- (1.) The abovenamed three appeals are being decided by this common judgment as they have been preferred against the common judgment and order dated 24-2-1999 passed by the learned Special Judge, NDPS Cases, Bikaner in Sessions Case No. 7/96 by which he convicted accused-appellants-Labh Singh, Major Singh and Mangal Singh for the offence under Ss. 8/21, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'), accused-appellant-Mohd. Arshad for the offence under Ss. 23 and 29 of the NDPS Act and accused-appellants-Arvinder Singh and Harjeet Singh alias Pappa for the offence under S. 29 of the NDPS Act and sentenced them in the following manner :- Name of accused appellants Convicted under section Sentence awarded to each accused appellant 1. Labh Singh) 8/21 of the NDPS Fifteen years RI and to pay fine of Rs. one lac. in default of payment of fine, to further undergo 6 months RI. 2. Major Singh) NDPS Act 3. Mangal Singh) 29 of the NDPS Act. Fifteen years RI and to pay fine of Rs. one lac., in default of payment of fine, to further undergo 6 months RI. Both sentences were ordered to run concurrently 4. Mohd. Arshad 23 of the NDPS Act Fifteen years RI and to pay fine of Rs. one lac, in default of payment of fine, to further undergo 6 months RI. 29 of the NDPS Act Fifteen years RI and to pay fine of Rs. one lac, in default of payment of fine, to further undergo 6 months RI. Both sentences were ordered to run concurrently 5. Arvinder Singh) 29 of the NDPS Act Fifteen years RI and to pay fine of Rs. one lac, in default of payment of fine, to further undergo 6 months RI. 6. Harjeet Singh) Pappa(Absconder) Note :- 1. That in Appeal No. 145/99, one of the accused-appellants, namely, Harjeet Singh alias Pappa was declared absconder by this Court on 8-3-2000 and thus, his appeal was separated from the appeal of accused-appellant No. 1-Arvinder Singh of that appeal. 2. That since in Appeal No. 158/99, accused-appellant-Mohd. Arshad was not being represented by any counsel as the same was filed by him through jail, therefore, Shri J. S. Choudhary was appointed as Amicus Curiae on behalf of accused-appellant-Mohd. Arshad and he was argued the case on his behalf.
(2.) The facts giving rise to these appeals, in short, are as follows :- On 17-8-1996, P.W. 19 Shri R. K. Jain, who was Intelligence Officer, Directorate of Revenue Intelligence (for short DRI), Jaipur presented a complaint before the Special Judge, NDPS cases (Sessions Judge), Bikaner against the abovenamed accused-appellants stating inter alia that on 22-5-1996, P.W.8 S. Parmeshwaran, Intelligence Officer, DRI, New Delhi received a secret information to the effect that one Labh Singh (accused-appellant), resident of Amritsar would be going to Bombay-via-Bikaner in Truck No. WMQ 3348 (hereinafter referred to as the Truck) with narcotic drugs (heroin) concealed in the subject truck on 22/24-5-1996. That information was reduced into writing by P.W. 8 S. Parmeshwaran and the same is Ex. P/28 and P.W. 8 S. Parmeshwaran forwarded the same in original to his higher officers, who gave instructions to other officers. On the basis of that information, a team under the Chairmanship of P.W. 10 Kuldeep Singh was constituted for raiding that Truck and in that Team, apart from P.W. 10 Kuldeep Singh and other officers of the DRI at Delhi, Officers posted in Regional Office at Jaipur, namely, P.W. 16 Om Prakash, P.W. 17 V. K. Gupta, P.W. 18 T. C. Gupta and P.W. 19 R. K. Jain were also members. That information was also sent to the office of DRI at Bikaner on 23-5-1996. P.W.10 Kuldeep Singh reached Bikaner along with Alok Tiwari, S. K. Ratra, Rajeev Sidana (P.W. 7) and other officers and on that day, two motbirs, namely, P.W. 12 Liyakat Ali and P.W. 13 Mahendra Singh were contacted from Bikaner and they were asked to become motbirs and they accepted to become motbirs. Thereafter, P.W. 10 Kuldeep Singh along with two motbirs P.W. 12 Liyakat Ali and P.W. 13 Mahendra Singh and other members of the Raiding Party, reached National Highway No. 15, which connects Bikaner to Ganganagar and made Nakabandi near Check Post, where officers of DRI posted at Jaipur, namely, P.W. 16 Om Prakash, P.W. 17 V. K. Gupta, P.W. 18 T. C. Gupta and P.W. 19 R. K. Jain were already there and they waited for the arrival of the Truck for which they had secret information. Thereafter, at about 19.30 (7.30 p.m.), raiding party proceeded towards Ganganagar and thus, they crossed nearabout 11 kms. and then found the Truck in question, which was standstill and in that Truck one person was sitting and on being asked, he told his name as Labh Singh (accused-appellant) and he further told that two more persons, namely, Major Singh and Mangal Singh (since the hub of the Truck had broken) had gone to Bikaner and they would be coming just now and after 15 minutes, both Major Singh and Mangal Singh (accused-appellants) came there. It was stated that Major Singh was owner of the Truck and Mangal Singh was driver of the Truck and in preliminary enquiry, these three accused-appellants, namely, Labh Singh, Major Singh and Mangal Singh told that the Truck in question was loaded with the bags of wheat, but when they were seriously questions, they told the raiding party that in between the bags of wheat, two suitcase were also there, in which packets of heroin were kept for the purpose of taking to Bombay. Since at that time there was some darkness, all the three accused-appellants along with the Truck were brought to the office of the customs situated in Rani Bazar, Bikaner. Thereafter, P.W. 16 Om Prakash gave notice under S.50 of the NDPS Act to the accused-appellants asking them whether they wanted to be searched before him i.e. P.W. 16 Om Prakash or the Magistrate and the notice which was given to accused-apellant-Labh Singh is Ex. D/-5, that of accused-appellant-Major Singh is Ex. D/-6 and that of accused-appellant-Mangal Singh is Ex. D/7. These accused-appellants gave their consent that they could be searched in presence of P.W. 16 Om Prakash. Thereafter, Truck was searched and on search two suitcases marked 'Dunhill' of blue colour were recovered, which were found beneath the bags of wheats. One suitcase was marked as X and other suitcase was marked as Y and both were locked and the key of both the suitcases was with accused-appellant-Labh Singh. Thereafter, first suitcase X was opened and in that, 27 packets were found and they were marked as X1 to X27 and on opening second suitcase Y, 25 packets were found and they were marked as Y1 to Y25 and all the above packets were containing brown powder, which gave positve result of heroin, when tested with drug detection kit. The total weight of the packets of heroin was found to be 52.575 kgs. and net weight of the heroin was found to be 50.755 kgs. Thereafter, seven lots were prepared and in lot No. 1 packets X1 to X10, in lot No. 2 packets X11 to X20, in lot No. 3 packets X21 to X27, in lot No. 4 packets Y1 to Y10, in lot No. 5 packets Y11 to Y20, in lot No. 6 packets Y21 to Y23 and in lot No. 7 packets Y24 to Y25 were kept. Out of seven lots, equal quantity of heroin was taken, which comes to 10 grms. from each lot and, thereafter, two samples of 5 grms. each were prepared. Thus, total 14 samples were prepared and they were sealed on the spot separately and marked as follows :- 1. X A-1, X A-2 2. X B-1, X B-2 3. X C-1, X C-2 4. Y A-1, Y A-2 5. Y B-1, Y B-2 6. Y C-1, Y C-2 7. Y D-1, Y D-2 The fard of search and seizure was prepared on the spot and the same is Ex. P/356. The information to superior officer about the search and seizure was sent through Ex. P/357. Thereafter, P.W. 10 Kuldeep Singh handed over the samples and recovered articles to P.W. 11 M. C. Verma, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/355 and, thereafter, P.W. 17 V. K. Gupta took the samples to Government Opium and Alkaloid Works, Neemuch along with forwarding letter Ex. P/364 and deposited the same at Neemuch and receipt of depositing the samples at Neemuch is Ex. P/365 and the report of the Government Opium and Alkaloid Works, Neemuch is Ex. P/366, where it was stated as under :- "Each of the seven samples are found by qualitative and quantitative analysis to be opium derivative (diacetyl morphine) within the meaning of S. 2-XVI of NDPS Act." After the proceedings of search and seizure of the said heroin by P.W. 10 Kuldeep Singh, statement of the accused-appellant-Labh Singh under S. 67 of the NDPS Act was recorded by P.W. 19 R. K. Jain and the same is Ex. P/376 and in that statement, accused-appellant-Labh Singh revealed the following facts :- 1. That heroin which was recovered from the Truck in question belonged to him and the same was to be sold at Bombay to one Rehman and he (accused-appellant-Labh Singh) purchased that heroin from Pakistan National Arshad (accused-appellant) through Harjeet Singh (accused-appellant), resident of Amritsar. 2. That earlier also he purchased 5 kg. heroin at the rate of Rs. 60,000.00 per kg. and sold at the rate of Rs. 70,000.00 per kg. to Rehman. 3. That he came in contact with accused-appellant-Harjeet alias Pappa at Amritsar, who used to send ascitic and N-hydrade from India to Pakistan and in return, he used to get heroin and accused-appellant-Harjeet Singh told him that he used to take heroin from accused-appellant-Arshad and in case accused-appellant-Labh Singh wanted he could arrange heroin at cheap rate and in the meantime, accused-appellant-Labh Singh contacted with one Rehman at Bombay, who agreed to take heroin at the rate of Rs. 70,000.00 per kg. and accused-appellant-Labh Singh also gave his telephone number to Rehman and the deal was finalised between accused-appellants-Labh Singh, Arshad, Harjeet Singh and Rehman to the effect that accused-appellant-Labh Singh would get heroin at the rate of Rs. 60,000.00 per kg. and the same would be sold by him at Rs. 70,000.00 per kg. 4. That after some time, accused-appellant-Harjeet Singh told accused-appellant-Labh Singh that 50 kg. heroin would be brought by accused-apellant-Arshad and in case he wanted to purchase, he would talk to accused-appellant-Arshad. Then, accused-appellant-Labh Singh told Harjeet Singh, accused-appellant that he contacted Rehman and Rehman agreed to take it. 5. That thereafter, he contacted the owner of the Truck Major Singh (accused-appellant) and he agreed that he will charge Rs. 35,000.00 for transporting the above heroin from Amritsar to Bombay. 6. That accused-appellants-Harjeet Singh and Arshad both came to his house on 20th May and told him that 50 kgs. heroin had been received and they handed over to him two suitcases of blue colour in which 50 kgs. heroin was kept and it was agreed that on 25/26th May, this heroin would be handed over by him to Rahman. 7. That accused-appellants-Harjeet Singh and Arshad told accused-appellant-Labh Singh that they were going to Delhi, where they would stay in Hotel Hansa Delux and they further told him to telephone them before one day of reaching Bombay so that day and place of meeting could be decided. They also gave the telephone number of Hotel Hansa Delux Delhi and the same was recovered from the pocket of accused-appellant-Labh Singh. 8. That on 20th May he contacted accused-appellant-Major Singh for arranging Truck and thus, Truck was arranged and on the night of 21st May, bags of wheat were put in the Truck along with the suitcase and thus, at about 2.30 a.m. on 22nd May, he along with Major Singh and Mangal Singh, accused-appellants left for Bombay through Truck and when they were going to Binaker via Ganganagar, hub of the Truck was broken and accused-appellants-Mangal Singh and Major Singh went to Bikaner and he remained in the Truck and in the meanwhile, Raiding Party came there. Thereafter, on 24-5-1996, statements of the accused-appellants-Major Singh and Mangal Sing under S. 67 of the NDPS Act were recorded by P.W. 17 V. K. Gupta and they are Ex. P/26 and Ex. P/27 respectively. They also gave the statement in consonance with the statement given by the accused-appellant-Labh Singh. On the basis of the facts disclosed by the accused-appellant-Labh Singh during recording of his statement under S. 67 of the NDPS Act, search of Room No. 103 of Hotel Hansa Delux, Karole Bagh was made. Search of Room No. 103 of Hotel Hansa Delux, Karole Bagh, Delhi The case of the prosecution further is that on 24-5-1996 search of Room No. 103 of Hotel Hansa Delux, Delhi was made by P.W. 14 Sanjay Srivastava in presence of P.W. 5 Rakesh Gupta and Nandlal and in that room, Harjeet Singh and Arshad (both accused-appellants) were found. Before making their search, notices Ex. P/2 and Ex. P/359 under S. 50 of the NDPS Act were given by P.W. 14 Sanjay Srivastava to accused-appellants-Arshad and Harjeet Singh respectively asking whether they wanted to be searched before the Magistrate or Gazetted Officer and they gave their consent that they could be searched before the Gazetted Officer and, therefore, their search was made in presence of P.W. 6 B. S. Bakshi. During search, a brief case of black colour belonging to accused-appellant-Harjeet Singh was recovered and on opening it, driving license of accused-appellant-Harjeet Singh and visiting card of Nanak Roadways Corporation, Roshanara Road, Delhi were recovered and on search of accused-appellant-Arshad, ticket of Shatabadi Express was recovered. The fard of these proceedings was prepared on the spot and the same is Ex. P/15. The driving license of the accused-appellant-Harjeet Singh was seized through Ex. P/16. The visiting card is Ex. P/17 and ticket of Shatabadi Express is Ex. P/18. The receptionist of that Hotel was P.W. 5 Rakesh Gupta, who produced the list of those persons, who stayed in that Hotel and the same is Ex. P/29 and on that day, the room in the Hotel was booked in the name of Harjeet Singh, accused-appellant. After that search, P.W. 6 B. S. Bakshi summoned accused-appellant-Harjeet Singh on 24-5-1996 through notice, Ex. P/19 for recording his statement under S. 67 of the NDPS Act and on 24-5-1996, statement of the accused-appellant-Harjeet Singh was recorded by P.W. 6 B. S. Bakshi and the same is Ex. P/20, in which he has stated:- 1. That for the last six months, he was in contact with Pakistan National Arshad (accused-appellant) and accused-appellant-Arshad was involved in smuggling of contraband articles and on 15/05/1996 accused-appellant-Arshad informed him that he should help him so that 52 kgs. heroin could be passed through Indian Border and he told accused-appellant-Arshad that he knew one officer of the BSF and he contacted that officer and that officer agreed to the proposal put forwarded by accused-appellant-Arshad. 2. That as per agreement, on the morning of 20/05/1996 when accused-appellant-Arshad reached Burji No. 74, that officer along with his two junior officers brought accused-appellant-Arshad along with heroin in a Maruti Gypsy to his house. 3. That thereafter, it was disclosed that the name of that officer was Arvinder Singh (accused-appellant) and the names of his two juniors were P.W. 1 Chamanlal and P.W. 2 Nagesh Kumar. 4. That as soon as the heroin was received by him from accused-appellant-Arshad he contacted accused-appellant-Labh Singh and the same was handed over by him to Labh Singh for transporting to Bombay. 5. That he was told by the officers of DRI that heroin, which was handed over by him to accused-appellant Labh Singh has been seized. Statement of accused-appellant-Arshad The statement of accused-appellant-Arshad under S. 67 of the NDPS Act was recorded by P.W. 3 R. A. Sharma on 24-5-1996 and the same is Ex. P/5, where he confirmed the statement given by accused-appellant-Harjeet Singh. He further told that 50 kgs. heroin was brought by him from Pakistan and Indian Border was crossed by him with the help of accused-appellant-Arvinder Singh. Statement of accused-appellant-Arvinder Singh On 25-5-1996, a notice Ex. P/21 ws given to the accused-appellant-Arvinder Singh by P.W. 6 B. S. Bakshi for recording his statement and P.W. 6 B. S. Bakshi recorded his statement on 25-5-1996 and the same is Ex. P/22 and his further statement was recorded on 26-5-1996 and the same is Ex. P/23 and both statements were written by accused-appellant-Arvinder Singh himself in his own hand writing and he also confirmed the statement given by the two accused-appellants, namely, Harjeet Singh and Arshad. It may be stated here that in the statement, which was given by accused-appellant-Arvinder Singh on 25-5-1996 (Ex. P/22) he did not confess his guilt, but in another statement which was given on 26-5-1999 (Ex. P/23), he admitted all the facts narrated by other two accused-appellants, namely, Harjeet Singh and Arshad stating that in conspiracy he helped both accused-appellants-Harjeet Singh and Arshad and he allowed the accused-appellant-Arshad to cross the Indian Border along with 52 kgs. heroin in his vehicle, which was being driven by himself and at that time, P.W. 1 Chamanlal and P.W. 2 Nagesh Kumar were also with him. Thereafter, on 26-5-1996, the statement of P.W. 1 Chaman Lal under S. 67 of the NDPS Act was also recorded by P.W. 14 Sanjay Srivastava and the same is Ex. P/1 and the statement of P.W. 2 Nagesh Kumar under S. 67 of the NDPS Act was also recorded on 26-5-1996 by P.W. 4 B. D. Mishra and the same is Ex. P/3. All the aforesaid statements of the accused-appellants confirmed the story given by one and another. Thus, all the accused-appellants have committed offence under Ss. 21, 23 and 29 of the NDPS Act and accused-appellants Labh Singh, Major Singh, Mangal Singh, Harjeet Singh, Arshad and Arvinder Singh were arrested through Ex. P/376A, Ex. P/370, Ex. P/371, Ex. P/9, Ex. P/6 and Ex. P/8 respectively and after usual investigation, complaint was filed against them in the Court of Special Judge, NDPS cases, Bikaner. On 3-1-1997, the learned Special Judge, NDPS cases, Bikaner framed charges against the accused-appellants in the following manner :- Name of accused appellants Charges 1. Labh Singh ) Sections 8/23 and 29 and 8/21 of the NDPS Act 2. Major Singh ) 3. Mangal Singh ) 4. Arshad) Sections 8/23 and 29 of the NDPS Act 5. Harjeet Singh ) Sections 8/23 and 29 of the NDPS Act 6. Arvinder Singh ) The charges were read over and explained to the accused-appellants. They denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 19 witnesses and got exhibited some documents. Thereafter, statements of the accused-appellants under S. 313, Cr. P.C. were recorded. After conclusion of trial, the learned special Judge, NDPS cases, Bikaner through his judgment and order dated 24-2-1999 convicted and sentenced the accused-appellants in the manner as indicated above holding inter alia :- 1. That since the heroin was recovered from the Truck in question and thus, it was not a personal search and, therefore, compliance of S. 50 of the NDPS Act was not necessary in the present case. 2. That Truck in question would be termed as public carrier or public conveyance and the recovery would also be classified as recovery from public place and, therefore, in these circumstances, provisions of S. 42 of the NDPS Act would not be applicable, rather provisions of S. 43 of the NDPS Act would be applicable. 3. That in the case of accused-appellant-Arvinder Singh, prior sanction under S. 197, Cr P.C. was not at all required. 4. That statements of all the accused-appellants under S. 67 of the NDPS Act were recorded in time and it cannot be said that accused-appellants remained in custody for a longer period and, thereafter, their statements were recorded. 5. That when the statements of the accused-appellants under S. 67 of the NDPS Act were recorded, they were not accused at that time nor they were arrested. 6. That accused-appellant-Arvinder Singh through Ex. D/2 retracted his confession, but that would not affect her earlier statements Ex. P/22 and Ex. P/23 recorded under S. 67 of the NDPS Act, as they were retracted by him with delay. 7. That it is wrong to say that Delhi Team had no jurisdiction to make search and seizure at Bikaner. 8. That if two motbirs of the fard of search and seizure Ex. P/356, namely, P.W. 12 Liyakat Ali and P.W. 13 Mahendra Singh have been declared hostile, it would not affect the proceedings of search and seizure. 9. That prosecution has proved beyond all reasonable doubts that during the search and seizure from Truck in question, 52 packets containing heroin were found from the possession of the accused-appellants-Labh Singh, Major Singh and Mangal Singh. 10. That compliance of S. 57 of the NDPS Act has been made in the present case. 11. That all the accused-appellants gave their statements under S. 67 of the NDPS Act voluntarily and they have failed to rebut that they were recorded with coercive measures. 12. That from the statements Ex. P/22 and Ex. P/23 of accused-appellant-Arvinder Singh recorded under S. 67 of the NDPS Act, the case of smuggling of 52 packets of heroin from Pakistan to India and link with two other accused-appellants-Harjeet Singh and Arshad is well proved. 13. That the statements of accused-appellants, namely, Arvinder Singh, Harjeet Singh and Arshad further get corroboration from the fact that the same heroin, which was brought from Pakistan to India was recovered from the Truck in question at Bikaner. 14. That the prosecution has proved its case beyond all reasonable doubts against all the accused-appellants for the offences for which they were charged. Aggrieved from the said judgment and order dated 24-2-1999 passed by the learned Special Judge, NDPS Cases, Bikaner, these three appeals have been preferred by the accused-appellants.
(3.) In these appeals, the following submissions have been made by the learned counsel for the accused-appellants :- Appeal No. 145/99 Arvinder Singh v. U.O.I. In this appeal, the main contention of the learned counsel appearing for appellant-Arvinder Singh is that the statements Ex. P/22 and Ex. P/23 of accused-appellant-Arvinder Singh were recorded by P.W. 6 B. S. Bakshi on 25-5-1996 and 26-5-1996 and the same were recorded after adopting coercive measures and these statements have no value as the same were retracted by accused-appellant-Arvinder Singh through Ex. D/2 and furthermore, since he has received so many awards including the Presidential Award for his rendering best services to India on Pakistan-India Border, therefore, to think that such a person would indulge himself in such illegal activities, is beyond imagination and from this point of view also, the case against this accused-appellant-Arvinder Singh should not be held to be proved. Hence, it is prayed that the appeal filed by accused-appellant-Arvinder Singh be allowed and he be acquitted of the charges framed against him. Appeal No. 158/99 Arshad v. U.O.I. In this appeal, the learned counsel appearing for accused-appellant-Arshad has argued that the statement of accused-appellant-Arshad Ex. P/5 under S. 67 of the NDPS Act recorded by P.W. 3 R. A. Sharma on 24-5-1996, was not voluntary one and thus, no reliance can be placed on that statement. Hence, it is prayed that this appeal be allowed and the accused-appellant-Arshad be acquitted of the charges framed against him. Appeal No. 182/99 Labh Singh and others v. U.O.I. In this appeal, the following submissions have been made by the learned counsel appearing for accused-appellants-Labh Singh, Major Singh and Mangal Singh :- 1. That the fard of search and seizure Ex. P/356 cannot be regarded as recovery memo. 2. That compliance of Ss. 42 and 50 of the NDPS Act has not been made by the prosecution. 3. That the learned Special Judge should not have placed reliance on the statements of the accused-appellants recorded under S. 67 of the NDPS Act as they were not given by them voluntarily. Hence, it is prayed that this appeal be allowed and the accused-appellants-Labh Singh, Major Singh and Mangal Singh be acquitted of the charges framed against them.;