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2015 (6) TMI 817 - HC - CustomsConviction under Section 21(C) read with Section 23 read with Section 28 of NDPS Act - Held that:- Transferring the powder of all 9 packets into one polythene and then taking out two samples and sending one sample to CRCL causes serious prejudice to the appellant as it cannot be ascertained whether all the 9 packets were containing heroin or not. - appellant was also carrying a paper Ex.PW3/DA containing the details of the consigner and consignee according to which the parcel was to be consigned at USA and name of the consigner was shown as Pinto Deep C-33, Kalkaji, New Delhi-17 India. Admittedly no enquiry regarding Pinto Deep or the consignee was made by the prosecution. Moreover, as per the testimony of PW-3 Arvind Kumar the accused was carrying the photocopy of passport in the name of Pinto Deep and also one invoice in his hand. He had seen invoice wherein the address was mentioned and also the passport which was in the name of Pinto Deep. According to him, accused informed him that Pinto Deep was his boss who was not in Delhi. Admittedly, neither the invoice nor the copy of the passport in the name of Pinto Deep were seized nor placed on the judicial file. Moreover, no enquiry was made by the NCB officials as to who had handed over the cardboard box containing the narcotic drug to the appellant and where the same was to be sent. Burden to prove the case beyond reasonable doubt was upon the prosecution. The provisions of the Act and the punishment prescribed therein being indisputably stringent, the extent of burden to prove the foundational facts on the prosecution i.e., proved beyond reasonable doubt would be very onerous. A heightened scrutiny test would be necessary to be invoked. It is also a settled principle of criminal jurisprudence that more serious the offence, the stricter the degree of proof. - prosecution has failed to establish the case beyond reasonable doubt as such, accused is entitled to benefit of doubt. The impugned judgment cannot be sustained and is set aside - Decided in favour of appellant.
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