Crl. Appeal Nos.694/2005 & 779/2005 Page 1 of 45 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on:23rd October, 2009 Judgment Delivered on:5th November, 2009 CRL.APPEAL 694/2005 VIMAL KUMAR BAHL ..... Appellant Through: Mr. K.K.Sud, Sr. Advocate with Ms. Nandita, Advocate & Mr. Sunil Mehta, Advocate. versus DRI ..... Respondent Through: Mr.Satish Aggarwala, with Mr. Shirish Aggarwal, Advocates. WITH CRL.APPEAL 779/2005 & Crl.M.A.Nos.11243/2006 & 4196/2008 SURINDER RAJ SINGH ……..Appellant Through: Mr. K.K.Sud, Sr. Advocate with Ms. Nandita, Advocate & Mr.Sunil Mehta, Advocate. Versus DRI …….Respondent. Through: Mr. Satish Aggarwala, with Mr. Shirish Aggarwal, Advocates. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes Crl. Appeal Nos.694/2005 & 779/2005 Page 2 of 45 INDERMEET KAUR, J. 1. On 17.4.2001 at about 9.30 AM pursuant to a secret information dated 16.04.2001 Ex. PW12/A received by A. K. Prasad PW-12 the officers of the Directorate of Revenue Intelligence, Headquarters, New Delhi (hereinafter referred to as the DRI) intercepted two cars bearing registration No.DL-3CQ-4785, a silver grey coloured Matiz car and DL-9C-3785 a white coloured Maruti car at the National Highway No.8, opposite Shiv Temple, Delhi- Gurgaon Road, Delhi. The occupant of the Maruti car introduced himself as Vimal Kumar Bahl and the occupant of the Matiz car introduced himself as Surender Raj Singh. The said cars were being driven by the said respective persons. 2. Investigative team was headed by P.R.Lakra PW-4 and joined by D.P.Saxena PW-2 and Sudhir Puthran PW-3. The DRI officials informed the apprehended persons that they were to be searched and if they so wished they have a right of getting their search effected either in the presence of a gazetted officer or a Magistrate. Notice under Section 50 of the Narcotic Drug and Psychotropic Substance Act, 1985 (hereinafter referred to as the NDPS Act) was served upon each of the two apprehended persons. The said notice served upon Vimal Kumar Bahl is Ex.PW-2/B and that served upon Surinder Raj Singh is Ex.PW-2/C. Both the persons declined this request and their endorsements appear at point B-1 to B-1 and C-1 to C-1 of Ex.PW-2/B and Ex.PW-2/C Crl. Appeal Nos.694/2005 & 779/2005 Page 3 of 45 respectively. These documents were witnessed by the Panchas i.e. PW Ashok Kumar and PW Rajesh Kumar. 3. The white Maruti vehicle was rummaged first; from the dickey of the said vehicle one blue coloured check canvas bag was recovered; on opening the same it was found to contain 17 packets containing a white substance. The registration certificate of the vehicle evidencing the ownership of Rajesh Pandoh was also seized. Nothing incriminating was recovered from the silver grey Matiz car. Registration certificate of the vehicle evidenced its ownership in the name of Urmil Guaba wife of Surinder Raj Singh was seized. 4. Personal search of both the apprehended persons was conducted vide memos Ex. PW2/F and Ex. PW2/G. 5. The blue coloured check canvas bag was examined which was found to contain 17 packets in all. They were marked as X-1 to X-15, Y-1 and Z-1. The field test kit opined that the powder contained in the said packets had tested positive for heroin; the total weight of the packets was 17.504 kgs. Four samples of 10 gms. each were drawn in duplicate from all the 17 packets; this was after mixing the contents of X-1 to X-10 and thereafter the mixing of the contents of X-11 to X-15, Y1 & Z1; remaining contraband as also the seized samples were sealed in khaki envelops sealed with the DRI seal no.10 on papers slips affixed on each packet bearing the signatures of the public witnesses, both the accused as also the signatures of the complainant. Crl. Appeal Nos.694/2005 & 779/2005 Page 4 of 45 6. Panchnama Ex.PW-2/D was drawn running into 13 pages; each page having been signed by the Panch witnesses i.e. Ashok Kumar and Rajesh Kumar as also the complainant D.P.Saxena PW-2 and both the accused persons. 7. Statement of Vimal Kumar Bahl Ex.PW-1/B was recorded under Section 67 of the NDPS Act by Ms.Sanyogita Mishra PW-1. This statement is in the handwriting of Vimal Kumar Bahl and is running into seven pages. Statement of Surinder Raj Singh Ex. PW3/B was also recorded under Section 67 of the NDPS Act by Sudhir Puthran PW3 and this statement is also in the handwriting of Surinder Raj Singh running into six pages. 8. Accused persons were arrested at 23.50 hours on 17.4.2001 vide arrest memos Ex.PW1/G & Ex.PW1/H and the grounds of arrest were explained to them by PW-2. Compliance of Section 57 of the NDPS Act i.e. the report of the arrest and seizure by PW-2 to his senior officer was made vide document Ex.PW-1/G. 9. Mahavir Prasad PW-10 was the incharge of the godown of valuables at the New Customs House and the trunk containing the contraband was kept in his custody on 18.4.2001; entries in the register in the Valuable Godown are Ex.PW-10/A. The drawn samples were sent through PW-2 and received in the CRCL along with duplicate test memo by Sh. B.L.Jain PW-5 who issued receipt Ex.PW-5/A to the said effect. Narender Kumar PW-8 in his capacity as the Chemical Examiner, Grade-I personally verified the seals of the samples as per the description mentioned on the test memo Crl. Appeal Nos.694/2005 & 779/2005 Page 5 of 45 Ex.PW-2/K and under his supervision the report Ex.PW-5/B had been prepared testing the drawn samples as positive for heroin/diacetylmorphine i.e. a drug prohibited under the provisions of the NDPS Act. 10. The Maruti vehicle no. DL-9C-3785 was registered in the name of Rajesh Pandoh. Ex.PW-1/K was the letter addressed by B.K.Pandoh, the father of Rajesh Pandoh to PW-1 stating that this vehicle had been sold by his son Rajesh Pandoh to Dheeraj Manchanda PW-6. Ex.PW-6/A was the delivery receipt of this vehicle evidencing that Dheeraj Manchanda had sold this vehicle to one Ashu Malhotra PW-9 resident of D-120 Suraj Vihar, New Delhi, who in turn had lent it to Vimal Kumar Bahl for use. 11. On the basis of the aforenoted evidence which had been collected by the prosecution vide impugned judgment dated 12.8.2005 both the accused persons were held guilty for having committed offences punishable under Section 21 read with Section 29 of the NDPS Act. They were sentenced vide order of sentence dated 23.9.2005. Convict Vimal Kumar Bahl had been sentenced to undergo RI for a period of sixteen years and to pay a fine of Rs.2 lakh; in default of payment of fine to undergo RI for a period of two years. Convict Surinder Raj Singh had been sentenced to undergo RI for a period of 11 years and to pay a fine of Rs.1 lakh; in default of payment of fine to undergo RI for one year. 12. It is this judgment which is the subject matter of the present appeal. Crl. Appeal Nos.694/2005 & 779/2005 Page 6 of 45 13. On behalf of the accused the following arguments have been addressed: (i) The Maruti Car no. DL-9C-3785 from the dickey of which the alleged contraband had been recovered was admittedly not in the name of Vimal Kumar Bahl; its registered owner is Rajesh Pandoh and Vimal Kumar Bahl had no connection with the same. Conscious possession of the drug qua Vimal Kumar Bahl has not been proved. Rajesh Pandoh has not come into the witness box. Dheeraj Manchanda PW-6 has stated that he had sold this vehicle to Ashu Malhotra through Pankaj; Pankaj has not been examined; Ashu Malhotra examined as PW-9 has not supported this version of the prosecution and had categorically stated that he had not lent this vehicle to Vimal Kumar Bahl as is the contention of the prosecution; the foundation of the version of the prosecution having been destroyed by this version of PW-9 it is clear that the prosecution has failed to establish that this vehicle from which the contraband had been recovered was in possession of Vimal Kumar Bahl; in the absence of this crucial averment not having been proved, the prosecution has no legs to stand. Identification by PW- 9 of the photographs of the A1 are not a substantive evidence in the absence of PW-9 not identifying A1 in Court. For this preposition reliance has been placed upon 2001 SCC 1 138 U.A. Sakoor Sardhana vs. I.O. NCB. Attention has also been drawn to the testimony of I.K.Jatali PW-11, the landlord of B.K.Pandoh who has stated that B.K.Pandoh has left his premises about 8 to 10 Crl. Appeal Nos.694/2005 & 779/2005 Page 7 of 45 years ago i.e. sometime in the year 1994; in these circumstances how the summons could have been served upon B.K.Pandoh by the DRI officials is not explained; Ex.PW-1/K the letter purported to have been written by B.K.Pandoh, the father of Rajesh Pandoh to the DRI officials is a sham document. The delivery receipt Ex.PW-6/A has given the address of Ashu Malhotra as of Suraj Vihar, Ghaziabad, which is different from the address given by Vimal Kumar Bahl in his statement under Section 67 of the NDPS Act; PW-9 Ashu Malhotra has given yet a different address. Occupation of the car by Vimal Kumar Bahl at the relevant time not having been proved, the obvious corollary is that the contraband recovered from this vehicle also cannot be foisted upon Vimal Kumar Bahl. (ii) Statements under Section 67 of the NDPS Act are valueless; they are to be equated with a disclosure statement of an accused recorded under Section 26 of the Evidence Act and such statements having been made while the accused were in the custody of the police are presumably statements made under the coercion and pressure and have no value in the eyes of law. Reliance has been placed upon 2009 (2) Crimes 171 Union of India vs. Bal Mukand as also upon 2009 (3) Crimes 109 SC Raju Premji vs. Customs as also another judgment of Supreme Court reported in 2008 (9) Scale 681 Noor Aga vs. State of Punjab & Anr. It is submitted that in this case the said statements were retracted by the accused persons on the very next day i.e. 18.4.2001 itself and Crl. Appeal Nos.694/2005 & 779/2005 Page 8 of 45 such a retracted confession is even otherwise valueless. The information collected in the said statements have not been verified; whether any Pakistani national by the name of Haji Aizam exists or not is not known. (iii) Section 42 of the NDPS Act has not been complied with. The complaint had been filed on 4.7.2001; admittedly, along with the complaint the document Ex.PW-12/A the purported secret information had not been filed. On 5.12.2002 an application had been filed on behalf of the accused wherein it had been stated that there had been a non-compliance of the Section 42 of the NDPS Act as no such document purporting to be a secret information had been filed along with the complaint; the subsequent permission sought by the department to file this document on record was clearly malafide. This document is fabricated and prepared as an afterthought. It was only on 7.1.2002 that this document had been permitted to be taken on record i.e. even after the date of the framing of charge. Attention has been drawn to the contents of Ex.PW-12/A. Admittedly, Sh.P.K.Mishra who had received this secret information has not been examined; he is the immediate superior of PW-12; it is submitted that on the second page of the document it has been mentioned that the secret intelligence was to the effect that Vimal Kumar Bahl would be handing over 17 kgs. heroin to Surinder Raj Singh at about 9 AM opposite Shiv Murti Temple; how this information could have been known on 16.4.2001 is not explained Crl. Appeal Nos.694/2005 & 779/2005 Page 9 of 45 as in the statements of the accused recorded under Section 67 of the NDPS Act Ex.PW-1/B and Ex.PW-3/B, both the accused persons have stated that in the course of their conversation on the way on 17.4.2001, Vimal Kumar Bahl had instructed Surinder Raj Singh to meet him at the Shiv Murti Temple; this information could not have been possibly known one day prior i.e. on 16.4.2001. This by itself clearly establishes that this document is a sham document. (iv) There has been no compliance of the mandate of Section 50 of the NDPS Act; neither of the two documents i.e. Ex.PW-2/B and Ex.PW-2/C have made a reference to the word „right‟ which is the essential ingredient required to be explained to the accused; in the absence of which the service of these notices would be an empty formality. (v) The requirements of Section 57 of the NDPS Act have not been complied with. Attention has been drawn to Ex.PW-1/G where the information recorded by PW-2 has been forwarded to PW-1; it is submitted that Section 57 speaks of the particulars of the arrest and seizure to be given to the immediate official superior; PW-1 is not the immediate official superior of PW-2; non- compliance of this provision of law also vitiates the trial. (vi) The standing instructions 1/88 of the DRI department containing the procedural safeguards to be followed for a search and seizure effected under the provisions of the NDPS Act have not been followed. The test memos are to be prepared in triplicate; along with a forwarding letter; PW-4 has stated that there were Crl. Appeal Nos.694/2005 & 779/2005 Page 10 of 45 two test memos which had been prepared; PW-5 in his cross- examination has admitted that there was no forwarding letter in this case and only test memos were received; test memos have not been prepared by the IO PW-2; Panchnama is also silent on this score. The documents are typedwritten which is not possible if the same were prepared at the spot; essential safeguards of sampling and seizure not having been followed in true letter and spirit, benefit of doubt has accrued in favour of the accused. (vii) The burden of proof in a criminal trial is always on the prosecution. Resort cannot be taken to the provisions of the Section 35 and Section 54 of the NDPS Act until and unless the prosecution has discharged its initial burden. In the instant case this has not been done. The trial judge has wrongly in para 57 of the judgment shifted the onus from the prosecution to the defence by holding that the mental state and culpability of the offender can only be known to him for which an adverse presumption has been drawn against the accused. (viii) There are inherent contradictions in the version of witnesses of the prosecution. Admittedly, the accused persons had been apprehended on the Delhi-Gurgaon Road but for reasons unexplained the search and seizure had been effected at the office i.e. at the ground floor of the Indraprastha Bhawan, I.P.Estate. No reasons are forthcoming as to why and how the investigation was shifted. Admittedly, the office of the DRI is a place which is closely guarded by the DRI officials. The unexplained threat and Crl. Appeal Nos.694/2005 & 779/2005 Page 11 of 45 pressures on apprehended persons in such a chagrined atmosphere would be much more than in a free atmosphere i.e. on the Gurgaon Highway where the accused persons had purportedly been apprehended; this speaks of the malafides of the department. The car from where the contraband had been recovered had not been produced in court; whether it had a dickey or not could not have been known to the accused; this is prejudicial to the interest of the accused. The key of the vehicle has also not been produced; physical evidence has evaporated. (ix) The Panch witnesses have not been produced deliberately. This is for the reason that they were non-existent persons, adverse inference for withholding this material evidence has to be drawn against the prosecution; support has been drawn from the provisions of Section 114 (g) of the Indian Evidence Act. (x) The reasons given by the judge are not only perfunctory but also non-discernable. He has mentioned that written submissions have been filed by the respective parties, but there is no discussion on the same. Attention has been drawn to paras 16, 29- 55, 62, 78 and 84 of the impugned judgment. 14. Arguments have been heard. Record has been perused. 15. Possession and recovery of contraband from Maruti Car DL9C 3785:- The white maruti vehicle bearing no.No.DL-9C-3785 is admittedly registered in the name of Rajesh Pandoh. The registration certificate of this vehicle had been seized from the Crl. Appeal Nos.694/2005 & 779/2005 Page 12 of 45 dash board of the car. This had triggered off the investigation qua the role of Rajesh Pandoh. PW-2 had issued summons to Rajesh Pandoh. B.K.Pandoh his father vide reply Ex.PW-1/K addressed to PW-1 stated that this vehicle had been sold to Dheeraj Manchanda of B-29, Lajpat Nagar-II, New Delhi on 23.2.2001. Dheeraj Manchanda PW-6 had been summoned in the office of PW-1 vide summons Ex.PW-1/O and his statement under Section 67 of the NDPS Act running into two pages Ex.PW-1/P was recorded. On oath PW-6 had stated that in February, 2001, he had purchased this car from Rajesh Pandoh and in the next month i.e. in March 2001 through Pankaj he had sold it to Ashu. Delivery receipt Ex. PW-6/A evidenced the sale of this vehicle to Ashu Malhotra through Pankaj and signatures of Pankaj at point A have been identified by PW-6. 16. Ashu Malhotra was summoned before Investigating Officer PW-1 through summons Ex.PW-1/H. He had given his statement under Section 67 of the NDPS Act on 25.4.2001 Ex.PW-1/J. Ashu Malhotra has come into witness box as PW-9. On oath he has deposed that he has no concern with the white maruti car; this witness was declared hostile and thereafter Special P.P. was allowed to cross-examine this witness. In his cross-examination PW-9 had denied that he had lent his vehicle to Vimal Kumar Bahl 2-3 days prior to the date of incident i.e. 17.4.2001 as Vimal Kumar Bahl was a family friend of theirs. He, however, admitted that he had given his statement Ex.PW-1/J to PW-1 pursuant to the Crl. Appeal Nos.694/2005 & 779/2005 Page 13 of 45 summons Ex.PW-1/H which he had admittedly received; he had also admitted his signatures on the two photographs Ex.PW-9/X and Ex.PW-9/Y in token of identification of Vimal Kumar Bahl. On oath he, however, categorically denied that he knows Vinod Kumar Bahl. 17. The vehement argument of the learned defence counsel is outlined on this version of PW-9 wherein he had denied that he had lent his maruti vehicle to Vimal Kumar Bahl; the argument being that admittedly the registered owner of the vehicle is Rajesh Pandoh and Ashu Malhotra denying that he knows Vimal Kumar Bahl or that he had ever lent his vehicle to Vimal Kumar Bahl, the question of Vimal Kumar Bahl being in possession of the vehicle does not arise; the entire evidence on this score has been fabricated. The very foundation of the case having not been established the consequent recovery of the contraband from this vehicle cannot now be foisted upon Vimal Kumar Bahl. 18. Record of the case does not support this submission of the learned defence counsel. There is no dispute that Vimal Kumar Bahl is not the registered owner of this vehicle; this is not the case of the prosecution. Prosecution version is that this vehicle was being driven by A-1 on the fateful day i.e. 17.4.2001 when pursuant to the secret information he had been apprehended and the contraband after having been transferred from the Matiz car of A-2 to the maruti vehicle of A-1, witnessed by PW-2, PW-3 and Crl. Appeal Nos.694/2005 & 779/2005 Page 14 of 45 PW-4, the subsequent recovery of the contraband from this vehicle established the conscious possession of this drug qua A-1. 19. Before adverting to the oral version of the witnesses, the statement of A-1 recorded under Section 67 of the DPS Act would be relevant. This statement Ex. PW-1/B was recorded by PW-1 pursuant to a summon Ex.PW-1/A issued by PW-1. This statement is running into seven pages; on page five it categorically recites, “White maruti car No.DL-9C-3785 in possession of mine.” 20. The secret information Ex.PW-12/A recorded on 16.4.2001 one day prior to the incident also specifically records that Vimal Kumar Bahl would be coming in a white maruti car DL-9C-3785; the Panchnama Ex.PW-1/D, the first document prepared after the recovery also specifically recites that Vimal Kumar Bahl was driving the said vehicle at the time when the vehicle was intercepted and from the dickey of the said vehicle contraband was recovered. 21. It is relevant to point out that at no stage has A-1 put up any defence that this maruti vehicle was not in his possession on the fateful day; the witnesses to the recovery PW-2. PW-3 and PW-4 have not been cross-examined on this score and no suggestion has also been given to either of them that on 17.4.2001 when A-1 was apprehended with the contraband, this vehicle was not in his possession or he was not driving it. A bald suggestion has been given to PW-1 that the accused was not in possession of the said car and that Ashu Malhotra had not lent it to him. This witness i.e. Crl. Appeal Nos.694/2005 & 779/2005 Page 15 of 45 PW-1 was not an eye-witness to the recovery; she had only recorded the statement of A-1 under Section 67 of the NDPS Act. The recovery witnesses i.e. the PW-2, PW-3 and PW-4 have not been suggested this defence which is now sought to be propounded. 22. The second stage when the accused is permitted to adduce his defence strategy, in a criminal trial is at the stage when his statement under Section 313 of the Cr.P.C. is recorded. In this entire statement there is no specific averment that this vehicle i.e. the maruti car No.DL-9C-3785 was not in his possession on the fateful day. Question nos.2,3,4 and 5 specifically state that maruti car bearing no. DL-3CQ-4785 was intercepted on the fateful day which was in the occupation of A-1, secreting a narcotic drug and being transported in the said vehicle; at this stage also there is a routine reply given by A-1 that this version is false; no specific averment has been made that this vehicle was not in his possession on the fateful day. 23. The third stage when the accused is permitted to set up his defence is at the stage of evidence of the defence; no evidence has been adduced by A-1. 24. It would be relevant to point out that the entire investigation with relation to the ownership and possession of the vehicle started after the registration certificate of the vehicle was recovered from its dash board. The owner of the vehicle Rajesh Pandoh through his father informed PW-1 that this vehicle had Crl. Appeal Nos.694/2005 & 779/2005 Page 16 of 45 been sold to Pw-6. PW-6 appeared before the investigating officer and gave his statement corroborating the version of B.K.Pandoh that he had purchased this vehicle from his son Rajesh Pandoh. This version was reiterated on oath by PW-6. PW-6 had led the investigative team to the role of Ashu Malhotra as he was the purchaser and the transfree of this vehicle which is evident from the deposition of PW-6. Ashu Malhotra in the witness box had denied his friendship with A-1 but at the same time he had admitted that he received a summon Ex.PW-1/H. This document recites that PW-1 had summoned him in her office i.e. the officer of the DRI in connection with the seizure of 17.5 Kg of a white substance suspected to be heroin on 17.4.2001 from a white