Ak Sharma, Intelligence Officer, ... vs Jyotin Vyas & Ors
2018 Latest Caselaw 5929 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Reserved on:6th September, 2018
                                   Pronounced on: 01st October, 2018

+       CRL.A. 77/1997 & Crl.M.A. 4123/2011

        AK SHARMA, INTELLIGENCE OFFICER, NCB.... Appellant
                     Through: Mr.Subhash      Bansal      with
                              Mr.Shashwat Bansal, Advs.
                              alongwith       Mr.      Rajiv,
                              Investigating Officer, NCB.
                     versus

        JYOTIN VYAS & ORS                         ..... Respondents
                      Through:        Mr. Ghanshyam Sharma, Adv.
                                      for R3.


CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                          ORDER

1. On 30.10.1987, a criminal complaint (160/1/87) was instituted before the Additional Chief Metropolitan Magistrate, New Delhi by the predecessor in office of the appellant - Intelligence Officer of Narcotic Control Bureau (NCB) - seeking criminal action against the three respondents on the allegations that they had committed offences punishable under Sections 22 and 29 read with Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act"). The cognizance on the said criminal complaint was taken and the respondents stood summoned. They were eventually

brought before the court of Sessions for trial in sessions case no. 74/1988 and charges were framed against them on 20.12.1988 under three heads for offences under Sections 29 read with Section 22 of NDPS Act and under Section 120B IPC, the gravamen whereof related to three recoveries which have been summarized as under:-

(i) Seizure on 05.08.1987 of 50,000 prodon tablets containing methaqualone, a psychotropic substance which were booked with the Transport company under GR No. 627020 recovered from the godown of M/s Delhi- Kanpur-Gondia Transport (regd.) Noida (Panchnama is Ex.PW-1/B)

(ii) Seizure on 06.08.1987 of 25 kgs of methaqualone powder was recovered from the residential premises of Jyotin Vyas (accused/respondent no.1) (panchnama is Ex.PW-3/A).

(iii) Seizure on 06.08.1987 of 124 kgs of Methaqualone powder contained in 5 bags was recovered from the office of Shakti Highway Carrier, Ram-Bagh Road, Azad Market, Delhi; which was booked under an invoice of Pharmach Enterprises, Bombay in name of Verma Pharmaceuticals, Chandni Chowk, Delhi (Panchnama is Ex.PW-5/A).

2. The trial resulted in judgment dated 05.08.1996 whereby the additional sessions judge held that the prosecution had failed to bring home the charges levelled by it against any of the three accused beyond doubts and thus acquitting each of them.

3. The present appeal was filed in February, 1997. It was admitted and put in the list of „regulars‟ to come up in due course. During the pendency of the appeal, the first and second respondents died and the proceedings against them have consequently abated. The appeal has survived against the third respondent viz. Ashok Kumar Jaitka.

4. Arguments have been heard and the record has been perused with the assistance of learned counsel on both sides. It is clear from the allegations and the evidence led in support by the prosecution that the recovery of 25 kgs of Methaqualone powder on 06.08.1987 was from the residential premises of the first respondent (since deceased). Obviously, it was for the said person from whose control or possession the alleged contraband was recovered to account for the same.

5. The other two recoveries i.e. 50,000/- prodon tablets, containing methaqualone, a psychotropic substance on 05.08.1987 and 5 bags containing 124 kgs of methaqualone powder on 06.08.1987 were effected from the office or godown of Shakti Highway Carrier, known as M/s Delhi-Kanpur-Gondia Transport and Shakti Highway Carrier respectively.

6. The prosecution relied, inter alia, on statements recorded under Section 67 of NDPS Act, upon interrogation of the three respondents, such material including statement of first respondent (Jyotin Vyas) on 06.08.1987 (Ex.PW-2/A), the statements of second respondent (Tejinder Singh) on 05.08.1987 (Ex.PW-1/G) and 06.08.1987 (Ex.PW-1/H), and the statement of the third respondent (Ashok Kumar Jitaka) recorded on 05 and 06.08.1987 (Ex.PW-1/F). It appears the second respondent/Tejinder Singh (since deceased) in his statement, purportedly recorded under Section 67 NDPS Act, had made certain admissions about he being involved in the manufacture of methaqualone tablets for supplies to be made, inter alia, on instructions of third respondent and having made the booking with M/s Delhi-Kanpur-Gondia Transport Company under the fictitious

invoice of S.K. Traders. It further appears that the first respondent/ Jyotin Vyas (since deceased), in his statement purportedly recorded under Section 67 NDPS Act, had made certain admissions about he having "procured" the psychotropic substance from a person named Deepak of Bombay and having persuaded him (the source in Bombay) to send to him such substance "Mehaqualone powder" through Shakti Highway Carrier under the fictitious name of Pharma Chem enterprises and having supplied such substance to the third respondent.

7. It is clear from the prosecution case that the contraband in respect of which discoveries had been made by the second and first respondent respectively by the aforesaid statements, were seized not from the possession of third respondent but from the offices or godowns of the two companies mentioned above.

8. The first and second respondents having died and the case against them having abated, the focus of the appellant NCB is on the statement (Ex.PW-1/F) attributed to the third respondent as having been made under Section 67 of NDPS Act during interrogation on 05.08.1987 or 06.08.1987. According to the said document, the third respondent had made certain admissions about he having "instructed" the second respondent to book the consignment of the contraband under the fictitious invoice of S.K. Traders which was statedly recovered from M/s Delhi-Kanpur-Gondia Transport company and also about he having received certain supplies of such psychotropic substance from the first respondent which was passed on to the second respondent for production of tablets at his factory in the name of Qualitex Pharma.

9. The seized material (prodon tablets containing methaqualone and methaqualone powder) were stated to have been sent for examination by Central Revenue Control Laboratory, the report whereof confirmed the aforesaid nature of the substance. The appellant also relied on the evidence of Arjinder Singh (PW-8), a printer, whose assistance had been allegedly taken for printing of bill books in the name of S.K. Traders, fictitious firm, by the third respondent.

10. The trial judge entertained doubts about the recoveries effected from Shakti Highway Carrier for the reason the proceedings would not disclose the facsimile of seals, weight of the sample drawn and the manner in which the same was sealed. It also found other recoveries to be suspect on account of complaint being silent about the manner in which samples had been drawn and about chain of custody from the time of seizures till deposit with the forensic lab.

11. Argument was raised before the trial court about breach of guidelines in Section 50 of NDPS Act in the three seizures. The prosecution argued that Section 50 would not apply. The trial judge held thus:

"14. Assuming for the sake of argument that Section 50 was not required to be followed, even then the recovery of 50,000 tablets of prodone cannot be connected with any of the three accused. Sanctity of seal and sealing proceedings have been totally violated. There is no indication as to how the samples were drawn, what was the quantity of the sample and how and with what seal they were sealed and where the sample remained till they were deposited in the office of CRCL on 14-08-1987.

15. All the observations made in the preceding paragraphs apply to the recovery effected from the premises of Shakti Highway Carrier Delhi on 6-8-1987 resulting in the recovery of 124 kgs of Methaqualone powder with additional factor that in the statement of accused Jyotin Vyas Ex. PW 2/A it has been categorically mentioned that this recovery was effected on the disclosure made by accused Jyotin Vyas.

16) As regards the recovery effected from the house of accused Jyotin Vyas on the morning of 6-8-87 by Sh. J.K. Handa PW 5 resulting in the recovery of 25 kgs of Methaqualone powder suffice it to say that provisions of section 50 have been violated squarely. I, therefore, have no hesitation, even after ignoring the hostile testimony of Sh. J.M. Seth a practising Chartered Accountant PW 3 and his wife Smt. Manju Seth PW 4, the panch witnesses and non mention of the seal facsimile or its description or the weight of the sample, as admitted by Sh. Handa, to declare the search and seizure of 25 kgs of Methaqualone powder to be illegal as ruled by the Hon'ble Supreme Court in the case of Ali Mustafa Abdul Rehman Moosa vs. State of Kerala reported as 1995 (1) C.C.C see page 108".

12. The trial court was not satisfied with the evidence based on the statements purportedly recorded under Section 67 NDPS Act. It rejected the said material with the following observation:-

"17) We are now left with the so-called confessional statements of the accused persons as Sh. Arora has placed much reliance on them to canvass before me that they should be used to convict the accused persons and no corroboration is required as held by the Hon'ble Supreme Court in the case of Piara Singh vs. State of Punjab reported as AIR 1977 page 2277.

18) Sh. K.K. Sood PW 2 had claimed that accused Jyotin Vyas had tendered his statement Ex.PW 2/A written by himself before him in the NCB office on 6-8-87. Sh. Sood

did not state a word that this statement was tendered by the accused voluntarily which is a sine qua non for reading the same in evidence. In cross-examination Sh. Sood claimed that statement was recorded between 8-30 A.M. and 12-30 P.M. when it was finished. Sh. Anil Kumar Goel PW 5 had searched the premises of Shakti Highway Carriers vide Panchnama Ex. PW 5/A at about 11-30 A.M. Yet the accused Jyotin was not associated with this search. Sh. K.K. Sood admitted having not told the accused that he was free not to make any statement. This accused in his so-called statement EX PW 2/A had mentioned about one Deepak of Bombay from whom he used to obtain consignment of Methaqualone powder in the fictitious name of Verma pharmaceuticals. Sh. U.K. Mishra in cross examination had admitted that NCB Bombay had arrested this Deepak whom he described as Deepak Raghunath Dass Shukla on 9-8-87. However for reasons best known to the NCB Officers this Deepak was not made co-accused with accused Jyotin Vyas in this crime. I, therefore, find and hold that the statement Ex.PW 2/A cannot be considered to be voluntary statement of accused Jyotin Vyas and in any case it is not of such intrinsic worth to be made sole basis of conviction".

13. The arguments of the appellant primarily are that the provisions of section 50 NDPS Act, 1985 do not apply in cases where recovery is not from the possession of a person. In the present case, it is pointed out, the recoveries of psychotropic substance were from the godowns of transport companies and residential premises of first respondent and, therefore, the holding that the mandatory provisions of section 50 were not complied with is unsustainable observation. It is also the argument of the appellant that statements of respondents recorded under section 67 NDPS Act were voluntary and inculpatory and also

that the same narrated complete details of background facts which were solely within their knowledge.

14. The basic law that confession of a co-accused cannot be the starting point of scrutiny of case for prosecution to determine culpability of the accused cannot be lost sight of. Such statements of co-accused would at the most lend reassurance to conviction that may be arrived at on basis of other available evidence which, in so far as the case against third respondent is concerned, is found to be deficient.

15. No recoveries were effected from the third respondent or at his instance. Even if the provisions of Section 50 NDPS Act were not to be applied, there is no answer to, or explanation for the lapses in basic precautions in seizures or sampling as noticed by the trial court in the impugned judgment. Further, the doubts about the voluntariness of the statements under Section 67 NDPS Act, also affecting the one attributed to the third respondent are found to be correctly expressed critique and, in their face, it is not safe to act on such material.

16. The appeal and the application filed therewith are dismissed.

(R.K. GAUBA) JUDGE OCTOBER 01, 2018 nk