VISHAL SHARMA Vs. DEEPAK KUMAR MANGOTRA

JUDGEMENT

(1.) This is a bail application moved on behalf of the accused Vishal Sharma. The case for the prosecution is that on 09.09.2003, on the basis of intelligence received by the Department of Revenue Intelligence, one Maruti Zen Car bearing registration No. DL-6CB-6980 was intercepted near the crossing of Shyam Garments, Central Market, Lajpat Nagar, New Delhi at about 10.30 am. There were four persons in the car and they were Gurmeet Singh, who was allegedly the driver, Purshottam Lal, Vishal Sharma and Som Nath Sharma, who were alleged to be the owners of the car. As per the prosecution, since the place was not proper for carrying out of the search, the vehicle as well as the four persons were taken to the DRI office at I.P. Estate. Two panch witnesses namely, Manwar Singh and Satte Singh were called. It is alleged that on the search of the vehicle, 4.225 kg of contraband was recovered. The CRCL report of the sample taken indicated that the substance had a content of 89% of Diacetylmorphine . In other words, the alleged recovery was of a commercial quantity of high grade heroin.

(2.) Mr Harjinder Singh, the learned senior counsel appearing on behalf of the petitioner, submitted that the panch witnesses Manwar Singh and Satte Singh were stock witnesses and their evidence with regard to the recovery cannot be relied upon. He also submitted that the co-accused Gurmeet Singh, who was allegedly driving the vehicle, has been granted bail by virtue of the order of Special Judge dated 29.08.2006. He submits that the learned Special Judge, while granting bail to co-accused (Gurmeet Singh) took note of the decision of this court in the case of Kashmir Singh v Narcotics Control Bureau : 2006 (3) JCC Narcotics 139 wherein the entire issue of stock witnesses was considered. Reference was also made to the order of the High Court dated 31.7.2006 in the very case of Gurmeet Singh whereby the matter was remanded to the Special Judge for reconsideration. The order of the High Court, passed on 31.7.2006, noted two other cases, namely, DRI v Vinod Kumar and DRI v Brian Taylor and Others wherein Manwar Singh and Satte Singh were witnesses in the former case and Manwar Singh alone was the witness in the latter case. It was, therefore, attempted to be shown by Mr Harjinder Singh that the present recovery witnesses, namely, Manwar Singh and Satte Singh were stock witnesses who were used time and again by the DRI for the purposes of showing recoveries. He submitted that this created a taint on the recovery itself and, therefore, the petitioner ought to be given benefit thereof. The learned counsel for the petitioner also pleaded for parity with the case of Gurmeet Singh.

(3.) Mr Aggarwal, who appears on behalf of the DRI submitted that there was no question of treating the present petitioner's case at par with that of Gurmeet Singh. He submitted that the statements recorded under Section 67 of the NDPS Act were entirely different. He submits that Gurmeet Singh was merely a driver. On the other hand the present petitioner has indicated his involvement as a smuggler and dealing in narcotic substances even prior to the alleged incident. He referred to the statement of the petitioner recorded under Section 67 of the NDPS Act which indicates the entire sequence of events which ultimately led to the interception of the vehicle. It was indicated that on 08.09.2003 one Devi Singh contacted the petitioner at his chemist shop and informed that he had a consignment of about 4.2 kg of heroin which had to be delivered at Delhi on 09.09.2003 and that he had asked the petitioner to arrange for the delivery. The sequence of events relating to the departure of the vehicle from Jammu and its arrival at Delhi and the other persons involved in the said transaction are indicated in the said statement. It is also indicated that all the four co-accused stayed in the same guest house located at Central Market, Lajpat Nagar, New Delhi and after having breakfast all the four sat in the car and were about to start for Connaught Place when they were intercepted by some persons who identified themselves as officers of the DRI. Thereafter, they were asked to accompany them to the office of the DRI located at I.P. Estate. Mr Aggarwal pointed out that in the said statement, the previous involvement and history of the petitioner was also given whereas in the statement of Gurmeet Singh, the situation was different as recorded in the order passed by the learned Special Judge itself. Therefore, he submitted that there was no question of any parity between the case of the present accused and that of Gurmeet Singh. He further submitted that charges have been framed and the trial is in progress. He also emphasized that this was a case under the NDPS Act and involved a commercial quantity of Heroin and, therefore, the rigours of Section 37 of the said Act would be applicable. He also submitted that a confessional statement made under Section 67 of the NDPS Act was admissible and could not be brushed aside lightly. He further submitted that Manwar Singh and Satte Singh were not stock witnesses although they happened to have been recovery witnesses in other cases of the DRI also.