$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18th August, 2018 Pronounced on: 24th August, 2018 + CRL.A. 557/2016 BINOD KUMAR @ BINDU Appellant Through: Ms. [ENTITY], Adv. versus STATE Respondent
Through: Mr. [ENTITY], APP for [ENTITY] with SI Ramkishan, Crime Branch, Shakarpur, Delhi CORAM: HON'BLE MR. JUSTICE [ENTITY] % JUDGMENT
1. Vide the impugned judgment dated 3rd March, 2016, followed by order on sentence dated 10th March, 2016, the appellant stands convicted, by the learned Special Judge, NDPS, under [SECTION] of the [ACT] (hereinafter referred to as "the Act"), and sentenced to rigorous imprisonment for 12 years and fine of 1,00,000/-, with default simple imprisonment of six months.
2. The relevant facts, as set out in the Special Report, submitted by SI [ENTITY] (PW-15) under [SECTION] of the Act, read thus:
"It is submitted that on 29/7/2012, secret information was received vide DD No.4 at 10:30 AM and after compliance of [SECTION] [ACT], a trap was laid near Monkey Bridge behind Red Fort, ring road, Kotwali, Delhi. At about 12 Noon one person namely [ENTITY] s/o [ENTITY] r/o N-9 B/274, Jhuggi Lal Bagh, Azadpur, Delhi was apprehended along with a hired vehicle tempo No. DL 1 LL 9760, Notice U/[SECTION] [ACT] was served upon him and his legal rights were explained. After his refusal, search of the hired vehicle was conducted as per law. During search 5 plastic bags were recovered from his hired vehicle. All bags were given mark 1 to 5. All bags were opened and checked. In the plastic bags sl no. 1 & 2 was having 25-25 packets, sl.no.30 was having 30 packets, Sl. No.4 was having 36 packets and Sl.No. 25 was having 23 packets. Weight of each packet was 1 Kg each. Some small quantity was taken out from each parcel and two sample of 250/250 gms each were prepared. marked A & B. Rest of the [ENTITY] recovered was kept as it was recovered and all were kept in 5 pulandas and marked as sl. No.1 to 5, FSL form filled up. All the pulandas and FSL forms were sealed with the seal of SP. After use, the saal was handed over to [ENTITY] [ENTITY] No. 1221/Cr. SI [ENTITY] took all the 7 pulandas and vehicle into police possession through seizure memo and prepared rukka u/[SECTION] [ACT] against the accused person and handed over to Ct. [ENTITY] No. 1701/Cr. Along with the case property, FSL form and carbon copy of the case property seizure memo for registration of the case and depositing the case property by SHO/Crime Branch, Delhi. The further investigation of the case is being carried over by under signed. I reached on the spot i.e. Monkey Bridge, behind Red Fort, Ring Road, Kotwali. Delhi and prepared the site plan, interrogated the accused persons, arrested the accused person namely [ENTITY] s/o [ENTITY] r/o N-9 B/274, Jhuggi Lal Bagh, Azadpur, Delhi at 7 p.m. dated 29/7/2012 after his sufficient evidence and recorded his disclosure statement. Then I went to PS-Crime Branch and recorded the statement of SHO/Crime Branch and MHCM/Crime Branch, later that I again came back to the office of SOS and recorded the statement of witnesses. Information of his arrest has been given to his wife [ENTITY] personally. The investigation of the case is in progress."
Witnesses cited by the prosecution
3. The witnesses cited by the prosecution may be divided into three categories, viz.
(i) witnesses to the seizure and recovery of the ganja, i.e. PW-9, PW-10, PW-11, PW-12, PW-14 and PW-15,
(ii) witnesses to the sampling and testing of the seized ganja, i.e. PW-3, PW-5, PW-6, PW-7 and PW-13 and
(iii) other witnesses, i.e. PW-1, PW-2, PW-4, PW-9.
4. Of the various officers who constituted the raiding party, evidence was led, by the prosecution, of [ENTITY], Constable [ENTITY] and SI [ENTITY], who deposed as PW-10, PW-12 and PW-14 respectively. To a large extent, the evidence of these three officers was identical; so much so that the examination-in-chief of PW-12 Const. [ENTITY] is a near unsettlingly verbatim reproduction of the examination-in-chief of PW-10 [ENTITY]. These three witnesses deposed, in one voice, that (i) the raid team was constituted by SI [ENTITY] (PW-14), (ii) the team left the police station at 10:45 am and reached the area behind the Monkey Bridge, Red Fort (iii) passers-by were requested to join the investigation but they did not cooperate, (iv) the raiding team, thereupon, constituted a nakabandi, (v) on the prompting of the secret informer, a green Vikram tempo, bearing No. DL-1L-L9760, was stopped by them, (vi) the driver of the tempo disclosed his identity to be [ENTITY] (PW-9), (vii) the person sitting beside the driver was pointed out, by the secret informer, to be [ENTITY] who, according to the secret informer used to carry ganja for [ENTITY],
(viii) on being queried, the said co-passenger admitted that he was [ENTITY], (ix) a written notice, under [SECTION] of the Act (Ex.PW-10/A) was given to [ENTITY], but he refused, (x) the tempo was found to be carrying five kattas which, on being searched, was found to contain ganja, (xi) the IO interrogated [ENTITY], whose disclosure statement was exhibited as Ex.PW-10/C, (xii) [ENTITY] was arrested vide Arrest Memo Ex.PW-10/D and (xiii) personal search of [ENTITY] was also conducted vide Personal Search Memo Ex.PW-10/E.
5. All the aforementioned three witnesses, i.e., PW-10 [ENTITY], PW-12 Const [ENTITY] and PW-14 SI [ENTITY], correctly identified the appellant, in court, as the co-passenger seated on the front seat of the tempo beside [ENTITY] (PW-9). The fact of conducting of raid by SI [ENTITY] (PW-14) was also confirmed by PW-8 Insp. [ENTITY].
6. PW-9 [ENTITY] was the key witness of the prosecution. He deposed that, on 20th July, 2012, he was approached by one [ENTITY], who requested him to load five plastic bags, belonging to him, on his vehicle and to transport the bags to Azadpur Delhi, for which he offered to pay 800. He identified the appellant, in court, as the person who had approached him. He confirmed that, while they were en route to Azadpur, with the aforementioned consignment of [ENTITY], his vehicle was stopped by Police officials near Red Fort and that, on the five bags being checked, ganja was found contained therein. The police officials thereupon, took samples from the bags and seized the vehicle vide Seizure Memo Ex.PW-9/A. His testimony withstood cross examination.
7. [ENTITY], deposing as PW-10, testified that, on 29th July, 2012, a secret informer had informed him that "[ENTITY]", who used to deal in ganja, would be proceeding, with a consignment, towards Azadpur, via Ring Road. He conveyed the said information to SI [ENTITY] (PW-14), and a raid team was constituted, consisting of SI [ENTITY], himself, [ENTITY], [ENTITY], [ENTITY], Const. [ENTITY], Const. [ENTITY], Const. [ENTITY], Const. [ENTITY] and Const. [ENTITY]. He deposed that the raiding team proceeded to the area behind the Red Fort, where attempts were made to secure the assistance of passersby, but in vain. At about 12:15 pm, one green [ENTITY], belonging to [ENTITY] (PW-9) approached, in which "[ENTITY]", was sitting besides the driver. The secret informer, on seeing them, stated that the appellant used to carry ganja for "[ENTITY]". The raiding team stopped the vehicle, and enquired of the identity of the persons seated therein, whereupon the appellant disclosed himself to be [ENTITY]. The driver was found to be [ENTITY] (PW-9).
8. PW-10 further deposed that notice, under [SECTION] of the Act (Ex. PW-10/A) had been given to the appellant - though, it may be noted, as the seizure was effected from the tempo, and not from the person of the appellant, the said provision was not applicable. Thereafter, the tempo was searched. Five plastic kattas were found in the tempo, with katta Nos. 1 and 2 having 20 packets each, katta No. 3 having 30 packets, katta No. 4 having 30 packets and katta No. 5 having 25 packets. In other words, there were a total of 139 semi- transparent polythene packets, contained in the 5 kattas. On opening the packets, they were found to contain a substance which smelt like ganja. Each polythene was found to be weighing 1 kg thereby making a total of 139 kg ganja.
9. It was further deposed by PW-10 [ENTITY] that the "IO had taken out sample from each and every packets and two samples of 250 gms each were drawn and these two samples were kept in two separate polythene, tied with the rubber band and then the same were kept in two separate cloth parcels and marks A & B were given to the parcels".
10. The sealed parcels, FSL Form and the tempo were taken into possession by the IO (PW-14), vide Seizure Memo (Ex. PW-9/A). [ENTITY] was prepared by Const. [ENTITY] (PW-12). Sometime later, SI [ENTITY] arrived at the spot and prepared the site plan. The IO interrogated the appellant and recorded his disclosure statement as Ex.PW-10/C. Thereafter, the appellant was arrested vide Arrest Memo Ex. PW-10/D, and subjected to personal search vide Personal Search Memo Ex PW-10/E.
11. PW-10 correctly identified the appellant, who was present in Court. He also identified the seized ganja. It was seen, however, that, in the kattas serial no. 1 and 3, only 24 polythenes and 29 polythenes were found as against the original quantity of 25 polythenes and 30 polythenes, which fact was also noted by PW-10, [ENTITY] in his statement.
12. PW-10 further acknowledged that he did not know whether the IO had made any inquiry to ascertain if the contraband found in the vehicle belonged to [ENTITY]. He also stated that no public person was invited to join the investigation. He also deposed that no family member of the accused put his/her signature on the Arrest Memo of the accused, in his presence.
13. The deposition of [ENTITY] (PW-12), also a member of the raiding team, was to a large extent, a verbatim reproduction of the deposition of [ENTITY] (PW-10). Const. [ENTITY], too correctly identified the plastic kattas and the ganja contained therein, and other case property, when shown to him in court.
14. In cross-examination, PW-12 deposed that the accused was referred to, by the secret informer, as "[ENTITY]", and that he was so referred to, by any other name, in his presence. He further stated that, though public persons were invited to join the investigation, they did not cooperate. He also confirmed that no person from the nearby temple, was called to join the investigation. He also deposed that "family members of the accused were also not called at the spot". He further stated that he had been informed by the IO that "[ENTITY]" used to work for [ENTITY]; however no attempt was made either to arrest [ENTITY] or investigate his role.
15. PW-11 ACP [ENTITY] merely confirmed, in his deposition, during trial, dated 2nd May, 2015, that he had directed Inspector [ENTITY] (PW-10) to constitute a raiding party. He confirmed having received his Special Report under [SECTION] of the Act, dated 30th July, 2012 (Ex.Pw-11/A).
16. The next witnesses, to the seizure, PW-14 Inspector [ENTITY], the IO, tendered his evidence on 28th August, 2015. He confirmed that the raiding team had made a nakabandi near the Monkey Bridge, Ring Road and had started checking all vehicles. He confirmed having intercepted the green Vikram tempo, in which the appellant was found sitting besides the driver of the tempo. He also confirmed that the secret informer, on seeing the tempo, stated that the appellant (whose name was ascertained, on enquiry, to be [ENTITY]) used to carry ganja for [ENTITY]. On enquiry, he deposed that the driver of the tempo was [ENTITY]. He confirmed having served a notice under [SECTION] of the Act, on the appellant. As regards the contents of the tempo, his deposition was, again, identical to that of Inspector [ENTITY] (PW-8), and [ENTITY] (PW-10). In court, he identified the three plastic kattas, which were found contained 24, 25 and 29 plastic polythenes, and also confirmed that the kattas originally contained were 25, 25 and 30 plastic polythenes. He identified the ganja which was contained in the said plastic polythenes.
17. The above versions of PW-8, PW-10, PW-12 and PW-14 were confirmed by SI [ENTITY] (PW-15), also a member of the raiding party. Significantly, however, PW-15 also acknowledged having obtained the signatures of [ENTITY], wife of the appellant, on the Arrest Memo at a later date.
18. Apart from the above, PW-8 Inspector [ENTITY] deposed that, on 29th July, 2012, he was informed by the secret informer, that "[ENTITY]" would reach near Lal Qila with a huge consignment of ganja, and that he informed the ACP [ENTITY] (PW-11) accordingly. ACP [ENTITY], as already noticed hereinabove, confirmed this fact and stated that, on receipt of information from Inspector [ENTITY] (PW-8), he directed Inspector [ENTITY] to constitute a raiding party, which was, ultimately, constituted by SI [ENTITY] (PW-14).
19. From the above depositions, it is obvious that there was some ambivalence regarding the identity of the person who, according to the secret informer, would be carrying ganja, and learned counsel for the appellant understandably seeks to capitalize thereon. PW-8 Inspector [ENTITY] deposed that the information, provided by the secret informer was that "[ENTITY] supplier of ganja" would be reaching Lal Qila with the consignment. In cross examination, he confirmed that the secret information received was about "[ENTITY]"
and there was no reference to "[ENTITY]". As against this, PW-10 [ENTITY], whom the secret informer had actually met, deposed that the information given by the secret informer was that "one person, namely, [ENTITY], a resident of Azadpur, Lal Bagh Jhuggi, used to deal in ganja and he would proceed towards Azadpur via Ring Road to supply ganja ".
20. ACP [ENTITY], deposing as PW-11, on the other hand, testified that Inspector [ENTITY] had informed him that [ENTITY] had received information from the secret informer to the effect that one person, namely, "[ENTITY]" who used to deal in ganja, would be proceeding towards Lal Quila. Const. [ENTITY] (PW-12), who was also informed by the secret informer, deposed that, on 29th July, 2012, the secret informer informed him that "one person, namely, [ENTITY]" would be proceeding towards Azadpur, carrying a consignment of ganja. In cross-examination, however, he admitted that the information given by the secret informer was to [ENTITY], and not to him. Again, Inspector SI [ENTITY], deposing as PW-14, referred to the persons, regarding whom secret information had been received, as "[ENTITY]".
21. While, therefore, there was marked ambivalence amongst the various witnesses inter se, regarding the first name of the person who, according to the secret informer, would be carrying ganja, spanning the distance between "Binod" and "[ENTITY]", none of the witnesses testified to have received any information regarding "[ENTITY]".
22. As regards "[ENTITY]", while [ENTITY] (PW-10) and Const. [ENTITY] (PW-12) deposed that no investigation was carried out, by the IO, regarding the said person, and no attempt was made to arrest him, the second IO, SI [ENTITY], deposing as PW-15, testified that he, along with [ENTITY], Const. [ENTITY], [ENTITY], and [ENTITY], went to Patna in search of the supplier [ENTITY], but could not trace him. On this issue, too, therefore, the actual position is unclear, with the IO SI [ENTITY] asserting that efforts had, in fact, being made to trace [ENTITY], for which purpose the team had proceeded to Patna, and [ENTITY] and Const. [ENTITY], who was stated by him, to have been members of the team deposing otherwise, stating that no efforts were made to investigate [ENTITY], or to arrest him.
23. The manner in which the 5 kattas, found in the Vikram tempo of [ENTITY], were examined and searched, is described thus, in the statements of PW-10 [ENTITY]:
" Thereafter, IO conducted the search of aforesaid tempo. There were five plastic kattas inside the tempo. IO had given serial no.1 to 5 to these five plastic kattas. IO checked all the five plastic kattas. Plastic katta bearing serial no.1 and 2 were having 25 packets each. Katta bearing serial no.3 was having 30 pkts. Katta bearing serial no.4 was having 36 packets and plastic katta bearing serial no.5 was having 23 packets. There were total 139 packets in semi transparent polythenes. All the packets were having khaki colour tape. IO opened the plastic kattas and these were found containing flowering tops and seeds. From the physical appearance and from the smell these found to be ganja. Thereafter, IO weighed each semi transparent polythene containing ganja and it came to be 1 kg each. IO had taken out sample from each and every packet and 2 samples of 250 gm each were drawn and these two samples were kept in two separate polythene, tied with the rubber band and then the same were kept in two separate cloth parcels and mark A and B were given to the parcels. The remaining ganja was kept in the respective packets and then in the respective plastic kattas and the mark 1 to 5 had already been given to these kattas. IO prepared form FSL at the spot. IO affixed his seal, i.e. SP on all the five parcels bearing no.1 to 5, A and B, the seal after use was given to me. Thereafter, IO had taken into his possession all the sealed parcels, the FSL Form and also the aforesaid tempo into his possession through seizure memo vide Ex. PW9/A, which bears my signatures at point B. Therafter, IO prepared tehrir and gave the same to Ct. [ENTITY] with the direction to hand over the same to the duty officer. IO had also given all the seven sealed parcels, FSL Form and carbon copy of seizure memo to Ct. [ENTITY] with the direction to hand over the same to SHO, PS Crime Branch."
This stands fully corroborated by statements of PW-12 Const. [ENTITY] and PW-14 SI [ENTITY].
24. Besides the above, the only other witness to the raid was PW-9 [ENTITY], who was the "star witness" of the prosecution, and on whose statement learned counsel Mr. [ENTITY] emphatically relies. According to the statement of [ENTITY], he used to drive a Mahindra Champion vehicle, using which he used to deliver filter at M/s Studds Company, Faridabad, Haryana. He further deposed that on 28th July, 2012, on the way back from M/s. Studds Company, his vehicle developed a snag at the Badarpur Border, for which purpose he called the mechanic at 9 am, the next day, who repaired the vehicle. In the meanwhile, he deposed, "one person whose name later on revealed as [ENTITY] came to (him) and asked (him) to load his 5 plastics bags and take the same to Azadpur", for which an amount of Rs. 800 was settled between them. He identified the appellant, in court, as the said [ENTITY]. He further deposed that [ENTITY] loaded the five plastic bags in his vehicle and that, while they were proceeding towards Azadpur, they were intercepted by police officials, who checked the bags and found that they contained ganja. He also confirmed that samples had been taken, by the police officials, from the bags, which were seized vide Seizure Memo Ex.PW-9/A.
25. In cross examination, however, PW-9 [ENTITY], on being queried, was unable to disclose the name of the mechanic who repaired his vehicle on 28th July, 2012. He also stated that he had never informed his office regarding the defect in his vehicle. He further admitted that he had no bills regarding the goods allegedly consigned to him by [ENTITY] for carriage to Azadpur, even while acknowledging that "whenever (he) was carrying any goods of any customer, it was always with the bill of that goods".
26. It may be noted, here, that SI [ENTITY] (PW-15), the second IO, in his deposition, confirmed that none of the documents recovered from PW-9 [ENTITY], or from his vehicle, contained the name of [ENTITY].
27. Inasmuch as there is no serious dispute regarding the transmission of the sample to FSL for analysis, detailed reference to the process adopted therefore, may not be necessary. Suffice it to state that the MHC (M), [ENTITY], deposing as PW-3, confirmed that he handed over the pullanda marked "A", sealed with the seals of "SP" and "CRM" to Const. [ENTITY], for being deposited in the FSL, and Const. [ENTITY], deposing as PW-6, confirmed having deposited the same sample marked as "A", in the FSL.
28. [ENTITY], SSO (Chemistry) in the FSL, deposing as PW- 7, confirmed that he received, on 22nd August, 2012, the aforementioned sealed cloth parcel, marked "A", with seal impressions of "SP" and "CRM" and subjected it to physical, microscopic, chemical and TLC examination, whereupon it was found to be "ganja" (Cannabis).
29. The examination report (Ex.PW-2/A), dated 20th September, 2012, of the FSL, may be reproduced thus:
"EXAMINATION REPORT
1. Report No. FSL.2012/C-6113 Date : 20.09.12
2. Ref.No. 1277, 4PP/SHO/Crime Branch, Malviya Nagar, dated 22.08.2012, From SHO/Crime Branch Malviya Nagar.
3. FIR No. 203/12, PS - Crime Branch Malviya Nagar, dated 29.07.12, U/[SECTION] [ACT].
4. Mode of Receipt : through Ct. Lalit, No. 499/Crime.
5. Date of Receipt : 22.08.2012
6. Articles(s) Received : One sealed cloth parcel.
7. One sealed parcel. Seals were found intact and tallied as per forwarding authorities specimen seals.
8. Details of the Parcels/Exhibit received :
No. of No. of Seals & Description of Parcels/ seal Impression Parcels/Exhibits Exhibits Parcel-A Three seals of One sealed cloth "SP" & one seal parcel found to of "CRM" contain exhibit A kept in a polythene. Exhibit-A Greenish brown colour fruiting and flowering vegetative, tops having characteristic cannabinoids odour, weight 258.7 gm (approx) with polythene.
9. Purpose of reference :- For Chemical Examination & Report.
10. Dates of Examination : 05.09.2012 to 20.09.2012
11. RESULT OF EXAMINATION REPORT On Physical, Microscopic, Chemical and TLC examination, exhibit A was found to be [ENTITY] (cannabis).
12. After the examination, the remnants of the exhibits have been sealed with the seals impression as per specimen provided below:"
30. After recording of the statements of the various PWs were complete, the statement of the appellant, under [SECTION] of the [ACT], was recorded. The appellants statement was in the form of a bald denial, totally disowning having anything to do with ganja, or the transport thereof, or of the interception and seizure thereof, by the raiding team. He claimed that he had, in fact, been brought from his house in the wee hours of the night and embroiled in a case, with which he had no concern.
31. The appellant cited four witnesses in his defence, namely DW-1 [ENTITY] (his son), PW-2 [ENTITY], (his wife), DW-3 SI [ENTITY] and DW-4 [ENTITY] (his uncle).
32. DW-1 deposed that at about 1 - 1:30 am on 28th July, 2012, his father i.e., the appellant was called out of the house by someone with whom he conversed for about 15 minutes, whereafter his father was taken to PS Darya Ganj. He further stated that he waited for his father till 2 - 2:30 am whereafter he went to sleep and that, on waking up at 7 am he went to his uncle [ENTITY] (DW-4) and narrated the incident. He claims that he had thereafter, attempted to call his father on his mobile phone, which was switched off, and that DW-4 had advised him to wait as the police "might leave" his father after sometime.
33. DW-2 [ENTITY], after returning from Haridwar on the next date, i.e., 30th July, 2012 supporting the deposition of DW-1, stated that she had returned to Delhi on 30th July, 2012 and come to know that her husband, i.e., the appellant had been taken to PS Darya Ganj and that, on her visiting the Police Station, the police officials reluctantly allowed her to meet the appellant.
34. DW-4 ([ENTITY]), the uncle of the appellant, deposed that, on 29th July, 2012, DW-1 had informed him that his father, i.e., the appellant, had been taken away by certain persons the previous night. He further deposed that he had attempted to call the appellant, but found that his mobile phone was switched off and that, after waiting for his brother to return, the whole of that day, he, on 30 th July, 2012 (as 29th July, 2012 was Sunday), sent a fax complaint (Ex. DW-3/A) to PS Darya Ganj, regarding the lifting of his brother by the Police officials.
35. DW-3 SI [ENTITY] confirmed the receipt of the complaint dated 30th July, 2012, made by DW-4 ([ENTITY]).
36. Consequent on the above investigation, the appellant was charged for having committed the offence under [SECTION] of the Act. He pleaded innocence and clamed trial.
37. Having assimilated the evidence in the manner aforementioned, the learned Special Judge proceeded, vide the impugned judgment, dated 3rdMarch 2016, to convict the appellant under [SECTION] of the Act, entering, in the process, the following findings:
(i) Learned counsel for the appellant had sought to submit that the case was one of mistaken identity, in which the appellant was wrongly implicated in place of one "[ENTITY]".
It was emphasised, by learned counsel for the appellant, that the appellant was not "[ENTITY]" but "[ENTITY]", who had nothing to do with "[ENTITY]". This submission was rejected, by the learned Special Judge, placing reliance, for the purpose, on the testimony of [ENTITY] (PW-10) (who was the person contacted by the secret informer), to the effect that the information received was in respect of "Binod" and not "[ENTITY]". This aspect, it was noted by the learned Special Judge, had not been clarified in his cross-examination. Similarly, PW-12 Const. [ENTITY], had also referred to the person, regarding whom secret information was received, as "Binod" and not "[ENTITY]". The contention that the secret information received was with respect to "[ENTITY]" and not "Binod", could not, therefore, be accepted. In any event, held the learned Single Judge, the names "[ENTITY]" and "Binod" were interchangeably used by many persons, the difference being purely phonetic in nature.
(ii) The next contention, advanced on behalf of the appellant, regarding non- association of public witnesses in the raid, was also rejected, relying, for the purpose, on the judgment of the Supreme Court in [PRECEDENT] v. [ENTITY], AIR 2003 SC 1311.
(iii) Evidence of an independent witness, namely, PW-9 [ENTITY], driver of vehicle, in which the kattas containing the ganja, were being transported was available. No suggestion was put, to [ENTITY], to the effect that the kattas being carried in the vehicle did not belong to the appellant, or that they did not contain narcotics.
(iv) The version, of the appellant, that he had been lifted from his house at 1:30 am on 28th July, 2012, could not be accepted, as there was no reason for the Police, who bore no enmity with the appellant to behave in such a manner.
(v) The fact of recovery of the ganja had not been contraverted or challenged by the appellant.
(vi) All mandatory procedures, as required by the Act, had been followed. Certain minor inconsistences regarding putting of barricades, etc., among the statements of the various PWs had been sought to be urged; however, they did not dilute the total weight of the evidence otherwise available.
(vii) As regards the signatures of the appellants wife [ENTITY] on the Arrest Memo, it had been confirmed by PW-15 SI [ENTITY], that he informed her of the fact of the appellants arrest by mobile, and that her signatures were obtained on the Arrest Memo only later.
(viii) The evidence of the defence witnesses was incapable of acceptance. According to DW-1, he, as well as his three sisters, of which the youngest was in 12th class, were present in the house at 1 - 1:30 am when his father was being taken away by the Police. Even so, in cross-examination, DW-1 confirmed that he did not wake up any of his sisters. It was unbelievable that he would calmly go to sleep, thereafter, and inform his uncle only the next morning, and that complaint would be lodged with the Police authorities only two days later. No complaint, regarding false implication of the appellant had been made by any of his family members.
38. Following on the analysis of the evidence, as noted hereinabove, the learned Special Judge, holding that the testimony of the prosecution witnesses, though they were police officials, inspired confidence, and had been corroborated with the available documents, held that the conscious possession, by the appellant [ENTITY], of 139 kg ganja, at 12:15 pm on 29th July, 2012, stood conclusively proved. The test report of the FSL also proved the consignment to be containing ganja. In these circumstances, the learned Special Judge held that the appellant was liable to be convicted under [SECTION] the Act.
39. Vide subsequent order, dated 10th March, 2016, the learned Special Judge, keeping in mind the fact that the quantity of the ganja found in the possession of the appellant was seven times more than the stipulated commercial quantity, imposed, on him, sentence of 12 years rigorous imprisonment with fine of 1,00,000/- and default simple imprisonment of 6 months.
40. Aggrieved thereby, the appellant is in appeal before this court.
41. I have heard Ms. [ENTITY] learned counsel appearing for the appellant and Mr. [ENTITY] learned APP for the [ENTITY], at considerable length.
Rival Submissions
42. Ms. [ENTITY], appearing for the appellant, emphatically submitted that her client was being unjustly persecuted. She submitted that he had been picked up from home, and was never travelling with PW-9 [ENTITY] in his vehicle. She drew attention to the fact that, though the signature of the appellants wife [ENTITY] figured on the Arrest Memo, she was, undisputedly, not there at the time when the Arrest Memo was drawn up. She maintained that the case was one of mistaken identity, and instead of proceeding against [ENTITY], the prosecution was proceeding against [ENTITY], i.e., her client, the appellant. She highlighted the fact that no action whatsoever had been taken against [ENTITY], against whom the information had actually being received. Neither was any effort been made to ascertain the involvement of [ENTITY]. She further contended that the evidence of PW-10 categorically demonstrated that "[ENTITY]" and "[ENTITY]" were two different persons.
43. Submitting further by way of demurrer, Ms. [ENTITY] also objected to the manner in which sampling and testing of the consignment, contained in the vehicle of [ENTITY], had been undertaken. She pointed out that, out of the total quantity of 139 kg., only kg had been tested. She also relied on the fact that, when the packages were produced in court, two packages were found missing. This, too, in her submission entitled her client to acquittal, for which purpose she relies on the judgment of the Bombay High Court in Shahaji Mattapatti v. [ENTITY] of Maharashtra, 2009 SCC online Bom
44. Arguing per contra, Mr. [ENTITY], appearing for the respondents, places extensive reliance on the statement of the appellant, under [SECTION] of the Act, which, in his submission, was a complete confession to involvement in commission of the offence. He also relies, partially, on the testimony of PW-9 [ENTITY]. He seeks to dismiss the evidence of the defence witnesses, drawing attention to the inordinate delay, in the reporting, by the family members, of the appellant having been taken away by the police officials at 1:30 am.
45. All in all, Mr. [ENTITY] would submit, the case against the appellant was unassailable on facts and in law. He would exhort this Court, accordingly, to uphold the order of the learned Special Judge in toto.
Analysis
46. The first aspect to be considered is the evidentiary value of the appellants statement, recorded under [SECTION] of the Act by the IO SI [ENTITY] (PW-15). The legal position regarding the admissibility of a statement recorded under [SECTION] of the Act, is presently in a state of flux. Earlier decisions of the Supreme Court in [PRECEDENT] and [PRECEDENT] (in each case by a Bench of two Honble Judges) adopted the view that an officer, conferred with the power of a Police Officer under [SECTION] of the Act, did not become, merely by virtue of that fact, ipso facto, a police officer, for the purposes of [SECTION] of the [ACT] and that, therefore, the statement recorded by such officer was admissible in evidence, so long as it was not found to have been extracted by coercion or by adopting unlawful methods.
47. Another Bench of two Honble judges of the Supreme Court, however, departed from this view in [PRECEDENT] v. [ENTITY] of Punjab, (2008) 16 SCC 417, holding that the statement, recorded under [SECTION] of the Act, would attract [SECTION] of the [ACT], and would not be admissible in evidence.
48. In view of this difference in view, a later bench of the Supreme Court, speaking through [ENTITY], J. held, in [PRECEDENT] v. [ENTITY] of Tamil Nadu, (2013) 16 SCC 31, that the matter deserved to be referred to a Larger Bench - which still remains to be constituted.
49. [PRECEDENT] (supra) was also noted in a very recent decision of the Supreme Court, speaking through [ENTITY], J., in Surinder [ENTITY] Khanna v. IO, Directorate of Revenue Intelligence, 2018 SCC Online 757.
50. Whatever be the view that the Supreme Court ultimately takes in the matter, it is clear that, in the facts of the present case, the statement of the appellant under [SECTION] of the Act, having been recorded by PW-15 SI [ENTITY], who was actually a Police Officer, could not be safely relied upon as sole evidence to connect the appellant with the offence.
51. I may also refer in this context to the judgment of the Supreme Court in [PRECEDENT], which holds that there was a presumption, in the case of recording of the statement under [SECTION] of the Act in the office of the Narcotics Control Bureau (hereafter referred to as "NCB") that the statement was not voluntary.
52. This principle, it may easily be surmised, would apply with even greater force where the statement is recorded, as in the present case, by the Sub-Inspector of Police.
53. Proceeding further, it is clear that, in the present case, three aspects alone required to be examined, i.e., (i) whether the fact of interception and seizure, of the vehicle, driven by [ENTITY] and carrying the appellant, was conclusively proved, (ii) whether the appellant had conclusively been linked with the ganja found in the kattas being carried in the said vehicle, and (iii) whether the fact that the kattas actually carried 139 kgs ganja, stood proved beyond doubt.
54. I proceed to address each issue seriatim.
55. As regards the factum of interception of the vehicle driven by PW-9 [ENTITY], carrying the appellant with him in the front seat, I am of the view that the defence of the appellant is completely bereft of substance. The fact that the vehicle was actually being driven by [ENTITY], and that the appellant was seated beside him, as well as the fact that the vehicle contained 5 kattas, stands established by the statements of the police witnesses, namely, PW-9, [ENTITY]; PW-10, [ENTITY]; PW-12, Const. [ENTITY] and PW-14 Insp. [ENTITY], who correctly identified the appellant in court.
56. The non-association of public witnesses, it is by now well settled, is not fatal to the case of the prosecution, and the reliance by the learned Special Judge on [PRECEDENT] (supra), is in my view well taken.
57. Apart from the oral evidence, the interception of the appellant would also be proved by documentary evidence in the form of the Test Memo at the spot of interception (Ex.PW 9/A), the Arrest Memo of the appellant (Ex.PW 10/DX), and the Personal Search Memo of the appellant, (Ex.PW 10/E). The assertion, of the appellant, that he had been picked up from home at 1:30 am on 28th July, 2012, is completely unworthy of acceptance. The evidence of the defence witnesses, DW-1, DW-2, DW-3 and DW-4, led by the appellant to prove the point, inspires little confidence. The only witness to the alleged "picking up of the appellant" was his son DW-1. As has been correctly observed by the learned Special Judge, it cannot be believed that DW-1 would not wake up any of his three sleeping sisters when he found his father being taken away by the police officials, and would, instead, calmly go to sleep himself, and inform his uncle about the fact only next morning. Equally unbelievable is the fact that his uncle waited for two days to intimate the Police authorities. It is, thankfully, not the appellants case that he had made a habit of being whisking away to the Police Station in the dead of the night.
58. Given all these improbabilities, on the factum of interception, by the raiding party of the [ENTITY] carrying PW-9 [ENTITY] and the appellant, I am disinclined to believe the version put forth by the defence witnesses, in preference to that which emerges from the evidence of PWs, which is credible and corroborative in all respects. It is well settled that evidence of police witnesses, if credible and corroborative, merits acceptance, even if public witnesses are not co- operated. [Kashmiri Lal v. [ENTITY] of Haryana, (2013) 6 SCC 595]
59. For the same reason, I find no reason to disbelieve the version of the police witnesses as regards recovery of ganja from the kattas which were being transported in the vehicle being driven by [ENTITY].
60. For these reasons, I hold that the fact of interception of the appellant, in the vehicle being driven by [ENTITY], which was carrying 5 kattas, at the area near Lal Quila, by the raiding team on 29th July, 2012, and the fact that the kattas were carrying ganja, stand conclusively proved.
61. Coming, now, to the second aspect, i.e., whether the involvement of the appellant in the carriage of the ganja found in the 5 kattas in the vehicle, stood established, I am of the view that the appellant would be entitled to be extended the benefit of doubt. The only evidence to link the appellant to the ganja found in the Kattas being transported in the vehicle of [ENTITY] is in the form of the statements of [ENTITY] (PW-9) and the appellants own "disclosure" statement under [SECTION] of the Act. As has already been noticed hereinabove, the legal position regarding the admissibility of the appellants statement is still uncertain and, the latest decision on the point [[PRECEDENT] (supra)] answers the issue in the negative.
62. That apart, the statement of the appellant was recorded by PW- 15, who was actually a Sub-Inspector of Police. While this fact, by itself, would not render the appellants statement unworthy of acceptance, or even unworthy of being the basis for a conviction, it would, undoubtedly, merit exercise of considerable circumspection on the part of a court intending so to do. One may refer with advantage, to the following words of caution, administered by the Supreme Court in [PRECEDENT]:
"15. We are of the opinion that while it is true that a confession made before an officer of the Department of Revenue Intelligence under the [ACT] may not be hit by [SECTION] in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required.
16. We have carefully perused the facts of the present case, and we are of the opinion that on the evidence of this particular case it would not be safe to maintain the conviction of the appellant, and he must be given the benefit of reasonable doubt."
(Emphasis supplied)
63. [PRECEDENT] (supra), which notes the above words of caution, also relies on [PRECEDENT] (supra), referring, in connection therewith, to the observation, of [ENTITY], J., in [PRECEDENT], to the effect that [SECTION] of the [ACT] was enacted "to put a stop to the extortion of confession, by taking away from the police officers as the advantage of proving such extorted confession during the trial of accused persons.". Viewed with the circumspection endorsed by these authorities, I am of the view that the statement of the appellant, recorded by PW-15 SI [ENTITY], was not worthy of immediate acceptance as evidence on the basis of which the charge of infraction of the Act could be laid at the door of the appellant.
64. There is also substance in the submission of learned counsel for the appellant that the case appears to be one of mistaken identity. The statements of the various prosecution witnesses indicate that the secret information that was received was with respect to "[ENTITY]", whereas there is no dispute about the fact that the appellant was "[ENTITY]". In fact, according to the statement of PW-10 [ENTITY], the secret informer stated that the appellant was actually working for "[ENTITY]". No attempt appears to have been made to contact the said "[ENTITY]", and the statement, of PW-15, to the effect that a team, consisting of himself along with, inter alia, PW-10 [ENTITY] and PW-12 Const. [ENTITY], proceeded, fruitlessly, to Patna, in search of [ENTITY] does not inspire confidence, in view of the statement, to the contrary, of PW-10 [ENTITY] and PW-12 Const. [ENTITY], who deposed, in one voice, that no efforts had been made to investigate or arrest [ENTITY]. In any event, even if the observation of the learned Special Judge, to the effect that the words "[ENTITY]" and "Binod" could interchangeably be used is to be accepted, there is definite difference between the words "[ENTITY]" and "[ENTITY]", and it could hardly be accepted that the person "[ENTITY]" could be mistaken for "[ENTITY]" or vice versa. In any event, the position is so nebulous that no positive verdict can, in my opinion, be returned, to the effect that the person seated beside [ENTITY] in the vehicle was, indeed, the person regarding whom intelligence had been provided by the secret informer. Viewed thus, the interception of the appellant, by the raiding team, would be reduced to a chance occurrence, which would necessarily require a much higher standard of proof in order to connect the appellant to the crime.
65. As regards the deposition of PW-9, who is the "star witness" of the prosecution, he could not even recollect the name of the mechanic, who was supposed to have repaired the vehicle on 28 th July, 2012. Moreover, in cross examination, while acknowledging the fact that he always used to issue bills for the goods being carried out by him, he accepted that there was no bill for the 5 kattas purportedly consigned to his custody by the appellant, for carriage to Azadpur.
66. These inconsistencies, too, substantially erode the acceptability of the evidence of PW-9 [ENTITY], as reliable evidence on the basis of which the charge of violation of the Act could be fastened on the appellant. The issue, I may observe here, is not so much of the quantity of evidence, as the quality thereof. Even a single statement, if inherently credible and worthy of immediate acceptance, could be sufficient to tighten the noose (euphemistically speaking, of course) around the neck of the offender. Given, however, the fact that (i) the statement of the appellant was recorded by the SI of Police, (ii) no attempt was made to investigate [ENTITY], the alleged supplier of ganja, (iii) PW-9 [ENTITY] would obviously be interested in the liability, for the seized ganja, being shouldered by the appellant, (iv) no attempt was made to investigate the complicity, if any, of PW-9 [ENTITY], in the entire affair, and (v) the infirmities in the deposition of PW-9 himself, this Court is convinced that it would be unsafe to convict the appellant solely on the basis of the statement of PW-9 and himself.
67. Though the above finding is sufficient to acquit the appellant in the present case, one may also note that the manner in which the alleged ganja was sampled and tested, in the present case, is also far from satisfactory. There were admittedly, 139 polythene packets containing ganja, each purportedly containing one kg. The total quantity of ganja supposedly carried in the vehicle was, therefore, 139 kg. Out of the said quantity of 139 kg, as Ms. [ENTITY], learned counsel appearing for the appellant correctly points out, only kg was drawn, out of which only 250 grams were tested. Again, though the witnesses deposed that a "small quantity" was drawn from each of the packets, the actual quantity drawn is not forthcoming. Neither there is any indication of the total quantity of ganja that was drawn, after commingling said "small quantities" drawn from the said 139 kg, from which two samples of 250 grams, each were supposedly isolated, of which one was sent for testing to the FSL.
68. Proceeding to the FSL report, one finds that it opines, baldly, that the sample "contained ganja". The percentage of ganja finds no mention in the report. In the absence of the percentage of ganja present in the sample, it is impossible to state the actual quantity of ganja, which was being carried in the truck, even treating the sample as representative of the total quantity. It has been conclusively held, by the Supreme Court, in [PRECEDENT]. as well as by the Gujarat High Court in [ENTITY] of Gujarat v. Shafdar Hussain Munirmya Malek, (2013) SCC Online Guj 3350 [following [PRECEDENT] (supra)] that the percentage of narcotic contained in the sample is of fundamental importance, given the fact that different punishments are prescribed, depending on whether the quantity of narcotic is small or commercial.
69. In my view, given the highly unsatisfactory manner in which the alleged narcotic was sampled and tested, it can hardly be said, with any decree of certainty, that the quantity of narcotic being carried in [ENTITY] tempo was actually "commercial quantity".
70. In view, therefore, of the fact that (i) the quantity of powder retrieved from each polythene packet is unknown, (ii) the total quantity of powder, from which two samples of 250 g each were isolated, is also unknown and (iii) the percentage of ganja contained in the sample tested by the FSL is also not forthcoming, it cannot be held that "commercial quantity" of ganja was being transported by [ENTITY] in his tempo.
71. The appellants application for suspension of sentence was rejected by this court on 1st June, 2016. Resultantly, the appellant already stands incarcerated for 6 years, out of the total punishment of 12 years rigorous imprisonment imposed on him by the learned Special Judge. In case the quantity of ganja being carried in [ENTITY] tempo - assuming that the appellant were to be linked with the said carriage - were to be treated as less than commercial quantity, the maximum punishment which could have been imposed on the appellant would only be six months, rigorous imprisonment or with fine, which may extend to ten thousand rupees or with both.
72. The appellant having already suffered incarceration for over 6 years, in my view, any further incarceration of the appellant would, in any event, be completely unjustified, on the facts of the present case.
Conclusion
73. Consequent on above discussion, I am of the view that the appellant is entitled to be acquitted of the charge, against him, of having committed the offence contemplated by [SECTION] of the Act. Accordingly, the judgment of the learned Special Judge is set aside and the appeal stands allowed accordingly.
74. The appellant would be entitled to be released forthwith, unless he is required to be detained in any other case.
[ENTITY] (JUDGE) AUGUST 24, 2018 bh/dsn