JUDGMENT : RAMESHWAR VYAS, J. 1. Both the aforesaid criminal appeals shall stand decided by this common judgment as they arise out of the same incident and judgment impugned. 2. The appellants-Adam Godwin, Umar Yusuf, Adam Mohd. and Khangar Singh have preferred S.B. Criminal Appeal No. 542/2016 and the appellants-Hanif Khan and Ikramuddin @ Ikru have preferred S.B. Criminal Appeal No. 509/2016 under Section 374(2) Cr.P.C. against common impugned judgment and order dated 31.05.2016 passed by Special Judge, N.D.P.S. Cases, Jodhpur in Sessions Case No. 23/2009 (State of Rajasthan vs. Adam Godwin and Others), whereby out of total nine accused persons, three of them were acquitted from the charges levelled against them, whereas, the accused-appellants were convicted and sentenced as under: Appellants-Adam Godwin, Umar Yusuf and Adam Mohd. in Criminal Appeal No. 542/2016 Offence Sentence Fine Default sentence u/s 8/21(c) of the NDPS Act 20 years RI Rs. 2,00,000/- each 3 years RI Appellant-Khangar Singh in Criminal Appeal No. 542/2016 Appellants-Hanif Khan and Ikramuddin @ Ikru in Criminal Appeal No. 509/2016 Offence Sentence Fine Default sentence u/s 8/21(c) r/w Sec. 29 of the NDPS Act 20 years RI Rs. 2,00,000/- each 3 years RI 3. Brief facts of the case in short are that on 09.12.2008, on the secret information, Loon Singh, S.I. Police Station Udaimandir, District Jodhpur (PW-7) with other police personnel reached at Rai Ka Bagh Bus Stand, Jodhpur, whereas per information, they found three foreigners in suspicious condition. On asking, they disclosed their names as Adam Godwin, Umar Yusuf and Adam Mohd. They were carrying bags and suitcases with them. On suspicion, the police after serving notice under Section 50 of the N.D.P.S. Act, took search of their bags, in which, each bag was found containing Heroin. The recovery of total 7.325 kgs, 7.396 kgs. and 6.320 kgs. of narcotic substance Heroin was effected from Adam Godwin, Umar Yusuf and Adam Mohd, respectively. The samples, from each bag, were taken and sealed. The clothes and passports were also recovered from their bags. F.I.R. No. 458/2008 was registered at Police Station Udaimandir, District Jodhpur for the offence under Section 8/21 of the N.D.P.S. Act. The aforesaid three foreign nationals were arrested on the spot. On enquiry, they disclosed that they had received narcotic substance in two suitcases from one person, who came in Bolero Jeep. F.I.R. No. 458/2008 was registered at Police Station Udaimandir, District Jodhpur for the offence under Section 8/21 of the N.D.P.S. Act. The aforesaid three foreign nationals were arrested on the spot. On enquiry, they disclosed that they had received narcotic substance in two suitcases from one person, who came in Bolero Jeep. They received said substance at the instance of native of Tanzania Abu Bakar and paid Rs. 2,20,000/- to the person with covered face, who delivered the substance. After receiving narcotic substance, they went to Durg Vilas Hotel in the taxi, where they shifted the substance in other bags. They did not know the number of Bolero vehicle. The substance was to be taken to Delhi via Jaipur and was to be delivered at the instance of Abu Bakar. The weight of total substance was 21 kgs. for which, they were promised to pay 5000 USD. After investigation, the charge-sheet was filed against the accused Adam Godwin, Umar Yusuf and Adam Mohd for the offence under Section 8/21 of the N.D.P.S. Act, against accused Iliyas for the offence under Section 8/21 read with Sections 23, 25 and 29 of the N.D.P.S. Act, against accused Sardul Singh and Khangar Singh for the offence under Section 8/21 read with Sections 25 and 29 of the N.D.P.S. Act and against accused Ikramuddin, Hanif Khan and Jamal Khan for the offence under Section 8/21 read with Section 29 of the N.D.P.S. Act. 4. On charges being framed, all the accused pleaded not guilty and sought trial. The prosecution in support of its case got examined total 28 witnesses and documents were exhibited as Ex.P/1 to Ex.P/93. The accused were examined under Section 313 Cr.P.C. in which they denied allegations made against them as well as evidence on record. However, no evidence was produced by them in defence. 5. The trial court after hearing the parties, passed impugned judgment dated 31.05.2016 acquitting the accused Jamal Khan, Iliyas and Sardul Singh from the charges levelled against them but convicted and sentenced the appellants Adam Godwin, Umar Yusuf and Adam Mohd. for the offence under Section 8/21(c) of the N.D.P.S. Act and the appellants Khangar Singh, Hanif Khan and Ikramuddin @ Ikru for the offence under Section 8/21(c) read with Section 29 of the N.D.P.S. Act. Aggrieved with impugned judgment of conviction, the appellants Adam Godwin, Umar Yusuf, Adam Mohd. for the offence under Section 8/21(c) of the N.D.P.S. Act and the appellants Khangar Singh, Hanif Khan and Ikramuddin @ Ikru for the offence under Section 8/21(c) read with Section 29 of the N.D.P.S. Act. Aggrieved with impugned judgment of conviction, the appellants Adam Godwin, Umar Yusuf, Adam Mohd. and Khangar Singh have filed Criminal Appeal No. 542/2016 and the appellants Hanif Khan and Ikramuddin @ Ikru have filed Criminal Appeal No. 509/2016. 6. Heard learned counsel for the parties and perused the record of the case as well as judgment impugned passed by the trial court. 7. During arguments, learned counsel representing the appellants Adam Godwin, Umar Yusuf and Adam Mohd. who are foreign nationals, at the outset submitted that the appellants are behind the bars for about than 13 years. The appellants do not want to challenge the judgment of conviction passed by the trial court against them, however, prayed to reduce the sentence of 20 years awarded to them by the trial court to the period already undergone by them in prison. Learned counsel also prayed that the sentence in default of payment of fine passed against the appellants may also be reduced from 3 years to the period already undergone by the appellants in jail. 8. On the point of reduction of sentence, learned counsel for the appellants relied on the judgment of a coordinate Bench of this Court passed in S.B. Criminal Appeal No. 185/2014 (Prem Singh vs. Union of India) and another connected appeal decided on 11.05.2016 wherein, 28 kgs. of contraband Heroin was recovered and the coordinate Bench while relying upon the judgments of the Hon'ble Supreme Court in the cases of Balwinder Singh vs. Assistant Commissioner Customs and Central Excise, (2005) 4 SCC 146 and Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat, (2013) 1 SCC 570 has reduced the sentence of 20 years awarded to the appellants to 10 years. 9. From perusal of the record, it reveals that the appellants Adam Godwin, Umar Yusuf and Adam Mohd. were carrier of Heroin in consideration of money. They received narcotic substance from some persons at the instructions of another person. The main supplier Iliyas could not be convicted. 9. From perusal of the record, it reveals that the appellants Adam Godwin, Umar Yusuf and Adam Mohd. were carrier of Heroin in consideration of money. They received narcotic substance from some persons at the instructions of another person. The main supplier Iliyas could not be convicted. Considering the facts that the appellants have served about 13 years imprisonment and there is no previous conviction against them on record, in the facts and circumstances of the case, keeping in mind the judgment passed in the case of Prem Singh (supra), the prayer of the appellants deserves to be partly allowed. 10. Accordingly, while upholding the judgment dated 31.05.2016 passed by the trial court qua conviction of the appellants-Adam Godwin, Umar Yusuf and Adam Mohd. for the offence under Section 8/21(c) of the N.D.P.S. Act, the same is modified to the extent that sentence of imprisonment awarded to the appellants by the trial court is reduced from 20 years to the period already undergone by them. The sentence of fine imposed by the trial court against the appellants is maintained, however, the sentence of imprisonment for default in payment of fine is reduced from 3 years to 2 years. Upon depositing the fine, the appellants shall be deported to their nation, for which the Commissioner of Police, Jodhpur Metropolitan is directed to do needful in accordance with law. The appellants will not be permitted entry in the country (India) in future. The amount recovered in their personal search including some Indian and US currency and watch etc. shall be returned to them. 11. In the above terms, the Criminal Appeal No. 542/2016 qua the appellants Adam Godwin, Umar Yusuf and Adam Mohd. is partly allowed. 12. As regards the remaining appellants i.e. appellant Khangar Singh in Criminal Appeal No. 542/2016 and the appellants Hanif Khan and Ikramuddin @ Ikru in Criminal Appeal No. 509/2016 are concerned, before deciding their appeals, following relevant facts may be taken note of: (A) Accused Iliyas who was acquitted by the trial court, as per prosecution story, managed to smuggle the narcotic substance Heroin from Pakistan with the help of his maternal uncle Salim, who was native of Pakistan. (B) Iliyas with the help of other accused and the appellants-Khangar Singh, Hanif Khan and Ikramuddin @ Ikru alleged to have supplied the substance Heroin to foreign nationals i.e. convicts Adam Godwin, Umar Yusuf and Adam Mohd. (B) Iliyas with the help of other accused and the appellants-Khangar Singh, Hanif Khan and Ikramuddin @ Ikru alleged to have supplied the substance Heroin to foreign nationals i.e. convicts Adam Godwin, Umar Yusuf and Adam Mohd. who received the Heroin from them near the road going from Shobhawato Ki Dhani to Basni Shramik Colony, Jodhpur, as mentioned in site plan (Ex.P/46). (C) The foreign nationals came on the spot in a taxi, the driver of which was Babulal (PW-4). (D) The prosecution mainly supported its case against the accused-appellants on the basis of identification of the appellants-Khangar Singh, Hanif Khan and Ikramuddin @ Ikru by Babulal (PW-4) during investigation and trial. In addition to identification, the prosecution also relied upon the information under Section 27 of the Indian Evidence Act given by the appellants, in furtherance of which, verification of place, where narcotic substance was delivered to the foreign nationals by the appellants herein viz. Khangar Singh, Hanif Khan and Ikramuddin @ Ikru, was made. 13. During arguments, learned counsel representing the appellants-Khangar Singh, Hanif Khan and Ikramuddin @ Ikru submitted that the appellant Ikramuddin @ Ikru was not identified by Babulal (PW-4) in the identification parade conducted during the investigation. Learned counsel further submitted that identification of the accused first time in the Court during evidence cannot be relied upon to convict him for committing the offence. As regards the appellant-Hanif Khan is concerned, learned counsel submitted that though, the appellant-Hanif Khan was identified by Babulal (PW-4) in the identification parade during the investigation, yet the said witness did not identify him in the Court. PW-4 Babulal did not utter a single word against the appellant Hanif Khan in the Court during his examination. He was also not declared hostile by the prosecution. Learned counsel further submitted that it was not possible for Babulal (PW-4) to identify the persons who delivered the narcotic substance to the foreign nationals. As per prosecution story, the persons who came to deliver the substance had covered their faces. Learned counsel further submitted that it was not clear that out of those persons, who has delivered the substance to the foreign nationals. There are contradictions in the evidence regarding number of persons who actually delivered the narcotic substance to the foreign nationals. As per prosecution story, the persons who came to deliver the substance had covered their faces. Learned counsel further submitted that it was not clear that out of those persons, who has delivered the substance to the foreign nationals. There are contradictions in the evidence regarding number of persons who actually delivered the narcotic substance to the foreign nationals. The verification of place of delivery on the information of the appellants has no evidentiary value since Babulal (PW-4), taxi driver, was already with the police and the police had ample opportunity to discover the place of delivery before information under Section 27 of the Evidence Act was alleged to be given by the appellants. The bags in which the substance was carried to Jodhpur and the bags in which it was found with the Adam Godwin and two other foreign nationals, were not produced as articles before the trial court during trial. There was no evidence on record to convict the appellants Hanif Khan and Ikramuddin @ Ikru. In the circumstances, he prayed for acquittal of the appellants-Hanif Khan and Ikramuddin @ Ikru from the charges levelled against them. 14. Learned counsel for the appellant-Khangar Singh submitted that he was falsely implicated in this case. As per prosecution, the appellant Khangar Singh had purchased the suitcases from Gadra Road, Barmer but this fact could not be proved by the prosecution. As per prosecution, search of the house of Khangar Singh was conducted but nothing was recovered from his possession. Learned counsel further submitted that prosecution has failed to prove that Khangar Singh handed over any narcotic substance to the foreign nationals. Learned counsel further submitted that regarding memo of identification, the accused-appellant-Khangar Singh was, though, identified by Babulal (PW-4) in the identification parade, conducted by the police during investigation, however, Babulal (PW-4) himself admitted in his cross-examination that before identification, he went to police station many times and persons lodged in the police station were shown to him previously. This fact was also disclosed by Khangar Singh to the Magistrate during identification parade. In the circumstances, learned counsel prayed that the appellant-Khangar Singh is also entitled for acquittal. 15. On the other hand, learned Public Prosecutor has submitted that these three appellants i.e. Khangar Singh, Hanif Khan and Ikramuddin @ Ikru delivered the narcotic substance to the foreign nationals Adam Godwin, Umar Yusuf and Adam Mohd. In the circumstances, learned counsel prayed that the appellant-Khangar Singh is also entitled for acquittal. 15. On the other hand, learned Public Prosecutor has submitted that these three appellants i.e. Khangar Singh, Hanif Khan and Ikramuddin @ Ikru delivered the narcotic substance to the foreign nationals Adam Godwin, Umar Yusuf and Adam Mohd. He has relied upon the statement of PW-4 Babulal, who was taxi driver, who was hired by the foreign nationals while going to the place to receive the narcotic substance. He has also relied upon the information under Section 27 of the Indian Evidence Act given by the appellants and the verification of place of delivery in pursuance thereof. 16. After perusing the record carefully, it appears that in the recovery memo (Ex.P/8), it was mentioned that the faces of the persons, who came to deliver the narcotic substance Heroin to the foreign nationals were covered. This fact has been mentioned in Ex.P/8 in the following terms: ^^ge VSDlh ds ekQZr ogka igqaps tgka ,d cksysjks thi ls ,d O;fDr uhps mrj dj vk;k o mlus nks vVsfp;ka ,d dkQh jax dh] ,d xgjs gjs jax dh nsdj iqu% rRdky cksysjks thi dh rjQ pyk x;k ftldk eqag &#2338dk gqvk Fkk geus vcqcdj ls fy;s gq, nks yk[k chl gtkj :i;s geus eqag &#2338ds gq, O;fDr dks fn;sA** </UL>17. PW-4-Babulal, taxi driver, in his cross-examination also, admitted the suggestion of the defence counsel that three persons were wearing blankets. No. conversion took place between him and the said persons. He saw three persons from a distance of 15 feet. Babulal (PW-4) in his cross-examination also admitted that when he reached at the spot, it became dark. In view of above admitted facts by Babulal (PW-4), in the considered opinion of this Court, it was not possible for Babulal (PW-4) to see the persons who delivered the Heroin to the foreign nationals. The offence was committed in the present case very cleverly taking all precautions to conceal the identity of the persons who actually delivered the substance. Three persons came in a Bolero vehicle and out of three persons, only one person came in contact with the foreign nationals and handed over the substance after receiving money. The money received by them was not recovered from the possession of any of the appellants.18. Three persons came in a Bolero vehicle and out of three persons, only one person came in contact with the foreign nationals and handed over the substance after receiving money. The money received by them was not recovered from the possession of any of the appellants.18. It is evident from the identification memo (Ex.P/27) that Babulal (PW-4) could not identify Ikramuddin @ Ikru during identification parade, though, he was present in the parade. In the above circumstances, the identification of appellant Ikramuddin @ Ikru by Babulal for the first time in the Court during examination-in-chief has no evidentiary value. The fact of identification of Ikramuddin @ Ikru in the Court, though not identified in the identification parade by Babulal as also not identifying Hanif Khan in the Court but identified in identification parade, indicates that Babulal was not in a position to identify the persons who delivered the Heroin to the foreign nationals.19. As emerges from the recovery memo (Ex.P/8), only one person stepped down from the Bolero to deliver the Heroin then, how it was possible for Babulal (PW-4) to see other persons who did not step down from the vehicle. It is also important to note that after the incident, this witness went to police station so many times in connection with the investigation of the matter. He has admitted in his cross-examination that he went to the police station 4-5 times before identification parade took place. He also stated in the cross-examination that on asking the S.H.O. regarding the persons who delivered the substance, he identified them in the police station. During identification also, the accused Khangar Singh, Hanif Khan and Ikramuddin @ Ikru stated before the Magistrate that they were shown to the witness by the police. It is also important to mention that accused Ikramuddin @ Ikru and Hanif Khan were arrested on 19.12.2008 and accused Khangar Singh was arrested on 02.01.2009. The identification parade was conducted after lapse of a considerable time on 18.02.2009, whereas, the witness Babulal (PW-4) was available with the police from the date of recovery itself. In the circumstances, it cannot be said that the identification parade was fair and credible.20. The identification parade was conducted after lapse of a considerable time on 18.02.2009, whereas, the witness Babulal (PW-4) was available with the police from the date of recovery itself. In the circumstances, it cannot be said that the identification parade was fair and credible.20. Regarding role of the accused-appellant Khangar Singh, from the statement of PW-4-Babulal, it is not clear as to what was the exact role of Khangar Singh at the spot, where exchange of money and Heroin was taken place. It is also not clear whether Khangar Singh was present with the persons in the Bolero vehicle and received any money from the foreign nationals and delivered the substance, whereas, in the identification memo, Babulal (PW-4) described the role of accused Khangar Singh, Ikramuddin @ Ikru and Hanif Khan in the same wordings, which seems to be not correct. In the opinion of this Court, witness Babulal did not disclose true story before the Court. In the above circumstances, the evidence of Babulal regarding identification is not reliable and cannot be accepted.21. From perusal of the record, it reveals that the Investigation Officer collected the call details of the accused and placed the same on record. But the Investigation Officer did not use these call details for establishing the guilt of the offenders. It is not sufficient for the prosecution to only place on record various call details. The Investigation Officer was required to link these call details to the role of each of the accused. The call details have not been proved during trial in accordance with provisions of Section 65(b) of the Indian Evidence Act. In the considered opinion of this Court, these types of offences can better be proved with the use of scientific methods.22. The prosecution has relied upon the information under Section 27 of the Indian Evidence Act (Ex.P/91, Ex.P/84, Ex.P/83 and Ex.P/87) given by accused Khangar Singh, Hanif Khan and Ikramuddin @ Ikru regarding the place from where they received the narcotic substance from Iliyas and delivered the same to the foreign nationals. In addition to it, the information (Ex.P/89 and Ex.P/90) was given by Khangar Singh regarding the shop from where he purchased the suitcases. In pursuance to the above information, site plans (Ex.P/46 and Ex.P/48) were prepared. In addition to it, the information (Ex.P/89 and Ex.P/90) was given by Khangar Singh regarding the shop from where he purchased the suitcases. In pursuance to the above information, site plans (Ex.P/46 and Ex.P/48) were prepared. In the considered opinion of this Court, above information is not admissible in evidence since no recovery was affected in pursuance of the above information.23. The record also reveals that some persons who helped the main accused Iliyas in concealing and sending the Heroin to other parts of the nation, were not made accused in this case e.g. statement of Sakhi Khan recorded by the police shows that he travelled with Iliyas and delivered the narcotic substance to someone, however, he was not made an accused. In the opinion of the police, if he was considered to be a person helpful to prove the offence against the accused, then provisions of Section 306 Cr.P.C. (tender of pardon to accomplice) could be availed against him. 24. In the above background, the trial court has erred in convicting and sentencing the accused-appellants Khangar Singh, Hanif Khan and Ikramuddin @ Ikru for the offence alleged against them and they deserve to be acquitted from the charges levelled against them.25. Consequently, the Criminal Appeal No. 542/2016 qua appellant-Khangar Singh and the Criminal Appeal No. 509/2016 filed by the appellants-Hanif Khan and Ikramuddin @ Ikru are allowed. The judgment dated 31.05.2016 passed by the trial court in Sessions Case No. 23/2009 (State of Rajasthan vs. Adam Godwin and Others) qua the appellants Khangar Singh, Hanif Khan and Ikramuddin @ Ikru is quashed and set aside and they are acquitted from the charges levelled against them. They shall be set at liberty forthwith, if not wanted in any other case.26. Keeping in view the provisions of Section 437-A Cr.P.C. the appellants-Khangar Singh, Hanif Khan and Ikramuddin @ Ikru are directed to forthwith furnish a personal bond in the sum of Rs. 50,000/- and a surety bond in the like amount before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before the Apex Court.27. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before the Apex Court.27. The original record of the trial court be returned back forthwith.<hr color=rgb(84,0,168)></body></html>

Adam Godwin v. State of Rajasthan