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TMI Blog2015 (10) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the appellants were found sitting in the cabin of the truck along with the driver Bhupender Singh and a cleaner but for reasons unknown to the appellants, Bhupender Singh was not put on trial and he did not even step in the witness box to confirm the factum of the recovery from the said truck; (iii) the name of the appellants did not transpire in the secret information; (iv) independent persons were not examined and one person who joined investigation namely Sushil Gupta was not brought to the witness box to support the prosecution version; (v) contradictions in the date and time of the search and seizure proceedings; (vi) despite the case of the prosecution being that the consignment of contraband was to be handed over to appellant Netrapal by appellant Vir Chand Rai but no cash was recovered from the possession of Netrapal; (vii) the only evidence against the appellants being their presence in the cabin of the truck from where the contraband is stated to have been recovered and their statements recorded under Section 67 of the NDPS Act; (viii) non-observance of the mandatory procedure under Section 42 and 50 of the NDPS Act; (ix) no recovery from the conscious possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void obstruction of the traffic on the road where the search and seizure proceedings took place, the appellants were asked to come to the NCB office at R.K.Puram. At the NCB office, the truck was off loaded. A total quantity of 275 kgs of ganja was recovered. Samples were drawn in a random manner and were serially marked. The remaining contraband of each parcel was also sealed after being put in cloth pullandas. The samples and parcels were sealed with the seal of NCB DZU 3 which was procured by PW-3 from the office before proceeding for the raid. A test memo in triplicate and recovery memo were prepared and the case property was later deposited in the malkhana. 9. The appellants gave their statement under Section 67 of the NDPS Act regarding their participation in the crime. 10. The samples which were drawn from the recovered contraband were sent for testing to CRCL which confirmed that the contraband was ganja. The appellants were, therefore, put on trial for the offences under Section 20 (b) (ii) (C) of the NDPS Act. 11. The learned Trial Court after examining 11 witnesses on behalf of the prosecution and two on behalf of the defence, convicted and sentenced the appellants as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation to NCB has confirmed the fact that on 30.10.2005, a raid was conducted and he was part of the raiding team. He has testified to the fact that the appellants were caught and contraband was recovered. 16. Similarly, Vikas Kumar (PW-7) was also a member of the raiding team as he was on deputation to NCB from CISF. He has testified to the fact that he was incharge of the seal and he issued the seal to P. C. Khanduri (PW-3) and made the relevant and corresponding entry in the register (Ex.PW-3/5). 17. Thus from the statement of the aforesaid witnesses, it stands established and confirmed that the appellants were found in the truck, from which 275 kgs of ganja apart from other things were recovered. 18. Hawaldar Shiv Rattan (PW-2) has testified to the fact that the samples were taken to CRCL vide forwarding letter PW-1/1 and he deposited its receipt with the malkhanaincharge. 19. R.P.Meena, Assistant Chemical Examiner, CRCL (PW-1) has stated before the Court that on 3.11.2005 Hawaldar Shiv Rattan (PW-2) brought 24 samples boxes marked A-1 to X-1; test memos in duplicate along with a forwarding letter to the CRCL. The same was received by him and was found to be sealed with sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been examined on behalf of the appellants. 25. Pawan Singh (DW-1), Nodal Officer of IDEA has stated that no record is available with the company for the period 29.10.2005 to 1.11.2005 of telephone numbers 9911318844 and 9911365252, which telephone numbers belong to Vikas Kumar (PW-7) and N.S.Yadav (PW-5) who were the members of the raiding team. Aforesaid defence witness has also stated that these numbers were not active at that time. 26. Manak Chand who is the brother-in-law of appellant Netrapal has been examined as DW-2. Aforesaid Manak Chand has stated that his sister informed him that Netrapal had gone to his brother's house at Sahibabad from where he did not return. This information was provided to him by his sister at 8 P.M on 29.10.2005. The telephone number of Netrapal, according to DW-2 was found to be switched off. A resident of Sahibabad informed DW-2 that while Netrapal was buying liquor from a vend, he was taken in a vehicle, which vehicle was found unclaimed in the police post of Sahibabad. 27. Appellant Vir Chand Rai examined himself as a witness under the provisions of Section 315 of the Code of Criminal Procedure and reiterated his defence that he was pick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuant to such a notice he appeared before the NCB officials and gave his statement. Since he was only a witness to the search and seizure, his address was not verified at the time of the request made to him to join the proceedings. 30. This Court is of the view that this is not the proper procedure and the address of any person who joins the search and seizure proceedings, is required to be verified for the reason that his examination before the Court would be necessary for bringing transparency in the entire process of search and seizure. Be that as it may, his non examination has not rendered the prosecution version doubtful in as much as factum of recovery has been duly proved and established through the mouth of PWs.3, 5 & 7. 31. 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. 32. The contention of the appellants regarding non observance of the mandatory requirement of Section 56 of the NDPS Act is not tenable. The recovery of the contraband has been made from the truck, hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he words are susceptible of another meaning the court may adopt the same. But if no such alternative construction is possible, the court must adopt the ordinary rule of literal interpretation." A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". 9. The dictionary meaning of the word "person" is as under: Chamber's Dictionary: "An individual; a living soul; a human being; b: the outward appearance, & c: bodily form; a distinction in form; according as the subject of the verb is the person speaking, spoken to or spoken of." Webster's Third New International Dictionary: "an individual human being; a human being as distinguished from an animal or thing; an individual having a specified kind of bodily appearance; the body of a human being as presented to public view usually with its appropriate coverings and clothing; a living individual unit; a being possessing or forming the subject of personality;" (emphasis supplied) Black's Law Dictionary: "In general usage, a human being (i.e. natural person), though by statute term may inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made the case doubtful a bit. 36. The defence of the appellants that their statements under Section 67 of the NDPS Act has been taken as gospel truth and the conviction has been recorded on such statement only is not true. 37. The issue with respect to the evidentiary value of the statements recorded under Section 67 of the NDPS Act is still res integra. 38. In Kanhaiyalal vs. Union of India, (2008) 4 SCC 668, it has been categorically held by the Supreme Court that an officer under Section 63 of the NDPS Act is not a police officer. The aforesaid conclusion is based on a decision rendered in Raj Kumar Karwal vs. Union of India and Ors., (1990) 2 SCC 407 . The aforesaid judgments namely Raj Kumar Karwal and Kanihya (Supra) were considered by the Supreme Court in Noor Aga vs. State of Punjab and another, [2008 (9) Scale 681] wherein it was held that an officer under Section 53 of the Customs Act is a police officer and, therefore, any statement recorded by him would attract the provisions of Section 25 of the Evidence Act. 39. Though Noor Agha (Supra) is a case under the Customs Act but the reason for holding customs officers as police officer may apply in the context of NDPS A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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