2017 (12) TMI 1834 - HC - Indian Laws

Smuggling - Charas - whether there is any provision to file a supplementary complaint and if so can the same be filed without obtaining leave of the Court, as admittedly accused Khekh Ram has been convicted only on the basis of the supplementary complaint? - HELD THAT - Indisputably, the complaint in this case was initially filed only against the accused Nilmani whereas supplementary complaint came to be filed thereafter against accused Khekh Ram. It is also not in dispute that since complaint was filed by a public servant acting in discharge of his official duties, therefore, the recording of preliminary evidence under Section 200 of the Criminal Procedure Code was dispensed with and after perusing the complaint and the documents, the learned Special Judge took cognizance only against Nilmani as he was sole accused. There are no hesitation to conclude even though there exists no specific provision in the Code of Criminal Procedure to file supplementary complaint in a complaint case, however, if on further investigation and with the express leave of the court, the culpability and the complicity of any other person is established the supplementary complaint be filed. Indubitably, in this case the NCB has not obtained any further permission for further investigation or even placing on record the supplementary complaint. Therefore, the trial on the basis of such supplementary stands vitiated against the Khekh Ram and once the complaint itself held to be not maintainable, then obviously any conviction and sentence based on such complaint has essentially to be set aside - the appellant is acquitted of the charges framed against him. He is ordered to be released forthwith if not required in any other case - appeal allowed. Smuggling - contraband item - facts brought on record by the NCB falsify the case of the prosecution or not - mere paper work and nothing happened and no such incident took place at any point of time or not - failure to connect the FSL report Ex.PW1/A with the alleged contraband - failure to comply with Section 42(2) of the Act - non-joining of independent witness is fatal to the case of the NCB - NCB case is full of infirmities, discrepancies, embellishments and improvements etc. - Appellant has been wrongly implicated while the real culprits let off by the respondents - Non-interrogation of the appellant casts serious doubt on the NCB story - HELD THAT - Following conclusion is reached - (i) Even though the specific case set-up by the NCB is to the effect that the accused had been apprehended at about 8 30 p.m. on 20.10.2014 and as per PW-10 he was not allowed to go anywhere till 21.10.2014 at 2 00 a.m. and had not contacted anyone on his mobile phone nor he receive any call. However, the call details clearly prove that he was in constant touch with number of persons from 8 30 p.m. on 20.10.2014 till 12 23 p.m. on 21.10.2014 and as many as 34 calls had been made. (ii) The contraband alleged to have been recovered on 20.10.2014 but in case the memo of recovery Ex.PW9-D is perused, the same is dated 21.10.2014. (iii) The witnesses S/Shri Surjit Singh and Roshan Lal whose statements have been recorded under Section 67 of the Act and available as Ext.PW-9/Q-1 and Ext.PW9/E are conspicuously silent about the receiving of the secret information and transmitting the same to the PW-7, Superintendent, NCB at 6 30 p.m. on 20.10.2014. (iv) It is the specific case set-up by the NCB that no proceeding whatsoever conducted on the spot i.e. Shat because it was dark, therefore, the accused was taken to Zonal Office, Mandi where search and seizure proceedings were conducted. PW9 has claimed to have issued two notices Ext.PW-9/A i.e. option given to the appellant under Section 50 of the NDPS Act and Ext.D-2, notice given to the appellant under Section 67 of the NDPS Act and in both these notices, the place of issuance is mentioned as Shat . (v) Memo Ext. PW9/A does not contain any date when the same was prepared. (vi) In Panchnama Ext.PW9/F, the time of receiving information and the time of reaching is tampered with. (vii) In Ext.PW9/G, the statement of the accused under Section 67 of the Act, the date has been tampered with and changed from 21.10.2014 to 20.10.2014 to show the arrest of the accused. (viii) The seals alleged to have been used are different from those exhibited on the record. (ix) The information Ex.PW-7/A is dated 22.10.2014 and not 20.10.2014 and realizing this discrepancy, PW-7 while entering witness box improved his version qua receiving of the information and introduced another story by stating that the said information was received through FAX, which is Ext.PW7/A and the same was received by him on 20.10.2014 around 11 00 p.m. However, when Ext.PW-7/A is perused, the same admittedly is not a FAX message and not even an original copy and, therefore, in the given circumstances, the NCB has withheld the best evidence which calls for an adverse inference. (x) There are no call details of the officials who sent the information under Section 42 of the Act and the person who received the same to substantiate the factum of calling and receiving of calls as alleged by them. (xi) PW-9 even though tried to support the version of PW-7 regarding the sending of the FAX message but has candidly admitted in his cross-examination that Ext.PW- 7/A is not a FAX copy and further admit that the FAX copy has not been placed on record. (xii) As per PW9, the case property was taken by him to Zonal Unit, NCB Chandigarh on 21.10.2014 and was deposited with PW-7, who issued receipt Ext.PW-7/C in this regard. It would also be noticed that in case PW-9 had visited PW-7 on 21.10.2014 then why the information under Section 42(2) of the NDPS Act was not placed before him on 21.10.2014 itself and came to be placed before him subsequently on 22.10.2014. (xiii) It is the case set-up by the NCB that the apprehension, search and seizure were conducted after sun set and before sun rise. Therefore, as per the mandate of law, PW-9 was required to write his reasons of believe in the said information as to why warrants could be obtained without affording the opportunity, however, no such reasons find mention in Ext.PW7/A. (xiv) The entire bulk of the alleged contraband was not sent for analysis and only four samples of 25 grams each had been sent. Therefore, even assuming that the case set-up by the NCB is proved to the hilt even then it is only 100 grams of charas that can be said to have been recovered from either of the accused for which the maximum conviction would be about one year and concededly the appellants have undergone more than the aforesaid said period in custody. (xv) There is no explanation forthcoming as to why the accused was sent to judicial custody on the same day of his arrest without any efforts by the NCB official to interrogate him on the vital aspects of the case. There are no hesitation to conclude that the NCB has miserably failed to lead cogent, reliable and satisfactory evidence to prove the guilt of the accused beyond reasonable doubt - appellant is acquitted of the charges framed against him - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Legality of filing a supplementary complaint.
2. Compliance with Section 42 of the NDPS Act.
3. Non-joining of independent witnesses.
4. Contradictions and discrepancies in the prosecution's case.
5. Real culprits being let off.
6. Non-interrogation of the appellant.
7. Validity of the FSL report and its connection with the alleged contraband.

Issue-wise Detailed Analysis:

1. Legality of Filing a Supplementary Complaint:
The court examined whether a supplementary complaint could be filed without the leave of the court. It was noted that there is no unanimity of judicial opinion on this matter. The court referred to various judgments, including those from the Bombay, Karnataka, Delhi, and Punjab & Haryana High Courts, which generally held that a supplementary complaint is not permissible without invoking Section 319 of the Criminal Procedure Code (CrPC). However, the Jharkhand and Calcutta High Courts allowed supplementary complaints under specific circumstances. The court concluded that a supplementary complaint is legally maintainable if filed with the express leave of the court, similar to a supplementary charge-sheet in a police case. However, since the NCB did not obtain permission for further investigation or for filing the supplementary complaint, the trial based on such a complaint was vitiated against Khekh Ram, leading to his acquittal.

2. Compliance with Section 42 of the NDPS Act:
The court scrutinized whether the NCB officials complied with Section 42 of the NDPS Act, which mandates that any information received must be taken down in writing and communicated to the superior officer within 72 hours. The court found discrepancies in the dates and times mentioned in the documents and statements, indicating non-compliance. The information was allegedly received on 20.10.2014 but was documented on 22.10.2014. The court emphasized the mandatory nature of Section 42, citing judgments from the Supreme Court, and concluded that non-compliance vitiates the trial.

3. Non-joining of Independent Witnesses:
The court noted that despite the availability of independent witnesses, the NCB did not associate any during the search and seizure operations. The court emphasized that non-association of independent witnesses, especially when they were available, casts serious doubt on the NCB's story. The court referred to testimonies indicating the presence of local inhabitants who could have been witnesses but were not included.

4. Contradictions and Discrepancies in the Prosecution's Case:
The court identified several contradictions and discrepancies in the NCB's case. These included inconsistencies in the dates and times of the recovery memo, tampering with documents, and differences in the seals used on the contraband samples. The court found that these contradictions undermined the credibility of the NCB's case and suggested fabrication of documents.

5. Real Culprits Being Let Off:
The court observed that the NCB's own investigation pointed to other individuals, such as Ram Lal alias Lalu, Mohar Singh, and Amri Lal, as the main suppliers of the contraband. However, no proceedings were initiated against them under Sections 80 and 82 of the CrPC. The court found this omission significant, particularly in light of allegations of money transactions to let off the real culprits, which were admitted by the investigating officers.

6. Non-interrogation of the Appellant:
The court noted that the appellant was sent to judicial custody on the same day of his arrest without any efforts by the NCB to interrogate him on vital aspects of the case. This lack of interrogation raised further doubts about the thoroughness and integrity of the investigation.

7. Validity of the FSL Report and Its Connection with the Alleged Contraband:
The court found that only four samples of 25 grams each were sent for analysis, despite the alleged recovery of 19.780 kilograms of charas. The court cited the Supreme Court's judgment in Gaunter Edwin Kircher vs. State of Goa, which held that the entire bulk must be analyzed to confirm its nature. Consequently, the court could only consider the recovery of 100 grams of charas, which would warrant a maximum sentence of one year, a period already served by the appellants.

Conclusion:
The court concluded that the NCB failed to prove the guilt of the accused beyond a reasonable doubt due to non-compliance with mandatory legal provisions, contradictions in the evidence, and procedural lapses. Consequently, the impugned judgments of conviction and sentence were set aside, and the appellants were acquitted and ordered to be released forthwith.