Judgement in The Case Pilferage of Narcotics by IPS Officer

1
NCB vs Balwinder Kumar & Ors.
In the Court of Shalini Singh Nagpal Special Judge,Chandigarh.

NCB Crime No.: 50 of 2009. Date of Institution: 10.9.09/25.5.10. Date of Decision:8.3.2013. NARCOTICS CONTROL BUREAU, CHANDIGARH Zonal Unit, House no.80, Sector 2, Chandigarh through its Superintendent Shri Harcharan Singh. .....Complainant. Versus 1 Balwinder Kumar s/o Shri Megh Raj Dhiman, Village & PO Tiyara, Distt. Kangra (HP). r/o
2 Davinder Pal Singh s/o Shri Surender Singh, r/o SAS Nagar, Upper Gadi Garh, Jammu, Distt. Jammu (J&K). 3 Naveen Kumar s/o Shri Ramesh Chander, r/o Village Deoli, Tehsil Bishnah, Jammu, Distt. Jammu (J&K). 4 Naseeb Chand s/o Shri Sunder Lal, r/o Village Purobhana, Tehsil & PS-R.S. Pura, Distt. Jammu (J&K). 5 Saji Mohan s/o Shri Varghese Yohanan, r/o Flat no.12/B, White Waters Tevra, Cochin, Kerala. .....Accused. COMPLAINT AGAINST THE ACCUSED FOR OFFENCES PUNISHABLE UNDER SECTION 8, 8(A), 21,29,32(B) & 59(2) OF NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985. ***** Present: Sh.Kailash NCB. Chander, Special Public Prosecutor for
Accused Saji Mohan in custody represented by Sh. K. Balakrishnan, Shri Ayas Khan and Ms. Sarabjit Kaur, Advocates. Accused Balwinder Kumar Sh.Rabindera Pandit. on bail with Counsel
Accused Naveen Kumar and Devinder Pal Singh on bail with Counsel Sh.Sandeep Kumar. Accused Naseeb Chand on bail with Counsel Sh.K.S. Chaudhary.
J U D G M E N T
This is a unique case in which the Court is confronted with a precarious situation created by the statements of several witnesses who happen to be responsible public servants. Being functionaries of the government, public servants are duty bound to state unadulterated truth before the court and by
operation of law, a duty is cast upon them to bring only those facts before the court which they believe to be true. There appears to be a concerted effort on part of some of the witnesses examined in the case not only to project facts which they knew to be false but also to misguide the court on the basis of false documents prepared by them during
investigation. With the help of false documents, a cooked up story has with regard up. to The recovery dilemma of and
contraband
been
built
predicament of the Court is illustrated by the fact that at one hand, the Court believes these
witnesses, to arrive at a conclusion in favour of the prosecution and at the same time, the witnesses are being prosecuted for giving false evidence. By segregation of various portions of their testimonies and analysis of strong circumstances, surrounding
the proved facts of the case, the court has been successful in digging out the truth and meeting the predicament.
1-A
Complaint u/s 8,8(A), 21,29,32(B) & 59(2)
of Narcotics Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as the 'Act') has been filed by Narcotics Control Bureau, Chandigarh Zonal Unit, Chandigarh (hereinafter referred to as NCB) through its duly authorized Officer Sh. Harcharan Singh, Superintendent, empowered u/s 41(2) of the Act.
Complainant stated that Dr. Saji Mohan, an
IPS Officer of J&K Cadre was on deputation in NCB as Zonal Director of NCB, Chandigarh Zonal Unit
(hereinafter referred to as CZU) w.e.f. 14.2.2007 to 3.12.2008 with additional charge of Zonal Director, NCB, Jammu w.e.f. 14.2.07 to 16.5.2008. He was
relieved from NCB/CZU on 31.12.2008 for Enforcement Directorate, Cochin. Dr. Saji Mohan was arrested by Anti Terrorist Squad, Mumbai (hereinafter referred to as ATS, Mumbai) on 24.1.2009 with huge quantity of Heroin from his conscious possession and case was registered against him vide no.01/2009 dated
24.1.2009 u/s 8(C),21 & 29 of Act. Dr.Saji Mohan was interrogated by ATS, Mumbai and on the interrogation report, Sh.K.P. Raghuvanshi, Additional Director
General of ATS Mumbai sent a report to the Director General, NCB, New Delhi requesting for verification of facts disclosed by Dr. Saji Mohan and to take suitable action and criminal proceedings at the NCB end. As per report, Dr. Saji Mohan had pilfered and manipulated the contraband seized from various
places in Punjab and Jammu, keeping aside the pure contraband for his personal gain. This illegal act was possible in connivance with the subordinates.
Balwinder Kumar, Superintendent, NCB Chandigarh was questioned along with C. Naveen Kumar and Davinder Pal Singh, PSOs of accused Dr. Saji Mohan. To
ascertain their complicity, it was necessary that the records of seizures in 2007-08 from all the
places including Punjab, Haryana, Himachal Pradesh and Jammu were verified. Reports of Chemical Analyst regarding the seized contraband in custody of NCB was required to prove pilferage or adulteration.
Officers in the Zonal office, Chandigarh and Jammu were to be examined. It was stated that pilfering from the seizure of the unclaimed drugs started from May, 2007, slaked lime was added to the contraband to enhance the quantity, some times part of the pure contraband was removed and the quantity of seized contraband was managed by adding slaked lime. Mixing of slaked lime was done on the site of seizure, if possible. In some cases, entire seized material was brought to the office of Zonal Director, Chandigarh where it was packed and sealed after mixing slaked lime. Places where pilferage/adulteration took place were Mohmediwala, Raiding Ferozepur party by BSF, Rattokhe consisted and of
Jammu.
generally
Superintendent Balwinder Kumar, PSO Naveen Kumar and Davinder Pal Singh. The subordinate staff was aware of the pilferage of the seized contraband. In some cases, among cash the seized raiding from staff the spot was distributed
including
Superintendent
Balwinder Kumar and PSOs as reward. In some cases, samples of the seized contraband were taken after they were mixed with slaked lime to avoid detection of adulteration in future. Not all pilfered
5 contraband was brought to
NCB vs Balwinder Kumar & Ors. Mumbai. In all he had
pilfered about 60 kg of Heroin and out of that about 10 kg was handed over to one known drug smuggler of Jammu area namely Naseeb Chand.
Investigation into matter was assigned to Singh, Superintendent, Singh Pal Superintendent Singh, NCB on
Sh.Harcharan 17.2.2009. statements
Harcharan of
recorded J&K
Davinder
Constable
Police u/s 67 of Act on 9.3.2009 after serving him notice. Davinder Pal Singh made statement in his own hand voluntarily, without any duress, coercion,
influence or promise. He disclosed that he was the PSO of Dr.Saji NCB, Mohan during his tenure that 30 as kg Zonal was
Director,
Chandigarh
and
siphoned off out of 60 kg Heroin, seized by NCB, CZU, Jammu was vide done case on no.NCB/JZU/03/2008. the directions of The
siphoning
Dr.Saji
Mohan in JZU, Jammu in the presence of Balwinder Kumar packed Superintendent. in 30 separate The siphoned was 30 kg Heroin in red
packets
kept
coloured wooden box and put in the dicky of vehicle of Dr.Saji Mohan. He made repacking of 22-23 packets of seized Heroin in the office of Dr. Saji Mohan in his presence in September, 2008 and he was given Rs.5000/- as reward. Davinder Pal Singh was arrested on 14.3.2009.
Thereafter, Harcharan Singh Superintendent
recorded statement of C. Naveen Kumar, J&K Police u/s 67 of Act on 9.3.2009 and 14.3.2009 after
serving notice. He also made statement in his own hand disclosing that he was deputed as PSO of
Dr.Saji Mohan during his tenure as Zonal Director, NCB Chandigarh. He along with Dr. Saji Mohan visited Mumbai in October, 2008 where Dr.Saji Mohan handed over a bag to one person in red coloured car. He also disclosed that in the month of November, 2008, in the evening, on two occasions, Dr. Saji Mohan called him in the office where Balwinder Kumar
Superintendent was already present with some lots of seized Heroin. He along with Balwinder Kumar mixed lime in the Heroin lots and handed over siphoned off Heroin to Dr. Saji Mohan. Many times whatever money was recovered during raids, it was given to Dr. Saji Mohan through Balwinder Kumar, then Superintendent. C. Naveen gave Kumar him further disclosed when he that was Dr. Saji to
Mohan
Rs.10,000/-
going
Cochin with the house hold goods of Dr.Saji Mohan in the month of December, 2008 and returned back to Jammu on 9.1.2009. Naveen Kumar was arrested after his statement.
5 recorded
Sh. Harcharan Singh, Superintendent, NCB the statement of Balwinder Kumar after
serving him notice u/s 67 of Act on 23.2.2009. He disclosed that he was on deputation from Seema
Sashatra Bal (SSB) to NCB w.e.f. March, 2004 and posted in Chandigarh Zonal Unit, Chandigarh as
Intelligence Officer. Lateron, in March, 2007, he was promoted to the rank of Superintendent in the same unit and designated as Incharge Malkhana, NCB
CZU, Chandigarh. He also had additional charge of Superintendent, disclose about NCB, any Jammu. He, however, from the did not
pilferage
seized
contraband of NCB CZU, Chandigarh and JZU, Jammu. On the confessional statement of C. Naveen Kumar and C. Davinder Pal Singh, Balwinder Kumar was placed under arrest.
Then,
Harcharan
Singh
recorded
statement
of Nasib Chand after serving notice u/s 67 of the Act. As he was was an illiterate by person, Bodh, so his I.O.,
statement
recorded
Sh.R.C.
NCB/CZU. He disclosed that he was informer of BSF, Custom & Central Excise and other government
agencies and got money from them. He crossed IndoPak border many times and was lodged in Pakistan jail for four times and once in Jammu Jail for
fourteen months. He knew Dr. Saji Mohan since May, 2008 through Sepoy Vijay Kumar, NCB Jammu Zonal
Unit. He met Dr. Saji Mohan in June, 2008 where Dr. Saji Mohan offered him Rs.50,000/- per kg for sale of Heroin in open market and gave him Rs.1000/- for daily expenses. After 15-20 days, Naseeb Chand again met Dr. Saji Mohan in NCB office, Chandigarh where Dr. Saji Mohan gave him Rs.500/- and asked him to find a party to sell Heroin in open market. After that, Naseeb Chand contacted Custom & Excise
officials in Amritsar and informed them that he may give seized Heroin to them. He again met Dr. Saji Mohan in his office in the month of August, 2008 to get the sample of Heroin. Naseeb Chand disclosed
that Dr. Saji Mohan handed over to him 10 kg Hereoin at his residence on 26.8.08 for sale in open market, but he handed over this Heroin to Custom & Excise officials at Amritsar, who in turn gave him
Rs.50,000/- as reward. The Custom & Central Excise officials showed this as unclaimed seizure of 10 kg Heroin on 27.8.08. Thereafter, Naseeb Chand was
arrested on 27.3.09.
Sh.Harcharan Singh Superintendent recorded
statement of M.M.S. Bhandari, Investigating Officer, NCB/JZU, Jammu u/s 67 of Act on 8.4.2009 after
serving notice u/s 67 of Act. MMS Bhandari made his statement in his own hand. He stated that he was on deputation from Central Industrial Security Force to NCB w.e.f. 24.10.07 and was posted in JZU, Jammu as Intelligence Officer from 24.10.07 to May, 2009. He was Seizing Officer of NCB/JZU/Crime Case no.03/2008 dated 15.5.08. When he joined Jammu Zonal Unit, Dr. Saji Mohan was holding the charge of Zonal Director of JZU and Balwinder Kumar was having additional
charge of Superintendent, NCB/JZU. Dr. Saji Mohan reached Jammu on 14.5.08 when the regular
Superintendent of JZU N.R. Sharma was on leave and Balwinder Kumar of NCB, Chandigarh was holding the charge of Superintendent of JZU. On 15.5.2008
morning, M.M.S. Bhandari came to NCB Jammu office and at around 1100 hrs. Sanjeev Chandel,
Intelligence Officer, JZU, Jammu informed him over telephone that BSF, Jammu made some case of Heroin in the border area and asked M.M.S. Bhandari to look
into that case. He then intimated Dr. Saji Mohan about this and left for border along with his team on directions of Dr. Saji Mohan. On reaching the border, he checked the suspected material with the help of field detection kit and found it positive for Heroin. There were total 60 packets of Heroin along with fake Indian currency notes. He took over the recovered contraband, made seizure memo and left for NCB, Jammu office at around 1900 hrs due to nonavailability of proper light and other facilities at border. He reached NCB Jammu office at 2030 hrs. and showed the seized property to Dr.Saji Mohan. After that, Saji Mohan and Balwinder made some discussions between them. Balwinder Kumar checked the seized
property and asked the Intelligence Officer to come with sealing along place material. with at NCB first Intelligence Jammu floor team Officer went to at MMS the
Bhandari sealing
next
Zonal
Director's office. They started the sealing work and opened 8 to 10 packets. Dr. Saji Mohan sent them a message to come down for a meeting at ground floor. MMS Bhandari along with his team came down on ground floor in the office of Superintendent where Dr. Saji Mohan was already sitting. Balwinder Kumar accused was present at first floor with case property along with PSOs of Dr.Saji Mohan. Dr. Saji Mohan took
meeting of all NCB Jammu staff for 1 to 1.30 hrs. During the course of meeting, Balwinder Kumar and PSOs completed withdrawal of samples and sealing of whole case property by converting 60 packets into three lots of 20 kg each. When M.M.S. Bhandari
returned from meeting, he found that whole sealing
10 process already property. was put completed his and
NCB vs Balwinder Kumar & Ors. Balwinder on the the Kumar sealed had case M.M.S.
signatures completing
After
Panchnama,
Bhandari handed over whole sealed case property to Balwinder Kumar and took godown receipt from him. He was not aware of any pilferage by Balwinder Kumar and his associates He also during sealing that process he in his the
absence.
disclosed
brought
recovered case property unsealed from the border to NCB office, Jammu on the direction of Dr. Saji
Mohan. All the sixty packets of one kg each were similar containing Heroin in transparent polythene wrapped with white cloth properly sewed and again wrapped with brown coloured tape from outside. He further disclosed that signature from BSF witnesses were taken on Panchnama, case property and samples on the next day i.e. 16.5.2008.
Sh.Harcharan
Singh
Superintendent
then
recored statement of Vijay Pal Singh, Head Constable of BSF Jammu u/s 67 of Act on 6.4.2009. He stated that he was a witness in the seizure of 60 kg Heroin by NCB/JZU Crime no.03/2008 through 141 Bn BSF.
Heroin was not sealed at the time of handing over to NCB, Jammu on 15.5.2008 and he and Rakesh Roshan, Sub Inspector, BSF signed Panchnama, case property and samples on 16.5.08 in the evening. He also
disclosed that the withdrawal of samples and sealing of case property was not done in his presence and he signed Panchnama, case property and samples in good faith after seeing signature of Seizing Officer and
11 Superintendent. Seized
NCB vs Balwinder Kumar & Ors. packets of Heroin were in
transparent polythene, wrapped in white cloth which was again wrapped with brown coloured tape and all sixty seized Heroin packets were similar. He did not have knowledge of pilfering of Heroin from the
seized sixty packets by NCB officials.
In the same manner, statement of Rakesh
Roshan, Sub Inspector, BSF, Jammu was recorded in his own hand. He stated that he was a witness in seizure of 60 kg Heroin by NCB/JZU crime no.03/2008 through 141 Bn BSF. He disclosed that Heroin was handed over to NCB Jammu on 15.5.2008 at about 17001800 hrs in the evening and was not sealed at that time. He along with Vijay Pal Singh, HC BSF signed Panchnama, case property and samples on 16.5.08. He also disclosed of that the withdrawl was of samples done in and his
sealing
case
property
not
presence and he signed Panchnama, case property and samples in good faith after seeing the signatures of Seizing having Officer knowledge and of Superintendent. pilferage of He was from not the
Heroin
seized sixty packets by NCB officials.
10
Statement
of
Vijay
Kumar,
Sepoy
of
NCB/JZU was recorded after serving notice u/s 67 of the Act in his own hand. He stated that Naseeb Chand was Informer of BSF since 1998. Dr. Saji Mohan took over charge of Zonal Director, Jammu in 2007 and he was driver-cum-sepoy. Dr. Saji Mohan asked him to trace out sources of Heroin in and around Jammu.
12
Then he introduced Naseeb Chand to Dr. Saji Mohan. After some days, M.K. Sharma took over the charge of Zonal Director from Dr. Saji Mohan. After that, he received telephonic message from CZU, Chandigarh to ask Naseeb Chand to meet Dr.Saji Mohan in Chandigarh and he conveyed the same to Naseeb Chand. He showed ignorance Mohan and about any conversation He also between Dr.Saji that
Naseeb
Chand.
disclosed
withdrawl of samples and sealing of 60 kg Heroin on 15.5.2008 was done in a room at NCB, JZU office next to the chamber of Zonal Director by Balwinder Kumar on intervening night of 15-16.5.2008, when all staff members of JZU, Jammu were attending meeting of Dr. Saji Mohan in the office of Superintendent, JZU,
Jammu at ground floor including MMS Bhandari, IO.
11 recorded
Sh.Harcharan statement of
Singh,
Superintendent Kumar, Sepoy
also of
Kaushal
NCB/JZU and Abhey Raj, Peon of NCB/JZU in their own handwriting. They disclosed that they were members of the team led by MMS Bhandari, IO which made
seizure of sixty kg heroin on 15.5.08. After taking over recovered drug by MMS Bhandari, IO from BSF, the team left for NCB office JZU, Jammu at about 1900 hrs. MMS Bhandari, IO showed the whole
recovered drug to Dr.Saji Mohan and kept the whole recovered drug in the kitchen as per his directions. Balwinder Kumar asked MMS Bhandari to do some work on computer. that After Dr. five Saji minutes, Mohan was they received for a a
message
calling
meeting in Superintendent's office where all other
13
staff of NCB JZU was already present. The meeting continued for 1-1/2 hrs and no staff member of JZU had gone out of room during whole meeting. On
completion of meeting, they found that seized drug had been converted into big lots lying in the lobby and Balwinder Kumar was standing near sealed drug lots. Sealing of seized drug and withdrawal of
samples was made in the absence of JZU staff as they were busy in the meeting.
12
Statement of N.R. Sharma, Superintendent,
NCB/JZU was also recorded in his own hand to the effect that he was on 12 days earned leave w.e.f. 5.5.2008 to 19.5.2008 and Balwinder Kumar had the additional charge of Superintendent, JZU in his
absence. When he joined back, he came to know about unclaimed seizure of sixty kg Heroin made by NCB, JZU, Jammu through BSF on 15.5.08. Withdrawal of the samples and sealing of seized Heroin was done in the supervision of Balwinder Kumar, Superintendent, CZU, Chandigarh. Drawl of fresh samples from the case
property for verification, packing material was done on 19.3.2009 before the court at Jammu where he was present. Memo of verification of packing material was prepared and he signed the same along with
Harcharan Singh, Superintendent and Kaushal Kumar, Sepoy, NCB, JZU, Jammu.
13
Sh.
Harcharan
Singh
Superintendent
recorded statement of Manjeet Singh, Constable, J&K Police in his own hand who stated that he was on PSO
14
duty with Dr.Saji Mohan in NCB, Chandigarh and on 14.5.08, he left for Jammu from Chandigarh in a
vehicle with Dr. Saji Mohan and driver Kartar Singh and reached Jammu at aroun 9 p.m where Dr. Saji Mohan stayed in GOs Mess of J&K Police and he went to his home in Jammu. On 15.5.2008, he came to GOs Mess and then reached in NCB JZU office at around 1000 hrs. In the evening, Dr. Saji Mohan told him that NCB Jammu unit had done a seizure of 60 kg Heroin through BSF. He along with Dr. Saji Mohan went to Jammu office and returned back to GOs Mess at night and after dropping Dr. Saji Mohan at GOs Mess, he went to his house in Jammu. The next day on 16.5.2009, he reached NCB Jammu Office at about 1100 hrs. where Dr. Saji Mohan was already present. He saw three sealed lots of seized Heroin and went to restaurant to meet his relative. Dr. Saji Mohan and driver Kartar Singh picked him from restaurant at about 1400 hrs. and they reached back to Chandigarh. He denied having any knowledge of pilferage.
14 statement
Sh.Harcharan Singh Superintendent recorded of Kartar Singh driver on 7.4.09 after
serving notice u/s 67 of Act. He stated that he worked as a daily wager from February, 2008 to
February, 2009 and used to drive government vehicle and vehicle of Dr. Saji Mohan whenever required. On 14.5.2008, he along with Dr. Saji Mohan and PSO C. Manjeet Singh left for Jammu from Chandigarh in a vehicle by road and reached there in night. Dr. Saji Mohan stayed in GOs Mess of J&K Police and C.
15 Manjeet Singh went to his
NCB vs Balwinder Kumar & Ors. home in Jammu. Next
morning, he along with Dr. Saji Mohan and C. Manjeet Singh reached NCB Office, Jammu at around 1000 hrs and again came back to GOs Mess in the afternoon. In the evening, at around 1800-1900 hrs., they again went to NCB Jammu office and returned back to GOs Mess after staying one hour in the office. Next
morning, on 16.5.2008, he along with Dr. Saji Mohan reached NCB office Jammu where PSO Manjeet Singh
reached and met Dr. Saji Mohan for 10-15 minutes and then he came back to vehicle and told that he was going to meet his fiancee in a restaurant. At about 1300 hrs., Dr. Saji Mohan came out from the office and put his luggage in the vehicle and he started from Chandigarh. On the way, he picked PSO Manjeet Singh from the restaurant. He left Dr. Saji Mohan and his luggage at his residence and reached NCB Office, Chandigarh along with Manjeet Singh where he left Manjeet Singh. He denied having any knowledge regarding pilferage of Heroin.
15
Statement
of
Virat
Dutt
Choudhary
was
recorded on 20.4.2009. He stated that he was Retired Assistant Commissioner, Custom & Central Excise
Department and was posted in Amritsar at the time of unclaimed seizure of 10 kg Heroin by C&CE on
27.8.08. Inspector Vijender Singh introduced Naseeb Chand to him as an Informer, who promised to give a good case. On 24.8.09, Inspector Vijender Singh gave him informatioin that he contacted Naseeb Chand and said that on 26.8.2008, handing over of goods would
16
take place by smugglers on scooter or motorcycle. Then, he along with staff laid 'naka' and in the late midnight, a Scooter was noticed coming towards them. The team tried to stop the Scooter, but he ran back and in the process, drugs. he dropped a polythene staff
packet
containing
Thereafter,
whole
came back to Custom House in Amritsar along with drug packets. He did not know Dr. Saji Mohan. The origin of drug was not known to him. Cash money was provided to Naseeb Chand as reward, but he could not remember the exact amount. He personally supervised the operation and seized drug was 10 kg.
16 recorded C&CE hand. on He
Sh.
Harcharan of
Singh
Superintendent Inspector, in his own
statement 10.7.09
Vijender serving that he
Singh, notice along
after
disclosed
with
Virat
Chaudhary made seizure of 10 kg Heroin in August, 2008 and that he know Naseeb Chand as a source of the department. He did not know Dr. Saji Mohan. He did not disclose the origin of 10 kg Heroin seized by his party in 2008.
17 recorded
Sh.Harcharan statement of
Singh
Superintendent Singh, Inspector
Pushpdeep
C&CE on 10.7.09after serving notice u/s 67 of Act in his own hand. He was Seizing Officer of unclaimed seizure of 10 kg Heroin by Anti Smuggling Wing of Custom Commissionerate on 27.8.08. He stated that custom Staff reached CPS Attari where the staff was divided in two teams to lay naka near BOP Ramkot and
17 at wee hours in of a 27.8.08, plastic Custom and
NCB vs Balwinder Kumar & Ors. ten bag packets were Ten of Heroin and was were
contained brought to
recovered Kg Heroin
the
office.
unclaimed
seizure
Panchnama,
formalities
completed by him. He could not tell about the origin of seized Heroin and suspects carrying the Heroin. He did not know Dr. Saji Mohan and Naseeb Chand.
18
Dr. Saji Mohan was arrested on 13.8.2009.
He was interrogated and his statement was recorded in his own hand. He disclosed about some of
important seizures during his tenure as Z.D., 60 kg Heroin in Jammu and 10 kg Heroin at Chandigarh and on several occasions on Indo Pak border in Punjab with BSF. He also disclosed that he was not present in NCB Jammu unit during the seizure of 60 kg Heroin vide crime no.NCB/JZU/03/2008 dated 15.5.08 and that Superintendent Balwinder Kumar and M.M.S. Bhandari, IO performed the seizure operation, but showed his ignorance about the presence of C.Davinder Pal
Singh, PSO at that time. He denied carrying pilfered Heroin weighing 30 kg in the dicky of his vehicle from Jammu to Chandigarh and that he was indulging in sale of pilfered Heroin in open market. He also denied calling staff of NCB JZU for meeting in the office of Superintendent when sealing of 60 kg
Heroin seized by JZU was started at first floor of JZU office. He denied that he indulged in pilferage of case properties in connivance with Balwinder
Kumar, Davinder Pal Singh and Naveen Kumar. He also denied that on two occasions, lots of Heroin from
18 NCB/CZU godown were taken
NCB vs Balwinder Kumar & Ors. out by Balwinder Kumar
accused and pilferage was done in office chamber of Zonal Director as in stated his by presence Naveen and Kumar, on PSO. his He
directions,
denied knowing Naseeb Chand of R.S. Pura, Jammu and said that he did not give him 10 kg Heroin on
26.8.08 for sale in open market.
19
To ascertain the pilferage from unclaimed
seizures of Heroin made by NCB, Chandigarh and NCB, Jammu during the tenure of Dr. Saji Mohan,
applications were moved to both concerned Courts for taking fresh samples from the seized Heroin and to verify the packing material, for fresh testing in Central Revenue Control Laboratory (CRCL), New Delhi to know the quantitative variation in percentage of (Diacetyl Morphine) DAM at the time of seizure and the contraband presently kept in NCB malkhana. Case wise 17 applications Jammu, fresh were moved and were in the court at
Chandigarh, reports of
Amritsar samples
Ludhiana. secured,
Testing results
whereof are mentioned in para 30 of the complaint. From the test reports of CRCL, New Delhi, it was clear that pilferage was done from seized lots of Heroin in case no.01/2007, 02/2007, 03/2007 (Lot B), 06/2007, 07/2007 (Lot B), 03/2008, 13/2008, 16/2008 of CZU, Chandigarh by Dr. Saji Mohan in connivance with Balwinder Kumar, Ex-Superintendent, NCB and C. Davinder Pal Singh and C. Naveen Kumar, both PSOs of Dr.Saji Mohan. It was clear from the statement of Naveen Kumar that with the help of Balwinder Kumar,
19
he took out lots of seized Heroin from NCB malkhana, mixed slack lime and repacked, sealed the lots.
20
Complainant further stated that in crime
case no.5/2007 of NCB/CZU, the test report of first two tests of initial sample of seized drug was found negative for Diacetyl Morphine by CRCL, New Delhi and CFL, Hyderabad, but in the fresh sample drawn on 10.4.08, Lot-A and Lot-B were found positive for DAM with 2.8% and 31.7% respectively. It was thus clear that Seizing Officer Balwinder Kumar, Ex-
Superintendent, NCB, Chandigarh, knowingly sent the sample of Paracetamol to CRCL, New Delhi and CFL, Hyderabad to pilfer the drug from the lots. The case property in the case was deposited with Malkhana on the order of the court at Ferozepur which was
brought to NCB Malkhana on the pretext of disposal of case property by showing it as Paracetamol. In case no.03/2008 of NCB Jammu, it was clear from the statement of C. Davinder Pal Singh that the samples from the case property were drawn after taking 30 kg from total 60 kg seized Heroin and mixing 30 kg slack lime to equate the quantity. Mixing was done by Davinder Pal Singh in the presence of Balwinder Kumar as per directions of Dr. Saji Mohan. Packing material of each case was verified by the board by opening it and found as per Panchnama except two cases wherein packing material was found deficient as mentioned in para 34 of the complaint bearing case no.05/2007 dated 19.7.07 and 03/2008 dated
15.5.08.
20
21
Complaint was thus forwarded in the court
for trial.
22 the
Copies of the complaint were supplied to accused free of costs as envisaged u/s 207
Cr.P.C.
23
A prima facie case under Section 8,21,29
of the Act being made out against the accused Nasib Chand, Balwinder Kumar, Saji Mohan, Devinder Pal
Singh, Naveen Kumar, they all were charge sheeted by the Court of Shri Lalit Batra, then Learned Judge, Special Court on 1.10.2010. Contents of the charge sheet were read over and explained to the accused in simple Hindi to which they pleaded not guilty and claimed trial. Accused Balwinder Kumar and Saji
Mohan were also charge sheeted for the offences u/s 32-B, 59(1), 59 2(b) of the Act. 19 witnesses as were examined by the prosecution while five were
examined by the accused.
Vide order dated 12.12.12
of this court, additional charge u/s 8, 21 of the Act was framed against accused Saji Mohan regarding delivery of 10 kg Heroin to Naseeb Chand on 26.8.08 to which he pleaded not guilty and claimed trial. After 12.12.12, five witnesses were recalled for
cross-examination on request of accused Saji Mohan.
24
Prosecution
examined
MMS
Bhandari,
Intelligence Officer, NCB, Delhi as PW-1, R.C. Bodh,
21 Superintendent, Ram, UDC, NCB, NCB, JZU,
NCB vs Balwinder Kumar & Ors. Jammu as as PW-2, N.R. Parkash Sharma,
Chandigarh
PW-3,
Superintendent, NCB, Delhi as PW-4, Kaushal Kumar, Sepoy, NCB, JZU, Jammu as PW-5, HC Vijay Pal Singh as PW-6, C. Manjit Singh, J&K Police, Jammu as PW-7, Vijay Kartar Kumar, Singh Sepoy, as NCB PW-9, Office, Virat Indore Dutt as PW-8,
Chaudhary,
Assistant Commissioner, Customs, Amritsar as PW-10, S.C. Mathur, Chemical Examiner, Custom House,
Kolkata as PW-11, S.K. Mittal, Chemical Examiner, CRCL, New Delhi as PW-12, Ganesh Balooni,
Superintendent, NCB, Chandigarh as PW-13, Sukhwinder Singh, DIG, ATS, Mumbai as PW-14, Sanjeev Krishanrao Tonapi, Inspector, ATS, Mumbai as PW-15, Rakesh
Kumar Roshan, Inspector, BSF, Jammu as PW-16, Pushp Deep Singh, Inspector Gill, Custom, Amritsar as PW-17, CISF
Harcharan
Singh
Assistant
Commandant,
Unit, Assam as PW-18, K. Natarajan, Under Secretary to Government of India, Ministry of Home Affairs, New Delhi as PW-19. PW Vajinder Singh was given up by ld.SPP being unnecessary.
25
Statements of accused u/s 313 Cr.P.C were
recorded in question answer form. Accused Saji Mohan pleaded that he was involved in false case to
strengthen another false case planted on him by ATS, Mumbai showing huge recovery. ATS, Mumbai started a malafide move under which NCB, Chandigarh was
directed and guided to register false case with a view to establish the source and origin of false recovery in which he was involved by ATS, Mumbai.
22
For that reason, the evidence and statements were fabricated by NCB, Chandigarh to cover up false
investigation carried out by ATS, Mumbai. A team of co-accused pilferage offence was of as also projected He did not was to show any of false such false
Heroin. projected
commit victim
and
accusation and tainted investigation in the hands of ATS Mumbai and NCB, Chandigarh.
26
Accused Naseeb Chand denied the entire
incriminating evidence as false and claimed that he was innocent and was involved in false case by NCB in league with ATS, Mumbai as ATS, Mumbai was
seeking information from various agencies regarding their informers to and accordingly, a false his to name make was him
supplied
strengthen
case
scape-goat. He had no connection with the accused facing trial.
27
Accused
Davinder
Pal
Singh
and
Naveen
Kumar similarly denied the incriminating evidence as false and stated that they had been falsely
implicated to show the source of Heroin allegedly recovered from Saji Mohan. They were summoned by
ATS, Mumbai when false case was planted against Saji Mohan and thoroughly interrogated. When nothing
incriminating was found against them, clean chit was given. Lateron, to establish the alleged source of recovery of contraband, ATS, Mumbai in league with high ups of into NCB started a of malafide this move which to
resulted
registration
false
case
23
show false pilferage of Heroin.
28
Accused
Balwinder
Kumar
stated
that
seizure of 60 kg Heroin was made by BSF, Jammu on 15.5.2008 and he was informed by Mr. Bhandari about the seizure on 15.5.08 in the evening and
accordingly, he rushed to Jammu and reached in the morning of 16.5.08. He signed the Panchnama which was already prepared after sampling by Mr. Bhandari on 15.5.08. Statement given by MMS Bhandari u/s 67 was manipulated by him in league with officials of NCB and ATS, Mumbai to connect him in the false case. He was involved falsely by NCB in league with ATS, Mumbai to strengthen a false case in which Dr. Saji Mohan was arrested by ATS, Mumbai. Since ATS, Mumbai was unable to unearth the source of alleged recovery at Mumbai, as such, in clever move, ATS Mumbai joined hands with NCB officials and after
fabricating various memos, statements u/s 67 of Act, projected the present case of pilferage of Heroin from different unclaimed recoveries including
malkhana of NCB godown. The drama was staged by NCB to strengthen a case registered against Saji Mohan in consultation with ATS, Mumbai.
29
In defence evidence, accused examined C.
Anand Chetia, BSF, District Taran Taran as DW-1, HC Dondia, Intelligence Officer, NCB Headquarters,
Delhi as DW-2, Sanjiv Chandel, Sub Area Organiser, SSB Training Centre, Ghitorni, New Delhi as DW-3, Pratap Singh Yadav, Intelligence Officer, NCB,
24 Chandigarh as DW-4 and
NCB vs Balwinder Kumar & Ors. Pratap Singh Yadav,
Intelligence Officer (Legal) NCB, Chandigarh as DW5.
30 learned
Initiating arguments, Sh. Kailash Chander, Special Public Prosecutor for NCB argued
that accused Saji Mohan was arrested by ATS, Mumbai with huge quantity Heroin at Mumbai Airport on
24.1.2009. During interrogation in that case, it was revealed that he had been pilfering contraband from unclaimed seizures in Jammu and Chandigarh. It was further argued that on 15.5.2008, when accused Saji Mohan was Zonal Director, NCB, Incharge of Jammu
Zonal Unit, 60 kg Heroin was recovered as unclaimed seizure from Indo-Pak Border. After the recovery, the contraband was brought to Zonal Unit, Jammu for sampling and sealing. At about 7 p.m., accused Saji Mohan M.M.S. Unit, convened Bhandari, Jammu an emergency meeting Officer, in the and NCB, called Zonal of
Intelligence who was
(PW-1)
process
sampling and sealing the contraband, and all other officers of JZU, Jammu. Balwinder Kumar who had the additional charge of godown of Jammu Zonal Unit on 15.5.2008, contraband went was to lying, the first floor 30 kg where Heroin the and
pilfered
added to it 30 kg of slaked lime after which he prepared 3 lots of 20 kg each after taking out the samples. In this context, statement of PW-1 M.M.S. Bhandari was referred and that of PW-5 Kaushal Kumar to prove the presence of Balwinder Kumar in NCB Unit on 15.5.2008. of Reference PW-6 HC was also and made to the
statement
Vijay
PW-16
Inspector
25
Roshan Lal who deposed regarding recovery of 60 kg. unclaimed Heroin on 15.5.2008. It was argued that accused Saji Mohan did not deny his presence in NCB Zonal Unit, Jammu on 15.5.2008 and 16.5.2008 and the plea of accused on Balwinder was Kumar that he by was Ex in
Chandigarh recovery
15.5.2008
falsified
P-1,
memo-cum-seizure
memo
whereon
Balwinder
Kumar had signed and put the date of 15.5.2008. He further argued that similar pilferage was made by accused Balwinder Kumar in the unclaimed seizures lying in the malkhana at Zonal Unit, Chandigarh
which was proved from the test reports which showed a marked decrease in the percentage of diacetyle
morphine content. Learned SPP further submitted that after pilfering 30 kg. Heroin from Jammu Zonal Unit, accused Saji Mohan, who was in contact with co-
accused Naseeb Chand, Informer of BSF & Customs, had given him 10 kg Heroin to sell in open market, but as per confessional statement of Naseeb Chand Ex P-9 which he did not retract, Naseeb Chand made over Heroin to the Customs Department which showed it as unclaimed seizure on 26.8.2008, the date Saji Mohan made delivery to Naseeb Chand. In this context,
statements of PW-10 Virat Dutt and PW-17 Pushpdeep Singh were relied upon. It was urged that the story of PW-10 that the unclaimed seizure was recovered from unidentified persons who came on a Scooter and fled after dropping the packet was concocted and in fact, the 10 kg Heroin recovered was supplied by accused Naseeb Chand to whom it was given by accused Saji Mohan. of Learned SPP urged examined that and from the the test
statements
witnesses
26
reports proved on file, it was a fit case to convict the accused.
31
Ms.Sarabjit
Kaur,
learned
counsel
on
behalf of accused Saji Mohan argued that NCB Zonal Unit, Chandigarh had initiated statement the case on ATS,
inadmissible
confessional
before
Mumbai. Cross-examination of PW-1 was referred to show that as per rules, all documents were to be prepared after checking, testing, weighing,
parceling and taking out samples at spot. It was urged that PW-1 M.M.S. Bhandari, Intelligence
Officer had himself violated instructions no.1/88 by not conducting the process of sampling and sealing at spot and his statement did not deserve to be relied upon. It was submitted that though
prosecution case was that accused Saji Mohan, Zonal Director, NCB called an emergency meeting and
detained M.M.S. Bhandari and other officials for 11.30 hrs., statement of PW-7 C. Manjeet Singh was that Saji Mohan remained in NCB Unit, Jammu only for 15 minutes, so, the evidence regarding holding of meeting PW7, in by accused Saji Mohan was contradictory. Saji Mohan
cross-examination in to it the the was office
stated only
that
remained Referring Sharma, Officers
for
5-7 of
minutes. PW-4 N.R. NCB the and
cross-examination argued that to as
per
rules, all
were like
required seizure,
complete
formalities
weighing,
parceling
sampling at spot and the Panchnama Ex P-1 prepared by PW-1 M.M.S. Bhandari and his statement on oath
27
was a glaring example of violation of instructions and law by the Intelligence Officer. Ex P-1
reflected that the recovery, seizure, weighing and sampling was done at the spot while it was
prosecution case that after recovery, the contraband was taken to NCB Zonal Unit.
32
It was next submitted that PW-6 HC Vijay
Pal Singh and PW-16 Inspector Rakesh Roshan of BSF both stated that the recovery of 60 kg Heroin was made from their post on 15.5.2008, but they were called to NCB Office on 16.5.08, to put signatures on the packets on back failed PW-16 date to were i.e. prove taken 15.5.08. why on the back
Prosecution signatures date.
miserably of PW-6 of and
Statements
prosecution
witnesses
proved
manipulation of records by NCB and the case set up could not be believed. PW-5 Kaushal Kumar admitted
that the contraband recovered from BSF remained in custody of M.M.S. Bhandari and remained intact in his possession from the time of seizure and till deposit in malkhana. This admission, according to learned case of defence counsel, of knocked out prosecution meeting
pilferage
contraband
during
called by accused Saji Mohan.
33
It was next urged that prosecution case
started on the confessional statements of accused Naveen and Davinder Pal Singh which were retracted at the earliest point of time and no reliance could be placed on the retracted confessions. In this
28
context, learned counsel referred to U.O.I. Vs. Bal Mukund & Ors. 2009(2) RCR (Crl.) 574 (SC), Noor Aga Vs. State of Punjab & anr. 2008(3) RCR (Crl.) 633 (SC), Francis Stanly Vs. Intelligence Officer, NCB (2007)2 Supreme Court Cases 618, Suresh Budharmal Kalani Vs. State of Maharashtra 1998 Supreme Court Cases (Cri) 1625, Haricharan Kurmi & Ors. Vs. State of Bihar AIR 1964 S.C. 1184.
34 complaint, variation
Referring to the table at page 20 of the learned in the counsel quantity submitted of diacetyle that the
morphine
after re-sampling was between -18.1% to -68%. 10 kg Heroin allegedly handed over by accused Saji Mohan to co-accused Naseeb Chand for sale in open market was a part from showed of the pure quantity Unit, but of the of contraband report Ex
pilfered PW17/A
NCB
Zonal the
that
percentage
diacetyle
morphine was between 39% to49%, so, prosecution case could not be of believed. the case It was was argued and that the
investigation
tainted
evidence was fabricated by NCB to cover up the false investigation carried out by ATS, Mumbai. Statement of PW-7 C.Manjeet Singh was referred in support of the argument that while recording statement u/s 67 of the Act, NCB officers tried to introduce few
facts favouring their case, but he did not succumb to the pressure. Cross-examination of PW-7 was also referred to show that Balwinder Kumar was not even present on 15.5.2008 in NCB office, Jammu and he reached from Chandigarh at about 11/11.30 p.m. on
29 16.5.2008. Balwinder So, Kumar the was stand
NCB vs Balwinder Kumar & Ors. of prosecution contraband on that the
pilfering
direction of Saji Mohan was defeated. Version of PW9 in his examination-in-chief that they went to NCB office, Jammu on 15.5.2008 and stayed there for one hour was contradicted by his cross-examination
wherein he stated that they returned to GOs Mess on 15.5.2008 at 8.30 p.m., so, prosecution case that the meeting started from 9 p.m onwards was also
contradicted.
35 witnesses
It had
was
argued
that deposed not
since
prosecution to the
themselves and
contrary declared
prosecution
case
were
hostile,
their evidence had to be used in favour of defence. In this context, Mukhtiar Ahmed Ansari Vs. State
(NCT of Delhi) 2005 Supreme Court Cases (Cri) 1037 was relied upon. It was submitted that statements of accused Balwinder Kumar and accused Saji Mohan
recorded during investigation u/s 67 of the Act were not incriminating and this was admitted by the
Investigating Officer PW-18. No independent witness was joined at the time of recording the confessional statement of co-accused Naveen Kumar and Davinder Pal Singh which could were not lateron rely retracted upon by them.
Prosecution
uncorroborated,
contradicted and retracted statements of co-accused to seek conviction. No tampering or re-sealing was found on the material/packets of crime no.3/2008 as per statement of PW-13 and PW-18.
30 36 Pushpdeep
NCB vs Balwinder Kumar & Ors. Statements of PW-10 Virat Chaudhary, PW-17 Singh were referred in support of the
argument that prosecution case that 10 kg contraband was given by accused Saji Mohan to co-accused Naseeb Chand on 26.8.2008 for sale in open market which he handed over to Excise & Custom Officials at
Amritsar, contradicted the statements of PW-10 and PW-17 who stated that they received information
through Naseeb Chand regarding 10 kg Heroin but it was seized from unknown person riding a Scooter. It was argued that prosecution who 24.8.08 failed to examine the
Vijender information
Singh, on
allegedly regarding
received 10 kg
Heroin.
Accused Naseeb Chand was an illiterate person and prosecution took advantage of this fact while
recording his confessional statement without joining independent witness to authenticate it, despite
availability. There was no conspiracy at all between accused Saji Mohan and Naseeb Chand and statement of co-accused Nasib Chand could not be made the basis of conviction. No evidence was produced by the
prosecution against Saji Mohan for alleged pilferage in other cases. PW-18 was not a Gazetted Officer, so, he was not fully authorized to sign the
complaint. No authorization was produced by PW-18 to file the complaint and the complaint and
investigation was bad in law.
37
On behalf of accused Naveen and Davinder
Pal Singh, Sh. Sandeep Kumar, Advocate argued that there was absolutely no evidence to prove their
31 complicity confessional in the
NCB vs Balwinder Kumar & Ors. offence and the upon alleged by the
statements
relied
prosecution were retracted at the earliest possible opportunity, so, they could not be acted upon.
38
It was also argued that the offence was
allegedly committed at Jammu and Chandigarh Court has no jurisdiction to try the same. Additional
charge of accused Saji Mohan as Zonal Director Jammu NCB, Jammu Unit could not give jurisdiction to the court to try the offences.
39
On
behalf
of
accused Advocate PW-1
Balwinder argued
Kumar, that was
Sh.Rabindera
Pandit, of
examination-in-chief
M.M.S.
Bhandari
contrary to the Panchnama Ex P-1 according to which the entire exercise of recovery, seizure, weighing and sampling was done on 15.5.2008 at the spot. It was argued that no slacked lime was found in the test reports and prosecution miserably failed to
prove that the accused had added 30 kg slacked lime in the recovered contraband of 60 kg. It was further submitted that accused Saji Mohan had no prior
information about the recovery of 60 kg. Heroin from Indo Pak border on 15.5.2008, so there could be no prior meeting of mind or conspiracy to commit the pilferage. No evidence was led by the prosecution to prove from where 30 kg slacked lime was procured by accused collected Balwinder by the Kumar. No link evidence Agency. was
Investigating
Cross-
examination of PW-8 was referred to show that his
32
statement u/s 67 of the Act was dictated by Sh. Harcharan Singh Gill, the complainant and he asked him to sign the statement which showed that
investigation was manipulated and tainted to involve the accused falsely. Referring to the documents
proved by DW3, it was argued that accused Balwinder Kumar was not even present in Zonal Unit, NCB Jammu on 15.5.2008 and was present in Chandigarh.
Statements of PW-7 and PW-9 were also referred in this regard. It was argued that case prosecution that in accused Jammu on
witnesses Balwinder
supported Kumar was
defence not
present
15.5.2008. Signatures of Balwinder Kumar on Ex P1 were taken on back date on 16.5.08 and this was proved by the witnesses of the prosecution PW-6 and PW-16 whose signatures were also taken on back date. PW-1 M.M.S. Bhandari while preparing the Panchnama himself impunity flouted and his all rules and instructions not be with
statements
could
relied
upon. According to statement of PW-3 Ganesh Balooni, all the material/packets which were inspected by the team were found intact and there was no tampering or re-sealing Complainant found during checking Singh was by the team. the
Harcharan
himself
Investigating Officer, a person highly interested in success of the case and this was another defect in the faulty investigation. No sanction to prosecute Balwinder Kumar was ever obtained. Statement of DW-3 Sanjeev Chandel, Sub Area Organizer, who was
Intelligence Officer in NCB Jammu at the relevant time was also referred to show that on 15.5.2008 at about 4 p.m., he was called by accused Balwinder
33
Kumar from NCB, Chandigarh regarding the seizure of 60 kg Heroin in Jammu and he made inquiry about the time of the buses to reach Jammu. Regarding
variations in re-sampling of unclaimed seizures in Chandigarh Unit, it was argued that if at all any pilferage was there, variation would have been much more.
40
Refuting
the
arguments,
learned
SPP
submitted that incidents of pilferage from unclaimed seizures only came to light after accused Saji Mohan was arrested by ATS, Mumbai on 24.2.2009 and he made confessional statement. Prosecution witnesses had no reason to depose falsely against the accused. They had no ill-will against them and accused Balwinder Kumar failed to explain what were the compelling
circumstances to put his signatures on 16.5.08 on back date. The retraction of confessional statement was made after three months and was not
spontaneous, therefore, confessional statements were to be relied upon. He made prayer that the accused be convicted.
41
The
following
points
arise
for
determination in this case:(i)Whether on 15.5.2008, in the area of NCB, JZU, Jammu, accused Balwinder Kumar in
connivance and conspiracy with accused Saji Mohan, Davinder Singh and Naveen Kumar pilfered Heroin to the extent of 30 kg from an unclaimed seizure of 60 bags Heroin?
34 (ii)Whether Singh and the
NCB vs Balwinder Kumar & Ors. retracted Kumar are confessional admissible in
statements of accused Nasib Chand, Devinder Naveen evidence and can be relied upon? (iii)Whether Incharge, accused Balwinder Kumar, then and
Superintendent, NCB, NCB,
Chandigarh and Godown connived
Chandigarh
conspired with accused Saji Mohan, Devinder Singh and Naveen Kumar to pilfer Heroin from unclaimed seizures. (iv)Whether prosecution has proved beyond
reasonable doubt that on 26.8.08 in the area of Chandigarh, accused Saji Mohan delivered 10 kg Heroin to accused Nasib Chand for sale in open market? (v)Whether complainant is duly authorized
Officer u/s 36-A(i)(d) of the Act? (vi) Whether the sanction order Ex PW19/A is valid?
42
To answer the points above, a glance at
the evidence on record would help. 43 PW-1 M.M.S. Bhandari was Intelligence
Officer in Jammu Zonal Unit on 15.5.2008, who seized 60 kg unclaimed Heroin from Indo Pak Border near BSF Post. He stated that he brought the seized drugs to NCB Zonal Unit, Jammu after preparing the recoverycum-seizure memo Ex P-1 at spot. While he was in the process of opening the 60 packets, Saji Mohan called an emergency meeting, summoned him and detained him for 1-1.30 hrs and when he returned, he saw three lots of 20 kg Heroin already prepared by Balwinder Kumar. Thereafter, he took two samples from the
lots, sealed them and prepared the Panchnama Ex P-1.
35
.PW-2 R.C. Bodh was Superintendent, NCB, Jammu Zonal unit, Chandigarh on 26.3.2009. He stated that he served notice Ex P-8 on Naseeb Chand and recorded his statement Ex P-9 on the directions of Harcharan Singh Gill, Superintendent. Accused Naseeb Chand was arrested vide memo Ex P-10 and his
jamatalashi was Ex P-11.
.PW-3
Parkash
Ram,
UDC
was
LDC
in
NCB
office on 8.4.2009. He recorded statement of Vijay Pal Ex P-12 on directions of Harcharan Singh Gill, Superintendent.
.PW-4
N.R.
Sharma
was
Superintendent,
Zonal Unit of NCB, Jammu in May, 2008. He sated that he was on leave on 15.5.2008 and Balwinder Kumar was officiating as Superintendent was Incharge of on that date. and on
Superintendent
godown
15.5.2008, Balwinder Kumar was holding the charge of godown.
.PW-5 Zonal Unit on
Kaushal
Kumar He
was
Sepoy
in about
Jammu the
15.5.2008.
stated
unclaimed seizure of 60 kg Heroin handed over by BSF officials. He further stated that after reaching BSF office, M.M.S. Bhandari checked with the drug
detection kit and found Heroin in the packets. After handing and taking over the drug, they came to Jammu Zonal Unit where the contraband was shifted to first
36 floor on the asking of
NCB vs Balwinder Kumar & Ors. Saji Mohan and Balwinder
Kumar gave him certain documents for typing. After five minutes, he was called to the office where Saji Mohan along was with holding other a meeting and M.M.S. Bhandari The
team
members
was
present.
meeting took about 1-1.30 hrs and when he came out, he saw big sealed packets lying on the table. He proved notice Ex P-13 and his statement Ex P-14.
.PW-6
HC
Vijay
Pal
Singh
was
posted
at
Naka no.11 on the intervening night of 14/15.5.2008. He deposed regarding the recovery of three bags
containing packets of suspected material which NCB team, on checking, found to be heroin. There was also currency of Rs.15,95,500/-. He stated that the recovered material was handed over to NCB, Jammu and he along with SI Rakesh Roshan were directed to go to office of NCB. On next day, they went to NCB office, Jammu at about 4/5 p.m and he was asked to sign the sealed packets. He also signed Ex P-1. He proved his statement Ex P-15.
.PW-7 C. Manjit Singh was a Constable of J&K Police attached with Saji Mohan. He stated that on 14.5.08, he came with Saji Mohan from Chandigarh to Jammu, reached at 9 p.m., stayed in GO Mess in the night and after dropping Saji Mohan, went home. On 15.5.2008, he reached GO Mess, Jammu at 9 a.m and accompanied Saji Mohan to NCB office, Jammu where they stayed for 2-3 hours and came back for lunch in GO Mess. At about 7 p.m., Saji Mohan received a
37
phone call that there was unclaimed seizure of 60 kg. Heroin by NCB and he accompanied Saji Mohan to NCB office, Jammu after receiving the phone call. They stayed there for 15 minutes approximately and thereafter, came back to GO Mess.
.PW-8 Vijay Kumar was Sepoy-cum-driver of NCB, Jammu Zonal Unit in 2008. He stated that Naseeb Chand used to come to BSF Camp and he was source of information for BSF. Saji Mohan asked him to provide some Informer and he told Naseeb Chand to meet him. Naseeb Chand met Saji Mohan in the office. When he was on operation duty to Srinagar, Sepoy Tilak Raj called him on receiving a call from NCB, Chandigarh. After 2-3 days, he met Naseeb Chand and informed him about the message and asked him to go there and meet NCB officials. He proved his statement Ex P-12 and Ex P-17.
.PW-9 Kartar Singh was the driver of NCB office, Chandigarh who accompanied Saji Mohan to
Jammu on 14.5.08 along with Gunman Manjeet Singh. He stated that in the evening of 15.5.2008, he went to office of NCB and stayed there for about one hour and then came back to GO Mess. The next morning i.e. on 16.5.2008, they again went to the office of NCB, Jammu. Some articles were put in the dicky of
vehicle, but he could not tell about the same. He proved his statement Ex P-18 and the notice Ex P-19.
.PW-10
Virat
Dutt
Chaudhary,
Assistant
38
Commissioner was posted at Amritsar in Department of Customs Vijender in June, 2008. He stated him to that Inspector Chand,
Singh
introduced
Naseeb
Informer. He asked his staff to keep vigilance on Naseeb Chand. For first two months, he did not
provide any information inspite of the fact that he financially helped him from their secret funds. In August, 2008, Inspector Vijender Singh told that
Naseeb Chand had provided confirmed information that Heroin would be smuggled at the Border and he would provide exact time and place. He confirmed the
information on 24.8.08 and in the intervening night of 26/27.8.08, they laid a naka and intercepted two wheeler coming from the side of BSF picket at about 2.30/3 a.m. Those persons lost balance, fell down with their belongings, but ran away taking benefit of darkness. They however left behind ten packets of Heroin. He proved the notice Ex P-20 and his
statement Ex P-21.
.PW-11
S.C.
Mathur,
Chemical
Examiner,
Grade-I, Custom House, Kolkata proved the receipt Ex P-22 of CRCL, New Delhi, receipt Ex P-23, receipt Ex P-25, report Ex P-26, receipt issued by CRCL Ex P27, report Ex P-28, report Ex P-29, report Ex P-30 and Ex P-31.
.PW-12
S.K.
Mittal,
Chemical
Examiner,
Grade-II, CRCL, New Delhi proved the reports Ex P32, receipt Ex P-33, report Ex P-34, report Ex P-35, report Ex P-36, receipt Ex P-37, report Ex P-38,
39
report Ex P-39, report Ex P-40, receipt Ex P-41, report Ex P-42, report Ex P-43, receipt Ex P-44, report Ex P-45, receipt Ex P-46, report Ex P-47.
.PW-13 NCB, Chandigarh
Ganesh was
Balooni,
Superintendent, Officer in NCB
Intelligence
Unit, Chandigarh in March, 2009. He proved memo of jamatalashi of accused Davinder Pal Singh Ex P13/A, of accused Naveen Ex PW13/B, of accused Balwinder Ex PW13/C, arrest memo of accused Saji Mohan Ex PW13/D, information of arrest of Balwinder Kumar Ex PW13/E and his repors regarding verification of packing
material of the case property in various cases Ex PW13/F to Ex PW13/M.
.PW-14 Sukhwinder Singh, DIG, ATS, Mumbai proved forwarding letter Ex PW14/A, interrogation
report of Saji Mohan Ex PW14/B and statement of Saji Mohan Mark-A, Mark-B, charge sheet Ex PW14/C, Ex
PW14/D.
.PW-15 Inspector, ATS,
Sanjeev Mumbai
Krishanrao that
Tonapi, Saji
stated
accused
Mohan was arrested by ATS, Mumbai on 24.1.09 vide Ex PW14/C and recovery of 12 kg. contraband was
effected from his possession on 24.1.2009. Later, on his disclosure statement, 25 kg. Heroin was
recovered and he was charge sheeted vide Ex PW14/D. He proved letters Ex PW15/A, Ex PW15/B of Addl. DGP K.P. Raghuvanshi addressed to Director General, NCB, New Delhi dated 6.2.2009 and 12.2.2009.
40
.PW-16 Inspector, packets Durga of BSF
Rakesh on
Kumar
Roshan
was of
Sub 60 of
15.5.2008 was He
when
recovery the NCB
Heroin BSF.
effected stated and
from
area
Tower, the
that
officials it was
checked
material
confirmed
that
Heroin. At about 5 p.m., the material was handed over to NCB and they took it to NCB office. The next day 16.5.2008, he and HC Vijay Pal were asked to reach NCB office for recording their statements and accordingly, they reached at about 4 p.m. asked to sign those parcels which They were already
were
sealed, signed. They were also asked to sign the Panchnama proved Ex P-1 and Ex put the date 15.5.2008. order He Ex
the
summons
PW16/A,
movement
PW16/B and his statement Ex PW16/C.
.PW-17 Pushp Deep Singh, Inspector Custom, Amritsar stated about the recovery of ten packets of Heroin containing 10.030 kg. on 27.8.08 which was unclaimed seizure. He proved the report of CRCL, New Delhi Ex PW17/A, copy of Form-F Ex PW17/B, Panchnama Ex D-5, annexure-A to Panchnama Ex D-5, Ex PW17/C, letter of Superintendent, NCB Ex PW17/D, his
statement Ex PW17/E, notice Ex PW17/F.
.PW-18
Harcharan
Singh
Gill,
Assistant
Commandant, CISF, Unit, BTPP, Bongaigaon, Assam was complainant and Investigating Officer, who stated in detail about the various stages of investigation
which started with the letter Ex PW18/A in respect
41 of the disclosure made to
NCB vs Balwinder Kumar & Ors. ATS, Mumbai. He also
proved various documents prepared and secured by him during investigation.
.PW-19
K.
Natarajan,
under
Secretary
to
Government of India, Ministry of Home Affairs, New Delhi proved the sanction for prosecution of Saji Mohan Ex PW19/A.
44
The first point for determination by the
court is:Whether on 15.5.2008, in the area of NCB, JZU, Jammu, accused Balwinder Kumar in
connivance and conspiracy with accused Saji Mohan, Davinder Singh and Naveen Kumar pilfered Heroin to the extent of 30 kg from an unclaimed seizure of 60 bags Heroin?
45
To
prove
the
point
above,
prosecution
relies upon the following:1. Statement of PW MMS Bhandari, Intelligence
Officer, NCB, Jammu. 2. Statement of PW-5 Kaushal Kumar, Sepoy NCB. 3. Statement of PW-6 HC Vijay Pal Singh. 4. Statement of PW-16 Inspector Rakesh Roshan. 5. Retracted confessions of accused Davinder Pal Singh Ex PW18/D and Naveen Kumar Ex PW18/H.
46
It
is
not
disputed
that
on
15.5.2008,
42
accused Saji Mohan was posted as Zonal Director of NCB, Chandigarh Zonal Unit and had the additional charge of Zonal Director, Jammu Zonal Unit. It is also not in dispute that Balwinder Kumar,
Superintendent, NCB Zonal Unit, Chandigarh, at the relevant time was also officiating as
Superintendent, NCB, Jammu Zonal Unit, N.R. Sharma, Superintendent being on leave. Accused Saji Mohan has not disputed that on 15.5.2008, seizure of 60 kg. Heroin was made by BSF, Jammu on 15.5.2008 when he was on tour to NCB, Jammu Zonal Unit. Accused Saji Mohan has also not denied that in the night of 14.5.2008, he stayed in Government Mess and the next morning on 15.5.2008, he came to NCB, Jammu Zonal Unit and again reached NCB office in the evening. PW-1 Sh.MMS Bhandari, Intelligence Officer, Jammu
Zonal Unit stated that after he was handed over 60 kg Heroin by BSF at spot, due to darkness and
security reasons, he along with the team and BSF officials came to NCB Jammu Zonal Unit along with seized drugs where accused Saji Mohan and Balwinder Kumar were present. After coming to the office, he started opening the packets 60 in number and when he opened 8-10 packets of Heroin, somebody came from the office of Saji Mohan and asked his team to come to the office of Saji Mohan as there was an
emergency meeting. He told them that he was busy in sealing process of seized drugs on which Saji Mohan said that Balwinder Kumar will take care. The
meeting took about 1-1.30 hrs and when he came back, he saw three lots f 20 kg each already prepared by Balwinder Kumar. He was asked to take out the
43
samples and accordingly, he took out two samples of 5 gms each from each lot. The samples were sealed with the seal of 'Jammu Zonal Unit-I' and three lots of contraband were also sealed. He took the seal from Balwinder Kumar and returned the seal after
sealing process was over. He prepared the Panchnama Ex P-1 which was signed by Balwinder Kumar, Rakesh Roshan, Vijay Kumar besides himself. Sample was sent to CRCL, New Delhi and report Ex P-3 was received. By the order of court, fresh samples of five grams each from all three lots were taken. Test memo Ex P4 was prepared and sent to CRCL, New Delhi for
chemical analysis. Report Ex P-5 was received.
47 samples
As from
per
standing
instructions and
no.1/88,
Narcotic
Drugs
Psychotropic
Substance must be drawn on the spot of recovery, in duplicate, in the presence of panch witnesses and the person from whose possession drug is recovered and mention to this effect should invariably be made in the PANCHNAMA DRAWN ON THE SPOT. Even PW-1 has admitted after that usually all documents weighing, are prepared and
conducting
testing,
parceling
taking out the samples on spot. PW-4 N.R. Sharma, Superintendent, NCB also stated that whenever NCB officials visit the site of recovery of claimed and unclaimed seizure of contraband, all formalities
like weighing, sampling, parceling is done on the spot. Ex P-1 is the Panchnama prepared by PW-1
M.M.S. Bhandari. According to the document, it was prepared at Indo Pak border near Durga Tower,
44 Makwal, Distt. Jammu on
NCB vs Balwinder Kumar & Ors. 15.5.2008. The Panchnama
records the presence of NCB Jammu team, the factum of recovery of three big bags from Indo Pak Border and also records that the samples were drawn at the spot of recovery from the packets which were again sealed after drawing were the samples at 11 and the entire Ex P-1
proceedings
concluded
p.m.
prosecution's own document contradicts its case that the sampling and sealing of the case property i.e. 60 kg. Heroin was done in Zonal Office, Jammu. It is not the case of prosecution that Balwinder Kumar was ever present at the spot of recovery on 15.5.2008, as per statement of M.M.S. Bhandari PW-1, he was only present in NCB Jammu Zonal Unit, yet signatures of Balwinder and Kumar the have date been obtained is on the
Panchnama thereon.
15.5.2008
endorsed
48 and PW-16
The testimony of PW-6 HC Vijay Pal Singh Inspector this Rakesh Roshan Both would also be the of
relevant recovery
at of
juncture. bags
stated
about
three
containing
packets
contraband in the jurisdiction of BSF Post, Durga Tower, Makwal, District Jammu and the NCB team which reached and checked the substance which was found to be Heroin. According to their version, the material was handed over to NCB in the evening and they did not accompany NCB team and returned to their post. Both witnesses consistently stated that the next
day, on 16.5.08, they were directed to go to NCB office and they accordingly reached at about 4-5
45 p.m., where and three they sealed were
NCB vs Balwinder Kumar & Ors. parcels to were the already sealed
prepared
asked
sign
parcels which they did. They were also asked to sign the Panchnama and accordingly, affixed the
signatures by putting the date as 15.5.2008 on the asking of NCB officials. It is in the cross-
examination of PW-16 Rakesh Roshan that PW-1 M.M.S. Bhandari asked him to append the date as 15.5.2008 instead of 16.5.2008 as formalities were completed on 15.5.2008 and itself. Further, was they not admitted done in that their
sampling
parcelling
presence and parcels were already prepared when they reached. The statements of these two witnesses which is in consonance with their first statement made
during investigation, confirms and leaves no doubt in the mind of the court that the Panchnama Ex P-1 was not prepared on the spot; that neither PW-6 nor PW-16 were present at the time of sampling, sealing, rather they were summoned to NCB office on 16.5.2008 and asked to sign on back date. The Panchnama Ex P-1 relied upon by the prosecution is a false piece of evidence given in judicial proceedings and the
statement of MMS Bhandari PW-1 that he came to Jammu Zonal Unit from the spot along with BSF officials with the seized drugs and prepared the Panchnama
which was signed by Balwinder Kumar, Rakesh Roshan, Vijay Pal and himself on 15.5.2008 is thus proved false.
49 though
Defence of accused Balwinder Kumar is that he was holding additional charge as
46
Superintendent, NCB, JZU, Jammu on 15.5.08, he was not present on 15.5.2008 in JZU, rather he was
present at NCB office, Chandigarh Zonal Unit and to prove his stand, he has examined DW-5 Partap Singh Yadav, Intelligence officer (Legal), Chandigarh, who proved the letter Ex DW5/A written by Superintendent Balwinder signatures Kumar at on 15.5.2008 He also and identified the his
point-A.
proved
letter
dated 7.5.2008 Ex DW5/B bearing endorsement dated 15.5.2008 Kumar and the initials at of accused Balwinder he
dated
15.5.2008
point-A.
Similarly,
proved the document Ex DW5/C whereon Balwinder Kumar appended his signatures on 15.5.08 and the letter Ex DW5/1 accused there is dated 15.5.08 carrying at the signatures This DW of
Balwinder on
Kumar the
point-A. of
apart, Sandeep
record
statement
Chandel, Intelligence Officer, NCB Jammu, who as per PW-1 M.M.S. Bhandari, informed him about the
unclaimed seizure of 60 kg Heroin. He stated that he was on leave on 15.5.2008 and he came to know of the seizure between BSF. 12 He noon passed 4 p.m to on on 1 pm from Deputy to he MMS was
Commandant, Bhandari. contacted
information 15.5.2008,
At
about
through
landline
phone
no.0172-2749731
installed in NCB office at Chandigarh. He apprised Balwinder Kumar about the information and told him to be in touch with M.M.S. Bhandari. Balwinder Kumar inquired from him about the timing of buses for
Jammu and also told that he was about to leave for Jammu on 15.5.2008 in the evening/night. Since he had long association with Balwinder Kumar, he was conversant with his voice.
47
50 the
There is no occasion to doubt or suspect statement of DW-5 Partap Singh Yadav, an
official of NCB and the documents produced by him nor there is any reason to doubt the deposition of DW Sanjeev Chandel regarding telephonic call made by accused Balwinder Kumar to him at about 4 p.m. If accused Balwinder Kumar made the telephonic call to Jammu at 4 p.m. on 15.5.08, by no means he could have reached NCB Zonal Unit, Jammu at about 8-9 p.m when M.M.S. Bhandari was stated to be sealing the seized drugs. The statement of MMS Bhandari cannot be relied and acted upon as it is proved to be false from the Panchnama Ex P-1 and the statement of PW-6 and PW-16. Version of accused Balwinder Kumar that his back signatures date is too thus were obtained on in 16.5.2008 the wake on of
probabilised
testimony of PW-6 and PW-16 who were also asked by PW M.M.S. Bhandadri on 16.5.2008 to append their
signatures on back date.
51 PW-7 C.
This apart, we also have the testimony of Manjeet Saji Singh, when Constable he attached Jammu with from
accused
Mohan
visited
14.5.08 to 16.5.08. It is in his cross-examination that Balwinder Kumar accused came to NCB office,
Jammu on 16.5.08 and was not present on 15.5.08. He also stated that Saji Mohan visited NCB office on 15.5.08 for only 5-7 minutes and came back to G.O. Mess after patting the back of NCB officials for doing good job. Further, PW-9 Kartar Singh, the
48 driver who took Saji in his
NCB vs Balwinder Kumar & Ors. Mohan to NCB office on
15.5.2008 that
also,
cross-examination, Kumar came to
stated on
accused
Balwinder
Jammu
16.5.08 and he was informed by him from Bus Stand and accordingly, he came to Bus Stand at about 11 a.m to report to him. His version is also that
accused Saji Mohan visited NCB office for about 15 minutes and then came to G.O.Mess. Thus, the
presence of accused Balwinder Kumar in NCB, Jammu Zonal Unit on 15.5.08 is not established on record, rather, witnesses, from it the emerges statements that he of prosecution NCB, Jammu
reached
Zonal Unit not before 16.5.2008 and his signatures were taken on Panchnama Ex P-1 on the back date. The defence witnesses who are entitled to as such credit as prosecution witness DW-3 Sanjeev Chandel and the documents produced by DW-5 Partap Singh Yadav, that
Intelligence
Officer,
further
establish
Balwinder Kumar was present in NCB, Chandigarh Zonal Unit on the day of alleged incident. In the wake of testimony of PW-7 C. Manjeet Singh and PW-9 Kartar Singh that Saji Mohan remained in the office of NCB, Jammu Zonal Unit on 15.5.2008 evening for about 15 minutes, the statement of M.M.S. Bhandari that Saji Mohan convened meeting for about 1-1.30 hrs and and
accused
Balwinder
Kumar
took
the
samples
converted 60 kg Heroin into three lots of 20 kg each cannot be relied upon.
52
Prosecution
is
also
relying
upon
the
retracted confessional statement of PW Davinder Pal
49
Singh Ex PW18/D wherein he stated that when Jammu Zonal Unit seized 60 kg Heroin in unclaimed seizure, he was asked by accused Saji Mohan to bring 30 kg slaked lime which he purchased for Rs.150/- and he separated 30 packets out of 60 packets in the
presence of Balwinder Kumar Superintendent, Manjeet Singh PSO and Kartar Singh driver, mixed the slaked lime and the remaining 30 packets were kept in the dicki of vehicle of Saji Mohan. Even though the
confessional statement of accused Davinder Pal Singh recorded u/s 67 of the Act on 9.3.2009 was
subsequently retracted by him vide application Ex D1 dated 19.3.09 moved Model to the Court through the the same
Superintendent,
Jail,
Chandigarh,
cannot be relied upon unless corroborated by other evidence in material particulars. However, there is no corroboration to the retracted confession, which rather contradicts prosecution case. On a question put to Davinder while Pal Singh his by the Investigating he stated
Officer
recording
statement,
that during the entire proceedings, they had been acting on the directions of Saji Mohan who remained standing and he repeatedly asked them to hurry up. There is nothing in the confessional statement that accused Saji Mohan was holding a meeting for about 1-1.30 hrs in which he had called all the officials of NCB Jammu Singh at Zonal and Unit. The statement Singh also that C.
Manjeet present
driver of
Kartar mixing
were
also
the
time
contradicts
prosecution case. Therefore, retracted confession of Davinder Pal Singh is of no avail.
50 53 Confessional mentions
NCB vs Balwinder Kumar & Ors. statement nothing of Naveen the Kumar
(retracted)
about
incident
dated 15.5.2008.
54
Another important aspect of the case is
that after initiation of the case, the prosecuting agency took three samples of 5 gms each from the seizure effected on 15.5.2008 on Indo Pak border
near BOP Durga Tower. The test report of the samples is Ex P-4. The percentage of diacetyle morphine in the three samples no was 55.5%, 40.1% and 63.4%. by the
Interestingly,
attempt
was
made
prosecuting agency to secure the report of CRCL, New Delhi as to whether the samples contained slaked
lime. PW-12 S.K. Mittal, Chemical Examiner, CRCL, New Delhi in cross-examination admitted that there was no mention of limestone in the reports prepared by him. Thus, there is no scientific evidence to prove that 30 kg Heroin was pilfered from the lot of 60 kg and 30 kg slaked lime was added to the
remaining contraband to escape detection.
55 that no
Yet, witness he
another
important by the
circumstance prosecution Balwinder
is has
examined witnessed
stated
that
accused
kumar
mixing slaked lime in the unclaimed seizure of 60 kg Heroin. The statement of M.M.S. Bhandari PW-1, even if believed, would only prove that after he came out from the meeting with accused Saji Mohan, accused Balwinder kumar had already prepared 3 lots from 60 kg Heroin. From this statement, no presumption can
51 be drawn that accused
NCB vs Balwinder Kumar & Ors. Balwinder Kumar had indeed
pilfered 30 kg Heroin and mixed slacked lime. PW-5 Kaushal Kumar Sepoy who stated about the presence of Balwinder Kumar in JZU on 15.5.08 in crossthat in
examination, contraband
supported from
defence BSF
version
recovered
remained
intact
custody of M.M.S. Bhandari from the time of seizure till its deposit in malkhana. No prosecution witness has raised accusing finger at accused Davinder Pal Singh or Naveen Kumar. Even PW-1 M.M.S. Bhandari and PW-5 Kaushal Kumar have not spoken about their
presence nor have PW-9 driver Kartar Singh and PW-7 C. Manjeet Singh.
56
Presence
of
accused
Balwinder
Kumar,
Davinder Pal Singh and Naveen Kumar in NCB, JZU on 15.5.2008 not having been established, the Panchnama Ex P-1 relied upon by the prosecution, proved to be a false document, statements of prosecution
witnesses regarding the meeting convened by accused Saji Mohan not being reliable, it is held that
prosecution has failed to prove that on 15.5.2008 in the area of NCB, JZU, accused Balwinder Kumar, Saji Mohan and Davinder Pal Singh, in conspiracy and in connivance with each other, pilfered 30 kg. Heroin from the unclaimed The seizure point is of 60 kg and mixed the
slacked
lime.
answered
against
prosecution.
57 court is:-
The second point for determination by the
52 Whether the
NCB vs Balwinder Kumar & Ors. retracted confessional
statements of accused Nasib Chand, Devinder Singh and Naveen Kumar are admissible in
evidence and can be relied upon?
58
The provisions of Section 67 of the Act
are reproduced herein below: "67. Power to call for information, Any officer referred to in is authorized in this Government during the or a course etc.
section 42 who
behalf by the Central State of Government any enquiry may, in
connection
with the contravention of any
provisions of this Act,(a) for call for information from any the purpose of satisfying person himself
whether there of
has been any
contravention any rule
the provisions of this Act or
or order made thereunder; (b) require any any person or to produce useful or or
deliver
document
thing
relevant to the (c)
enquiry; with
examine any person acquainted
the facts and circumstances
of the case."
59
NDPS Act is a special Act meant to deal
with special situation and circumstances. Under the enactment, an inquiry is contemplated during which a person may be called upon to provide any information relevant to the inquiry as to whether there has been
53
any contravention of the provisions of the Act or any Rule or Order made thereunder. At that stage, the person concerned is not an accused although he may be said to be in custody. It has been observed by the Hon'ble Supreme Court in Kanhayalal Vs.
Union of India (supra): "As long as at a such time statement when he was made not by the
accused
was
under
arrest, the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the
provisions of Article 20(3) of the Constitution be attracted. It is only after a person is
placed in bar imposed
the position of an accused that the under the aforesaid provision will Of course, this Court has also even and to
come into play.
held in Pon Adithan s case (supra) that if a person is placed a under arrest
thereafter
makes
statement
which
seeks
incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement was given voluntarily and any threat or compulsion and if
without
supported by
corroborating evidence".
60
In
Ram
Singh
Vs.
Central
Bureau
of
Narcotics vide Criminal Appeal No. 451-452 of 2005 decided on 28.4.2011, the Hon'ble Apex Court
observed as under: 45. Considering the provisions of Section 67 of the expressed NDPS by Act this and Court in the Raj views Kumar
54 Karwal case with
NCB vs Balwinder Kumar & Ors. which we agree, that an an officer Section
officer vested with the powers of in charge of a police station under
53 of the above Act is not a "police officer" within the meaning of Section 25 of the
Evidence Act, it is clear that a statement made under Section 67 of same the the NDPS Act is not the
as a statement made under Section 161 of Code, unless made under threat or
coercion. It is this
vital difference, which
allows a statement made under Section 67 of the NDPS Act to be used as a confession against and excludes it from 24 to 27 of the
the person making it the operation of
Sections
Evidence Act."
61
The
Hon'ble
Apex
Court
considered
the
provisions of Section 24 of the Indian Evidence Act and further observed as under: "12. From the plain reading of the aforesaid
provision it is evident that a confession made by an accused is rendered if the irrelevant making of in the
criminal
proceeding
confession appears caused by any with reference A
to the Court to have been threat or promise charge it against is the
inducement, to the
accused.
confession,if
voluntary
truthful, reliable and beyond reproach is an efficacious piece of evidence to establish the
guilt of the accused. However, before solely acting on confession, as a rule of prudence,
55 the Court
NCB vs Balwinder Kumar & Ors. requires some corroboration but as law it cannot be
an abstract proposition of said that a conviction solely on the basis of
cannot be maintained the confession made
under Section 67 of
the Act."
62
In M.Prabhulal Versus Assistant Director,
DRI JT 2003 (Suppl) 2 SCC 459 the Hon'ble Apex Court observed as under: "The confessional statements recorded by such officers are admissible in evidence.....
Further it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced or any torture or harassment..... The
statements cannot be held to be involuntarily. The statements were voluntarily made and can, thus, be made the basis of appellants
conviction." 63 Bearing in mind aforesaid principles, the
court should proceed to consider the evidence in the present case. The statements of accused Saji Mohan Ex PW18/W and Balwinder Kumar Ex PW18/O recorded by then Superintendent Harcharan Singh Gill are not
incriminating and the prosecution does not rely upon them. Statement of Devinder Pal Singh Ex PW18/D only relates to the unclaimed seizure of 60 kg Heroin recovered by Jammu Zonal Unit and the separation of 30 packets from 60 packets by him, Balwinder Singh, Manjit Singh, Kartar Singh and mixing of slaked lime in the remaining 30 packets on direction of Saji
56
Mohan regarding which the accused have already been exonerated. statement Heroin Ex There is nothing regarding in the the disclosure of the
PW18/D the
pilferage lying in
from
unclaimed
seizures
godown of NCB, Chandigarh or the delivery of 10 kg Heroin by accused Saji Mohan to accused Nasib Chand on 26.8.2008, therefore, the statement of Devinder Pal Singh is also not relevant at all.
64
Ex P-9 is the confessional statement
of
accused Naseeb Chand recorded on 27.3.2009, relevant portion of which reads as under:-------------I Central Custom worked & as Informer Excise money of BSF,
Central and got
etc., for the
government
agencies
information supplied. I remained in jail in Pakistan on four occasions and in Jammu for fourteen months for illegally crossing the
border. In May, 2008, C. Vijay Kumar introduced me to Saji Mohan, who was the then Zonal
Director of NCB, JZU. Saji Mohan asked me to meet him in Chandigarh where he had been
transferred and gave me Rs.500/-. After some time, C. Vijay Kumar of Jammu NCB told me to meet Saji Mohan In in kothi 2008, no.80, I Sector 2,
Chandigarh.
June,
reached
house
no.80 to meet Saji Mohan and I was taken to him by a Sikh Sepoy. I spoke to Saji Mohan for about half an hour and Saji Mohan told me that he would pay him Rs.50,000/- if I sold Heroin for him. I told him that the work was dangerous
57
upon which Saji Mohan said that his name should not crop up, but if I was caught, he would manage my release. I told him that I would search for a customer, but would require some money on which he paid me Rs.1000/- which I spent. After 15-20 days, he again went to meet Saji Mohan in Chandigarh and told him that he could not find a buyer. Saji Mohan paid me Rs.500/- and asked me to search for a buyer and that Heroin to the extent of 10 to 20 kg would be supplied. Then, I went to Amritsar and met Inspector Baljinder Singh of Custom Department in his office. I told him that an official of Narcotics Department, Chandigarh trusted me and was ready to deliver Heroin for sale and if he wanted, I could give drug to him. Thereupon, Inspector Baljinder Singh spoke to his senior Officer Sh.Chaudhary, A.C. Custom & Central Excise and told me to bring sample of Heroin. Again in August 2008, I met Saji Mohan and asked him for a sample. Saji Mohan gave me sample in two small packets and told me that he would pay me Rs.50,000/- per kg and the amount beyond Rs.5 lacs, if it was sold at that rate. I took the sample to Amritsar and showed it to Baljinder Singh who said that the quality of Heroin was very good and that I should bring the contraband. I told him that I would not go alone to Chandigarh. So, on 26.8.2008, I
accompanied by Baljinder Singh, a driver and armed Constable came to Chandigarh from
Amritsar in a vehicle and reached Chandigarh at
58 about 1300 hrs.
NCB vs Balwinder Kumar & Ors. Inspector Baljinder Singh
dropped me near NCB office and I met Saji Mohan who sent me to his residence and lateron,
himself reached. I was given meals and ten packets of Heroin from a white box. After 10-15 minutes, I reached Sector 43, Chandigarh in an auto where I met Inspector Baljinder Singh and we started for Amritsar in the vehicle. At about 12/1 a.m., they reached the house of Baljinder Singh where I slept and stayed till 27.8.2008. On 29.8.2008, I came to know that Baljinder Singh had shown 10 kg Heroin as
unclaimed seizure on 27.8.2008. For 2-3 days, I remained there and I was paid Rs.50,00/- by Baljinder Singh which I spent. Thereafter, I never met Saji Mohan-----------------.
65 Act of
Ex PW18/H is the statement us/ 67 of the accused Naveen Kumar, relevant portion of
which reads as under:--------------I have been informed that this statement u/s 67 of the Act can be used against me in the court---------------------. One
evening, in Nov., 2008, Saji Mohan told me to pick him up from the office. At about 7.30/8 p.m., Saji Mohan Sahib reached the office where Superintendent Balwinder Kumar was present.
They had taken out several lots.In the presence of Saji Mohan Ji, on his direction, I and Balwinder Kumar mixed lime in the lots and made another big lot and that packet was given to
59 Saji Mohan Sahib. I
NCB vs Balwinder Kumar & Ors. asked Saji Mohan and
Balwinder Sahib what they would do with the packet upon which they told me that some big seizure would be shown in Chandigarh. This
incident occurred on two occasions, but I can not correctly whatever was remember money to the date. Many in a the
times, raids,
was
recovered Mohan
given
Saji
through
Balwinder Kumar Superintendent-----------.
66
Record shows that when Naseeb Chand
and
Naveen Kumar were first produced before Magistrate, they did not make any retraction of the disclosure statement nor complained of any threat, coercion, force or duress by NCB. It was not before 21.5.09 that application was moved by Naseeb Chand for
retracting from his statement u/s 67 of the Act. Accused Naveen moved the application for retraction on 28.3.09. in The observations Lal Vs. of Hon'ble of Supreme case the
Court
Kanhaiya would,
Union
India's apply to
(supra)
therefore,
squarely
instant case.
67
It has been emphasized that the retraction
should be made at the earliest point in time. What is important is whether the statement made by the person concerned is made during the inquiry prior to his arrest or after he has been formally charged with the offence and made an accused in respect
thereof. If the statement is made by the accused at a time when he was not under arrest, the bar under
60
Sections 24 to 27 of the Evidence Act, would not operate nor would the provisions of Article 20(3) of Constitution be attracted. It is only after a person is placed in the position of an accused that the bar imposed under the aforesaid provision will come into play. It has been held in Pon Adithans Vs. Deputy Director, NCB, Madras 1999(3) RCR (Criminal) 499
that even if a peson is placed under arrest and thereafter makes a statement which seeks to
incriminate him, the bar under Article 20(3) of the Constitution would not operate against him if such statement threat was or given voluntarily and if and without any by
compulsion
supported
corroborating evidence.
68 statement recorded formally
As Ex
discussed P-9 of his of
before, accused arrest the
the Naseeb
confessional Chand he was was
before charged
and
before No
offence.
formal
application was moved for retracting the statement till next two months. Accused Naveen was arrested on 14.3.09, five days after recording of his statement Ex PW18/H on 9.3.09. Before his arrest, he could not be under any threat or duress. He moved application for retraction only on 28.3.09. No order on the
application of accused Naseeb Chand and Naveen Kumar was passed, therefore, there is no reason for the court to ignore the confessional statement under
Section 67 of the Act. doubted for the mere
The statements cannot be reason that no independent
witness was associated. It is
common knowledge
61 that independent persons
NCB vs Balwinder Kumar & Ors. are always reluctant to
join such type of investigations for the fear of inviting wrath of the accused or for the fear of having to appear in courts time and again.
69
In
M.
Prabhulal
Vs.
Assistant
Director,
Directorate of Revenue Intelligence (2003)8 SCC 449, the accused did not make whom any they or complaint were torture. recorded before produced It u/s was 313
Magistrate complaining only when
before of any
harassment
their
statement
was
Cr.P.C that a vague stand for the torture was taken. Under the circumstances, statement The it cannot were was be held held that to the be made
confessional involuntary.
statements
voluntarily
and could be made the basis of conviction.
70 (2005)11
In State (NCT of Delhi) Vs. Navjot Sandhu SCC 600, the Hon'ble Supreme Court
observed:A retracted confession may form the legal
basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without
corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or
prudence that under no circumstances can such a conviction be made without corroboration, for a court may, in a particular case, be convinced
62 of the absolute truth
NCB vs Balwinder Kumar & Ors. of a confession and
prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted
confession, unless the court is satisfied that the retracted confession is true and
voluntarily made and has been corroborated in material particulars.
71
Hon'ble
Supreme
Court
held
in
Kanhaiya
Lal's case (supra) held that a court may take into account the retracted confession, but it must look for the reasons behind making of the confession as well as for retraction and must weigh the two to determine whether the retraction affects the
voluntary nature of the confession or not. Further, it is for the court to decide whether to use the retracted confession or not, but all the same, the courts do not normally act upon a retracted
confession without finding some other evidence as to the guilt of the accused. Thus, the legal position which emerges is that retracted confession can be relied upon if it is corroborated and the court is convinced of its absolute truth.
72
The Indian Evidence Act nowhere provides
that if the confession is retracted, it cannot be taken into consideration against co-accused or
confessing accused. The amount of credibility to be attached to a retracted confession, however, would
63 depend upon the
NCB vs Balwinder Kumar & Ors. circumstances of each particular
case. On this basis, it is now to be seen whether the retracted confessions Ex P-9 and Ex PW18/H are voluntary whether and the true. It will have then be considered full and
confessions
received
strong corroboration in material particular both as to the crime and the connection of co-accused with the crime.
73
Except for mere allegations of threat and
duress by accused Nasib Chand and Naveen, there is nothing on record to even prima-facie suggest that accused Naseeb Chand or Naveen Kumar were compelled under threat by the NCB officials to make the
statement Ex P-9 and Ex PW18/H. No complaint of any threat, force, torture was ever made at the earliest point of time by accused Naseeb Chand or Naveen
Kumar. Had the Intelligence Officer indeed resorted to threat and duress is to no extract reason the why confessional accused Saji
statements,
there
Mohan and Balwinder Kumar would have been spared. The statements of accused Saji Mohan and accused
Balwinder Kumar which are not inculpatory lead the court to the conclusion that no threat, force or coercion was exercised while recording Ex P-9 and Ex PW18/H. On the applications moved by accused Naseeb Chand and Naveen Kumar retracting the confession, no order was passed thus, to my mind, the retraction
of the confessional statement is an afterthought and it is the earlier statements Ex P-9 and Ex PW18/H which should be believed.
64
74
Ample corroboration to the statement
Ex P-9 can be had from the evidence adduced by the prosecution. Prosecution examined Vijay Kumar posted as Sepoy in NCB, Jammu Zonal Unit, Jammu as PW-8 who affirmed that accused Naseeb Chand was a source of information to BSF and he used to come to G-Branch of BSF Camp to provide information. PW-10 Virat Dutt Chaudhary, Assistant Commissioner, Customs also
affirmed that Naseeb Chand was an Informer of Custom and was introduced to him by inspector Vijender
Singh. Statement of accused that in May, 2008, C. Vijay Kumar of of introduced NCB, PW-8 JZU him is to Saji Mohan, Zonal by Saji
Director statement
also who
corroborated that
Vijay,
deposed
Mohan, Zonal Director, NCB, Jammu had asked him to provide an Informer, so, when he met Naseeb Chand in the market of Jammu, he requested him to come to office of NCB as Zonal Director wanted to meet him and on his asking, Naseeb Chand came to office of NCB, though he could not obviously tell what
transpired between Saji Mohan and Naseeb Chand.
75 statement
Further, of Naseeb
it
is
in that
the after
confessional the meeting
Chand
with Saji Mohan, C. Vijay again met him and told him that he should meet Saji Mohan in house no. 80, Sector 2, Chandigarh. C. Vijay as PW-8 has affirmed that when he was away to Srinagar on operation duty, he learnt about call from NCB, Chandigarh and was informed about it by Sepoy Tilak Raj. After 2-3
65
days, when Naseeb Chand came to the office of Jammu, he informed him about message from NCB office,
Chandigarh and requested him to go there and met the NCB officials. The fact that in cross-examination, Sepoy Vijay admitted that Sh. Gill was dictating his statement on his behalf and he signed the statement, is not enough to wipe out his testimony as he has made it clear that he had stated truth in his
statement Ex P-12 which was known to him.
76
According to the confessional statement of
Naseeb Chand, accused Saji Mohan handed over to him ten packets of 10 kg Heroin on 26.8.08 regarding which he had already informed Inspector Baljinder Singh Custom Department and he along with Baljinder Singh reached Amritsar with the contraband at about 12 to 1 a.m. On 26/27.8.2008. He stayed in the
house of Baljinder Singh in night on next day and on 29.8.2008, he came to know that Baljinder Singh had shown 10 kg Heroin as unclaimed seizure on
27.8.2008.
77
PW-10
Virat
Dutt has in
Chaudhary, his sworn
Assistant testimony
Commissioner,
Customs
stated that regarding the seizure of Heroin which was effected in Nasib on the the Chand intervening provided that He also the night of
26/27.8.2008, information smuggled at
confirmed would that be ten
24.8.2008 border.
Heroin stated
packets of Heroin were recovered which were of 1 kg each and thus the total quantity of Heroin was 10
66
kg. He identified Nasib Chand present in the court as the person who which provided emerge the from information. the evidence The of
circumstances
Virat Dutt Chaudhary, leave no doubt in the mind of the court that the 10 kg Heroin contained in ten packets Chand Nasib delivered the by accused on Saji 26.8.08 to Mohan which the to Nasib
in
afternoon took to
accused of
Chand
Amritsar
house
Inspector Vijender at about 12/1 a.m. on 27.8.08 was the same which the Customs Department projected as 'unclaimed seizure' from two unknown persons at
about 2.30/3 a.m on 27.8.08 in the area of B.O.P., Ramkot.
78
Though
both
PW-10
Virat
Dutt
Chaudhary,
Assistant Commissioner, Customs Amritsar and PW-17 Pushpdeep Singh, Inspector Customs, Amritsar have
admitted in their cross-examination that before the seizure, no custom official ever came to NCB office, Chandigarh and the seizure of 10 kg Heroin was
independent seizure of department of Custom, it is apparent from the proved circumstance that they are not coming forward with a truthful account of
recovery of 10 kg Heroin.
79
Since
Nasib
Chand
was
an
informer
of
Customs and was giving other valuable information regarding gold and contraband, the Custom officials were obviously reluctant to name him as the person who had provided of Virat them Dutt 10 kg Heroin. that It is in the
evidence
Chaudhary
for
67
information provided by Nasib Chand, for the first two months, he had also financially helped him from secret funds. Nasib Chand having got the recovery effected, he could not be booked by them as that would have resulted and in loss of future valuable Custom
information
recoveries.
Moreover,
the
Officers having shown the recovery of 10 kg Heroin as unclaimed seizure in their record, were in no position to say that the recovery was in fact made from Nasib Chand who had collected it from Saji
Mohan. The argument, of learned SPP for the NCB that unclaimed seizures are often shown by such agencies to claim appreciation and reward for their work, is
good enough to convince a prudent mind. In their over-zealousness to show more recoveries and earn commendations in service, such type of practices are often resorted to by Investigating agencies who at the same time do not want to block their source of information and further recoveries by resorting to legal course and disclosing the identities of such sources.
80
It
is
in
evidence
of
PW-10
Virat
Dutt
Chaudhary and PW-17 Pushpdeep Singh that two parties comprising of 15 custom officials were constituted to hold naka near B.O.P., Ramkot. PW-10 Virat Dutt
Chaudhary also stated that at about 2.30/3 a.m. on 27.3.08, two persons coming on scooter from the side of BSF picket, were challenged and those persons
lost balance. They fell down with their belongings, after which taking benefit of darkness, they ran
68
towards BSF picket and they could not fire at them. It does not appeal to logic that 15 persons of a force, who already had information of smuggling of huge quantity of Heroin would not be able to
apprehend two persons who had fallen from scooter with their belongings. Moreover, if the persons on the scooter had sufficient time to run away on the scooter, they would not leave the valuable
contraband behind so that the custom officers may conveniently recover it. The manner of recovery from two unknown is persons not as projected at by the customs not
official
convincing
all
and
does
appeal to conscience of the court. It is obvious that 10 kg Heroin which was brought by accused Nasib Chand from Chandigarh in the intervening night of 26/27.8.2008 at about 12/1 a.m. was soon thereafter shown by the customs department as unclaimed seizure to add credit to their record. PW-10 Virat Dutt
Chaudhary and PW-17 Pushpdeep Singh have knowingly and wilfully given false evidence in judicial
proceedings to save their skin and deserve to be proceeded against.
81
Summing
up,
the
retracted
statement
of
Nasib Chand is to be believed being corroborated by the following set-of circumstances:(i) an Statement of Nasib Chand that he was informer of BSF, Customs & Central
Excise, who had been making payments to him is corroborated by the statement of PW-8 Vijay Kumar, who stated that Nasib
69
NCB vs Balwinder Kumar & Ors. Chand was source of information of BSF and he came to G-branch of BSF Camp to provide information. Assistant PW-10 Virat Dutt Chaudhary, also
Commissioner,
Customs
deposed that Nasib Chand was informer of Customs and for two months he had been
helping him financially from secret funds; (ii) Statement of Nasib Chand that in May, PW-10 C. Vijay introduced him to
2008,
Saji Mohan, Zonal Director of NCB, JZU, is corroborated by statement of PW-8 Vijay
Kumar, who stated that Saji Mohan asked him to provide informer, so when he met Nasib Chand in the market of Jammu, he
requested him to go to the office of NCB, as Zonal Director wanted to meet him on which Nasib Chand came to the office of NCB; (iii) Statement of Nasib Chand that after
first meeting with Saji Mohan, C. Vijay again met him and told him to meet Saji Mohan in house no.80, Sector 2,
Chandigarh, is corroborated by C. Vijay, who stated that Sepoy Tilak Raj informed him in Srinagar about the call from NCB, Chandigarh and after 2-3 days when Nasib Chand came to the office the to of Jammu, he and
informed requested
him him
about to go
message NCB
office,
Chandigarh and meet NCB officials; (iv) Statement of accused Nasib Chand that
70
NCB vs Balwinder Kumar & Ors. on 26.8.08, Saji Mohan handed over to him 10 kg Heroin for sale in open market is corroborated by the fact that 10 kg Heroin was recovered by the customs department; (v) Statement of Nasib Chand that 10 kg
Heroin was in ten separate packets of 1 kg each, is corroborated by the evidence of PW-10 and PW-17 that the unclaimed seizure of 10 kg Heroin shown by the customs
department was also in ten packets of 1 kg. each; (vi) Statement of Nasib Chand that he
reached house of Inspector Vijender in the night of 26/27.8.2008 between 12 to 1 a.m, is corroborated by the circumstance that immediately department Heroin at thereafter, had shown am the of customs 10 kg
recovery on
2.30/3
27.8.2008
from
unknown persons; (vii) Statement by of Nasib Chand is of also PW-10
corroborated
the
statement
Virat Dutt Chaudhary, who stated that the informatioin that Heroin will be smuggled at the border, in the intervening night of 26/27.8.08 and there will be a transaction of Heroin was given by none else than
Nasib Chand. (viii) Statement Inspector senior of Nasib Singh Chand spoke Dutt to that his
Vajinder
officer
Sh.Virat
Chaudhary,
A.C. Customs & Excise that he would bring
71 drugs from an is of
NCB vs Balwinder Kumar & Ors. official of Narcotics by the
department statement that Heroin
corroborated Virat of Dutt
PW-10
Chaudhary of from
information at the
transportation was received
border
Nasib Chand.
82 number to
The above circumstances are too many be termed as mere conincidences.
in
Thus,
though the confessional statement of Nasib Chand Ex P-9 recorded u/s 67 of the Act has been retracted, the same can be relied upon by the court in view of the corroboration it receives from other evidence on record discussed above and for the reason that the retraction after two months, appears to be an afterthought. As per settled law, conviction can be based on retracted confession provided it is voluntary, convincing and corroborated. The court in this
particular case is absolutely convinced by truth of the confessional statement Ex P-9 which is otherwise corroborated relied upon. in material particulars and must be
83
The statement of Naveen Kumar Ex pW18/H
that in November, 2008, on two occasions, he visited the office in the evening hours where on directions of accused Saji Mohan, he and Balwinder Kumar mixed lime in the lots of contraband, though retracted, the retraction does not affect the value of the
confession as there is cogent substantive evidence
72 corroborating the statement.
NCB vs Balwinder Kumar & Ors. Substantive evidence,
however, does not mean substantial evidence. It is the quality of the evidence that matters not the quantity.
84
Following
is
the
list
of
cases
of
Chandigarh Zonal Unit, NCB, Chandigarh relating to the unclaimed seizures of Heroin which shows the
quantity of Heroin seized, date of seizure, initial percentage percentage of diacetyle sampling morphine during (DAM) and the
after
re-investigation.
Investigating Officer took samples from the parcels in NCB godown after obtaining orders of the
respective courts and got the samples re-tested. The reports of re-testing received from CRCL, New Delhi are duly proved as Ex PW-4, Ex PW18/BB to Ex PW18/BS and the reports of the chemical examiner are Ex P-4, Ex P-23 to by Ex P-47. The said SC reports Mathur, were duly
proved
examining
PW-11
Chemical
Examiner and PW-12 S.K. Mittal, Chemical Examiner, Gr-II, CRCL, New Delhi.
CASES OF CHANDIGARH ZONAL UNIT,NCB,CHANDIGARH. Sr. Crime Drug Qty.of Drug initial testing 1 1/2007 Heroin 05 56.00 13.3 -42.7 dt.27.3.07 2 2/2007 Heroin .690 38.58 1.7 -36.88 (inkg) in %of DAM %ofDAM after resampling Variation in %of DAM
No. No/Dt. Seized
dt.25.4.07.
73
3 3/2007
Heroin
08
A-140.9 B-1 55.5
C-1 79.8 C-2 26.1 C-1 2.8
+38.9 -29.4 +2.8
dt.3.5.07. 4 5/2007 Heroin 16
Negative Twice
dt.19.7.07 5 6/2007 Heroin 02
C-II 31.7 +31.7 53.0 -24.9
77.9
dt.15.8.07. 6 7/2007 Heroin 15 A-1 15.4 B-1 36.9 03 60.3 C-1 30.7 C-2 18.8 21.5 +15.3 -18.1 -38.8
dt.18.9.07 7 3/2008 Heroin
dt.16.2.08. 8 13/2008 Heroin dt.8.10.08. 9 16/2008 Heroin dt.30.12.08 CASES OF JAMMU ZONAL UNIT, NCB, JAMMU 10 03/2008 Heroin dt.15.5.08 60 A-1 44.8 B-1 42.8 C-1 56.9 A-3 55.5 B-3 40.1 C-3 63.4 +10.7 -2.7 +6.5 06 78.11 41.9 -36.21 09 84.3 16.3 -68.0
85
It
has
been
argued
that
there
was
possibility of variation of percentage in diacetyle morphine as hydrolysis of diacetyle morphine could take place depending on the percentage of water,
diluant, additives etc. and in this context, crossexamination of PW-11 S.C. Mathur and PW-12 S.K.
Mittal was referred. There may be a possibility of slight decrease in the percentage of diacetyle
morphine on account of hydrolosis, but the marked decrease of the percentage in nine samples at
sr.no.1 to 9 cannot be possible by hydrolysis. In
74 case no.13/2008 dated
NCB vs Balwinder Kumar & Ors. 8.10.2008 at sr.no.8, 9 kg
Heroin was seized which tested positive for DAM and initially percentage of DAM was 84.3, but on retesting the percentage decreased to 16.3. It cannot be believed at all that such marked decrease in the percentage of DAM would be a result of hydrolysis. Moreover, it cannot be accepted that samples in nine cases would have deteriorated due to hydrolysis.
Further, the court cannot loose sight of the fact that some of the samples of Heroin, on re-testing, showed a marked increase in the percentage of
diacetyle morphine which could not be explained by ld. defence counsel. This fact cogently establishes that the samples were tampered with. In case
no.05/07 dated 19.7.07, 3 packets of a markin cloth and three polythene packets were found deficient
which further favours prosecution case of tampering with the contraband stored in NCB godown. Statement of Naveen Kumar regarding mixing of neutral
substance by him and Balwinder Kumar in the lots of Heroin in the office on the directions of Saji Mohan thus finds corroboration report evidence and from there to the is rely chemical sufficient upon the
examiner's substantive
available
confessional statement.
86
Section
27
of
the
Indian
Evidence
Act
embodies the doctrine of confirmation by subsequent events. The facts investigated and found by the
Investigating agency consequent to the information disclosed by accused Navin amount to confirmation of
75 that piece of evidence.
NCB vs Balwinder Kumar & Ors. The correctness of
information given by accused Naveen Kumar vide his statement step in Ex PW18/H is confirmed The fact of by a subsequent in of
investigation. i.e.
discovered percentage
investigation
reduction
diacetyle morphine in several unclaimed seizures of sizable quantity of Heroin are directly relatable to the information. Since facts were actually
discovered in consequence of Ex PW18/H, it affords a guarantee of truth of that part of his statement.
87
Where sufficient materials are brought on
record to lend assurance to the court in regard to the truthfulness by of the confession independent made which is
corroborated
several
circumstances,
even a retracted confession may be acted upon. Refer to State of Tamil Nadu Vs. Kutti @ Luxmi Narsimhan 2001 Crl.L.J. 4168, Bhagwan Singh Vs. State of M.P. 2003 Crl.L.J. 1262 and Sarwan Singh Rattan Singh Vs. State of Punjab. The circumstance discussed above in the opinion of the court lend sufficient credence to the prosecution case.
88
Considering
the
proved
circumstances
emerging on record, the court is convinced of the truthfulness of the confessions and that the
retractions thereof are an afterthought. There need not be corroboration in respect of each and every material particular. Broadly, there should be
corroboration so that confession taken as a whole fits into the facts proved by other evidence. Law
76
does not require that each and every circumstance mentioned in the confession regarding complicity of the accused must It be separately suffice is and that independently the general by some
corroborated. trend of the
would
confession
substantiated
evidence which would tally with what is contained in the confession. The confessions Ex P-9 and Ex PW18/H in our case meet the test.
89
The question which now arises is whether
the confessional statement Ex P-9 of accused Nasib Chand and Ex PW18/H of accused Naveen Kumar can be admitted in evidence against accused Saji Mohan. reads
Section 30 of The Indian Evidence Act, 1872 as under: 30. Consideration of proved
confession jointly more for
affecting person making it and others under trial for same offence.- When persons than one are being tried
jointly
the same offence, and a confession made by one of such persons other of such take into affecting himself and some
persons is proved, the Court may such confession as
consideration
against such other person as well as against the person who makes such confession.
90 Evidence
Indisputably, Act, 1872 in
Section the
30
of
the of
Indian present
situation
nature, can be taken aid of. Learned defence counsel has referred to Kojja Sreenu Vs. State of A.P. 2005 Supreme Court Cases (Cri) 853, Suresh Budharmal
77
Kalani Vs. State of Maharashtra 1998 Supreme Court Cases (Cri) 1625 in support of his argument that the confessional statements were not admissible against accused Saji Mohan. In State of Maharashtra's Suresh Budharmal Kalani Vs. case (supra), one of the
accused was discharged from the case and was not facing trial. It was in those circumstances that
Hon'ble Supreme Court held that confession of coaccused could not be used against other co-accused. The judgment in Kojja Sreenu Vs. State of A.P. Was also rendered on entirely different set of facts and the confession involving co-accused not being
corroborated was not relied upon.
91
It has been held in Ram Parkash Vs. State
of Punjab 1959 Crl.L.J. 90 that:That a voluntary and true confession made by an accused though it was subsequently retracted by him, can be taken into consideration against a co-accused by virtue of Section 30 of the Indian Evidence Act, but as a matter of
prudence and practice the court should not act upon it to sustain a conviction of the co-
accused without full and strong corroboration in material particulars both as to the crime and as to his connection with that crime.
92
The confessions of co-accused Naveen Kumar
and Nasib Chand Ex PW18/H and Ex P-9 respectively, though retracted, have been held to be voluntary and true and are substantially corroborated by the
78
circumstances emerging on record, lending adequate assurance to the court that it is safe to rely upon them.
93
Learned
defence
counsel
has
also
relied
upon U.O.I. Vs. Bal Mukund & Ors. 2009(2) RCR (Crl.) 574 (SC), Noor Aga Vs. State of Punjab & anr. 208(3) RCR (Crl.) 633 (SC), Francis Stanly Vs. Intelligence Officer, NCB (2007)2 Supreme Court Cases (Cri) 618, arguing that in view of proposition of law settled therein, the retracted confessional statements of
co-accused can not be made the basis of conviction of accused Saji Mohan. Whether or not a confessional statement in the given set of facts of a case is found to be voluntary, free from pressure, safe to rely upon would depend upon the peculiar
circumstances of the case and no hard & fast rule can be laid down as to whether a particular
confessional statement should be accepted or not. As observed by Hon'ble Supreme Court in Navjot Sandhu's case (supra), it is not an inflexible rule that in no circumstances, conviction can be made on such
retracted confession without corroboration. A court may in a particular of case, be and convinced prepared of to the act
absolute
truth
confession
upon it without corroboration--------------------.
94 the
In the peculiar circumstances of the case, court is satisfied that the retracted
confessional statement Ex P-9 and Ex PW18/H are true and voluntarily made and have been corroborated
79 broadly. Naveen The Kumar Kumar reports confessional against gains of
NCB vs Balwinder Kumar & Ors. statement Saji from of accused and
accused strength
Mohan the
Balwinder analysis
chemical the
the
samples.
Subjecting
confessions to closest scrutiny, the court is of the opinion that they can be relied upon by calling
Section 30 of Indian Evidence Act in aid.
95 argued
Learned that one
counsel tainted
for piece
accused of
vehemently i.e.
evidence of the
retracted could not
confessional corroborate
statements another
accused evidence
tainted
because if this is allowed to be done, then the very necessity of corroboration is frustrated.
96 doubt in
The a
standard criminal
of case
proof does
beyond not
reasonable absolute
mean
proof. There cannot be a criminal case with cast iron perfection. Hon'ble Supreme Court has
elaborated meaning of the word 'proof'in M. Narsinga Rao Vs. State of Andhra Pradesh 2001(1) RCR
(Criminal) 95 (SC) as under:The word proof need be understood in the sense in which it is defined in the
Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters
before it, the Court either believes it to exist, or consider its existence that a prudent man ought, so probable the
under
circumstances
of the particular case, to act
80
NCB vs Balwinder Kumar & Ors. This is
upon the supposition that it exists.
the definition given for the word proved in the Evidence Act. What is required is
production of such
materials on which the Court supposition
can reasonably act to reach the
that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard the supposition is required for reaching that of a prudent man
acting in any important matter concerning him. Fletcher Moulton, L.J. In Hawkins V. Powells Ltd. 1911(1) K.B.
Tillery Steam Coal Company 988 observed like this: Proof does not mean
proof
to
rigid
mathematical
demonstration, because that is
impossible; it must mean such evidence as would induce a reasonable man to come to a
particular
conclusion.
The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inference to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the likely
existence of any fact which it thinks
to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business visa-vis the facts of the particular case. The discretion is clearly envisaged in Section
81
114 of the Evidence Act.
97
The court, from the evidence on record, is
convinced of the truth of statements Ex P-9 and Ex PW18/H which can be acted upon having regard to the common course of natural events, human conduct visa-vis the facts of the case.
98
The
3rd
point
for
determination
by
the
court is:Whether prosecution has proved beyond
reasonable doubt that accused Balwinder Kumar, then Superintendent, NCB, Chandigarh and Godown Incharge, NCB, Chandigarh connived and
conspired with accused Saji Mohan, Devinder Singh and Naveen Kumar in pilfering Heroin from unclaimed seizures in NCB godown at
Chandigarh.
99
It is not disputed that at the relevant
time, i.e. from 14.2.07 to 31.12.08, it was accused Balwinder Kumar, Superintendent, who was Incharge of Godown, NCB, Chandigarh where case property relating to unclaimed seizures was stored as per the details mentioned in para 84 of the judgment. The scientific evidence afforded by chemical examiner reports on re-test of the samples shows that there was marked variation in the percentage of diacetyle morphine in the samples of Heroin. Eight samples have shown a marked decrease while four have shown an increase in
82 the percentage. before, This is
NCB vs Balwinder Kumar & Ors. circumstance sufficient to by itself, that as the
discussed
hold
packets of the unclaimed seizures kept in NCB godown were tampered with. Balwinder Kumar being Godown
Incharge cannot escape from the criminal liability attached to such act. The marked variation in the percentage of diacetyle morphine in so many samples is not possible the by hydrolysis can and increase in no
circumstances,
percentage
unless
the parcels are tampered with. Balwinder Kumar is, therefore, to be held guilty for pilfering Heroin from the case property of unclaimed seizures lying in Chandigarh Zonal Unit, NCB. Since Ex PW18/H has been believed, Saji the Mohan, connivance then and conspiracy Director, of
accused
Zonal
NCB,
Chandigarh, is also established.
100
There is no evidence regarding involvement
of accused Devinder Singh in the pilferage from the unclaimed seizures lying in says the NCB godown. Even his the
confessional pilferage.
statement Therefore,
nothing charge of
about
pilferage
against him is not proved.
101
So
far
as
accused
Balwinder
Kumar
is
concerned, possession of contraband by him in his official capacity was authorized, but the moment it was pilfered for extraneous purpose, his possession became illegal and punishable u/s 21 of the Act. Since accused Saji Mohan is proved to have delivered 10 kg Heroin to Nasib Chand on 26.8.08 at
83 Chandigarh, the source
NCB vs Balwinder Kumar & Ors. of contraband being
established, which was from the unclaimed seizures lying in NCB godown, Chandigarh, it is proved by circumstances from NCB that the 10 kg Heroin with was the pilfered aid and
godown,
Chandigarh
connivance of Balwinder Kumar.
102
The fourth point for determination is:Whether prosecution has proved beyond
reasonable doubt that on 26.8.08, in the area of Chandigarh, accused Saji Mohan delivered 10 kg Heroin to accused Nasib Chand for sale in open market?
103
Since the retracted confessional statement
Ex P-9 of accused Nasib Chand well corroborated by cogent circumstances and evidence is to be believed, as discussed before, that accused Saji it is established beyond doubt Mohan delivered 10 kg Heroin
pilfered from godown of NCB, Chandigarh on 26.8.08 to Nasib Chand for sale in open market.
104 statement
Corroboration to Ex P-9, the confessional of accused Nasib Chand is also in
connivance with his subordinates had been pilfering Heroin from the case property of unclaimed seizures lying in NCB godown, Chandigarh. The source of 10 kg contraband which he delivered to accused Nasib Chand is, therefore, established.
84 105
NCB vs Balwinder Kumar & Ors. Conspiracy is seldom an open affair. It
is proved by circumstantial evidence. Existence of conspiracy and its object has to be inferred from the circumstances and conduct of the accused. The conspiracy proved must form a chain of events from which guilt the of only the irresistible accused can conclusion safely about be the
drawn.
Surrounding circumstances, subsequent and antecedent conduct among other factors constitute the relevant material from which inference of conspiracy can be drawn. satisfy The that well proved Saji circumstances Mohan being on the record Zonal
accused
Director, NCB Zonal Unit, Chandigarh conspired with his subordinate Balwinder Kumar, Superintendent,
NCB, Chandigarh Zonal Unit to pilfer Heroin from the unclaimed seizures lying in NCB godown. The charge of conspiracy is also thus fully established against accused Saji Mohan and Balwinder Kumar.
106
The fifth point for determination is:Whether complainant is duly authorized Officer u/s 36-A(1)(d) of the Act?
107
It has been argued that PW-18 Harcharan
Singh Gill was required to produce an authorization by the Central Government or State Government for filing the complaint. As no such authorization was proved, Section 36(A)(1)(d) being violated, no
cognizance of the offences could be taken.
108
Ministry of Finance, Department of Revenue
Notification S.O. 763(E), dated 27th September, 1989
85 provides:S.O. 763(E).In
exercise
of
the
powers
conferred by clause (d) of sub-section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby authorises the officeers of and above the rank of Inspector in the Department of Customs, Central Excise, Narcotics, Revenue
Intelligence,
Central
Economic
Intelligence
Bureau and the Narcotics Control Bureau under the Ministry of Finance, Government of India for filing of complaints relating to an offence under the said Act before Special Courts.
109
It is in the cross-examination of PW-18
that he was on deputation in NCB from his parent department CISF and his rank in CISF was Inspector Executive. Thus, in view of notification reproduced above, it cannot be said that the complainant was not duly authorized to file the complaint and no cognizance taken. of the offences under the Act can be
110
From on
the record,
chain it must Zonal
of be
circumstances concluded of that NCB,
established accused
Saji
Mohan,
then
Director
Chandigarh in connivance with Balwinder Kumar, then Superintendent and Godown Incharge, NCB, Chandigarh pilfered Heroin from packets of unclaimed seizures of Heroin lying in NCB godown, out of which 10 kg Heroin was given to Naseeb Chand on 26.8.08 in
86 Chandigarh for sale in
NCB vs Balwinder Kumar & Ors. open market. Accused Saji
Mohan, Naseeb Chand and accused Balwinder Kumar are, therefore, held guilty and convicted u/s 21(c) of NDPS Act. It is also well established on record that accused Saji Mohan and accused Balwinder Singh had conspired to pilfer Heroin from unclaimed seizure lying in NCB godown, they are to be convicted u/s 29 of NDPS Act, 1985 as well. accused Naseeb Chand Ex Disclosure statement of P-9 proves that before
taking delivery of 10 kg Heroin from accused Saji Mohan on 26.8.08, he conspired with accused Saji
Mohan to sell Heroin further in the open market and in pursuance of pre-arranged plan, came to take the delivery on 26.8.08. Accused Naseeb Chand is also, therefore, to be convicted u/s 29 of the Act as well for being party to a criminal conspiracy to sell the Heroin in open market. No offence is proved against accused Devinder Pal Singh, so, he is acquitted of the charges framed u/s 8/21 of NDPS Act and Section 29 of NDPS Act.
111
The sixth point for determination is:Whether valid? the sanction order Ex PW19/A is
112
Accused
Saji
Mohan
and
Balwinder
Kumar
have been charge sheeted u/s 59(1), 59(2)(B) of NDPS Act. Sub-section 3 of Section 59 reads as under:-
No Court shall take cognizance of any offence under sub-section (1) or sub-section (2) except on a complaint in writing made with the
87
previous sanction of the Central Government, or as the case may be, the State Government.
113
Though, it is amply proved on record that
accused Saji Mohan and Balwinder Kumar on whom duty was imposed under the Act, wilfully aided, connived at contravention of provisions of the Act, previous sanction prosecution Kumar u/s of of 59 the appropriate Saji has government and been for
accused of the
Mohan not
Balwinder obtained,
Act
therefore, no conviction u/s 59 of the Act can be ordered PW19/A against dated Saji Mohan. is The sanction to vide Ex of
31.12.09
not
prior
filing
complaint, so, cannot be looked into. Accused Saji Mohan and Balwinder Kumar are acquitted u/s 59(1) and 59(2) of the Act for want of prior sanction.
114
So far as accused Naveen is concerned, his
disclosure statement Ex PW18/H speaks that on two occasions, he and Balwinder Kumar, on the directions of Saji Mohan had mixed lime in the lots of Heroin in the office of NCB. Naveen Kumar was, at the
relevant time, P.S.O. of accused Saji Mohan. What was the exact quantity of Heroin pilfered on those two occasions, cannot be gathered from the
disclosure statement. Therefore, even though accused Naveen has been charge-sheeted u/s 21 of the Act, it will be appropriate to convict him u/s 32 of the Act as no punishment for the Act committed by him is separately provided. Accused Naveen Kumar is
accordingly held guilty and convicted u/s 32 of NDPS
88
Act, 1985. There is no convincing evidence of prior meeting of minds and of a common design between
accused Naveen, Saji Mohan and Balwinder Kumar. He (Naveen) is acquitted of the charge u/s 29 of the Act.
115
Before
parting
with
the
judgment,
the
court is compelled to observe that investigation of this case is clearly perfunctory, callous and leaves much to be desired. Prosecution sought to invoke
section 59 of the Act against the accused performing duties imposed by the Act, but no prior sanction of the appropriate government u/s 59(3) of the Act was sought. Ex PW19/A is the sanction order dated
31.12.2009 for prosecution of accused Saji Mohan. The complaint was filed on 10.9.2009 and the
sanction order was not even sought to be produced before 6.1.12. The sanction not being obtained
previous to filing of the complaint, the sanction order Ex PW19/A cannot be looked into. Prime accused were the officers of the same department which is now prosecuting the case against them. Why no effort was made by the prosecuting agency to seek prior sanction against accused Balwinder Kumar, the then Superintendent, then Zonal NCB, Chandigarh, who are and Saji to Mohan, have
Director,
proved
committed serious offences punishable u/s 59 of the Act need not be elaborated further. It is thus
manifest that the Investigating Officer was greatly remiss in performance of his duties.
89 116
NCB vs Balwinder Kumar & Ors. Witnesses PW-10 Virat Dutt Chaudhary and
PW-17 Pushpdeep Singh, being public servants were bound by oath as well as provisions of law to state the truth and not to make any statement which was false and which they knew or believed to be false or did not believe to be true. Both have knowingly and wilfully given false evidence in judicial
proceedings by falsely stating on oath that recovery of 10 kg Heroin on 27.8.08 in the area of B.O.P., Ramkot was an 'unclaimed seizure'.
117
Witnesses PW MMS Bhandari, PW Rakesh Kumar
Roshan, PW HC Vijay Pal Singh and accused Balwinder Kumar prepared a false document i.e. Ex P-1 dated 15.5.2008 in as much as the place of sealing and sampling of 60 kg Heroin recovered from Indo-Pak
border on 15.5.2008 was wrongly recorded. Moreover, MMS Bhandari is proved to have taken the signatures of Balwinder Kumar, SI Rakesh Roshan and HC Vijay Pal Singh on 16.5.2008 on back date and mentioned the date as 15.5.2008 in Ex P-1. They fabricated false evidence for the purpose of being used in any stage Virat of Dutt judicial proceedings. and PW-17 Similarly, Pushpdeep PW-10 Singh
Chaudhary
prepared a false document i.e. Ex D-5 by showing recovery of 10 kg Heroin as 'unclaimed seizure',
though in fact Heroin was supplied by accused Nasib Chand. These witnesses have knowingly and wilfully fabricated false evidence for the purpose of being used in judicial proceedings.
90 118
NCB vs Balwinder Kumar & Ors. Following observations of Hon'ble Supreme
Court in State of Punjab Vs. Baldev Singh (1989)3 S.C.C. 977 would be relevant:The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by Investigating agencies during search operatioins and may also undermine respect for law and may have the effect of unconscionably of justice. comprising That cannot the be
administratioin permitted.
119
It is, therefore, necessary and expedient
in the interest of justice that an inquiry should be made into the offence u/s 193 I.P.C which appears to have been committed. separately of Section A complaint being 340 in writing under against is, the the
therefore, provisions witnesses.
made
Cr.P.C.
120 shall be
Convicts heard
are on
taken
into of
custody. sentence
They on
the
quantum
11.3.2013.
Pronounced: 8.3.2013.
Shalini Singh Nagpal, Special Judge, Chandigarh.
91 Present: Sh.Kailash NCB. Chander, Special
Public
Prosecutor represented with with with
for by
Convict Saji Mohan in custody Ms.Sarabjit Kaur, Advocate. Convict Balwinder Kumar Sh.Rabindera Pandit. Convict Naveen Kumar Sh.Sandeep Kumar. Accused Naseeb Chand Sh.Rabindera Pandit. in in in
custody custody
Counsel Counsel Counsel
custody
QUANTUM OF SENTENCE. O R D E R: This order be treated as part of the judgment. 2 I have heard learned SPP for NCB and
learned defence counsel on the point of sentence. 3 Convict Saji Mohan stated that he was a
Veterinary doctor by profession, son of an Ex-Army Officer, selected as IPS in the year 1995 and had unblemished service record. During his service, he remained posted at J&K in the terrorist effected He
area for ten years before joining at Chandigarh.
was awarded President Gallantry Award and Government of India assigned him to UNO for two years. He had aged ailing parents and was the only married son having wife and two minor children. His younger son was autistic and there was no other male member in the family. He was the only bread winner in the family and there was no other person to support his parents and his family. He was first offendor and due to conviction, he was likely to loose government service.
Convict Balwinder Kumar stated that he was
92
not a previous convict and was sole bread winner of the family having minor children and wife to
maintain. On account of conviction, he was likely to loose government service. He had been awarded many commendation certificates for performing excellent
duty during his service period. He served the nation as well as society with honesty and dedication. He was a victim of tainted investigation.
Convict Nasib Chand stated that he was an
old, infirm person having heart problem, at the fag end of his life and was not a previouc convict.
6 married
Convict Naveen Kumar stated that he having wife, old ailing parents and
was one
minor child. He was the only bread winner of the family and there was no other person to support his parents and his family. He was first convict. Due to conviction, he was likely to loose the government service.
All
convicts
and
their
counsels
have
prayed for lenient view on the quantum of sentence.
Learned counsels for convicts Saji Mohan
and Balwinder Kumar have, in addition, asserted that no recovery of contraband was effected from
possesison of either Saji Mohan or Balwinder Kumar who earned several commendations they during their minimum
service sentence.
tenure.
Therefore,
deserve
93 9 Drug trafficking,
NCB vs Balwinder Kumar & Ors. trading and abuse not
only eats into the vital of the society, it also affects the economic growth of the nation and
contributes to delinquency in society. Drug abuse weakens the morale, physique and character of the youth. Drug trafficking is a curse for a developing country like ours which is already encountering
problems like poverty, unemployment and population. Organized crime, drug trafficking and terrorist acts are inter-twined and are no longer distinct
activities. The courts cannot be a silent spectator to the grave situation and offences of the present nature are to be dealt with heavy hands, of course within the parameters laid down under the Act.
10 sharp
Drug trafficking activities have shown a increase over the years and unscruplous
persons dealing in drugs have flourished with the connivance checking officers of officers menace. the of Such the agencies meant for by
the of
offences, Control
committed
Narcotic
Bureau,
brought
into being to control the menace, strike a serious blow to the rule of law. Agencies deployed for
combating drug trafficking have to act within the parameters of law and not as violators of law. The offences committed are aggravated by the fact that they are committed by officers of NCB, under the shield of uniform and authority, in the four walls of a Police Station. Abuse of power by law enforcing officers is a matter of deep concern in a free
society and has to be checked, detected and curbed
94 with strong upon Saji hands. the
NCB vs Balwinder Kumar & Ors. Measure of punishment of the cannot
depend Convict having
social and
status convict
convicts. Kumar
Mohan
Balwinder in
occupied
responsible
positions
Narcotic
Control Bureau, Chandigarh. took advantage of the public office in committing the offence. Therefore, they are liable for higher than the minimum
punishment. 11 Keeping in view the quantity of contraband
involved, the age, character and antecedents of the convicts who are first offendors and all relevant facts and circumstances of the case, the convicts are sentenced as under:Convict Saji Mohan: Section 21(c) : NDPS Act, 1985. To undergo rigorous imprisonment for a period of 13 years and to pay fine of Rs.1,50,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for two years. To undergo rigorous imprisonment for a period of 13 years and to pay fine of Rs.1,50,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for two years.
Section 29 : NDPS Act, 1985.
Fine not paid. Convict Balwinder Kumar: Section 21(c) : NDPS Act, 1985. To undergo rigorous imprisonment for a period of 13 years and to pay fine of Rs.1,50,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for two years. To undergo rigorous imprisonment for a period of 13 years and to pay fine of Rs.1,50,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for two years.
95 Fine not paid. Convict Naveen Kumar: Section 32 : NDPS Act, 1985.
To undergo rigorous imprisonment for a period of six months and to pay fine of Rs.10,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for one month.
Fine
paid.
Convict Naseeb Chand: Section 21(c) : NDPS Act, 1985. To undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,50,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for two years. : To undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,50,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for two years.
Section 29 NDPS Act, 1985.
Fine not paid. 12 The substantive The period sentences of shall run
concurrently.
detention
already
undergone by convicts during trial of the case shall be set off against the substantive sentence under the provisions of Section 428 of the Code of
Criminal Procedure.
13
All the exhibits of the case and the case
property be kept intact and be disposed off as per rules on the subject after the expiry of the period of appeal or revision, if any, filed in this case, or in case of filing of appeal or revision, the result thereof. File be consigned to the record room after due compliance. Pronounced: Shalini Singh Nagpal,
96 11.3.2013.
NCB vs Balwinder Kumar & Ors. Judge, Special Court, Chandigarh.
Public
Prosecutor
for
Accused Naveen Kumar and Devinder Pal Singh on bail with Counsel Sh.Sandeep Kumar. Accused Naseeb Chand on bail with Counsel Sh.K.S. Chaudhary. Defence evidence closed. Written arguments filed. Arguments heard. For orders to come up on 31.1.2013. Shalini S. Nagpal/JSC/30.1.13.
Present: Present: Sh.Kailash NCB. Chander, Special Public Prosecutor for
Accused Naveen Kumar and Devinder Pal Singh on bail with Counsel Sh.Sandeep Kumar. Accused Naseeb Chand on bail with Counsel Sh.K.S. Chaudhary. Vide my separate judgment of even date,
accused have been held guilty and convicted. Case is now adjourned to 4.2.103 for quantum of sentence. Shalini Singh Nagpal/JSC/31.1.13.
Public
Prosecutor represented with with with
for by
Convict Saji Mohan in custody Ms.Sarabjit Kaur, Advocate. Convict Balwinder Kumar Sh.Rabindera Pandit. Convict Naveen Kumar Sh.Sandeep Kumar. Accused Naseeb Chand Sh.Rabindera Pandit. Vide my in in in
custody custody
Counsel Counsel Counsel
custody
separate detailed
order of
even
date, both convicts have been sentenced as under: the convicts are sentenced as under:Convict Saji Mohan: Section 21(c) : NDPS Act, 1985. To undergo rigorous imprisonment for a period of 13 years and to pay fine of Rs.1,50,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for two years. To undergo rigorous imprisonment for a period of 13 years and to pay fine of Rs.1,50,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for two years.
Fine not paid. Convict Balwinder Kumar: Section 21(c) : NDPS Act, 1985. To undergo rigorous imprisonment for a period of 13 years and to pay fine of Rs.1,50,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for two years. To undergo rigorous imprisonment for a period of 13 years and to pay fine of Rs.1,50,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for two years.
Fine not paid. Convict Naveen Kumar: Section 32 : NDPS Act, 1985. To undergo rigorous imprisonment for a period of six months and to pay fine of
99
NCB vs Balwinder Kumar & Ors. Rs.10,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for one month.
Fine
paid.
Convict Naseeb Chand: Section 21(c) : NDPS Act, 1985. To undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,50,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for two years. : To undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,50,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for two years.
Section 29 NDPS Act, 1985.
Fine not paid. 12 The substantive The period sentences of shall run
concurrently.
detention
already
undergone by convicts during trial of the case shall be set off against the substantive sentence under the provisions of Section 428 of the Code of
Criminal Procedure.
13
All the exhibits of the case and the case
property be kept intact and be disposed off as per rules on the subject after the expiry of the period of appeal or revision, if any, filed in this case, or in case of filing of appeal or revision, the result thereof. File be consigned to the record room after due compliance. Pronounced: 11.3.2013. Shalini Singh Nagpal, Judge, Special Court, Chandigarh.

Judgement in The Case Pilferage of Narcotics by IPS Officer

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Judgement in The Case Pilferage of Narcotics by IPS Officer

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1

NCB vs Balwinder Kumar & Ors.

In the Court of Shalini Singh Nagpal Special Judge,Chandigarh.

NCB vs Balwinder Kumar & Ors.

Complaint u/s 8,8(A), 21,29,32(B) & 59(2)

of Narcotics Drugs and Psychotropic Substances Act,

NCB vs Balwinder Kumar & Ors.

Complainant stated that Dr. Saji Mohan, an

NCB vs Balwinder Kumar & Ors.

5 contraband was brought to

NCB vs Balwinder Kumar & Ors. Mumbai. In all he had

Sh.Harcharan 17.2.2009. statements

Thereafter, Harcharan Singh Superintendent

NCB vs Balwinder Kumar & Ors.

NCB vs Balwinder Kumar & Ors.

NCB vs Balwinder Kumar & Ors.

Sh.Harcharan Singh Superintendent recorded

NCB vs Balwinder Kumar & Ors.

returned from meeting, he found that whole sealing

10 process already property. was put completed his and

NCB vs Balwinder Kumar & Ors. packets of Heroin were in

seized sixty packets by NCB officials.

In the same manner, statement of Rakesh

seized sixty packets by NCB officials.

NCB vs Balwinder Kumar & Ors.

Jammu at ground floor including MMS Bhandari, IO.

Superintendent Kumar, Sepoy

meeting in Superintendent's office where all other

NCB vs Balwinder Kumar & Ors.

Statement of N.R. Sharma, Superintendent,

NCB vs Balwinder Kumar & Ors.

Sh.Harcharan Singh Superintendent recorded of Kartar Singh driver on 7.4.09 after

15 Manjeet Singh went to his

NCB vs Balwinder Kumar & Ors. home in Jammu. Next

NCB vs Balwinder Kumar & Ors.

16 recorded C&CE hand. on He

Superintendent Inspector, in his own

Vijender serving that he

Singh, notice along

Superintendent Singh, Inspector

17 at wee hours in of a 27.8.08, plastic Custom and

Dr. Saji Mohan was arrested on 13.8.2009.

18 NCB/CZU godown were taken

NCB vs Balwinder Kumar & Ors. out by Balwinder Kumar

26.8.08 for sale in open market.

To ascertain the pilferage from unclaimed

NCB vs Balwinder Kumar & Ors.

Complainant further stated that in crime

NCB vs Balwinder Kumar & Ors.

Complaint was thus forwarded in the court

A prima facie case under Section 8,21,29

examined by the accused.

Vide order dated 12.12.12

cross-examination on request of accused Saji Mohan.

Intelligence Officer, NCB, Delhi as PW-1, R.C. Bodh,

21 Superintendent, Ram, UDC, NCB, NCB, JZU,

Statements of accused u/s 313 Cr.P.C were

NCB vs Balwinder Kumar & Ors.

Accused Naseeb Chand denied the entire

scape-goat. He had no connection with the accused facing trial.

NCB vs Balwinder Kumar & Ors.

show false pilferage of Heroin.

In defence evidence, accused examined C.