NEW DELHI, MAY 01, 2013: ALLEGATIONS against the appellants were that on 23.11.2005 at around 07.30 P.M., at Bus stop outside New Delhi Railway Station, they were found in possession of 5.022 kg. of Heroin meant to be delivered to an individual. On appreciating the evidence and considering the rival submissions of the parties, the Trial Court held them guilty for committing offence under Section 21(c) NDPS Act and sentenced them to undergo RI for ten years with fine Rs. 1 lakh each.

Being aggrieved, they have preferred appeals before the High Court.

They made the following submissions -

+ Mandatory provisions of Section 50 were not complied with. No reasonable explanation was offered for withholding independent panch witnesses. No such independent witnesses were associated at the time of alleged recovery.

+ It was the duty of the complainant to ascertain the address of panch witnesses to examine them in the Court.

+ The prosecution was unable to prove that the accused travelled in Malwa Express. No attempt was made to ascertain the time when Malwa Express was to arrive at its destination.

+ Statement under Section 67 was recorded under duress. Their signatures were taken on blank papers. The confessional statements were retracted by the appellants at the earliest opportunity. The proceedings were conducted at DRI office. Log book was not maintained and proved.

The Spl. P.P submitted -

+ that there are no good reasons to disbelieve the cogent and reliable testimonies of the official witnesses.

+ Two panch witnesses were associated at the time of recovery of the contraband from the conscious possession of the accused. Bona fide attempts were made to produce them in the Court. However, they could not be served at the address given by them.

+ Section 50 is not applicable as recovery was effected from the ‘baggage'. The confessional statements were never retracted by the appellants.

The High Court observed -

+ The contraband was recovered from the ‘baggage' of the accused persons and not from their person. Under such circumstances, no notice was required to be served or given to the accused persons. [ Jarnail Singh vs. State of Punjab, AIR 2011 SC 964 relied upon]

+ The secret information was received on 23.11.2005 around 06.30 P.M. A raiding party was organised at about 07.30 P.M., the accused were arrested at a Bus stop, outside New Delhi Railway Station at a distance of 3 or 4 km. from the office of the complainant. Apparently, the officials had no sufficient time to arrange independent public witness before proceeding to the spot. Their anxiety was to intercept the culprits at the earliest. Even then before apprehending the accused, they joined Deep Chand and Kuldeep Sharma who were available at the Railway Station. They were not acquainted with the officials. There was no time for them to verify and ascertain their identity. The name and address disclosed by them were believed. No fault can be found on this account with the members of the raiding team. The non-examination of the witnesses, who joined in the investigation per se is not fatal. It is no rule of law but of prudence that public witnesses should be joined. This is insisted so as to lend authenticity and credibility to the search and the recovery that are effected, it is of course not an absolute rule. Though it is desirable to examine an independent witness, in the absence of any such witness, if the statements of the official witnesses are reliable and when there is no animosity established against them by the accused, their version cannot be doubted or discredited.

+ Secret information with DRI officials was that two persons were coming from Punjab to Delhi in Malwa Express and they were carrying a bag consisting of narcotic drug concealed therein. Out of the two, one was a lady wearing purple colour salwar-suit and red sweater, aged around 30 years and other was male, aged 30 to 35 years, medium built and height. With this specific description, DRI officials arrived at New Delhi Railway Station and found that Malwa Express had already arrived. They went to the Bus stop outside New Delhi Railway Station and identified and recognised both the appellants with the bags in their possession. They were taken to DRI office and recovery of the contraband was effected. It is true that the DRI officials did not verify the timings of arrival of Malwa Express. Since the raid was sudden and there was time constraint it was not possible to ascertain the timings of arrival of Malwa Express. The evidence was collected that the appellants had travelled from Ludhiana to Delhi. Railway ticket was recovered from A-2. It was issued in the name of fictitious persons Rajesh and Smt. Razi. The accused did not produce any cogent evidence to deny that they had not travelled from Ludhiana by Malwa Express that day.

+ The Trial Court has found that the confessional statements were not retracted categorically by the accused persons. In the absence of prior animosity or ill-will, DRI officials were not expected to fabricate their confessional statements. Statement under Section 67 NDPS Act is admissible in evidence and can be relied upon by a Court against an accused provided it is found to be made by the accused voluntarily. Even retracted statement can be acted upon as per law if the retraction is found to be the product of some legal advice or after thought etc. The confessional statements recorded under Section 67 contain many personal facts about the accused and their family which are expected to be known only to the accused and not to an outsider/ stranger. These statements were voluntary statements of the accused and can be relied upon without independent corroboration. ‘Raju Premji vs. Customs NER Shillong Unit & Arun Kanungo vs. D.Pakyntein', 2009 Crl.L.J. 3972

+ Contradictions, discrepancies and improvements highlighted by counsel do not affect the core issue of recovery of contraband from the conscious possession of the accused. These do not go to the root of the case to throw away the otherwise unimpeachable testimony of official witnesses. All the contentions raised by the appellants have been dealt with in the impugned judgment and no interference is called for.

Holding that there is no merit in the appeals, the same were dismissed and the conviction and sentence of both the appellants were maintained.

(See 2013-TIOL-342-HC-DEL-NDPS)