CRL.L.P./310/2013 of D R I Vs MANJINDER SINGH

IN THE HIGH COURT OF DELHI AT NEW DELHICRL.L.P. 310 of 2013

DIRECTORATE OF REVENUE INTELLIGENCE

..... PetitionerThrough:Mr. Satish Aggarwala, Advocate.

versus

MANJINDER SINGH..... RespondentThrough:Mr. Dhruv Gupta, Advocate.

CORAM: JUSTICE S. MURALIDHAR

O R R23.01.2014

1. This is petition seeking leave to appeal against the impugned judgmentdated 14[th]February 2013 passed by Special Judge, NDPS in Sessions CaseNo. 18A/08 acquitting the Respondent of the offences under Sections 21 and27A of Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPSAct’).

2. The case of the prosecution is that on 6[th]October 2007 an intelligence wasgathered by Shri Diwakar Joshi, (PW1), an Intelligence Officer of Directorateof Revenue (DRI), through reliable source that the Respondent, carryingnarcotic drugs, would be coming in Bolero Jeep at HP Petrol Pump,Mahipal Pur, near Radisson Hotel, New Delhi, at around 10.00 p.m.The

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intelligence was reduced to writing, placed before the senior officer ShriSanjay Bansal (PW2), who directed Shri N.D. Azad (PW9) to immediatelyorganise team for surveillance and interception of the person along with thecontraband substance.

3. After associating two public witnesses, the DRI officers are stated to haveleft their office at 8.00 p.m. and reached the petrol pump at about 9.00 p.m.At around 10.30 p.m., the Bolero jeep arrived at the petrol pump and wasimmediately intercepted. The driver of the jeep was the Respondent, whohappened to be resident of Village Sammipur in District Jalandhar, Punjab.

4. The case of the prosecution is that although the Respondent initially deniedcarrying any narcotic substance, on persistent questioning by the team, headmitted that he was carrying approximately 5 kgs of Heroin concealed in agreenish colour VIP suitcase lying in the boot of the jeep.Notice underSection 50 of the NDPS Act (Ex. PW11/B) was given to the Respondent atthe spot and he gave reply in writing on the said notice in his handwritingthat he did not require any Magistrate or Gazetted Officer for the searchproceedings and that it could be undertaken by any officer of the DRI. It isalso stated that at the request of the accused, search was effected at secure

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place away from the place of interception. From the suitcase, two packetsweighing 2.438 kgs and 2.346 kgs were recovered. personal search of theaccused was also conducted and recovery of cash of Rs. 1.98 lakhs and onemobile phone with one sim card was made. Three representative sampleswere taken from the packets. On testing, the sample showed the presence ofdiacetylmorphine of 60.4% and 57.7% purity respectively.

5. The case of the prosecution is that detailed panchnama (Ex. PW11/A)was prepared with regard to the interception, search and seizure. Further, itwas stated that in response to the summons issued to the accused underSection 67 of the NDPS Act (PW11/C), the accused appeared and tenderedhis voluntary statement (PW11/D). He disclosed that the owner of stand atJalandhar used to send the vehicle on hire to one Bittoo.On 6[th]October2007, Bittoo called the Respondent at around 1.00 p.m. at BMC Chowk,Jalandhar and had given him the VIP suit case in question and Rs. 2 lakhsand asked him to go to Delhi and deliver it near the Radisson Hotel. Theaccused was promised to be paid Rs. 6,000/- as charges for the delivery andRs. 500 for the payment of toll. From the sum of Rs. 2 lakhs, he spent Rs.2000/- on diesel. However, the Respondent did not give the DRI Officersany contact number or address of Bittoo.

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6. In the impugned judgment after discussing the entire prosecution evidence,the learned trial court has come to the following conclusions:

i. Section 50 of the NDPS Act was contravened in as much as the noticeissued under that provision, Ex. PW11/B, to the accused at the spot appeared

to be fake document, created and manufactured after the alleged time ofinterception.

ii. Sections 41 and 42 of the NDPS Act were not complied with since theInvestigating Officer (IO) (PW11) did not possess valid authorisation toeffect the seizure. The authorisation was given by PW2 Sanjay Bansal infavour of PW9 Shri N.D. Azad who in turn authorised Shri Devender Singh(PW7). However, PW7 Devender Singh was neither the seizing officer nor amember of the raiding team of DRI. The seizure of this case was effected byPW11 Shri K. Shashi Bhushan in whose favour there was no authorization.Merely because PW9 was himself member of the raiding party, it would notobviate the need for valid authorisation in favour of PW11 to carry out theseizure.

iii. Section 43 of the NDPS Act would not apply since the seizure waseffected not by way of chance recovery but on the basis of specific priorinformation.

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iv. The summons issued to the Respondent under Section 67 of NDPS Act

appeared to be document prepared and manipulated subsequent to thesearch and seizure from the accused. While the retraction application of theRespondent was in Punjabi, his statement was in Hindi of poor quality and

this raised further doubts as to its genuineness.

v. The failure to associate public witnesses in the search and seizure raised

sufficient doubts as to their genuineness; there were also doubts regarding thesite plan; the issuance of the seal of DRI by PW10 in favour of PW11 and thevery constitution of the raiding team.

vi. The failure to produce the necessary certification regarding the mobilephone recovered from the Respondent also contributed to the weakening ofthe prosecution case against the Respondent.

vii. The accused could not be found guilty under Sections 27 and 27 of theNDPS Act merely because of the recovery of cash of Rs. 1.98 lakhs.

7. Mr. Satish Aggarwala, Senior Standing Counsel for DRI submitted thatsince the recovery was made from the vehicle there was no need for issuanceof notice under Section 50 of the NDPS Act and, therefore, the finding of thelearned trial court in that behalf was erroneous.

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8. This Court is unable to agree with the above submissions. In the presentcase personal search was also made of the body of the accused. noticeunder Section 50 NDPS Act had therefore to be mandatorily issued.

9. What is however, disconcerting is that the details recorded in this noticewere contrary to what was deposed by the prosecution witness, as to whattranspired on 6[th]October 2007. The notice under Section 50 (Ex. PW11/B)mentions the time of occurrence as around “11.30 hrs. today” which was 6[th]October 2007. In the absence of any indication that it was ‘p.m.’ or ‘a.m.’ itcould well be taken to be ‘a.m’. Even if it was taken to be p.m., itcontradicted the case of the prosecution that the accused was apprehended ataround 10.30 p.m. The second factor pointed out is that typed notice couldnot possibly have been served at the time and place of apprehension of theaccused. There was nothing to show that the raiding party took any computerwith them from which typed notice could have been prepared at the spot.These factors indicate that the notice Ex. PW11/B was document preparedsubsequently. There is no satisfactory explanation for the above glaringdiscrepancies concerning the notice issued to the accused under Section 50 ofthe NDPS Act.

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10. As regard the non-compliance with provisions of Sections 41 and 42 ofthe NDPS Act, the submission of Mr. Aggarwala is that since the seizure waseffected from vehicle in transit in public place, Section 43 of the Act thatwould at best apply and not Sections 41 and 42.As pointed out by thelearned trial court, since the interception took place upon receipt of specificintelligence and not by way of chance recovery and by assembling team ofofficers, it was mandatory requirement to comply with Sections 41 and 42of the NDPS Act. The reliance placed in this regard by Mr. Aggarwala onthe decisions in Ramesh Kumar Rajput v. State 11 (2008) DLT (Crl) 828and Directorate of Revenue Intelligence v. Mohammad Nisar Holia (2008)2 SCC 370 is to no avail since both the decisions are distinguishable on facts.In any event, in the latter case distinction was drawn between recoveryfrom public place on receipt of specific information in advance and arecovery by chance. The rigours of the law might not apply. In the presentcase, however, the recovery from the vehicle on public highway was not asa matter of pure chance but on specific advance information and therefore therequirements of Sections 41 and 42 of the NDPS Act had to be compliedwith.

11. Further the mere fact that PW9 went along with the raiding party did not

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mean that he was not required to authorise the officer who in fact effected theseizure. The seizure in the case was effected by PW11 who was required tobe specifically authorised to do so. The fact of the matter was that there wasno specific authorisation in favour of PW11.

12. As regards non-compliance with Section 67 of the NDPS Act, Mr.Aggarwala submitted that it was possible for the DRI to have served upon theaccused summons on 6[th]October 2007 itself requiring him to appear beforethe DRI at 7.00 a.m. on 7[th]October 2007 for the purpose of recording hisstatement.

13. The above submission overlooks the glaring inconsistencies pointed outby the learned trial court as regards the summons, Ex. PW11/C. Although itwas dated 6[th]October 2007, the fact of the matter is that the panchnamaproceedings concluded at 10.00 a.m. only on 7[th]October 2007. The questionof accused appearing at 7.00 a.m. on 7[th]October 2007, therefore, simply didnot arise. The finding of the trial court that the said summons could neverhave been served on the accused on 6[th]October 2007 and that the saiddocument was possibly prepared subsequently cannot be faulted.

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14. The careful examination of the record also bears out that the otherfindings of the learned trial court in the impugned judgment are detailed andreasoned.

15. The Court is unable to find any valid ground for granting leave to appealagainst the impugned judgment. Accordingly, the petition is dismissed withno order as to costs.

16. The trial Court record be sent back forthwith.

JANUARY 23, 2014‘vn’

S. MURALIDHAR, J.

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