Mortaza Hassan Ali Sheikh vs Narcotics Control Bureau
2023 Latest Caselaw 14597 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No.526 of 2017 a/w Cr. Appeal Nos.558 & 645 of 2017 and Cr. Appeal Nos.45 & 290 of

.

2018.

Reserved on: 18th September, 2023 Decided on:_26th September, 2023

__________________________________________________________

1. Cr. Appeal No.526 of 2017

Mortaza Hassan Ali Sheikh ....Appellant

Versus

Narcotics Control Bureau ....Respondent ____________________________________________________________

2.

          Cr. Appeal No.558 of 2017

         Moti Ram                                       ....Appellant
                               Versus


          Narcotics Control Bureau              ....Respondent

____________________________________________________________

3. Cr. Appeal No.645 of 2017

Riyaaz Ali ....Appellant

Versus

Narcotics Control Bureau ....Respondent ____________________________________________________________

4. Cr. Appeal No.45 of 2018

Lubna Sheikh ....Appellant

Versus

Narcotics Control Bureau ....Respondent ____________________________________________________________

5. Cr. Appeal No.290 of 2018

Sadik Bedabi Abdul Sayyad & Anr. ....Appellants Versus

.

Narcotics Control Bureau ....Respondent

Coram Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge

Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? No

For the appellant(s): Mr. Rajiv Jiwan, Sr. Advocate with Mr. Manoj Pathak, Advocate for appellant in Cr. Appeal No.526 of 2017.

Mr. Balwant Singh Thakur, Advocate

for the appellant in Cr. Appeal No.558 of 2017.

Mr. Manoj Pathak, Advocate, for the

appellant in Cr. Appeal No.645 of 2017.

Mr. Bhupinder Singh Ahuja, Advocate for the appellant in Cr.

Appeal No.45 of 2018.

Mr. Ajay Kochhar, Sr. Advocate with Mr. Vivek Sharma and Mr. Anubhav

Chopra, Advocates, for the appellant in Cr. Appeal No.290 of 2018.

For the respondent(s): Mr. Ashwani Pathak, Sr. Advocate with Mr. Dev Raj, Advocate, in all the appeals.

Whether reporters of Local Papers may be allowed to see the judgment? Yes

Tarlok Singh Chauhan, Judge Since all these appeals arise out of a single

judgment rendered by the learned Special Judge, therefore,

.

they were taken up together for arguments and are being

disposed of by a common judgment.

2. All the appellants have been convicted.

Appellants, namely, Sadik Bedabi Abdul Sayyad,

Fakhrunnisa Abdul Rahim, Lubna Sheikh and Moti Ram

have been sentenced to undergo rigorous imprisonment for

ten years and to pay a fine of Rs.1,00,000/- (Rupees one

lac) each for commission of offences punishable under

Sections 20 & 29 of the Narcotic Drugs and Psychotropic

Substances Act (here-in-after referred to as 'NDPS Act')

whereas the appellant, namely, Mortaza Hassan Ali Sheikh

has been sentenced to undergo rigorous imprisonment for

ten years and to pay a fine of Rs.1,00,000/- (Rupees one

lac) for the commission of offences punishable under

Sections 20, 29, 27-A, 27-B and 60 of the NDPS Act, and

appellant-Riyaaz Ali has been sentenced to undergo

rigorous imprisonment for ten years and to pay a fine of

Rs.1,00,000/- (Rupees one lac) for the commission of

offences punishable under Sections 20, 29 and 27-A of

NDPS Act and in default thereof all the convicts have been

.

directed to undergo simple imprisonment for one year.

3. Since, the parties do not dispute that the case

as set out by the Narcotics Control Bureau (for short 'NCB')

has been correctly enumerated by the learned Special

Judge, therefore, the same is extracted, as such, from the

judgment and reads thus:-

"3. On 26.07.2015, PW-13 Shri Karamvir Singh

Intelligence Officer, NCB Sub Zonal Mandi received a secret information from reliable sources that five persons namely Murtaza Hassan Ali Sheikh, Riyaaz

Ali, Sadik Bedabi Abdul Sayyad, Lubna Shekh and Fakhrunnisa Abdul Rahim came from Mumbai to purchase huge quantity of Charas and have been

staying in rooms No.205, 206 and 208 in Hotel Zarim,

Manali, District Kullu, H.P. which was reduced into writing and the same is Ext.PW-7/A and endorsement Ext.PW-7/B was made on it. It is alleged that it has

also been learnt that accused Murtaza Ali Sheikh along with Riyaaz Ali have departed from Manali at about 7:00 a.m. on 26.07.2015 for Chandigarh in vehicle No.MH-14-DA-1132 for Mumbai from Chandigarh Airport through Jet Airways flight

departure time 6:20 p.m. while remaining three persons are still in the said hotel. It is alleged that on passing such information by PW-13 Karamvir Singh to PW-7 Sh. Kuldeep Sharma, Superintendent NCB,

.

Chandigarh, Sh. Kuldeep Sharma directed PW-13

Karamvir Singh to constitute a team and carry out search of hotel rooms of Zarim Hotel, Manali

immediately. At about 10:30 a.m. NCB team comprising of PW-13 Karamvir Singh, Intelligence Officer alongwith PW-10 A.C. Malla, Intelligence Officer, PW-5 Mr. Sumit Sepoy, Mr. Surjeet Singh

Sepoy, PW-2 Mr. Mahesh Barwal Sepoy and Mr. Vijay, Driver were rushed to Manali and reached PS, Manali and requested SHO Police Station, Manali, District

Kullu, H.P. for police assistance vide request letter

Ext.PW-13/A. It is alleged that a Brass Seal bearing impression of "NARCOTICS CONTROL BUREAU-CHD- 4" was issued to PW-10 A.C. Malla, Investigator for

safe custody, which was to be used for sealing purpose during search and seizure operation as and when

required. At about 1:00 p.m., PW-13 Karamvir Singh alongwith NCB team and two lady police Constables,

namely, Santosh and Dayawanti reached Hotel Zarim and divulged the information with the Manager of

Zarim Hotel, Manali, H.P. Before searching the Hotel Zarim, PW-13 Karamvir Singh Investigator associated two independent witnesses namely Sh. Balwinder Singh and Harbans Lal and information regarding drug trafficking was divulged to them and the need to know basis and both the witnesses were requested

verbally and in writing vide notices Ext.PW-8/A and Ext.PW-8/B to witness the process of search and seizure, to which they voluntarily agreed to accompany the NCB team as independent witnesses.

.

PW-13 Karamvir Singh Intelligence Officer along with

NCB team, lady police officials and two independent witnesses entered Room No.206 of Zarim Hotel and

found one male person alongwith two ladies present in the room. On asking them, they disclosed their identities as accused Sadik Bedabi Sayyad Abdul, Lubna Shekh and Fakhrunnisa Abdul Rahim of

Mumbai. It is alleged that PW-13 Karamvir Singh Intelligence Officer introduced himself, police officials and independent witnesses and his team to them and

informed the said accused that they had information

regarding drugs trafficking and that the NCB team wanted to search the hotel room. It is also alleged that before conducting the search, PW-13 Karamvir Singh

Intelligence Officer offered his search alongwith NCB team and both the independent witnesses to the said

accused present there, which was declined by them (aforesaid accused persons) and thereafter PW-13

Karamvir Singh Intelligence Officer served notices under Section 50 of the NDPS Act to the said accused

persons Ext.PW-13/B, Ext.PW-13/C and Ext.PW- 13/D after explaining them the provisions of Section 50 of the NDPS Act and were given opportunity that if they wanted that their search could be conducted before any Gazetted Officer or any Magistrate, which was declined by them and they gave their approval for

search by the NCB team verbally. Thereafter, NCB Team started searching Room No.206 in the presence o independent witnesses and during search of Room No.206, two big size suit-cases were found which were

.

related to accused Sadik Bedabi Sayyad Abdul, Lubna

Sheikh and Fakhrunnisa Abdul Rahim and on opening the same, our packets wrapped by dark

brown coloured tape were found from both the suit- cases. On removal of tape, four packets containing dark bron coloured substance in different shapes like small round pieces, chapatinuma pieces and finger

shape were found in transparent polythene. Accused Lubna Sheikh and Fakhrunnisa disclosed that substances are charas weighing approx. 20 Kgs.,

which were purchased by Mortaza Hassan Ali Sheikh

2-3 days ago against payment of 34 lac. And the same was to be carried by them to Delhi via VOLVO Bus and they also disclosed that Mortaza Hassan Ali alongwith

his driver Riyaas Ali had left to Chandigarh at about 6/7 a.m. and the information to this effect was given

to PW_7 Sh. Kuldeep Sharma, Superintendent, NCB Chandigarh. It is alleged that small portion of

suspected material from each items was taken out by PW-10 Sh. A.C. Malla and the tests were conducted by

him with the help of drug detection kit separately and on testing, it answered positive for charas/Hashish and the said packets were weighed with electronic machine on the spot, which was found 19.980 Kgs. In total and taken into custody by PW-13 Karamvir Singh vide seizure memo Ext.PW-8/L in the presence of the

independent witnesses, accused Sadik Bedabi Sayad, Lubna Sheikh and Fakhrunnisa Abdul Rahim and both the witnesses signed the same alongwith PW-13 Karamvir Singh in the presence of each other.

.

Thereafter, eight representative samples two from each

packet of 25 grams each were drawn from all the recovered substance in the presence of the

independent witnesses and the accused present there, packed them separately in transparent polythene pouches and were heat sealed and placed in separate white paper envelopes and on opening the side of

every envelope a white paper slip was pasted, which sealed with four seals of NARCOTICS CONTROL BUREAU-CHD-4 and again kept in markine cloth bag

and each bag sewed properly, i.e. four lots Ext.PW-

8/K, Ext.PW.8/K-3, Ext.PW.8/K-6, Ext.PW.8/K-9 and same were taken into possession. It is alleged that on opening samples i.e. Ext.PW.8/J-1, Ext.PW.8/J-2,

Ext.PW.8/J-3, Ext.PW.8/J-4, Ext.PW.8/J-5, Ext.PW.8/J-6, Ext.PW.8/J-7, Ext.PW.8/J-8, polythene

wrappers Ext.PW.8/J-9, Ext.PW.8/J-11, Ext.PW.8/J- 13, Ext.PW.8/J-15, Ext.PW.8/J-17, Ext.PW.8/J-19,

Ext.PW.8/J-21, Ext.PW.8/J-23, charas Ext.PW.8/J- 10, Ext.PW.8/J-12, Ext.PW.8/J-14, Ext.PW.8/J-16,

Ext.PW.8/J-18, Ext.PW.8/J-20, Ext.PW.8/J-22, and Ext.PW.8/J-24 were found. Thereafter packing material Ext.PW.8/K-17 and two suit-cases Ext.PW.8/K-13 and Ext.PW.8/K-15 were also packed in markine cloth and sealed in separate parcels with four seals of NARCOTICS CONTROL BUREAU-CHD-4

and taken into possession. On opening Ext.PW.8/K, Ext.PW.8/K-3, Ext.PW.8/K-6, Ext.PW.8/K-9, polythene bags Ext.PW.8/K-1, Ext.PW.8/K-4, Ext.PW.8/K-7 and Ext.PW.8/K-10 and charas

.

Ext.PW.8/K-2, Ext.PW.8/K-5, Ext.PW.8/K-8 and

Ext.PW.8/K-11 were found. Similarly, on opening of Ext.PW.8/K-12 and Ext.PW.8/K-14, brief cases

Ext.PW.8/K-13 and Ext.PW.8/K-15 were found and on opening Ext.PW.8/K-16, packing material Ext.PW.8/K-17 were found. Test memos in triplicate Ext.PW.13/E were prepared in the presence of the

accused persons and both the independent witnesses on the spot. It is also alleged that PW-13/F on the spot and sample/facsimile of NARCOTICS CONTROL

BUREAU-CHD-4 was put on the panchnama and test

memo, which was read over and explained to accused Sadik Bedabi Abdul Sayyad, Lubna Sheikh and Fakhrunnisa by PW-13, who signed it after

understanding its contents to be correct and thereafter the said accused, independent witnesses and PW-13

Karamvir Singh appended their signatures on Panchnama. The seal of NARCOTICS CONTROL

BUREAU-CHD-4 was returned by PW-13 Karamvir Singh to PW-10 A.C. Malla after completing all the

proceedings as per law. It is also alleged that on 26.07.2015, accused Sadik Bedabi was apprised about the legal provisions and his legal rights under Section 67 of the NDPS Act and notice under Sections 67 of the NDPS Act Ext.PW-13/G, who tendered his voluntary statement under Section 67 of the NDPS Act

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before PW-13 Karamvir Singh I.O. in his own handwriting with his free will and signed it, which is Ext.PW.13/H. On the basis of recovery and voluntary confessional statement under Section 67 of the NDPS

.

Act, accused Sadik Bedabi was arrested after

explaining him the grounds of his arrest vide arrest memo Ext.PW.13/J and his Jama Talashi was also

conducted vide memo Ext.PW.8/M and information of his arrest was given to his sister through telephone vide arrest information report Ext.PW-13/K. On the basis of recovery and voluntary confessional statement

under Section 67 of the NDPS Act Ext.PW.2/A Fakhrunnisa was also arrested after explaining her the grounds of arrest vide arrest memo Ext.PW.4/B and

Jama Talashi of accused Fakhrunnisa was conducted

vide Ext.PW.4/C and information of her arrest was given to her relatives through telephone vide arrest information report Ext.PW-13/L. Thereafter, on the

basis of recovery and voluntary confessional statement under Section 67 of the NDPS Act Ext.PW.2/B,

accused Lubna Sheikh was also arrested after explaining her grounds of his arrest vide arrest memo

Ext.PW-4/E Jama Talashi of accused Lubna Sheikh was also conducted vide memo Ext.PW.4/F and

information of arrest was given to her relative through telephone vide arrest information report Ext.PW.13/M. Accused Sadik and other accused vide their voluntary statements disclosed that Mortaza Ali Sheikh have arranged the consignment of 19.980 Kgs. charas. The statements of witnesses Balwinder Singh and Harbans

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Lal under Section 67 of the NDPS Act Ext.PW.8/E and Ext.PW.8/G were also recorded by them in their own handwriting in the presence PW-13 Karamvir Singh. Subsequently on 26.07.2015, the official of NCB

.

Chandigarh had also laid Naka at Toll Plaza, Ropar-

Chandigarh road, Ropar, Punjab and apprehended accused Mortaza Hassan Ali Sheikh and Riyaaz Ali

alongwith their vehicle bearing No.MH-14-DA-1132 and also recovered as sum of Rs.3,70,000/- being sale proceeds of the contraband from their possession vide recovery memo Ext.PW-7/C in the presence of the

witnesses. Accused Mortaza Hassan Ali Sheikh and Riyaaz Ali were issued notices under Section 67 of the NDPS Act Ext.PW.9/A and Ext.PW.9/B and after

reaching the NCB Office, Chandigarh and there

notices under Section 50 of NDPS Act were issued to both these accused, which are Ext.PW.9/C and Ext.PW.9/D. Thereafter accused Mortaza Hassan Ali

Sheikh and Riyaaz Ali made their voluntarily confessional statement under Section 67 of the NDPS

Act before Investigating Officer Sh. Sachin Guleria, which are Ext.PW.9/E and Ext.PW.7/F thereby

admitting the manner and factum of the above recovery and their past and future roles in the

transaction and thereafter they were also arrested vide arrest memos Ext.PW-7/D and Ext.PW-7/G and thereafter Jama Talashi of both these accused was conducted vide memos Ext.PW.7/E and Ext.PW.7/H and thereafter information of arrest of both these accused was given to Sh. Shama Sheikh as per memo

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Ext.PW.9/F. Accused Mortaza Hassan Ali Sheikh and Riyaaz Ali were also got medically examined at Chandigarh vide application Ext.PW.9/G and Ext. PW.9/J, receipts/MLCs of hospital are Ext.PW.9/H

.

and Ext.PW.9/K. Accused Mortaza Hassan Ali Sheikh

and Riyaaz Ali disclosed that the contraband was sourced from accused Moti Ram alias Nad and Churu

Ram son of Baghi Ram of Malana. Accused Mortaza Hassan Ali Sheikh has also disclosed that he was in touch with co-accused Moti Ram telephonically and personally on his mobile Nos.98169-59763, 88941-

19481 and 88946-43666 and with accused Churu Ram on his mobiles No.98822-94323, 88944-76451 and 94166-95575 from his mobile No.97697-42046.

Thereafter accused Mortaza Hassan Ali Sheikh and

Riyaaz Ali were brought from NCB Chandigarh on transit remand by Investigating Officer Sachin Guleria and produced before learned Judicial Magistrate 1st

Class, Manali on 28.07.2015. On 27.07.2015, a notice under Section 67 of the NDPS Act, copy of which is

Ext.PW-10/A was served upon accused Moti Ram and for recording his statement. On 28.07.2015, accused

Moti Ram was apprised about his legal provisions and his legal rights under Section 67 of the NDPS Act and

accused Moti Ram tendered voluntary statement under Section 67 of the NDPS Act Ext.PW-9/L which was recorded by PW-10 Sh. A.C. Malla at the request of accused Moti Ram in presence of PW-9 Sachin Guleria with his free will and without influence. It is alleged that accused Moti Ram admitted the manner

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and factum of recovery of 19.980 Kgs. charas seized by NCB Officers and he was accordingly, arrested vide arrest memo Ext.PW-10/B after explaining the grounds of his arrest and his Jama Talashi was also

.

conducted vide memo Ext.PW-10/C and information of

his arrest Ext.PW.10/D was given to his family member through telephone. Accused Moti Ram vide

his aforesaid statement disclosed that he came in contact with accused Mortaza Hassan Ali Sheikh through Churu Ram alias Tehna Dy Pradhan Malana in the year 2012 and since then he had delivered

charas to Mortaza Hassan Ali Sheikh. Accused Moti Ram also disclosed that during the month of July, 2015, accused Mortaza Hassan Ali Sheikh called him

on his mobile No.98169-59763 and 88941-19481 and

asked him to arrange 15 Kgs. charas and he subsequently arranged 14 Kgs. charas with the help of accused Dhani Ram and Deva Ram of Malana and

delivered the same to accused Mortaza Hassan Ali Sheikh nearby the bridge ahead Manali Bus Stand on

24.07.2015 against payment of Rs.23 lac. It is also alleged that thereafter notices under Section 67 of

NDPS Act were given to your co-accused Churu Ram Ext.PW.10/E, Dhani Ram Ext.PW.10/K and Deva Ram

Ext.PW.10/O with the direction to join the investigation. Accused Dhani Ram and Deva Ram during investigation on 12.08.2015 made their voluntary statements under Section 67 of the NDPS Act Ext.PW.10/M and Ext.PW.10/S before PW-10 Sh. A.C. Malla disclosing therein that they do not know

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Mortaza Hassan Ali Sheikh, but they had sold contraband to him through their friend accused Moti Ram. Accused Dhani Ram and Deva Ram were also arrested on 12.08.2015 after explaining them the

.

grounds of arrest vide memos Ext.PW-10/N and

Ext.PW-10/P and their Jama Talashi was also conducted vide memo Ext.PW.10/O and Ext.PW.10/U

and information of their arrest were given to their relatives through the mobile phones supplied to them vide arrest information Ext.PW.10/P and PW-10/V. The medical examination of accused Dhani Ram and

Deva Ram were also got conducted at Civil Hospital, Manali, vide applications Ext.PW.10/W and Ext.PW.10/Z and their medical slips Ext.PW.10/X and

Ext.PW.10/Z-1 and MLCs Ext.PW.10/Y and

Ext.PW.10/Z-2 were obtained. PW-13 Sh. Karamvir Singh I.O. gave information under Section 57 of the NDPS Act to the Superintendent, NCB Chandigarh

regarding arrest of accused Sadik Bedabi Abdul Sayyad, Fakhrunnisa Abdul Rahim and Lubna Sheikh

and the said information is Ext.PW-7/J and also by Sh. A.C. Malla vide Ext.PW-7/M regarding accused

Dhani Ram and Deva Ram. On 28.07.2015 four sample packets marked asA-1, which is Ext.PW-8/J-1

B-1, which is Ext.PW.9/J-3, C-1 which is Ext.PW.7/J- 5 and D-1, which is Ext.PW.7/J-7 alongwith two copies of test memos having facsimile impression of the seal NARCOTICS CONTROL BUREAU-CHD-4 were sent to Chandigarh for onward dispatch to me CRCL, New Delhi. The Superintendent, NCB Chandigarh has

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further sent the said sample sealed packets to Chemical Examiner, C.R.C.L. Pusa Road, New Delhi vide letter dated 28.07.2015 Ext.PW-5/A through PW- 5 Sh. Sumit Kumar, who deposited the same with the

.

Chemical Examiner, C.R.C.L. New Delhi vide receipt

No.132 dated 29.07.2015 and the receipt is Ext.PW- 5/B. On 30.07.2015 the Lot A Ext.PW.8/K, Lot B

Ext.PW./K-3, Lot C and Lot D Ext.PW.8/K-9, Lot-E Ext.PW.8/K-12 and Lot F Ext.PW.8/K-14 and Lot P Ext.PW.8/K-16 and four samples i.e. Lot A-2 Ext.PW- 8/J-2, Lot B1 Ext.PW.8/J-4, Lot C-2 Ext.PW.8/J-6,

Lot D-2 Ext.PW.8/J-8 were handed over to PW-9 Sachin Guleria I.O. for further deposit with officer in- charge of Godown NCB Chandigarh for keeping safe

custody, who issued a Godown receipt vide entry

No.17/2015 dated 30.07.2015 Ext.PW-7/K. During investigation, it was revealed that mobile numbers 98169-59763, 88941-19481 and 88946-43666 were

used by accused Moti Ram and out of the three mobiles numbers the SIM card for the mobile

No.98169-59763 was issued by M/S Bhushan Communication, Main Bazaar, Bhuntar in the name of

Lal Singh and on verification it has been found fake and notice of the same was given to Vijay Bhushan

vide Ext.PW.10/Z-7, who gave statement Ext.PW.10/Z-8 and similar notice was given to Deepak Kumar vide notice Ext.PW.10/Z-5 and his statement was recorded vide Ext.PW.10/Z-6 and one notice was also given to Lal Singh, the copy of which is Ext.PW.10/Z-9. It has been revealed that mobile

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No.88941-19481 was owned by Smt. Suari Devi and used by accused Moti Ram and owner of mobile No.889464366 was owned by Daulat Ram of Malana. During further investigation, it has been revealed that

.

mobile No.8894476451 and 98166-95575 were issued

by accused Churu Ram and on physical verification, it was found that the SIM cards of these numbers were

issued on fake ID proof and it has also come to light that mobile No.97697-42046 was used by accused Mortaza Hassan Ali Sheikh for making contacts with other accused of Malana and on verification this

number was issued in the name of Smt. Shama Murtaza Sheikh of Mumbai and Shama Murtaza Sheikh made statement Ext.PW.10/Z-4 in the

presence of witness LHC Daya Devi of PS, SV & ACB,

Mandi, H.P. on 05.01.2016 on notice given to her copy of which is Ext.PW.10/Z-3. During investigation, on analysis of phone calls and contacts with Mortaza Ali

Sheikh and from his confessional statement Ext.PW.7/F, it revealed that accused Moti Ram alisas

Nada and Churu Ram of Malana arranged charas to main kind accused Mortaza Hassan Ali Sheikh and

others. The CAF Ext.PW.1/B and ID of Shama Sheikh Ext.PW-1/C from mobile numbers of accused Moti

Ram and Churu Ram are annexed with CDRs Ext.PW1/D and Ext.PW-1/E of 97697-42046 used by accused Mortaza and certificate issued by Nodal Officer Vodafone under Section 65-B of Indian Evidence is Ext.PW-1/A and mobiles No.98169-59763, 88941-19481 and 88946-43666 were issued by

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accused Moti Ram and mobile numbers 88944-76451 and 98166-95575 used by accused Churu Ram, the CAFs of which are Ext.PW-11/A, Ext.PW-11/D, Ext.PW-11/G, Ext.PW-11/K and IDs are Ext.PW-

.

11/B, Ext.PW-11/E, Ext.PW-11/H and Ext.PW-11/L

and the CDRs are Ext.PW-11/C, Ext.PW-11/F, Ext.PW-11/J, Ext.PW-11/M and Ext.PW-11/N and

certificate issued by Nodal Officer of Bharti Airtel under Section 65-B of Indian Evidence Act is Ext.PW- 11/O. On analysis of call details of all the above mentioned mobile numbers, it has been revealed that

accused Mortaza Hassan Ali was a main king pin and was running a drug syndicate in the area of Mumbai and he was also in touch with other main suppliers of

Charas, namely, accused Moti Ram and Churu Ram.

It is alleged that notice under Section 67 of the NDPS Act, copy of which is Ext.PW-10/E, was issued to accused Churu Ram on 31.07.2015 and 10.08.2015

for joining the investigation, but Churu Ram never joined investigation, nor produced any clarification

before PW-10 A.C. Malla. The involvement of accused Churu Ram was also found in the present case and

thereafter an application U/S 72, 73 Cr.P.C. Ext.PW- 10/F was moved before learned Judicial Magistrate 1st

Class, Manali, on which warrant, copy of which is Ext.PW-10/H was issued, on which PW-10 A.C. Malla made his report Ext.Pw-10/J and thereafter order Ext.PW-10/G was passed and accused Churu Ram was declared as proclaimed offender. It is alleged that on 01.01.2016, a letter Ext.PW-3/A was sent to

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Assistant Manager (Transport), H.P Tourism Office, Manali requesting to provide passenger manifesto of Volvo Bus on 26.07.2015, and passengers list was issued by PW-3 Roop Lal Thakur, which is Ext.PW-

.

3/B, in which accused Sadik Bedabi, Fakhrunnisa

and Lubna Sheikh booked seats for going to Delhi ith the consignment of contraband. During investigation

PW-10 A.C. Malla took record of Rooms No.205, 206 and 208 of Hotel Zarim, Manali from PW-6 Sh. Nishant co-owner/Manager, copy of which is Ext.PW- 6/A. During investigation PW-13 Sh. Karamvir Singh

has taken the copy of Godown register from PW-7 Sh. Kuldeep Sharma, copy of which is Ext.PW-7/O and PW-7 Kuldeep Sharma received the report of CRCL,

New Delhi Ext.PW-7/L and sent the same to PW-10

Sh. A.C. Malla vide letter Ext.PW-7/M. During investigation Intelligence Officer PW-13 Karamvir Singh made inventory Ext.PW-13/Z2 under Section

52-A of the NDPS Act. On receipt of report from CRCL Delhi Ext.PW-7/M and on completion of investigation

present complaint was filed in the Court against the accused persons to face trial under Sections 20, 27-A,

27-B, 29 and 60 of the NDPS Act."

4. Appellants were supplied copies of the complaint

and documents annexed therewith. Upon consideration

thereof, a prima facie case was found and consequently

charges under Sections 20, 27-A, 27-B, 29 and 60 of the

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Act were framed separately against the appellants, who

pleaded not guilty and claimed to be tried.

5. In order to prove its case, the prosecution

.

examined twelve witnesses in all. Thereafter, appellants

were examined under Section 313 Cr.P.C., in which they

pleaded not guilty by taking specific defence that no charas

was recovered from them and they have been falsely

implicated in this case. They claimed that Sadik Bedabi

and two Burka Nashin women were picked up by the

officials, who were in plain clothes from Bus-Stand Manali

when they were waiting for thier bus and were taken to

some hotel where they were detained. The appellants

neither stayed in Hotel Zarim nor drugs were recovered

from their possession. Appellant-Moti Ram examined DW-1

Tek Singh Negi in his defence. Other appellants did not

lead any evidence in their defence.

6. The learned Special Judge convicted the

appellants in the aforesaid manner and aggrieved thereby,

they have filed the instant appeals.

7. Learned counsel for the appellants, other than

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the appellant Moti Ram in Criminal Appeal No.558 of 2017

have addressed common arguments, primarily raising

therein five points:

.

1. Prosecution has failed to link the

report of FSL Exhibit PW-7/L with the samples produced in the Court and the

link evidence is totally missing.

2. Prosecution could not prove on record that appellants Fakhrunnisa Abdul

Rahim, Lubna Sheikh and Sadik r Bedabi Abdul Sayyad were there in Hotel Zarim Manali.

3. Evidence on record belies the case of the prosecution that any recovery was effected from Hotel Zarim.

4. There has been non-compliance of Section 42 of the NDPS Act.

5. Statements recorded under Section 67 of the Act not admissible.

8. Prosecution has failed to link the report of

FSL Exhibit PW-7/L with the samples produced in the Court and the link evidence is totally missing:

8(i). At the outset certain admitted facts need to be

noticed. It is the admitted case of the parties that

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provisions of Section 52-A of the Act had not been complied

with. It is further not in dispute that the entire bulk of the

alleged contraband was also not sent for chemical analysis

.

and only four samples of 25 grams each were sent, vide

samples marked as A-1, B-1, C-1 and D-1. It is also the

case of the prosecution that the sampling was done by the

Investigating Officer after the seizure. It is also the

prosecution's case that there was no Malkhana in office of

NCB Sub Zone Mandi. Lastly, it is the case of the

prosecution that the case property came to be deposited in

the Godown of NCB office at Chandigarh only after four

days on 30.07.2015.

8(ii). In order to substantiate the first submissions

Mr. Ajay Kochhar, learned Senior Counsel assisted by Mr.

Vivek Sharma and Mr. Anubhav Chopra, Advocates, would

contend that it is the admitted case of the prosecution that

the case property at the first time came to be produced in

the Court on 16.03.2017 during the deposition of PW-8

Balvinder and the same was found to be having two seals

of Narcotic Control Bureau and two seals of laboratory in

- 22 -

all the samples produced in the Court i.e. A-1, A-2, B-1, B-

2, C-1, C-2, D-1, D-2.

As per the further case, samples of 25 grams

.

each were taken vide A-1, B-1, C-1 & D-1 and sent for

chemical analysis, whereas samples A-2, B-2, C-2 and D-2

were admittedly were not sent to the laboratory analysis

then how the seals of the laboratory appear on the samples

is clearly a mystery.

Here, it shall be apt to reproduce the relevant

portion of the statement of PW-8, which reads as under:-

"Sample Mark A-1, A-2, B-1, B-2, C-1, C-2, D-1, D-2 all the samples are sealed with two seals each of Narcotic Control Bureau and two seals of laboratory."

8(iii). It is the admitted case of the prosecution that

the case property was sent to the Zonal Office Chandigarh

only on 30.07.2015 and entry to this effect was made in the

godown register Ext.PW-7/K at 11:00 a.m.

PW-7 Kuldeep Sharma admitted that case

property was sent to him on 30.07.2015 meaning thereby

that PW-7 Kuldeep Sharma was not in the possession of

- 23 -

the case property on 28.07.2015.

Once that be so, obviously, the prosecution has

failed to prove how the case property was sent through PW-

.

5 Sumit Kumar on 28.07.2015.

It needs to be observed here that a futile attempt

was made by the Investigating Officer-PW-13 Karamvir

Singh to depose that on 28.07.2015 the case property was

sent by him through PW-7 Kuldeep Sharma for further

transmission to laboratory. This assertion is of no help to

the case of prosecution in the absence of the statement of

PW-7 Kuldeep Sharma being corroborated and further in

absence of there being any other evidence to show how and

through whom the case property was sent to PW-7.

Further there is no explanation as to where the

case property remained from 26.07.2015 to 30.07.2015

when it was deposited in the godown of NCB vide Ext.PW-

7/K and godown register Ext.PW-7/O especially in view of

the admitted factual position on record that there was no

Malkhana in Sub Zone Mandi office of NCB.

8(v). In addition to the aforesaid, the prosecution has

- 24 -

not been able to prove as to how and in which the case

property was sent for chemical analysis vide letter Ext.PW-

5/A on 28.07.2015, that too, by PW-7 Kuldeep Sharma to

.

PW-5 Sumit Sepoy when admittedly there is no reference in

the statement of PW-7 Kuldeep Sharma of having received

the samples which were allegedly further transmitted by

him. Rather there is no evidence on record regarding any

prosecution witness having brought the samples A-1 to D-1

and handing over the same to PW-7 Kuldeep Sharma.

8(vi). There is also variation in the weight of

contraband allegedly apprehended and deposited in the

godown of NCB at Chandigarh. As per the case of the

prosecution eight samples of 25 grams each were prepared

by PW-13 Karamvir Singh, meaning thereby that

contraband weighing 200 grams was used for sampling.

The total quantity apprehended is alleged to be 19.980 Kgs

and in case eight samples were prepared out of this

quantity, the remaining quantity should have been 19.780

kgs.

But, in the godown receipt Ext.PW-7/K and

- 25 -

godown register Ext.PW-7/O total quantity which has been

shown to be deposited was 19.930 Kgs. As per the above

said documents Lot-A, Lot-B, Lot-C were containing 5 Kgs

.

of charas and Lot-D was containing 4.930 Kgs of charas.

If that was not enough, the quantity so

deposited otherwise is also contrary to the case of

prosecution. The prosecution case in the complaint, more

particularly, in para Nos.15 & 16 thereof, is that eight

representative samples (02 from each packet) of 25 grams

each were drawn and the same were marked as A-1, A-2,

B-1, B-2, C-1, C-2, D-1 and D-2 respectively and the

remaining bulk weighing 19.780 grams were packed in Lot-

A, Lot-B, Lot-C and Lot-D, which is contrary to their own

documents.

In this regard, it would be necessary to refer to

the relevant portions of the statements of the concerned

witnesses:

PW-9 Sachin Guleria (Intelligence Officer)

stated that the case property was handed over to him by

the Intelligence Officer at Mandi Office. There was no

- 26 -

Malkhana at Sub Zone Mandi.

PW-10 Amar Chand Malla stated that he had

not brought the seal on that day as he kept the same in

.

office. He had only one seal and the same was used in

every case. He admitted that the seal pertained to Zonal

Office Chandigarh. He admitted that as soon as any

alleged contraband is recovered, the same is kept in the

Malkhana in safe custody and as soon as possible the

same is produced before the nearby Judicial Magistrate

for procuring samples and taking order of destruction for

rest of the contraband. Self-stated, that it was not a

practice earlier and they did not keep the case property in

nearby Police Malkhana and in case of nearby police

station the case property was deposited in the nearby

Police Station. He admitted that the case property was not

deposited within a period of 72 hours in Malkhana at

Chandigarh. He admitted that as per para 28 of the Field

Office Book, the seized contraband was required to be

deposited in the Malkhana at the earliest opportunity

after the seizure and also admitted that the distance

- 27 -

between Manali could be covered in Govt. vehicle within

8-9 hours.

PW-13 Karamvir Singh stated that no record

.

was kept in the Sub Zone or in the Zone Office with regard

to safe custody of seals, which were used in Narcotic

cases. Self-stated that it remained in safe custody of the

Superintendent of the concerned Zone and the seal was

kept in safe custody of the Superintendent of the Sub

Zone and at that time Shri Kuldeep Sharma was the

Superintendent of the Sub Zone. He further stated that he

cannot assign any reason as to why he had not deposited

the case property within 24/48 hours in the

godown/Malkhana at NCB Zonal Office, Chandigarh.

Sampling was done by PW-13 without following the

provisions of Section 52-A of NDPS Act which came into

existence on 01.05.2014.

In the recovery memo Ext.PW-8/L quantity

shown to have seized has been written as 1.19.980 Kgs.

which is contrary to case of prosecution.

8(vii). Moreover, in the recovery memo Ext.PW-8/A,

- 28 -

the quantity shown to have been seized had been written

as 19.980 Kgs. which is contrary to the case of the

prosecution and also contradicts the prosecution's case.

.

Confronted with all the aforesaid submissions

the counsel for the Narcotics Control Bureau has failed to

offer any explanation save and except to state that the

discrepancy in the quantity of the contraband could be

there on account of a typographical error.

8(viii). Apart from the above, it would be noticed that it

was PW-13 Karamvir Singh, who drew the samples in this

case without following the procedure envisaged under

Section 52 A of the NDPS Act. From what has been

discussed above, a grave suspicion is created about the

prosecution's case as the action of PW-13 Karamvir Singh

in drawing samples was contrary to Section 52-A of the

NDPS Act and in coming to such conclusion, we are duly

supported by a very recent judgment of the Hon'ble

Supreme Court in Bothilal Versus The Intelligence

Officer Narcotics Control Bureau 2023 (6) Scale, 377,

more particularly, the findings recorded in paragraphs

- 29 -

No.15 & 16 thereof, which read as under:

"15. Admittedly, PW-2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic

.

covers. These covers were sealed and the remaining

contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before

the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451

of 2011 was that a grave suspicion is created about the prosecution's case as this action by the PW2, was contrary to Section 52-A of NDPS Act.

16. In paragraphs 15 to 17 of the Mohanlal's

case, it was held thus:

"15. It is manifest from Section 52A(2) include (supra) that upon seizure of the

contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered

under Section 53 who shall prepare an

inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of

the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of

- 30 -

the list of samples so drawn."

16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no

.

sooner the seizure is effected and the

contraband forwarded to the officer-in-charge of the police station or the officer empowered,

the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in

his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate.

In other words, the process of drawing of

samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be

correct.

17. The question of drawing of samples at

the time of seizure which, more often than not, takes place in the absence of the

Magistrate does not in the above scheme of things arise. This is so especially when

according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in

- 31 -

the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."

.

(emphasis added)

Thus, the act of PW-2 of drawing samples from all the

packets at the time of seizure is not in conformity with what is

held by this Court in the case of Mohanlal. This creates a serious

doubt about the prosecution's case that the substance recovered

was contraband.

9. Prosecution could not prove on record that appellants Fakhrunnisa Abdul Rahim, Lubna Sheikh and Sadik Bedabi Abdul Sayyad were

there in Hotel Zarim Manali:

9(i). The specific case of the prosecution is that

PW-13 Karamvir Singh after receiving a secret information

constituted a raiding party and thereafter went to Hotel

Zarim Hotel, Manali and made a recovery of contraband

from Room No.206 occupied by the said three appellants.

However, the documents and oral evidence clearly belie

such version of the prosecution.

It shall first be relevant to make a note of the

relevant entry Ext.PW-6/A of the Guest/Tourist/Visitors'

Register Zarim Hotel, which shows that Rooms No.205, 206

- 32 -

& 208 had been booked in the name of one Mr.Abbas

Hussain, LIG Colony, 114 NB Nagar, Mumbai and his

phone numbers have been entered in the Register. We may

.

now refer to the depositions of the relevant witnesses PW-6

Nishant, PW-8 Balwinder, PW-10 Amar Chand Malla and

PW-13 Karamvir Singh (I.O.).

9(ii). Now adverting to the testimony of PW-6 Nishant,

it would be noticed that he deposed that CCTV cameras

were installed in the Hotel and also stated that the

photocopies of the identity card of every guest were

obtained at the time of checking in the hotel and kept in

record. No such record was ever taken by the Investigating

Agency for the reasons best know to them. In his

deposition this witness has admitted that efforts were made

by the Investigating Agency to tamper with the record.

There was no entry in the record of hotel that

any of the appellants ever stayed in the said hotel. But, to

the contrary, the record of hotel showed that some person

in the name of Abbas Hussain had stayed in the hotel

rooms at the time when the Investigating Agency allegedly

- 33 -

visited the hotel.

Further, it has also surfaced from the evidence

that the person staying in Rooms No.205, 206 & 208 had

.

checked out from the Hotel on 27.07.2015 and at the time

when the Investigating Agency allegedly visited the hotel,

one Deepak Basak was occupying the said room i.e. Room

No.206.

This witness further admitted that at serial

No.195 of Ex.PW-6/A Room No.206 had been interpolated

with 207 and the same was not initialled and further

admitted that photocopy of valid photo ID of every hotel

guest/customer was obtained at the time of check-in in the

hotel and kept in record.

This witness further admitted that there was no

entry of any of the appellants in the hotel record and also

deposed that in column No.7 number 6 had been altered in

number 5 by making a cutting and admitted that there was

also cutting in column No.6 in the time.

9(iii). PW-8 Balvinder deposed that Abbas Hussain

had booked the hotel on telephone. He stated that identity

- 34 -

proof of the guests who visited the hotel was taken in the

hotel and admitted that the persons who were residing in

Room Nos.205, 208, 206 had checked out from the hotel

.

on 26.07.2015 at 7:00 a.m. He denied to recognize Abbas

Hussain, who resided in Room Nos.205, 208 and 206, in

the hotel.

This witness further stated that as per Ext.PW-

6/A appellants, namely, Murtaza, Sadik, Riyaaz,

Fakhrunnisa, Lubna never stayed in Hotel Zareem. He

further stated that he had taken CCTV footage of the hotel

but the same was damaged and he did not take CCTV

footage again from hotel and also not made any reference

in the complaint regarding taking CCTV footage.

9(iv). PW-10 Amar Chand Malla, deposed that he had

checked the hotel register and photo identity register on

that day, however, he did not take into possession any

photo identity of the persons staying in the hotel.

This witness further stated that there was no

record pertaining to stay of Sadik, Lubna Sheikh and

Fakhrunnisa in the Hotel Register Ext.PW-6/A." He further

- 35 -

stated that in Ext.PW-6/A in red circle 206 had been

overwritten as 207 and he had not taken into possession

any bills and payment vouchers pertaining to payment by

.

various guests in the hotel on the relevant days.

This witness further stated that record

pertaining to stay of guest in hotel Zarim on the relevant

day was in the name Abbas Hussain who was a Muslim. He

further stated that mobile number of Abbas Hussain was

also mentioned in the column of name and address of

relevant register of the hotel.

9(v). PW-13 Karamvir Singh deposed that as per

above statements they had disclosed about the name of

some Abbas. As per Ext.PW-6/A at Sr. No.193, the name of

Abbas Hussain as written in column No.1 was staying in

Room Nos.205, 206 & 208. He stated that he had not

inquired about the identity of Abbas Hussain who was

staying in the said Room No.206.

9(vi). This assumes importance because it was never

the case of prosecution that the identity of the person

staying in Room Nos.205, 206 & 208 was fake.

- 36 -

9(vii). From what has been noticed above, we find that

a serious doubt is cast upon the prosecution's case

regarding the alleged recovery that too from the appellants

.

more particularly in the manner as alleged by the

prosecution.

9(viii). Similar were the facts in Bothilal's case (supra),

wherein the bag containing the alleged contraband was

recovered from the room occupied by accused No.6,

whereas the prosecution's case was that accused No.1 was

staying in Room No.213 of Himalaya Lodge, Triplicane,

Chennai and he was to receive 5 Kgs. of Heroin from

accused Nos.2 and 3, who were staying in Room No.211 of

Hotel Blue Star International, Chennai. The accused No.4

was staying in Room No.303 of Hotel Surya Periamet,

Chennai where PW-2 Maheshwar Barwal and other

members of party entered.

The case of the prosecution that after PW-2

Mahesh Barwal Sepoy and others members of party

entered in the room, they called upon all the four

appellants who were present there to disclose whether they

- 37 -

were in possession of the contraband. The further case of

the prosecution that it was appellant No.1 who showed a

blue coloured bag from which recovery of about 5 Kgs of

.

Heroin was made. It was not the case of the prosecution

that the appellant No.1 was carrying the bag with him and

that was in his custody as observed above. The bag was in

fact recovered from the room occupied by the appellant

No.4. It was in such circumstances, the Hon'ble Supreme

Court held that the case of the prosecution was not free

from suspicion and that the prosecution had not proved its

case beyond all reasonable doubt. It is apt to reproduce the

relevant observations as contained in Para Nos.17 & 18,

which read as under:-

"17. Even according to the prosecution's

case, as can be seen from the version of PW2,

accused no.1 (appellant in Criminal Appeal No.1185 of 2011) was staying in room no.213 of

Himalaya Lodge, Triplicane, Chennai. He was to receive 5 kilograms of heroin from accused no.2 and accused no.3 (appellant in Criminal Appeal no.451 of 2011). Accused nos.2 and 3, according to the case of the prosecution, were staying in

- 38 -

room no.211 of Hotel Blue Star International, Chennai. It was accused no.4 who was staying in room no.303 of Hotel Suriya, Periamet, Chennai where PW2 and other members of her

.

party entered. The case of the prosecution is that

after PW2 and others entered the room, they called upon all the four accused who were

present there to disclose whether they were in possession of the contraband. The prosecution's case is that accused no. 1 showed a blue

coloured bag from which the recovery of about 5 kilograms of heroin was made. It is not the case

of the prosecution that accused no.1 was carrying

that bag with him or that it was in his custody. The bag was in the room occupied by accused no.4. Thus, it cannot be said that the contraband

was found in the custody of accused no.1. At the highest, it was found in the room occupied by

accused no.4. We may note here that accused no.4 has been convicted by the High Court only

for the offence punishable under Section 30 of the

NDPS Act which is for the offence of making preparation to do or omitting to do anything which constitutes an offence punishable under the provisions of Sections 19, 24 and 27A. The prosecution has not produced any evidence to show that the contraband was brought to the

- 39 -

room of the accused no.4 by the other three accused persons or anyone of them. It is not the case that the room of accused no.4 was in possession of accused nos. 1 to 3 who were

.

staying in different hotels.

18. Therefore, in our view, the case of the

prosecution is not free from suspicion. The prosecution has not proved beyond a reasonable doubt that the appellants in these two appeals

were in possession of the contraband or that they brought the contraband to the hotel room of the accused no.4."

10. Evidence on record belies the case of the prosecution that any recovery was effected from Hotel Zarim:

10(i). As noticed from the aforesaid discussion and

otherwise admitted by the prosecution witnesses that the

appellants were not staying in Zarim Hotel and therefore

the prosecution's case that the recovery was effected from

the said hotel is belied by the documents of the prosecution

itself, which show that the recovery was effected from Hotel

Zareen at Village Malana and not from Zarim Hotel Manali.

Be it stated that there is no dispute that Malana

and Manali are two places, whereas Malana is a village

- 40 -

while Manali is a town and both of them though in Kullu

District and are 100 kilometers apart.

The documents are Ext. PW-7/D and Ext.Pw-

.

7/G which are the arrest memos of the appellants Mortaza

and Riyaaz. These documents show that they have been

arrested consequent upon the recovery/seizure of 19.980

kg of charas recovered from the possession of Lubna,

Fakhrunnisa and Sayad Sayeed at Hotel Zareen, Malana

Village, District Kullu.

Similarly documents Ext.PW-9/A and Ext.PW-

9/B which are the notices given to the above said

appellants before recording of their statements under

Section 67 of NDPS Act also show that the recovery has

been effected from Lubna, Fakhrunnisa and Sayad Sayeed

at Hotel Zareen, Malana Village, District Kullu.

The oral evidence is contrary to the

documentary evidence for which there is no explanation on

record by the prosecution. Further PW-7 Kuldeep Sharma

and PW-10 Amar Chand Malla also admitted that

documents on file show/prove that the contraband was

- 41 -

recovered in Hotel Zareen, Village Malana, Kullu.

10(ii). PW-7 Kuldeep Sharma has admitted to have

mentioned the above said fact in memo Ext.PW-9/A and

.

Ext.PW-9/B. PW-7 Kuldeep Sharma has stated that as per

the memo Ext.PW-9/A and 9/B, he had mentioned

regarding the recovery of 19.980 Kg charas from the

possession of Lubna, Fakhrunnisa and Sayyad at Hotel

Zareen Malana Village, Kullu.

10(iii). Further PW-7 Kuldeep Sharma has admitted the

above said fact and stated that it was correct that in memo

Ext.PW-7/D and Ext.PW-7/E there is reference of

information that recovery of 19.980 kg charas at Hotel

Zareen, Malana Village, Kullu.

10(iv). PW-10 member of the raiding party also

admitted that there are documents on the file which

show/prove that the charas weighing 19.980 kgs. have

been recovered from Hotel Zareen, Village Malana District

Kullu and not in Manali,

10(v). Otherwise also the oral evidence belies the

recovery from Hotel Zareem, Manali. PW-2 Mahesh Sepoy

- 42 -

and PW-5 Sumit Sepoy who were the members of the

raiding party have not uttered a single word about visiting

of the team at Hotel Zareem or any recovery from the

.

possession of the three appellants from Room No. 206.

10(vi). The contradictions and omissions appearing in

the statements of other witnesses also falsify the case of

the prosecution. PW-4 LC Santosh Kumari stated that the

NCB team visited the Police Station at 1:00 p.m., they

started from police station at 1:30 PM, reached hotel

Zareem at 1:45 to 2:00 P.M and the manager of the hotel

was not associated as a witness by NCB team to whom

information was disclosed. She further stated that the

room was checked at about 2:15 PM and notices under

Section 50 were issued which were not computerized and

NCB took photographs of all the proceedings. Her

statement was contradicted by the documentary evidence

of notice under Section 50 of NDPS Act which is

computerized document and other evidence on record.

PW-13 Karamvir Singh stated that he started

writing panchnama at 1:00 PM which could not have been

- 43 -

written at that time as according to PW-4 LC Santosh

Kumari they were in police station at that time and started

from the Police station at 1:30 p.m. and checked the room

.

at 2:15 p.m. As per statement of PW-13 Karamvir Singh

they reached hotel at 1:00/1:30 p.m. and thereafter he

went to the reception and the information was divulged to

PW-8 Balvinder Manager of the hotel and after associating

him and Harbans Lal, they went to Room No. 206. He

further claimed that when he reached hotel PW-8 Balvinder

was sitting in the reception with further deposition that he

was neither called by him nor by the staff.

PW-8 Balvinder contradicted both PW-4 LC

Santosh Kumari and PW-13 Karamvir Singh. He stated

that when NCB team came to Hotel he was in Manali Bazar

and reached the hotel at about 1-1:30 p.m. when he was

called by the NCB staff.

The statement of PW-8 Balvinder and PW-13

Karamvir Singh that Balwinder PW-8 was associated a

witness to the seizure was contradicted by PW-4 LC

Santosh Kumari who categorically stated that manager of

- 44 -

hotel was not associated as a witness by the NCB team to

whom the information was divulged.

The claim of PW-13 Karamvir Singh to have

.

started writing panchnama is unpalatable as it is always

written after the seizure of the contraband and by that time

neither any seizure was made nor the NCB team was

present in the Zareem Hotel. He further admitted that

when an article or contraband during the raid or the

search is seized, firstly the seizure memo is prepared and

thereafter the panchnama is prepared which is mandatory.

No photograph has been placed on record of the

proceedings as has been stated by PW-4.

Otherwise also the statement of PW-4 on this

score of clicking photographs of proceedings was

contradicted by PW-8 Balvinder by stating that no

photograph was clicked by anyone in the hotel on the

relevant date.

Footage of CCTV cameras and the bills or

payment vouchers would have been best evidence which is

missing in present case.

- 45 -

10(vii). PW-4 LC Santosh Kumari, PW-8 Balvinder PW-

10 Amar Chand Malla and PW-13 Karmvir Singh

categorically admitted in their statements that the hotel

.

was situated in a thickly populated area. Once that be so,

then we are at a complete loss to understand as to why the

NCB did not associate independent witnesses when they

were readily available and why only the selected witnesses

were associated.

11. There has been non-compliance of Section 42 of the NDPS Act.

11(i). Admitted case of the prosecution is that it is the

case of prior information. Further, as per the case of the

prosecution the information was received by PW-13

Karamvir Singh and after reducing the same in writing

(Ext.P-7/A) was transmitted to the superior officer PW-7

Kuldeep Sharma.

Though, the prosecution has claimed to have

complied with the provisions of Section 42 of the NDPS Act

but the evidence on record demonstrates that it was a

paper work done later on to comply with the provisions of

Section 42(2) of NDPS Act and practically no such

- 46 -

compliance was done. The relevant witnesses are PW-7

Kuldeep Sharma and PW-13 Karamvir Singh and the

relevant documents are Ext.PW-7/A and PW-7/B.

.

There was no averment in the complaint that

how this information was sent by PW-13 Karamvir Singh to

PW-7 Kuldeep Sharma except a passing reference of para 3

of the complaint that on passing the said information

PW-7 Kuldeep Sharma directed PW-13 Karamveer Singh

(IO) to constitute a team and carry out search of the hotel.

In the evidence on record contradictory versions

have appeared which make the case of the prosecution

doubtful that any such compliance was made.

11(ii). PW-7 Kuldeep Sharma stated that document

Ext.PW-7/A was seen by him after about one week as well

as when it was put before him at Manali. Ext.PW-7/B was

received by him at Chandigarh on 26.07.2015. He received

these documents through Dak and produced before him on

26.07.2015. He further stated that it was correct that

whenever any document was sent through FAX machine,

the FAX machine received the sender's number on FAX

- 47 -

machine. Self-stated that sometimes it did not appear.

Ext.PW-7/B is the FAX copy of the typed portion of

Ext.PW-7/A. Ext.P-7/B was received by around 09:30 a.m.

.

This witness further stated that it was correct

that whenever prior information regarding contraband was

received then the said information was divulged by issuing

notice under Section 50 of the NDPS Act before taking

search of accused. He also stated that it was incorrect that

since there was no prior information regarding carrying of

contraband by the appellants that is why both documents

Mark-C and Mark-D are totally silent regarding that

information which was earlier received by him.

11(ii). PW-10 Karamvir Singh stated that it was correct

that Ext.PW-7/A did not disclose by which mode the same

was allegedly sent to the PW-7 Kuldeep Sharma and

further stated that Ext.PW-7/A was computer generated.

He did not take any certificate under Section 65-B of the

Evidence Act pertaining to control and operation of the

computer where it was generated.

This witness further stated that he had sent

- 48 -

information through FAX from Mandi with regard to secret

information to his superior officer. It was correct that

whenever a FAX was sent, the telephone number of the

.

sending machine and telephone number of the receiving

machine come on the print out when the report was

obtained by pushing the button on FAX machine. It was

correct that there was no phone number on Ext.PW-7/B

pertaining to sending and receiving of secret information

through FAX. r This witness also stated that it was correct that

it was a mandatory requirement when notice under Section

50 of the NDPS Act was served the prior information had to

be mentioned in the notice.

11(iv). The above evidence shows that the claim of the

prosecution that the information was transmitted to the

superior office is farce as the copy placed on record is not a

FAX copy and had there been any such information

transmitted to superior officer PW-7 Kuldeep Sharma at

least the reference of the same should have been there in

the alleged notices issued under Section 50 of the NDPS

- 49 -

Act. Another fact which belies non-compliance of Section

42 (2) of the Act is that in the reports sent to superior

officer in compliance to Section 57 of the Act placed on

.

record are silent of having received any information or its

further transmission to his superior officer. No evidence

has been placed on record by producing the record of

sending machine or receiving machine of said information.

The fact that the admission of PW-7 Kuldeep Sharma of

having seen the information after a week cannot be lost

sight.

11(v). Thus, it stands duly established that there has

been a violation of the provisions of Section 42 as well as

50 of the NDPS Act. From the aforesaid discussion, it can

be conveniently be concluded that the prosecution has not

complied with either Section 42 of the NDPS Act.

12.. Statements recorded under Section 67 of the NDPS Act not admissible:

12(i). Since, statement under Section 67 of the Act is

not admissible, therefore, the appellants Lubna Sheikh,

Fakhrunnisa Abdul Rahim and the co-appellants could not

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have been arraigned as accused on the statement of the

other accused Lubna Sheikh and Fakhrunnisa. It would be

noticed that co-appellant Mortaza Hassan Ali Sheikh etc.

.

arraigned as accused on the alleged statement of the

appellants Lubna Sheikh and Fakhrunnisa Abdul Rahim

recorded under Section 67 of the Act on the pretext of they

being in touch with Moti Ram on his mobile No.98169-

59763, 88941-19481 and 88946-43666. The question

regarding admissibility of statement under Section 67 of the

Act too has been considered in Bothilal's case (supra) and

the same while to be inadmissible in view of the earlier

decision rendered by three Hon'ble Judges of the Hon'ble

Supreme Court in Tofan Singh Versus State of Tamil Nadu

2021 (4) SCC, Page-1. It shall be apt to reproduce the

relevant observations as made in Bothilal's case, in

paragraphs No.10 to 12, which read as under:

"10. Though the two independent witnesses were not examined before the Court, their statements were marked as Exhibits P-19 and P-71. A perusal of the impugned judgment of the High Court shows that it was held that the

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conditions prescribed by Section 53A of the NDPS Act were not fulfilled and therefore, these two statements were inadmissible. The High Court believed the testimony of PW-2 and PW-4

.

to PW-7 and held that the confessional

statements of the accused could be taken as corroboration for the evidence of official

witnesses.

11. Paragraphs 15.1 and 158.2 of he majority view in Tofan Singh's case, read thus:

"158. We answer the reference by stating:

158.1. That the officers who are invested with powers under Section 53 of the NDPS r Act are " police officers" within the meaning of Section 25 of the Evidence Act,

as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into

account in order to convict an accused under the NDPS Act.

158.2. That a statement recorded under

Section 67 of the NDPS Act cannot be used as a confessional statement in the

trial of an offence under the NDPS Act."

12. Admittedly, the confessional statements

were made by the accused to an officer empowered under Section 53 of the NDPS Act and hence, in view of the bar of Section 25 of the Evidence Act, the confessional statements will have to be kept out of consideration."

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12(ii). In addition to the above, it would be noticed that

even in the statement under Section 67, the name of

appellant-Murtaza is nowhere found and the name of some

.

Abbas Hussain and one Mustaffa has been mentioned as

has been admitted by PW-10 Amar Chand Malla.

Unfortunately, the learned Special Judge has

not at all taken into consideration the aforesaid points and

has erred in convicting the appellants, namely, Sadik

Bedabi Abdul Sayyad, Lubna Sheikh, Riyaaz Ali, Mortaza

Hassan Ali Sheikh and Moti Ram.

Appellant Moti Ram's Case

13(i). Now as regards the appellant Moti Ram, there is

practically no link evidence connecting him with the alleged

offence as this appellant has not at all been identified by

any of the prosecution witnesses i.e. PW-9 Sachin Guleria

(Intelligence Officer), PW-10 Amar Chand Malla and PW-13

Karamvir Singh (Investigating Officer). Rather they made no

efforts whatsoever to get Moti Ram indentified whose name

alleged to have been disclosed by the other appellants. It

would further be noticed that even during the course of the

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trial no efforts were made by the prosecution to get Moti

Ram identified by Murtaza so as to establish his identity

firmly leaving no scope of doubt. No independent witness of

.

Village Malana has been associated or examined to

establish the identity of Moti Ram to be the same as

disclosed by Murtaza and this assumes importance

because as many as five persons by the same name Moti

Ram.

13(ii). It r needs to be noticed that as per the

prosecution story Moti Ram was using mobile numbers

98169-59763, 88941-19481 and 88946-43666 to talk with

Mortaza, but none of these phone numbers was registered

in the name of appellant-Moti Lal. Mobile No.98169-59763

belonged to Lal Singh, 88941-19481 belonged to one Suara

and 88946-43666 belonged to one Daulat Ram and

unfortunately prosecution has not examined any of these

persons so as to establish that appellant-Moti Ram had

been using their numbers to talk to appellant-Mortaza.

13(iii). That apart, it would be noticed that it is

the prosecution story that appellant-Moti Ram had sourced

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charas from co-accused Dhani Ram and Deva Ram to

deliver the same to Mortaza and were arraigned as accused

Nos.7 and 8, respectively before the learned Special Judge,

.

but they were acquitted by the Court below. Once that be

so, then obviously the story of the prosecution regarding

the role of appellant-Moti Ram falls like a pack of cards and

in such circumstances, he could not have been found

guilty of sourcing charas to be supplied to Murtaza.

13(iv). In addition to the above, the statement under

Section 67 was otherwise inadmissible for the reasons as

already stated above. Moreover, confession made by an

accused could not have been treated as substantive

evidence against co-accused. For it is settled that a

confession can only be used to lend assurance to other

evidence against other co-accused. That apart, confession

of a co-accused is a evidence of very weak type. It does not

indeed come within the definition "evidence" contained in

Section 3 of the Evidence Act. In drawing such conclusion,

we are duly supported by a judgment of the Hon'ble

Supreme Court in case Surinder Kumar Khanna Versus

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Intelligence Officer, Directorate of Revenue

Intelligence, (2018) 8 Supreme Court Cases 271, more

particularly the observations made in paras No.10 to 12

.

which read as under:-

"10. In Kashmira Singh v. State of M.P., this

Court relied upon the decision of the Privy Council in Bhuboni Sahu v. R. 1949 SCC Online PC 12: (1948-49) 76 IA and laid down as under:

"8. Gurubachan's confession has played an

important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used

against a co- accused? It is evident that it is not

evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. R. 1949 SCC Online PC 12: (1948-49) 76 IA (SCC

OnLine PC) '...It does not indeed come within the

definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be

given on oath, nor in the presence of the accused, and it cannot be tested by cross-

examination.' Their Lordships also point out that it is 'obviously evidence of a very weak type. ... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities'.

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They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in "support of other evidence". In view of these remarks, it would be pointless to cover

.

the same ground, but we feel it is necessary to

expound this further as misapprehension still exists. The question is, in what way can it be used

in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness

who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except insofar as he is

corroborated?

9. In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty where he said that such a

confession can only be used to "lend assurance to other evidence against a co-accused "or, to put it in another way, as Moopan, In rell: (SCC OnLine Mad)

Reilly, J. did in Periaswami Moopan, In re: 1930

SCC OnLine Mad 86 '...the provision goes no further than this- where there is evidence against the co-

accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.'

- 57 -

10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the

.

confession altogether from consideration and see

whether, if it is believed, a conviction could safely be based on it. If it is capable of belief

independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though,

if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to

the other evidence and thus fortify himself in

believing what without the aid of the confession he would not be prepared to accept."

11. The law laid down in Kashmira Singh was

approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar wherein it was

observed:

"12. As we have already indicated, this

question has been considered on several occasions by judicial decisions and it has been consistently

held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider

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the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the

.

said accused person, the court turns to the

confession with a view to assure itself that the conclusion which it is inclined to draw from the

other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty10 a confession can only be used to "lend assurance to other evidence against a co-

accused". In Periaswami Moopan, In rell Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad)

"...where there is evidence against the co-

accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing

that evidence."

In Bhuboni Sahu v. R.9 the Privy Council has

expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine

PC) *... a confession of a co-accused is

obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject

- 59 -

to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to

.

proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed

with the other evidence.' It would be noticed that as a result of the provisions contained in Section 30, the confession

has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances

which are considered by the court as well as

probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the

provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case

against an accused person, the court cannot start

with the confession of a co-accused person; it must begin with other evidence adduced by the

prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the

- 60 -

effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of M.P.8 where the decision of the Privy Council in Bhuboni Sahu case

.

has been cited with approval."

12. The law so laid down has always been followed by this Court except in cases where there is a specific

provision in law making such confession of a co-accused admissible against another accused."

17. We are fully conscious of the provisions of

Section 54 of the NDPS Act which raises a presumption

that the accused have committed the offence under this Act

unless and until the contrary is proved and provides a

reverse burden of proof upon the co-accused. However, in

the instant case, it would be seen that the prosecution has

failed to establish the foundational fact to establish the

case against the appellants, with regard to the commission

of the offence so as to shift the burden on to the accused to

prove their innocence.

18. In Gorakh Nath Prasad Versus State of Bihar,

(2018) 2 Supreme Court Cases 305, it was held in

paragraph 5 that "a reverse burden of proof lies upon the

accused, contrary to the normal rule of criminal

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jurisprudence for presumption of innocence unless proved

guilty. However, this rule shall not dispense with the

requirement of the prosecution to having first establish a

.

prima facie case, only whereafter the burden will shift to

the accused." A mere registration of a case under the Act

will not ipso facto shift the burden on the accused from the

very inception. Compliance with statutory requirements

and procedures shall have to be strict and the scrutiny

stringent. If there is any iota of doubt the benefit shall have

to be given to the accused.

19. Thus, the aforesaid discussion leads to only one

conclusion that the prosecution has failed to prove its case

even against this appellant-Moti Ram.

Unfortunately, here again, it needs to be

observed that the learned trial Court has erred in

convicting him as also the other appellants little realizing

that harsher the punishment the stricter the proof.

20. In such circumstances, we cannot sustain the

conviction of the appellants in these appeals. Accordingly,

the appeals are allowed and the impugned judgment is set-

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aside and the appellants are acquitted of the offences

alleged against them.

21. In view of the provisions of Section 437-A

.

Cr.P.C., all the accused persons, appellants herein, are

directed to furnish personal bonds in the sum of

Rs.50,000/- with one surety each of the like amount to the

satisfaction of the learned Registrar (Judicial) of this Court,

which shall be effective for a period of six months with a

stipulation that in an event of an SLP being filed against

this judgment or on grant of the leave, the accused

persons, appellants herein, on receipt of notice thereof,

shall appear before the Hon'ble Supreme Court.

22. Records be sent back.

(Tarlok Singh Chauhan)

Judge

(Ranjan Sharma) Judge

September 26, 2023 (Shivender)