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PUNJAB AND HARYANA HIGH COURT
Rajive Bhalla and Surinder Gupta, JJ.
Saji Mohan & Ors. - Petitioner
Versus
Narcotics Control Bureau, Chandigarh - Respondent
CRA-D No. 375, 410-DB of 2013
CRA-S-1472, 1736-SB-2013
CRR-2176, 2180-2013
Decided On : 2.3.2015
(B) Evidence Act, 1872, S.17--Admission--Statement of accused during enquiry--Recovery of Contraband--Statement of accused during enquiry--Statement, having been recorded under Section 67 of the NDPS Act during an inquiry has to be read along with Section 35A of the NDPS Act as sufficient to enable the prosecution to prove culpability without having to prove mens rea, which is even otherwise writ large on the statement recorded under Section 67 of the NDPS Act--Statement made by Accused has to be read in evidence as an admission of the commission of the offences--Narcotics Drugs and Psychotropic Substances Act, 1985, S.35-A & S. 67. (Para 70)
(C) Evidence Act, 1872, S.30--Statement made by co-accused--As a normal rule, the statement of a co-accused, cannot be read against the other but an and others matters exception to this rule is set out in Section 30 of the Evidence Act--When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession, as against such other person as well as against the person who makes such confession--Illustration:- A and B are jointly tried for the murder of C--It is proved that A said-"B and I murdered C"--The Court may consider the effect of this confession as against B. (Para 72)
(D) Narcotics Drugs and Psychotropic Substances Act, 1985, S. 67--Statement of accused--Accused retracted his statement, two months later by merely stating that the statement was obtained by coercion and force--Retraction by accused does not detract from the admission made in his statement recorded under Section 67 of the NDPS Act--Statement made by Accused is sufficient to prove his culpability.
Rajive Bhalla, J. - By way of this order, we shall decide CRA-D-375-DB- 2013, filed by Saji Mohan, CRA-D-410-DB-2013, filed by Balwinder Kumar, CRA-S-1472-SB-2013, filed by Naveen Kumar, CRA-S-1736-SB-2013, filed by Naseeb Chand, CRR-2176-2013, filed by Virat Dutt Chaudhary and CRR-2180-2013, filed by Pushpdeep Singh. The appellants challenge judgment/order dated 08.03.2013 and 11.03.2013, passed by the Additional Sessions Judge, Chandigarh, convicting and sentencing them in the following terms :-
Charge
Sentence
Under Section 21(C) of the NDPS Act, 1985
Saji Mohan and Balwinder Kumar are sentenced to undergo RI for 13 years each and to pay fine of Rs.1,50,000/- each. In default of payment of fine they shall further undergo RI for two years each.
Under Section 29 of the NDPS Act, 1985
Saji Mohan and Balwinder Kumar are sentenced to undergo RI for 13 years each and to pay fine of Rs.1,50,000/- each. In default of payment of fine they shall further undergo RI for two years each.
Under Section 32 of the NDPS Act, 1985
Naveen Kumar is sentenced to undergo RI for six months and to pay fine of Rs.10,000/-. In default of payment of fine he shall further undergo RI for one month.
Under Section 21 (C) of the NDPS
Act, 1985
Naseeb Chand is sentenced to undergo RI for 10 years and to pay fine of Rs.1,50,000/-. In default of payment of fine he shall further undergo RI for two years.
Under Section 29 of the NDPS Act, 1985
Naseeb Chand is sentenced to undergo RI for 10 years and to pay fine of Rs. 1,50,000/-. In default of payment of fine he shall further undergo RI for two years.
2. Virat Dutt Chaudhary and Pushdeep Singh, officers of the Customs and Central Excise have filed revisions to challenge order dated 11.03.2013, passed by the Additional Sessions Judge, Chandigarh, directing the filing of a complaint before the Chief Judicial Magistrate, Chandigarh for initiation of proceedings under Sections 193 and 340 of the Cr.P.C.
3. 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 revision petitioners are Virat Dutt Chaudhary, a retired Assistant Commissioner, Customs and Central Excise, Amritsar, and Pushpdeep Singh, a serving officer of the Customs and Central Excise Department.
4. The prosecution story, briefly put, as discernible from the complaint as well as prosecution evidence 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
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