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NCB Versus Rozen Cohen @ Halloo

2017 (1) TMI 864 - DELHI HIGH COURT

Acquittal of the charge - NDPS Act - Held 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 make it unsafe to base conviction on the unsubstantiated and uncorroborated testimony of PW-21 (Anshul Dwivedi). - It is well settled law .....

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rt. - If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal, recorded by the Trial Court. - Considering the facts and circumstances of the case, find no substance in the appeal preferred by the appellant NCB; it lacks merits and is dismissed. Pending application also stands disposed of. - CRL.A.1449/2013 & CRL.M.A.No.5662/2016 - Dated:- 9-1-2017 - S. P. Garg, J. For the Appellant : Mr.Sourabh S .....

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the charge. The appeal is contested by the respondent. 2. I have heard the learned counsel for the parties and have examined the file minutely. 3. Briefly stated, allegations against the respondent were that on 27.07.2006 at about 1330 hours PW-1 (Ajay Kumar), Intelligence Officer, received a secret information from DHL office that a parcel bearing airways bill No.1403649730 destined for Telaviv, Israel booked from Udaipur lying at DHL Express Pvt. Ltd. office at 40, Okhla Industrial Estate-III .....

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hree 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 Ani .....

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med that the parcel bearing airways bill No.1403649730 had been booked from the office of AFL Pvt. Ltd., Udaipur, in the account of Sanskriti which is a franchise located in Udaipur run by one Savya Sachi Bhatnagar. It led to recording of Savya Sachi Bhatnagar s statement under Section 67 NDPS Act who informed that on 23.07.2006 one Anshul had booked the parcel containing three wooden stools (chowkies) to Israel. He further disclosed that the parcel was found to be weighing 37 kg. and ₹ 16 .....

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he chowkies recovered from the DHL office were consigned by him on the instructions of the respondent. Pursuant to the said information got on 31.07.2006 Mr.R.R.Kumar, Superintendent directed the Investigating Officer - PW-1 (Ajay Kumar) to constitute a raiding team and to take necessary action. Thereafter the raiding team reached Udaipur at the residence of Anshul Dwivedi and he produced six wooden tables / chowkies out of which in three tables, sixteen packets wrapped with khaki tapes were rec .....

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witnesses. In 313 Cr.P.C. statement the respondent 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 p .....

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e 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 make it unsafe to base conviction on the unsubstantiated and uncorroborated testimony of PW-21 (Anshul Dwivedi). 10. The prosecution witnesses have given divergent versions as to how and under what circumstances, the respondent was arrested, and if so, by .....

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n 67 of NDPS Act. He has nothing to do with the recovery of the contraband. He further informed that the statement under Section 67 of NDPS Act was retracted by him at the earliest opportunity. 11. PW-1 (Ajay Kumar), initial Investigating Officer, deposed that on 04.07.2008 the respondent was intercepted at Mumbai Airport due to opening of LOC against him. He had issued summons under Section 67 of NDPS Act to the respondent directing him to appear in the office of NCB Delhi forthwith. Subsequent .....

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from Mumbai to Delhi. He further admitted that the respondent did not appear before him pursuant to the summons. As per PW- 5 (Akhilesh Mishra) s testimony he had prepared the arrest memo of the respondent and he was medically examined. He, however, was unable to inform as to when and how the accused was arrested and brought back to Delhi. PW-7 (Ram Babu Sharma) informed that on 04.07.2008 at about 11.30 p.m. the respondent was arrested by IO Akhilesh Mishra in his presence. In the cross-examina .....

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ell 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 t .....

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the accused in his own handwriting. PW-16 (Harcharan Singh) was unaware as to from where the accused was apprehended and brought to NCB Delhi. He did not know when the accused was apprehended at Mumbai airport. He did not know whether the team of NCB officials had gone to Mumbai airport. He did not inform PW-1 (Ajay Kumar) as to where the summons under Section 67 NDPS Act were served. No explanation has been given as to why PW-1 himself did not record statement under Section 67 NDPS Act pursuan .....

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who had allegedly intercepted the respondent pursuant to the opening of LOC have not been examined. Issuance of the summons under Section 67 NDPS Act on 04.07.2008 itself on the day the respondent was intercepted at Mumbai seems suspect. 13. The Trial Court has further noted various discrepancies regarding the case property recovered at Delhi and Udaipur. It is alleged that the case property along with the packing materials i.e. tables etc. recovered from the DHL office, Delhi was handed over to .....

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order records that it was the case of the prosecution that the contraband recovered at DHL office along with packing materials i.e. three wooden tables were sent as controlled delivery . During trial it came 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 .....

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p.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 been opened on 09.08.2006 and the wooden chowkies containing therein were sent to Israel. As per .....

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atory of Israel Police in public security. It noted that the prosecution was unable to satisfy if the proper procedure for delivery of the contraband to the Israel authorities was followed. Memorandum of Understanding (Ex.PW-3/2) was executed by Zonal Directoer, NCB, A.Shankar Rao. The Trial Court noted that in his cross-examination, he was confused regarding the procedure of handing over of the controlled delivery . At one point he deposed that Hashish sent to Israel through controlled delivery .....

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alkhana does not contain signatures of PW-19 (Avnish Kumar). The prosecution did not reveal the name of the Israel police officer to whom the contraband was delivered. As per Ex.PW-3/1 the sealed packet was handed over to Israel officer at Mumbai Airport on 09.08.2006. Another document (Ex.PW-19/1), however, records that it was handed over to him on 10.08.2006. PW-1 (Ajay Kumar), in the cross-examination, admitted that he had not seen any authorization letter of the Israel officer authorizing hi .....

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t 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 re .....

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ination by learned Special Public Prosecutor, he again came up with another plea that seizure of 8.7 kg. Hashish was effected by his unit and it was sent for delivery to Israel. Apparently, the exact movement of the contraband recovered at DHL office and its delivery to Israel police has not been established beyond reasonable doubt to ensure that the case property remained intact and was not tempered with. 16. PW-19 (Avnish Kumar) deposed that on 08.08.2006 Zonal Director had detailed him to und .....

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the controlled delivery on 10.08.2006 had come to their office on 09.08.2006 in Delhi. He did not meet any such Israel police official in their Delhi office on 09.08.2006. He admitted that he did not handover the controlled delivery parcel to Zonal Director, Mumbai. He did not obtain the photocopy of the identification document of Israel police officer at the time of handing over. He did not remember the name of Israel police official to whom the controlled delivery was handed over. 17. The pros .....

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S Act (Ex.PW5/1) was recorded on 31.07.2006. The Trial Court noted that PW-21 (Anshul Dwivedi) in his cross-examination had disclosed that the recovery was effected before he went to the office of NCB Delhi i.e. before 31.07.2006. He admitted in the cross-examination that an individual from NCB had visited his residence in Udaipur on 29/30.06.2006 in the afternoon and had disclosed him that some recovery of contraband has been effected from some chowkies in Delhi and that on that day itself PW-2 .....

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wivedi) 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 l .....

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nder Section 67 NDPS Act was taken as gospel truth when he himself was a suspect. The Trial Court observed that increase of 9 kg. weight at the time of booking of the parcel itself must have created a doubt in the PW-21 (Anshul Dwivedi) s mind about the contents of the parcel booked by him. It further held that the prosecution was unable to unearth as to why the parcel was booked in the name of Sanskriti Expression without their consent and permission. Had the parcel been booked by PW-21 (Anshul .....

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ategorically stated that he had not given the name of Sanksriti Export; he had told the courier official that consigner s name has to be Rama Arts and Export. He further categorically stated that his signatures did not appear either on Ex.PW-4/3 or the invoice (Ex.PW-4/4). He did not remember whether he had mentioned the name of David Cohen on the consignment note but according to him he had orally stated that the consignment was on behalf of the accused. The Trial Court further noted that the d .....

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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 pros .....

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