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TMI Blog2008 (7) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... mately 80 kgs of heroin had been dispatched by Yakub by truck bearing No. GJ-8T 4417. Gom Singh @ Ram Singh along with the driver of the truck was to hand over the heroin to Noor Haider and Mohd. Gani. A raid team was constituted and the truck was intercepted at about 8.30 pm on the same date on National Highway No.8 near Rajokri Chowk. One person was sitting in the cabin and another was standing near the truck with a bag. A stationary car No.DL-3SC F 4593 with the boot open was intercepted. An Afghani national was found standing near the car and another was sitting in it. The persons intercepted at the spot revealed their names as Gom Singh @ Ram Singh, Kamal Singh, Mohd. Gani and Noor Haider Siddiqui. The search of the truck and the car yielded four plastic gunny bags containing heroin-two in the cabin of the truck, one in the boot of the car and the fourth on the road near the truck. The persons were apprehended immediately and escorted to the office of the NCB and their bags were opened, searched and the contents were marked. The seizing, sealing and sampling was conducted at the NCB office. The recovered substance of heroin was stated to have been collected weighed around 77 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 67 NDPS Act recorded by PW-18 Mr. Suresh Trivedi, Intelligence Officer, NCB, Jodhpur, Rajasthan on 30th May 2000 had to be discarded since it was not during the course of an enquiry. The complaint against Rehmatullah was filed subsequently on 26th August 2000. 7. Learned counsel for the accused further submitted that in the statement of Yakub recorded by PW-18 Mr. Suresh Trivedi on 23rd December 1999 he did not name Rehmatullah at all. It was only thereafter, when he was brought to the NCB office at Delhi, that he named Rehmatullah. That statement was made under duress and coercion and in fact instead of producing him before the learned Magistrate in Delhi after having obtained transit order from the Magistrate at Jodhpur, he had been brought to the NCB office, Delhi. He further submitted that the alleged service of notice under Section 67 NDPS Act upon Rehmatullah on 30th May 2000 by PW-18 Mr. Suresh Trivedi, his appearance and recording of his statement on that date were highly doubtful. The case of the prosecution is that notice was served at BSF Camp, Barmer and that the statement was recorded at the BSF Camp, Barmer indicating that no notice was actually served and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dical examination of Rehmatullah in the Govt. District Hospital, Barmer did not reveal any injuries. 11. The main point to be considered is whether the statements under Section 67 NDPS can be relied upon by the prosecution. The statements are required to be examined both for their voluntariness and their truthfulness. The details regarding the arrest and questioning of Yakub are available in the evidence of PW-18 Mr. Suresh Trivedi. He has spoken in detail about having received information regarding recovery of 77 kgs of heroin by the NCB at Delhi and pursuant thereto along with officers of NCB Jodhpur, he visited village Dhanua. He speaks of having issued summons by him to Yakub Khan to appear at BSF Chautan. The statement was reduced to writing on Yakub s dictation as the latter could not write or read. PW-8 proved the arrest memo and Jamatalashi memo. He states that Yakub was examined by a doctor of Government Hospital, Barmer who had certified that there were no external injuries. He moved an application before the Special Judge for transit remand. Not much has yielded from this witness in cross-examination by learned counsel for the accused Yakub. He denied that the stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NCB commit any illegality in not producing him immediately before the Court Unfortunately there is no cross-examination of the PWs, who recorded the statement, on this point. In fact, a suggestion was made to the officer concerned that no statement of Yakub was recorded by him on 23rd December 1999 which he denied. The relevant portion of the deposition of PW-9 reads as under: It is correct that on 23.12.1999 accused Yakub Khan had come to NCB office under judicial transit remand. It is correct that the judicial transit remand of Yakub Khan was up till 11 am of 24.12.1999. I gave notice to Yakub Khan on 23.12.1999 at about 12 noon. It is correct that time of giving notice is not mentioned in the notice nor any such proceeding i.e. of giving of notice was separately prepared. My Supdt. Informed me about the identity of Yakub Khan as he was brought by officers of Jodhpur Unit. It is correct that one statement of Yakub Khan was already recorded by Mr. Trivedi at Jodhpur. I did not record in the summons/notice under Section 67 NDPS Act that I am not satisfied with the statement of Yakub Khan recorded under Section 67 of NDPS Act by Mr. Trivedi at Jodhpur, no any separate memo was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. The words during the course of any enquiry in connection with the contravention of any provisions of this Act indicate that the statements could be recorder at any stage of the enquiry. There is nothing in the wording of Section 67 that forbids the recording of the successive statements. The words examine any person acquainted with the facts and circumstances of the case in clause (c), by no means can be interpreted as permitting only a single examination of a person. A comparison could be drawn with Section 91 of the Code of Criminal Procedure, ( CrPC ) 1973 which empowers the officer-in-charge of a Police Station to require any person to produce a document or thing. Likewise, under Section 161 CrPC, the power to examine persons who may be acquainted with the facts and circumstances of the case, by no means indicates that such statements of a person can be recorded only o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 19. As far as the present case is concerned, although in paras 19 and 20 of the order of the trial court it is recorded that the accused sought to retract the statements which were made earlier, it is also noticed that they did not make any such retraction when they were produced before the Magistrate for the first time after the recording of such statements. In any event they did not appear to have filed any formal application retracting the confession. The observations of the Supreme Court in Kanhaiyalal would appear to squarely apply in the instant case. It has been emphasized that the retraction should be made at the earliest point in time (Hegdus Lahel Saba v. Union of India 120 (2005) DLT 341). 20. As regards the submission that a statement of an accused made while in custody cannot be relied upon, the observations of the Supreme Court in Kanhaiyalal appear to indicate otherwise. In para 36 of the said judgment, it was explained as under (AIR, p. 1051): 36. A parallel may be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aten by the officers. However no complaint appears to have been recorded at their instance in this regard. Medical evidence was also not produced in support of such allegation. In this context, the following observations of the Supreme Court in M.Prabhulal v. Assistant Director, DRI JT 2003 (Suppl) 2 SC 459 are relevant: The confessional statements recorded by such officers are admissible in evidence . Further it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced or any torture or harassment .. The statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of appellants conviction. 22. In view of the categorical pronouncement of the Supreme Court in regard to the admissibility of the statements under Section 67 NDPS Act, it cannot be said that the statements recorded in the instant case were not made voluntarily and are therefore inadmissible in evidence. 23. The other point made is regarding the truthfulness of the statements. It is submitted that the failure by Yakub to name Rehmatullah in his first statement on 22nd December, 1999 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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