TMI Blog2017 (2) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced in defence reveal that in similar circumstances, in most of the cases, independent public witnesses relied upon by DRI were dropped and could not be served or were found not traceable. It is really a matter of concern. It cannot be coincidence that in various cases detailed in Ex. DW-1/D, the public witnesses won’t be available/traceable. The law on this aspect is that “stringent the punishment stricter the proof.” In such like cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication - appeal allowed by way of remand. - Crl. A. Nos. 1150 and 1691 of 2014 & Crl. M.B. Nos. 10359 and 11166 of 2014 - - - Dated:- 21-7-2016 - S.P. Garg, J. Shri Neeraj Bhardwaj and S.B. Dandapani, Advocates, for the Appellant. Shri Satish Aggarwala with Vineet Sharma, Advocates, for the Respondent. ORDER Aggrieved by a judgment dated 1-2-2014 of learned Special Judge in Sessions Case No. 02A/09 in a case titled Directorate of Revenue Intelligence v. Jagroop Singh @ Ceeta and others , whereby Jagroop Singh @ Ceeta (A-1) and Aqil (A-2) were held guilty for committing offences under Section 21(c) of Narcotic Drugs an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Innova car conducted by complainant/PW-3 (R. Roy) resulted in recovery of nine cloth packets having different types of marking from an empty space behind the cabinet of dash board. Nine packets and the documents recovered from the appellants along with panch witnesses were taken to 7th floor office of the DRI situated in the aforesaid building and personal searches of the appellants were conducted. Detailed examination of the recovered nine packets was undertaken and these were found containing white granular substance emanating pungent smell. The gross weight of the nine packets of heroin was found to be 9.170 kg.; net weight was 8.932 kg. Two representative samples of 5 grams each from the aforesaid packets were drawn. Necessary proceedings were conducted at the spot regarding seizure of the contraband. Panchnama (Ex. PW-3/D) was prepared. Pursuant to summons (Ex. PW-3/H) under Section 67 of the NDPS Act, A-1 s voluntary statement (Ex. PW-3/J) was recorded. Similarly pursuant to the summons (Ex. PW-3/I), A-2 s statement (Ex. PW-3/K) under Section 67 of the NDPS Act was recorded. Both the accused persons were formally arrested on 19-7-2008 vide arrest memos (Ex. PW-3/L and Ex. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, it was allegedly put up before PW-2 (P.K. Singh) who called PW-3 (R. Roy) in his office; discussed the information and directed him to take appropriate action for seizure of the contraband vide endorsement from A to A on Ex. PW-1/A. It is unclear as to at what time, the secret information was put up before PW-2 (P.K. Singh) and when PW-3 (R. Roy) was called in the office for discussion. It is also unclear as to at what time PW-3 (R. Roy) organised a raiding party after receipt of the directions from PW-2 (P.K. Singh). No genuine efforts seem to have been made by the Investigating Officer to associate independent public witnesses promptly. It has come on record that both these public witnesses were called in the office on 19-7-2008 at 0015 hours. It has not been elaborated by PW-3 (R. Roy) as to from where these witnesses were arranged; and for what connection, they both were together at that odd hours. In the cross-examination, the complainant was specifically inquired as to who had gone to call the public witnesses. In response to that, PW-3 (R. Roy) merely informed that he had sent some office staff to call panch witnesses and they had brought Azim Khan and Annu to their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said address. Once it was known from the report on the reverse of the summons for the hearing on 15th July, 2009 that the address furnished by the NCB was incomplete, there was no justification in getting summons prepared for the two subsequent dates for the address at E-15/12, G.T.K. Road. The process server had noted that one Mr. Jain was residing in E-15, G.T.K. Road, Delhi and that there was no E-15/12. In the circumstances, it was incumbent on the NCB to ascertain the correct address of Rajiv Chauhan. Further, on two occasions, the Trial Court directed the service of summons to the said witness through the IO, since he was the only public witness. On the first occasion, when such an order was passed on 13th January, 2010, the Trial Court was informed that the direction could not be complied with since the IO was unwell. On the second occasion, when such an order was passed, on 24th May, 2010, the Director, NCB was called upon to monitor the service and submit action taken report on separate letter addressed to the Court. The said order was not complied with. If only NCB had taken effort of finding out what was written on the reverse of the summons, it would have been obviou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases involving the NCB, there is a failure to produce the panch witness named. There are cases where panch witnesses are not associated at all and it is sought to be explained by the prosecution that despite its request no person from the public came forward to join in the raid. The latter explanation has been accepted by some Courts by taking judicial notice of the fact that the members of the public are generally reluctant to be involved in criminal cases as witnesses. However, in a case where the NCB specifically names a public witness as being associated in the arrest and seizure, its failure to produce such person for cross-examination must be specifically explained by it. 31. In the present case the failure to produce the public witness was attributable to a false address given for the witness. This raises serious doubts as to whether such a witness existed at all. It will amount to falsification of the Trial Court record if the thumb impression on the arrest and seizure memo is attributed to a witness who is not able to be produced and it is shown that the address given for him, even in the first instance in the summons issued by NCB, was false. This casts serious doubts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Roy); Kamal Sharma, Intelligence Officer, Yogesh Chaudhary, Intelligence Officer, Ajay Bhasin (SDA) and one or two other staff members. Various documents including Panchnama (Ex. PW-3/D) prepared at the spot, however, do not bear signatures of any other member of the raiding team. None of them was cited as a witness. The complainant did not deem it fit to examine any other member of the raiding team to corroborate his version. Adverse inference is to be drawn against the investigating agency for withholding material witnesses. No plausible explanation has been offered as to why signatures of the other members of the raiding team were not taken on various documents purportedly executed in their presence. 11. As noted above, it is uncertain at what time the secret information was received. PW-1 (Sujeet Kumar), Intelligence Officer merely informed that on 18-7-2008 at around 1710 hours, he received a phone call from his informer and the information was reduced into writing vide Ex. PW-1/A. It was put up before PW-2 (P.K. Singh) at 1730 hours. In the cross-examination, he admitted that the secret information was received in the DRI Control Room on phone and he was informed by a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly did not visit Punjab in connection with further investigation. Role of the owner of the vehicle in the entire occurrence has not been ascertained/investigated. Report under Section 57 (Ex. PW-4/C) is suspect. Again, it is on a loose sheet and its dispatch number does not find mention in any record duly maintained in the office. It is doubtful as to when this report was submitted to PW-4 (B.K. Banerjee), and if so, by what mode and by whom. It does not contain any diary/dispatch number. Regarding compliance of Section 50 of NDPS Act the notices were not served at the spot. The responses are in the handwriting of the alleged panch witnesses who have not appeared to corroborate IO s statement. 15. Statements recorded under Section 67 NDPS Act do not inspire confidence. These have not been corroborated or substantiated. In the follow up action, no incriminating material whatsoever could be recovered at the appellants residences. The Investigating Agency was unable to find out as to who was the supplier of the contraband to the appellants; from where the contraband had originated; who was the person to whom the contraband was to be delivered. Appellants previous involvement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by DRI were dropped and could not be served or were found not traceable. It is really a matter of concern. It cannot be coincidence that in various cases detailed in Ex. DW-1/D, the public witnesses won t be available/traceable. 18. In the light of the above referred deficiencies, inconsistencies and discrepancies, statement of the Investigating Officer without corroboration from other members of the raiding team and independent witnesses cannot be believed to base conviction for stringent provisions of the Act. The law on this aspect is that stringent the punishment stricter the proof. In such like cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication. The prosecution has failed to establish the commission of offence by the appellants beyond reasonable doubt. It cannot take benefit of appellants inability to establish their defence pleaded in 313 Cr.P.C. statements beyond reasonable doubt. Mere apprehension of the appellants is not enough. The evidence is scanty and lacking to establish that the contraband was recovered from the possession of the appellants in the manner alleged by the prosecution on the said dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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