Gurdev Singh vs Directorate Of Revenue Intelligence

Jyoti Singh, J

Crl. M.B. No. 5915/2020

Present application has been filed by the appellant under Section 389 Cr.PC read with Section 482 Cr.PC for suspension of sentence during the pendency of the appeal. By the impugned judgment dated 13.12.2013 the appellant was found guilty of an offence under Section 21(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act") by the Special Judge, NDPS and sentenced to 15 years RI and fine of Rs.1,50,000/-. Sentence in this case was directed to run concurrently with the sentence of 10 years and fine of Rs.1,00,000/- in FIR No. 38/2007 under Section 29 of NDPS Act. In default of the fine, appellant was to undergo three months simple imprisonment.

The brief facts as culled out from the impugned judgment are that acting on an intelligence on 19th March, 2007 at about 11:00 PM the appellant and co-accused Mandeep Kaur were apprehended at Singhu Border, GT Karnal Road, Delhi, while they were travelling in a Mahindra Bolero bearing No.HR-70-3719. They were taken to the parking area in the IP Estate, where 13 packets from inside a cavity created in the floor of the vehicle, below the foot mat of the driving seat and 7 packets from the cavity of vehicle, below the foot mat of the seat adjacent to the driver seat, were recovered. Each packet was found to contain heroine, the gross weight of which was found to be 20.754 kg and the net weight was 20.022 kg.

Statement of the appellant under Section 67 of the NDPS Act was recorded wherein the appellant is alleged to have stated that he was carrying the said contraband at the instance of co-accused Dr. Balwinder Singh, who had employed the appellant as a driver for his Maruti Wagon-R Car, 8/9 days ago.

As per the narrative, on 19th March, 2007 at about 11:00 AM co-accused Balwinder Singh had asked the appellant to bring the Wagon-R at Gurudwara Manji Sahib, Ludhiana and accordingly the appellant started from Delhi at about 12:00 noon and reached the Gurudwara at about 6:00 PM, where Balwinder Singh was already waiting for him in his Bolero, along with a lady, who was introduced as Mandeep Kaur. Balwinder Singh instructed the appellant to take Mandeep Kaur in the said Bolero up to GT Karnal By-Pass where the said vehicle was to be taken over by Balwinder.

The appellant was subsequently apprehended and formally arrested by the DRI officers. After completion of the investigation, DRI officers filed complaint before the Trial Court for prosecution of the appellant under Sections 21 and 29 of NDPS Act. Prosecution examined 22 witnesses and after conclusion of the trial, the impugned judgment was passed by the Trial Court, holding the appellant guilty and sentencing him.

Ms. Rakhi Dubey, learned counsel for the appellant arguing in support of the grant of suspension of sentence submits that the appellant was only a petty driver of the co-accused Balwinder Singh and was hired to drive his Wagon-R car No.DL-3CZ-4141. Appellant had agreed to drive the Bolero car from Ludhiana to Delhi Border along with the co-accused Mandeep Kaur only on the instruction of the employer and in good faith as an obedient and sincere servant of a Master. She argues that even Balwinder in his statement under Section 67 of the NDPS Act had stated that the appellant was employed by him only for the purpose of driving the Wagon-R.

Ms. Dubey further contends that Balwinder had no occasion to inform the appellant about the contrabands lying in the Bolero car and in his entire statement under Section 67 of the NDPS Act he has nowhere stated that he had informed the appellant of the said fact. As per the prosecution case, Balwinder used to get the consignment from one Ravi and in turn used to carry the contrabands, for a reward. It goes without saying that such offences are committed in a clandestine manner and information is not shared with a driver, more particularly when he was employed only a few days ago. She submits that this is substantiated by the conclusion of the Trial Court itself, wherein while acquitting the appellant under Section 29 of the NDPS Act, Court has observed that the appellant was not party to any criminal conspiracy to commit the offence and the necessary implication that flows is that the appellant was not even aware of the contraband lying in the car. The Trial Court has thus committed an error in invoking the presumption under Sections 35 and 54 of the NDPS Act.

It is next contended that the only panch witness PW-12A examined in the Court has not identified the appellant and the other panch witness was not even examined by the prosecution. Thus, while it may not be imperative to examine the independent witnesses, but an adverse inference can be drawn against the prosecution, if they are material witnesses. In this case, the panch witness Anil Kumar was a material witness and learned counsel relies on the judgment of the Supreme Court in Noor Agha vs. State of Punjab reported as 2008 (16) SCC 417 in this regard.

The fulcrum of the argument of the learned counsel for the appellant is that the prosecution was unable to establish beyond reasonable doubt that the appellant was in conscious possession of the contraband. The appellant was only a driver by profession engaged few days prior to the alleged incident by Balwinder. There is no evidence to connect the appellant with the crime and the prosecution story as presented cannot be believed. No evidence has emerged to infer any nexus between the appellant and the co-accused. Learned counsel relies on a judgment of the Co-ordinate Bench of this Court in Veerpal vs. NCB deciding Bail Appln. No.1272/2020 on 06.08.2020. She submits that while the said case relates to grant of bail but the Court has considered the twin conditions required by the Court to be considered under Section 37 of the NDPS Act and holding prima facie that the case was not established against the petitioner therein released the petitioner on bail.

Mr. Satish Aggarwala, learned counsel for the respondent has vehemently opposed the suspension of sentence. He submits that the present case relates to recovery and seizure of 20.022 kg of heroine from the Mahindra Bolero, which was in occupation of the appellant and the co-accused. There is an embargo of Section 37 of the NDPS Act for grant of bail or suspension of sentence. Twin conditions have to be satisfied by the appellant before the Court suspends the sentence which are (a) reasonable grounds for believing that the appellant is not guilty and (b) he is not likely to commit any other offence while on bail. Learned counsel relies on the judgment of the Supreme Court in Union of India vs. Ratan Malik, 2009 (2) SCC 624 wherein the Court held that from a plain reading of the non-obstante clause in Section 37 of the NDPS Act and sub-Section 2 thereof, it is clear that power to grant bail to a person accused of an offence under NDPS Act is not only subject to limitations under Section 439 Cr.PC but also restrictions placed by Section 37(1)(b) of the NDPS Act. The satisfaction contemplated regarding the accused being not guilty has to be based on "reasonable grounds" which means something more than prima facie grounds. It connotes substantial probable cause for believing that the accused is not guilty of the offence charged with. While considering the application for bail under Section 37 of NDPS Act, Court is not to record a finding of "not guilty" but has to see if there is a reasonable ground for a belief that the accused is not guilty and further that he will not commit an offence while on bail. For the same proposition learned counsel relies on the judgment in N.R.Mom vs. M.D.Naseemuddin 2008 (3) JCC (Narcotics) 117 and Union of India vs Shiv Shankar Kesari 2007 (7) SCC 798. Learned counsel also places reliance on judgment of Punjab & Haryana High Court in Daler Singh vs. State of Punjab, 2006 SCC Online P&H 1591.

I have heard the learned counsel for the parties and examined their rival contentions.

The first question that needs consideration is whether the suspension of sentence sought by the appellant is permissible within the stringent parameters laid down under Section 37(1)(b) of the NDPS Act. It is beyond a doubt that by a reading of the provision the parameters laid down are with respect to grant of bail, but by judicial pronouncements they have been made applicable to cases of suspension of sentence under the NDPS Act also. Section 37 of the NDPS Act reads as follows:-

"37. Offences to be cognizable and non-bailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."

It is evident that the broad principles that the Court needs to apply and satisfy itself while considering an application for grant of suspension of sentence is that the appellant is not guilty of the offence and there are reasonable grounds to arrive at such a belief as also that he is not likely to commit the offence once the sentence is suspended. In Ratan Malik's (supra), Supreme Court has interpreted the expression "reasonable grounds" and the threshold of the scrutiny required under Section 37 of the NDPS Act and the relevant passages from the report are as follows:-

"13. The expression "reasonable grounds" has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act the court is not called upon to record a finding of "not guilty". At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail."

Keeping the above parameters in the background, I have carefully gone through the impugned judgment. From the perusal of the impugned judgment itself, I find force in the contention of the learned counsel for the appellant that the charge for the offence punishable under Section 29 of the NDPS Act pertaining to criminal conspiracy to possess the contraband substance or to deal with it, was held to be proved only against the co-accused Mandeep Kaur and not against the appellant. The Trial Court has observed that there was no independent corroborative evidence led by the prosecution to substantiate the said charge. It has also come in evidence that the appellant was only a driver of the main accused Balwinder and had been hired by the latter a few days prior to the alleged incident. During the course of the argument learned counsel for the appellant had repeatedly pointed out that Balwinder is absconding for the last several years and his status as reflected is of a proclaimed offender. There was no rebuttal to this by the Respondent"s counsel.

I also find force in the submissions made by the learned counsel for the appellant, towards the end of her arguments, that the trial court has based its decision on the disclosure statement of the appellant, allegedly recorded by PW-5 Shri Punjab Singh who had stated that he had recorded the statement of one Gurdev Singh in Punjabi language as that person was not able to write whereas he used to communicate in Punjabi language. It was argued and in my view rightly so, that a disclosure statement cannot be used against the appellant. In the case of Mahendra Kumar vs. State reported as 2010 (4) JCC 2648, it was held that as per the mandate of Section 27 of the Evidence Act only that part of the disclosure statement, which leads to a recovery, would be admissible. Para 18 of the judgment is as under:-

"18. .... The extent of the information admissible under the section would depend on the exact nature of the fact discovered, to which such information is required to relate. "The fact discovered" is not equivalent to the object produced by the accused or recovered by the police. It embraces the place from which the object is produced or recovered and knowledge of the accused as to this. The statement made by the accused, which is not directly or necessarily connected with the fact discovered, is not admissible in evidence. If the accused makes a compound statement, the court needs to divide it into various parts and admit only that part which has led to discovery of a particular fact. The rest of the statement needs to be rejected...."

The additional factor in the present case is that the appellant had subsequently retracted the statement and therefore as per law a retracted statement, even though retraction is not proved, is a weak piece of evidence to connect the accused to the alleged offence. I also find force in the contention that being a driver the appellant was prima facie not in conscious possession of the contraband and therefore there exists a reasonable ground to conclude that he may not be guilty of the alleged offence.

Insofar as the second condition is concerned, I have perused the nominal roll. As per the nominal roll against the sentence of RI for 15 years and fine of Rs.1,50,000/-, the appellant has undergone 13 years and 3 months, including the under-trial period. His jail conduct for the past one year and even prior thereto has been satisfactory. The sentence awarded in another FIR against the Appellant has run concurrently with the present sentence.

In light of the aforesaid facts and circumstances, especially the fact that the appellant has undergone major part of the sentence and the fact that his wife is suffering from multiple medical ailments, with nobody to look after her and the four minor children, I am of the view that the present application deserves to be allowed.

The sentence awarded to the appellant shall remain suspended during the pendency of the appeal. Appellant was directed to be released granting interim suspension of the sentence by this Court vide order dated 22.06.2020 for a period of 45 days and the interim suspension was extended up to 31.10.2020. In view of the above order granting regular suspension to the appellant, he need not surrender on 31.10.2020. During the hearing, counsel for the appellant had stated that the appellant had furnished a personal bond in terms of the order passed by this Court on 22.06.2020 and that he has not misused the liberty granted. There was no rebuttal by the counsel for the Respondent to this submission. The sentence is accordingly suspended on the same terms and conditions as imposed vide order dated 22.06.2020.

The application is disposed of accordingly.

Needless to state that the aforesaid view expressed by the court is only a prima facie view for disposing of the present application and the same shall not have any bearing on the final conclusion that is required to be arrived at during the hearing of the appeal on merits.

Copy of the order shall be forwarded to the Jail Superintendent for information and necessary action.

Crl. M.B. No. 2086/2019 (for suspension of sentence)

In view of the order passed above, no order is required to be passed in the present application. Date of 13.01.2021 stands cancelled.