TMI Blog2015 (8) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... tnesses would result in adverse inference being drawn against prosecution –Evidence of PW-1 was indeed riddled with inconsistencies which were not sufficiently explained by prosecution – It also appeared that Respondent was able to establish that his statement recorded under Section 67 of NDPS Act was not voluntary – Thus, trial Court was justified in granting Respondent benefit of doubt and acquitting from charges – Decided against Revenue. - CRL. L.P. No. 110 of 2011 - - - Dated:- 19-11-2014 - S. Muralidhar, J. Shri P.C. Aggarwal, Advocate, for the Petitioner. Shri Yogesh Kumar Saxena and Kapil Chandra, Advocates, for the Respondent. ORDER The Customs Department seeks leave to appeal against the judgment dated 8th De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tag No. 476422, there were 27 such packets kept in two lots of 14 and 13 packets respectively. These were marked A and B. After further removing the layer of packing of transparent poly bag, a black colour semi solid substance was recovered from each lot of Mark A and Mark B and kept in two different transparent poly bags. From the second black bag bearing Tag No. 476423 another 27 packets in two lots of 14 and 13 packets were recovered. These were marked C and D. These were also found containing the black colour semi solid substance. The total weight of the substance recovered was 53.5 Kgs. From each lot i.e. A, B, C and D, three samples of 20 grams each were drawn and representative samples were taken out separately. When tested with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-chief had been recorded was also dropped. 7. When the evidence was put to the Respondent under Section 313 Cr PC, he denied it and claimed that he was falsely implicated. The Respondent examined himself as DW-1. He claimed that when he checked in, he had three baggages, none of which contained hashish. He claimed that somebody had approached him and asked for his air ticket, boarding pass and passport and another person took him to a small room where he was given beating and told that electrical cables would be used against him. He claimed that the Customs officials were violent with him and he was in the same room from midnight of 20th May 2003 till 9 pm of the same day. He was thereafter kept in the airport lock-up. He also claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn against the prosecution under Section 114(g) of the Evidence Act for not producing the panch witnesses to corroborate the testimony of PW-1 regarding recovery of the contraband and arrest of the accused. (ii) There were contradictions in the testimony of PW-1 on whether the Respondent had been taken to the baggage belt area to identify the checked in baggage or whether the checked in baggage was brought to the Customs room for identification by the Respondent. In his cross- examination on 18th February 2010, PW-1 stated that the airline staff had brought the checked in baggage of the Respondent and there it was identified by the Respondent. However, PW-1 could not state the names of the person who were present with him when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the panchnama (Ex.PW-1/E) recorded that the substance recovered was in a semi solid form whereas what was produced in the Court was in the form of sticks. No evidence was produced to corroborate the testimony of PW-1 whose evidence in any way is not convincing. (vii) The Respondent had been able to substantiate the plea that he was inflicted injuries while in custody of the Customs officers and, therefore, reliance could not be placed on his so-called confession . (viii) The prosecution had not observed the instructions regarding drawing of test samples. The evidence showed that the sample packets were never opened in the CRCL for examination and, therefore, it could not be proved that the report given by the CRCL pertained to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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