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.
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Judgement in the Case Pilferage of Narcotics By IPS Officer
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.
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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).
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
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
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,
96 NCB vs Balwinder Kumar & Ors.
11.3.2013. Judge, Special Court, Chandigarh.
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,