and that, on
the five bags being checked, ganja was found contained therein. The
police officials thereupon, took samples from the bags and seized the
vehicle vide Seizure Memo Ex.PW-9/A. His testimony withstood
cross examination.
7. HC Suresh, deposing as PW-10, testified that, on 29th July,
2012, a secret informer had informed him that "Binod Jha", who used
to deal in ganja, would be proceeding, with a consignment, towards
Azadpur, via Ring Road. He conveyed the said information to SI
Samar Pal Singh (PW-14), and a raid team was constituted, consisting
of SI Samar Pal Singh, himself, HC Yogender, HC Harvinder, HC
Vikram, Const. Lal Bahadur, Const. Harindra, Const. Pankaj, Const.
Ravinder and Const. Anil. He deposed that the raiding team
proceeded to the area behind the Red Fort, where attempts were made
to secure the assistance of passersby, but in vain. At about 12:15 pm,
one green Vikram Tempo, belonging to Om Prakash (PW-9)
approached, in which "Bindu @ Binod Jha", was sitting besides the
driver. The secret informer, on seeing them, stated that the appellant
used to carry ganja for "Vinod Jha". The raiding team stopped the
vehicle, and enquired of the identity of the persons seated therein,
whereupon the appellant disclosed himself to be Binod Kumar @
Bindu. The driver was found to be Om Prakash (PW-9).
8. PW-10 further deposed that notice, under Section 50 of the Act
(Ex. PW-10/A) had been given to the appellant - though, it may be
noted, as the seizure was effected from the tempo, and not from the
person of the appellant, the said provision was not applicable.
Thereafter, the tempo was searched. Five plastic kattas were found in
the tempo, with katta Nos. 1 and 2 having 20 packets each, katta No.
3 having 30 packets, katta No. 4 having 30 packets and katta No. 5
having 25 packets. In other words, there were a total of 139 semi-
transparent polythene packets, contained in the 5 kattas. On opening
the packets, they were found to contain a substance which smelt like
ganja. Each polythene was found to be weighing 1 kg thereby making
a total of 139 kg ganja.
9. It was further deposed by PW-10 HC Suresh that the "IO had
taken out sample from each and every packets and two samples of 250
gms each were drawn and these two samples were kept in two separate
polythene, tied with the rubber band and then the same were kept in
two separate cloth parcels and marks A & B were given to the
parcels".
10. The sealed parcels, FSL Form and the tempo were taken into
possession by the IO (PW-14), vide Seizure Memo (Ex. PW-9/A).
Tehrir was prepared by Const. Anil Kumar (PW-12). Sometime later,
SI Virender arrived at the spot and prepared the site plan. The IO
interrogated the appellant and recorded his disclosure statement as
Ex.PW-10/C. Thereafter, the appellant was arrested vide Arrest Memo
Ex. PW-10/D, and subjected to personal search vide Personal Search
Memo Ex PW-10/E.
11. PW-10 correctly identified the appellant, who was present in
Court. He also identified the seized ganja. It was seen, however, that,
in the kattas serial no. 1 and 3, only 24 polythenes and 29 polythenes
were found as against the original quantity of 25 polythenes and 30
polythenes, which fact was also noted by PW-10, HC Suresh in his
statement.
12. PW-10 further acknowledged that he did not know whether the
IO had made any inquiry to ascertain if the contraband found in the
vehicle belonged to Om Prakash. He also stated that no public person
was invited to join the investigation. He also deposed that no family
member of the accused put his/her signature on the Arrest Memo of
the accused, in his presence.
13. The deposition of Anil Kumar (PW-12), also a member of the
raiding team, was to a large extent, a verbatim reproduction of the
deposition of HC Suresh (PW-10). Const. Anil Kumar, too correctly
identified the plastic kattas and the ganja contained therein, and other
case property, when shown to him in court.
14. In cross-examination, PW-12 deposed that the accused was
referred to, by the secret informer, as "Binod Kumar @ Bindu", and
that he was so referred to, by any other name, in his presence. He
further stated that, though public persons were invited to join the
investigation, they did not cooperate. He also confirmed that no person
from the nearby temple, was called to join the investigation. He also
deposed that "family members of the accused were also not called at
the spot". He further stated that he had been informed by the IO that
"Bindu" used to work for Vinod Jha; however no attempt was made
either to arrest Vinod Jha or investigate his role.
15. PW-11 ACP Krishan Kumar Sharma merely confirmed, in his
deposition, during trial, dated 2nd May, 2015, that he had directed
Inspector Suhaib Ahmed Farooqui (PW-10) to constitute a raiding
party. He confirmed having received his Special Report under Section
57 of the Act, dated 30th July, 2012 (Ex.Pw-11/A).
16. The next witnesses, to the seizure, PW-14 Inspector S. P. Singh,
the IO, tendered his evidence on 28th August, 2015. He confirmed that
the raiding team had made a nakabandi near the Monkey Bridge, Ring
Road and had started checking all vehicles. He confirmed having
intercepted the green Vikram tempo, in which the appellant was found
sitting besides the driver of the tempo. He also confirmed that the
secret informer, on seeing the tempo, stated that the appellant (whose
name was ascertained, on enquiry, to be Bindu @ Binod Kumar) used
to carry ganja for Vinod Jha. On enquiry, he deposed that the driver of
the tempo was Om Prakash. He confirmed having served a notice
under Section 50 of the Act, on the appellant. As regards the contents
of the tempo, his deposition was, again, identical to that of Inspector
Suhaib Ahmed Farooqui (PW-8), and HC Suresh (PW-10). In court,
he identified the three plastic kattas, which were found contained 24,
25 and 29 plastic polythenes, and also confirmed that the kattas
originally contained were 25, 25 and 30 plastic polythenes. He
identified the ganja which was contained in the said plastic
polythenes.
17. The above versions of PW-8, PW-10, PW-12 and PW-14 were
confirmed by SI Virender Singh (PW-15), also a member of the
raiding party. Significantly, however, PW-15 also acknowledged
having obtained the signatures of Sunita Devi, wife of the appellant,
on the Arrest Memo at a later date.
18. Apart from the above, PW-8 Inspector Suhaib Ahmed Farooqui
deposed that, on 29th July, 2012, he was informed by the secret
informer, that "Vinod Jha" would reach near Lal Qila with a huge
consignment of ganja, and that he informed the ACP Krishan Kumar
Sharma (PW-11) accordingly. ACP Krishan Kumar Sharma, as
already noticed hereinabove, confirmed this fact and stated that, on
receipt of information from Inspector Suhaib Ahmed (PW-8), he
directed Inspector Suhaib Ahmed to constitute a raiding party, which
was, ultimately, constituted by SI Samar Pal Singh (PW-14).
19. From the above depositions, it is obvious that there was some
ambivalence regarding the identity of the person who, according to the
secret informer, would be carrying ganja, and learned counsel for the
appellant understandably seeks to capitalize thereon. PW-8 Inspector
Suhaid Ahmed Farooqui deposed that the information, provided by the
secret informer was that "Vinod Jha supplier of ganja" would be
reaching Lal Qila with the consignment. In cross examination, he
confirmed that the secret information received was about "Vinod Jha"
and there was no reference to "Binod Kumar @ Bindu". As against
this, PW-10 HC Suresh, whom the secret informer had actually met,
deposed that the information given by the secret informer was that
"one person, namely, Vinod Jha, a resident of Azadpur, Lal Bagh
Jhuggi, used to deal in ganja and he would proceed towards Azadpur
via Ring Road to supply ganja...".
20. ACP Krishan Kumar Sharma, deposing as PW-11, on the other
hand, testified that Inspector Suhaib Ahmed Farooqui had informed
him that HC Suresh had received information from the secret informer
to the effect that one person, namely, "Vinod Jha" who used to deal in
ganja, would be proceeding towards Lal Quila. Const. Anil Kumar
(PW-12), who was also informed by the secret informer, deposed that,
on 29th July, 2012, the secret informer informed him that "one person,
namely, Binod Jha" would be proceeding towards Azadpur, carrying a
consignment of ganja. In cross-examination, however, he admitted
that the information given by the secret informer was to HC Suresh,
and not to him. Again, Inspector SI Samar Pal Singh, deposing as
PW-14, referred to the persons, regarding whom secret information
had been received, as "Binod Jha".
21. While, therefore, there was marked ambivalence amongst the
various witnesses inter se, regarding the first name of the person who,
according to the secret informer, would be carrying ganja, spanning
the distance between "Binod" and "Vinod", none of the witnesses
testified to have received any information regarding "Binod Kumar".
22. As regards "Vinod Jha", while HC Suresh (PW-10) and Const.
Anil Kumar (PW-12) deposed that no investigation was carried out, by
the IO, regarding the said person, and no attempt was made to arrest
him, the second IO, SI Virender Pal Singh, deposing as PW-15,
testified that he, along with HC Suresh, Const. Anil Kumar, HC
Ravinder, and Binod Kumar, went to Patna in search of the supplier
Vinod Jha, but could not trace him. On this issue, too, therefore, the
actual position is unclear, with the IO SI Virender Pal Singh asserting
that efforts had, in fact, being made to trace Vinod Jha, for which
purpose the team had proceeded to Patna, and HC Suresh and Const.
Anil Kumar, who was stated by him, to have been members of the
team deposing otherwise, stating that no efforts were made to
investigate Vinod Jha, or to arrest him.
23. The manner in which the 5 kattas, found in the Vikram tempo
of Om Prakash, were examined and searched, is described thus, in the
statements of PW-10 HC Suresh:
"... Thereafter, IO conducted the search of aforesaid tempo.
There were five plastic kattas inside the tempo. IO had given
serial no.1 to 5 to these five plastic kattas. IO checked all the
five plastic kattas. Plastic katta bearing serial no.1 and 2 were
having 25 packets each. Katta bearing serial no.3 was having
30 pkts. Katta bearing serial no.4 was having 36 packets and
plastic katta bearing serial no.5 was having 23 packets. There
were total 139 packets in semi transparent polythenes. All the
packets were having khaki colour tape. IO opened the plastic
kattas and these were found containing flowering tops and
seeds. From the physical appearance and from the smell these
found to be ganja. Thereafter, IO weighed each semi
transparent polythene containing ganja and it came to be 1 kg
each. IO had taken out sample from each and every packet
and 2 samples of 250 gm each were drawn and these two
samples were kept in two separate polythene, tied with the
rubber band and then the same were kept in two separate cloth
parcels and mark A and B were given to the parcels. The
remaining ganja was kept in the respective packets and then in
the respective plastic kattas and the mark 1 to 5 had already
been given to these kattas. IO prepared form FSL at the spot.
IO affixed his seal, i.e. SP on all the five parcels bearing no.1
to 5, A and B, the seal after use was given to me. Thereafter,
IO had taken into his possession all the sealed parcels, the
FSL Form and also the aforesaid tempo into his possession
through seizure memo vide Ex. PW9/A, which bears my
signatures at point B. Therafter, IO prepared tehrir and gave
the same to Ct. Anil Kumar with the direction to hand over
the same to the duty officer. IO had also given all the seven
sealed parcels, FSL Form and carbon copy of seizure memo to
Ct. Anil with the direction to hand over the same to SHO, PS
Crime Branch."
This stands fully corroborated by statements of PW-12 Const.
Anil Kumar and PW-14 SI Samar Pal Singh.
24. Besides the above, the only other witness to the raid was PW-9
Om Prakash, who was the "star witness" of the prosecution, and on
whose statement learned counsel Mr. Farooqui emphatically relies.
According to the statement of Om Prakash, he used to drive a
Mahindra Champion vehicle, using which he used to deliver filter at
M/s Studds Company, Faridabad, Haryana. He further deposed that
on 28th July, 2012, on the way back from M/s. Studds Company, his
vehicle developed a snag at the Badarpur Border, for which purpose
he called the mechanic at 9 am, the next day, who repaired the vehicle.
In the meanwhile, he deposed, "one person whose name later on
revealed as Binod Kumar came to (him) and asked (him) to load his 5
plastics bags and take the same to Azadpur", for which an amount of
Rs. 800 was settled between them. He identified the appellant, in
court, as the said Binod Kumar. He further deposed that Binod Kumar
loaded the five plastic bags in his vehicle and that, while they were
proceeding towards Azadpur, they were intercepted by police officials,
who checked the bags and found that they contained ganja. He also
confirmed that samples had been taken, by the police officials, from
the bags, which were seized vide Seizure Memo Ex.PW-9/A.
25. In cross examination, however, PW-9 Om Prakash, on being
queried, was unable to disclose the name of the mechanic who
repaired his vehicle on 28th July, 2012. He also stated that he had
never informed his office regarding the defect in his vehicle. He
further admitted that he had no bills regarding the goods allegedly
consigned to him by Binod Kumar for carriage to Azadpur, even while
acknowledging that "whenever (he) was carrying any goods of any
customer, it was always with the bill of that goods".
26. It may be noted, here, that SI Virender Singh (PW-15), the
second IO, in his deposition, confirmed that none of the documents
recovered from PW-9 Om Prakash, or from his vehicle, contained the
name of Binod Kumar @ Bindu.
27. Inasmuch as there is no serious dispute regarding the
transmission of the sample to FSL for analysis, detailed reference to
the process adopted therefore, may not be necessary. Suffice it to state
that the MHC (M), HC Jag Narayan, deposing as PW-3, confirmed
that he handed over the pullanda marked "A", sealed with the seals of
"SP" and "CRM" to Const. Lalit Kumar, for being deposited in the
FSL, and Const. Lalit Kumar, deposing as PW-6, confirmed having
deposited the same sample marked as "A", in the FSL.
28. Santosh Tripathi, SSO (Chemistry) in the FSL, deposing as PW-
7, confirmed that he received, on 22nd August, 2012, the
aforementioned sealed cloth parcel, marked "A", with seal
impressions of "SP" and "CRM" and subjected it to physical,
microscopic, chemical and TLC examination, whereupon it was found
to be "ganja" (Cannabis).
29. The examination report (Ex.PW-2/A), dated 20th September,
2012, of the FSL, may be reproduced thus:
"EXAMINATION REPORT
1. Report No. FSL.2012/C-6113 Date : 20.09.12
2. Ref.No. 1277, 4PP/SHO/Crime Branch, Malviya
Nagar, dated 22.08.2012, From SHO/Crime Branch
Malviya Nagar.
3. FIR No. 203/12, PS - Crime Branch Malviya Nagar,
dated 29.07.12, U/S 20/25 NDPS Act.
4. Mode of Receipt : through Ct. Lalit, No. 499/Crime.
5. Date of Receipt : 22.08.2012
6. Articles(s) Received : One sealed cloth parcel.
7. One sealed parcel. Seals were found intact and tallied
as per forwarding authorities specimen seals.
8. Details of the Parcels/Exhibit received :
No. of No. of Seals & Description of
Parcels/ seal Impression Parcels/Exhibits
Exhibits
Parcel-A Three seals of One sealed cloth
"SP" & one seal parcel found to
of "CRM" contain exhibit „A‟
kept in a polythene.
Exhibit-„A‟ Greenish brown
colour fruiting and
flowering vegetative,
tops having
characteristic
cannabinoids odour,
weight 258.7 gm
(approx) with
polythene.
9. Purpose of reference :- For Chemical Examination &
Report.
10. Dates of Examination : 05.09.2012 to 20.09.2012
11. RESULT OF EXAMINATION REPORT
On Physical, Microscopic, Chemical and TLC examination,
exhibit „A‟ was found to be „Ganja‟ (cannabis).
12. After the examination, the remnants of the exhibits
have been sealed with the seals impression as per specimen
provided below:"
30. After recording of the statements of the various PWs were
complete, the statement of the appellant, under Section 313 of the
Cr.P.C., was recorded. The appellant‟s statement was in the form of a
bald denial, totally disowning having anything to do with ganja, or the
transport thereof, or of the interception and seizure thereof, by the
raiding team. He claimed that he had, in fact, been brought from his
house in the wee hours of the night and embroiled in a case, with
which he had no concern.
31. The appellant cited four witnesses in his defence, namely DW-1
Suraj (his son), PW-2 Sunita Devi, (his wife), DW-3 SI Ganesh
Kumar and DW-4 Vipin Kumar (his uncle).
32. DW-1 deposed that at about 1 - 1:30 am on 28th July, 2012, his
father i.e., the appellant was called out of the house by someone with
whom he conversed for about 15 minutes, whereafter his father was
taken to PS Darya Ganj. He further stated that he waited for his father
till 2 - 2:30 am whereafter he went to sleep and that, on waking up at 7
am he went to his uncle Vipin Kumar (DW-4) and narrated the
incident. He claims that he had thereafter, attempted to call his father
on his mobile phone, which was switched off, and that DW-4 had
advised him to wait as the police "might leave" his father after
sometime.
33. DW-2 Sunita Devi, after returning from Haridwar on the next
date, i.e., 30th July, 2012 supporting the deposition of DW-1, stated
that she had returned to Delhi on 30th July, 2012 and come to know
that her husband, i.e., the appellant had been taken to PS Darya Ganj
and that, on her visiting the Police Station, the police officials
reluctantly allowed her to meet the appellant.
34. DW-4 (Vipin Kumar), the uncle of the appellant, deposed that,
on 29th July, 2012, DW-1 had informed him that his father, i.e., the
appellant, had been taken away by certain persons the previous night.
He further deposed that he had attempted to call the appellant, but
found that his mobile phone was switched off and that, after waiting
for his brother to return, the whole of that day, he, on 30 th July, 2012
(as 29th July, 2012 was Sunday), sent a fax complaint (Ex. DW-3/A) to
PS Darya Ganj, regarding the lifting of his brother by the Police
officials.
35. DW-3 SI Ganesh Kumar confirmed the receipt of the complaint
dated 30th July, 2012, made by DW-4 (Vipin Kumar).
36. Consequent on the above investigation, the appellant was
charged for having committed the offence under Section 20 of the Act.
He pleaded innocence and clamed trial.
37. Having assimilated the evidence in the manner aforementioned,
the learned Special Judge proceeded, vide the impugned judgment,
dated 3rdMarch 2016, to convict the appellant under Section 20 of the
Act, entering, in the process, the following findings:
(i) Learned counsel for the appellant had sought to submit
that the case was one of mistaken identity, in which the
appellant was wrongly implicated in place of one "Vinod Jha".
It was emphasised, by learned counsel for the appellant, that the
appellant was not "Binod Jha" but "Vinod Kumar", who had
nothing to do with "Vinod Jha". This submission was rejected,
by the learned Special Judge, placing reliance, for the purpose,
on the testimony of HC Suresh (PW-10) (who was the person
contacted by the secret informer), to the effect that the
information received was in respect of "Binod" and not
"Vinod". This aspect, it was noted by the learned Special
Judge, had not been clarified in his cross-examination.
Similarly, PW-12 Const. Anil Kumar, had also referred to the
person, regarding whom secret information was received, as
"Binod" and not "Vinod". The contention that the secret
information received was with respect to "Vinod" and not
"Binod", could not, therefore, be accepted. In any event, held
the learned Single Judge, the names "Vinod" and "Binod" were
interchangeably used by many persons, the difference being
purely phonetic in nature.
(ii) The next contention, advanced on behalf of the appellant,
regarding non- association of public witnesses in the raid, was
also rejected, relying, for the purpose, on the judgment of the
Supreme Court in Karamjit Singh v. State, AIR 2003 SC 1311.
(iii) Evidence of an independent witness, namely, PW-9 Om
Prakash, driver of vehicle, in which the kattas containing the
ganja, were being transported was available. No suggestion was
put, to Om Prakash, to the effect that the kattas being carried in
the vehicle did not belong to the appellant, or that they did not
contain narcotics.
(iv) The version, of the appellant, that he had been lifted from
his house at 1:30 am on 28th July, 2012, could not be accepted,
as there was no reason for the Police, who bore no enmity with
the appellant to behave in such a manner.
(v) The fact of recovery of the ganja had not been
contraverted or challenged by the appellant.
(vi) All mandatory procedures, as required by the Act, had
been followed. Certain minor inconsistences regarding putting
of barricades, etc., among the statements of the various PWs
had been sought to be urged; however, they did not dilute the
total weight of the evidence otherwise available.
(vii) As regards the signatures of the appellant‟s wife Sunita
on the Arrest Memo, it had been confirmed by PW-15 SI
Virender Singh, that he informed her of the fact of the
appellant‟s arrest by mobile, and that her signatures were
obtained on the Arrest Memo only later.
(viii) The evidence of the defence witnesses was incapable of
acceptance. According to DW-1, he, as well as his three sisters,
of which the youngest was in 12th class, were present in the
house at 1 - 1:30 am when his father was being taken away by
the Police. Even so, in cross-examination, DW-1 confirmed
that he did not wake up any of his sisters. It was unbelievable
that he would calmly go to sleep, thereafter, and inform his
uncle only the next morning, and that complaint would be
lodged with the Police authorities only two days later. No
complaint, regarding false implication of the appellant had been
made by any of his family members.
38. Following on the analysis of the evidence, as noted
hereinabove, the learned Special Judge, holding that the testimony of
the prosecution witnesses, though they were police officials, inspired
confidence, and had been corroborated with the available documents,
held that the conscious possession, by the appellant Binod Kumar @
Bindu, of 139 kg ganja, at 12:15 pm on 29th July, 2012, stood
conclusively proved. The test report of the FSL also proved the
consignment to be containing ganja. In these circumstances, the
learned Special Judge held that the appellant was liable to be
convicted under Section 20 the Act.
39. Vide subsequent order, dated 10th March, 2016, the learned
Special Judge, keeping in mind the fact that the quantity of the ganja
found in the possession of the appellant was seven times more than the
stipulated commercial quantity, imposed, on him, sentence of 12
years‟ rigorous imprisonment with fine of ₹ 1,00,000/- and default
simple imprisonment of 6 months.
40. Aggrieved thereby, the appellant is in appeal before this court.
41. I have heard Ms. Naomi Chandra learned counsel appearing for
the appellant and Mr. G. M. Farooqui learned APP for the State, at
considerable length.
Rival Submissions
42. Ms. Naomi Chandra, appearing for the appellant, emphatically
submitted that her client was being unjustly persecuted. She submitted
that he had been picked up from home, and was never travelling with
PW-9 Om Prakash in his vehicle. She drew attention to the fact that,
though the signature of the appellant‟s wife Sunita Devi figured on the
Arrest Memo, she was, undisputedly, not there at the time when the
Arrest Memo was drawn up. She maintained that the case was one of
mistaken identity, and instead of proceeding against Vinod Jha, the
prosecution was proceeding against Binod Kumar, i.e., her client, the
appellant. She highlighted the fact that no action whatsoever had been
taken against Vinod Jha, against whom the information had actually
being received. Neither was any effort been made to ascertain the
involvement of Om Prakash. She further contended that the evidence
of PW-10 categorically demonstrated that "Vinod Kumar" and "Binod
Jha" were two different persons.
43. Submitting further by way of demurrer, Ms. Naomi Chandra
also objected to the manner in which sampling and testing of the
consignment, contained in the vehicle of Om Prakash, had been
undertaken. She pointed out that, out of the total quantity of 139 kg.,
only ½ kg had been tested. She also relied on the fact that, when the
packages were produced in court, two packages were found missing.
This, too, in her submission entitled her client to acquittal, for which
purpose she relies on the judgment of the Bombay High Court in
Shahaji Mattapatti v. State of Maharashtra, 2009 SCC online Bom
879.
44. Arguing per contra, Mr. Farooqui, appearing for the
respondents, places extensive reliance on the statement of the
appellant, under Section 67 of the Act, which, in his submission, was a
complete confession to involvement in commission of the offence. He
also relies, partially, on the testimony of PW-9 Om Prakash. He seeks
to dismiss the evidence of the defence witnesses, drawing attention to
the inordinate delay, in the reporting, by the family members, of the
appellant having been taken away by the police officials at 1:30 am.
45. All in all, Mr. Farooqui would submit, the case against the
appellant was unassailable on facts and in law. He would exhort this
Court, accordingly, to uphold the order of the learned Special Judge in
toto.
Analysis
46. The first aspect to be considered is the evidentiary value of the
appellant‟s statement, recorded under Section 67 of the Act by the IO
SI Virender Singh (PW-15). The legal position regarding the
admissibility of a statement recorded under Section 67 of the Act, is
presently in a state of flux. Earlier decisions of the Supreme Court in
Kanahiya Lal v. UOI, (2008) 4 SCC 668 and Ram Singh v. Central
Bureau of Narcotics, (2011) 11 SCC 347 (in each case by a Bench of
two Hon‟ble Judges) adopted the view that an officer, conferred with
the power of a Police Officer under Section 53 of the Act, did not
become, merely by virtue of that fact, ipso facto, a police officer, for
the purposes of Section 25 of the Indian Evidence Act, 1982 and that,
therefore, the statement recorded by such officer was admissible in
evidence, so long as it was not found to have been extracted by
coercion or by adopting unlawful methods.
47. Another Bench of two Hon‟ble judges of the Supreme Court,
however, departed from this view in Noor Aga v. State of Punjab,
(2008) 16 SCC 417, holding that the statement, recorded under
Section 67 of the Act, would attract Section 25 of the Evidence Act,
and would not be admissible in evidence.
48. In view of this difference in view, a later bench of the Supreme
Court, speaking through A.K. Sikri, J. held, in Tofan Singh v. State of
Tamil Nadu, (2013) 16 SCC 31, that the matter deserved to be
referred to a Larger Bench - which still remains to be constituted.
49. Tofan Singh (supra) was also noted in a very recent decision of
the Supreme Court, speaking through Uday Umesh Lalit, J., in
Surinder Kumar Khanna v. IO, Directorate of Revenue Intelligence,
2018 SCC Online 757.
50. Whatever be the view that the Supreme Court ultimately takes
in the matter, it is clear that, in the facts of the present case, the
statement of the appellant under Section 67 of the Act, having been
recorded by PW-15 SI Virender Singh, who was actually a Police
Officer, could not be safely relied upon as sole evidence to connect the
appellant with the offence.
51. I may also refer in this context to the judgment of the Supreme
Court in UOI v. Bal Mukund, (2009) 12 SCC 161, which holds that
there was a presumption, in the case of recording of the statement
under Section 67 of the Act in the office of the Narcotics Control
Bureau (hereafter referred to as "NCB") that the statement was not
voluntary.
52. This principle, it may easily be surmised, would apply with
even greater force where the statement is recorded, as in the present
case, by the Sub-Inspector of Police.
53. Proceeding further, it is clear that, in the present case, three
aspects alone required to be examined, i.e., (i) whether the fact of
interception and seizure, of the vehicle, driven by Om Prakash and
carrying the appellant, was conclusively proved, (ii) whether the
appellant had conclusively been linked with the ganja found in the
kattas being carried in the said vehicle, and (iii) whether the fact that
the kattas actually carried 139 kgs ganja, stood proved beyond doubt.
54. I proceed to address each issue seriatim.
55. As regards the factum of interception of the vehicle driven by
PW-9 Om Prakash, carrying the appellant with him in the front seat, I
am of the view that the defence of the appellant is completely bereft of
substance. The fact that the vehicle was actually being driven by Om
Prakash, and that the appellant was seated beside him, as well as the
fact that the vehicle contained 5 kattas, stands established by the
statements of the police witnesses, namely, PW-9, Om Prakash;
PW-10, HC Suresh; PW-12, Const. Anil Kumar and PW-14 Insp. S.P.
Singh, who correctly identified the appellant in court.
56. The non-association of public witnesses, it is by now well
settled, is not fatal to the case of the prosecution, and the reliance by
the learned Special Judge on Karamjit Singh (supra), is in my view
well taken.
57. Apart from the oral evidence, the interception of the appellant
would also be proved by documentary evidence in the form of the Test
Memo at the spot of interception (Ex.PW 9/A), the Arrest Memo of
the appellant (Ex.PW 10/DX), and the Personal Search Memo of the
appellant, (Ex.PW 10/E). The assertion, of the appellant, that he had
been picked up from home at 1:30 am on 28th July, 2012, is
completely unworthy of acceptance. The evidence of the defence
witnesses, DW-1, DW-2, DW-3 and DW-4, led by the appellant to
prove the point, inspires little confidence. The only witness to the
alleged "picking up of the appellant" was his son DW-1. As has been
correctly observed by the learned Special Judge, it cannot be believed
that DW-1 would not wake up any of his three sleeping sisters when
he found his father being taken away by the police officials, and
would, instead, calmly go to sleep himself, and inform his uncle about
the fact only next morning. Equally unbelievable is the fact that his
uncle waited for two days to intimate the Police authorities. It is,
thankfully, not the appellant‟s case that he had made a habit of being
whisking away to the Police Station in the dead of the night.
58. Given all these improbabilities, on the factum of interception,
by the raiding party of the Vikram Tampo carrying PW-9 Om Prakash
and the appellant, I am disinclined to believe the version put forth by
the defence witnesses, in preference to that which emerges from the
evidence of PWs, which is credible and corroborative in all respects.
It is well settled that evidence of police witnesses, if credible and
corroborative, merits acceptance, even if public witnesses are not co-
operated. [Kashmiri Lal v. State of Haryana, (2013) 6 SCC 595]
59. For the same reason, I find no reason to disbelieve the version
of the police witnesses as regards recovery of ganja from the kattas
which were being transported in the vehicle being driven by Om
Prakash.
60. For these reasons, I hold that the fact of interception of the
appellant, in the vehicle being driven by Om Prakash, which was
carrying 5 kattas, at the area near Lal Quila, by the raiding team on
29th July, 2012, and the fact that the kattas were carrying ganja, stand
conclusively proved.
61. Coming, now, to the second aspect, i.e., whether the
involvement of the appellant in the carriage of the ganja found in the 5
kattas in the vehicle, stood established, I am of the view that the
appellant would be entitled to be extended the benefit of doubt. The
only evidence to link the appellant to the ganja found in the Kattas
being transported in the vehicle of Om Prakash is in the form of the
statements of Om Prakash (PW-9) and the appellant‟s own
"disclosure" statement under Section 67 of the Act. As has already
been noticed hereinabove, the legal position regarding the
admissibility of the appellant‟s statement is still uncertain and, the
latest decision on the point [Noor Aga (supra)] answers the issue in
the negative.
62. That apart, the statement of the appellant was recorded by PW-
15, who was actually a Sub-Inspector of Police. While this fact, by
itself, would not render the appellant‟s statement unworthy of
acceptance, or even unworthy of being the basis for a conviction, it
would, undoubtedly, merit exercise of considerable circumspection on
the part of a court intending so to do. One may refer with advantage,
to the following words of caution, administered by the Supreme Court
in Francis Stanly v. NCB, (2006) 13 SCC 210:
"15. We are of the opinion that while it is true that a
confession made before an officer of the Department of
Revenue Intelligence under the NDPS Act may not be hit by
Section 25 in view of the aforesaid decisions, yet such a
confession must be subject to closer scrutiny than a
confession made to private citizens or officials who do not
have investigating powers under the Act. Hence the alleged
confession made by the same appellant must be subjected to
closer scrutiny than would otherwise be required.
16. We have carefully perused the facts of the present case,
and we are of the opinion that on the evidence of this
particular case it would not be safe to maintain the conviction
of the appellant, and he must be given the benefit of
reasonable doubt."
(Emphasis supplied)
63. Bal Mukund (supra), which notes the above words of caution,
also relies on Noor Aga (supra), referring, in connection therewith, to
the observation, of Mehmood, J., in Queen Empress v. Babulal, ILR
(1884) All. 509, to the effect that Section 25 of the Evidence Act was
enacted "to put a stop to the extortion of confession, by taking away
from the police officers as the advantage of proving such extorted
confession during the trial of accused persons.". Viewed with the
circumspection endorsed by these authorities, I am of the view that the
statement of the appellant, recorded by PW-15 SI Virender Singh, was
not worthy of immediate acceptance as evidence on the basis of which
the charge of infraction of the Act could be laid at the door of the
appellant.
64. There is also substance in the submission of learned counsel for
the appellant that the case appears to be one of mistaken identity. The
statements of the various prosecution witnesses indicate that the secret
information that was received was with respect to "Binod Jha",
whereas there is no dispute about the fact that the appellant was
"Vinod Kumar". In fact, according to the statement of PW-10 HC
Suresh, the secret informer stated that the appellant was actually
working for "Vinod Jha". No attempt appears to have been made to
contact the said "Vinod Jha", and the statement, of PW-15, to the
effect that a team, consisting of himself along with, inter alia, PW-10
HC Suresh and PW-12 Const. Anil Kumar, proceeded, fruitlessly, to
Patna, in search of Vinod Jha does not inspire confidence, in view of
the statement, to the contrary, of PW-10 HC Suresh and PW-12 Const.
Anil Kumar, who deposed, in one voice, that no efforts had been made
to investigate or arrest Vinod Jha. In any event, even if the
observation of the learned Special Judge, to the effect that the words
"Vinod" and "Binod" could interchangeably be used is to be accepted,
there is definite difference between the words "Kumar" and "Jha", and
it could hardly be accepted that the person "Vinod Jha" could be
mistaken for "Binod Kumar" or vice versa. In any event, the position
is so nebulous that no positive verdict can, in my opinion, be returned,
to the effect that the person seated beside Om Prakash in the vehicle
was, indeed, the person regarding whom intelligence had been
provided by the secret informer. Viewed thus, the interception of the
appellant, by the raiding team, would be reduced to a chance
occurrence, which would necessarily require a much higher standard
of proof in order to connect the appellant to the crime.
65. As regards the deposition of PW-9, who is the "star witness" of
the prosecution, he could not even recollect the name of the mechanic,
who was supposed to have repaired the vehicle on 28 th July, 2012.
Moreover, in cross examination, while acknowledging the fact that he
always used to issue bills for the goods being carried out by him, he
accepted that there was no bill for the 5 kattas purportedly consigned
to his custody by the appellant, for carriage to Azadpur.
66. These inconsistencies, too, substantially erode the acceptability
of the evidence of PW-9 Om Prakash, as reliable evidence on the basis
of which the charge of violation of the Act could be fastened on the
appellant. The issue, I may observe here, is not so much of the
quantity of evidence, as the quality thereof. Even a single statement, if
inherently credible and worthy of immediate acceptance, could be
sufficient to tighten the noose (euphemistically speaking, of course)
around the neck of the offender. Given, however, the fact that (i) the
statement of the appellant was recorded by the SI of Police, (ii) no
attempt was made to investigate Vinod Jha, the alleged supplier of
ganja, (iii) PW-9 Om Prakash would obviously be interested in the
liability, for the seized ganja, being shouldered by the appellant, (iv)
no attempt was made to investigate the complicity, if any, of PW-9
Om Prakash, in the entire affair, and (v) the infirmities in the
deposition of PW-9 himself, this Court is convinced that it would be
unsafe to convict the appellant solely on the basis of the statement of
PW-9 and himself.
67. Though the above finding is sufficient to acquit the appellant in
the present case, one may also note that the manner in which the
alleged ganja was sampled and tested, in the present case, is also far
from satisfactory. There were admittedly, 139 polythene packets
containing ganja, each purportedly containing one kg. The total
quantity of ganja supposedly carried in the vehicle was, therefore, 139
kg. Out of the said quantity of 139 kg, as Ms. Naomi Chandra,
learned counsel appearing for the appellant correctly points out, only
½ kg was drawn, out of which only 250 grams were tested. Again,
though the witnesses deposed that a "small quantity" was drawn from
each of the packets, the actual quantity drawn is not forthcoming.
Neither there is any indication of the total quantity of ganja that was
drawn, after commingling said "small quantities" drawn from the said
139 kg, from which two samples of 250 grams, each were supposedly
isolated, of which one was sent for testing to the FSL.
68. Proceeding to the FSL report, one finds that it opines, baldly,
that the sample "contained ganja". The percentage of ganja finds no
mention in the report. In the absence of the percentage of ganja
present in the sample, it is impossible to state the actual quantity of
ganja, which was being carried in the truck, even treating the sample
as representative of the total quantity. It has been conclusively held,
by the Supreme Court, in E. Michael Raj v. Intelligence Officer,
Narcotics Control Bureau, (2008) 5 SCC 161. as well as by the
Gujarat High Court in State of Gujarat v. Shafdar Hussain
Munirmya Malek, (2013) SCC Online Guj 3350 [following E.
Michael Raj (supra)] that the percentage of narcotic contained in the
sample is of fundamental importance, given the fact that different
punishments are prescribed, depending on whether the quantity of
narcotic is small or commercial.
69. In my view, given the highly unsatisfactory manner in which
the alleged narcotic was sampled and tested, it can hardly be said, with
any decree of certainty, that the quantity of narcotic being carried in
Om Prakash‟s tempo was actually "commercial quantity".
70. In view, therefore, of the fact that (i) the quantity of powder
retrieved from each polythene packet is unknown, (ii) the total
quantity of powder, from which two samples of 250 g each were
isolated, is also unknown and (iii) the percentage of ganja contained in
the sample tested by the FSL is also not forthcoming, it cannot be held
that "commercial quantity" of ganja was being transported by Om
Prakash in his tempo.
71. The appellant‟s application for suspension of sentence was
rejected by this court on 1st June, 2016. Resultantly, the appellant
already stands incarcerated for 6 ½ years, out of the total punishment
of 12 years‟ rigorous imprisonment imposed on him by the learned
Special Judge. In case the quantity of ganja being carried in Om
Prakash‟s tempo - assuming that the appellant were to be linked with
the said carriage - were to be treated as less than commercial quantity,
the maximum punishment which could have been imposed on the
appellant would only be six months, rigorous imprisonment or with
fine, which may extend to ten thousand rupees or with both.
72. The appellant having already suffered incarceration for over 6
years, in my view, any further incarceration of the appellant would, in
any event, be completely unjustified, on the facts of the present case.
Conclusion
73. Consequent on above discussion, I am of the view that the
appellant is entitled to be acquitted of the charge, against him, of
having committed the offence contemplated by Section 20 of the Act.
Accordingly, the judgment of the learned Special Judge is set aside
and the appeal stands allowed accordingly.
74. The appellant would be entitled to be released forthwith, unless
he is required to be detained in any other case.
C.HARI SHANKAR
(JUDGE)
AUGUST 24, 2018
bh/dsn
