Full Text
JUDGMENT
TARSEM SINGH ..... Appellant
Through Mr.Neeraj Bhardwaj, Advocate.
Through Mr.Satish Aggarwal, Advocate.
1 This appeal is directed against the impugned judgment and order of sentence dated 16.7.2012 and 20.7.2012 respectively wherein the appellant Tarsem Singh stood convicted under Section 21(C) read with Section 29 of the Narcotic and Psychotropic Substances Act, (hereinafter referred to as the NDPS Act). He has been sentenced to undergo RI for a period of 10 years for each of his convictions and to 2015:DHC:7340 pay a fine of Rs.[1] lac each in default of payment of fine to undergo SI for a period of 6 months. Sentences were to run concurrently.
2 The nominal roll of the appellant has been requisitioned. This reflects that as on date he has undergone incarceration of about 6 years and 10 months; remissions being inapplicable to a conviction under the NDPS Act.
3 The version of the prosecution is that pursuant to a secret information (reduced into writing) on 02.01.2009. The accused was intercepted in a TATA Sumo Vehicle at Singhu Border at about 2.00 a.m. on 03.01.2009. Two public witnesses had been asked to join the raid. The vehicle was asked to stop, initially it did not stop, but thereafter on chasing it was stopped. On checking the vehicle the appellant was apprehended. There was one more person Shera who was a passenger in the car but he managed to flee. Notice under Section 50 of the NDPS Act (Ex.PW-4/A) was served upon the accused informing him about his right to get his search conducted before a Gazetted Officer or a Magistrate. He declined the same. From a cavity behind the tail light of the TATA Sumo Vehicle, Heroin/diacetylmorphine was recovered which after weighing was found to be 7.896 kg. Accused was apprehended and arrested. His statement under Section 67 of the NDPS Act was recorded. The case property was seized; from the case property 5 gram samples were taken at the spot. Test memos were prepared at on spot. The case property was deposited in the Malkhana and thereafter sent to the CRCL; which on analysis, tested positive for diacetylmorphine.
4 On the basis of the aforenoted evidence oral and documentary, the accused was tried, convicted and sentenced as aforesaid.
5 On behalf of the appellants, arguments have been addressed in detail. It is pointed out that the mandate of Section 50 of the NDPS Act has not been complied with in true letter and spirit. It was incumbent upon the Investigating Agency to have produced the accused before a Gazetted Officer or a Magistrate but this has not been done. To support this submission, learned counsel for the appellant placed reliance upon AIR 2011 SC 1939 Narcotics Central Bureau Vs. Sukh Dev Raj Sodhi. There was no DD entry recorded regarding the secret information. This is a lacuna which is not explained. To support this submission learned counsel for the appellant has placed reliance upon 2005 [1] JCC [narcotics] 57 Eze Val Okeke @ Val Eze Vs. Narcotic Control Bureau. Co-accused Shera was permitted to escape. He was the real culprit. This was the defence of the appellant right from inception and even in his statement recorded under Section 313 Cr.P.C. He had disclosed that he was only the driver of the vehicle and had been directed to go to Delhi. The contraband had been planted upon him. Shera was the passenger who was travelling in the car and the contraband belonged to him and not to the appellant. It is pointed out that the statement of the appellant recorded under Section 67 of the NDPS was retracted vide Ex.PX; this statement could not have been read against him. On all counts the appellant is entitled to benefit of doubt and consequent acquittal.
6 Arguments have been refuted. It is pointed out that the judgment suffers from no infirmity.
7 Arguments have been appreciated. Record has been perused.
8 There were 13 witnesses who were examined by the prosecution. The members of the raiding party have been examined as PW-1 (B.K. Banerjee), PW-7 (R.Roy) and PW-9 (Hari Om). 9 PW-4 was a Tax Assistant, working in the DRI Headquarters. He had deposed that on the fateful day he was called to the ground floor of the building where he had joined the raid. He was informed by PW-7 that accused and his vehicle was required to be searched and notice under Section 50 of the NDPS Act (Ex.PW-4/A) was prepared in his presence. Two public witnesses were also present. The accused stated that he could not write Hindi but could understand it. An option was given to the accused informing him about his right to have his search conducted either before a Gazetted Officer or a Magistrate and the same was explained to him. This option was also reduced into writing. It was read over to him and the endorsement of PW-4 was identified by him at point A. Accused declined to get his search conducted either before a Gazetted Officer or a Magistrate. Endorsement by accused has been identified at point B. PW-4 was not cross-examined.
10 Before adverting to the testimony of other members of the raiding party a perusal of Ex.PW-4/A shows that it bears an endorsement of the appellant at point A. Ex. PW4/A was prepared by PW-7 and witnessed by PW-4. Even otherwise it would be relevant to state that the recovery had been effected not from the person of the appellant but from the cavity behind the left tail light of TATA Sumo Vehicle which the appellant was driving. As such in view of the judgment of the Apex Court reported in 3(1999) 6 SCC 172 State of Punjab V. Baldev Singh and 2005 SCC (Cri.) 943 State of H.P.V. Pawan Kumar notice under Section 50 of the NDPS Act was not a mandate which was required to be followed by the Investigating Agency. In this context, the following observations of the Supreme Court are relevant. “Sec.50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Sec. 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the N.D.P.S. Act is also recovered, the requirements of Sec. 50 of the Act are not attracted.” In the second judgment (supra), the Apex Court had held: “Sec. 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.”
11 The second member of the raiding party who was examined was the Investigating Officer R.Roy (PW-7). He deposed that on 02.01.2009 a secret information (Ex.PW-2/A) reduced into writing was received at
5.00 p.m. in the office of the DRI which was to the effect that two persons would be carrying some narcotic drugs on their person or concealed in a white colour Tata Sumo Vehicle No.PB 02X 6373 to deliver it to some person in Delhi and they would be crossing the Singhu Border around 2.00 a.m. on 03.1.2009.
12 Ex.PW-2/A has been perused. This document discloses that this secret information had been reduced into writing by Inderjit Singh Sahni (PW-2) and was discussed with Pankaj K.Singh, Deputy Director of DRI (PW-8). At point B in Ex.PW-2/A the endorsement of PW-8 is there which states that suitable action for seizure of the contraband may be taken. Testimony of Inderjit Singh Sahni (PW-2) is to the effect that he had received this specific secret information which he had forwarded to his senior officer (PW-8). PW-8 has also corroborated this version stating that this secret information was passed on to him by PW-2 and he had made his endorsement at point B. Mandate of Sections 42(1) and 42(2) of the NDPS Act stood complied with. A separate DD entry recording the secret information was not required as it was a secret information. The same was written in Ex.PW-2/A. It was not separately required to be endorsed in the dak register by a separate D.D. It was on the basis of this secret information that PW-7 had been handed over this investigation.
13 Further deposition of PW-7 is that pursuant to the secret information two public witnesses Hari Om and Ashok Giridhar were asked to join the raid. On reaching the spot the Tata Sumo Vehicle No.PB 02X 6373 was found approaching from Singhu Border. A signal was given to stop the vehicle but the vehicle did not stop. The vehicle was chased and thereafter when the vehicle took a U turn and started proceedings towards the Singhu Border at a high speed, the vehicle suddenly stopped near Yadav Greens situated at GT Karnal Road, Delhi. One of the two persons sitting in the vehicle managed to escape. He was chased on foot but the effort was fruitless. The second accused i.e. the appellant was apprehended. He was informed about the purpose for which he had been apprehended. He disclosed his identity as Tarsem Singh. Notice under Section 50 of the NDPS Act (Ex.PW-4/A) was served upon him. He declined to get his search conducted before a Gazetted Officer or a Magistrate. Reply was given by the accused to the said effect at point B on Ex.PW-4/A. His search was conducted. Nothing was recovered from his personal search. On the examination of the vehicle 8 cloth packets having similar rubber stamping which were concealed in a cavity behind the left side tail light of the vehicle were recovered. These 8 cloth packets were taken to the office of DRI which was on the 7th Floor; public witnesses were also present. A detailed examination of the 8 cloth packets was carried out which disclosed that these 8 cloth packets contained a polythene packet each which contained a white coloured granular substance from which a pungent smell was emanating. These packets were marked as X[1] to X[8]. The total weight of the contraband was 7.896 kg. This without the cloth packet and the polythene packet; the gross weight was 7.891 kg. Three representative samples 5 gram each from the recovered substance from the 8 cloth packets were taken for the purpose of analysis. Remaining contraband was sealed. A panchnama (Ex.PW-7/A) was drawn up. It was signed by the appellant and the witnesses. The statement of the appellant under Section 67 (Ex.PW-7/F) was recorded wherein he admitted that this recovered contraband had been brought to him by Shera and this was to be carried to Delhi by concealing it in the vehicle. The contraband which was seized along with the samples and the test memo were deposited in the malkhana.
14 Another member of the raiding party who was examined was Hari Om. He was a public witness. He was examined as PW-9. He had also supported the version of the prosecution and had stated that in his presence the accused was apprehended and after notice had been served upon him under Section 50 of the NDPS Act, the contraband was recovered from his vehicle.
15 The owner of the Tata Sumo Vehicle, Harjinder Singh was examined as PW-10. He had stated that this vehicle bearing registration no.PB 02X 6373 was purchased by him in partnership with one Pragat Singh and the vehicle had been given to Pragat Singh. Pragat Singh was examined as PW-11. He had deposed that this vehicle was purchased in the joint name of himself and PW-10 and this vehicle had been given by PW-11 to his driver i.e. the appellant Tarsem Singh for plying it as a taxi. He had told the appellant not to take the vehicle out of the jurisdiction of Taran Taaran. He learnt later on, that this vehicle had been impounded by the police for having recovered contraband from it. In his cross-examination he admitted that the appellant was working with him for the last about 2 -2 ½ years and he was not involved in any earlier criminal activity. He denied the suggestion that Shera, co-passenger, had been given this vehicle on an earlier occasion and Shera was known to him.
16 Although an argument has been propelled before this Court about the statement of the accused under Section 67 of the NDPS Act has since been retracted and thus cannot be read against him. This Court notes that the appellant has retracted this statement on 14.02.2009 i.e. after a lapse of 40 days. In his statement recorded under Section 67 of the NDPS Act, the appellant had revealed the information which was only written on his own personal knowhow. He had stated that he was working as a driver and had taken this vehicle to Delhi to drop the contraband. This piece of evidence was disclosed by him in his statement (Ex.P4/B). It was retracted more than 1 month and 10 days later after he had made this statement which was clearly only after a legal advice. Even otherwise it is relevant to note that this statement recorded under Section 67 of the NDPS Act although is a piece of evidence against the accused yet it is not a substantive piece of evidence and has been used by the Trial Judge only for the purposes of corroboration. There is no fault in this.
17 Testimony of PW-10 and PW-11 had established that the Tata Sumo Vehicle which had formed the subject matter of the secret information (Ex.PW-2/A) was admittedly registered in the name of PW- 10 who had come into the witness box. This vehicle was purchased jointly by PW-10 and PW-11 but was in the custody of PW-11. PW-11 had given it to the appellant for the purpose of plying it as a taxi. The appellant was warned not to take it out of Taran Taaran but the appellant had disobeyed the instructions of his employer. He had taken this vehicle to Delhi where on the way he was apprehended. Compliance under Section 57 of the NDPS Act was effected vide Ex.PW-1/D. B.K.Banerjee (PW-1) had in this context deposed that while he was working as an Appraiser in the DRI headquarters, a report under Section 57 of the NDPS Act was submitted by PW-7 about the seizure and arrest of the accused; the same was proved as Ex.PW-1/D. Nothing had emerged in the evidence of PW-7 which could discredit his version. The defense of the appellant as emanated in his statement under Section 313 Cr.P.C, that it was Sher Singh to whom the contraband belonged and the appellant had no connection with the same is a defense which did not emanate in the cross-examination of the witnesses and had appeared only at the stage when the statement of the accused was recorded under Section 313 Cr.P.C. which was after 3 years. That apart this Court notes that in this statement the appellant had stated that he used to park the vehicle in the night at the residence of his employer (PW-11) and used to pick it up the next morning which he had done on the fateful day as well. His further version is that Shera had hired this vehicle. It is not his defense that Shera had hired this vehicle from his employer Pragat Singh. If Shera had hired this vehicle from the appellant and the appellant having picked up the vehicle in the morning from the house of his owner, the further defense of the appellant that he was not aware that the contraband had been fixed in a part of the tail light of the vehicle is contrary to the rest of the defense adopted by him as the vehicle was admittedly never in possession of Shera and thus Shera would not have had a chance at any point of time to implant the contraband in the vehicle. The defense of the appellant appears to be dishonest and an afterthought.
18 After the samples and contraband had been received by Lakhi Ram (PW-3) who was working as inspector in Valuable Godown (through PW-7) entries in the Register were made after tallying the seal impression which was affixed on case property with the facsimile of the seal appearing in the test memo. These endorsements were proved as Ex.PW-3/A and Ex.PW-3/B.
19 The sample tested positive for diacetylmorphine. The report of the CRCL Ex.PW-6/B had also checked the purity percentage of diacetylmorphine was found to be between 79-88% of the total 7.896 kg which was above the commercial quantity (250 grams).
20 On no count does the impugned judgment calls for any interference. The sentence imposed upon the appellant is also the minimum.
21 Appeal is without any merit. Dismissed.
INDERMEET KAUR, J SEPTEMBER 4, 2015 ndn