Delhi High Court
A.K. Sheoran vs Amar Sang And Ors. on 18 May, 2004
Equivalent citations: 112(2004)DLT77
Author: R.S. Sodhi
Bench: R.S. Sodhi
JUDGMENT
R.S. Sodhi, J.
1. This judgment shall dispose of Crl.Rev.P. 437/1997 and Crl. Rev.P. 515/1997.
2. These revision petitions seek to challenge the order dated 2nd August, 1997 of the Additional Sessions Judge in SC No. 15/1989, whereby the learned Judge has dismissed the application filed by the Narcotics Control Bureau (for short “the N.C.B.) under Section 307, Cr.P.C. and has declined to grant pardon to Amar Sang, the accused.
3. The case of the prosecution as noted by the Additional Sessions Judge is as under:
“The case of the prosecution briefly is that on 22.8.97 at around 1.30 a.m. 4 kg of heroin was recovered form the checked in bag of accused Amar Sang while she was on her way to Frankfurt and which contraband been obtained by accused Ravi Sharma from an Afgani national named Shafi at the instance of one Puran Singh who was till date not been apprehended by the NCB. Accused Vijay Kumar was an associate of Puran Singh in this alleged business of drug trafficking and he had packed the said contraband in two specially made contraband boxes which has been given to him by accused Ravi Sharma and which accused Vijay Kumar along with Puran Singh had taken to the house of accused Prakash Bisalay sister of accused Amar Sang to be carried by accused Amar Sang to Barcelona, Accused Ramesh Kumar was also booked by the game along with accused Amar Sang.
3. On 17,12,90 my learned predecessor had framed charges against all the accused person for having entered into a criminal conspiracy to illegally possess and export out of India 4 kg. of herein. Accused Amar Sang had been apprehended at the airport and her checked in baggage had revealed the two cardboard boxes containing the alleged contraband which in terms of her statement recorded under Section 67 of the NDPS Act had been delivered to her by accused Vijay Kumar along with one person named Puran at the instance of accused Ravi Sharma at the house of her sister accused Parkash Bisalay. In her statement accused Amar Sang had further stated that she had been contacted by Puran Singh while she was in Frankfurt around 2 years prior to the year 1987; she had told Puran Singh that she would be visiting India in August 1987 and the details of her exact date of visit could be ascertained from her sister Parkash Bisalay who had informed Puran Singh about the arrival of accused Amar Sang in India and thereafter both the accused sisters i.e. Amar Sang and Parkash Bisalay met Puran Singh on 14.8.87 at Chinar Restaurant in New Delhi where Puran Singh had asked accused Amar Sang to carry this contraband in lieu of which she would be rewarded Rs. 1 lakh as also she would be paid her returned ticket to which she had agreed.
4. That on the eve of the departure of the accused Amar Sang, Puran Singh and accused Vijay had delivered the contraband at the house of accused Parkash Bisalay to be carried by accused Amar Sang which had to be delivered by her in Barcelona”
4. Counsel for the parties have filed their written submissions. Counsel for the N.C.B. submits that the application moved by the prosecution for grant of pardon to Amar Sang has been rejected by the Special Judge primarily on the following four counts:
(a) Prosecution has failed to report in what manner Amar Sang can help the case of the prosecution as her statement as a co-accused recorded under Section 67 of NDPS Act is available to the prosecution.
(b) The application has been made after a decade of the incident without any charge in the circumstances in the intervening period.
(c) Amar Sang’s role is equal if not more in the complicity of the crime.
(d) The interest of the other accused will be gravely prejudiced.
5. Counsel submits that the Supreme Court in Jasbir Singh v. Vipin Kumar Jaggi, 93 (2001) DLT 44 SC has held that it was not for the Sessions Judge to have considered the possible weight of the approver’s evidence even before it was given and that the Sessions Judge could not and indeed should not have assessed the probable value of the possible evidence of the proposed approver in anticipation and wholly in the abstract and that the evidence of approver does not differ from the evidence of any other witness except that his evidence is looked upon with grant suspicion but suspicion may be removed and if the evidence of the approver is found to be trust worthy and acceptable then the same might well be decisive in securing a conviction. He further relies upon the judgment of the Supreme Court in Haricharan Kurmi v. State of Bihar, and Abdul Rashid v. State of Bihar, I (2001) CCR 281 (SC)=2001(1) JCC (SC) 273.
6. While addressing on the point of delay, Counsel for the N.C.B. submits that an application under Section 307, Cr.P.C., as the section suggests, can be made at any time during trial but before pronouncement of judgment. Delay cannot be the sole criteria for knocking down the request of the prosecution. He relies upon the judgment of the Supreme Court in Pascal Fernandez v. State of Maharashtra, .
7. On the question of involvement of Amar Sang in the case, Counsel for the petitioner submits that Amar Sang become a public carrier at the instance of the drug traffickers. She is not a big fish in the drug trade but only a carrier. The accused Ramesh Kumar, Vijay Kumar and Ravi Sharma, as per their statements under Section 67 of NDPS Act, were and are still engaged in the drug trafficking trade. Counsel further relies upon a judgment of the Supreme Court in Laxmipat Choraria and Ors.v. State of Maharashtra, .
8. As regards prejudice to the accused, Counsel for the N.C.B. submits that the prejudice to be taken into consideration is procedural and not whether the accused are likely to be convicted.
9. Counsel for the respondent-Ravi Sharma, Mr. Herjinder Singh, has contended that the judgment under challenge suffers from no infirmity and that the reasoned judgment of the trial Court ought not to be set aside. He submits that the Supreme Court while adjudicating upon the question of grant of pardon in Pascal Fernandez v. State of Maharashtra, , has held that the interest of the accused is just as important as that of the prosecution and that no procedure or action can be in the interest of justice if it is prejudicial to the accused. It is also held that while dealing with the application for grant of pardon, the matters of public policy must also to be considered and the Court must be very conscious as to whom it admits to give evidence as an approver. Counsel submits that from the application made by the prosecution for grant of pardon it is implicit that Amar Sang is not going to disclose the true facts inasmuch as she is not likely to implicate her sister, in which case pardon cannot be justified.
10. I have heard Counsels for the parties and have carefully gone though the order under challenge. It appears to me that on an application moved by the prosecution under Section 307, Cr.P.C. for grant of pardon to Amar Sang, who acted as a carrier, is directly concerned, in and privy to the offence committed and therefore is a competent witness. Whether there is sufficient material before the Court to tender pardon is a question of fact and in the present case statement under Section 67 of the NDPS Act is already on record. It is not for the Special Judge to have considered the possible weight of the approver’s evidence even before it is given. The power of the Court while dealing with an application under Section 307, Cr.P.C. is restricted to obtaining evidence from a person to whom the pardon is granted relating to the offence being tried. The stage at which this power is to be exercised is left to the prosecution which can exercise the same at any time during the trial but before the judgment is delivered. Delay although should be taken into consideration cannot be allowed to defeat the ends of justice as the section itself provides for an application to be made any time during the trial but before judgment. However, the power conferred on the prosecution is not an arbitrary one. Reasons given in the application are bound to be appropriate and germane to the object sought to be achieved. In the present case, the application moved is to obtain the conviction of drug traffickers, the same cannot be said to be extraneous or irrelevant. As already discussed above, it is not for the Court to go into the contents or quality of evidence but only to the nature of evidence, whether it is incriminating or not. It is for the prosecution to judge the sufficiency of the evidence and not for the Court to judge the same at this stage. Statements under Section 67 of the co-accused have been recorded but no recovery has been effected from them. The prosecution feels that the statement of Amar Sang would get corroborated from the statement of co-accused which would then enable the prosecution to link the co-accused with a larger conspiracy and thereby, serve its purpose. Whether Amar Sang is a truthful witness, the same would be governed by the conditions of pardon which if violated would have its own consequences. At this stage, to say that the application for grant of pardon restricts the truth only against accused 3 to 5 or that Amar Sang is not going to support her statement qua accused No. 2, her sister, is not correct. The application for grant of pardon must be read with the object sought to be achieved and not in isolation. It appears to me that the trial Court fell into error when it interpreted the application to mean that Amar Sang would not support the prosecution’s case qua her sister, accused No. 2, Prakash Bisalay Amar Sang is bound to state the whole truth if she hopes to take any benefit from the grant of pardon.
11. No doubt the interests of the accused are as important as those of the prosecution. No procedure or action can be in the interest of justice if it is prejudicial to the accused but the prejudice is in the nature of procedure, namely, that the same is just, fair and equitable. In the present case, nothing has been shown as to how the grant of pardon would cause prejudice to the accused except for the delay in trial. It may be pointed out that Crl.Rev.P. 437/1997 and Crl. Rev. P. 515/1997 have been pending in this Court since 24th October, 1997and 18th December, 1997 respectively and have been heard on more than 30 occasions by various Benches. Surely, this was to ensure that the accused were given full and proper hearing to avoid any prejudice. What is paramount is whether tendering of pardon subserves public policy. Amar Sang is no doubt the carrier from whom recoveries have been made but granting pardon to her would enable the prosecution to catch the big fish, who are trafficking in narcotics which, therefore, would serve public policy.
12. Examining the totality of the case, I find that there is sufficient material on record for the Court to have examined the nature of evidence of Amar Sang which could support the case of the prosecution and that the delay in moving an application under Section 307, Cr.P.C. is caused only because the prosecution took time to ascertain the sufficiency of evidence already on record necessitating the evidence of Amar Sang as witness for prosecution.
13. Amar Sang’s role in the crime has already been dealt with. The trial Court has wrongly held that she being the kingpin could not be granted pardon.
14. Having analysed the case in hand, I am of the opinion that the application of the prosecution under Section 307, Cr.P.C. ought to be allowed. Consequently, I set aside the order dated 2nd August, 1997 of the Additional Sessions Judge, New Delhi in SC No. 15/1989. The trial Court is directed to proceed with the matter in accordance with law.
15. Crl.Rev.P.437/1997 and Crl.Rev.P.515/1997 are accordingly allowed and disposed of. Pending applications also stand disposed of.