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TMI Blog2016 (2) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of convition. Moreover, the conviction was based not only on the basis of statement under Section 67 of the Act but also ample corroborative evidence in the shape of testimony of intelligence officers coupled with the recovery effected from the bags. The impugned judgment and order on sentence does not suffer from any infirmity which warrants any interference. - CRL. A. 770/2011, CRL. A. 1046/2012 & Crl. M (Bail) 434/2014 & Crl. MA 12801/2015 - - - Dated:- 5-2-2016 - Hon ble Ms. Justice Sunita Gupta, J. For the Appellant Through Mr. Sudhansu Palo Mr. Tapan Kumar Mahapatra, Advocates For the Respondent : Ms. Satish Aggarwala, Advocate JUDGMENT Sunita Gupta, J. 1. On 20.11.2006 at about 1100 hours, an information was received by Mr Madan Singh, Intelligence Officer, DRI (PW1) that two women of Indian origin shall be carrying narcotics drug in their baggage while travelling from Jallandhar to Delhi by Punjab Roadways bus and likely to reach ISBT, Kashmere Gate, Delhi between 1400 hours to 1430 hours. The said information was reduced into writing vide Ex.PW1/A and was submitted to Pankaj K Singh, Deputy Director DRI, (PW3), New Delhi for suitab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght came to 5.017 kgs. Five gm each was taken out from the packets as sample and were sealed with the seal of DRI. One paper slip was also affixed which was signed by both the accused, the panch witness and the lady officer Parminder Kaur. The sealed parcels were duly deposited and thereafter sent to CRCL which were examined by R.P.Meena, Assistant Chemical Examiner, CRCL (PW-5) who gave his report Ex.PW5/A opining that the samples analyzed by him were found to be heroin (diacetyl morphine). Summons were issued to both the accused in pursuance of which they appeared and their statements Ex.PW6/H and Ex.PW6/K were recorded under Section 67 of the Act. After completing investigation, the complaint under Section 21 and 29 of the NDPS Act, 1985 was filed against them. 3. The charge for offence under Section 21(C) read with Section 8(C) as well as under Section 29 of NDPS Act was framed against both the accused to which they pleaded not guilty and claimed trial. 4. In order to substantiate its case, the prosecution examined nine witnesses. All the incriminating evidence was put to both the appellants while recording their statements under Section 313 Cr.PC wherein they denied the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maheshwari and PW8 Parminder Kaur as according to PW6 the statements of the accused was recorded from 7.15 to 10.15 pm by PW8, however, PW8 has deposed that she left the office of DRI at 7 pm. Reliance was placed on Narcotics Control Bureau v. Anju Tiwari Anr., 2015 [1] JCC [Narcotics] 11; Gurnam Singh v. State of Punjab [Crl. Appeal No.1034-SB of 2004 decided on 28.11.2013]; and Hannan vs. State of NCT of Delhi 2013 (3) JCC 94. 10. Countering the submissions of learned counsel for the appellants, learned counsel for the respondent DRI urged that all the submissions made by counsel for the appellants were also taken before the learned Special Judge and the same were dealt with appropriately. The mere fact that the panch witnesses were not examined does not weaken the case of DRI as no animosity has been alleged by any of the appellants with any officer of DRI for which reason they would falsely implicate the accused in this case or would plant such a heavy recovery upon them. It is further submitted that the judgment relied upon by learned counsel for the appellants has no applicability to the present case as Hanan (supra) relied upon by learned counsel for the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on their statements cannot be faulted with. Sucha Singh vs. State of Punjab, 2015 SCC Online P H 15, again was a case under Narcotic Drugs and Psychotropic Substances Act, 1985, where the independent witness was given up as having been won-over by the accused. Similar plea was taken that on the uncorroborated statements of official witnesses, conviction cannot be based. Repelling the contentions, it was observed by Punjab and Haryana High Court that rule of prudence demands that there should be some corroboration through independent source of the statements of the official witnesses, but if the independent witness though joined by the prosecution, had been given up as having been won over by the accused, that would not be fatal for the prosecution case and the conviction can well be based on the testimony of official witnesses if the same inspire confidence in the mind of the Court regarding guilt of accused. The testimony of official witnesses are at par with the testimony of the non- official witnesses. 14. Again Brijesh Kumar Gupta vs. Narcotics Control Bureau, 2014 Crl. L.J. 4203, was a case under Narcotic Drug and Psychotropic Substances Act, where two public witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the appellants relied upon Gurnam Singh (supra) which was also a case under NDPS Act. In that case, one of the co-accused was acquitted while the appellant was convicted. He was acquitted by Punjab Haryana High Court on number of counts one of which was non-examination of the independent witnesses. There were other factors as well as the place in question from where the alleged recovery was effected was not owned by the accused; the prosecution failed to explain as to what was the source of contraband recovered from the appellant; the seals of gunny bags were cracked and not legible and therefore the possibility of tampering with the case property could not have been ruled out; co-accused had been acquitted. In those circumstances, the appellant in that case was acquitted. 17. Similarly Narcotics Control Bureau v. Anju Tiwari Anr. (supra) was an appeal against acquittal of the accused persons under Section 21 and 29 of the NDPS Act. The learned Trial Court had acquitted the appellant on several counts such as non-compliance of provisions of Section 42 of NDPS Act, non-examination of independent witnesses, the statement under Section 67 of NDPS Act allegedly made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the test memo and after testing the same, directed him to receive the samples. He received the samples in intact condition alongwith forwarding letter and test memo and handed the same to Mr S.K. Mittal, the Chemical Examiner. The seal on the sample packets were in intact condition. On 21.11.2006, Mr S.K. Mittal, In-charge Narcotic Section allotted two samples to Mr R.P. Meena (PW5), test memo in duplicate and forwarding letter with seals intact. Thereafter, analysis of the sample was carried out which gave positive test for heroin. On 22.11.2006, Mr M.C.Maheshwari deposited one packet in Valuable Godown of New Customs House vide deposit memo Ex.PW4/A with Mr D.B. Sharma (PW4), Inspector, Custodian of Valuable godown in intact condition. The aforesaid evidence led by prosecution goes to show that there was no delay in sending the samples to CRCL as the recovery itself was effected on 20.11.2006 and the samples were deposited with PW2 at CRCL on the very next day i.e. 21.11.2006. Moreover, all the link evidence have been examined. Furthermore, after sealing the samples, the paper slip was also affixed on the same bearing the signatures of the officer of DRI, panch witnesses as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 67 of the NDPS Act. In that case, reliance was placed on Raj Kumar Karwal v. Union of India and others (1990) 2 SCC 409 wherein it was held that officers of the Department of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station under Section 53 of the NDPS Act, 1985, are not police officers within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was further observed that statement made under Section 67 of the N.D.P.S. Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the N.D.P.S. Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act. 23. Again in Ram Singh vs Central Bureau Of Narcotics, (2011) 11 SCC 347, the question arose whether a conviction can be based solely on the basis of a confessional statement made under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t read with Section 42 thereof, is not a police officer, the bar under Sections 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solely on the basis of a confession made under Section 67 of the NDPS Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant. 24. In the instant case, the statement under Section 67 of the Act was written by the appellant - Lydia Ninglianting in her own handwriting while that of the appellant Sheikh Dilshad was recorded by PW8 Ms. Parminder Kaur. The appellants were produced before the Court on several dates and at no stage any complaint was made before the Special Judge of any torture or harassment in recording the confession. It is only when their statement under Section 313 Cr.PC was recorded that it was pleaded that no such statement was made by them and they were made to sign documents against their will. In the facts and circumstances of the case, it was rightly observed by learned Special Judge that the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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