2015 (10) TMI 416 - HC - Customs

Offence under NDPS Act - evidentiary value of the statements recorded under Section 67 of the NDPS Act - Held that - True it is that independent persons are to join the investigation, especially the search and seizure proceedings. Nonetheless in the present case, absence of any independent person testifying to the search and seizure proceeding has not made the case doubtful a bit. - The minor contradictions with respect to time and place of search and seizure, in the testimony of witnesses, do not assume any significance. The testimony of even a single witness if found consistent and cogent could be the basis of conviction. The conviction of the appellants has not been recorded only on the statements tendered by the appellants under Section 67 of the NDPS Act. - The statement of DW-1, the Nodal Officer does not help the defence version. There is no reference of any telephone number through which the secret information was received in the police station. Thus the statement of the nodal officer with regard to two numbers not being active on or at the relevant time does not impact the prosecution version. Since no complaint was made either by DW-2 or his sister about the appellant Netrapal having been lifted and whisked away from the liquor vend at Sahibabad, the version of DW-2 also becomes unacceptable. Similar is the case with the statement made by appellant Vir Chand Rai before the Trial Court under Section 315 of the Code of Criminal Procedure. It does not appear to be probable that such a huge quantity of narcotics substance would be planted/foisted on the appellants for being dragged and tried in the present case. - judgment of the Trial Court brooks of no interference. - The appeal, thus fails and is dismissed. - Decided against the appellants.

Issues Involved:
1. Lack of police witnesses during search and seizure.
2. Non-inclusion of the driver in the trial.
3. Appellants' names not mentioned in secret information.
4. Non-examination of independent witnesses.
5. Contradictions in the date and time of search and seizure.
6. No cash recovery from appellant Netrapal.
7. Evidence based on presence in the truck and statements under Section 67 of the NDPS Act.
8. Non-observance of mandatory procedures under Sections 42 and 50 of the NDPS Act.
9. No recovery from the conscious possession of the appellants.
10. Non-consideration of the evidence of DW-2 by the Trial Court.

Detailed Analysis:

1. Lack of Police Witnesses During Search and Seizure:
The appellants argued that no police personnel from Adarsh Nagar police station were made witnesses to the search and seizure despite the truck being seized in front of the station. The court noted that the recovery was confirmed by the raiding team members (P.C. Khanduri, N.S. Yadav, and Vikas Kumar), and the absence of police witnesses did not render the prosecution's version doubtful.

2. Non-Inclusion of the Driver in the Trial:
The driver, Bhupender Singh, was neither put on trial nor stepped into the witness box. The court found that the statements of Bhupender Singh and the truck owner, Nokha Singh, established their lack of awareness about the contraband. Summons were sent to Bhupender Singh, but he was not found at his address.

3. Appellants' Names Not Mentioned in Secret Information:
The appellants contended that their names were not mentioned in the secret information. The court held that secret information need not contain specific names and is meant to alert authorities about potential crimes. The truck number and the presence of contraband were sufficient for the raid.

4. Non-Examination of Independent Witnesses:
The appellants argued that independent persons were not examined, and Sushil Gupta, who joined the investigation, was not brought to the witness box. The court acknowledged the need for verifying the address of persons joining search and seizure but found that the factum of recovery was duly proved by the raiding team members.

5. Contradictions in the Date and Time of Search and Seizure:
Minor contradictions in the testimony of witnesses regarding the time and place of search and seizure were noted. The court deemed these contradictions insignificant and held that consistent and cogent testimony from a single witness could suffice for conviction.

6. No Cash Recovery from Appellant Netrapal:
The appellants argued that no cash was recovered from Netrapal, despite the prosecution's case that the contraband was to be handed over to him. The court did not find this argument significant enough to doubt the prosecution's case.

7. Evidence Based on Presence in the Truck and Statements Under Section 67 of the NDPS Act:
The appellants contended that their conviction was based solely on their presence in the truck and statements under Section 67 of the NDPS Act. The court noted that the conviction was not solely based on these statements but also on the recovery of contraband and other evidence.

8. Non-Observance of Mandatory Procedures Under Sections 42 and 50 of the NDPS Act:
The appellants argued non-compliance with Sections 42 and 50 of the NDPS Act. The court clarified that Section 50 was not applicable as the recovery was from the truck, not the person. The procedures were found to be duly complied with.

9. No Recovery from the Conscious Possession of the Appellants:
The appellants argued that there was no recovery from their conscious possession. The court held that the presence of appellants in the truck containing contraband was sufficient to establish possession.

10. Non-Consideration of the Evidence of DW-2 by the Trial Court:
The appellants claimed that the Trial Court did not consider the evidence of DW-2 properly. The court found the defense witnesses' statements unconvincing and noted that no complaint was made about the alleged abduction of Netrapal.

Conclusion:
The court dismissed the appeals, finding no merit in the appellants' contentions. The judgment of the Trial Court was upheld, and the appellants' conviction under Sections 20(b)(ii)(C) read with 29 of the NDPS Act was confirmed.

Applications:
In view of the dismissal of the appeals, the related applications were dismissed as infructuous.

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