9911796707
TMI Blog2017 (1) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... xpress Pvt. Ltd. office at 40, Okhla Industrial Estate-III, New Delhi is suspected to contain Hashish. The said information was conveyed to Superintendent NCB - R.R.Kumar who directed PW-1 (Ajay Kumar) to constitute a raiding team and take necessary legal action. 4. Further case of the prosecution is that pursuant to the secret information the raiding team arrived at DHL Express Pvt. Ltd. office and met Mahesh Chand Pathak, Supervisor. Anish Khan, Supervisor was associated as member of the recovery team. On opening the parcel, it was found to contain three golden plated wooden tables of different sizes. On opening the top of the tables, it was found to contain some black substance wrapped in packets. Six packets were found in the smallest table and seven and nine packets respectively were found in other two tables. The total weight of the entire substance came to be 8.700 kg. Small quantities of the substance were taken as representative samples. Necessary seizure memos were prepared. Both the independent witnesses Mahesh Chand Pathak and Anish Khan were asked to appear before the NCB to record their statements under Section 67 NDPS Act. The Investigating Officer submitted seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t denied his involvement in the crime and pleaded false implication. He examined himself as DW-1 under Section 315 Cr.P.C. 7. Upon appreciation of the evidence and after considering the rival contentions of the parties, the Trial Court came to the conclusion that the prosecution was unable to establish its case beyond reasonable doubt against the respondent. Resultantly, the respondent was acquitted of the charges. 8. In cases arising out of the provisions of NDPS Act, the Legislature in its wisdom has provided a very stringent punishment. When the punishment is very stringent, it is obligatory on the part of the prosecution to prove the charge beyond reasonable doubt by leading cogent, reliable and satisfactory evidence leaving no chance for the court to formulate an adverse opinion. 9. On perusal of the evidence adduced on record by the prosecution, I am of the view that the prosecution has failed to establish its case beyond reasonable doubt and the benefit of doubt given by the learned Trial Court to the respondent cannot be faulted. The Trial Court has noted number of vital infirmities, inconsistencies and discrepancies in the statements of the prosecution witnesses which m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to who had brought the accused from Mumbai to Delhi. Admittedly he was not a witness to arrest. PW-10 (Insp.P.C.Khanduri) in his examination-in-chief disclosed that on 04.07.2008 the respondent appeared before IO Harcharan Singh, NCB in the office of DZU. On respondent's request, his part statement was recorded by him as per his dictation (Ex.PW-10/8). He was also unable to tell in the cross-examination as to when the respondent was intercepted at Mumbai airport. He did not know whether he was brought to NCB office by some NCB officials or he came on his own. He did not know who had issued summons under Section 67 NDPS Act to the respondent; when the summons were issued and served upon him. He was unable to inform whether the summons were served at Mumbai airport or in the office at New Delhi. He elaborated that on 04.07.2008 he was called by IO Harcharan Singh in the post lunch session to record respondent's statement. He was unable to tell whether it was 2/3/4/8 p.m. that day. He did not ask IO Harcharan Singh since when the respondent was in his custody. He was confronted with the statement under Section 67 NDPS Act where there was no mention if the respondent was informed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record that though the contraband sent to Israel was the one that was recovered from the DHL, the chowkies / tables that were sent were that of the recoveries effected at Anshul Dwivedi's residence. The prosecution was unable to reconcile the major discrepancy. It was unable to establish if all the necessary precautions were taken for the proper storage of the case property and its avoidance from tempering with. The Trial Court noted that PW-1 (Ajay Kumar) in his testimony claimed that he had opened the parcel / pullanda containing 8.7 kg. of Hashish and three wooden stools / tables from the office of DHL Courier on 09.08.2006 after taking out from the malkhana. There was, however, no entry in the malkhana register with respect to the said movement of the contraband. PW-10 (Insp.P.C.Khanduri) in his Court statement admitted that no such entry was made in the malkhana register. As per his testimony at no time whatsoever the case property recovered from Anshul Dwivedi's house at Udaipur was taken out from the malkhana. The Trial Court further noted that a plastic gunny bag produced before the Court bore number 40A/06 and mark 'B'. PW-1 realised that wrong gunny bag mark 'B' had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers of Israel Police. In the cross- examination he informed that he was not having any information about the present case prior to input given by the headquarters with regard to controlled delivery of Hashish. He disclosed that Hashish weighing 8.7 kg. was given by him to Avnish Kumar, however, he did not remember the date on which the said quantity was given. He did not have any knowledge as to how long the said consignment remained with Avnish Kumar. He in the further cross-examination said that the packet of 8.7 kg. of Hashish was collected by the Investigating Officer from the source information given by the Intelligence Officer for its delivery to Mumbai. The said Hashish was never with NCB office. He did not remember the date on which it was delivered. He did not remember when the Mumbai counterpart of NCB further delivered the said consignment of Hashish to Israel authorities. He did not have any personal knowledge as to when the Israel authorities had opened the contraband parcel. He was unable to say if any identity proof of the person who had taken the delivery of the consignment was kept by them or not. He disclosed that the said fact can be revealed by the Mumbai N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnoon and had disclosed him that some recovery of contraband has been effected from some chowkies in Delhi and that on that day itself PW-21 (Anshul Dwivedi) had disclosed to the said officer that similar type of chowkies three in number were lying in his house. According to PW-21 (Anshul Dwivedi)'s deposition, 'chowkies' were checked by the said officer that time and hashish was recovered and the chowkies and contraband were sealed and taken by him to the NCB office at Delhi. 18. The Trial Court further noted various members of the raiding team have given inconsistent version about the recovery of the contraband from PW-21 (Anshul Dwivedi)'s residence. PW-18 (Insp.Manoj Kumar), in the cross-examination, did not remember the shape of the recovered 'charas' from the chowkies; whether these were in the form of sticks or square. He did not remember the number of pieces recovered out of the sixteen packets. He did not know how the samples were drawn by the Investigating Officer Ajay Kumar. PW-10 (Insp.P.C.Khanduri) when asked about the shape of the charas stated that probably it were rectangular slabs. He was unable to tell the length and width of slabs. He did not clearly know as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dwivedi) of Rama Arts and Exports. In answer to the specific question, he informed the NCB, that though the parcel was brought by Anshul of Rama Arts and Export, he had informed him that the consigner of the parcel was David who wanted to send it to Israel and had told him that in the consignment note the name of David should be mentioned. He further explained that he was authorized to give discount for the parcels sent by them. Admittedly David's role in the entire episode has not been investigated. The Trial Court observed that the prosecution had no explanation as to why the Investigating Officer chose to completely accept the statement of PW-21 (Anshul Dwivedi) and did not even bother to check David's role. They failed to explain as to why no enquiry was initiated against David despite his name appearing in the consignment note and why Investigating Officer did not bother to trace out as to who had sent money through Western Union Money Transfer to PW-21 (Anshul Dwivedi). It further noted that the prosecution did not prove on record various documents from the RTDC Hotel where David and the accused had allegedly stayed at the relevant time. Various other discrepancies hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
