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2021 (2) TMI 1047 - HC - Indian LawsSmuggling - Heroin - Alleged Recovery of 2.850 kgs of Heroin from the Office of Dart Air - Cross-examination of independent witnesses - Name of the appellant as mentioned in the Airway Bill - Testing of the contraband - Alleged Recovery of 180 grams of Heroin from the Premises of the Appellant - HELD THAT:- There are several questions that arise in the context of the evidence led by NCB. The first question that arises is why would a person who had already booked a consignment come to the courier agency on the next day to enquire about the parcel. Such enquiries could have been made telephonically and it may have been possible to make it online as well. However, Mr. Manchanda submitted that that is a matter of secret information and therefore, there is no evidence in this regard required to be led. This contention is not persuasive. Cross-examination of independent witnesses - HELD THAT:- It is also material to note that in his cross examination, Sh. Rajeev Sharma (PW-11) had stated that the accused did not fill the Proforma Invoice on 07.06.2011 and, had informed him that he would come on the next day, that is, on 08.06.2011 to fill up the same. However, no such explanation was given by any witness in their examination-in-chief. There is also no plausible explanation of why the appellant would not have filled up the Proforma Invoice on 07.06.2011. It is NCB’s case that the accused had only come to make enquiries about his parcel. In his examination-in-chief, PW-11 had stated that the accused had come at around 4:00 PM and had enquired from him and Sh. Rajesh about the parcel that he had booked on 07.06.2011 for USA. PW-12 had also stated in his examination-in-chief, that a Nigerian had come to their office at about 4-4:30 PM and, had confirmed about the parcel from Sh. Rajeev Sharma - There is no evidence that these independent witnesses shared any information with the NCB officials. According to NCB, these witnesses were independent witnesses and were joined to witness the proceedings. Name of the appellant as mentioned in the Airway Bill - HELD THAT:- The said Airway Bill has not been filled in by the appellant. It is also relevant to note that none of the witnesses that testified had stated in their examination-in-chief, as to who had filled up the Airway Bill. However, PW-11, in his cross-examination, conceded that the Airway Bill in question had been filled up in his hand writing. Interestingly, the Airway Bill mentions the name of the appellant as ‘Mosike’. But, that is not the appellant’s name in his passport or any of his identification documents. The officials from Dart Air (PW-10 and PW-11) had confirmed that they were required to fill-up the details as per the identification documents. A copy of the passport was allegedly made available along with the Airway Bill, which mentioned the name of the appellant as ‘Mokibe MR Leepile Moses”. It is also important to note that the Passport indicates that that the Passport had been issued by the Republic of Botswana and not by the Federal Republic of Nigeria. Therefore, PW10 and PW11 could not have known that the appellant was a Nigerian. It is material to note that none of the documents pertaining to the shipment bear the signatures of the appellant. Testing of the contraband - HELD THAT:- It is at once clear that the procedure followed for testing the substance and drawing samples was not in conformity with the procedure that would lend sufficient credibility to the assertion that the entire white powder was Heroin - It is incumbent upon NCB to have at least tested and ensured that the contents of each of the pouches are tested on a Field Testing Kit and further, ascertain that each of the one hundred and forty eight packages were identical in volume, weight and size. However, the NCB officials had failed and neglected to do the same. On mixing the substance from each of the pouches, the identity of the substances in each pouch was lost and a sample drawn from the mixture did not establish that the content of the sample was identical to the substance in each of the pouches. Thus, this Court is unable to accept that NCB had established beyond any reasonable doubt that the appellant had booked a parcel with Dart Air that contained Heroin weighing 2.850 kilograms. Alleged Recovery of 180 grams of Heroin from the Premises of the Appellant - HELD THAT:- Although, there does not appear to be any source of such secret information, on receipt of the said note (Ex. PW7/3), an authorisation for search was issued by the Superintendent, Sh. Yadav in favour of Sh. G.S. Bhinder, Intelligence Officer. He was authorised to search the said premises (B-75, Hardev Nagar, Second Floor, Burari) on the basis of the secret information placed before the Superintendent, Sh. Yadav. This Court is unable to accept that there are no doubts as to the recovery of 180 grams of Heroin from the premises in question as asserted by NCB. This Court is of the view that NCB has failed to meet the standard of proof for convicting the appellant for the offence for which he was charged. The appellant is acquitted of the offence for which he was charged. He is directed to be released forthwith, if not wanted in any other case - Appeal allowed - decided in favor of appellant.
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