Judgement in the Case Pilferage of Narcotics By IPS Officer

1 NCB vs Balwinder Kumar & Ors.

In the Court of Shalini Singh Nagpal Special Judge,Chandigarh.

NCB Crime No.: 50 of 2009.Date of Institution: 10.9.09/25.5.10.Date of Decision:8.3.2013.

NARCOTICS CONTROL BUREAU, CHANDIGARH Zonal Unit, House no.80, Sector 2, Chandigarh through its Superintendent Shri Harcharan Singh.

.....Complainant.Versus

1 Balwinder Kumar s/o Shri Megh Raj Dhiman, r/o Village & PO Tiyara, Distt. Kangra (HP).

2 Davinder Pal Singh s/o Shri Surender Singh, r/o SAS Nagar, Upper Gadi Garh, Jammu, Distt. Jammu (J&K).

3 Naveen Kumar s/o Shri Ramesh Chander, r/o Village Deoli, Tehsil Bishnah, Jammu, Distt. Jammu (J&K).

4 Naseeb Chand s/o Shri Sunder Lal, r/o Village Purobhana, Tehsil & PS-R.S. Pura, Distt. Jammu (J&K).

5 Saji Mohan s/o Shri Varghese Yohanan, r/o Flat no.12/B, White Waters Tevra, Cochin, Kerala.

.....Accused.

COMPLAINT AGAINST THE ACCUSED FOR OFFENCES PUNISHABLE UNDER SECTION 8, 8(A), 21,29,32(B) & 59(2) OF NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985.

*****

Present:Sh.Kailash Chander, Special Public Prosecutor for NCB.Accused Saji Mohan in custody represented by Sh. K. Balakrishnan, Shri Ayas Khan and Ms. Sarabjit Kaur, Advocates.Accused Balwinder Kumar on bail with Counsel Sh.Rabindera Pandit.Accused Naveen Kumar and Devinder Pal Singh on bail with Counsel Sh.Sandeep Kumar.Accused Naseeb Chand on bail with Counsel Sh.K.S. Chaudhary.


J U D G M E N T

This is a unique case in which the Court

is confronted with a precarious situation created by

the statements of several witnesses who happen to be

responsible public servants. Being functionaries of

the government, public servants are duty bound to

state unadulterated truth before the court and by

operation of law, a duty is cast upon them to bring

only those facts before the court which they believe

to be true. There appears to be a concerted effort

on part of some of the witnesses examined in the

case not only to project facts which they knew to be

false but also to misguide the court on the basis of

false documents prepared by them during

investigation. With the help of false documents, a

cooked up story with regard to recovery of

contraband has been built up. The dilemma and

predicament of the Court is illustrated by the fact

that at one hand, the Court believes these

witnesses, to arrive at a conclusion in favour of

the prosecution and at the same time, the witnesses

are being prosecuted for giving false evidence. By

segregation of various portions of their testimonies

and analysis of strong circumstances, surrounding

the proved facts of the case, the court has been

successful in digging out the truth and meeting the

predicament.

1-A Complaint u/s 8,8(A), 21,29,32(B) & 59(2)

of Narcotics Drugs and Psychotropic Substances Act,


1985 (hereinafter referred to as the 'Act') has been

filed by Narcotics Control Bureau, Chandigarh Zonal

Unit, Chandigarh (hereinafter referred to as NCB)

through its duly authorized Officer Sh. Harcharan

Singh, Superintendent, empowered u/s 41(2) of the

Act.

2 Complainant stated that Dr. Saji Mohan, an

IPS Officer of J&K Cadre was on deputation in NCB as

Zonal Director of NCB, Chandigarh Zonal Unit

(hereinafter referred to as CZU) w.e.f. 14.2.2007 to

3.12.2008 with additional charge of Zonal Director,

NCB, Jammu w.e.f. 14.2.07 to 16.5.2008. He was

relieved from NCB/CZU on 31.12.2008 for Enforcement

Directorate, Cochin. Dr. Saji Mohan was arrested by

Anti Terrorist Squad, Mumbai (hereinafter referred

to as ATS, Mumbai) on 24.1.2009 with huge quantity

of Heroin from his conscious possession and case was

registered against him vide no.01/2009 dated

24.1.2009 u/s 8(C),21 & 29 of Act. Dr.Saji Mohan was

interrogated by ATS, Mumbai and on the interrogation

report, Sh.K.P. Raghuvanshi, Additional Director

General of ATS Mumbai sent a report to the Director

General, NCB, New Delhi requesting for verification

of facts disclosed by Dr. Saji Mohan and to take

suitable action and criminal proceedings at the NCB

end. As per report, Dr. Saji Mohan had pilfered and

manipulated the contraband seized from various

places in Punjab and Jammu, keeping aside the pure

contraband for his personal gain. This illegal act

was possible in connivance with the subordinates.


Balwinder Kumar, Superintendent, NCB Chandigarh was

questioned along with C. Naveen Kumar and Davinder

Pal Singh, PSOs of accused Dr. Saji Mohan. To

ascertain their complicity, it was necessary that

the records of seizures in 2007-08 from all the

places including Punjab, Haryana, Himachal Pradesh

and Jammu were verified. Reports of Chemical Analyst

regarding the seized contraband in custody of NCB

was required to prove pilferage or adulteration.

Officers in the Zonal office, Chandigarh and Jammu

were to be examined. It was stated that pilfering

from the seizure of the unclaimed drugs started from

May, 2007, slaked lime was added to the contraband

to enhance the quantity, some times part of the pure

contraband was removed and the quantity of seized

contraband was managed by adding slaked lime. Mixing

of slaked lime was done on the site of seizure, if

possible. In some cases, entire seized material was

brought to the office of Zonal Director, Chandigarh

where it was packed and sealed after mixing slaked

lime. Places where pilferage/adulteration took place

were Mohmediwala, Ferozepur by BSF, Rattokhe and

Jammu. Raiding party generally consisted of

Superintendent Balwinder Kumar, PSO Naveen Kumar and

Davinder Pal Singh. The subordinate staff was aware

of the pilferage of the seized contraband. In some

cases, cash seized from the spot was distributed

among the raiding staff including Superintendent

Balwinder Kumar and PSOs as reward. In some cases,

samples of the seized contraband were taken after

they were mixed with slaked lime to avoid detection

of adulteration in future. Not all pilfered


contraband was brought to Mumbai. In all he had

pilfered about 60 kg of Heroin and out of that about

10 kg was handed over to one known drug smuggler of

Jammu area namely Naseeb Chand.

3 Investigation into matter was assigned to

Sh.Harcharan Singh, Superintendent, NCB on

17.2.2009. Harcharan Singh Superintendent recorded

statements of Davinder Pal Singh, Constable J&K

Police u/s 67 of Act on 9.3.2009 after serving him

notice. Davinder Pal Singh made statement in his own

hand voluntarily, without any duress, coercion,

influence or promise. He disclosed that he was the

PSO of Dr.Saji Mohan during his tenure as Zonal

Director, NCB, Chandigarh and that 30 kg was

siphoned off out of 60 kg Heroin, seized by NCB,

CZU, Jammu vide case no.NCB/JZU/03/2008. The

siphoning was done on the directions of Dr.Saji

Mohan in JZU, Jammu in the presence of Balwinder

Kumar Superintendent. The siphoned 30 kg Heroin

packed in 30 separate packets was kept in red

coloured wooden box and put in the dicky of vehicle

of Dr.Saji Mohan. He made repacking of 22-23 packets

of seized Heroin in the office of Dr. Saji Mohan in

his presence in September, 2008 and he was given

Rs.5000/- as reward. Davinder Pal Singh was arrested

on 14.3.2009.

4 Thereafter, Harcharan Singh Superintendent

recorded statement of C. Naveen Kumar, J&K Police

u/s 67 of Act on 9.3.2009 and 14.3.2009 after


serving notice. He also made statement in his own

hand disclosing that he was deputed as PSO of

Dr.Saji Mohan during his tenure as Zonal Director,

NCB Chandigarh. He along with Dr. Saji Mohan visited

Mumbai in October, 2008 where Dr.Saji Mohan handed

over a bag to one person in red coloured car. He

also disclosed that in the month of November, 2008,

in the evening, on two occasions, Dr. Saji Mohan

called him in the office where Balwinder Kumar

Superintendent was already present with some lots of

seized Heroin. He along with Balwinder Kumar mixed

lime in the Heroin lots and handed over siphoned off

Heroin to Dr. Saji Mohan. Many times whatever money

was recovered during raids, it was given to Dr. Saji

Mohan through Balwinder Kumar, then Superintendent.

C. Naveen Kumar further disclosed that Dr. Saji

Mohan gave him Rs.10,000/- when he was going to

Cochin with the house hold goods of Dr.Saji Mohan in

the month of December, 2008 and returned back to

Jammu on 9.1.2009. Naveen Kumar was arrested after

his statement.

5 Sh. Harcharan Singh, Superintendent, NCB

recorded the statement of Balwinder Kumar after

serving him notice u/s 67 of Act on 23.2.2009. He

disclosed that he was on deputation from Seema

Sashatra Bal (SSB) to NCB w.e.f. March, 2004 and

posted in Chandigarh Zonal Unit, Chandigarh as

Intelligence Officer. Lateron, in March, 2007, he

was promoted to the rank of Superintendent in the

same unit and designated as Incharge Malkhana, NCB


CZU, Chandigarh. He also had additional charge of

Superintendent, NCB, Jammu. He, however, did not

disclose about any pilferage from the seized

contraband of NCB CZU, Chandigarh and JZU, Jammu. On

the confessional statement of C. Naveen Kumar and C.

Davinder Pal Singh, Balwinder Kumar was placed under

arrest.

6 Then, Harcharan Singh recorded statement

of Nasib Chand after serving notice u/s 67 of the

Act. As he was an illiterate person, so his

statement was recorded by Sh.R.C. Bodh, I.O.,

NCB/CZU. He disclosed that he was informer of BSF,

Custom & Central Excise and other government

agencies and got money from them. He crossed Indo-

Pak border many times and was lodged in Pakistan

jail for four times and once in Jammu Jail for

fourteen months. He knew Dr. Saji Mohan since May,

2008 through Sepoy Vijay Kumar, NCB Jammu Zonal

Unit. He met Dr. Saji Mohan in June, 2008 where Dr.

Saji Mohan offered him Rs.50,000/- per kg for sale

of Heroin in open market and gave him Rs.1000/- for

daily expenses. After 15-20 days, Naseeb Chand again

met Dr. Saji Mohan in NCB office, Chandigarh where

Dr. Saji Mohan gave him Rs.500/- and asked him to

find a party to sell Heroin in open market. After

that, Naseeb Chand contacted Custom & Excise

officials in Amritsar and informed them that he may

give seized Heroin to them. He again met Dr. Saji

Mohan in his office in the month of August, 2008 to

get the sample of Heroin. Naseeb Chand disclosed


that Dr. Saji Mohan handed over to him 10 kg Hereoin

at his residence on 26.8.08 for sale in open market,

but he handed over this Heroin to Custom & Excise

officials at Amritsar, who in turn gave him

Rs.50,000/- as reward. The Custom & Central Excise

officials showed this as unclaimed seizure of 10 kg

Heroin on 27.8.08. Thereafter, Naseeb Chand was

arrested on 27.3.09.

7 Sh.Harcharan Singh Superintendent recorded

statement of M.M.S. Bhandari, Investigating Officer,

NCB/JZU, Jammu u/s 67 of Act on 8.4.2009 after

serving notice u/s 67 of Act. MMS Bhandari made his

statement in his own hand. He stated that he was on

deputation from Central Industrial Security Force to

NCB w.e.f. 24.10.07 and was posted in JZU, Jammu as

Intelligence Officer from 24.10.07 to May, 2009. He

was Seizing Officer of NCB/JZU/Crime Case no.03/2008

dated 15.5.08. When he joined Jammu Zonal Unit, Dr.

Saji Mohan was holding the charge of Zonal Director

of JZU and Balwinder Kumar was having additional

charge of Superintendent, NCB/JZU. Dr. Saji Mohan

reached Jammu on 14.5.08 when the regular

Superintendent of JZU N.R. Sharma was on leave and

Balwinder Kumar of NCB, Chandigarh was holding the

charge of Superintendent of JZU. On 15.5.2008

morning, M.M.S. Bhandari came to NCB Jammu office

and at around 1100 hrs. Sanjeev Chandel,

Intelligence Officer, JZU, Jammu informed him over

telephone that BSF, Jammu made some case of Heroin

in the border area and asked M.M.S. Bhandari to look


into that case. He then intimated Dr. Saji Mohan

about this and left for border along with his team

on directions of Dr. Saji Mohan. On reaching the

border, he checked the suspected material with the

help of field detection kit and found it positive

for Heroin. There were total 60 packets of Heroin

along with fake Indian currency notes. He took over

the recovered contraband, made seizure memo and left

for NCB, Jammu office at around 1900 hrs due to non-

availability of proper light and other facilities at

border. He reached NCB Jammu office at 2030 hrs. and

showed the seized property to Dr.Saji Mohan. After

that, Saji Mohan and Balwinder made some discussions

between them. Balwinder Kumar checked the seized

property and asked the Intelligence Officer to come

with sealing material. Intelligence Officer MMS

Bhandari along with NCB Jammu team went at the

sealing place at first floor next to Zonal

Director's office. They started the sealing work and

opened 8 to 10 packets. Dr. Saji Mohan sent them a

message to come down for a meeting at ground floor.

MMS Bhandari along with his team came down on ground

floor in the office of Superintendent where Dr. Saji

Mohan was already sitting. Balwinder Kumar accused

was present at first floor with case property along

with PSOs of Dr.Saji Mohan. Dr. Saji Mohan took

meeting of all NCB Jammu staff for 1 to 1.30 hrs.

During the course of meeting, Balwinder Kumar and

PSOs completed withdrawal of samples and sealing of

whole case property by converting 60 packets into

three lots of 20 kg each. When M.M.S. Bhandari

returned from meeting, he found that whole sealing


process was completed and Balwinder Kumar had

already put his signatures on the sealed case

property. After completing the Panchnama, M.M.S.

Bhandari handed over whole sealed case property to

Balwinder Kumar and took godown receipt from him. He

was not aware of any pilferage by Balwinder Kumar

and his associates during sealing process in his

absence. He also disclosed that he brought the

recovered case property unsealed from the border to

NCB office, Jammu on the direction of Dr. Saji

Mohan. All the sixty packets of one kg each were

similar containing Heroin in transparent polythene

wrapped with white cloth properly sewed and again

wrapped with brown coloured tape from outside. He

further disclosed that signature from BSF witnesses

were taken on Panchnama, case property and samples

on the next day i.e. 16.5.2008.

8 Sh.Harcharan Singh Superintendent then

recored statement of Vijay Pal Singh, Head Constable

of BSF Jammu u/s 67 of Act on 6.4.2009. He stated

that he was a witness in the seizure of 60 kg Heroin

by NCB/JZU Crime no.03/2008 through 141 Bn BSF.

Heroin was not sealed at the time of handing over to

NCB, Jammu on 15.5.2008 and he and Rakesh Roshan,

Sub Inspector, BSF signed Panchnama, case property

and samples on 16.5.08 in the evening. He also

disclosed that the withdrawal of samples and sealing

of case property was not done in his presence and he

signed Panchnama, case property and samples in good

faith after seeing signature of Seizing Officer and


Superintendent. Seized packets of Heroin were in

transparent polythene, wrapped in white cloth which

was again wrapped with brown coloured tape and all

sixty seized Heroin packets were similar. He did not

have knowledge of pilfering of Heroin from the

seized sixty packets by NCB officials.

9 In the same manner, statement of Rakesh

Roshan, Sub Inspector, BSF, Jammu was recorded in

his own hand. He stated that he was a witness in

seizure of 60 kg Heroin by NCB/JZU crime no.03/2008

through 141 Bn BSF. He disclosed that Heroin was

handed over to NCB Jammu on 15.5.2008 at about 1700-

1800 hrs in the evening and was not sealed at that

time. He along with Vijay Pal Singh, HC BSF signed

Panchnama, case property and samples on 16.5.08. He

also disclosed that the withdrawl of samples and

sealing of case property was not done in his

presence and he signed Panchnama, case property and

samples in good faith after seeing the signatures of

Seizing Officer and Superintendent. He was not

having knowledge of pilferage of Heroin from the

seized sixty packets by NCB officials.

10 Statement of Vijay Kumar, Sepoy of

NCB/JZU was recorded after serving notice u/s 67 of

the Act in his own hand. He stated that Naseeb Chand

was Informer of BSF since 1998. Dr. Saji Mohan took

over charge of Zonal Director, Jammu in 2007 and he

was driver-cum-sepoy. Dr. Saji Mohan asked him to

trace out sources of Heroin in and around Jammu.


Then he introduced Naseeb Chand to Dr. Saji Mohan.

After some days, M.K. Sharma took over the charge of

Zonal Director from Dr. Saji Mohan. After that, he

received telephonic message from CZU, Chandigarh to

ask Naseeb Chand to meet Dr.Saji Mohan in Chandigarh

and he conveyed the same to Naseeb Chand. He showed

ignorance about any conversation between Dr.Saji

Mohan and Naseeb Chand. He also disclosed that

withdrawl of samples and sealing of 60 kg Heroin on

15.5.2008 was done in a room at NCB, JZU office next

to the chamber of Zonal Director by Balwinder Kumar

on intervening night of 15-16.5.2008, when all staff

members of JZU, Jammu were attending meeting of Dr.

Saji Mohan in the office of Superintendent, JZU,

Jammu at ground floor including MMS Bhandari, IO.

11 Sh.Harcharan Singh, Superintendent also

recorded statement of Kaushal Kumar, Sepoy of

NCB/JZU and Abhey Raj, Peon of NCB/JZU in their own

handwriting. They disclosed that they were members

of the team led by MMS Bhandari, IO which made

seizure of sixty kg heroin on 15.5.08. After taking

over recovered drug by MMS Bhandari, IO from BSF,

the team left for NCB office JZU, Jammu at about

1900 hrs. MMS Bhandari, IO showed the whole

recovered drug to Dr.Saji Mohan and kept the whole

recovered drug in the kitchen as per his directions.

Balwinder Kumar asked MMS Bhandari to do some work

on computer. After five minutes, they received a

message that Dr. Saji Mohan was calling for a

meeting in Superintendent's office where all other


staff of NCB JZU was already present. The meeting

continued for 1-1/2 hrs and no staff member of JZU

had gone out of room during whole meeting. On

completion of meeting, they found that seized drug

had been converted into big lots lying in the lobby

and Balwinder Kumar was standing near sealed drug

lots. Sealing of seized drug and withdrawal of

samples was made in the absence of JZU staff as they

were busy in the meeting.

12 Statement of N.R. Sharma, Superintendent,

NCB/JZU was also recorded in his own hand to the

effect that he was on 12 days earned leave w.e.f.

5.5.2008 to 19.5.2008 and Balwinder Kumar had the

additional charge of Superintendent, JZU in his

absence. When he joined back, he came to know about

unclaimed seizure of sixty kg Heroin made by NCB,

JZU, Jammu through BSF on 15.5.08. Withdrawal of the

samples and sealing of seized Heroin was done in the

supervision of Balwinder Kumar, Superintendent, CZU,

Chandigarh. Drawl of fresh samples from the case

property for verification, packing material was done

on 19.3.2009 before the court at Jammu where he was

present. Memo of verification of packing material

was prepared and he signed the same along with

Harcharan Singh, Superintendent and Kaushal Kumar,

Sepoy, NCB, JZU, Jammu.

13 Sh. Harcharan Singh Superintendent

recorded statement of Manjeet Singh, Constable, J&K

Police in his own hand who stated that he was on PSO


duty with Dr.Saji Mohan in NCB, Chandigarh and on

14.5.08, he left for Jammu from Chandigarh in a

vehicle with Dr. Saji Mohan and driver Kartar Singh

and reached Jammu at aroun 9 p.m where Dr. Saji

Mohan stayed in GOs Mess of J&K Police and he went

to his home in Jammu. On 15.5.2008, he came to GOs

Mess and then reached in NCB JZU office at around

1000 hrs. In the evening, Dr. Saji Mohan told him

that NCB Jammu unit had done a seizure of 60 kg

Heroin through BSF. He along with Dr. Saji Mohan

went to Jammu office and returned back to GOs Mess

at night and after dropping Dr. Saji Mohan at GOs

Mess, he went to his house in Jammu. The next day on

16.5.2009, he reached NCB Jammu Office at about 1100

hrs. where Dr. Saji Mohan was already present. He

saw three sealed lots of seized Heroin and went to

restaurant to meet his relative. Dr. Saji Mohan and

driver Kartar Singh picked him from restaurant at

about 1400 hrs. and they reached back to Chandigarh.

He denied having any knowledge of pilferage.

14 Sh.Harcharan Singh Superintendent recorded

statement of Kartar Singh driver on 7.4.09 after

serving notice u/s 67 of Act. He stated that he

worked as a daily wager from February, 2008 to

February, 2009 and used to drive government vehicle

and vehicle of Dr. Saji Mohan whenever required. On

14.5.2008, he along with Dr. Saji Mohan and PSO C.

Manjeet Singh left for Jammu from Chandigarh in a

vehicle by road and reached there in night. Dr. Saji

Mohan stayed in GOs Mess of J&K Police and C.


Manjeet Singh went to his home in Jammu. Next

morning, he along with Dr. Saji Mohan and C. Manjeet

Singh reached NCB Office, Jammu at around 1000 hrs

and again came back to GOs Mess in the afternoon. In

the evening, at around 1800-1900 hrs., they again

went to NCB Jammu office and returned back to GOs

Mess after staying one hour in the office. Next

morning, on 16.5.2008, he along with Dr. Saji Mohan

reached NCB office Jammu where PSO Manjeet Singh

reached and met Dr. Saji Mohan for 10-15 minutes and

then he came back to vehicle and told that he was

going to meet his fiancee in a restaurant. At about

1300 hrs., Dr. Saji Mohan came out from the office

and put his luggage in the vehicle and he started

from Chandigarh. On the way, he picked PSO Manjeet

Singh from the restaurant. He left Dr. Saji Mohan

and his luggage at his residence and reached NCB

Office, Chandigarh along with Manjeet Singh where he

left Manjeet Singh. He denied having any knowledge

regarding pilferage of Heroin.

15 Statement of Virat Dutt Choudhary was

recorded on 20.4.2009. He stated that he was Retired

Assistant Commissioner, Custom & Central Excise

Department and was posted in Amritsar at the time of

unclaimed seizure of 10 kg Heroin by C&CE on

27.8.08. Inspector Vijender Singh introduced Naseeb

Chand to him as an Informer, who promised to give a

good case. On 24.8.09, Inspector Vijender Singh gave

him informatioin that he contacted Naseeb Chand and

said that on 26.8.2008, handing over of goods would


take place by smugglers on scooter or motorcycle.

Then, he along with staff laid 'naka' and in the

late midnight, a Scooter was noticed coming towards

them. The team tried to stop the Scooter, but he ran

back and in the process, he dropped a polythene

packet containing drugs. Thereafter, whole staff

came back to Custom House in Amritsar along with

drug packets. He did not know Dr. Saji Mohan. The

origin of drug was not known to him. Cash money was

provided to Naseeb Chand as reward, but he could not

remember the exact amount. He personally supervised

the operation and seized drug was 10 kg.

16 Sh. Harcharan Singh Superintendent

recorded statement of Vijender Singh, Inspector,

C&CE on 10.7.09 after serving notice in his own

hand. He disclosed that he along with Virat

Chaudhary made seizure of 10 kg Heroin in August,

2008 and that he know Naseeb Chand as a source of

the department. He did not know Dr. Saji Mohan. He

did not disclose the origin of 10 kg Heroin seized

by his party in 2008.

17 Sh.Harcharan Singh Superintendent

recorded statement of Pushpdeep Singh, Inspector

C&CE on 10.7.09after serving notice u/s 67 of Act in

his own hand. He was Seizing Officer of unclaimed

seizure of 10 kg Heroin by Anti Smuggling Wing of

Custom Commissionerate on 27.8.08. He stated that

custom Staff reached CPS Attari where the staff was

divided in two teams to lay naka near BOP Ramkot and


at wee hours of 27.8.08, ten packets of Heroin

contained in a plastic bag were recovered and

brought to the Custom office. Ten Kg Heroin was

unclaimed seizure and Panchnama, formalities were

completed by him. He could not tell about the origin

of seized Heroin and suspects carrying the Heroin.

He did not know Dr. Saji Mohan and Naseeb Chand.

18 Dr. Saji Mohan was arrested on 13.8.2009.

He was interrogated and his statement was recorded

in his own hand. He disclosed about some of

important seizures during his tenure as Z.D., 60 kg

Heroin in Jammu and 10 kg Heroin at Chandigarh and

on several occasions on Indo Pak border in Punjab

with BSF. He also disclosed that he was not present

in NCB Jammu unit during the seizure of 60 kg Heroin

vide crime no.NCB/JZU/03/2008 dated 15.5.08 and that

Superintendent Balwinder Kumar and M.M.S. Bhandari,

IO performed the seizure operation, but showed his

ignorance about the presence of C.Davinder Pal

Singh, PSO at that time. He denied carrying pilfered

Heroin weighing 30 kg in the dicky of his vehicle

from Jammu to Chandigarh and that he was indulging

in sale of pilfered Heroin in open market. He also

denied calling staff of NCB JZU for meeting in the

office of Superintendent when sealing of 60 kg

Heroin seized by JZU was started at first floor of

JZU office. He denied that he indulged in pilferage

of case properties in connivance with Balwinder

Kumar, Davinder Pal Singh and Naveen Kumar. He also

denied that on two occasions, lots of Heroin from


NCB/CZU godown were taken out by Balwinder Kumar

accused and pilferage was done in office chamber of

Zonal Director in his presence and on his

directions, as stated by Naveen Kumar, PSO. He

denied knowing Naseeb Chand of R.S. Pura, Jammu and

said that he did not give him 10 kg Heroin on

26.8.08 for sale in open market.

19 To ascertain the pilferage from unclaimed

seizures of Heroin made by NCB, Chandigarh and NCB,

Jammu during the tenure of Dr. Saji Mohan,

applications were moved to both concerned Courts for

taking fresh samples from the seized Heroin and to

verify the packing material, for fresh testing in

Central Revenue Control Laboratory (CRCL), New Delhi

to know the quantitative variation in percentage of

(Diacetyl Morphine) DAM at the time of seizure and

the contraband presently kept in NCB malkhana. Case

wise 17 applications were moved in the court at

Chandigarh, Jammu, Amritsar and Ludhiana. Testing

reports of fresh samples were secured, results

whereof are mentioned in para 30 of the complaint.

From the test reports of CRCL, New Delhi, it was

clear that pilferage was done from seized lots of

Heroin in case no.01/2007, 02/2007, 03/2007 (Lot B),

06/2007, 07/2007 (Lot B), 03/2008, 13/2008, 16/2008

of CZU, Chandigarh by Dr. Saji Mohan in connivance

with Balwinder Kumar, Ex-Superintendent, NCB and C.

Davinder Pal Singh and C. Naveen Kumar, both PSOs of

Dr.Saji Mohan. It was clear from the statement of

Naveen Kumar that with the help of Balwinder Kumar,


he took out lots of seized Heroin from NCB malkhana,

mixed slack lime and repacked, sealed the lots.

20 Complainant further stated that in crime

case no.5/2007 of NCB/CZU, the test report of first

two tests of initial sample of seized drug was found

negative for Diacetyl Morphine by CRCL, New Delhi

and CFL, Hyderabad, but in the fresh sample drawn on

10.4.08, Lot-A and Lot-B were found positive for DAM

with 2.8% and 31.7% respectively. It was thus clear

that Seizing Officer Balwinder Kumar, Ex-

Superintendent, NCB, Chandigarh, knowingly sent the

sample of Paracetamol to CRCL, New Delhi and CFL,

Hyderabad to pilfer the drug from the lots. The case

property in the case was deposited with Malkhana on

the order of the court at Ferozepur which was

brought to NCB Malkhana on the pretext of disposal

of case property by showing it as Paracetamol. In

case no.03/2008 of NCB Jammu, it was clear from the

statement of C. Davinder Pal Singh that the samples

from the case property were drawn after taking 30 kg

from total 60 kg seized Heroin and mixing 30 kg

slack lime to equate the quantity. Mixing was done

by Davinder Pal Singh in the presence of Balwinder

Kumar as per directions of Dr. Saji Mohan. Packing

material of each case was verified by the board by

opening it and found as per Panchnama except two

cases wherein packing material was found deficient

as mentioned in para 34 of the complaint bearing

case no.05/2007 dated 19.7.07 and 03/2008 dated

15.5.08.


21 Complaint was thus forwarded in the court

for trial.

22 Copies of the complaint were supplied to

the accused free of costs as envisaged u/s 207

Cr.P.C.

23 A prima facie case under Section 8,21,29

of the Act being made out against the accused Nasib

Chand, Balwinder Kumar, Saji Mohan, Devinder Pal

Singh, Naveen Kumar, they all were charge sheeted by

the Court of Shri Lalit Batra, then Learned Judge,

Special Court on 1.10.2010. Contents of the charge

sheet were read over and explained to the accused in

simple Hindi to which they pleaded not guilty and

claimed trial. Accused Balwinder Kumar and Saji

Mohan were also charge sheeted for the offences u/s

32-B, 59(1), 59 2(b) of the Act. 19 witnesses as

were examined by the prosecution while five were

examined by the accused. Vide order dated 12.12.12

of this court, additional charge u/s 8, 21 of the

Act was framed against accused Saji Mohan regarding

delivery of 10 kg Heroin to Naseeb Chand on 26.8.08

to which he pleaded not guilty and claimed trial.

After 12.12.12, five witnesses were recalled for

cross-examination on request of accused Saji Mohan.

24 Prosecution examined MMS Bhandari,

Intelligence Officer, NCB, Delhi as PW-1, R.C. Bodh,


Superintendent, NCB, JZU, Jammu as PW-2, Parkash

Ram, UDC, NCB, Chandigarh as PW-3, N.R. Sharma,

Superintendent, NCB, Delhi as PW-4, Kaushal Kumar,

Sepoy, NCB, JZU, Jammu as PW-5, HC Vijay Pal Singh

as PW-6, C. Manjit Singh, J&K Police, Jammu as PW-7,

Vijay Kumar, Sepoy, NCB Office, Indore as PW-8,

Kartar Singh as PW-9, Virat Dutt Chaudhary,

Assistant Commissioner, Customs, Amritsar as PW-10,

S.C. Mathur, Chemical Examiner, Custom House,

Kolkata as PW-11, S.K. Mittal, Chemical Examiner,

CRCL, New Delhi as PW-12, Ganesh Balooni,

Superintendent, NCB, Chandigarh as PW-13, Sukhwinder

Singh, DIG, ATS, Mumbai as PW-14, Sanjeev Krishanrao

Tonapi, Inspector, ATS, Mumbai as PW-15, Rakesh

Kumar Roshan, Inspector, BSF, Jammu as PW-16, Pushp

Deep Singh, Inspector Custom, Amritsar as PW-17,

Harcharan Singh Gill, Assistant Commandant, CISF

Unit, Assam as PW-18, K. Natarajan, Under Secretary

to Government of India, Ministry of Home Affairs,

New Delhi as PW-19. PW Vajinder Singh was given up

by ld.SPP being unnecessary.

25 Statements of accused u/s 313 Cr.P.C were

recorded in question answer form. Accused Saji Mohan

pleaded that he was involved in false case to

strengthen another false case planted on him by ATS,

Mumbai showing huge recovery. ATS, Mumbai started a

malafide move under which NCB, Chandigarh was

directed and guided to register false case with a

view to establish the source and origin of false

recovery in which he was involved by ATS, Mumbai.


For that reason, the evidence and statements were

fabricated by NCB, Chandigarh to cover up false

investigation carried out by ATS, Mumbai. A team of

co-accused was also projected to show false

pilferage of Heroin. He did not commit any such

offence as projected and was victim of false

accusation and tainted investigation in the hands of

ATS Mumbai and NCB, Chandigarh.

26 Accused Naseeb Chand denied the entire

incriminating evidence as false and claimed that he

was innocent and was involved in false case by NCB

in league with ATS, Mumbai as ATS, Mumbai was

seeking information from various agencies regarding

their informers and accordingly, his name was

supplied to strengthen a false case to make him

scape-goat. He had no connection with the accused

facing trial.

27 Accused Davinder Pal Singh and Naveen

Kumar similarly denied the incriminating evidence as

false and stated that they had been falsely

implicated to show the source of Heroin allegedly

recovered from Saji Mohan. They were summoned by

ATS, Mumbai when false case was planted against Saji

Mohan and thoroughly interrogated. When nothing

incriminating was found against them, clean chit was

given. Lateron, to establish the alleged source of

recovery of contraband, ATS, Mumbai in league with

high ups of NCB started a malafide move which

resulted into registration of this false case to


show false pilferage of Heroin.

28 Accused Balwinder Kumar stated that

seizure of 60 kg Heroin was made by BSF, Jammu on

15.5.2008 and he was informed by Mr. Bhandari about

the seizure on 15.5.08 in the evening and

accordingly, he rushed to Jammu and reached in the

morning of 16.5.08. He signed the Panchnama which

was already prepared after sampling by Mr. Bhandari

on 15.5.08. Statement given by MMS Bhandari u/s 67

was manipulated by him in league with officials of

NCB and ATS, Mumbai to connect him in the false

case. He was involved falsely by NCB in league with

ATS, Mumbai to strengthen a false case in which Dr.

Saji Mohan was arrested by ATS, Mumbai. Since ATS,

Mumbai was unable to unearth the source of alleged

recovery at Mumbai, as such, in clever move, ATS

Mumbai joined hands with NCB officials and after

fabricating various memos, statements u/s 67 of Act,

projected the present case of pilferage of Heroin

from different unclaimed recoveries including

malkhana of NCB godown. The drama was staged by NCB

to strengthen a case registered against Saji Mohan

in consultation with ATS, Mumbai.

29 In defence evidence, accused examined C.

Anand Chetia, BSF, District Taran Taran as DW-1, HC

Dondia, Intelligence Officer, NCB Headquarters,

Delhi as DW-2, Sanjiv Chandel, Sub Area Organiser,

SSB Training Centre, Ghitorni, New Delhi as DW-3,

Pratap Singh Yadav, Intelligence Officer, NCB,


Chandigarh as DW-4 and Pratap Singh Yadav,

Intelligence Officer (Legal) NCB, Chandigarh as DW5.

30 Initiating arguments, Sh. Kailash Chander,

learned Special Public Prosecutor for NCB argued

that accused Saji Mohan was arrested by ATS, Mumbai

with huge quantity Heroin at Mumbai Airport on

24.1.2009. During interrogation in that case, it was

revealed that he had been pilfering contraband from

unclaimed seizures in Jammu and Chandigarh. It was

further argued that on 15.5.2008, when accused Saji

Mohan was Zonal Director, NCB, Incharge of Jammu

Zonal Unit, 60 kg Heroin was recovered as unclaimed

seizure from Indo-Pak Border. After the recovery,

the contraband was brought to Zonal Unit, Jammu for

sampling and sealing. At about 7 p.m., accused Saji

Mohan convened an emergency meeting and called

M.M.S. Bhandari, Intelligence Officer, NCB, Zonal

Unit, Jammu (PW-1) who was in the process of

sampling and sealing the contraband, and all other

officers of JZU, Jammu. Balwinder Kumar who had the

additional charge of godown of Jammu Zonal Unit on

15.5.2008, went to the first floor where the

contraband was lying, pilfered 30 kg Heroin and

added to it 30 kg of slaked lime after which he

prepared 3 lots of 20 kg each after taking out the

samples. In this context, statement of PW-1 M.M.S.

Bhandari was referred and that of PW-5 Kaushal Kumar

to prove the presence of Balwinder Kumar in NCB Unit

on 15.5.2008. Reference was also made to the

statement of PW-6 HC Vijay and PW-16 Inspector


Roshan Lal who deposed regarding recovery of 60 kg.

unclaimed Heroin on 15.5.2008. It was argued that

accused Saji Mohan did not deny his presence in NCB

Zonal Unit, Jammu on 15.5.2008 and 16.5.2008 and the

plea of accused Balwinder Kumar that he was in

Chandigarh on 15.5.2008 was falsified by Ex P-1,

recovery memo-cum-seizure memo whereon Balwinder

Kumar had signed and put the date of 15.5.2008. He

further argued that similar pilferage was made by

accused Balwinder Kumar in the unclaimed seizures

lying in the malkhana at Zonal Unit, Chandigarh

which was proved from the test reports which showed

a marked decrease in the percentage of diacetyle

morphine content. Learned SPP further submitted that

after pilfering 30 kg. Heroin from Jammu Zonal Unit,

accused Saji Mohan, who was in contact with co-

accused Naseeb Chand, Informer of BSF & Customs, had

given him 10 kg Heroin to sell in open market, but

as per confessional statement of Naseeb Chand Ex P-9

which he did not retract, Naseeb Chand made over

Heroin to the Customs Department which showed it as

unclaimed seizure on 26.8.2008, the date Saji Mohan

made delivery to Naseeb Chand. In this context,

statements of PW-10 Virat Dutt and PW-17 Pushpdeep

Singh were relied upon. It was urged that the story

of PW-10 that the unclaimed seizure was recovered

from unidentified persons who came on a Scooter and

fled after dropping the packet was concocted and in

fact, the 10 kg Heroin recovered was supplied by

accused Naseeb Chand to whom it was given by accused

Saji Mohan. Learned SPP urged that from the

statements of witnesses examined and the test


reports proved on file, it was a fit case to convict

the accused.

31 Ms.Sarabjit Kaur, learned counsel on

behalf of accused Saji Mohan argued that NCB Zonal

Unit, Chandigarh had initiated the case on

inadmissible confessional statement before ATS,

Mumbai. Cross-examination of PW-1 was referred to

show that as per rules, all documents were to be

prepared after checking, testing, weighing,

parceling and taking out samples at spot. It was

urged that PW-1 M.M.S. Bhandari, Intelligence

Officer had himself violated instructions no.1/88 by

not conducting the process of sampling and sealing

at spot and his statement did not deserve to be

relied upon. It was submitted that though

prosecution case was that accused Saji Mohan, Zonal

Director, NCB called an emergency meeting and

detained M.M.S. Bhandari and other officials for 1-

1.30 hrs., statement of PW-7 C. Manjeet Singh was

that Saji Mohan remained in NCB Unit, Jammu only for

15 minutes, so, the evidence regarding holding of

meeting by accused Saji Mohan was contradictory.

PW7, in cross-examination stated that Saji Mohan

remained in the office only for 5-7 minutes.

Referring to the cross-examination of PW-4 N.R.

Sharma, it was argued that as per rules, NCB

Officers were required to complete all the

formalities like seizure, weighing, parceling and

sampling at spot and the Panchnama Ex P-1 prepared

by PW-1 M.M.S. Bhandari and his statement on oath


was a glaring example of violation of instructions

and law by the Intelligence Officer. Ex P-1

reflected that the recovery, seizure, weighing and

sampling was done at the spot while it was

prosecution case that after recovery, the contraband

was taken to NCB Zonal Unit.

32 It was next submitted that PW-6 HC Vijay

Pal Singh and PW-16 Inspector Rakesh Roshan of BSF

both stated that the recovery of 60 kg Heroin was

made from their post on 15.5.2008, but they were

called to NCB Office on 16.5.08, to put signatures

on the packets on back date i.e. 15.5.08.

Prosecution miserably failed to prove why the

signatures of PW-6 and PW-16 were taken on back

date. Statements of prosecution witnesses proved

manipulation of records by NCB and the case set up

could not be believed. PW-5 Kaushal Kumar admitted

that the contraband recovered from BSF remained in

custody of M.M.S. Bhandari and remained intact in

his possession from the time of seizure and till

deposit in malkhana. This admission, according to

learned defence counsel, knocked out prosecution

case of pilferage of contraband during meeting

called by accused Saji Mohan.

33 It was next urged that prosecution case

started on the confessional statements of accused

Naveen and Davinder Pal Singh which were retracted

at the earliest point of time and no reliance could

be placed on the retracted confessions. In this


context, learned counsel referred to U.O.I. Vs. Bal Mukund & Ors. 2009(2) RCR (Crl.) 574 (SC), Noor Aga

Vs. State of Punjab & anr. 2008(3) RCR (Crl.) 633

(SC), Francis Stanly Vs. Intelligence Officer, NCB

(2007)2 Supreme Court Cases 618, Suresh Budharmal

Kalani Vs. State of Maharashtra 1998 Supreme Court

Cases (Cri) 1625, Haricharan Kurmi & Ors. Vs. State

of Bihar AIR 1964 S.C. 1184.

34 Referring to the table at page 20 of the

complaint, learned counsel submitted that the

variation in the quantity of diacetyle morphine

after re-sampling was between -18.1% to -68%. 10 kg

Heroin allegedly handed over by accused Saji Mohan

to co-accused Naseeb Chand for sale in open market

was a part of the pure quantity of contraband

pilfered from NCB Zonal Unit, but the report Ex

PW17/A showed that the percentage of diacetyle

morphine was between 39% to49%, so, prosecution case

could not be believed. It was argued that

investigation of the case was tainted and the

evidence was fabricated by NCB to cover up the false

investigation carried out by ATS, Mumbai. Statement

of PW-7 C.Manjeet Singh was referred in support of

the argument that while recording statement u/s 67

of the Act, NCB officers tried to introduce few

facts favouring their case, but he did not succumb

to the pressure. Cross-examination of PW-7 was also

referred to show that Balwinder Kumar was not even

present on 15.5.2008 in NCB office, Jammu and he

reached from Chandigarh at about 11/11.30 p.m. on


16.5.2008. So, the stand of prosecution that

Balwinder Kumar was pilfering contraband on the

direction of Saji Mohan was defeated. Version of PW-

9 in his examination-in-chief that they went to NCB

office, Jammu on 15.5.2008 and stayed there for one

hour was contradicted by his cross-examination

wherein he stated that they returned to GOs Mess on

15.5.2008 at 8.30 p.m., so, prosecution case that

the meeting started from 9 p.m onwards was also

contradicted.

35 It was argued that since prosecution

witnesses had themselves deposed contrary to the

prosecution case and were not declared hostile,

their evidence had to be used in favour of defence.

In this context, Mukhtiar Ahmed Ansari Vs. State

(NCT of Delhi) 2005 Supreme Court Cases (Cri) 1037

was relied upon. It was submitted that statements of

accused Balwinder Kumar and accused Saji Mohan

recorded during investigation u/s 67 of the Act were

not incriminating and this was admitted by the

Investigating Officer PW-18. No independent witness

was joined at the time of recording the confessional

statement of co-accused Naveen Kumar and Davinder

Pal Singh which were lateron retracted by them.

Prosecution could not rely upon uncorroborated,

contradicted and retracted statements of co-accused

to seek conviction. No tampering or re-sealing was

found on the material/packets of crime no.3/2008 as

per statement of PW-13 and PW-18.


36 Statements of PW-10 Virat Chaudhary, PW-17

Pushpdeep Singh were referred in support of the

argument that prosecution case that 10 kg contraband

was given by accused Saji Mohan to co-accused Naseeb

Chand on 26.8.2008 for sale in open market which he

handed over to Excise & Custom Officials at

Amritsar, contradicted the statements of PW-10 and

PW-17 who stated that they received information

through Naseeb Chand regarding 10 kg Heroin but it

was seized from unknown person riding a Scooter. It

was argued that prosecution failed to examine

Vijender Singh, who allegedly received the

information on 24.8.08 regarding 10 kg Heroin.

Accused Naseeb Chand was an illiterate person and

prosecution took advantage of this fact while

recording his confessional statement without joining

independent witness to authenticate it, despite

availability. There was no conspiracy at all between

accused Saji Mohan and Naseeb Chand and statement of

co-accused Nasib Chand could not be made the basis

of conviction. No evidence was produced by the

prosecution against Saji Mohan for alleged pilferage

in other cases. PW-18 was not a Gazetted Officer,

so, he was not fully authorized to sign the

complaint. No authorization was produced by PW-18 to

file the complaint and the complaint and

investigation was bad in law.

37 On behalf of accused Naveen and Davinder

Pal Singh, Sh. Sandeep Kumar, Advocate argued that

there was absolutely no evidence to prove their


complicity in the offence and the alleged

confessional statements relied upon by the

prosecution were retracted at the earliest possible

opportunity, so, they could not be acted upon.

38 It was also argued that the offence was

allegedly committed at Jammu and Chandigarh Court

has no jurisdiction to try the same. Additional

charge of accused Saji Mohan as Zonal Director Jammu

NCB, Jammu Unit could not give jurisdiction to the

court to try the offences.

39 On behalf of accused Balwinder Kumar,

Sh.Rabindera Pandit, Advocate argued that

examination-in-chief of PW-1 M.M.S. Bhandari was

contrary to the Panchnama Ex P-1 according to which

the entire exercise of recovery, seizure, weighing

and sampling was done on 15.5.2008 at the spot. It

was argued that no slacked lime was found in the

test reports and prosecution miserably failed to

prove that the accused had added 30 kg slacked lime

in the recovered contraband of 60 kg. It was further

submitted that accused Saji Mohan had no prior

information about the recovery of 60 kg. Heroin from

Indo Pak border on 15.5.2008, so there could be no

prior meeting of mind or conspiracy to commit the

pilferage. No evidence was led by the prosecution to

prove from where 30 kg slacked lime was procured by

accused Balwinder Kumar. No link evidence was

collected by the Investigating Agency. Cross-

examination of PW-8 was referred to show that his


statement u/s 67 of the Act was dictated by Sh.

Harcharan Singh Gill, the complainant and he asked

him to sign the statement which showed that

investigation was manipulated and tainted to involve

the accused falsely. Referring to the documents

proved by DW3, it was argued that accused Balwinder

Kumar was not even present in Zonal Unit, NCB Jammu

on 15.5.2008 and was present in Chandigarh.

Statements of PW-7 and PW-9 were also referred in

this regard. It was argued that prosecution

witnesses supported defence case that accused

Balwinder Kumar was not present in Jammu on

15.5.2008. Signatures of Balwinder Kumar on Ex P1

were taken on back date on 16.5.08 and this was

proved by the witnesses of the prosecution PW-6 and

PW-16 whose signatures were also taken on back date.

PW-1 M.M.S. Bhandari while preparing the Panchnama

himself flouted all rules and instructions with

impunity and his statements could not be relied

upon. According to statement of PW-3 Ganesh Balooni,

all the material/packets which were inspected by the

team were found intact and there was no tampering or

re-sealing found during checking by the team.

Complainant Harcharan Singh was himself the

Investigating Officer, a person highly interested in

success of the case and this was another defect in

the faulty investigation. No sanction to prosecute

Balwinder Kumar was ever obtained. Statement of DW-3

Sanjeev Chandel, Sub Area Organizer, who was

Intelligence Officer in NCB Jammu at the relevant

time was also referred to show that on 15.5.2008 at

about 4 p.m., he was called by accused Balwinder


Kumar from NCB, Chandigarh regarding the seizure of

60 kg Heroin in Jammu and he made inquiry about the

time of the buses to reach Jammu. Regarding

variations in re-sampling of unclaimed seizures in

Chandigarh Unit, it was argued that if at all any

pilferage was there, variation would have been much

more.

40 Refuting the arguments, learned SPP

submitted that incidents of pilferage from unclaimed

seizures only came to light after accused Saji Mohan

was arrested by ATS, Mumbai on 24.2.2009 and he made

confessional statement. Prosecution witnesses had no

reason to depose falsely against the accused. They

had no ill-will against them and accused Balwinder

Kumar failed to explain what were the compelling

circumstances to put his signatures on 16.5.08 on

back date. The retraction of confessional statement

was made after three months and was not

spontaneous, therefore, confessional statements were

to be relied upon. He made prayer that the accused

be convicted.

41 The following points arise for

determination in this case:-

“(i)Whether on 15.5.2008, in the area of NCB, JZU, Jammu, accused Balwinder Kumar in

connivance and conspiracy with accused Saji

Mohan, Davinder Singh and Naveen Kumar pilfered

Heroin to the extent of 30 kg from an unclaimed

seizure of 60 bags Heroin?


“(ii)Whether the retracted confessional statements of accused Nasib Chand, Devinder Singh and Naveen Kumar are admissible in evidence and can be relied upon?

“(iii)Whether accused Balwinder Kumar, then Superintendent, NCB, Chandigarh and Godown Incharge, NCB, Chandigarh connived and conspired with accused Saji Mohan, Devinder Singh and Naveen Kumar to pilfer Heroin from unclaimed seizures.”

(iv)Whether prosecution has proved beyond reasonable doubt that on 26.8.08 in the area of Chandigarh, accused Saji Mohan delivered 10 kg Heroin to accused Nasib Chand for sale in open market?

(v)Whether complainant is duly authorized Officer u/s 36-A(i)(d) of the Act?

(vi) Whether the sanction order Ex PW19/A is valid?

42 To answer the points above, a glance at

the evidence on record would help.

43 PW-1 M.M.S. Bhandari was Intelligence

Officer in Jammu Zonal Unit on 15.5.2008, who seized

60 kg unclaimed Heroin from Indo Pak Border near BSF

Post. He stated that he brought the seized drugs to

NCB Zonal Unit, Jammu after preparing the recovery-

cum-seizure memo Ex P-1 at spot. While he was in the

process of opening the 60 packets, Saji Mohan called

an emergency meeting, summoned him and detained him

for 1-1.30 hrs and when he returned, he saw three

lots of 20 kg Heroin already prepared by Balwinder

Kumar. Thereafter, he took two samples from the

lots, sealed them and prepared the Panchnama Ex P-1.


.PW-2 R.C. Bodh was Superintendent, NCB,

Jammu Zonal unit, Chandigarh on 26.3.2009. He stated

that he served notice Ex P-8 on Naseeb Chand and

recorded his statement Ex P-9 on the directions of

Harcharan Singh Gill, Superintendent. Accused Naseeb

Chand was arrested vide memo Ex P-10 and his

jamatalashi was Ex P-11.

.PW-3 Parkash Ram, UDC was LDC in NCB

office on 8.4.2009. He recorded statement of Vijay

Pal Ex P-12 on directions of Harcharan Singh Gill,

Superintendent.

.PW-4 N.R. Sharma was Superintendent,

Zonal Unit of NCB, Jammu in May, 2008. He sated that

he was on leave on 15.5.2008 and Balwinder Kumar was

officiating as Superintendent on that date.

Superintendent was Incharge of godown and on

15.5.2008, Balwinder Kumar was holding the charge of

godown.

.PW-5 Kaushal Kumar was Sepoy in Jammu

Zonal Unit on 15.5.2008. He stated about the

unclaimed seizure of 60 kg Heroin handed over by BSF

officials. He further stated that after reaching BSF

office, M.M.S. Bhandari checked with the drug

detection kit and found Heroin in the packets. After

handing and taking over the drug, they came to Jammu

Zonal Unit where the contraband was shifted to first


floor on the asking of Saji Mohan and Balwinder

Kumar gave him certain documents for typing. After

five minutes, he was called to the office where Saji

Mohan was holding a meeting and M.M.S. Bhandari

along with other team members was present. The

meeting took about 1-1.30 hrs and when he came out,

he saw big sealed packets lying on the table. He

proved notice Ex P-13 and his statement Ex P-14.

.PW-6 HC Vijay Pal Singh was posted at

Naka no.11 on the intervening night of 14/15.5.2008.

He deposed regarding the recovery of three bags

containing packets of suspected material which NCB

team, on checking, found to be heroin. There was

also currency of Rs.15,95,500/-. He stated that the

recovered material was handed over to NCB, Jammu and

he along with SI Rakesh Roshan were directed to go

to office of NCB. On next day, they went to NCB

office, Jammu at about 4/5 p.m and he was asked to

sign the sealed packets. He also signed Ex P-1. He

proved his statement Ex P-15.

.PW-7 C. Manjit Singh was a Constable of

J&K Police attached with Saji Mohan. He stated that

on 14.5.08, he came with Saji Mohan from Chandigarh

to Jammu, reached at 9 p.m., stayed in GO Mess in

the night and after dropping Saji Mohan, went home.

On 15.5.2008, he reached GO Mess, Jammu at 9 a.m and

accompanied Saji Mohan to NCB office, Jammu where

they stayed for 2-3 hours and came back for lunch in

GO Mess. At about 7 p.m., Saji Mohan received a


phone call that there was unclaimed seizure of 60

kg. Heroin by NCB and he accompanied Saji Mohan to

NCB office, Jammu after receiving the phone call.

They stayed there for 15 minutes approximately and

thereafter, came back to GO Mess.

.PW-8 Vijay Kumar was Sepoy-cum-driver of

NCB, Jammu Zonal Unit in 2008. He stated that Naseeb

Chand used to come to BSF Camp and he was source of

information for BSF. Saji Mohan asked him to provide

some Informer and he told Naseeb Chand to meet him.

Naseeb Chand met Saji Mohan in the office. When he

was on operation duty to Srinagar, Sepoy Tilak Raj

called him on receiving a call from NCB, Chandigarh.

After 2-3 days, he met Naseeb Chand and informed him

about the message and asked him to go there and meet

NCB officials. He proved his statement Ex P-12 and

Ex P-17.

.PW-9 Kartar Singh was the driver of NCB

office, Chandigarh who accompanied Saji Mohan to

Jammu on 14.5.08 along with Gunman Manjeet Singh. He

stated that in the evening of 15.5.2008, he went to

office of NCB and stayed there for about one hour

and then came back to GO Mess. The next morning i.e.

on 16.5.2008, they again went to the office of NCB,

Jammu. Some articles were put in the dicky of

vehicle, but he could not tell about the same. He

proved his statement Ex P-18 and the notice Ex P-19.

.PW-10 Virat Dutt Chaudhary, Assistant


Commissioner was posted at Amritsar in Department of

Customs in June, 2008. He stated that Inspector

Vijender Singh introduced him to Naseeb Chand,

Informer. He asked his staff to keep vigilance on

Naseeb Chand. For first two months, he did not

provide any information inspite of the fact that he

financially helped him from their secret funds. In

August, 2008, Inspector Vijender Singh told that

Naseeb Chand had provided confirmed information that

Heroin would be smuggled at the Border and he would

provide exact time and place. He confirmed the

information on 24.8.08 and in the intervening night

of 26/27.8.08, they laid a naka and intercepted two

wheeler coming from the side of BSF picket at about

2.30/3 a.m. Those persons lost balance, fell down

with their belongings, but ran away taking benefit

of darkness. They however left behind ten packets of

Heroin. He proved the notice Ex P-20 and his

statement Ex P-21.

.PW-11 S.C. Mathur, Chemical Examiner,

Grade-I, Custom House, Kolkata proved the receipt Ex

P-22 of CRCL, New Delhi, receipt Ex P-23, receipt Ex

P-25, report Ex P-26, receipt issued by CRCL Ex P-

27, report Ex P-28, report Ex P-29, report Ex P-30

and Ex P-31.

.PW-12 S.K. Mittal, Chemical Examiner,

Grade-II, CRCL, New Delhi proved the reports Ex P-

32, receipt Ex P-33, report Ex P-34, report Ex P-35,

report Ex P-36, receipt Ex P-37, report Ex P-38,


report Ex P-39, report Ex P-40, receipt Ex P-41,

report Ex P-42, report Ex P-43, receipt Ex P-44,

report Ex P-45, receipt Ex P-46, report Ex P-47.

.PW-13 Ganesh Balooni, Superintendent,

NCB, Chandigarh was Intelligence Officer in NCB

Unit, Chandigarh in March, 2009. He proved memo of

jamatalashi of accused Davinder Pal Singh Ex P13/A,

of accused Naveen Ex PW13/B, of accused Balwinder Ex

PW13/C, arrest memo of accused Saji Mohan Ex PW13/D,

information of arrest of Balwinder Kumar Ex PW13/E

and his repors regarding verification of packing

material of the case property in various cases Ex

PW13/F to Ex PW13/M.

.PW-14 Sukhwinder Singh, DIG, ATS, Mumbai

proved forwarding letter Ex PW14/A, interrogation

report of Saji Mohan Ex PW14/B and statement of Saji

Mohan Mark-A, Mark-B, charge sheet Ex PW14/C, Ex

PW14/D.

.PW-15 Sanjeev Krishanrao Tonapi,

Inspector, ATS, Mumbai stated that accused Saji

Mohan was arrested by ATS, Mumbai on 24.1.09 vide Ex

PW14/C and recovery of 12 kg. contraband was

effected from his possession on 24.1.2009. Later, on

his disclosure statement, 25 kg. Heroin was

recovered and he was charge sheeted vide Ex PW14/D.

He proved letters Ex PW15/A, Ex PW15/B of Addl. DGP

K.P. Raghuvanshi addressed to Director General, NCB,

New Delhi dated 6.2.2009 and 12.2.2009.


.PW-16 Rakesh Kumar Roshan was Sub

Inspector, BSF on 15.5.2008 when recovery of 60

packets of Heroin was effected from the area of

Durga Tower, BSF. He stated that NCB officials

checked the material and confirmed that it was

Heroin. At about 5 p.m., the material was handed

over to NCB and they took it to NCB office. The next

day 16.5.2008, he and HC Vijay Pal were asked to

reach NCB office for recording their statements and

accordingly, they reached at about 4 p.m. They were

asked to sign those parcels which were already

sealed, signed. They were also asked to sign the

Panchnama Ex P-1 and put the date 15.5.2008. He

proved the summons Ex PW16/A, movement order Ex

PW16/B and his statement Ex PW16/C.

.PW-17 Pushp Deep Singh, Inspector Custom,

Amritsar stated about the recovery of ten packets of

Heroin containing 10.030 kg. on 27.8.08 which was

unclaimed seizure. He proved the report of CRCL, New

Delhi Ex PW17/A, copy of Form-F Ex PW17/B, Panchnama

Ex D-5, annexure-A to Panchnama Ex D-5, Ex PW17/C,

letter of Superintendent, NCB Ex PW17/D, his

statement Ex PW17/E, notice Ex PW17/F.

.PW-18 Harcharan Singh Gill, Assistant

Commandant, CISF, Unit, BTPP, Bongaigaon, Assam was

complainant and Investigating Officer, who stated in

detail about the various stages of investigation

which started with the letter Ex PW18/A in respect


of the disclosure made to ATS, Mumbai. He also

proved various documents prepared and secured by him

during investigation.

.PW-19 K. Natarajan, under Secretary to

Government of India, Ministry of Home Affairs, New

Delhi proved the sanction for prosecution of Saji

Mohan Ex PW19/A.

44 The first point for determination by the

court is:-

“Whether on 15.5.2008, in the area of NCB,

JZU, Jammu, accused Balwinder Kumar in

connivance and conspiracy with accused Saji

Mohan, Davinder Singh and Naveen Kumar pilfered

Heroin to the extent of 30 kg from an unclaimed

seizure of 60 bags Heroin?

45 To prove the point above, prosecution

relies upon the following:-

1. Statement of PW MMS Bhandari, Intelligence

Officer, NCB, Jammu.

2. Statement of PW-5 Kaushal Kumar, Sepoy NCB.

3. Statement of PW-6 HC Vijay Pal Singh.

4. Statement of PW-16 Inspector Rakesh Roshan.

5. Retracted confessions of accused Davinder Pal

Singh Ex PW18/D and Naveen Kumar Ex PW18/H.

46 It is not disputed that on 15.5.2008,


accused Saji Mohan was posted as Zonal Director of

NCB, Chandigarh Zonal Unit and had the additional

charge of Zonal Director, Jammu Zonal Unit. It is

also not in dispute that Balwinder Kumar,

Superintendent, NCB Zonal Unit, Chandigarh, at the

relevant time was also officiating as

Superintendent, NCB, Jammu Zonal Unit, N.R. Sharma,

Superintendent being on leave. Accused Saji Mohan

has not disputed that on 15.5.2008, seizure of 60

kg. Heroin was made by BSF, Jammu on 15.5.2008 when

he was on tour to NCB, Jammu Zonal Unit. Accused

Saji Mohan has also not denied that in the night of

14.5.2008, he stayed in Government Mess and the next

morning on 15.5.2008, he came to NCB, Jammu Zonal

Unit and again reached NCB office in the evening.

PW-1 Sh.MMS Bhandari, Intelligence Officer, Jammu

Zonal Unit stated that after he was handed over 60

kg Heroin by BSF at spot, due to darkness and

security reasons, he along with the team and BSF

officials came to NCB Jammu Zonal Unit along with

seized drugs where accused Saji Mohan and Balwinder

Kumar were present. After coming to the office, he

started opening the packets 60 in number and when he

opened 8-10 packets of Heroin, somebody came from

the office of Saji Mohan and asked his team to come

to the office of Saji Mohan as there was an

emergency meeting. He told them that he was busy in

sealing process of seized drugs on which Saji Mohan

said that Balwinder Kumar will take care. The

meeting took about 1-1.30 hrs and when he came back,

he saw three lots f 20 kg each already prepared by

Balwinder Kumar. He was asked to take out the


samples and accordingly, he took out two samples of

5 gms each from each lot. The samples were sealed

with the seal of 'Jammu Zonal Unit-I' and three lots

of contraband were also sealed. He took the seal

from Balwinder Kumar and returned the seal after

sealing process was over. He prepared the Panchnama

Ex P-1 which was signed by Balwinder Kumar, Rakesh

Roshan, Vijay Kumar besides himself. Sample was sent

to CRCL, New Delhi and report Ex P-3 was received.

By the order of court, fresh samples of five grams

each from all three lots were taken. Test memo Ex P-

4 was prepared and sent to CRCL, New Delhi for

chemical analysis. Report Ex P-5 was received.

47 As per standing instructions no.1/88,

samples from Narcotic Drugs and Psychotropic

Substance must be drawn on the spot of recovery, in

duplicate, in the presence of panch witnesses and

the person from whose possession drug is recovered

and mention to this effect should invariably be made

in the PANCHNAMA DRAWN ON THE SPOT. Even PW-1 has

admitted that usually all documents are prepared

after conducting testing, weighing, parceling and

taking out the samples on spot. PW-4 N.R. Sharma,

Superintendent, NCB also stated that whenever NCB

officials visit the site of recovery of claimed and

unclaimed seizure of contraband, all formalities

like weighing, sampling, parceling is done on the

spot. Ex P-1 is the Panchnama prepared by PW-1

M.M.S. Bhandari. According to the document, it was

prepared at Indo Pak border near Durga Tower,


Makwal, Distt. Jammu on 15.5.2008. The Panchnama

records the presence of NCB Jammu team, the factum

of recovery of three big bags from Indo Pak Border

and also records that the samples were drawn at the

spot of recovery from the packets which were again

sealed after drawing the samples and the entire

proceedings were concluded at 11 p.m. Ex P-1

prosecution's own document contradicts its case that

the sampling and sealing of the case property i.e.

60 kg. Heroin was done in Zonal Office, Jammu. It is

not the case of prosecution that Balwinder Kumar was

ever present at the spot of recovery on 15.5.2008,

as per statement of M.M.S. Bhandari PW-1, he was

only present in NCB Jammu Zonal Unit, yet signatures

of Balwinder Kumar have been obtained on the

Panchnama and the date 15.5.2008 is endorsed

thereon.

48 The testimony of PW-6 HC Vijay Pal Singh

and PW-16 Inspector Rakesh Roshan would also be

relevant at this juncture. Both stated about the

recovery of three bags containing packets of

contraband in the jurisdiction of BSF Post, Durga

Tower, Makwal, District Jammu and the NCB team which

reached and checked the substance which was found to

be Heroin. According to their version, the material

was handed over to NCB in the evening and they did

not accompany NCB team and returned to their post.

Both witnesses consistently stated that the next

day, on 16.5.08, they were directed to go to NCB

office and they accordingly reached at about 4-5


p.m., where three sealed parcels were already

prepared and they were asked to sign the sealed

parcels which they did. They were also asked to sign

the Panchnama and accordingly, affixed the

signatures by putting the date as 15.5.2008 on the

asking of NCB officials. It is in the cross-

examination of PW-16 Rakesh Roshan that PW-1 M.M.S.

Bhandari asked him to append the date as 15.5.2008

instead of 16.5.2008 as formalities were completed

on 15.5.2008 itself. Further, they admitted that

sampling and parcelling was not done in their

presence and parcels were already prepared when they

reached. The statements of these two witnesses which

is in consonance with their first statement made

during investigation, confirms and leaves no doubt

in the mind of the court that the Panchnama Ex P-1

was not prepared on the spot; that neither PW-6 nor

PW-16 were present at the time of sampling, sealing,

rather they were summoned to NCB office on 16.5.2008

and asked to sign on back date. The Panchnama Ex P-1

relied upon by the prosecution is a false piece of

evidence given in judicial proceedings and the

statement of MMS Bhandari PW-1 that he came to Jammu

Zonal Unit from the spot along with BSF officials

with the seized drugs and prepared the Panchnama

which was signed by Balwinder Kumar, Rakesh Roshan,

Vijay Pal and himself on 15.5.2008 is thus proved

false.

49 Defence of accused Balwinder Kumar is that

though he was holding additional charge as


Superintendent, NCB, JZU, Jammu on 15.5.08, he was

not present on 15.5.2008 in JZU, rather he was

present at NCB office, Chandigarh Zonal Unit and to

prove his stand, he has examined DW-5 Partap Singh

Yadav, Intelligence officer (Legal), Chandigarh, who

proved the letter Ex DW5/A written by Superintendent

Balwinder Kumar on 15.5.2008 and identified his

signatures at point-A. He also proved the letter

dated 7.5.2008 Ex DW5/B bearing endorsement dated

15.5.2008 and the initials of accused Balwinder

Kumar dated 15.5.2008 at point-A. Similarly, he

proved the document Ex DW5/C whereon Balwinder Kumar

appended his signatures on 15.5.08 and the letter Ex

DW5/1 dated 15.5.08 carrying the signatures of

accused Balwinder Kumar at point-A. This apart,

there is on record the statement of DW Sandeep

Chandel, Intelligence Officer, NCB Jammu, who as per

PW-1 M.M.S. Bhandari, informed him about the

unclaimed seizure of 60 kg Heroin. He stated that he

was on leave on 15.5.2008 and he came to know of the

seizure between 12 noon to 1 pm from Deputy

Commandant, BSF. He passed on information to MMS

Bhandari. At about 4 p.m on 15.5.2008, he was

contacted through landline phone no.0172-2749731

installed in NCB office at Chandigarh. He apprised

Balwinder Kumar about the information and told him

to be in touch with M.M.S. Bhandari. Balwinder Kumar

inquired from him about the timing of buses for

Jammu and also told that he was about to leave for

Jammu on 15.5.2008 in the evening/night. Since he

had long association with Balwinder Kumar, he was

conversant with his voice.


50 There is no occasion to doubt or suspect

the statement of DW-5 Partap Singh Yadav, an

official of NCB and the documents produced by him

nor there is any reason to doubt the deposition of

DW Sanjeev Chandel regarding telephonic call made by

accused Balwinder Kumar to him at about 4 p.m. If

accused Balwinder Kumar made the telephonic call to

Jammu at 4 p.m. on 15.5.08, by no means he could

have reached NCB Zonal Unit, Jammu at about 8-9 p.m

when M.M.S. Bhandari was stated to be sealing the

seized drugs. The statement of MMS Bhandari cannot

be relied and acted upon as it is proved to be false

from the Panchnama Ex P-1 and the statement of PW-6

and PW-16. Version of accused Balwinder Kumar that

his signatures too were obtained on 16.5.2008 on

back date is thus probabilised in the wake of

testimony of PW-6 and PW-16 who were also asked by

PW M.M.S. Bhandadri on 16.5.2008 to append their

signatures on back date.

51 This apart, we also have the testimony of

PW-7 C. Manjeet Singh, Constable attached with

accused Saji Mohan when he visited Jammu from

14.5.08 to 16.5.08. It is in his cross-examination

that Balwinder Kumar accused came to NCB office,

Jammu on 16.5.08 and was not present on 15.5.08. He

also stated that Saji Mohan visited NCB office on

15.5.08 for only 5-7 minutes and came back to G.O.

Mess after patting the back of NCB officials for

doing good job. Further, PW-9 Kartar Singh, the


driver who took Saji Mohan to NCB office on

15.5.2008 also, in his cross-examination, stated

that accused Balwinder Kumar came to Jammu on

16.5.08 and he was informed by him from Bus Stand

and accordingly, he came to Bus Stand at about 11

a.m to report to him. His version is also that

accused Saji Mohan visited NCB office for about 15

minutes and then came to G.O.Mess. Thus, the

presence of accused Balwinder Kumar in NCB, Jammu

Zonal Unit on 15.5.08 is not established on record,

rather, from the statements of prosecution

witnesses, it emerges that he reached NCB, Jammu

Zonal Unit not before 16.5.2008 and his signatures

were taken on Panchnama Ex P-1 on the back date. The

defence witnesses who are entitled to as such credit

as prosecution witness DW-3 Sanjeev Chandel and the

documents produced by DW-5 Partap Singh Yadav,

Intelligence Officer, further establish that

Balwinder Kumar was present in NCB, Chandigarh Zonal

Unit on the day of alleged incident. In the wake of

testimony of PW-7 C. Manjeet Singh and PW-9 Kartar

Singh that Saji Mohan remained in the office of NCB,

Jammu Zonal Unit on 15.5.2008 evening for about 15

minutes, the statement of M.M.S. Bhandari that Saji

Mohan convened meeting for about 1-1.30 hrs and

accused Balwinder Kumar took the samples and

converted 60 kg Heroin into three lots of 20 kg each

cannot be relied upon.

52 Prosecution is also relying upon the

retracted confessional statement of PW Davinder Pal


Singh Ex PW18/D wherein he stated that when Jammu

Zonal Unit seized 60 kg Heroin in unclaimed seizure,

he was asked by accused Saji Mohan to bring 30 kg

slaked lime which he purchased for Rs.150/- and he

separated 30 packets out of 60 packets in the

presence of Balwinder Kumar Superintendent, Manjeet

Singh PSO and Kartar Singh driver, mixed the slaked

lime and the remaining 30 packets were kept in the

dicki of vehicle of Saji Mohan. Even though the

confessional statement of accused Davinder Pal Singh

recorded u/s 67 of the Act on 9.3.2009 was

subsequently retracted by him vide application Ex D1

dated 19.3.09 moved to the Court through the

Superintendent, Model Jail, Chandigarh, the same

cannot be relied upon unless corroborated by other

evidence in material particulars. However, there is

no corroboration to the retracted confession, which

rather contradicts prosecution case. On a question

put to Davinder Pal Singh by the Investigating

Officer while recording his statement, he stated

that during the entire proceedings, they had been

acting on the directions of Saji Mohan who remained

standing and he repeatedly asked them to hurry up.

There is nothing in the confessional statement that

accused Saji Mohan was holding a meeting for about

1-1.30 hrs in which he had called all the officials

of NCB Jammu Zonal Unit. The statement that C.

Manjeet Singh and driver Kartar Singh were also

present at the time of mixing also contradicts

prosecution case. Therefore, retracted confession of

Davinder Pal Singh is of no avail.


53 Confessional statement of Naveen Kumar

(retracted) mentions nothing about the incident

dated 15.5.2008.

54 Another important aspect of the case is

that after initiation of the case, the prosecuting

agency took three samples of 5 gms each from the

seizure effected on 15.5.2008 on Indo Pak border

near BOP Durga Tower. The test report of the samples

is Ex P-4. The percentage of diacetyle morphine in

the three samples was 55.5%, 40.1% and 63.4%.

Interestingly, no attempt was made by the

prosecuting agency to secure the report of CRCL, New

Delhi as to whether the samples contained slaked

lime. PW-12 S.K. Mittal, Chemical Examiner, CRCL,

New Delhi in cross-examination admitted that there

was no mention of limestone in the reports prepared

by him. Thus, there is no scientific evidence to

prove that 30 kg Heroin was pilfered from the lot of

60 kg and 30 kg slaked lime was added to the

remaining contraband to escape detection.

55 Yet, another important circumstance is

that no witness examined by the prosecution has

stated that he witnessed accused Balwinder kumar

mixing slaked lime in the unclaimed seizure of 60 kg

Heroin. The statement of M.M.S. Bhandari PW-1, even

if believed, would only prove that after he came out

from the meeting with accused Saji Mohan, accused

Balwinder kumar had already prepared 3 lots from 60

kg Heroin. From this statement, no presumption can


be drawn that accused Balwinder Kumar had indeed

pilfered 30 kg Heroin and mixed slacked lime. PW-5

Kaushal Kumar Sepoy who stated about the presence of

Balwinder Kumar in JZU on 15.5.08 in cross-

examination, supported defence version that

contraband recovered from BSF remained intact in

custody of M.M.S. Bhandari from the time of seizure

till its deposit in malkhana. No prosecution witness

has raised accusing finger at accused Davinder Pal

Singh or Naveen Kumar. Even PW-1 M.M.S. Bhandari and

PW-5 Kaushal Kumar have not spoken about their

presence nor have PW-9 driver Kartar Singh and PW-7

C. Manjeet Singh.

56 Presence of accused Balwinder Kumar,

Davinder Pal Singh and Naveen Kumar in NCB, JZU on

15.5.2008 not having been established, the Panchnama

Ex P-1 relied upon by the prosecution, proved to be

a false document, statements of prosecution

witnesses regarding the meeting convened by accused

Saji Mohan not being reliable, it is held that

prosecution has failed to prove that on 15.5.2008 in

the area of NCB, JZU, accused Balwinder Kumar, Saji

Mohan and Davinder Pal Singh, in conspiracy and in

connivance with each other, pilfered 30 kg. Heroin

from the unclaimed seizure of 60 kg and mixed

slacked lime. The point is answered against the

prosecution.

57 The second point for determination by the

court is:-


“Whether the retracted confessional

statements of accused Nasib Chand, Devinder

Singh and Naveen Kumar are admissible in

evidence and can be relied upon?

58 The provisions of Section 67 of the Act

are reproduced herein below:

"67. Power to call for information, etc.

Any officer referred to in section 42 who

is authorized in this behalf by the Central

Government or a State Government may,

during the course of any enquiry in

connection with the contravention of any

provisions of this Act,-

(a) call for information from any person

for the purpose of satisfying himself

whether there has been any contravention

of the provisions of this Act or any rule

or order made thereunder;

(b) require any person to produce or

deliver any document or thing useful or

relevant to the enquiry;

(c) examine any person acquainted with

the facts and circumstances of the case."

59 NDPS Act is a special Act meant to deal

with special situation and circumstances. Under the

enactment, an inquiry is contemplated during which a

person may be called upon to provide any information

relevant to the inquiry as to whether there has been


any contravention of the provisions of the Act or

any Rule or Order made thereunder. At that stage,

the person concerned is not an accused although he

may be said to be in custody. It has been observed

by the Hon'ble Supreme Court in Kanhayalal Vs.

Union of India (supra):

"As long as such statement was made by the

accused at a time when he was not under

arrest, the bar under Sections 24 to 27 of the

Evidence Act would not operate nor would the

provisions of Article 20(3) of the Constitution

be attracted. It is only after a person is

placed in the position of an accused that the

bar imposed under the aforesaid provision will

come into play. Of course, this Court has also

held in Pon Adithan s case (supra) that even

if a person is placed under arrest and

thereafter makes a statement which seeks to

incriminate him, the bar under Article 20(3) of

the Constitution would not operate against him

if such statement was given voluntarily and

without any threat or compulsion and if

supported by corroborating evidence".

60 In Ram Singh Vs. Central Bureau of

Narcotics vide Criminal Appeal No. 451-452 of 2005

decided on 28.4.2011, the Hon'ble Apex Court

observed as under:

45. Considering the provisions of Section 67 of

the NDPS Act and the views

expressed by this Court in Raj Kumar


Karwal case with which we agree, that an

officer vested with the powers of an officer

in charge of a police station under Section

53 of the above Act is not a "police officer"

within the meaning of Section 25 of the

Evidence Act, it is clear that a statement made

under Section 67 of the NDPS Act is not the

same as a statement made under Section 161 of

the Code, unless made under threat or

coercion. It is this vital difference, which

allows a statement made under Section 67 of the

NDPS Act to be used as a confession against

the person making it and excludes it from

the operation of Sections 24 to 27 of the

Evidence Act."

61 The Hon'ble Apex Court considered the

provisions of Section 24 of the Indian Evidence Act

and further observed as under:

"12. From the plain reading of the aforesaid

provision it is evident that a confession made

by an accused is rendered irrelevant in

criminal proceeding if the making of the

confession appears to the Court to have been

caused by any inducement, threat or promise

with reference to the charge against the

accused. A confession,if it is voluntary

truthful, reliable and beyond reproach is an

efficacious piece of evidence to establish the

guilt of the accused. However, before solely

acting on confession, as a rule of prudence,


the Court requires some corroboration but as

an abstract proposition of law it cannot be

said that a conviction cannot be maintained

solely on the basis of the confession made

under Section 67 of the Act."

62 In M.Prabhulal Versus Assistant Director, DRI JT 2003 (Suppl) 2 SCC 459 the Hon'ble Apex Court observed as under:

"The confessional statements recorded by such

officers are admissible in evidence.....

Further it is also to be borne in mind that the

appellants did not make any complaint before

the Magistrate before whom they were produced

or any torture or harassment..... The

statements cannot be held to be involuntarily.

The statements were voluntarily made and can,

thus, be made the basis of appellants

conviction."

63 Bearing in mind aforesaid principles, the

court should proceed to consider the evidence in the

present case. The statements of accused Saji Mohan

Ex PW18/W and Balwinder Kumar Ex PW18/O recorded by

then Superintendent Harcharan Singh Gill are not

incriminating and the prosecution does not rely upon

them. Statement of Devinder Pal Singh Ex PW18/D only

relates to the unclaimed seizure of 60 kg Heroin

recovered by Jammu Zonal Unit and the separation of

30 packets from 60 packets by him, Balwinder Singh,

Manjit Singh, Kartar Singh and mixing of slaked lime

in the remaining 30 packets on direction of Saji


Mohan regarding which the accused have already been

exonerated. There is nothing in the disclosure

statement Ex PW18/D regarding the pilferage of

Heroin from the unclaimed seizures lying in the

godown of NCB, Chandigarh or the delivery of 10 kg

Heroin by accused Saji Mohan to accused Nasib Chand

on 26.8.2008, therefore, the statement of Devinder

Pal Singh is also not relevant at all.

64 Ex P-9 is the confessional statement of

accused Naseeb Chand recorded on 27.3.2009, relevant

portion of which reads as under:-

“-------------I worked as Informer of BSF,

Central Custom & Central Excise etc.,

government agencies and got money for the

information supplied. I remained in jail in

Pakistan on four occasions and in Jammu for

fourteen months for illegally crossing the

border. In May, 2008, C. Vijay Kumar introduced

me to Saji Mohan, who was the then Zonal

Director of NCB, JZU. Saji Mohan asked me to

meet him in Chandigarh where he had been

transferred and gave me Rs.500/-. After some

time, C. Vijay Kumar of Jammu NCB told me to

meet Saji Mohan in kothi no.80, Sector 2,

Chandigarh. In June, 2008, I reached house

no.80 to meet Saji Mohan and I was taken to him

by a Sikh Sepoy. I spoke to Saji Mohan for

about half an hour and Saji Mohan told me that

he would pay him Rs.50,000/- if I sold Heroin

for him. I told him that the work was dangerous


upon which Saji Mohan said that his name should

not crop up, but if I was caught, he would

manage my release. I told him that I would

search for a customer, but would require some

money on which he paid me Rs.1000/- which I

spent. After 15-20 days, he again went to meet

Saji Mohan in Chandigarh and told him that he

could not find a buyer. Saji Mohan paid me

Rs.500/- and asked me to search for a buyer and

that Heroin to the extent of 10 to 20 kg would

be supplied. Then, I went to Amritsar and met

Inspector Baljinder Singh of Custom Department

in his office. I told him that an official of

Narcotics Department, Chandigarh trusted me and

was ready to deliver Heroin for sale and if he

wanted, I could give drug to him. Thereupon,

Inspector Baljinder Singh spoke to his senior

Officer Sh.Chaudhary, A.C. Custom & Central

Excise and told me to bring sample of Heroin.

Again in August 2008, I met Saji Mohan and

asked him for a sample. Saji Mohan gave me

sample in two small packets and told me that he

would pay me Rs.50,000/- per kg and the amount

beyond Rs.5 lacs, if it was sold at that rate.

I took the sample to Amritsar and showed it to

Baljinder Singh who said that the quality of

Heroin was very good and that I should bring

the contraband. I told him that I would not go

alone to Chandigarh. So, on 26.8.2008, I

accompanied by Baljinder Singh, a driver and

armed Constable came to Chandigarh from

Amritsar in a vehicle and reached Chandigarh at


about 1300 hrs. Inspector Baljinder Singh

dropped me near NCB office and I met Saji Mohan

who sent me to his residence and lateron,

himself reached. I was given meals and ten

packets of Heroin from a white box. After 10-15

minutes, I reached Sector 43, Chandigarh in an

auto where I met Inspector Baljinder Singh and

we started for Amritsar in the vehicle. At

about 12/1 a.m., they reached the house of

Baljinder Singh where I slept and stayed till

27.8.2008. On 29.8.2008, I came to know that

Baljinder Singh had shown 10 kg Heroin as

unclaimed seizure on 27.8.2008. For 2-3 days, I

remained there and I was paid Rs.50,00/- by

Baljinder Singh which I spent. Thereafter, I

never met Saji Mohan-----------------”.

65 Ex PW18/H is the statement us/ 67 of the

Act of accused Naveen Kumar, relevant portion of

which reads as under:-

“--------------I have been informed that this

statement u/s 67 of the Act can be used against

me in the court---------------------. One

evening, in Nov., 2008, Saji Mohan told me to

pick him up from the office. At about 7.30/8

p.m., Saji Mohan Sahib reached the office where

Superintendent Balwinder Kumar was present.

They had taken out several lots.In the presence

of Saji Mohan Ji, on his direction, I and

Balwinder Kumar mixed lime in the lots and made

another big lot and that packet was given to


Saji Mohan Sahib. I asked Saji Mohan and

Balwinder Sahib what they would do with the

packet upon which they told me that some big

seizure would be shown in Chandigarh. This

incident occurred on two occasions, but I can

not correctly remember the date. Many a

times, whatever money was recovered in the

raids, was given to Saji Mohan through

Balwinder Kumar Superintendent-----------.”

66 Record shows that when Naseeb Chand and

Naveen Kumar were first produced before Magistrate,

they did not make any retraction of the disclosure

statement nor complained of any threat, coercion,

force or duress by NCB. It was not before 21.5.09

that application was moved by Naseeb Chand for

retracting from his statement u/s 67 of the Act.

Accused Naveen moved the application for retraction

on 28.3.09. The observations of Hon'ble Supreme

Court in Kanhaiya Lal Vs. Union of India's case

(supra) would, therefore, squarely apply to the

instant case.

67 It has been emphasized that the retraction

should be made at the earliest point in time. What

is important is whether the statement made by the

person concerned is made during the inquiry prior to

his arrest or after he has been formally charged

with the offence and made an accused in respect

thereof. If the statement is made by the accused at

a time when he was not under arrest, the bar under


Sections 24 to 27 of the Evidence Act, would not

operate nor would the provisions of Article 20(3) of

Constitution be attracted. It is only after a person

is placed in the position of an accused that the bar

imposed under the aforesaid provision will come into

play. It has been held in Pon Adithans Vs. Deputy

Director, NCB, Madras 1999(3) RCR (Criminal) 499

that even if a peson is placed under arrest and

thereafter makes a statement which seeks to

incriminate him, the bar under Article 20(3) of the

Constitution would not operate against him if such

statement was given voluntarily and without any

threat or compulsion and if supported by

corroborating evidence.

68 As discussed before, the confessional

statement Ex P-9 of accused Naseeb Chand was

recorded before his arrest and before he was

formally charged of the offence. No formal

application was moved for retracting the statement

till next two months. Accused Naveen was arrested on

14.3.09, five days after recording of his statement

Ex PW18/H on 9.3.09. Before his arrest, he could not

be under any threat or duress. He moved application

for retraction only on 28.3.09. No order on the

application of accused Naseeb Chand and Naveen Kumar

was passed, therefore, there is no reason for the

court to ignore the confessional statement under

Section 67 of the Act. The statements cannot be

doubted for the mere reason that no independent

witness was associated. It is common knowledge


that independent persons are always reluctant to

join such type of investigations for the fear of

inviting wrath of the accused or for the fear of

having to appear in courts time and again.

69 In M. Prabhulal Vs. Assistant Director,

Directorate of Revenue Intelligence (2003)8 SCC 449,

the accused did not make any complaint before

Magistrate before whom they were produced

complaining of any harassment or torture. It was

only when their statement was recorded u/s 313

Cr.P.C that a vague stand for the torture was taken.

Under the circumstances, it was held that the

confessional statement cannot be held to be

involuntary. The statements were voluntarily made

and could be made the basis of conviction.

70 In State (NCT of Delhi) Vs. Navjot Sandhu

(2005)11 SCC 600, the Hon'ble Supreme 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 rule of prudence. It cannot even be laid

down as an inflexible rule of practice or

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.”

71 Hon'ble Supreme Court held in Kanhaiya

Lal's case (supra) held that a court may take into

account the retracted confession, but it must look

for the reasons behind making of the confession as

well as for retraction and must weigh the two to

determine whether the retraction affects the

voluntary nature of the confession or not. Further,

it is for the court to decide whether to use the

retracted confession or not, but all the same, the

courts do not normally act upon a retracted

confession without finding some other evidence as to

the guilt of the accused. Thus, the legal position

which emerges is that retracted confession can be

relied upon if it is corroborated and the court is

convinced of its absolute truth.

72 The Indian Evidence Act nowhere provides

that if the confession is retracted, it cannot be

taken into consideration against co-accused or

confessing accused. The amount of credibility to be

attached to a retracted confession, however, would


depend upon the circumstances of each particular

case. On this basis, it is now to be seen whether

the retracted confessions Ex P-9 and Ex PW18/H are

voluntary and true. It will then be considered

whether the confessions have received full and

strong corroboration in material particular both as

to the crime and the connection of co-accused with

the crime.

73 Except for mere allegations of threat and

duress by accused Nasib Chand and Naveen, there is

nothing on record to even prima-facie suggest that

accused Naseeb Chand or Naveen Kumar were compelled

under threat by the NCB officials to make the

statement Ex P-9 and Ex PW18/H. No complaint of any

threat, force, torture was ever made at the earliest

point of time by accused Naseeb Chand or Naveen

Kumar. Had the Intelligence Officer indeed resorted

to threat and duress to extract the confessional

statements, there is no reason why accused Saji

Mohan and Balwinder Kumar would have been spared.

The statements of accused Saji Mohan and accused

Balwinder Kumar which are not inculpatory lead the

court to the conclusion that no threat, force or

coercion was exercised while recording Ex P-9 and Ex

PW18/H. On the applications moved by accused Naseeb

Chand and Naveen Kumar retracting the confession, no

order was passed thus, to my mind, the retraction

of the confessional statement is an afterthought and

it is the earlier statements Ex P-9 and Ex PW18/H

which should be believed.


74 Ample corroboration to the statement

Ex P-9 can be had from the evidence adduced by the

prosecution. Prosecution examined Vijay Kumar posted

as Sepoy in NCB, Jammu Zonal Unit, Jammu as PW-8 who

affirmed that accused Naseeb Chand was a source of

information to BSF and he used to come to G-Branch

of BSF Camp to provide information. PW-10 Virat Dutt

Chaudhary, Assistant Commissioner, Customs also

affirmed that Naseeb Chand was an Informer of Custom

and was introduced to him by inspector Vijender

Singh. Statement of accused that in May, 2008, C.

Vijay Kumar introduced him to Saji Mohan, Zonal

Director of NCB, JZU is also corroborated by

statement of PW-8 Vijay, who deposed that Saji

Mohan, Zonal Director, NCB, Jammu had asked him to

provide an Informer, so, when he met Naseeb Chand in

the market of Jammu, he requested him to come to

office of NCB as Zonal Director wanted to meet him

and on his asking, Naseeb Chand came to office of

NCB, though he could not obviously tell what

transpired between Saji Mohan and Naseeb Chand.

75 Further, it is in the confessional

statement of Naseeb Chand that after the meeting

with Saji Mohan, C. Vijay again met him and told him

that he should meet Saji Mohan in house no. 80,

Sector 2, Chandigarh. C. Vijay as PW-8 has affirmed

that when he was away to Srinagar on operation duty,

he learnt about call from NCB, Chandigarh and was

informed about it by Sepoy Tilak Raj. After 2-3


days, when Naseeb Chand came to the office of Jammu,

he informed him about message from NCB office,

Chandigarh and requested him to go there and met the

NCB officials. The fact that in cross-examination,

Sepoy Vijay admitted that Sh. Gill was dictating his

statement on his behalf and he signed the statement,

is not enough to wipe out his testimony as he has

made it clear that he had stated truth in his

statement Ex P-12 which was known to him.

76 According to the confessional statement of

Naseeb Chand, accused Saji Mohan handed over to him

ten packets of 10 kg Heroin on 26.8.08 regarding

which he had already informed Inspector Baljinder

Singh Custom Department and he along with Baljinder

Singh reached Amritsar with the contraband at about

12 to 1 a.m. On 26/27.8.2008. He stayed in the

house of Baljinder Singh in night on next day and on

29.8.2008, he came to know that Baljinder Singh had

shown 10 kg Heroin as unclaimed seizure on

27.8.2008.

77 PW-10 Virat Dutt Chaudhary, Assistant

Commissioner, Customs has in his sworn testimony

stated that regarding the seizure of Heroin which

was effected in the intervening night of

26/27.8.2008, Nasib Chand provided the confirmed

information on 24.8.2008 that Heroin would be

smuggled at the border. He also stated that ten

packets of Heroin were recovered which were of 1 kg

each and thus the total quantity of Heroin was 10


kg. He identified Nasib Chand present in the court

as the person who provided the information. The

circumstances which emerge from the evidence of

Virat Dutt Chaudhary, leave no doubt in the mind of

the court that the 10 kg Heroin contained in ten

packets delivered by accused Saji Mohan to Nasib

Chand in the afternoon on 26.8.08 which accused

Nasib Chand took to Amritsar to the house of

Inspector Vijender at about 12/1 a.m. on 27.8.08 was

the same which the Customs Department projected as

'unclaimed seizure' from two unknown persons at

about 2.30/3 a.m on 27.8.08 in the area of B.O.P.,

Ramkot.

78 Though both PW-10 Virat Dutt Chaudhary,

Assistant Commissioner, Customs Amritsar and PW-17

Pushpdeep Singh, Inspector Customs, Amritsar have

admitted in their cross-examination that before the

seizure, no custom official ever came to NCB office,

Chandigarh and the seizure of 10 kg Heroin was

independent seizure of department of Custom, it is

apparent from the proved circumstance that they are

not coming forward with a truthful account of

recovery of 10 kg Heroin.

79 Since Nasib Chand was an informer of

Customs and was giving other valuable information

regarding gold and contraband, the Custom officials

were obviously reluctant to name him as the person

who had provided them 10 kg Heroin. It is in

evidence of Virat Dutt Chaudhary that for the


information provided by Nasib Chand, for the first

two months, he had also financially helped him from

secret funds. Nasib Chand having got the recovery

effected, he could not be booked by them as that

would have resulted in loss of future valuable

information and recoveries. Moreover, the Custom

Officers having shown the recovery of 10 kg Heroin

as unclaimed seizure in their record, were in no

position to say that the recovery was in fact made

from Nasib Chand who had collected it from Saji

Mohan. The argument, of learned SPP for the NCB that

unclaimed seizures are often shown by such agencies

to claim appreciation and reward for their work, is

good enough to convince a prudent mind. In their

over-zealousness to show more recoveries and earn

commendations in service, such type of practices are

often resorted to by Investigating agencies who at

the same time do not want to block their source of

information and further recoveries by resorting to

legal course and disclosing the identities of such

sources.

80 It is in evidence of PW-10 Virat Dutt

Chaudhary and PW-17 Pushpdeep Singh that two parties

comprising of 15 custom officials were constituted

to hold naka near B.O.P., Ramkot. PW-10 Virat Dutt

Chaudhary also stated that at about 2.30/3 a.m. on

27.3.08, two persons coming on scooter from the side

of BSF picket, were challenged and those persons

lost balance. They fell down with their belongings,

after which taking benefit of darkness, they ran


towards BSF picket and they could not fire at them.

It does not appeal to logic that 15 persons of a

force, who already had information of smuggling of

huge quantity of Heroin would not be able to

apprehend two persons who had fallen from scooter

with their belongings. Moreover, if the persons on

the scooter had sufficient time to run away on the

scooter, they would not leave the valuable

contraband behind so that the custom officers may

conveniently recover it. The manner of recovery from

two unknown persons as projected by the customs

official is not convincing at all and does not

appeal to conscience of the court. It is obvious

that 10 kg Heroin which was brought by accused Nasib

Chand from Chandigarh in the intervening night of

26/27.8.2008 at about 12/1 a.m. was soon thereafter

shown by the customs department as unclaimed seizure

to add credit to their record. PW-10 Virat Dutt

Chaudhary and PW-17 Pushpdeep Singh have knowingly

and wilfully given false evidence in judicial

proceedings to save their skin and deserve to be

proceeded against.

81 Summing up, the retracted statement of

Nasib Chand is to be believed being corroborated by

the following set-of circumstances:-

(i) Statement of Nasib Chand that he was

an informer of BSF, Customs & Central

Excise, who had been making payments to

him is corroborated by the statement of

PW-8 Vijay Kumar, who stated that Nasib


Chand was source of information of BSF and

he came to G-branch of BSF Camp to provide

information. PW-10 Virat Dutt Chaudhary,

Assistant Commissioner, Customs also

deposed that Nasib Chand was informer of

Customs and for two months he had been

helping him financially from secret funds;

(ii) Statement of Nasib Chand that in May,

2008, PW-10 C. Vijay introduced him to

Saji Mohan, Zonal Director of NCB, JZU, is

corroborated by statement of PW-8 Vijay

Kumar, who stated that Saji Mohan asked

him to provide informer, so when he met

Nasib Chand in the market of Jammu, he

requested him to go to the office of NCB,

as Zonal Director wanted to meet him on

which Nasib Chand came to the office of

NCB;

(iii) Statement of Nasib Chand that after

first meeting with Saji Mohan, C. Vijay

again met him and told him to meet Saji

Mohan in house no.80, Sector 2,

Chandigarh, is corroborated by C. Vijay,

who stated that Sepoy Tilak Raj informed

him in Srinagar about the call from NCB,

Chandigarh and after 2-3 days when Nasib

Chand came to the office of Jammu, he

informed him about the message and

requested him to go to NCB office,

Chandigarh and meet NCB officials;

(iv) Statement of accused Nasib Chand that


on 26.8.08, Saji Mohan handed over to him

10 kg Heroin for sale in open market is

corroborated by the fact that 10 kg Heroin

was recovered by the customs department;

(v) Statement of Nasib Chand that 10 kg

Heroin was in ten separate packets of 1 kg

each, is corroborated by the evidence of

PW-10 and PW-17 that the unclaimed seizure

of 10 kg Heroin shown by the customs

department was also in ten packets of 1

kg. each;

(vi) Statement of Nasib Chand that he

reached house of Inspector Vijender in the

night of 26/27.8.2008 between 12 to 1 a.m,

is corroborated by the circumstance that

immediately thereafter, the customs

department had shown recovery of 10 kg

Heroin at 2.30/3 am on 27.8.2008 from

unknown persons;

(vii) Statement of Nasib Chand is also

corroborated by the statement of PW-10

Virat Dutt Chaudhary, who stated that the

informatioin that Heroin will be smuggled

at the border, in the intervening night of

26/27.8.08 and there will be a transaction

of Heroin was given by none else than

Nasib Chand.

(viii) Statement of Nasib Chand that

Inspector Vajinder Singh spoke to his

senior officer Sh.Virat Dutt Chaudhary,

A.C. Customs & Excise that he would bring


drugs from an official of Narcotics

department is corroborated by the

statement of PW-10 Virat Dutt Chaudhary

that information of transportation of

Heroin at the border was received from

Nasib Chand.

82 The above circumstances are too many in

number to be termed as mere conincidences. Thus,

though the confessional statement of Nasib Chand Ex

P-9 recorded u/s 67 of the Act has been retracted,

the same can be relied upon by the court in view of

the corroboration it receives from other evidence on

record discussed above and for the reason that the

retraction after two months, appears to be an after-

thought. As per settled law, conviction can be based

on retracted confession provided it is voluntary,

convincing and corroborated. The court in this

particular case is absolutely convinced by truth of

the confessional statement Ex P-9 which is otherwise

corroborated in material particulars and must be

relied upon.

83 The statement of Naveen Kumar Ex pW18/H

that in November, 2008, on two occasions, he visited

the office in the evening hours where on directions

of accused Saji Mohan, he and Balwinder Kumar mixed

lime in the lots of contraband, though retracted,

the retraction does not affect the value of the

confession as there is cogent substantive evidence


corroborating the statement. Substantive evidence,

however, does not mean substantial evidence. It is

the quality of the evidence that matters not the

quantity.

84 Following is the list of cases of

Chandigarh Zonal Unit, NCB, Chandigarh relating to

the unclaimed seizures of Heroin which shows the

quantity of Heroin seized, date of seizure, initial

percentage of diacetyle morphine (DAM) and the

percentage after sampling during re-investigation.

Investigating Officer took samples from the parcels

in NCB godown after obtaining orders of the

respective courts and got the samples re-tested. The

reports of re-testing received from CRCL, New Delhi

are duly proved as Ex PW-4, Ex PW18/BB to Ex PW18/BS

and the reports of the chemical examiner are Ex P-4,

Ex P-23 to Ex P-47. The said reports were duly

proved by examining PW-11 SC Mathur, Chemical

Examiner and PW-12 S.K. Mittal, Chemical Examiner,

Gr-II, CRCL, New Delhi.

CASES OF CHANDIGARH ZONAL UNIT,NCB,CHANDIGARH.

Sr. Crime Drug Qty.of %of %ofDAM Variation No. No/Dt. Seized Drug DAM after in %of (inkg) in resamp- DAM

initial ling testing

1 1/2007 Heroin 05 56.00 13.3 -42.7 dt.27.3.07

2 2/2007 Heroin .690 38.58 1.7 -36.88 dt.25.4.07.


3 3/2007 Heroin 08 A-140.9 C-1 79.8 +38.9 dt.3.5.07. B-1 55.5 C-2 26.1 -29.4

4 5/2007 Heroin 16 Negative C-1 2.8 +2.8 dt.19.7.07 Twice C-II 31.7 +31.7

5 6/2007 Heroin 02 77.9 53.0 -24.9 dt.15.8.07.

6 7/2007 Heroin 15 A-1 15.4 C-1 30.7 +15.3 dt.18.9.07 B-1 36.9 C-2 18.8 -18.1

7 3/2008 Heroin 03 60.3 21.5 -38.8 dt.16.2.08.

8 13/2008 Heroin 09 84.3 16.3 -68.0 dt.8.10.08.

9 16/2008 Heroin 06 78.11 41.9 -36.21 dt.30.12.08

CASES OF JAMMU ZONAL UNIT, NCB, JAMMU

10 03/2008 Heroin 60 A-1 44.8 A-3 55.5 +10.7 dt.15.5.08 B-1 42.8 B-3 40.1 -2.7

C-1 56.9 C-3 63.4 +6.5

85 It has been argued that there was

possibility of variation of percentage in diacetyle

morphine as hydrolysis of diacetyle morphine could

take place depending on the percentage of water,

diluant, additives etc. and in this context, cross-

examination of PW-11 S.C. Mathur and PW-12 S.K.

Mittal was referred. There may be a possibility of

slight decrease in the percentage of diacetyle

morphine on account of hydrolosis, but the marked

decrease of the percentage in nine samples at

sr.no.1 to 9 cannot be possible by hydrolysis. In


case no.13/2008 dated 8.10.2008 at sr.no.8, 9 kg

Heroin was seized which tested positive for DAM and

initially percentage of DAM was 84.3, but on re-

testing the percentage decreased to 16.3. It cannot

be believed at all that such marked decrease in the

percentage of DAM would be a result of hydrolysis.

Moreover, it cannot be accepted that samples in nine

cases would have deteriorated due to hydrolysis.

Further, the court cannot loose sight of the fact

that some of the samples of Heroin, on re-testing,

showed a marked increase in the percentage of

diacetyle morphine which could not be explained by

ld. defence counsel. This fact cogently establishes

that the samples were tampered with. In case

no.05/07 dated 19.7.07, 3 packets of a markin cloth

and three polythene packets were found deficient

which further favours prosecution case of tampering

with the contraband stored in NCB godown. Statement

of Naveen Kumar regarding mixing of neutral

substance by him and Balwinder Kumar in the lots of

Heroin in the office on the directions of Saji Mohan

thus finds corroboration from the chemical

examiner's report and there is sufficient

substantive evidence available to rely upon the

confessional statement.

86 Section 27 of the Indian Evidence Act

embodies the doctrine of confirmation by subsequent

events. The facts investigated and found by the

Investigating agency consequent to the information

disclosed by accused Navin amount to confirmation of


that piece of evidence. The correctness of

information given by accused Naveen Kumar vide his

statement Ex PW18/H is confirmed by a subsequent

step in investigation. The fact discovered in

investigation i.e. reduction of percentage of

diacetyle morphine in several unclaimed seizures of

sizable quantity of Heroin are directly relatable to

the information. Since facts were actually

discovered in consequence of Ex PW18/H, it affords a

guarantee of truth of that part of his statement.

87 Where sufficient materials are brought on

record to lend assurance to the court in regard to

the truthfulness of the confession made which is

corroborated by several independent circumstances,

even a retracted confession may be acted upon. Refer

to State of Tamil Nadu Vs. Kutti @ Luxmi Narsimhan

2001 Crl.L.J. 4168, Bhagwan Singh Vs. State of M.P.

2003 Crl.L.J. 1262 and Sarwan Singh Rattan Singh Vs.

State of Punjab. The circumstance discussed above in

the opinion of the court lend sufficient credence to

the prosecution case.

88 Considering the proved circumstances

emerging on record, the court is convinced of the

truthfulness of the confessions and that the

retractions thereof are an afterthought. There need

not be corroboration in respect of each and every

material particular. Broadly, there should be

corroboration so that confession taken as a whole

fits into the facts proved by other evidence. Law


does not require that each and every circumstance

mentioned in the confession regarding complicity of

the accused must be separately and independently

corroborated. It would suffice that the general

trend of the confession is substantiated by some

evidence which would tally with what is contained in

the confession. The confessions Ex P-9 and Ex PW18/H

in our case meet the test.

89 The question which now arises is whether

the confessional statement Ex P-9 of accused Nasib

Chand and Ex PW18/H of accused Naveen Kumar can be

admitted in evidence against accused Saji Mohan.

Section 30 of The Indian Evidence Act, 1872 reads

as under:

“30. Consideration of proved confession

affecting person making it and others jointly

under trial for same offence.- 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.”

90 Indisputably, Section 30 of the Indian

Evidence Act, 1872 in the situation of present

nature, can be taken aid of. Learned defence counsel

has referred to Kojja Sreenu Vs. State of A.P. 2005

Supreme Court Cases (Cri) 853, Suresh Budharmal


Kalani Vs. State of Maharashtra 1998 Supreme Court

Cases (Cri) 1625 in support of his argument that the

confessional statements were not admissible against

accused Saji Mohan. In Suresh Budharmal Kalani Vs.

State of Maharashtra's case (supra), one of the

accused was discharged from the case and was not

facing trial. It was in those circumstances that

Hon'ble Supreme Court held that confession of co-

accused could not be used against other co-accused.

The judgment in Kojja Sreenu Vs. State of A.P. Was

also rendered on entirely different set of facts and

the confession involving co-accused not being

corroborated was not relied upon.

91 It has been held in Ram Parkash Vs. State

of Punjab 1959 Crl.L.J. 90 that:-

“That a voluntary and true confession made by

an accused though it was subsequently retracted

by him, can be taken into consideration against

a co-accused by virtue of Section 30 of the

Indian Evidence Act, but as a matter of

prudence and practice the court should not act

upon it to sustain a conviction of the co-

accused without full and strong corroboration

in material particulars both as to the crime

and as to his connection with that crime.”

92 The confessions of co-accused Naveen Kumar

and Nasib Chand Ex PW18/H and Ex P-9 respectively,

though retracted, have been held to be voluntary and

true and are substantially corroborated by the


circumstances emerging on record, lending adequate

assurance to the court that it is safe to rely upon

them.

93 Learned defence counsel has also relied

upon U.O.I. Vs. Bal Mukund & Ors. 2009(2) RCR (Crl.)

574 (SC), Noor Aga Vs. State of Punjab & anr. 208(3)

RCR (Crl.) 633 (SC), Francis Stanly Vs. Intelligence

Officer, NCB (2007)2 Supreme Court Cases (Cri) 618,

arguing that in view of proposition of law settled

therein, the retracted confessional statements of

co-accused can not be made the basis of conviction

of accused Saji Mohan. Whether or not a confessional

statement in the given set of facts of a case is

found to be voluntary, free from pressure, safe to

rely upon would depend upon the peculiar

circumstances of the case and no hard & fast rule

can be laid down as to whether a particular

confessional statement should be accepted or not. As

observed by Hon'ble Supreme Court in Navjot Sandhu's

case (supra), it is not an inflexible rule that in

no circumstances, conviction can be made on such

retracted confession without corroboration. A court

may in a particular case, be convinced of the

absolute truth of confession and prepared to act

upon it without corroboration--------------------.

94 In the peculiar circumstances of the case,

the court is satisfied that the retracted

confessional statement Ex P-9 and Ex PW18/H are true

and voluntarily made and have been corroborated


broadly. The confessional statement of accused

Naveen Kumar against accused Saji Mohan and

Balwinder Kumar gains strength from the chemical

analysis reports of the samples. Subjecting the

confessions to closest scrutiny, the court is of the

opinion that they can be relied upon by calling

Section 30 of Indian Evidence Act in aid.

95 Learned counsel for accused vehemently

argued that one tainted piece of evidence i.e.

retracted confessional statements of the accused

could not corroborate another tainted evidence

because if this is allowed to be done, then the very

necessity of corroboration is frustrated.

96 The standard of proof beyond reasonable

doubt in a criminal case does not mean absolute

proof. There cannot be a criminal case with cast

iron perfection. Hon'ble Supreme Court has

elaborated meaning of the word 'proof'in M. Narsinga

Rao Vs. State of Andhra Pradesh 2001(1) RCR

(Criminal) 95 (SC) as under:-

“The word “proof” need be understood in

the sense in which it is defined in the

Evidence Act because proof depends upon the

admissibility of evidence. A fact is said to be

proved when, after considering the matters

before it, the Court either believes it to

exist, or consider its existence so probable

that a prudent man ought, under the

circumstances of the particular case, to act


upon the supposition that it exists. This is

the definition given for the word “proved” in

the Evidence Act. What is required is

production of such materials on which the Court

can reasonably act to reach the supposition

that a fact exists. Proof of the fact depends

upon the degree of probability of its having

existed. The standard required for reaching

the supposition is that of a prudent man

acting in any important matter concerning him.

Fletcher Moulton, L.J. In Hawkins V. Powells

Tillery Steam Coal Company Ltd. 1911(1) K.B.

988 observed like this:

“Proof does not mean proof to rigid

mathematical demonstration, because that is

impossible; it must mean such evidence as would

induce a reasonable man to come to a

particular conclusion”.

The said observation has stood the test of

time and can now be followed as the standard of

proof. In reaching the conclusion the court can

use the process of inference to be drawn from

facts produced or proved. Such inferences are

akin to presumptions in law. Law gives absolute

discretion to the court to presume the

existence of any fact which it thinks likely

to have happened. In that process the court may

have regard to common course of natural events,

human conduct, public or private business vis-

a-vis the facts of the particular case. The

discretion is clearly envisaged in Section


114 of the Evidence Act”.

97 The court, from the evidence on record, is

convinced of the truth of statements Ex P-9 and Ex

PW18/H which can be acted upon having regard to the

common course of natural events, human conduct vis-

a-vis the facts of the case.

98 The 3rd point for determination by the

court is:-

“Whether prosecution has proved beyond

reasonable doubt that accused Balwinder Kumar,

then Superintendent, NCB, Chandigarh and Godown

Incharge, NCB, Chandigarh connived and

conspired with accused Saji Mohan, Devinder

Singh and Naveen Kumar in pilfering Heroin from

unclaimed seizures in NCB godown at

Chandigarh.”

99 It is not disputed that at the relevant

time, i.e. from 14.2.07 to 31.12.08, it was accused

Balwinder Kumar, Superintendent, who was Incharge of

Godown, NCB, Chandigarh where case property relating

to unclaimed seizures was stored as per the details

mentioned in para 84 of the judgment. The scientific

evidence afforded by chemical examiner reports on

re-test of the samples shows that there was marked

variation in the percentage of diacetyle morphine in

the samples of Heroin. Eight samples have shown a

marked decrease while four have shown an increase in


the percentage. This circumstance by itself, as

discussed before, is sufficient to hold that the

packets of the unclaimed seizures kept in NCB godown

were tampered with. Balwinder Kumar being Godown

Incharge cannot escape from the criminal liability

attached to such act. The marked variation in the

percentage of diacetyle morphine in so many samples

is not possible by hydrolysis and in no

circumstances, the percentage can increase unless

the parcels are tampered with. Balwinder Kumar is,

therefore, to be held guilty for pilfering Heroin

from the case property of unclaimed seizures lying

in Chandigarh Zonal Unit, NCB. Since Ex PW18/H has

been believed, the connivance and conspiracy of

accused Saji Mohan, then Zonal Director, NCB,

Chandigarh, is also established.

100 There is no evidence regarding involvement

of accused Devinder Singh in the pilferage from the

unclaimed seizures lying in NCB godown. Even his

confessional statement says nothing about the

pilferage. Therefore, the charge of pilferage

against him is not proved.

101 So far as accused Balwinder Kumar is

concerned, possession of contraband by him in his

official capacity was authorized, but the moment it

was pilfered for extraneous purpose, his possession

became illegal and punishable u/s 21 of the Act.

Since accused Saji Mohan is proved to have delivered

10 kg Heroin to Nasib Chand on 26.8.08 at


Chandigarh, the source of contraband being

established, which was from the unclaimed seizures

lying in NCB godown, Chandigarh, it is proved by

circumstances that the 10 kg Heroin was pilfered

from NCB godown, Chandigarh with the aid and

connivance of Balwinder Kumar.

102 The fourth point for determination is:-

“Whether prosecution has proved beyond

reasonable doubt that on 26.8.08, in the area

of Chandigarh, accused Saji Mohan delivered 10

kg Heroin to accused Nasib Chand for sale in

open market?

103 Since the retracted confessional statement

Ex P-9 of accused Nasib Chand well corroborated by

cogent circumstances and evidence is to be believed,

as discussed before, it is established beyond doubt

that accused Saji Mohan delivered 10 kg Heroin

pilfered from godown of NCB, Chandigarh on 26.8.08

to Nasib Chand for sale in open market.

104 Corroboration to Ex P-9, the confessional

statement of accused Nasib Chand is also in

connivance with his subordinates had been pilfering

Heroin from the case property of unclaimed seizures

lying in NCB godown, Chandigarh. The source of 10 kg

contraband which he delivered to accused Nasib Chand

is, therefore, established.


105 Conspiracy is seldom an open affair. It

is proved by circumstantial evidence. Existence of

conspiracy and its object has to be inferred from

the circumstances and conduct of the accused. The

conspiracy proved must form a chain of events from

which the only irresistible conclusion about the

guilt of the accused can safely be drawn.

Surrounding circumstances, subsequent and antecedent

conduct among other factors constitute the relevant

material from which inference of conspiracy can be

drawn. The well proved circumstances on record

satisfy that accused Saji Mohan being the Zonal

Director, NCB Zonal Unit, Chandigarh conspired with

his subordinate Balwinder Kumar, Superintendent,

NCB, Chandigarh Zonal Unit to pilfer Heroin from the

unclaimed seizures lying in NCB godown. The charge

of conspiracy is also thus fully established against

accused Saji Mohan and Balwinder Kumar.

106 The fifth point for determination is:-

“Whether complainant is duly authorized Officer

u/s 36-A(1)(d) of the Act?

107 It has been argued that PW-18 Harcharan

Singh Gill was required to produce an authorization

by the Central Government or State Government for

filing the complaint. As no such authorization was

proved, Section 36(A)(1)(d) being violated, no

cognizance of the offences could be taken.

108 Ministry of Finance, Department of Revenue

Notification S.O. 763(E), dated 27th September, 1989


provides:-

“S.O. 763(E).- In exercise of the powers

conferred by clause (d) of sub-section 36A of

the Narcotic Drugs and Psychotropic Substances

Act, 1985 (61 of 1985), the Central Government

hereby authorises the officeers of and above

the rank of Inspector in the Department of

Customs, Central Excise, Narcotics, Revenue

Intelligence, Central Economic Intelligence

Bureau and the Narcotics Control Bureau under

the Ministry of Finance, Government of India

for filing of complaints relating to an offence

under the said Act before Special Courts.

109 It is in the cross-examination of PW-18

that he was on deputation in NCB from his parent

department CISF and his rank in CISF was Inspector

Executive. Thus, in view of notification reproduced

above, it cannot be said that the complainant was

not duly authorized to file the complaint and no

cognizance of the offences under the Act can be

taken.

110 From the chain of circumstances

established on record, it must be concluded that

accused Saji Mohan, then Zonal Director of NCB,

Chandigarh in connivance with Balwinder Kumar, then

Superintendent and Godown Incharge, NCB, Chandigarh

pilfered Heroin from packets of unclaimed seizures

of Heroin lying in NCB godown, out of which 10 kg

Heroin was given to Naseeb Chand on 26.8.08 in


Chandigarh for sale in open market. Accused Saji

Mohan, Naseeb Chand and accused Balwinder Kumar are,

therefore, held guilty and convicted u/s 21(c) of

NDPS Act. It is also well established on record that

accused Saji Mohan and accused Balwinder Singh had

conspired to pilfer Heroin from unclaimed seizure

lying in NCB godown, they are to be convicted u/s 29

of NDPS Act, 1985 as well. Disclosure statement of

accused Naseeb Chand Ex P-9 proves that before

taking delivery of 10 kg Heroin from accused Saji

Mohan on 26.8.08, he conspired with accused Saji

Mohan to sell Heroin further in the open market and

in pursuance of pre-arranged plan, came to take the

delivery on 26.8.08. Accused Naseeb Chand is also,

therefore, to be convicted u/s 29 of the Act as well

for being party to a criminal conspiracy to sell the

Heroin in open market. No offence is proved against

accused Devinder Pal Singh, so, he is acquitted of

the charges framed u/s 8/21 of NDPS Act and Section

29 of NDPS Act.

111 The sixth point for determination is:-

“Whether the sanction order Ex PW19/A is

valid”?

112 Accused Saji Mohan and Balwinder Kumar

have been charge sheeted u/s 59(1), 59(2)(B) of NDPS

Act. Sub-section 3 of Section 59 reads as under:-

“No Court shall take cognizance of any offence

under sub-section (1) or sub-section (2) except

on a complaint in writing made with the


previous sanction of the Central Government, or

as the case may be, the State Government”.

113 Though, it is amply proved on record that

accused Saji Mohan and Balwinder Kumar on whom duty

was imposed under the Act, wilfully aided, connived

at contravention of provisions of the Act, previous

sanction of the appropriate government for

prosecution of accused Saji Mohan and Balwinder

Kumar u/s 59 of the Act has not been obtained,

therefore, no conviction u/s 59 of the Act can be

ordered against Saji Mohan. The sanction vide Ex

PW19/A dated 31.12.09 is not prior to filing of

complaint, so, cannot be looked into. Accused Saji

Mohan and Balwinder Kumar are acquitted u/s 59(1)

and 59(2) of the Act for want of prior sanction.

114 So far as accused Naveen is concerned, his

disclosure statement Ex PW18/H speaks that on two

occasions, he and Balwinder Kumar, on the directions

of Saji Mohan had mixed lime in the lots of Heroin

in the office of NCB. Naveen Kumar was, at the

relevant time, P.S.O. of accused Saji Mohan. What

was the exact quantity of Heroin pilfered on those

two occasions, cannot be gathered from the

disclosure statement. Therefore, even though accused

Naveen has been charge-sheeted u/s 21 of the Act,

it will be appropriate to convict him u/s 32 of the

Act as no punishment for the Act committed by him is

separately provided. Accused Naveen Kumar is

accordingly held guilty and convicted u/s 32 of NDPS


Act, 1985. There is no convincing evidence of prior

meeting of minds and of a common design between

accused Naveen, Saji Mohan and Balwinder Kumar. He

(Naveen) is acquitted of the charge u/s 29 of the

Act.

115 Before parting with the judgment, the

court is compelled to observe that investigation of

this case is clearly perfunctory, callous and leaves

much to be desired. Prosecution sought to invoke

section 59 of the Act against the accused performing

duties imposed by the Act, but no prior sanction of

the appropriate government u/s 59(3) of the Act was

sought. Ex PW19/A is the sanction order dated

31.12.2009 for prosecution of accused Saji Mohan.

The complaint was filed on 10.9.2009 and the

sanction order was not even sought to be produced

before 6.1.12. The sanction not being obtained

previous to filing of the complaint, the sanction

order Ex PW19/A cannot be looked into. Prime accused

were the officers of the same department which is

now prosecuting the case against them. Why no effort

was made by the prosecuting agency to seek prior

sanction against accused Balwinder Kumar, the then

Superintendent, NCB, Chandigarh, and Saji Mohan,

then Zonal Director, who are proved to have

committed serious offences punishable u/s 59 of the

Act need not be elaborated further. It is thus

manifest that the Investigating Officer was greatly

remiss in performance of his duties.


116 Witnesses PW-10 Virat Dutt Chaudhary and

PW-17 Pushpdeep Singh, being public servants were

bound by oath as well as provisions of law to state

the truth and not to make any statement which was

false and which they knew or believed to be false or

did not believe to be true. Both have knowingly and

wilfully given false evidence in judicial

proceedings by falsely stating on oath that recovery

of 10 kg Heroin on 27.8.08 in the area of B.O.P.,

Ramkot was an 'unclaimed seizure'.

117 Witnesses PW MMS Bhandari, PW Rakesh Kumar

Roshan, PW HC Vijay Pal Singh and accused Balwinder

Kumar prepared a false document i.e. Ex P-1 dated

15.5.2008 in as much as the place of sealing and

sampling of 60 kg Heroin recovered from Indo-Pak

border on 15.5.2008 was wrongly recorded. Moreover,

MMS Bhandari is proved to have taken the signatures

of Balwinder Kumar, SI Rakesh Roshan and HC Vijay

Pal Singh on 16.5.2008 on back date and mentioned

the date as 15.5.2008 in Ex P-1. They fabricated

false evidence for the purpose of being used in any

stage of judicial proceedings. Similarly, PW-10

Virat Dutt Chaudhary and PW-17 Pushpdeep Singh

prepared a false document i.e. Ex D-5 by showing

recovery of 10 kg Heroin as 'unclaimed seizure',

though in fact Heroin was supplied by accused Nasib

Chand. These witnesses have knowingly and wilfully

fabricated false evidence for the purpose of being

used in judicial proceedings.


118 Following observations of Hon'ble Supreme

Court in State of Punjab Vs. Baldev Singh (1989)3

S.C.C. 977 would be relevant:-

“The legitimacy of judicial process may come

under cloud if the court is seen to condone

acts of lawlessness conducted by Investigating

agencies during search operatioins and may also

undermine respect for law and may have the

effect of unconscionably comprising the

administratioin of justice. That cannot be

permitted”.

119 It is, therefore, necessary and expedient

in the interest of justice that an inquiry should be

made into the offence u/s 193 I.P.C which appears to

have been committed. A complaint in writing is,

therefore, separately being made under the

provisions of Section 340 Cr.P.C. against the

witnesses.

120 Convicts are taken into custody. They

shall be heard on the quantum of sentence on

11.3.2013.

Pronounced: Shalini Singh Nagpal,8.3.2013. Special Judge,

Chandigarh.


Present:Sh.Kailash Chander, Special Public Prosecutor for NCB.Convict Saji Mohan in custody represented by Ms.Sarabjit Kaur, Advocate.Convict Balwinder Kumar in custody with Counsel Sh.Rabindera Pandit.Convict Naveen Kumar in custody with Counsel Sh.Sandeep Kumar.Accused Naseeb Chand in custody with Counsel Sh.Rabindera Pandit.

QUANTUM OF SENTENCE.O R D E R :

This order be treated as part of the judgment.

2 I have heard learned SPP for NCB and

learned defence counsel on the point of sentence.

3 Convict Saji Mohan stated that he was a

Veterinary doctor by profession, son of an Ex-Army

Officer, selected as IPS in the year 1995 and had

unblemished service record. During his service, he

remained posted at J&K in the terrorist effected

area for ten years before joining at Chandigarh. He

was awarded President Gallantry Award and Government

of India assigned him to UNO for two years. He had

aged ailing parents and was the only married son

having wife and two minor children. His younger son

was autistic and there was no other male member in

the family. He was the only bread winner in the

family and there was no other person to support his

parents and his family. He was first offendor and

due to conviction, he was likely to loose government

service.

4 Convict Balwinder Kumar stated that he was


not a previous convict and was sole bread winner of

the family having minor children and wife to

maintain. On account of conviction, he was likely to

loose government service. He had been awarded many

commendation certificates for performing excellent

duty during his service period. He served the nation

as well as society with honesty and dedication. He

was a victim of tainted investigation.

5 Convict Nasib Chand stated that he was an

old, infirm person having heart problem, at the fag

end of his life and was not a previouc convict.

6 Convict Naveen Kumar stated that he was

married having wife, old ailing parents and one

minor child. He was the only bread winner of the

family and there was no other person to support his

parents and his family. He was first convict. Due to

conviction, he was likely to loose the government

service.

7 All convicts and their counsels have

prayed for lenient view on the quantum of sentence.

8 Learned counsels for convicts Saji Mohan

and Balwinder Kumar have, in addition, asserted that

no recovery of contraband was effected from

possesison of either Saji Mohan or Balwinder Kumar

who earned several commendations during their

service tenure. Therefore, they deserve minimum

sentence.


9 Drug trafficking, trading and abuse not

only eats into the vital of the society, it also

affects the economic growth of the nation and

contributes to delinquency in society. Drug abuse

weakens the morale, physique and character of the

youth. Drug trafficking is a curse for a developing

country like ours which is already encountering

problems like poverty, unemployment and population.

Organized crime, drug trafficking and terrorist acts

are inter-twined and are no longer distinct

activities. The courts cannot be a silent spectator

to the grave situation and offences of the present

nature are to be dealt with heavy hands, of course

within the parameters laid down under the Act.

10 Drug trafficking activities have shown a

sharp increase over the years and unscruplous

persons dealing in drugs have flourished with the

connivance of officers of the agencies meant for

checking the menace. Such offences, committed by

officers of the Narcotic Control Bureau, brought

into being to control the menace, strike a serious

blow to the rule of law. Agencies deployed for

combating drug trafficking have to act within the

parameters of law and not as violators of law. The

offences committed are aggravated by the fact that

they are committed by officers of NCB, under the

shield of uniform and authority, in the four walls

of a Police Station. Abuse of power by law enforcing

officers is a matter of deep concern in a free

society and has to be checked, detected and curbed


with strong hands. Measure of punishment cannot

depend upon the social status of the convicts.

Convict Saji Mohan and convict Balwinder Kumar

having occupied responsible positions in Narcotic

Control Bureau, Chandigarh. took advantage of the

public office in committing the offence. Therefore,

they are liable for higher than the minimum

punishment.

11 Keeping in view the quantity of contraband

involved, the age, character and antecedents of the

convicts who are first offendors and all relevant

facts and circumstances of the case, the convicts

are sentenced as under:-

Convict Saji Mohan:Section 21(c) : To undergo rigorous NDPS Act, 1985. imprisonment for a period of 13

years and to pay fine of Rs.1,50,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for two years.

Section 29 : To undergo rigorous NDPS Act, 1985. imprisonment for a period of 13

years and to pay fine of Rs.1,50,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for two years.

Fine not paid.Convict Balwinder Kumar:Section 21(c) : To undergo rigorous NDPS Act, 1985. imprisonment for a period of 13





Fine not paid.Convict Naveen Kumar:Section 32 : To undergo rigorous NDPS Act, 1985. imprisonment for a period of

six months and to pay fine of Rs.10,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for one month.

Fine paid.Convict Naseeb Chand:Section 21(c) : To undergo rigorous NDPS Act, 1985. imprisonment for a period of 10




Fine not paid.

12 The substantive sentences shall run

concurrently. The period of detention already

undergone by convicts during trial of the case shall

be set off against the substantive sentence under

the provisions of Section 428 of the Code of

Criminal Procedure.

13 All the exhibits of the case and the case

property be kept intact and be disposed off as per

rules on the subject after the expiry of the period

of appeal or revision, if any, filed in this case,

or in case of filing of appeal or revision, the

result thereof. File be consigned to the record room

after due compliance.

Pronounced: Shalini Singh Nagpal,


11.3.2013. Judge, Special Court, Chandigarh.


Present:Sh.Kailash Chander, Special Public Prosecutor for NCB.Accused Saji Mohan in custody represented by Sh. K. Balakrishnan, Shri Ayas Khan and Ms. Sarabjit Kaur, Advocates.Accused Balwinder Kumar on bail with Counsel Sh.Rabindera Pandit.Accused Naveen Kumar and Devinder Pal Singh on bail with Counsel Sh.Sandeep Kumar.Accused Naseeb Chand on bail with Counsel Sh.K.S. Chaudhary.

Defence evidence closed. Written arguments filed. Arguments heard. For orders to come up on 31.1.2013.

Shalini S. Nagpal/JSC/30.1.13.

Present:Present:Sh.Kailash Chander, Special Public Prosecutor for NCB.Accused Saji Mohan in custody represented by Sh. K. Balakrishnan, Shri Ayas Khan and Ms. Sarabjit Kaur, Advocates.Accused Balwinder Kumar on bail with Counsel Sh.Rabindera Pandit.Accused Naveen Kumar and Devinder Pal Singh on bail with Counsel Sh.Sandeep Kumar.Accused Naseeb Chand on bail with Counsel Sh.K.S. Chaudhary.

Vide my separate judgment of even date, accused have been held guilty and convicted. Case is now adjourned to 4.2.103 for quantum of sentence.

Shalini Singh Nagpal/JSC/31.1.13.


Present:Sh.Kailash Chander, Special Public Prosecutor for NCB.Convict Saji Mohan in custody represented by Ms.Sarabjit Kaur, Advocate.Convict Balwinder Kumar in custody with Counsel Sh.Rabindera Pandit.Convict Naveen Kumar in custody with Counsel Sh.Sandeep Kumar.Accused Naseeb Chand in custody with Counsel Sh.Rabindera Pandit.

Vide my separate detailed order of even date, both convicts have been sentenced as under:

the convicts are sentenced as under:-Convict Saji Mohan:Section 21(c) : To undergo rigorous NDPS Act, 1985. imprisonment for a period of 13




Fine not paid.Convict Balwinder Kumar:Section 21(c) : To undergo rigorous NDPS Act, 1985. imprisonment for a period of 13




Fine not paid.Convict Naveen Kumar:Section 32 : To undergo rigorous NDPS Act, 1985. imprisonment for a period of

six months and to pay fine of


Rs.10,000/-. In default of payment of fine,he shall further undergo rigorous imprisonment for one month.

Fine paid.Convict Naseeb Chand:Section 21(c) : To undergo rigorous NDPS Act, 1985. imprisonment for a period of 10




Fine not paid.

12 The substantive sentences shall run

concurrently. The period of detention already

undergone by convicts during trial of the case shall

be set off against the substantive sentence under

the provisions of Section 428 of the Code of

Criminal Procedure.

13 All the exhibits of the case and the case

property be kept intact and be disposed off as per

rules on the subject after the expiry of the period

of appeal or revision, if any, filed in this case,

or in case of filing of appeal or revision, the

result thereof. File be consigned to the record room

after due compliance.

Pronounced: Shalini Singh Nagpal,11.3.2013. Judge, Special Court,

Chandigarh.

Documents

Judgement in the Case Pilferage of Narcotics By IPS Officer