BAIL APPLN. No.673 of 2009 page 1 of 40 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: May 28, 2009 Date of decision: May 29, 2009 BAIL APPLN. No. 673 of 2009 AMARJEET SINGH ..... Petitioner Through: Mr.D.C. Mathur, Senior Advocate with Mr. Yogesh Saxena, Advocate. versus DIRECTOR OF REVENUE INTELLIGENCE.... Respondent Through: Mr. Satish Aggarwala, Advocate. CORAM: HON’BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported Yes in Digest? J U D G E M E N T 1. This is an application for regular bail in the case titled “Davendra Singh v. Kewal Ram & Ors.” S.C. No.61-A/08 under Sections 21/27A and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 („NDPS Act‟) pending in the court of the learned Special Judge, NDPS Court, New Delhi. The Petitioner was arrested by the officials of the Directorate of Revenue Intelligence („DRI‟) on 4th April 2008 and has remained in custody since then. 2. The case of the DRI as stated in its complaint filed in the Court of the Special Judge, NDPS, By Davender Singh, Intelligence Officer BAIL APPLN. No.673 of 2009 page 2 of 40 (I.O) is that on 3rd April 2008 intelligence was gathered through a reliable source at 1600 hours by Shri Raman, I.O., DRI that a person would be coming in an Opel Astra car (No.HR-26K-9005) carrying narcotics drugs concealed in a suitcase which would be transferred to another person who would also come to the designated place of delivery at 1900 hours in his cherry colour Tata Safari car. The said information was reduced into writing by IO Raman Mishra who was the officer of the DRI at CGO Complex, Lodhi Road, New Delhi. 3. The further narration in the aforementioned complaint filed by the DRI is that on the basis of the said information a team of officers of the DRI was constituted. It is stated that two witnesses were called at around 1700 hours on 3rd April 2008 and requested to remain present during the possible interception and subsequent search proceedings. These two were Shri Kali Charan and Shri Satish, both working as sweepers with the CPWD. It is stated that at 1715 hours the raiding party left for the spot which was on the main (outer ring) road in front of Capital Court, Munirka, New Delhi. The DRI team mounted a surveillance. 4. The complaint further states that at about 1700 hours one Opel Astra car bearing registration No. HR-26 K-9005 came to the designated place. The driver of the said car parked it on the main road in front of Capital Court, Munirka. At around 1915 hours one cherry BAIL APPLN. No.673 of 2009 page 3 of 40 colour Tata Safari bearing registration No. CH 03 U 9626 reached there. The driver of the Tata Safari stopped his vehicle just in front of the Opel Astra. A person aged about 37-38 years got out of the Tata Safari and proceeded towards the Opel Astra car. The driver of the Opel Astra car then came out of his vehicle. He opened the boot of his car took out one black colour suitcase from it. When he was about to hand over the said suitcase to the person who had alighted from the Tata Safari, the officers of the DRI immediately apprehended both the persons and took both the vehicles in their control. It is stated that the driver of the Opel Astra car identified himself as Kewal Ram (Accused No.1). The person who alighted from the Tata Safari car identified himself as Amarjeet Singh (Accused No.2), the petitioner herein. 5. It is stated that “on persistent questioning by the officers” accused No.2 admitted that the suitcase contained contraband narcotic drugs concealed below its false bottom and that it had been brought by the accused No.1 from Punjab. Notice under Section 50 NDPS Act was served upon both accused persons separately. Both expressed their desire “by writing in their own handwriting on the body of the said notice that they do not require the presence of any Gazetted Officer or Magistrate to carry out the searches and in fact any officer of the DRI can carry out the searches.” They also stated in writing on the notice itself that “since the place of interception was very crowded and the BAIL APPLN. No.673 of 2009 page 4 of 40 same was not considered to be a safe place to carry out their searches as well as their vehicles, they requested the officers for taking them along with their belongings and vehicle to any safer place to carry out further proceedings.” 6. It is stated that thereafter the DRI officers along with the witnesses and the accused persons and the vehicles were brought to the office of DRI at CGO Complex, Lodhi Road, New Delhi. The two vehicles i.e. the Opel Astra and Tata Safari were parked in the parking of CGO Complex, Lodhi Road, New Delhi. The search of the Opel Astra car resulted in the recovery of one small black colour suitcase and one big black colour suitcase carrying the mark „LIBERTY SKY BAG‟. The search of the small black colour suitcase revealed that it contained the old and used clothes of accused No.1. The large black colour suitcase with mark „LIBERTY SKY BAG‟ contained one blanket and four unstitched ladies suits. The said large black colour suitcase was found to contain an abnormally thick bottom having a zipper attached on it. On unfastening the bottom having a zip of the said case two packets of heat sealed transparent polythene were recovered, which were found to be containing an off white powder/granules suspected to be contraband narcotic drugs. The same was then tested with the UN Field Drug Test Kit which gave a positive result for presence of heroin. Thereafter both the packets were marked as A and B. The gross weight of the packets marked as A was found to be 2.463 kg and BAIL APPLN. No.673 of 2009 page 5 of 40 the net weight was found to be 2.414 kg. Likewise, the gross weight of packet B was found to be 2.590 kg and net weight was found to be 2.549 kg. Thus the total gross weight of both the packets was found to be 4.963 kg. 7. The off white powder/granules were seized under Section 42 NDPS Act along with the packing material i.e. transparent polythene heat sealed pouches. Three representative samples of off white powder were kept in transparent pouches which were stapled and then sealed further keeping in brown craft paper envelopes. The test memos for the testing of the samples were prepared. The seized heroin packets marked A and B along with the transparent polythene packets were then kept separately in yellow colour envelopes marked as A and B. It is stated that the value of the seized heroin was assessed to be Rs.20 lakhs approximately. Both the vehicles used for transporting the contraband narcotic drugs were also seized. Both the accused persons were thoroughly questioned in the presence of witnesses and their personal search were carried out. Their driving licences and one page of note book written in Punjabi was recovered from accused No.2. The seizure memos were duly signed by the witnesses, the accused persons and the complainant. Thereafter the officers of the DRI also prepared the site plan of the place of interception of both the accused persons and this was also signed by the signatories to the Panchnama. The facsimile of DRI seal used for sealing was also affixed on the BAIL APPLN. No.673 of 2009 page 6 of 40 panchnama. It is stated that the panchnama started at 2030 hours and concluded at 2300 hours on the same day. The contents of the panchmana were read over to the witnesses as well as to the accused in vernacular and being satisfied that it had been correctly understood by both the accused persons the witnesses and the complainant signed the panchnama proceedings. 8. It is claimed by the DRI persons that pursuant to the summons dated 3rd April 2008 the accused No.1 had made a statement dated 3rd/4th April 2008 admitting to the aforementioned recovery, seizure and inter alia stated that on 2nd April 2008 at Nakodar Taxi Stand one Amarjeet Singh (accused No.2 and petitioner herein) informed him through a messenger that that a car was required for carrying two consignments for two separate dates i.e. 2nd and 3rd April 2008 from G.T.Road, Ludhiana to New Delhi and that he would be paid Rs.50,000/- for that job. As directed by Amarjeet Singh, Kewal Ram collected one black colour suitcase loaded with 5 kg of heroin from an unknown person at G.T. Road, Ludhiana in his Opel Astra car and carried it to New Delhi. Kewal Ram stated that he reached New Delhi at 1950 hours on 2nd April 2008 and handed over the said suitcase loaded with 5 kg heroin to an unknown person at Delhi near Radisson Hotel at Gurgaon in the presence of Amarjeet Singh. He then returned to Ludhiana on the same night. He again collected another suitcase loaded with 5 kg heroin from the same unknown person in the BAIL APPLN. No.673 of 2009 page 7 of 40 morning of 3rd April 2008. He arrived at New Delhi around 1610 hours on 3rd April 2008 in his Opel Astra car carrying the said suitcase with 5 kg of heroin. Around 1800 hours on the same day Amarjeet Singh met him near Lohia Hotel, Mahipal Pur, Delhi and instructed that the suitcase should be delivered to him (Amarjeet Singh) at the front side of Capital Court, Munirka, New Delhi. Kewal Ram then reached at the said place around 1915 hours on 3rd April 2008. Amarjeet Singh was available at the front side of the Capital Court, Munirka in his Tata Safari. As per the directions when Kewal Ram was about to load the said suitcase in the Tata Safari the DRI officials detained both of them and thereafter they both arrived at the DRI office along with both vehicles. According to Kewal Ram, Amarjeet Singh paid him Rs.5,000/- on 2nd April 2008 after he delivered the heroin on that day. He was to get another 50,000/- for both deliveries. Kewal Ram in his statement under Section 67 NDPS Act admitted that 4.963 kg of heroin was concealed in the suitcase recovered from the Opel Astra car brought by him from Punjab for giving to Amarjeet Singh. He stated that he admitted his mistake. 9. According to the DRI, pursuant to the summons issued to him on 3rd April 2008, the Petitioner appeared before the DRI and in his voluntary statement under Section 67 NDPS Act admitted to the recoveries, seizure and other incriminating facts as already noticed. He stated that on 1st April 2008 he along with Bablu (Sukhwinder BAIL APPLN. No.673 of 2009 page 8 of 40 Singh) reached Delhi in the evening and stayed at Hotel Lohia, Mahipal Pur Road, Delhi. He also purportedly admitted to the facts concerning the arrest and service of the notice under Section 50 NDPS Act on each of the accused and their being brought thereafter to the CGO complex where the panchnama was drawn up. 10. The DRI officers then arrested both the accused persons on 4th April 2008. The residential premises of accused No.2 at Haldwani and of accused No.1 at Ludhiana were searched. 11. The Petitioner‟s application for bail was rejected by the learned Special Judge by an order dated 11th February 2009. The learned Special Judge held that the recovery was of a commercial quantity of 4.963 kg of heroin from accused No.1 at the time he was to hand it over to accused No.2. Therefore the embargo under Section 37 NDPS Act would be attracted. It is further held that since the accused No.1 had earlier also delivered drugs using his Opel Astra car at the instance of accused No.2 there was every likelihood of the petitioner committing the offence again, if released on bail. 12. In the present petition the Petitioner has contended inter alia that the notice under Section 50 NDPS purported to have been given at the site of interception to both the accused persons, was a typed notice. The font size of the letter of the notice as well as the panchnama was BAIL APPLN. No.673 of 2009 page 9 of 40 the same and printed out from the same printer. There was no printer at the spot. The said documents, it was alleged were prepared in the DRI office subsequently and not served on the spot as claimed. It is pointed out that the Petitioner has retracted his confession at the first available opportunity on 20th May 2008 and apart from the retracted confession there was no material to connect the Petitioner with the crime. It is further pointed that while Kewal Ram in his statement under Section 67 NDPS Act stated that he reached the spot at 1700 hours and found the co-accused Amarjeet Singh already there, in the panchnama it is stated that Kewal Ram arrived at 1700 hours and thereafter at 1915 hours Amarjeet Singh came there in its Tata Safari car. 13. Reliance is placed on the judgment in Noor Aga v. State of Punjab 2008 [3] JCC [Narcotics] 135 to submit that retracted confession is a weak piece of evidence and requires independent corroboration. It is further submitted that retracted confession cannot be used as substantive evidence in a case of criminal conspiracy. Reliance is placed upon the judgments of the Supreme Court in Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184, Mirza Akbar v. King-Emperor AIR 1940 PC 176 and Jayendra Saraswathi Swamigal v. State of Tamil Nadu 116 (2005) DLT 354 (SC). Relying on the judgment in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294 it is submitted that “the power of the BAIL APPLN. No.673 of 2009 page 10 of 40 Court to grant bail should not be pushed too far”. If the Court comes to the conclusion that in all probability the accused is not liable to be convicted, a bail order should be passed. 14. Mr. D.C. Mathur, learned Senior counsel appearing for the Petitioner submitted that in the instant case the DRI had made numerous false statements in the panchnama and preceding it in the notice served under Section 50 NDPS Act. It is pointed out that a perusal of the font and the printer used to print out the notice under Section 50 NDPS Act showed that as the same printer on which the panchnama was printed out was used. Kewal Ram had made an endorsement in English on the said notice under Section 50 NDPS Act. There was nothing therein to indicate that the statement had been read over and explained to Kewal Ram. As far as Amarjeet Singh is concerned the notice contains his handwriting in Hindi with his signatures appended below to the effect that he also does not wish to be searched. Was also doubtful. The statements of both persons under Section 67 NDPS Act have been retracted on the ground they were obtained by use of force. 15. On 18th April 2009 the Respondent DRI filed a reply in this Court. This Court on 20th April 2009 passed the following order after perusing the reply: 1. The reply filed by the Respondent DRI in this BAIL APPLN. No.673 of 2009 page 11 of 40 Court on 18th April 2009 has been perused. The reply is signed by an officer of the DRI who has not been identified in the reply. However, Mr. Aggarwala, learned Senior standing counsel confirms that the signature on the reply is of Devendra Singh, Intelligence Officer, DRI, Delhi Zonal Unit, New Delhi who has also signed the notices under Section 50 NDPS Act (copy at pages 13 and 14 of the paper book) as well as the panchnama, a copy of which is at page 15 of the paper book. 2. However, it is seen that reply is supported by an affidavit of Dr. Atul Handa, Deputy Director, DRI stating that the contents of the accompanying reply are true and correct. Mr. Aggarwala is unable to explain why a different person should swear to the supporting affidavit when such deponent has himself has not signed the reply. This Court requires to Dr. Handa to file an affidavit, within one week, indicating why this course was adopted in the present case. 3. Among other grounds urged by Mr. D.C. Mathur, learned Senior counsel appearing for the Petitioner in support of this application for bail is that the notice under Section 50 NDPS Act which is purported to have been served upon the Petitioner at the spot at the time of his arrest, is a computer-typed sheet on which the Petitioner’s endorsement in Hindi to the effect that he does not BAIL APPLN. No.673 of 2009 page 12 of 40 wish to be searched in the presence of a Magistrate is found. He states that this is simply not feasible. He further points out that this notice as well as the panchnama appear to have been printed out from the same printer. The panchnama is purported to have been drawn at the office of the DRI on the same date. He accordingly doubts the veracity of these documents. He refers to the averment in para 9 (vii) of the petition which reads as under: “9 (vii) Notice u/s 50 NDPS Act purported to havebeen given at the spot of interception to both the accused persons is typed. However the print and font of the notice and panchnama are same, which shows that both the documents were typed and print out was taken from the same printer. There was no printer at the spot. Therefore, the only inference which could be drawn is that all documents were prepared at the DRI office and petitioner was implicated.” 4. The reply filed by the DRI in response to para 9 reads as under: “14. With reference to para No.9, the same as stated by the petitioner, is wrong and is denied. The circumstances to establish false implication are factually and legally incorrect. It is denied that any witness is a stock witness. It is further denied that there is any contradiction. It is also denied that the documents were prepared subsequently and the Petitioner has been falsely implicated.As BAIL APPLN. No.673 of 2009 page 13 of 40 regards the alleged retraction, when the petitioner was produced before the court, he did not make any grievance. Attention in this behalf is invited to the judgment of M. Prabhu Dayal by the Hon’ble Supreme Court and Yakub Khan v. NCB of this Hon’ble Court.” 5. The aforementioned reply is, in the considered view of this Court, unsatisfactory. It does not specifically deal with the averment made out by the Petitioner in para 9 (vii) of the petition. 6. Considering that Mr. Devendra Singh, Intelligence Officer, DRI purportedly drew up both the notice under Section 50 NDPS Act as well as the panchnama, this Court requires him to file a further affidavit specifically dealing with the above contention in para 9 (vii) of the petition. He will also explain to this Court how and in what circumstances the aforementioned documents were drawn up. 7. The supplementary affidavit of Mr. Devender Singh be filed within one week from today with an advance copy to be served upon the learned counsel for the Petitioner at least two days prior to the next date of hearing. Dr. Handa will also file his affidavit within the same period. 8. List on 1st May 2009. BAIL APPLN. No.673 of 2009 page 14 of 40 9. Order be given dasti to learned counsel for both the parties under the signature of the Court Master.” Thereafter on 4th May 2009 the following order was passed: “1. A detailed order was passed by this Court in this matter on 20th April 2009 in the present application for bail where the attention of the Court was drawn by learned Senior counsel for the Petitioner to a computer-typed notice purportedly served upon the Petitioner under Section 50 NDPS Act at the time of his interception on the spot and on which the Petitioner‟s endorsement in Hindi to the effect that he does not wish to be searched in the presence of a Magistrate is found. The contention of learned Senior counsel for the Petitioner was that given the circumstances in which the interception is stated to have taken place, the service on him of a computer-typed notice at the spot, giving his full particulars, was simply not feasible. It is further pointed out that both the notice under Section 50 NDPS Act as well as the panchnama were printed out from the same printer. 2. This Court was not satisfied with the reply given by the Respondent DRI to the aforementioned averment in the petition. The said reply was signed by Mr. Devendra Singh, Intelligence Officer, DRI with the supporting affidavit signed by Dr. Atul Handa, Deputy BAIL APPLN. No.673 of 2009 page 15 of 40 Director, DRI. This Court was also surprised to note that Dr. Handa had sworn the supporting affidavit whereas the reply was in fact signed by Mr. Devendra Singh. In the said affidavit Dr. Handa stated that he had personal knowledge of what was said by Mr. Devendra Singh in the reply. This was the reason why this Court in its previous order dated 4th May 2009 required Dr. Handa to file a further affidavit in this case explaining why he did so. 3. Dr. Handa has filed an affidavit dated 29th April 2009 stating as under: “I, (Dr.) Atul Handa, Deputy Director, Directorate of Revenue Intelligence, do hereby solemnly affirm and declare as under: 1. The reply to the bail application was signed by the seizing officer Shri Devendra Singh, Intelligence Officer. However, the reply is supported by an affidavit sworn in by me. 2. As per the practice all affidavits in the Hon‟ble High Courts and the Hon‟ble Supreme Court are filed by the officials of the rank of Under Secretary and above. Since I was under the bona-fide impression that the affidavit had to be signed by me, I verified the reply as given by Sh. Devendra Singh, Intelligence Officer, from the case records and signed the affidavit. 3. I respectfully submit that it was in the aforesaid circumstances that I had signed the affidavit in support of the reply, signed by Shri Devendra BAIL APPLN. No.673 of 2009 page 16 of 40 Singh, Intelligence Officer.” 4. On his part Mr. Devendra Singh, the Intelligence Officer has filed an affidavit dated 29th April 2009 stating as under: “I Devendra Singh, aged…. years, Intelligence Officer, Directorate of Revenue Intelligence, New Delhi, do hereby solemnly affirm and declare as under: 1. That regarding the issue of notice under Section 50 of NDPS Act and the panchnama being printed from the same printer, it is true that the notice under Section 50 of NDPS Act, 1985 and panchnama were made from the same computer. 2. It is further submitted that on the basis of a specific intelligence, surveillance was mounted by the officers of DRI, in front of Capital Court, Munirka, New Delhi, on 3.4.2008. The team intercepted two persons alongwith their vehicles. On interception of the said Amarjeet Singh and Kewal Ram at Munirka, New Delhi, the intercepting team of DRI, DZU, immediately informed the senior officers of DRI about the interception, which is a routine practice. The details of the intercepted persons namely Amarjeet Singh and Kewal Ram were conveyed to the senior officers. Immediately, a back-up team alongwith paraphernalia required e.g. weighing machine,