Mohd. Ashiqeen vs State

Mansoor Ahmad Mir, J.—This Criminal Appeal is directed against the judgment dated 12th October 2000 and order dated 22nd

November 2000 respectively, passed by the learned Principal Sessions Judge, Jammu in a case titled as State v. Mohd Ashiqeen and Ors. filed

under Sections 21, 23, 27A and 28 of Narcotic Drugs and Psychotropic Substances Act (for short the Act) in a case File No. 145/Challan of

1997 whereunder and whereby appellant-accused namely, Mohd Ashiqeen came to be convicted and sentenced under Sections 20 and 23 of the

Act.

Brief facts which have given birth to this appeal are to be noticed here as under:

A charge sheet-complaint came to be filed by the Intelligence Officer DRI Amritsar before the trial Court with the allegations that a specific

information was received through reliable source which was reduced into writing and set the Intelligence Officers of the Directorate of Revenue

Intelligence in motion. A Naka was laid on 4th of September 1997 during the night at the BOP Jabowal in R.S. Pura Sector Jammu headed by

Mr. I.P. SinghJoint Assistant Director (J) of BSF Jammu and Mr. G.S. Kapoor, Senior Intelligence Officer (SIO), Directorate of Revenue

Intelligence, Amritsar at 10.30 p.m. the movement of two persons was noticed who had crossed the border from Pakistan. On being challenged,

they tried to run back to Pakistan. BSF Naka party opened fire and one out of the two persons was apprehended with the black coloured bag and

another escaped in the darkness. The apprehended person disclosed his identity as Mohd Ashiqeen. He was brought to BOP Jabowal, situated at

a distance of 500 yards from the place where he was apprehended. He was given option u/s 50 of the Act in writing by Mr. G.S. Kapoor, Senior

Revenue Officer in presence of two independent witnesses namely Shri Roshan Lal and Prem Singh. A search was conducted in presence of Shri

G.S. Kapoor, Senior Intelligence Officer and two witnesses. As a result of search Rupees Nine of Pakistan currency denomination of Rs. 5/- one

note and four notes of Rs. 1/- demonina-tion and a Visiting Card of Mr. Shahid were recovered. Panchnama was prepared on 4/5 September

1997. Recovery of five packets was made from the bag marked as P1 to P5. Brown powder giving sharp smell was found in the packets. Drug

testing kit was used and it showed that each packet was found 1.05 Kgs gross and 1 Kg net and Total gross weight of 5 packets was 5.25 Kgs

and net 05 Kgs. Seizure of 5 packets, Rs. 9/- and one visiting card was also effected. Five samples in duplicate of five grams each were taken

from these five packets and were kept in polythene bag and then kept in a white paper envelope and pasted and sealed with seal of Revenue

Intelligence bearing the signatures of two independent witnesses and accused Mohd Ashiqeen. Accused after his arrest disclosed the names and

identity of the persons who had to take the delivery of the recovered heroin and in follow up action accused Dildar Ahmad alias Dillon and Som

Nath were apprehended at the Bus Stand. Jammu in the morning of 5.9.1997.

After completion of formalities the challan was produced before the trial court. Som Nath accused was discharged. Other two accused were

tried. The trial resulted in the conviction of the accused-appellant and acquittal of Dildar Ahmad.

Feeling aggrieved appellant has preferred this appeal. Learned Counsel for the appellant argued that the accused-appellant came to be falsely

implicated and is innocent. He was neither apprehended at the place of occurrence nor anything was found in his possession. While developing the

argument he addressed the Court how the case is shrouded in doubts.

Prosecution examined PW 1 Shri G.S. Kapoor, PW 2 Mr. LP. Singh PW 3 Inderjit Singh, PW 4 Sanjay Sarpal, PW5 TPS Sandhu, Sh H.K.

Tigga PW 6, and PW 7 Sh R.L. Mina Incharge Malkhana. Prosecution has not examined PW 8 Roshan Lai and PW 9 Prem Nath. Statements of

accused were recorded u/s 342 Cr.P.C. They have not examined any witness in defence. Accused Ashiqeen-appellant came to be convicted for

the commission of offence punishable under Sections 21 and 23 of the Act whereas accused Dildar Ahmad came to be acquitted.

Mr. Slathia learned Additional Advocate General defended the impugned judgment and submitted that the discrepancies here and there would

not earn acquittal.

We have minutely examined the trial Court record and scanned the evidence and are of considered view that the entire case of the prosecution is

shrouded in doubts for the following reasons:

i. Source Information

Mr. G.S. Kapoor, PW-1 Senior Intelligence Officer DRI Amritsar has deposed that he had received information through reliable source that

two persons were likely to cross border from Pakistan side and had to enter into Jammu alongwith heroin on 4.9.1997. He constituted two teams,

one left earlier and second left later from Amritsar to Jammu and has further deposed that at about 10.30 pm. BSF and DRI Officer laid Naka and

noticed the movement of some persons.

PW-4 Sanjay Sarpal has deposed that at 8.30 pm he had received information from source that some persons were coming from Pakistan

Border and had to enter into India with heroin etc. and prepared a report DRI-1-EX-PWSS and sent to the AD. They had joined Naka party at

about 10 30 pm. BSF opened fire. They noticed the movement of a person and he was apprehended by the BSF.

PW-2 Shri I.P. Singh has deposed that on 4.9.1997 at about 8.30 pm he had received information from reliable source that two persons were

coming with narcotic drug who were likely to cross border at Jabwal BOP and to enter into the Indian territory. He had recorded the information

DRI (1)-Form-EXPWSS.

PW-6 Sh H.K. Tigga has deposed that on 4.9.1997 at about 3 p.m. Senior Officers of BSF-Mr. IP Singh and some DRI officers were sitting

at the Headquarter when some source gave him an information that some persons were coming from Pakistan side with consignment of narcotic

through Jabowal BOP. That information was recorded by the Senior Officer and bears his signatures also.

All the four PWs-officers of BSF and DRI have given different version about the source information and recording of information and sending

to higher officers.

PW-1 says that he received information at Amritsar and recorded information and submitted to higher officers. Sanjay Sarpal says that he had

received information at 8.30 pm on 4.9.1997 and prepared DRI-EXPW-SS Form. Shri I.P. Singh says that he had received information at about

8.30 pm, prepared DRI form and sent it to higher officer EXPW-SS. PW-Tigga says that he had received information at 3 pm on 4.9.1997 when

BSF officers along with officers of DRI were sitting at the BSF Headquarter and that information was recorded by BSF officers and signed by

him.

Whom to believe, if DRI(1) Form EXPWSS was prepared by PW 4 Sanjay Sarpal, then where is the information recorded by other two

officers namely, Mr. G.S. Kapoor and I.P. Singh?

While going through EXPW-SS it is prepared and signed by Shri I.P. Singh and witnessed by Sanjay Sarpal and Shri H.K. Tigga. Where is

the information-DRI(1) Form reduced in writing and recorded by PW 4 Sanjay Sarpal. The prosecution also has failed to produce and prove the

information recorded by Mr. G.S. Kapoor, PW 1.

EXPWSS came to be recorded at 8.30 pm despite of the fact it was received by PW 6 Shri H.K. Tigga and other officers of BSF and DRI at

3 pm. Prosecution has failed to tender an explanation. Thus it is also a circumstance against the prosecution.

DRI Form EXPWSS contains five columns. In column No. 3 name of suspect is recorded and given as Mohd Ashiqeen of Delhi. In column

No. 4 it is recorded as ""the said person will be crossing Indo-Pak border from Pakistan."" This statement creates more doubt about the information

because witnesses have stated that two persons had to cross border and they laid Naka at 10.30 pm and one person was apprehended and one

escaped. The apprehended person disclosed his name as Mohd Ashiqeen. The important rather crucial question is how Mr. IP Singh, who

recorded the information, HK Tigga PW 6 and Sanjay Sarpal PW 4, who have signed the said form, were knowing that Mohd Ashiqeen was the

person who had to cross the border and he was the only person who was coming from Border and he would be apprehended. It is worthwhile to

mention herein that EXPWSS appears to have been recorded at 20/30 hours-8.30 pm wherefrom they got the name of that Mohd Ashiqeen when

Naka was laid at 10. 30 pm and thereafter was apprehended.

The Apex Court had held in the case titled as The State of West Bengal and Others Vs. Babu Chakraborty, that keeping in view stringent

punishment provided and prescribed by the Act, the great significance is attached to the mandatory provisions of law. It is profitable to reproduce

para-22 of the judgment herein as under:

Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the act. This

Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be

available to a Court of law and the accused while defending his prosecution. This Court also held that failure to comply with Section 42(1), proviso

to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused.

ii Naka

All the witnesses have deposed that Naka was laid at BOP Jabowal. The movement of persons was witnessed. They were challenged and

they tried to run away. BSF opened fire, used lightening bombs and apprehended one person whereas one person escaped. The person

apprehended disclosed his name as Mohd Ashiqeen. Sanjay Sarpal PW-4 has deposed that the movement of a person was noticed who was

apprehended by the BSF. Thus the movement of two persons or the movement of a person is also a doubtful. Statement of Sanjay Sarpal runs

contrary and contradicts the other prosecution witnesses.

The Apex Court has in the case titled Bahadur Singh Vs. State of Madhya Pradesh and Another, laid down that when the circumstances are

doubtful and discrepancies are here and there-that leans in favour of the accused and accused are to be acquitted. It is profitable to reproduced

paras 7 and 8 of said judgment hereunder:

7.The appellant cannot be made to suffer on prosecution failure to prove as to who made the entries in exhibit P-15 regarding the amount and s to

when the same were made.

Under the aforesaid circumstances the appellant cannot be convicted on the sole testimony of policy witnesses. PW3. The question of

applicability of Section 35 of the act will not arise in the present case when the recovery itself is doubtful. The appellant had disputed the recovery

of contraband. There are serious discrepancies in its recovery, seizure and deposit in the Malkhana. The prosecution has thus failed to prove its

case beyond all reasonable doubts against the appellant who is accordingly entitled to benefit of doubt.

iii. Independent witnesses.

Witnesses-BSF Officers have deposed that they got two witnesses from a village which is nearest to Jabowal Post. The witnesses cited are not

of that village but of village Paloura which is just adjacent to Jammu town. Why those two persons hailing from the village nearest to Jabowal post

have not been cited as witnesses is best known to the prosecution. The two independent witnesses cited in the complaint PWs 8 and 9 have not

been examined by the prosecution. In the given circumstances of the case as stated hereinabove the examination of independent witnesses was

must.

The Apex Court held in the case titled The State of West Bengal and Others Vs. Babu Chakraborty, that withholding independent witnesses is

fatal. It is profitable to reproduce para-17 of the said judgment hereunder:

We have perused the evidence led in, in this regard. Neither PW-4 nor PW-2 deposed that they had complied with the procedure u/s 42(1)

and the proviso to Section 42(1) and Section 42(2) before they conducted the search. It is alleged by them that on search certain Polythene Bags

containing Heroin were recovered. According to them, two independent witnesses of the locality Swapan Kumar Samanta and Ramkaran Prasad

were taken and they witnessed the search. But unfortunately, these witnesses were not examined and no attempts were made to summon them at

the trial. In fact, PW 2 S.K. Dutta, on a specific question in cross-examination, deposed that no search memo was prepared and, PW-4 K.L.

Meena said he does not remember if any search memo was prepared. Further, it is alleged that they came to Memari P.S. at 11.30 p.m. and Ex. 1

G.D. Entry was prepared. This G.D. Entry shows that the seized articles were recovered from the bed room of the accused. The accused was also

arrested on 5.5.1989. Thereafter, the case was made over to PW-3 and after receiving the report from the Central Public Health and

Laboratories, the accused was sent up for trial. The trial Court convicted the accused and punished the respondent for offences u/s 21 of the Act

and sentenced him to undergo 10 years' R.I. and pay a fine of Rs. 1 lakh.

iv. Notice u/s 50 of the Act.

Prosecution witnesses have deposed that notice u/s 50 of the Act was served upon the accused. The documents i.e. seizure memo and other

documents and notice u/s 50 of the Act are typed documents. Where-from Typewriter was managed and who is the person who typed out those

documents. PW-6 Shri Tigga has categorically deposed that he has not seen any Typewriter on spot or at Jabowal post and he has not seen any

person typing out any document. This also creates suspicion.

v-Bag

Some witnesses have stated that when the accused was apprehended at that particular time, a black bag was tied with his belly. PW IP Singh

has said that when accused was apprehended at that particular time the bag was tied with his belly. Tajinder Paul Sandhu PW-5 has deposed that

accused was carrying a bag hanging on his shoulder at the time when he was apprehended. It also creates a doubt whether the bag was tied with

his belly or he was carrying the bag on his shoulder.

vi. Seized Articles.

The prosecution has failed to produce the seized articles and bag before the trial court. The Apex Court in case titled as Jitendra and Another

Vs. State of M.P., held that the conviction cannot be sustained because of non-production of, independent witnesses, seized drugs and narcotic

before the court. It is profitable to reproduce para-6 of said judgment hereunder:

In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence

that the alleged quantities of charas and ganga were seized from the possession of the accused. The best evidence would have been the seized

materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce

them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution,

particularly where the offence is punishable with a stringent sentence as under the NDPS, act. In this case, we notice that panchas have turned

hostile so the panchanama is nothing but a document written by the concerned police officer. The suggestion made by the defence in cross-

examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with police had lodged a

false case only for evicting the accused from the house in which they were living. Finally, we notice that the Investigating Officer was also not

examined. Against this background, to say that, despite the pancha witnesses having turned hostile, the non-examination of the Investigating Officer

and non-production of the seized drugs, the conviction under the NDPS, act can still be sustained, is far-fetched.

Apex Court also in the case titled Bhola Ram Kushwaha v. State of Madhya Pradesh reported in AIR 2001 SC 229 observed that the

prosecution case is to be dismissed in the given circumstances. It is profitable to reproduce para-6 of said judgment hereunder:

Upon analysis of the evidence led in the case and finding glaring discrepancies in the statements of the prosecution witnesses we feel that the

prosecution has failed to prove its case against the appellant beyond all reasonable doubts. In all material particulars PW-4 stands contradicted by

PWs-1 and 2 who are admittedly the panch witnesses. The prosecution also failed to associate three constables who accompanies S.N. Tripathi

(PW-4) as the witnesses. The trial Court appears to have omitted to note the glaring contradictions in the testimony of prosecution witnesses. PW-

4 in his testimony in the Court submitted that:

...he received the information that accused Bholaram Kushwaha was having brown sugar in the pocket of his trouser. He recorded that information

in the Sanha. That is Ex. P/13.

vii. Samples.

Witnesses have deposed that five/five grams-two sets were taken from each packet and were kept in two different envelope under sealed

cover and the net weight in each container was five grams. Where it was kept from 4.9.1997 till 8.9.1997 when it was delivered and produced

before C.R.C.L. New Delhi on 8th of September 1997 is best known to the prosecution. The Chemical Examiner has reported that net weight of

each container was 7.3, 7.1, 7.4, 5.6, 7.2 grams respectively. As per the prosecution story each container was containing five grams. Perhaps

sample which came to be examined in the Laboratory is not of that article which was seized by the prosecution at the place of occurrence, no

explanation is forthcoming. Form DRI (F) 1997 5 ASR 855stand proved as EXPW1.

In the case titled as Rajesh Jagdamba Avasthi Vs. State of Goa, less quantity of sample was found in the Laboratory by the expert, the Apex

Court has held that the case is doubtful and rejected the prosecution case. It is profitable to reproduce paras 12 and 14 of said judgment

hereunder:

However, there appears to be substance in the other submissions urged on behalf of the appellant, namely, that the weight of the substance

sealed in two envelops was found to be different from the weight of the substance received by the laboratory as deposed to by PW1. It is not

disputed that from the shoe on the right foot 100 gm of charas was recovered, which was sealed in envelope. A. According to PW 1, the Junior

Scientific Officer, when that envelope was opened and the substance weighed it was found to be 98.16 gm. Similarly, from the shoe on the left foot

115 gm of charas was recovered which was packed and sealed in envelope B. But only 82.54gm of the substance was found in envelope B when

the same was opened by PW 1. A similar submission was urged before the High Court and the High Court also found that this discrepancy could

not be explained by the prosecution. The High Court observed that there was no doubt that envelope B which was said to contain 115 gm of

charas was found to contain only 82.54 gm of charas and this could not be considered to be a minor discrepancy. However, the High Court was

of the view that even if this sample contained in envelope B was not considered against the appellant on account of discrepancy in the weight, since

there was no material discrepancy in the weight of the charas found in the other envelope A, the case against the appellant stood established on the

basis of the charas recovered, packed and sealed in envelope A.

...

We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of charas

weighing 180.7 gm. The charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the

laboratory by the Junior Scientific Officer, PW 1, he found the quantity to be different. While in one envelope the difference was only minimal, in

the other the difference in weight was significant. The High Court itself found that it could not be described as a mere minor discrepancy. Learned

Counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was

recovered only from envelope A ignoring the quantity of charas found in envelope B. This is because there was only one search and seizure, and

whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is

found that the quantity actually found by PW1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was not

how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW 1. The

prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful.

The prosecution has failed to prove that seal impression was sent in separate envelopes to the expert and expert at the time of examination has

tallied the seal and found it intact. Again a serious doubt has crept in.

The prosecution has failed to established that it has complied with the mandate of Section 55 of the Act. The Apex Court in case titled Thandi

Ram v. State of Haryana reported in AIR 2000 SC 468 held that non-compliance of Section 55 of the Act renders the prosecution case doubtful

and merits to be rejected. Relevant portion of the said judgment is reproduced here as under:

...In view of the pronouncement of this Court in the aforesaid cases and in view of the finding as recorded in the judgment of the High Court that

provisions of Sections 55 and 57 have not been complied with the conviction is bad in law....

viii. Confession statement.

The prosecution has failed to prove that notice was served to accused-appellant for making the statement u/s 67 of the Act. In the statement

allegedly recorded u/s 67 of the Act it is mentioned that it came to be recorded at the request of accused which is not to be believed. Normally the

statement is to be recorded by the independent officer and has to make the accused to understand its implication and consequences of its

recording in terms of Section 67 of the Act.

The prosecution has failed to prove that the contents of so called statement were read over and explained to accused-appellant in the language

known to him and he was made to believe that it could be read against him.

No independent witness has witnessed recording his statement and no independent witness has been shown as a marginal witness despite of

the fact that the two witnesses were available as per the prosecution story and substantive evidence.

Sanjay Sarpal, PW has deposed that statement came to be recorded on 5.9.1997 after they left from Jammu Bus Stand. IP Singh PW says

that the statement was recorded at 11 to 12 pm on 4.9.1997. It is the prosecution case that after completing the formalities accused Mohd

Ashiqeen stated before them that he had to deliver consignment to some persons at Bus Stand, Jammu on 5.9.1997. Again it becomes suspicious

when it was recorded. It is true that a confession made u/s 67 of the Act before an Officer of the Department of Intelligence may not be hit by

Section 25 of the Evidence Act yet such a confession is subject to closer scrutiny. The Supreme Court has laid down that in case titled Francis

Stanly alias Stalin v. Intelligence Officer reported in AIR 2007 SCW 497 that when and in which circumstance the statement u/s 67 could be acted

up. It is profitable to reproduce para 13 of said judgment hereunder:

In State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru, this 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 a rule of prudence that

under no circumstances can such a conviction be made without corroboration, for a Court may, in a particular case, be convinced of the absolute

truth 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.

It is beaten law of the land that when the provisions are stringent, strict is the proof. It is important to note herein that so called confessional

statement EXPWTP-1 is only signed by two persons i.e. PWs 4 and 5. IP Singh PW 2 is not the witness of that statement but in the Court he has

deposed that statement of the accused was recorded in his presence between 11 to 12 pm on 4.9.1997. Then why he has not witnessed the

document is best known to the prosecution. Tajinder Paul Sandhu has deposed that he has recorded the statement of accused Mohd Ashiqeen in

presence of Intelligence Officer Sanjay Sarpal. Sanjay Sarpal has stated that statement-EXPWTP-1 was made by the accused before him at BSF

Headquarters. It is not mentioned in EXPWTP-1 when and where it was recorded.

Section 23 of the Act plays its role and comes to operation when it is alleged and proved that narcotic drug was imported. There is not an iota

of evidence at all not to speak of the proof that the alleged seized drug was imported.

Having glance of the above discussion, we are of the considered view and opinion that the prosecution has failed to prove the case and bring

guilt home to the accused-appellant and it would not be safe to maintain the conviction of the appellant, and he must be given the benefit of

reasonable doubt.

Viewed thus appeal is allowed and conviction and sentence set aside.

The prosecution case is dismissed and accused is acquitted and be released forthwith provided he is not required in any other case.