judgement in the case pilferage of narcotics by ips officer
DESCRIPTION
The 1995-cadre IPS officer's arrest and subsequent revelations about his involvement in the drugs trade — stealing seized contraband and then selling it in the open market — had left people dumbstruck.Mohan was arrested in Mumbai in January 2009 with heroin worth Rs 60 crore in the international market. He had served as the NCB zonal director in Chandigarh from 2005 to 2008, and it was during this period that he and his accomplices stole and sold a good chunk of various drugs seized by the bureau.The police probe found that Mohan and his accomplices were stealing the unclaimed seized drugs kept in the storeroom of the NCB office in Chandigarh and then selling the same in the market at huge profit.TRANSCRIPT
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.
2 NCB vs Balwinder Kumar & Ors.
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,
3 NCB vs Balwinder Kumar & Ors.
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.
4 NCB vs Balwinder Kumar & Ors.
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
5 NCB vs Balwinder Kumar & Ors.
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
6 NCB vs Balwinder Kumar & Ors.
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
7 NCB vs Balwinder Kumar & Ors.
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
8 NCB vs Balwinder Kumar & Ors.
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
9 NCB vs Balwinder Kumar & Ors.
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
10 NCB vs Balwinder Kumar & Ors.
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
11 NCB vs Balwinder Kumar & Ors.
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.
12 NCB vs Balwinder Kumar & Ors.
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
13 NCB vs Balwinder Kumar & Ors.
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
14 NCB vs Balwinder Kumar & Ors.
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.
15 NCB vs Balwinder Kumar & Ors.
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
16 NCB vs Balwinder Kumar & Ors.
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
17 NCB vs Balwinder Kumar & Ors.
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
18 NCB vs Balwinder Kumar & Ors.
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,
19 NCB vs Balwinder Kumar & Ors.
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.
20 NCB vs Balwinder Kumar & Ors.
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,
21 NCB vs Balwinder Kumar & Ors.
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.
22 NCB vs Balwinder Kumar & Ors.
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
23 NCB vs Balwinder Kumar & Ors.
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,
24 NCB vs Balwinder Kumar & Ors.
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
25 NCB vs Balwinder Kumar & Ors.
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
26 NCB vs Balwinder Kumar & Ors.
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
27 NCB vs Balwinder Kumar & Ors.
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
28 NCB vs Balwinder Kumar & Ors.
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
29 NCB vs Balwinder Kumar & Ors.
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.
30 NCB vs Balwinder Kumar & Ors.
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
31 NCB vs Balwinder Kumar & Ors.
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
32 NCB vs Balwinder Kumar & Ors.
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
33 NCB vs Balwinder Kumar & Ors.
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?
34 NCB vs Balwinder Kumar & Ors.
“(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.
35 NCB vs Balwinder Kumar & Ors.
.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
36 NCB vs Balwinder Kumar & Ors.
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
37 NCB vs Balwinder Kumar & Ors.
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
38 NCB vs Balwinder Kumar & Ors.
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,
39 NCB vs Balwinder Kumar & Ors.
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.
40 NCB vs Balwinder Kumar & Ors.
.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
41 NCB vs Balwinder Kumar & Ors.
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,
42 NCB vs Balwinder Kumar & Ors.
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
43 NCB vs Balwinder Kumar & Ors.
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,
44 NCB vs Balwinder Kumar & Ors.
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
45 NCB vs Balwinder Kumar & Ors.
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
46 NCB vs Balwinder Kumar & Ors.
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.
47 NCB vs Balwinder Kumar & Ors.
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
48 NCB vs Balwinder Kumar & Ors.
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
49 NCB vs Balwinder Kumar & Ors.
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.
50 NCB vs Balwinder Kumar & Ors.
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
51 NCB vs Balwinder Kumar & Ors.
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:-
52 NCB vs Balwinder Kumar & Ors.
“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
53 NCB vs Balwinder Kumar & Ors.
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
54 NCB vs Balwinder Kumar & Ors.
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,
55 NCB vs Balwinder Kumar & Ors.
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
56 NCB vs Balwinder Kumar & Ors.
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
57 NCB vs Balwinder Kumar & Ors.
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
58 NCB vs Balwinder Kumar & Ors.
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
59 NCB vs Balwinder Kumar & Ors.
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
60 NCB vs Balwinder Kumar & Ors.
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
61 NCB vs Balwinder Kumar & Ors.
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
62 NCB vs Balwinder Kumar & Ors.
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
63 NCB vs Balwinder Kumar & Ors.
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.
64 NCB vs Balwinder Kumar & Ors.
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
65 NCB vs Balwinder Kumar & Ors.
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
66 NCB vs Balwinder Kumar & Ors.
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
67 NCB vs Balwinder Kumar & Ors.
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
68 NCB vs Balwinder Kumar & Ors.
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
69 NCB vs Balwinder Kumar & Ors.
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
70 NCB vs Balwinder Kumar & Ors.
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
71 NCB vs Balwinder Kumar & Ors.
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
72 NCB vs Balwinder Kumar & Ors.
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.
73 NCB vs Balwinder Kumar & Ors.
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
74 NCB vs Balwinder Kumar & Ors.
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
75 NCB vs Balwinder Kumar & Ors.
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
76 NCB vs Balwinder Kumar & Ors.
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
77 NCB vs Balwinder Kumar & Ors.
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
78 NCB vs Balwinder Kumar & Ors.
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
79 NCB vs Balwinder Kumar & Ors.
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
80 NCB vs Balwinder Kumar & Ors.
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
81 NCB vs Balwinder Kumar & Ors.
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
82 NCB vs Balwinder Kumar & Ors.
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
83 NCB vs Balwinder Kumar & Ors.
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.
84 NCB vs Balwinder Kumar & Ors.
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
85 NCB vs Balwinder Kumar & Ors.
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
86 NCB vs Balwinder Kumar & Ors.
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
87 NCB vs Balwinder Kumar & Ors.
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
88 NCB vs Balwinder Kumar & Ors.
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.
89 NCB vs Balwinder Kumar & Ors.
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.
90 NCB vs Balwinder Kumar & Ors.
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.
91 NCB vs Balwinder Kumar & Ors.
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
92 NCB vs Balwinder Kumar & Ors.
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.
93 NCB vs Balwinder Kumar & Ors.
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
94 NCB vs Balwinder Kumar & Ors.
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
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.
95 NCB vs Balwinder Kumar & Ors.
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
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 10
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.
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,
97 NCB vs Balwinder Kumar & Ors.
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.
98 NCB vs Balwinder Kumar & Ors.
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
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
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 Naveen Kumar:Section 32 : To undergo rigorous NDPS Act, 1985. imprisonment for a period of
six months and to pay fine of
99 NCB vs Balwinder Kumar & Ors.
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
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 10
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.
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.