By TIOL News Service

CHANDIGARH, APR 17, 2015 : NEARLY two years ago, in March 2013, the Trial Court held Mr Saji Mohan, an IPS officer who was working as Zonal Director, NCB at that time and Mr Balwinder Kumar, who was working as Superintendent, NCB guilty of pilferage of Heroin from the malkhana of NCB, Chandigarh. The Trial Court sentenced both the officers to undergo 13 years of RI and pay fine of Rs 1 ,50,000 /- each.

Both the officers filed appeals before the High Court of Punjab and Haryana.

A recap of the facts:

The appellants apart from Naseeb Chand, are officers of the Narcotics Control Bureau. Naseeb Chand was an informer working for the Central Excise and Customs Department. The prosecution story, briefly put, is that Saji Mohan and Balwinder Kumar, who were Zonal Director and the Superintendent, NCB, Chandigarh, respectively, conspired to and pilfered 10 Kgs. of heroin from the malkhana at NCB, Chandigarh and 30 kgs from the malkhana at Jammu by replacing heroin with slaked lime. Saji Mohan is thereafter alleged to have got in touch with Naseeb Chand, an informer of the Customs Department and handed over 10 Kgs. of heroin pilfered from the malkhana at Chandigarh to Naseeb Chand on 26.08.2008 for sale. Naseeb Chand is alleged to have transported the heroin to Amritsar where he allegedly told PWs 10 and 17 Virat Dutt Chaudhary and Pushp Deep Singh, officers of the customs department of an attempt to smuggle heroin on the intervening night of 27/28.08.2008. The customs department formed a raiding party and detected two persons riding a scooter. The persons on the scooter were asked to stop but made good their escape and in the process dropped 10 packets of heroin weighing 1 kg each. The heroin was shown as an unclaimed seizure by the Customs Department, at Amritsar. The trial Court has concluded that this unclaimed recovery is false and was intended to cover up the pilferage of 10 kgs of heroin handed over to Naseeb Chand by Saji Mohan, from the Malkhana at Chandigarh. The trial Court has also relied upon test reports produced by the prosecution to prove variation in the chemical contents of heroin stored in the malkhana.

The trial court awarded the following sentence to the officers and the informer:

The Petitioners challenged the trial court order on various grounds. It was argued that the prosecution story regarding pilferage from the NCB malkhana at Chandigarh, is belied by the deposition of PW-2 R.C.Bodh, Superintendent, NCB, JZU, Jammu, who has admitted during his cross-examination that the board constituted by Sandeep Mittal, IPS, the Zonal Director to check and personally verify contents of the godown revealed that seals were intact and narcotics stored were in accordance with the weight recorded in the malkhana register. The prosecution has, therefore, failed to prove any pilferage from narcotics stored in the malkhana. The prosecution has not proffered any explanation for its failure to detect or prove any discrepancy in the weight of narcotics or that the seals were found intact and assumes significance as the prosecution alleges that when heroin was pilfered, it was replaced with slaked lime.

After hearing both sides, the High Court held:

+ A perusal of the record reveals that at the time when Naseeb Chand was produced before the Magistrate, he did not record a retraction of his statement. Naseeb Chand retracted his statement, two months later by merely stating that the statement was obtained by coercion and force. A perusal of the application for retraction reveals that Naseeb Chand has not set out the particulars of the acts of force and coercion. An inculpatory statement, which is in the nature of an admission, can be legitimately retracted but such a retraction can only be accepted if it is made expeditiously namely at the time when the accused is produced before the Magistrate or soon thereafter and then also by putting forth credible facts that would indicate, but would not prove force/coercion. The ultimate principle that governs acceptance of a retraction and a consequent discarding of such a statement, is the facts disclosed in a retraction to primafacie suggest coercion, force or manipulation as opposed to absolute proof of such facts. The facts regarding coercion, force and manipulation must be specific and must broadly, if not specifically set out the acts that constitute coercion and force for otherwise it would be near impossible for a prosecution in such cases to succeed and render meaningless provisions in various statues relating to economic crimes and smuggling of drugs. We shall not be misunderstood to have held that in each and every case, a selfinculpatory statement recorded under Section 67 of the NDPS Act has to be accepted or that retractions cannot be accepted. All that we propose to hold is that the final arbiter is the evidence on record i.e. the contents of the statement, the timing of the retraction, the particulars of the allegations of force and coercion and then depending on the fact and circumstances of a case, the judicial perception of a Court while accepting or rejecting the retraction. The facts of the present case do not enable us to accept the retraction as not only was it not proffered when Naseeb Chand was produced before the Magistrate for the first time but the application for retraction is devoid of even rudimentary particulars of any acts that may constitute force or coercion. The mere fact that Naseeb Chand was in the NCB office, is irrelevant as Naseeb Chand is not an ordinary individual. Naseeb Chand is an informer and has been in jail before and, therefore, would not capitulate easily. We, therefore, affirm the opinion recorded by the trial Court that the retraction by Naseeb Chand does not detract from the admission made in his statement recorded under Section 67 of the NDPS Act. At this stage, it would be appropriate to point out that even a retracted statement may, circumstances so permitting, form the basis of a conviction. The trial Court has duly considered various judgments of the Hon'ble Supreme Court on the point of retraction and the consideration of a retracted statement and only thereafter proceeded to rely upon the statement made by Naseeb Chand. We find no reason to differ with the opinion recorded by the trial Court that statement made by Naseeb Chand is sufficient to prove his culpability.

+ Section 30 of the Evidence Act postulates that where more persons than one are tried jointly for the same offence and one such person makes a confession affecting himself and the other accused, a Court may take into consideration such a confession not only against the person making the confession but also against others who have been implicated. The illustration appended below Section 30 of the Evidence Act, makes it amply clear that an admission made by a co-accused being jointly tried against another may be taken into consideration not only against the person making such a confession but also against the other accused being tried with such person. As we have accepted the truth and the evidentiary value of the statement made by Naseeb Chand, have no hesitation in holding that the admission made by Naseeb Chand can and may be read against Saji Mohan to raise an inference of culpability. A perusal of the statement made by Naseeb Chand reveals that it contains a categoric admission that 10 kgs of narcotics were handed over by Saji Mohan to Naseeb Chand for sale. As we have already held that the admission made by Naseeb Chand can be read against Naseeb Chand, we are inclined to invoke Section 30 of the Evidence Act to hold that as Saji Mohan who was tried alongwith Naseeb Chand, the statement made by Naseeb Chand has to be read against Saji Mohan to infer the commission of offences under the NDPS Act

With regard to the issue whether the prosecution has been able to prove the pilferage at malkhama, Chandigarh, the High Court held:

+ A perusal of the details of sampling and testing and the overall facts that emerge from retesting definitely points to a fact that there was large scale pilferage of narcotics stored in the NCB, Chandigarh. The evidence, when read alongwith the statements made by the experts who conducted the test further corroborate the statements made by Naseeb Chand and Naveen Kumar respectively, and conclusively establishes the guilt of the appellants.

Accordingly, the High Court dismissed the revision. The High Court also dismissed the revision by two other officers against whom the trial court ordered initiation of proceedings under Sections 193 and 340 of the Cr.P.C. for their involvement in false seizure of 10 KG heroin.

(See 2015-TIOL-934-HC-P&H-CUS)