Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 1 of 32 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on:14th October, 2009 Judgment Delivered on: 26th October, 2009 + CRL.A. 866/2008 FAZAL HAQ ..... Appellant Through: Ms. Nitya Ramakrishanan & Ms. Yamini Jai Shanker, Advocates. versus STATE ..... Respondent Through: Mr. Manoj Ohri, APP WITH + CRL.A. 867/2008 MOHD.RAHIM ..... Appellant Through: Ms. Nitya Ramakrishanan & Ms. Yamini Jai Shanker, Advocates. versus STATE ..... Respondent Through: Mr. Manoj Ohri, APP WITH + CRL.A. 292/2009 MOHD. NASIR ..... Appellant Through: Mr. A.J.Bhambhani, Advocate. versus THE STATE (GOVT.OF NCT) DELHI ..... Respondent Through: Mr. Manoj Ohri, APP 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 Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 2 of 32 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. 1. On 2.6.2007 at about 2.20 PM a secret information was received by Inspector Joginder Singh PW-4 of Police Station Nabi Karim that two Afghan nationals namely Mohd.Nasir and Fazal Haq through another Afghan national Mohd.Rahim, would be supplying heroin near the Airlines Hotel. This information was reduced into writing vide DD No.23-A Ex.PW-4/A. Ex.PW-4/A was forwarded to the senior officer Inspector Randhir Singh PW-6 who in turn apprised the ACP B.L.Meena PW-11. 2. Thereafter on the same day at 5 PM a raiding party was constituted headed by PW-4 comprising of PW-6, ASI Ashwani Kumar, Const.Pradeep, Const.Karam Singh, Const.Jahari and Const. Homender Singh. At the spot i.e. near the corner of Qutub Road/Arakansa Road near the Airline Hotel two persons whose names later on were revealed as Fazal Haq and Mohd.Nasir were seen coming towards the Airline Hotel. They started talking to a third person whose identity was revealed as Mohd.Rahim. At the pointing out of the secret informer the aforestated persons were apprehended. Since they were Afghan nationals and could not understand the Indian language an interpreter who was conversant with the Persian language namely Raghunath PW-1 Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 3 of 32 was summoned. Independent witness Durga Dayal PW-2 had also joined the raid. 3. Notice under Section 50 of the NDPS Act was served upon each of the accused persons informing them of their right to have their search conducted either before a gazetted officer or a magistrate. Notice served upon Fazal Haq is Ex.PW-4/B; that upon Mohd. Nasir is Ex.PW-4/C; the notice served upon Mohd.Rahim is Ex.PW-4/D. Each of the said notices are penned in the hindi language and bear endorsements at point A to the effect that the subject matter of the notice has been translated to the respective accused persons. These endorsements have been signed by PW- 1, the interpreter. The replies given by the accused persons also written in the hand of PW-1 are Ex.PW-4/E to Ex.PW-4/G respectively. 4. In the course of the investigation Mohd.Nasir was searched first. He had a cloth belt tied around his waist from where four packets were found. These packets contained a whitish powder which when tested with the field testing kit, tested positive for heroin. The quantity of the said powder was 4 Kg. and 400 grams. Two samples of 100 grams each were extracted and the sample pulandas were seized and sealed with the seal of JS followed by the seal of the SHO i.e. RS. The contraband was seized vide memo Ex.PW-4/H; it was deposited in the malkhana on the same day. CFSL Form was filled in at the spot. Search of Fazal Haq and Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 4 of 32 Mohd.Rahim was conducted vide memos Ex.PW-4/K and Ex.PW-4/L respectively. 5. At 9.15 PM, the rukka was dispatched, pursuant to which the FIR was registered by HC Ombir Singh PW-7 Ex.PW-7/A. Investigation was marked to SI Kishan Chand PW-10. Site plan Ex.PW-4/J was prepared. The accused persons were arrested at 1.35 AM vide arrest memos Ex.PW-10/A to Ex.PW10/C and their personal search was conducted vide memos Ex.PW-10/D to Ex.PW- 10/F. The disclosure statements of the accused Ex.PW-10/G1 to Ex.PW-10/G3 were recorded; they were translated and the contents thereof were explained to the accused persons through translator PW-1. Provisions of Section 57 of the NDPS Act were complied; intimation of the offence was duly transmitted to the senior officers on 3.6.2007 vide document Ex.PW-3/A. 6. In the further course of the investigation statement of the Branch Manager of Shiv Dev hotel Varun Mandal PW-9 was recorded. He had revealed that Mohd. Rahim had checked in at his hotel at Pahar Ganj on 31.5.2007 at about 7.15 PM and had been allotted room no.205. Const.Tara Chand PW-8 had taken the sample pulandas to the CFSL Rohini on 28.6.2007 and the CFSL vide its report Ex.PX dated 16.8.1997 had confirmed the said samples to be diacetylmorphine i.e. a prohibitive contraband in terms of the provisions of the NDPS Act. Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 5 of 32 7. In their respective statements recorded under Section 313 Cr.P.C. accused Fazal Haq and accused Mohd.Nasir have admitted their presence in the two photographs Ex.P-19 and Ex.P-20. Their respective passports and air tickets seized from their personal search were also admitted documents. Mohd.Nasir in his statement under Section 313 Cr.P.C. had set up a defence that he was not the third person depicted in the said two photographs Ex.P-19 and Ex.P-20; he does not know either Fazal Haq or Mohd.Rahim. 8. Abdul Qayyum DW-1, father of Fazal Haq had come into the witness box and testified that third person in the photograph is Hamidulla a resident of Mahallakhana, District Ghuriyan, State of Hirat. To the same effect is the deposition of Bismillah DW-2. 9. Vide the impugned judgment dated 8.10.2008 all the accused persons had been convicted. Accused Nasir stood convicted for the offence under Section 21 and 29 of the NDPS Act whereas accused Fazal Haq and Mohd.Rahim stood convicted under Section 29 of the NDPS Act. All the accused persons had been sentenced to undergo RI for 10 years and to pay a fine of Rs.1 lakh each, in default of payment of fine to undergo SI for three months. 10. Common arguments have been addressed on behalf of the accused Fazal Haque and Mohd.Nasir. Six broad submissions have been made on their behalf: Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 6 of 32 i. There is no evidence of conspiracy under Section 29 of NDPS Act; admittedly from Fazal Haq and Mohd.Rahim no recovery had been effected and even presuming that three persons were found standing in the same vicinity of the Qutub Road near Airline Hotel would not by itself be sufficient to hold that all the aforestated persons are guilty of a conspiracy. To establish the ingredients of conspiracy, it is necessary to show that there was an agreement to do an illegal and/or an agreement to do a legal act by illegal means, a physical manifestation of the act must follow the common meeting of the minds. Reliance has been placed upon, (2000) 10 SCC 257 Ismail Khan Aubkhan Pathan vs. State of Gujrat and (2004) 5 SCC 151 Narcotics Control Bureau, Jodhpur vs. Murlidhar Soni to substantiate the submission that a mere presence at a particular place would not by itself be sufficient to draw a presumption that the person present there shall be presumed to be in possession of a narcotic or a psychotropic substance. Presumption of Section 114 of the Evidence Act is not attracted. A conscious possession has to be established which is not so in the instant case. It is submitted that to the same effect would be the proposition as enunciated by the Supreme Court in (2004) 3 SCC 582 State of Punjab vs. Balkar Singh. It is argued that in 1987 3 SCC 609 Kehar Singh vs. State it Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 7 of 32 has been held that the offence of conspiracy requires some kind of a physical manifestation of an agreement and a mere knowledge or discussion of the plan is not per se enough. The said ingredients are absent in the instant case. Attention has also drawn to the contradictory versions given by PW-2, PW-4 and PW-6 qua the presence of the accused persons present at the spot as to which two out of the three accused persons had come together and who was the third person standing at the spot. It is argued that the photographs and the Airline tickets relied upon by the prosecution to establish the ingredients of a conspiracy are insufficient to hold the accused guilty for the aforestated offence. Reliance has been placed upon the judgment reported as 1974 SCC Crl. 647 State Vs. Nalini to advance the submission that there has to be cogent and convincing evidence against each of the accused charged with the offence of conspiracy and merely because there had been frequent and unexplained meetings of some of the accused with the others who had been charged with conspiracy it cannot be assumed that they were all members of the conspiracy; by applying the same analogy the mere presence of the accused persons at the spot even presuming it to be correct would not by itself be sufficient to establish the ingredients of Section 29 of the NDPS Act. Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 8 of 32 ii. The second submission relates to the mandate of the provision of Section 50 of the NDPS Act. In the instant case, admittedly the accused persons were Afghan nationals. The so-called interpreter PW-1 in his cross-examination has admitted that he had not been taken to the corner of Qutub Road i.e. to the spot; further he had explained the notices under Section 50 of the NDPS Act i.e. the notices Mark A to C on 3.6.2007 when he was called at the police station; it is submitted that these admissions of PW-1 throw out the case of the prosecution in toto as this version clearly establishes that the interpreter had not gone to the spot and the search of the accused persons had already been conducted; the provisions of Section 50 of the NDPS Act had been explained to them only later on in the police station. This salutary provision not having been complied with, it is clear that the accused persons are entitled to an acquittal on this ground alone. Attention has also been drawn to the version of PW- 10 and PW-2 in this regard. It is submitted that PW-10 has admitted that the public person Dr.Ragunath had been summoned in the early morning in the police station which substantiates and corroborates the version of PW-1. PW-2 in his cross-examination has stated that he had left the spot for the police station at about 8 or 9 PM which again throws doubt on the veracity of this version as the arrest memos Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 9 of 32 show that the accused persons had been arrested at the spot at 1.35 AM. iii. Attention has been drawn to para 60 of the impugned judgment. It is submitted that the Trial Court has set up its own case and it appears as if the judge himself had entered the witness box. His finding that after the initial apprehension of the accused persons, the entire investigation including the search and the seizure of the accused persons was done at the police station is contradictory to the version as set up by the prosecution. The version of the prosecution is that the search and seizure of the accused persons had been completed at the spot. It is submitted that the judge cannot himself set up a new case which is contrary to the substratum of the main case. Reliance has been placed AIR 1965 SC 277 Ugar Ahir vs. State of Bihar to substantiate the proposition that where the court chooses to disable the substratum of the prosecution case on the material parts of the evidence and reconstructs a story of its own out of the rest, it would amount to the court having removed the grain and accepted the chaff and convicted the appellant on the basis of the chaff which is per se not admissible; it is submitted that applying the ratio of the aforestated judgment accused persons are entitled to an acquittal. Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 10 of 32 iv. The next submission made by the learned counsel for the appellants relates to the contradiction of the witnesses of the prosecution. Attention has been drawn to the testimony of PW-4 who had stated that PW-1 had been summoned to the spot in a car whereas PW-6 had stated that PW-1 had been brought to the spot on foot; on the same count PW-10 had stated that PW-1 had been summoned to the police station in the early morning hours. PW-4 had further stated that he had not seen PW-2 at the police station although he had remained there throughout the night whereas PW-6 had stated that PW-2 had accompanied the raiding party back to the police station; on the same count PW-10 had stated that PW-2 had not come to the police station at all. It is submitted that these contradictions on the first blush, may appear to be trivial yet keeping in view their cumulative effect they would go to the root of the matter and derail the case of the prosecution. v. It is submitted that the secret information in this case which had been recorded vide DD No.23-A dated 02.6.2007 cannot be relied upon as admittedly the secret informer has not been examined. Reliance has been placed upon a judgment of this Court dated 13.4.2005 titled as Manu/De/0819/2005 Kassu Ram vs. State to support this submission. Reliance has also been placed upon another Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 11 of 32 judgment titled as AIR 1983 SC 906 Bhugdomal Gangaram & Ors. vs. State of Gujarat. vi. It has lastly been submitted that an incriminating circumstance which has not been put to the accused in his statement under Section 313 Cr.P.C. cannot be read against him; in this case it had not been put to either of the two appellants Fazal Haq and Mohd. Rahim that they were depicted in the photograph Ex.P-19 and Ex.P-20 which is a resort at Kabul; in the absence of this, such a circumstance cannot be read against them. Reliance has been placed AIR 1953 SC 468 Sharad Birdhichand Sarda vs. State of Maharashtra to support this argument. 11. On behalf of Mohd.Nasir, arguments propounded by Fazal Haq and Mohd. Rahim have been adopted. In addition, it has been submitted that the recovery of the contraband from Mohd.Nasir has not been proved beyond reasonable doubt as different witnesses have given different versions and for this proposition; attention has been drawn to the versions of PW-2, PW-4, PW-6 and PW-11. It is stated that each of them have given different statements about which accused was standing at the spot and which of the two had joined him; how the translator PW-1 was brought to the spot; whether on foot or whether by car are not explained. These contradictions as pointed out are the same which have been highlighted by the counsel for the co-accused and Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 12 of 32 noted in the submissions supra. Additional support has also been drawn from a judgment reported in (2000) 1 SCC 300 T. Hamza vs. State of Kerala to support the arguments that the provisions of Section 50 of NDPS Act have not been complied with qua Mohd. Nasir as well. 12. Record has been perused and the submissions and counter submission have been noted. 13. Notice under Section 50 of the NDPS Act:- The notice under Section 50 of the NDPS Act is a mandatory requirement; this Section mandates that before an accused is searched he has to be informed of his valuable right of having his search conducted either before a gazetted officer or a magistrate and this has to be duly informed and brought to the knowledge of the said accused, non-compliance of this salutary provision of law would render the entire trial futile. 14. Notice under Section 50 of the NDPS Act served upon Fazal Haq is Ex.PW-4/B. It is in the hindi language and has been prepared by Investigating Officer Inspector Joginder Singh PW-4. The endorsement of Raghunath PW-1, the translator, appears at point A which recites, “ I Raghunath translated above said notice to Fazal Haq.” Below this there is an endorsement in the Persian language signed by Fazal Haq. After this there is yet another endorsement of the Investigating Officer that in front of the witnesses Fazal Haq Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 13 of 32 has informed that he does not wish to get his search conducted either before a gazetted officer or a magistrate. On Ex. PW-4/E which is the second page of this document there is a second endorsement by Raghunath PW-1 which states, “The above said subject was translated by me Raghunath to Fazal Haq.” This document has been attested by Durga Dayal PW-2, Inspector Randhir Singh PW-6 and ASI Ashwani Kumar. 15. Notice under Section 50 of the said Act issued to Mohd. Nasir is Ex.PW-4/C and the second page of the said document is Ex. PW- 4/F wherein again there is endorsement at point A by Raghunath which reads, “I Raghunath shopkeeper of Main Bazar Pahargaj (Former Afghan National) have translated the notice to Mr.Nasir.” This notice has also been attested by the aforestated witnesses i.e. PW-1, PW-6 and ASI Ashwani Kumar. 16. The third notice under Section 50 of the NDPS Act issued to Abdul Rahim is Ex.PW-4/D. This document is also in two pages i.e. Ex.PW-4/D and Ex. PW-4/G and has two endorsement of Raghunath PW-1 one on the first page and another on the second page. The first endorsement states, ”I Raghunath Shopkeeper of Main Bazar Paharganj have translated above said notice to Mr.Abdul Rahim verbally.” Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 14 of 32 The second endorsement recites that the above said subject was translated by Mohd. Rahim to Raghunath and is duly signed by Raghunath at point A. The said notice is also attested by PW-1, PW-6 and ASI Ashwani Kumar. 17. All the aforenoted documents are dated 02.6.2007. 18. Raghunath PW-1 was the translator who had translated the contents of the aforenoted notices to the accused. All the accused being not conversant either with the hindi or english language and knowing only the persian language a translator conversant with the said language has been called. This is the version of Inspector Joginder Singh PW-4. 19. Raghunath PW-1 has deposed that on 02.6.2007 at about 7.00-7.30 PM he was present at the shop of his brother in Main Bazar Paharganj. He was a medical practitioner educated in Pakistan that is how he knew the persian language. A police officer came to him and requested him to be present before the ACP. He i.e. PW-1 went to the ACP where a police officer of the rank of an Inspector requested him to assist him as some Afgan persons had been apprehended who knew only the persian language. PW-1 joined the interrogation of the accused. Whatever questions were put to the accused persons in hindi were interpreted to the accused persons in the persian language and similarly whatever answers were given by the accused in persian were translated and interpreted by PW-1 to the police in hindi. Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 15 of 32 PW-1 has further deposed that the police had prepared the documents on the basis of the answers given by the accused persons which had been reduced into writing. PW-1 had given certificate below the questions put to the accused that the same were correctly put and replied. He has identified his endorsements as Ex.PW-1/A, Ex.PW-1/B and Ex.PW-1/C respectively; PW-1 has further deposed that he was not taken to the corner of Qutub Road Arakasha Road by the police officials at the request of Inspector Joginder Singh as such the question of his meeting the accused persons does not arise. He was declared hostile by learned APP as this was a deviation from his version given to the Investigating Officer. In his cross-examination, he has reiterated that he had not gone to the place of incident near Qutub Road/ Arakansa Road near Airlines Hotel at the request of Inspector Jognder Singh. He has admitted that mark A to C i.e. the carbon copy of the notices bear his endorsement at point A. He has further admitted that he was called to the Police Station at about 12.00 at night on 2.6.2007 to translate the communication between the police and the accused persons; the notices mark A to C were explained to the accused persons by him on 03.6.2007 when he was called in the police Station. 20. It is this part of the cross-examination which has been highlighted by the learned defence counsel; it has vehemently been argued that it has come on record in the version of PW-1 that Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 16 of 32 he had not gone to the spot i.e. the place of incident and he having explained the substance of the notice to the accused persons on 03.6.1997 when he was called to the Police Station, clearly shows that the mandate of Section 50 of the NDPS Act has not been complied with; the accused persons had been searched prior to their having been served with the a notice informing them of their right of search before a gazetted officer or a magistrate; in the absence of the compliance of this statutory provision, non- compliance going to the root of the matter, the entire trial stands vitiated. 21. This Court has carefully perused the testimony of PW-1. There are two places in this deposition of PW-1 wherein he has stated that he had not gone to the corner Qutub Road / Arakansa Road; both these statements have been qualified by subsequent words wherein PW 1 has stated that he had not gone to Qutub Road/Arakansa Road at the request of Inspector Joginder Singh, thereby clearly implying that PW 1 had not gone to the spot i.e Qutub Road / Arakansa Road on the asking of Inspector Joginder Singh; he had gone there at the asking of the ACP; this is fortified by his opening version wherein on oath he has stated that he had been requested by some police official to be present before the ACP. 22. It is thus clear that PW-1 has not gone to the spot at the request of Inspector Joginder Singh but he had gone there at the Crl. A.Nos. 866/2008,867/2008 & 292/2009 Page 17 of 32 request and asking of the ACP; the argument of the defence counsel on this score is meritless and an incorrect appreciation of the testimony of PW-1. 23. PW-1 has been categorical that the translation of the contents of the said documents had been translated by him from hindi into persian language and explained to each of the accused and thereafter their replies which were given in persian were translated by him in hindi and informed to the police. The aforenoted documents i.e. the notices under Section 50 of the NDPS Act and the replies of the accused and the consequential endorsement of PW-1 at point A on Ex.PW-4/B to PW-4/D and Ex.PW-4/E to Ex. PW-4/G are all dated 02.6.2007. Submission of PW-1 that he had explained these notices on 03.6.1997 is answered by the fact that PW-1 had admittedly gone to the police station at 12.00 midnight i.e. in the intervening night of 2.6.1997- 3.6.1997 to translate the communication between the accused and the police officials; this communication refers to the disclosure statements which had been given