9911796707
TMI Blog2001 (5) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... years Rl and to pay fine of Rs. one lac, in default of payment of fine, to further undergo 6 months Rl. Both sentences were ordered to run concurrently. 4. Mohd. Arshad 23 of the NDPS Act Fifteen years Rl and to pay fine of Rs. one lac. in default of payment of fine, to further undergo 6 months Rl. 29 of the NDPS Act Fifteen years R1 and to pay fine of Rs. one lac. in default of payment of fine, to further undergo 6 months Rl. Both sentence were ordered to run concurrently. 5. Arvinder Singh 29 of the NDPS Act Fifteen years Rl and to pay fine of Rs. one lac. in default of payment of fine, to further undergo 6 months Rl, 6. Harjeet Singh @ Pappa (Absconder) Note :- 1. That in appeal No. 145/99, one of the accused appellanls, namely, Harjeel Singh @ Pappa was declared absconder by this Court on 8.3.2000 and thus, his appeal was separated from the appeal of accused appellant No.1 Arvinder Singh of that appeal. 2. That since in appeal No. 158/99, accused appellant Mohd. Arshad was not being represented by any counsel as the same was filed by him through jail, therefore, Shri J.S. Choudhary was appointed as Amicus Curiae on behalf of accused appellant Mohd. Arsha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that Truck one person was sitting and on being asked, he told his name as Labh Singh (accused appellant) and he further told that two more persons, namely, Major Singh and Mangal Singh (since the hub of the Truck had broken) had gone to Bikaner and they would be coming just now and after 15 minutes, both Major Singh and Mangal Singh (accused appellants) came there. it was stated that Major Singh was owner of the Truck and Mangal Singh was driver of the Truck and in preliminary enquiry, these three accused appellants, namely, Lab Singh, Major Singh and Mangal Singh told that there Truck in question was loaded with the bags of wheats, but when they were seriously questioned, they told the Raiding Party that in between the bags of wheats, two suitcase were also there, in which packets of heroin were kept for the purpose of taking lo Bombay. Since at that time there was some darkness, all the three accused appellants alongwith the Truck were brought to the office of the Customs situated in Rani Bazar, Bikaner. Thereafter, PW16 Om Prakash gave notice under Section 50 of the NDPS Act to the accused appellants asking them whether they wanted to be searched before him i.e. PW 16 Om Prak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x.P/366, where it was stated as under:- Each of the seven samples are found by qualitative and quantitative analysis to be opium derivative (diacetyl morphine) within the meaning of Section 2 XVI of NDPS Act. After the proceedings of search and seizure of the said heroin by PWIO Kuldeep Singh, statement of the accused appellant Labh Singh under Section 67 of the NDPS Act was recorded by PW 19 R.K. Jain 67 of the NDPS Act was recorded by PW 19 R.K. Jain and the same is Ex.P/376 and in that statement, accused appellant Labh Singh revealed the following facts:- 1. That heroin which was recovered from the Truck in question belonged to him and the same was to be sold at Bombay to one Rehman and he (accused appellant Labh Singh) purchased that heroin from Pakistan national Arshad (accused appellant) through Harjeet Singh (accused appellant), resident of Amritsar. 2. That earlier also he purchased 5kg. heroin at the rate of ₹ 60,000/-per kg. and sold at the rate of ₹ 70,000/- per kg. to Rehman. 3. That he came in contact with accused appellant Harjeet @ Pappa at Amritsar, who used to send ascitic and N-hydrade from Indian to Pakistan and in return, he used to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b of the Truck was broken and accused appellants Mangal Singh and Major Singh went to Bikaner and he remained in the Truck and in the meanwhile, Raiding Party came there. Thereafter, on 24.5.1996, statements of the accused appellants Major Singh and Mangal Singh under Section 67of the NDPS Act were recorded by PW 17 V.K. Gupta and they are Ex.P/26 and Ex.P/27 respectively. They also gave the statement in consonance with the statement given by the accused appellant Labh Singh. On the basis of the facts disclosed by the accused appellant Labh Singh during recording of his statement under Section 67 of the NDPS Act, search of Room No. 103 of Hotel Hansa Delux, Karole Bagh was made. Search of Room No. 103 of Hotel Hansa Delux, Karole Bagh, Delhi The case of the prosecution further is that on 24.5.1996 search of Room No. 103 of Hotel Hansa Delux, Delhi was made by PW14 Sanjay Srivastava in presence of PW5 Rakesh Gupta and Nandlal and in that room, Harjeet Singh and Arshad (both accused appellants) were found. Before making their search, notices Ex.P/2 and Ex.P/359 under Section 50of the NDPS were given by PW 14 Sanjay Srivastava to accused appellants Arshad and Harjeet Singh re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used appellant Arshad he contacted accused appellant Labh Singh and the same was handed over by him to Labh Singh for transporting to Bombay. 5. That he was told by the officers of DRI that heroin, which was handed over by him to accused appellant Labh Singh has been seized. Statement of accused appellant Arshad The statement of accused appellant Arshad under Section 67 of the NDPS Act was recorded by PW3 R.A. Sharma on 24.5.1996 and the same is Ex.P/5, where he confirmed the statement given by accused appellant Harjeet Singh. He further told that 50 kgs. heroin was brought by him from Pakistan and Indian border was crossed by him with the help of accused appellant Arvinder Singh. Statement of accused appellant Arvinder Singh On 25.5.1996, a notice Ex.P/21 was given to the accused appellant Arvinder Singh by PW6 B.S. Bakshi for recording his statement and PW6 B.S. Bakshi recorded his statement on 25.5.1996 and the same is Ex.P/22 and his further statement was recorded on 26.5.1996 and the same is Ex.P/23 and both statement were written by accused appellant Arvinder Singh himself in his own hand writing and he also confirmed the statement given by the two accused appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner as indicated above holding inter-atia. 1. That since the heroin was recovered from [he Truck in question and thus, it was not a personal search and, therefore, compliance of Section 50 o. the NDPS Act was not necessary in the present case. 2. That Truck in question would be termed as public carrier or public conveyance and the recovery would also be classified as recovery from public place and, therefore, in these circumstances, provisions of Section 42of the NDPS Act would not be applicable, rather provisions of Section 43 of the NDPS Act would be applicable. 3. That in the case of accused appellant Arvinder Singh, prior sanction under Section 197 Cr.P.C. was not at all required. 4. That statements of all the accused appellants under Section 67 of the NDPS Act were recorded in lime and it cannot be said that accused appellants remained in custody for a longer period and, therefore, their statements were recorded. 5. That when the statements of the accused appellants under Section 67 of the NDPS Act were recorded, they were not accused at that time nor they were arrested. 6. That accused appellant Arvinder Singh through Ex.D/2 retracted his confession, but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by accused appellant Arvinder Singh through Ex.D/2 and furthermore, since he has received so many awards including the Presidential Award for his rendering best services to India on Pakistan-India Border, therefore, to think that such a person would indulge himself in such illegal activities, is beyond imagination and from this point of view also, the case against this accused appellant Arvinder Singh should not be held to be proved. Hence it is prayed that the appeal filed by accused appellant Arvinder Singh be allowed and he be acquitted of the charges framed against him. Appeal No. 158/99 Arshad v. U.O.I. In this appeal, the learned counsel appearing for accused appellant Arshad has argued that the statement of accused appellant Arshad Ex.P/5 under Section 67 of the NDPS Act recorded by PW3 R.A. Sharmaon 24.5.1996, was not voluntary one and thus, no reliance can be placed on that statement. Hence, it is prayed that this appeal be allowed and the accused appellant Arshad be acquitted of the charges framed against him, Appeal No. 182/99 Labh Singh Ors. v.. U.O.I. In this appeal, the following submissions have been made by the learned counsel appearing for accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and seizure from Truck No. WMQ 3348 at Bikaner 8. PW10 Kuldeep Singh stales in his statement that on 22.5.1996 he was posed in DR1 At Delhi and he reached Bikaner on 23.5.1996 alongwith Alok Tiwari, K.S. Ratra, Rajeev Kumar Sidana (PW 7) and other officials. He further states that after reaching there, he called two independent witnesses, namely, PW12 Liyakat AH and PW 13 Mahendra Singh and they all went to National Highway Bikaner Ganganagar Road near Check Posi, where PW16 Om Prakash, PW 17 V.K. Gupta, PW18 T.C. Gupta and PW 19 R.K. Jain, other officers of DRI from Jaipur Range also assembled there. He has further stated that they all waited for one and half hour, but the Truck in question did not come and, therefore, they proceeded towards road that was going to Ganganagar and after crossing 11 kms. they found the truck in question standing and they stopped their vehicle and asked the person, who was sitting in that Truck and he told him name as accused appellant Labh Singh and he further told that alongwith him, two more persons were there and he told their names as Major Singh and Mangal Singh (accused appellants), who had gone to Bikaner to make repair of the hub of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of PW16 Om Prakash, PW17 V.K. Gupta, PW18 T.C. Gupta and PW19 R.K. Jain on the point of recovery and search and seizure of so called heroin from the Truck in question, in which three accused appellants namely, Labh Singh, Major Singh and Mangal Singh were found. All these witnesses have been cross examined at length, but nothing has come out which affects their testimony. 10. From the statements of PW 10 Kuldeep Singh, PW16Om Prakash, PW17 V.K. Gupta, PW18 T.C. Gupta and PW19 R.K. Jain, the fact that 52 packets of heroin were recovered from the Truck in question on the intervening night of 23/24/5/1996 at Bikaner and in that Truck, three accused appellants, namely, Labh Singh, Major Singh and Mangal Singh were there and Major Singh was owner of the Truck, Mangal Singh was driver of the Truck and Labh Singh, who was carrying these packets from Amritsar to Bombay was also in the Truck. 11. Thus, from the above evidence, it is also proved that the heroin recovered from the Truck in question was in joint possession of the three accused appellants, namely, Labh Singh, Major Singh and Mangal Singh. 12. On the said recovery, it is argued by the learned counsel for the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding, conveyance or enclosed place at any time between the sunset and sunrise afler recording the grounds of his belief. 19. Thus, it is clear that the provisions of Section 42 of the NDPS Act would be only applicable when search, seizure and arrest have to be effected without warrant or authorisation in any building, conveyance or enclosed place. if such places are not be entered into and searched, the provisions of Section 42 of the NDPS Act will not be applicable. Section 41 42 of the NDPS Act apply when there is a prior information about the presence of the contraband article in any building, conveyance or enclosed place, while Section 43 applies when information as such is not about the presence of a contraband article at any of such place, but such article is likely to be brought in any public place. 20. On purpose, it may be stated here that the provisions of Section 42 of the NDPS Act requiring the information received to be reduced into writing under Section 42(1) has a definite purpose. The purpose is that story of secret information may not be connected to support any version that is put in the Court. it is intended that the accused must know that information ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Section 43 which deals with the power of seizure and arrest in public places is slightly different from Section 42 in certain respects. The empowered officer while acting under Section 43* need not record any reasons of his belief. This Section also does not mention anything about the empowered officer having prior informalion given by any person or about recording the same, as compared to Section 42. 28. Thus, clear position emerging out of the above mentioned decision is that an empowered officer while effecting search, seizure or arrest in any public place under Section 42 of the NDPS Act need not record reasons of his belief nor is he required to reduce to writing any information received by him before effecting search, seizure or arrest, etc. in any public place under this Section 43. 29. As already stated above, search in the present case has been effected from the truck. in India, the Truck, which carries goods from one place to another on public demand and on consideration, in all circumstances would be regarded as public conveyance. Therefore, the Truck in question from which contraband heroin was recovered would be treated as public conveyance and when it is tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on relevant documents, it should be held that these documents were executed in their presence. Statements under Section 67 of the NDPS Act of accused appellants Labh Singh, Major Singh and Mangal Singh 36. The statement of accused appellant Labh Singh under Section 67 of the NDPS Act was recorded by PW19 R.K. Jain on 24.5.1996 and the same is Ex.P/376 and he was arrested through Ex.P/376A on 24.5.1996. 37. The statement of accused appellant Major Singh under Section 67 of the NDPS Act was recorded by PW17 V.K. Gupta on 24.5.1996 and the same is Ex.P/26. He was arrested by PW17 V.K. Gupta on 24.5.1996 through Ex.P/370. 38. The statement of accused appellant Mangal Singh under Section 67 of the NDPS Act was recorded on 24.5.1996 by PW17 V.K. Gupta and the same is Ex.P/27. He was arrested by PW17 V.K. Gupta on 24.5.1996 through Ex.P/371. 39. On these statements which were recorded under Section 67 of the NDPS Act, ii has been argued by the learned counsel for the accused appellants that they cannot be read in evidence, as they are hit by Article 20(3) of the Constitution of India and furthermore, they were recorded under coercion and pressure and were not voluntary one. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was agreed that on 25726th May, these heroin would be handed over by him to Rahman at Bombay. 5. That accused appellants Harjeel Singh and Arshad told accused appellant Labh Singh that they were going Delhi, where they would stay in Hotel Hansa Delux and they further told him to telephone them before one day of reaching Bombay so that day and place of meeting could be decided. They also gave the telephone number of Hotel Hansa Delux Delhi and the same was recovered from the pocket of accused appellant Labh Singh. 43. On the basis of the above facts revealed from the statement of the accused appellant Labh Singh, PW6 B.S. Bakshi, who was the officer in the DRI, authorised PW14 Sanjay Srivastava to make search in Room No. 103, Hotel Hansa Delux, Delhi. Search of Room No. 103, Hotel Hansa Delux, Saraswali Marg, Karole Bagh, Delhi 44. PW 6 B.S. Bakshi, who was officer in the DRI has stated that he authorised PW14 Sanjay Srivastava to make search in Room No. 103, Hotel Hansa Delux, Delhi and the Authority Ex.P/14 bears his signatures at place A to B. 45. PW 14 Sanjay Srivastava states that on 24.5.1996 he was intelligence Officer in DRI at Delhi and on that day he made se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, from the statements of PW14 Sanjay Srivastava and PW6 B.S. Bakshi, the fact that Room No. 103 of Hotel Hansa Delux, Delhi was searched is well proved and it is also well proved that during search, the accused appellants Harjeet Singh and Arshad were found in side that room and during search, the driving licence Ex.P/16 of the accused appellant Harjeet Singh, visiting card of Nanak Roadways Corporation Ex.P/17 and ticket of Shatabdi Express Ex.P/18 were recovered. 48. Hence, the facts, which were got revealed through the statement of accused appellant Labh Singh, were further established during search of Hotel Hansa Delux, Delhi and as per his statement, the accused appellants Harjeet Singh and Arshad were found in Room No. 103 during search of that Hotel. 49. Thereafter, PW6 B.S. Bakshi summoned accused appellant Harjeet Singh through notice Ex.P/19 dated 24.5.1996 for recording his statement under Section 67 of the NDPS Act and on 24.5.1996, statement of the accused appellant Harjeet Singh was recorded by PW6 B.S. Bakshi and the same is Ex.P/20, in which he has stated:- 1. That for the last six months, he was in contact with Pakistan national Arshad (accused appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s now in jail and, thereafter, they went to me house of Pappa @ Harjeet Singh and then, he and accused appellant Pappa went to the house of accused appellant Labh Singh for giving the said 52 kg. heroin to accused appellant Labh Singh and, thereafter, they came back to the house of accused appellant Pappa and thereafter, accused appellant Pappa @ Harjeet Singh went to book the ticket for Delhi in Shatabdi Express for 21.5.1996 and then he came back after booking the ticket and at about 10.45. they reached Delhi and at about 11.45 they reached in the Hotel Hansa Delux situated at Karole Bagh and stayed in Room No. 103. 51. On the basis of the above informations revealed from the statements of accused appellants Harjeet Singh and Arshad, the accused appellant Arvinder Singh was summoned through notice Ex.P/21 dated 25.5.1996 by PW6 B.S. Bakshi for recording his statement. Statements Ex.P/22 and Ex.P/23 under Section 67 of the NDPA Act of accused appellant Arvinder Singh 52. On 25.5.1996, a notice Ex.P/21 was given to the accused appellant Arvinder Singh by PW6 B.S. Bakshi for recording his statement and PW6 B.S. Bakshi recorded his statement under Section 67 of the NDPA Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded on 26.5.1996 under Section 67 of the NDPS Act, the accused appellant Arvinder Singh has stated that he has not given correct factual position and truth in his earlier statement Ex.P/22 recorded on 25.5.1996 and he admitted that on the relevant date, he alongwith PW1 Charnanlal and PW2 Nagesh Kumar reached Burji No. 74 in Ajnala Sector at about 0545 hours on 20.5.1996 in green colour Maruti Gypsy and seeing accused appellant Arshad on the other side of gate, he asked accused appellant Arshad to put the bags containing approx. 50 kgs. heroin in the vehicle and he drove the vehicle to Amritsar, where he handed over the heroin alongwith accused appellant Arshad to accused appellant Harjeet Singh, who was already waiting for him on Ajnala Road near his residence. 55. The main argument of the learned counsel for the accused appellants Arvinder Singh and Arshad is that the so-called statements Ex.P/22 and Ex.P/23 of accused appellant Arvinder Singh and Ex.P/5 of accused appellant Arshad recorded under Section 67 of the NDPS Act, which have been referred to above, cannot be read in evidence, as they are hit by Article 20(3) of the Constitution of India and furthermore, they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. He would obviously be a person who can be considered to be acquainted with the facts and circumstances of the case. in most of the cases he would indeed be the best person to throw light with regard to the contravention of the prohibited operation. 61. The sole purpose of an enquiry under this section is to ascertain if there is any contravention of the provisions of NDPS Act or any rule or order made thereunder. in such enquiry, not only the person who subsequently may become the accused with reference to the matter under enquiry, but also persons who are conversant or suspected to be conversant with such contravention are examined. This is the reason why in the section the words 'any person' are used so as to denote all the persons inclusive of the persons who subsequently become accused. 62. The Hon'ble Supreme Court in Raj Kumar Karwal v. Union of India and Others (5), has held that officers invested under Section 53 of the N.D.P.S. Act with the powers are not police officers within the meaning of Section 25 of the Indian Evidence Act. Thus, the statements recorded by them are not hit by Section 25 of the Indian Evidence Act. 63. The terms 'custody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of the guarantee against testimonial compulsion embodied in this clause, it must be shown, firstly, that the person who made the statement was accused of any offence , secondly, that he made this statement under compulsion. 67. in a proceeding under Section 67 of the NDPS Act, when any person is required or summoned for an enquiry, that person is not an accused person. The phrase accused of any offence would mean that only a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution, would fall within its ambit. 68. Thus, it can be concluded that the statement recorded under Section 67 of the NDPS Act is admissible in evidence, if it is made voluntarily and without fear, inducement or coercion. 69. if the confession made to Customs Officer or on the same anology before the officer under the NDPS Act under coercion, conviction cannot be sustained on that basis, as held by the Hon'ble Supreme Court in Sevanlilal v. State of Maharashtra (6). 70. Keeping the above principles in mind, the statements of the accused appellants Arvinder Singh and Arshad recorded unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. PW6 B.S. Bakshi, who issued the notice Ex.P/21 to the accused appellant Arvinder Singh, has stated in his cross examination that the said notice was given to accused appellant Arvinder Singh in his office on 25.5.1996 and his earlier statement Ex.P/22 was also recorded by him on 25.5.1996 and earlier to that, he recorded the statement of another accused Harjeet Singh on 24.5.1996 and that statement is Ex.P/20 and he has further stated that he was confident that accused appellant Arvinder Singh had given the statements voluntarily. 76. in my opinion, whether Ex.P/21 notice bears despatch number or not, but if the same has been given to accused appellant Arvinder Singh in the office, service is complete and as it bears the signature of accused appellant Arvinder Singh with date, validity of notice Ex.P/21 cannot be questioned. 77. There is one more aspect that through Ex.D/2, the accused appellant Arvinder Singh retracted his statements given earlier i.e. Ex.P/22 and Ex.P/23. 78. Ex.D/2 is dated 27th May, 1996, but before Magistrate, it was produced on 10.6.1996. The learned Special Judge has given the finding that this retraction was made by the accused appellant Arvinde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned Special Judge and the so-called retraction made through Ex.D/2 would not be helpful to rebut the statements Ex.P/22 and Ex.P/23. Hence, the findings of the learned Special Judge in this respect are liable to be confirmed, as they are based on correct appreciation of facts and law. 82. By the statements Ex.P/22 and Ex.P/23 recorded under Section 67 of the NDPS Act, the accused appellant Arvinder Singh confirmed the statements given by two other accused appellants, namely, Harjeet Singh and Arshad on material points i.e. how from Pakistan-India border, 52 Kgs. heroin was smuggled, how he was instrumental in bringing the said 52 Kgs. herein from Pakistan to India and how he was involved in it. 83. So far as the argument that accused appellant Arvinder Singh was a man who was awarded many awards and thus, from such a person to think that he would indulge himself in such illegal activities is beyond imagination, was rightly negatived by the learned Special Judge by holding that a person of good character can become a bad character at any moment and vice versa. Accused appellant Arshad 84. The statement Ex.P/5 of the accused appellant Arshad under Section 67 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statements, the case of the prosecution that 52 kgs. heroin was handed over by accused appellant Harjeet Singh to accused appellant Labh Singh is well proved and, thereafter, the fact that it was being transported in the Truck of accused appellant Major Singh for heavy consideration from Amritsar to Bombay via Bikaner is also well proved and it is also proved that the said heroin was kept in the Truck beneath the gunny bags of wheat and at the time of search of the Truck, the possession over the contraband heroin was found to be of three accused appellants, namely, Labh Singh, Major Singh and Mangal Singh, as discussed above. 92. On volunlariness of the statements recorded under Section 67 of the NDPS Act especially of accused appellant Arvinder Singh, this Court has considered the evidence recorded by the learned trial court, where cross examination of this witness and other witnesses have been done and the learned trial court has come to the conclusion that the statements were made voluntarily and this Court sees no special reason to take different view in the matter. Recently, the Hon'ble Supreme Court in T. Thomson v. State of Kerala and Anr. (7), has held that unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has assigned valid reasons for each and every argument raised by the learned counsel appearing for accused appellants in the trial court and thus, the findings of conviction recorded by the learned Special Judge are liable to be confirmed and the above mentioned appeals are liable to be dismissed. 96. Looking to the quantity of heroin recovered in the present case and looking to its price in global market, in my opinion, sentence of 15 years R1 awarded by the learned Special Judge to the accused appellants does not appear to be excessive and hence, on point of sentence also, the accused appellants are not entitled to any leniency. Accordingly, the abovementioned three appeals being No. 182/99 filed by accused appellants Labh Singh, Major Singh, Mangal Singh; No. 145/99 filed by accused appellant Arvinder Singh except that of accused appellant No. 2 Harjeet Singh and No. 158/99 filed by the accused appellant Arshad fail and they are dismissed after confirming the judgment and order dated 24.2.1999 passed by the learned Special Judge, NDPS cases, Bikaner in Sessions Case No. 7/96. 97. The record of this case be not weeded out till the appeal of accused appellant No.2 Harje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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