Zulfiqar Khan vs Union of India

Allah Raham, J.—The abovenoted two appeals are connected matters, hence they have been taken up together and are being disposed of by a common judgment.

These two appeals arise out of a common judgment and order dated 27.1.2004, passed by Special Judge, N.D.P.S. Act/Additional Sessions Judge, Lucknow in Criminal Case No. 324 of 1997, whereby accusedappellants Zulfiqar Khan, Prahlad Singh and Badri Lal were found guilty under sections 8, 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act. Accused Zulfiqar Khan was awarded 14 years R.I. and a fine of Rs. 1.5 lacs under the aforesaid sections. In default of payment of fine, imprisonment of three and a half years was awarded. Accused Prahlad Singh and Badri Lal were sentenced to ten years R.I. and a fine of Rs. one lac each under sections 8, 21 and 29 of the Act. In default of payment of fine, two years'' imprisonment was awarded.

The prosecution story, as it appears from the record, is that the officers of Central Narcotics Bureau, Lucknow had recovered 53 kgs. heroin from Truck No. UP78/B7554 in Varanasi on 29.12.1995. One accused was arrested on the spot while nine accused had absconded. Complaint No. 162/96 was filed in a competent Court. One of the absconding accused, namely, Abdul Quddus was arrested on 4.4.1997 and 500 gms. of heroin was recovered from his possession. On interrogation said Abdul Quddus volunteered to get traffickers of heroin and morphine arrested. The department of Narcotic Bureau provided Abdul Quddus with a telephone connection so that he could communicate with the drug traffickers. Abdul Quddus dialed telephone No. 0791520066 and talked to someone on the other end. Then Abdul Quddus informed that on 15.4.1997 Nazeem Khan and Zulfiqar Khan (accused) would travel to Lucknow by Avadh Express train. Crude morphine would be brought by road by the associates of Nazeem Khan and Zulfiqar Khan and the same would be delivered at House No. A1180, Indira Nagar, Lucknow, where Abdul Quddus was staying. This information was recorded and a preventive party was formed on 15.4.1997. Surveillance of Railway Station Charbagh, House No. A1180 Indira Nagar, Lucknow and the possible places of stay of aforesaid persons was started from the morning itself. The Incharge of the team Sri L.K. Mangal, Inspector and his associates reached the Platform No. 2 of Charbagh Railway Station (N.E.R.) and started surveillance. Both Nazeem Khan and Zulfiqar Khan got down from threetier boggy of Avadh Express on 15.4.1997 at about 730 a.m. They were identified by Sri L.K. Mangal and Sri D.P. Srivastava. These two Inspectors got Nazeem Khan and Zulfiqar Khan identified by the other members of the preventive team. Thereafter Sri L.K. Mangal proceeded to House No. A1180 Indira Nagar, Lucknow for surveillance over the said house. From the Railway Station, both Nazeem Khan and Zulfiqar Khan proceeded to Deep Avadh Hotel and stayed in Room No. 217. There also Nazeem Khan and Zulfiqar Khan were under surveillance. A fair complexioned boy of about 25 years met Nazeem Khan and Zulfiqar Khan in Room No. 217. They vacated the said room of Hotel Deep Avadh at 1145 a.m. and proceeded to Charbagh Busstand alongwith the said boy. They boarded a bus at Charbagh Busstation and proceeded towards Kanpur. They got down from ithe bus near Shuklaganj, where a light brown colour Commander Jeep without numberplate was parked by the roadside. Nazeem Khan and Zulfiqar Khan started repairing the jeep, wherein two persons were sitting, but the jeep could not be repaired and evening descended. All the four persons slept in the jeep. The members of the preventive team led by Sri V.R. Chatterjee kept surveillance over the jeep and the four persons who had slept in the jeep. On 16.4.1997, Nazeem Khan, Zulfiqar Khan and their two companions started for Lucknow at 9 a.m. by the aforesaid jeep. Nazeem Khan was driving the jeep while Zulfiqar Khan was sitting by his side. Their two associates were sitting on the back seat. The members of the preventive team followed this jeep. The jeep driven by Nazeem Khan and occupied by his three associates reached house No. A1180 Indira Nagar, Lucknow at about 12 O''clock (midday). As planned, Sri D.P. Srivastava and Sri L.K. Mangal were already present inside House No. A1180 Indira Nagar, Lucknow and had closed the door from inside. The rest of the members of the preventive team were having surveillance over the said house from nearby places. This team was led by Sri R.N. Yadav, Superintendent. Nazeem Khan and Zulfiqar Khan got down from the Commander Jeep and knocked at the door of House No. A1180, Indira Nagar, Lucknow. Inspector Sri L.K. Mangal opened the door, whereupon Nazeem Khan and Zulfiqar Khan asked him as to where was Abdul Quddus. Meanwhile the members of the preventive team including Sri L.K. Mangal and Sri D.P. Srivastava surrounded Nazeem Khan and Zulfiqar Khan and the Commander Jeep on which their two associates were sitting. Inspector Sri L.K. Mangal called two independent witnesses Ram Asrey and Santosh and requested them to be the witnesses of recovery. The members of the preventive team introduced themselves to Nazeem Khan, Zulfiqar Khan and their two associates, who disclosed their names and addresses. The two associates were Prahlad Singh and Badn Lal. Sri L.K. Mangal, Inspector told Nazeem Khan and Zulfiqar Khan that they are suspected of possession of contraband. They were informed of the right to be searched in presence of a gazetted officer or a nearest Magistrate as provided under section 50 of the Act. Nazeem Khan and Zulfiqar Ali said that the members of the preventive team could take the search. The members of the preventive team including Sri R.N. Yadav, Superintendent, Central Narcotic Bureau Lucknow, the two independent witnesses and Nazeem Khan, Zulfiqar Khan, Badri Lal and Prahlad took mutual searches and satisfied themselves that no one had contraband in his possession. Nazeem Khan and Zulfiqar Khan disclosed before the members of the preventive team and the witnesses that crude morphine was kept concealed in the stepney of the Commander Jeep. They also offered to take the crude morphine out of the stepney. Zulfiqar Klian and Badri Lal loosened the stepney and Nazeem Khan removed the tyre of the stepney and took out the tube. He cut down the tube with the scissors and took out four packets of crude morphine. The packets were opened which contained brown colour crude morphine kept in a polythene bag. The contraband was tested on the spot and it was found that it was crude morphine. It was also weighed on the spot and its weight was found 4 kgs (four packets of one kg. each). Two samples of 5 gms each were taken out from each packet. The remaining crude morphine was kept in white colour Markin and sealed in packets. These packets were marked as A, B, C and D and the samples were marked as A1, A2, B1, B2, C1, C2 and Dl, D2. Zulfiqar Khan, Nazeem Khan, Badri Lal and Prahlad Singh were taken into custody. At that time, their personal search was also taken. Commander Jeep, whose number was disclosed as MP14, G8472 by Badri Lal was also taken into custody under section 8/25 of the Act. Stepney and tube were sealed in separate gunny bags. House No. A1180 Indira Nagar was also sealed by the preventive team. Recovery memo and connected documents were prepared on the spot and signed by the independent witnesses, Sri R.N. Yadav, Superintendent, members of the preventive team and the four accused persons. Copy of recovery memo was given to the accused persons on the spot, who had signed the same in token of its receipt. On 17.4.1997, report under section 57 of the Act was prepared by Sri L.K. Mangal. Nazeem Khan, Zulfiqar Khan, Badri Lal and Prahlad Singh were sent to Court alongwith relevant papers and recovered contraband. Samples of recovered crude morphine were sent by the Court for chemical analysis.

The investigation was entrusted to Ms. Priya Parkar, Inspector of Central Narcotics Department. She recorded the statements of the four accused persons. On completion of investigation, a complaint Ext. Ka 23 was filed in Court. Cognizance was taken and the four accused persons were put on trial.

Accused Nazeem Khan pleaded not guilty to a charge under section 8/21 of the Act. Accused Badri Lal also pleaded not guilty to a charge under section 8/21/25 of the Act while accused Zulfiqar Khan and Prahlad Singh Lal pleaded not guilty to a charge under section 8/21/29 of the Act.

Accused Badri Lal stated that nothing was recovered from Commander Jeep. He has stated that he had come to Lucknow as a tourist. At about 8 a.m. Inspector Sri L.K. Mangal and his companions arrested him at Charbagh Railway Station. He had a bag, which contained no contraband item. His name and address was written on the bag. Due to this reason, he was falsely implicated in this case.

Accused Zulfiqar Khan has denied his telephonic conversation with Abdul Quddus. He has also denied the recovery of crude morphine from the stepney of the Commander Jeep. He has stated that outside the Charbagh Railway Station, seven persons met him and asked him that he was to be searched. He was taken to the office of Narcotic Bureau and his signatures were obtained on 150 blank papers. He has claimed false implication in this case.

Accused Prahlad Singh has denied his acquaintance with Nazeem Khan, Zulfiqar Khan and Badri Lal. He has also denied his presence in the Commander Jeep. He further stated that about five persons met him outside Charbagh Railway Station and took him to the office of Narcotic Bureau. A jeep was standing there. His photograph was taken with the jeep and thus he was falsely implicated in this case.

Accused Nazeem Khan is absconding.

In support of its case, prosecution examined Sri L.K. Mangal P.W.I, Sri D.P. Srivastava P.W.2, and Sri Ram Nath Yadav P.W.3. Besides, recovery memo Ext. Ka 1, personal search and arrest memos of accused Prahlad, Badri Lal, Nazeem Khan and Zulfiqar Khan Exts. Ka 2 to 5, sample seal Ext. Ka 6, Naksha Maal Ext. Ka 7, confessional statements of Nazeem Khan and Zulfiqar Khan Exts. Ka 8 and 9, test memo Ext.Ka 10, letter to Chemical Examiner Ext.Ka 11, statement of Abdul Quddus Ext. Ka 12, driving licence of Bard Lal Ext.Ka 13, report under section 57 of the Act Ext.Ka 14, extract of Malkhana Register Ext.Ka 15, Signature of Ms. Priya Parkar in Malkhana Register Ext. Ka 15, appointment letter of investigating officer Ext.Ka 16, siteplan Ext.Ka 17, confessional statements of accused Nazeem Khan, Zulfiqar Khan, Badri Lal and Prahlad Singh recorded by the Investigating Officer Exts. Ka 18 to 21, postal receipt (for sending registered parcel, sample and papers) Ext.Ka 22, complaint Ext.Ka 23 and Chemical Examiner''s report Ext.Ka 24 have also been relied upon by the prosecution.

Inspector Sri L.K. Mangal, P.W.I is the central figure of the preventive team. He has supported the prosecution case on oath Sri Mangal has deposed that the story of present recovery starts with the arrest of one Abdul Quddus, who had volunteered to get traffickers of contraband arrested. As an encouragement, said Abdul Quddus was provided with a telephone connection by the Narcotic Department. Abdul Quddus had a telephonic conversation on telephone No. 0791520066 and informed that on 15.4.1997, accused Nazeem Khan and Zulfiqar Khan would be reaching Lucknow by Avadh Express to deliver morphine in House No. A1180 Indira Nagar, Lucknow. He also informed that crude morphine would be carried by their associates by road. Thereafter a preventive team was constituted. As informed from before, both Nazeem Khan and Zulfiqar Khan got down from Avadh Express and checked in Deep Avadh hotel. They stayed in Room No. 217 of the said hotel. One fair complexioned person contacted them in the hotel. They checked out of the hotel the same day at 1145 a.m. and boarded a bus for Kanpur. On the way, they got down near Shuklaganj, where a brown colour Commander Jeep was parked by the roadside. An effort was made to repair the jeep, but before it could be repaired the evening descended. Four persons slept in the Jeep. In the morning, the jeep became in running condition. All the four persons came to House No. A1180 Indira Nagar, Lucknow. Nazeem Khan and Zulfiqar Khan came down from the jeep and knocked at the door of House No. A1180 Indira Nagar, Lucknow and enquired about Abdul Quddus. P.W. 1 was already present inside the house. He opened the door. Meanwhile the members of the preventive team also surrounded all the four accused persons and the Commander Jeep in which they had travelled. Two independent witnesses Ram Asrey and Santosh were called. Recovery of the crude morphine was made from the tube of the stepney of the Commander Jeep. Recovery memo was prepared on the spot. It was signed by the members of the preventive team, the accused persons and the independent witnesses.

Sri D.P. Srivastava P.W.2 is an Inspector of the Narcotic Department. He was also a member of the preventive team, which was led by Sri R.N. Yadav, Superintendent. He has also supported the prosecution version of the case and has stated that the accused persons and House No. A1180 Indira Nagar, Lucknow were under surveillance. The accused persons got down from Avadh Express on 15.4.1997. Since then their movements were tracked downUltimately the accused persons were detained and 4 kgs morphine was recovered, which they had concealed in the tube" of the stepney of Commander Jeep. This witness is also a signatory to the recovery memo.

Sri R.N. Yadav P.W.3 is a gazetted officer (Superintendent) in the Narcotic Department. He also supported the prosecution case and stated that the recovery of 4 kg morphine was made in his presence. He has narrated how the accused persons loosened the stepney of Commander Jeep, removed its tyre and cut down the tube, from where the concealed crude morphine was recovered. He has also signed the recovery memo Ext.Ka 1.

The learned Trial Court placed reliance upon the statements of the prosecution witnesses and came to the conclusion that the charges framed against accused Zulfiqar Khan, Prahlad Singh and Badri Lal were proved beyond reasonable doubt. It, therefore, convicted them and after hearing them on the question of sentence, awarded them the sentences noted hereinabqve.

Aggrieved against the said judgment and order, appellants Zulfiqar Khan, Prahlad Singh and Badri Lal have preferred these appeals.

I have heard Sri Aslam Javed Siddiqui and Sri A.P. Misra for the appellants and Sri I.B. Singh for the Central Narcotic Bureo and have carefully perused the record.

Learned Counsel for the appellants have submitted that there has been no compliance of the provisions of section 50 of the Act. In reply, the submission of learned Counsel for opposite party is that the recovery was not made from the person of the appellants. The crude morphine was concealed in the stepney of the Commander Jeep and was recovered from there; therefore, the provisions of section 50 of the Act are not attracted in this case. It is not disputed that the personal search of the appellants had not led to the recovery of any contraband. The Apex Court in Krishna Kanwar (Smt) Alias Thakuraeen v. State of Rajasthan1. 2004 (48) ACC 610 (SQ = 2004 (15) AIC 708 = (2004) 2 SCC 608. has clearly held that a bare reading of section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. Placing reliance upon the Constitution Bench decision in State of Punjab v. Baldev Singh, 1999 (39) ACC 349 (SC) = (1999) 6 SCC 172. the Apex Court further held that the language of section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. Similarly, in Ravindran alias John v. Superintendent of Customs, AIR 2007 SC 2040. it has been held by the Hon''ble Supreme Court that if accused was carrying a plastic bag in which the drug duly packed had been kept, the provisions of section 50 are not attracted. It was further held by the Apex Court in State of Rajasthan v. Babu Ram 2007 (58) ACC 1066 (SC) = 2007 (56) AIC 229 = AIR 2007 SC 2018. that a bag, briefcase or any such article or container carried by accused cannot be treated as body of a human being. It does not come within the definition of ''person''; therefore, compliance of section 50 is not necessary.

The above caselaw on the subject has made the position amply clear that the provisions of section 50 of the Act were not to be complied with in the present case because the recovery in question was neither anticipated nor effected from the person of the appellants. However, for the sake of argument, it may be assumed that the provisions of section 50 of the Act were to be complied with in this case. In the present case, recovery was made in the presence of P.W.3 Sri R.N. Yadav, Superintendent Narcotic Department, who was a gazetted officer. The argument of learned Counsel for the appellants is that the recovery in the presence of Sri R.N. Yadav P.W.3 is simply, an eyewash and the safeguards provided under section 50 of the Act will not be taken to have been complied with by his presence at the time of recovery. The contention of learned Counsel for the appellant is that the case was worked out by the Narcotic Department. Sri R.N. Yadav P.W.3, being Superintendent in the Narcotic Department, was definitely interested in the recovery of the contraband and the success of the case; therefore, it cannot be said that his presence has ensured the safeguards provided under section 50 of the Act to the accused. Learned Counsel for the appellants have placed reliance upon a recent decision of Apex Court, in Ritesh Chakravarti v. State of Madhya Pradesh, 2006 (56) ACC 788 (SC) = 2006 (47) AIC 610 (SC).

I have carefully gone through the ruling in Ritesh Chakravarti''s case. The Hon''ble Supreme Court had found that the appellant had been gravely prejudiced by nonexamination of two witnesses of recovery, namely, Sabiha Khatun and Shri Bajpai. Independent witnesses had not supported the prosecution case. It had come in the statements of the independent witnesses that their signatures had been obtained on blank papers. For these reasons, the appellant in the said case was given benefit of doubt and the appeal was allowed. In para 45 of the judgment, the Hon''ble Supreme Court has recorded a note of caution as under:

"In a case of this nature, the Court will move cautiously in view of the grave nature of the offence.... "

Needless to say that the note of caution given by the Apex Court should always be kept in mind while deciding cases of this nature. Here, it can only be said that the judgment of Ritesh Chakravarti does not help the appellants because the facts of the present case are quite different. The recovery has been made in the presence of a gazetted officer. Besides, two other responsible officers have also supported the prosecution case. Moreover, this recovery was not made all of a sudden. The Department of Narcotics had got prior information regarding the movement of the appellants and their plan to deliver crude morphine in House No. A1180, Indira Nagar, Lucknow. This information was quite accurate and it led to the recovery of crude morphine from the appellants.

Learned Counsel for the appellants have also referred to the statement of Sri Rani Asrey D.W.2, who was examined by the accused persons in defence. Sri Ram Asrey is said to be an independent witness of recovery of crude morphine from the possession of the appellants. He has stated that he had signed some papers without reading their contents. His signatures were obtained in the office. He has, however, admitted that the stepney of the jeep was cut in his presence and four packets were taken out of the stepney. He does not know where from the appellants belonged. From the statement of this witness, it is clear that the stepney of the jeep was cut in his presence and four packets were taken out of this stepney. It is also clear from his statement that he had signed the recovery memo Ext Ka 1. On material particulars, this witness has supported the prosecution case. The crude morphine was recovered from the stepney of Commander Jeep. Stepney was cut in his presence. He has also admitted that he had signed the documents, which were written. Recovery memo Ext.Ka 1 was also signed by him. Unlike Ritesh Chakravarti''s case, this witness of recovery to a great extent has supported the prosecution case.

The next argument of learned Counsel for the appellants is that there is no compliance of provisions of section 42 of the Act. His contention is that the information received by the officers should be taken down in writing. Nonrecording of information deprives the accused to ascertain what was the precise information. In support, he has cited Abdul Rashid Ibrahim Mansuri v. State of Gujarat. 2000 (40) ACC 470 (SC). On the other hand, learned Counsel for the respondent has asserted that the provisions of section 42 of the Act have been fully complied with. He has drawn the Court''s attention towards the statement of Abdul Quddus Ext Ka 12. The relevant information was gathered from the written statement of Abdul Quddus. His statement commences from 7th April, 1997 and concludes on 18th April, 1997. Information regarding the movement of crude morphine is contained in the statement of Abdul Quddus. The relevant statement of Abdul Quddus was recorded on 13th April, 1997, in which it was informed that the crude morphine would reach Lucknow on 15th April, 1997. As per plan, the crude morphine would have reached Lucknow on 15th April, 1997 itself, but the Commander Jeep, in whose stepney the crude morphine was concealed, went out of order near Shuklaganj; due to this reason, the crude morphine reached Lucknow on 16th April, 1997. On the information received from Abdul Quddus and recorded in writing, a plan was prepared under the supervision of Deputy Commissioner Narcotics, Lucknow. The evidence on record proves beyond reasonable doubt that the provisions of section 42 of the Act have been complied with. I find no force in the argument of the learned Counsel for the appellants.

In this case, statement of appellant Zulfiqar Khan was recorded under section 67 of the Act. The argument of learned Counsel for the appellants is that the confessional statements of the appellants cannot be used against them because the same will be hit by Article 20(3) of the Constitution of India. The question is whether the appellant Zulfiqar Khan was an accused on 16th April, 1997 when his statement under section 67 of the Act was recorded. Article 20(3) of the Constitution protects a person accused of any offence from being compelled to be a witness against himself. The complaint was filed on 14.7.1997. On the same day, cognizance was taken against the appellants. Placing reliance upon Ramesh Chandra Mehta v. State of West Bensal, AIR 1970 SC 940. a Division Bench of Bombay High Court has held in the case of Inteligence Officer DRI v. Amjad Hussein Khan2. 2004(1)EFR50. that statements which have been recorded during the course of an enquiry or in an answer to a summons under section 67 are not hit by Article 20(3) if the complaint has not been filed at the time when the statement was recorded. The statement even though confessional in nature is not hit by Article 20(3) of the Constitution as the person was not accused at the time when the said statement was recorded.

It has also been argued by learned Counsel for the appellant Zulfiqar Khan that he had retracted the confessional statement; therefore, the same cannot be used against him. In support of this argument, there is no material on record to suggest that the statement recorded under section 67 of the Act has been retracted by appellant Zulfiqar Khan. In this case, the complaint was filed on 14.7.1997. The confessional statement of appellant Zulfiqar Khan had been recorded on 16.4.1997. There is nothing on record to suggest that appellant Zulfiqar Khan had retracted his confessional statement immediately or shortly after the same had been recorded. On 29.10.1997, bail application was moved on behalf of appellant Zulfiqar Khan. In para 7 of the bail application for the first time it was pleaded on behalf of appellant Zulfiqar Khan that he never gave a statement confessing his guilt; he was forced to sign some papers under duress. This seems to be an afterthought and result of due consultation. If the appellant wanted to retract his statement, he could have done it much earlier because his statement had been recorded on 16.4.1997. Between16.4.1997 and 29.10.1997, he had been produced before the Court. Argument of learned Counsel for the appellant is, therefore, devoid of substance.

It has also been argued by the learned Counsel for the appellants that the Investigating Officer of the case has not been produced as a witness; therefore, the conviction of the appellants cannot be sustained. Ms. Priya Parkar was the Investigating Officer of the case. It has come on record that she has resigned from service and migrated to Australia. Due to this reason, she could not be produced as a witness in this case. Her handwriting and signatures have been proved by the other witnesses of the same department, who were acquainted with her handwriting and had seen her signing papers. Therefore, nonexamination of the Investigating Officer cannot be treated as fatal to the prosecution case.

No other point has been pressed before me.

Both the criminal appeals (No. 262 of 2004 and 333 of 2004) are devoid of merit and the same are hereby dismissed.

Accusedappellants are on bail. They shall be taken into custody forthwith to serve out the sentences awarded to them. Their bailbonds are cancelled and sureties are discharged.

Appeals Dismissed.