TMI Blog2020 (7) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... gation or for some ulterior motives. The net result of the exercise conducted by the NCB is also that the person (sagar Iyer) who is admittedly guilty of fabricating the invoice; falsely signing on behalf of the shipper of the parcel; and shipping the parcel, has been absolved of his role in the said offence. This is despite his statements indicating the reasons for doing so are not consistent. Further, there is no credible explanation as to why he was chosen to book the parcel by another courier agent (Nitesh Patel) even though he was not the franchisee of Fedex and the parcel was booked through Freight Centre (as reflected on the Airway Bill in question) - The impugned judgment convicting the appellants and the impugned order are set aside - appeal allowed - decided in favor of appellant. - CRL.A. 918/2017 & CRL.M. (BAIL) 7406/2020 & CRL.M.A. 7951/2020 AND CRL.A. 931/2017 & CRL. M. (BAIL) 509/2018 & CRL.M.A. 5881/2020 - - - Dated:- 14-7-2020 - HON BLE MR JUSTICE VIBHU BAKHRU Advocates who appeared in this case: For the Appellant :Mr Colin Gonsalves, Senior Advocate with Mr R. Gopal and Ms Olivia Bang, Advocates., Mr Deepak Gandhi, Advocate with Mr Arhum Sayeed, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shaikh (appellant in CRL.A. 931/2017 and hereafter referred to as Rafiq or Rafiq Shaikh ) was also separately charged for attempting to export 1kg of Ketamine in a parcel vide Airway Bill No. AWB947312, which was seized from the premises of Dart Air Services Pvt. Ltd., Express House, A-50/4, Mayapuri, Phase-I, New Delhi at 17:15 hours on 08.06.2011. He was acquitted of the aforesaid charge of attempting to export 1 kg of ketamine and the allegations and evidence led in that regard are not relevant as far as the present appeals are concerned. These appeals are limited to the appellants challenge to their conviction (and consequent sentence) for procuring, storing and attempting to export 2.4 kg of amphetamine in a parcel that was seized from the premises of Fedex Express Services India Pvt. Ltd (hereafter also referred to as Fedex ). 5. It is the prosecution s case, as is evident from a plain reading of the complaint filed by the NCB, that Ms Mehak Jain, IO, NCB, DZU had received secret information on 31.03.2011 that some narcotic drugs were concealed in a parcel bearing Airway Bill No. 466420580086 (hereafter referred to as the Airway Bill in question ) and the said parce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the three copies of the test memo. A panchnama (Ex PW1/B) was prepared in the presence of the witnesses and they put their signature on each and every page of the panchnama (PW1/B), Proforma Invoice(Ex PW1/B1) and the Airway Bill in question (Ex PW1/B2). 9. The case property and the samples along with the test memos were deposited with the Malkhana Incharge and the official seal was deposited with the Seal Incharge. The seizure report under Section 57 of the NDPS Act was submitted by Ms Mehak Jain (IO) to the Superintendent, DZU. 10. On 22.03.2011, Sh. Y.R. Yadav, Superintendent, NCB, DZU sent the sample marked as A-1 for chemical examination along with test memo to the Chemical Examiner CRCL, Pusa Road, New Delhi, and the same was acknowledged by Sh. Kamal Singh, Assistant Chemical Examiner. 11. The said sample was tested and on 02.06.2011, a test report (Ex Pw2/B) confirming that the substance was amphetamine was received. The said report bore the signatures of V.B. Chaurasia, Chemical Examiner -2 (who was examined as PW2). 12. At the request of the Superintendent, NCB, New Delhi, inquiries were made by the officials of the Ahmedabad Zonal Office of NCB with reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Rafiq Shaikh to receive the parcel, which was sent from Chennai and to further dispatch it to Malaysia through Indo Express Courier Services. Rafiq Shaikh allegedly also informed him of the consignee s name and address. Nitesh further disclosed that he had received parcels in the name of Ramesh Bhai from Chennai on 26 occasions as per directions of Mr. Rafiq and dispatched them to Malaysia. 16. Mr. Sagar Iyer Subramaniam stated that the Proforma Invoice dated 24.02.2011 mentioned the shippers name as Ramesh Bhai but the address on the telephone mentioned in the invoice was that of his office (office of his courier service). 17. NCB alleges that actual booking of parcel was done by Mr. Rafiq Shaikh resident of Mumbai . 18. NCB claimed that on 06.06.2011, Ms. Mehak Jain received secret information that Rafiq Shaikh who was wanted in connection with the seizure of 2.4 kg amphetamine from the parcel, seized at the office of Fedex Express Services India Pvt. Ltd., Mayapuri is staying in Room No. 107, Hotel Millennium 2000 DX, Paharganj near New Delhi Railway Station and if a search is conducted, it is possible that some narcotic drugs would be recovered from his posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to NCB, Rafiq had sent the parcel in question to one Mushahid Ali in Chennai. Mushahid Ali also operates a courier company in the name of Nisha Cargo Courier in Chennai. He was shown the Proforma Invoice dated 24.02.2011 and he stated that Rafiq had sent him a parcel and upon instructions, he had handed over the said parcel to one Kasim Bhai. Kasim Bhai had asked him to send the parcel to Ahmedabad but he had refused. Subsequently at the instructions of Rafiq Bhai, he accepted the parcel from Kasim Bhai and booked the same to Ahmedabad. 24. According to NCB, Sagar Iyer had prepared the Proforma Invoice dated 24.02.2011. He had signed the said invoice on behalf of Ramesh Bhai (shipper) and had booked the said parcel for shipment through Fedex. However, he did not know the contents of the parcel and had done so only at the instance of Nitesh Patel. NCB founded their case on the statements of Rafiq Shaikh, Nitesh Patel, Sagar Iyer and Mushaid Ali, recorded under Section 67 of NDPS Act. NCB claimed that through their investigations, they had confirmed that the accused (appellants herein) are involved in drug trafficking and had intentionally booked the parcel under a fake nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the NCB team by Mr Puneet Sharma, who testified as PW5. Mr Puneet Sharma and one Gulshan Kumar Kaushik (who deposed as PW4) joined the proceedings as independent witness. The parcel was a cardboard box. It was opened by Ms Mehak Jain and she deposed (as PW1) that there were five fibre bags in the parcel and on examination of the bags, it was found that there were cavities in the inner stitched layers. She deposed that the layers were cut open by a cutter and it was found that the cavities contained a white colour powder, which was stitched in the inner layers of each bag. Small quantities of the powder were tested with the DD kit and the same indicated that the substance was Amphetamine. She deposed that the substance found in all five bags appeared similar in colour and texture and, therefore, the contents were transferred into a transparent polythene bag. The same was weighed and it was found to weigh 2.4 kgs. Thereafter, two samples of 5 grams each were drawn and were kept in zip-lock transparent pouches. They were put in white coloured paper envelopes, which were marked as A-1 and A-2. She deposed that paper slips bearing her signatures and that of the two independent witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kaushik) and PW5 (Puneet Sharma) the two employees of Fedex at Delhi. In his cross-examination, PW4 had explained the procedure of accepting shipments. He stated that whenever the shipment was received, it is checked physically and an airway bill is generated against the shipment. One copy of the invoice along with the airway bill is sent to the manifesting team while the other copy accompanies the shipment. He stated that the manifesting team scans the invoice and the airway bill copy and sends it back for data entry. Thereafter, the shipment starts moving towards the destination points. He explained that along with this, the data entry team enters all details and uploads it on the Fedex Software and this system is followed worldwide. 34. PW4 also testified that generally a parcel sent abroad reaches its destination within five to seven days. He deposed that the parcel in question was received in the office at Mayapuri and was complete in all aspects for being sent to its destination. He stated that he was informed by the gateway security manager that the shipment that had moved from his office had some suspected items in it and was to be kept at the Mayapuri office/his cabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in her cross examination PW1 conceded that she had not make any such enquiries. 38. The panchnama (Ex.PW1/B) indicates that Mr Puneet Sharma (PW5) had produced the parcel bearing the Airway Bill No. 466420580086 before the NCB Team on 21.03.2011. The same was a cardboard box and contained five synthetic fiber bags. The panchnama also indicates that the parcel envelope was accompanied by Proforma Invoice and the Airway Bill in question (Airway Bill No. 466420580086).The said Proforma Invoice (Ex.PW1/B1) indicates the date of shipment of the parcel as 24.02.2011. The shipper s name is reflected as under: Mr. Ramesh Bhai 15, GR. FLR, GOLDSOUK COMPLEX C.G. ROAD AHMEDABAD GUJARAT INDIA TEL 9376195587 39. The consignee is reflected as: MR. GANESHAN NO. A-GF08 PANGSAPURI, LAKSAMANA JAYA A. KAMPUNGLAKSAMANA, BATU CAVES SELANGORDARULEHSAN 68100 MALAYSIA TEL. 0102183994 40. The VISA manifest report indicates the Airway Bill no. as 466420580086 and the shipment date as 24.02.2011. 41. It is important to note that the Proforma Invoice reflects the weight of parcel as 7.400kgs and the size of the box ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Iyer. 46. On 05.04.2011, the Superintendent Ahmedabad Zonal Unit responded by letter dated 05.04.2011 (Ex PW6/C) reporting that inquires had revealed that (i) Nitesh Patel of Patel Couriers had handed the shipment to Indo Express Courier Service owned by Sagar Iyer for sending it to Malaysia on commission basis; (ii) Nitesh Patel had collected the shipment from another courier company of Ahmedabad named Patel On Board Couriers (POBC) where the shipment had arrived from Chennai; (iii) Nitesh Patel was given the contract by Rafiq of MR Express Couriers, Mumbai on commission basis to receive the shipment and to further dispatch it;(iv)Nitesh Patel received a copy of the document named certificate from Konnection Express Courier and Cargo, Royal Villah, Room No. 15, 3rdFloor, 27/69, Venkatesh Street, Chintadripet, Chennai from where the shipment had been booked; (v) Nitesh Patel collected the said shipment on showing a copy of a document named Certificate; (vi) Rafiq Shaikh had given the details of the consignor and the consignee to Nitesh Patel telephonically or by SMS; (vii) Sagar Iyer and Nitesh Patel had explained that it is normal in the trade if the actual identity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2011 was prepared by SagarIyer of Indo Express of CG Road Ahmedabad; (v) the parcel was physically collected by his employee, Ibrahim; (vi) the parcel was received by him on the direction of one Rafiq Shaikh of Mumbai. (vii) Rafiq Shaikh also operated an international courier agency in the name of MR Express ; (viii) he had never seen or met Ramesh Bhai; (ix) the details of Mr Ramesh Bhai were provided by Rafiq over phone and as intimated by him, his address was 501/2, Gomptipur Road, Ahmedabad; (x) the consignee s name and address were intimated by Rafiq Shaikh on phone or by SMS; (xi) Payments were received through angaria namely Vishnuvijay located at Ratanipol Zaweri Chembur Relief Road, Ahmedabad and the said payments were sent from Mumbai by mentioning the sender s name as Mangesh and Swamy ; 51. It is important to note that the said statement indicates that Nitesh Patel was interrogated as to the manner in which the parcel in question was received. He reiterated that the parcel was dispatched from Chennai on 23.02.2011 by Konnection Express Courier and Cargo, Royal Villa, Room No. 15, 3rd Floor, 27/69 Venketesha Street, Chintadr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very next day, on 07.04.2020, another letter (PW20/F) was sent by PW20 to the Zonal Director Mumbai informing him about the inquiries conducted by Ahmedabad Zonal Unit. The Zonal Director was informed that inquiries had revealed that (i) Nitesh Patel had handed over the shipment containing 2.4 kgs amphetamine to Indo Express Courier Service owned by Sagar Iyer for sending it to Malaysia; (ii) Nitesh had collected the said shipment from a courier company of Ahmedabad, namely, Patel On Board Couriers (POBC); (iii) the Shipment had arrived from Chennai; (iv) Nitesh Patel had received a document named Certificate from Konnection Express Courier, Chennai from where the shipment was booked and had collected the shipment from POBC s Ahmedabad Office on showing a copy of the said document, namely, Certificate ; (v) The address of Rafiq Shaikh was disclosed as K-104, Hanjar Nagar, Opposite Aghadi Nagar, Pump House, Andheri (East), Mumhai-93; and (vi) the telephone numbers of Rafiq Shaikh are 09324338225, 09374335105, 07498285405 and 02232525652. The Zonal Director of the Mumbai Zonal Unit of NCB was requested to arrange for further investigation in a secret manner in order to trace out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the parcels had been booked from Chennai to Ahmedabad through Konnection Express Courier have not been brought in evidence before the Court. 60. As observed earlier, no investigation was conducted at Mumbai and there is no documentary evidence of any parcel being couriered by Rafiq Shaikh or his courier agency (MR Express) from Mumbai to Chennai. Although Rafiq Shaikh was summoned to appear under Section 67 of the NDPS Act, no summons were issued for production of any records. Section 67 of the NDPS Act does not limited the power of the competent officer to examine any person acquainted with the facts and circumstances of the case, but in terms of clause (b) of Section 67 of the NDPS Act, the competent officer can also require any person to produce or deliver any document or thing useful or relevant to the enquiry. Despite such wide powers to secure documents from any person, NCB failed and neglected to secure material documentary evidence. 61. It does not appear that investigation any value was done after the two letters (Ex PW20/E and ExPW 20/F) were issued to NCB s Mumbai Unit, as noticed above. 62. NCB appears to have galvanized into action in the beginning of June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy of NCB. Secondly, it was also retracted (Mark DP). The earliest retraction letter on record is dated 28.07.2011 sent from jail to the Inspecting Officer. The said letter was forwarded by Jail authorities under the cover of their letter dated 26.08.2011. The second letter retracting the statement was forwarded by the jail authorities to the trial court under the cover of the letter dated 27.09.2011. And thirdly, this Court can also not readily accept that Rafiq had,on mere asking by NCB, set out in detail his statement supporting the case of NCB and confessed to having dealt with amphetamine in the manner as alleged. 66. Having stated the above, it is also apposite to examine the statement of Rafiq recorded on 06.06.2011(ExPW1/K). 67. He was shown the Proforma Invoice dated 24.02.2011 (Ex PW1/B1) and it is recorded that he stated that above parcel was booked by me through Nitesh Patel, dispatched from Konnection Express Courier and Cargo, Royal Villah Room No.15, 3rd floor, 27/69, Venkatesh Street, Chintadripet, Chennai-600002 . He is further alleged to have stated that this shipment reached Patel On Board Courier s Chennai Office from where it was dispatched to Patel On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ali, in his statement (PW1/Z8) recorded on 19.07.2011, claimed that he ran a courier agency in the name of Nisha Cargo. He stated that he knew Rafiq Shaikh for the past one/one and a half years in connection with his courier business. He was shown the Proforma Invoice (Ex.PW1/B1) and he stated that Rafiq Shaikh had sent him a parcel, which according to him contained five synthetic fibre bags with instructions to give the said parcel to Kasim Bhai. He stated that the parcel received from Rafiq Shaikh was handed over to Kasim Bhai. Thereafter, Kasim Bhai had asked him to book that parcel to Ahmedabad but he had not done so. Thereafter, Rafiq Shaikh had instructed him on phone to accept the parcel from Kasim Bhai and book it in the name of Patel Courier, Ahmedabad . He stated that he was informed that the said parcel would be collected by Nitesh Patel. Mushahid Ali further stated that thereafter he booked the parcel through Konnection Express Courier and Cargo for Patel Courier, Ahmedabad. He further stated that he did not know any Salim Bhai and had met Kasim Bhai only on one or two occasions. He denied that he ever worked for Kasim Bhai. 73. Insofar as the documents regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dged that he was fully aware that the parcel sent by him contained Ketamine / Amphetamine but Sagar Iyer was not. Additionally, he confessed that he was aware that dealing in drugs was a crime and he had done so for money. If the statement is accepted, it also absolves Sagar Iyer of any knowledge that Ketamine/Amphetamine was concealed in the parcels that were dispatched by him. Further, at the end of the statement, he also identified Rafiq Shaikh from his passport size photograph. 77. It is also relevant to note that the second statement of Nitesh Patel recorded on 14.07.2011 is also countersigned by Sagar Iyer. Concededly, Sagar Iyer had appeared before PW 1 on 11.07.2011 pursuant to the summons issued to him on 01.07.2011 and his statement was recorded on 11.07.2011. No further summons were issued to him. Yet, he was present at the office of NCB and was also present when Nitesh Patel s Statement was recorded. In her cross examination, PW 1 deposed that she had not called Sagar Iyer but he and Nitesh Patel were present in the office of Mr Yadav (PW20) and he had asked her to confront Nitesh Patel with the statement of Mr Sagar Iyer. Thereafter, she improved her testimony by st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l duress (he was physically beaten). He further denied that he knew Rafiq Shaikh and volunteered that he came to know him when he was produced before the Court for the first time. He categorically denied that his statements (Ex.PW7/A and Ex.PW1/Z4) are his voluntary statements. 79. As noticed at the outset, NCB s case is, essentially, founded on the statements made by the accused, Sagar Iyer (PW8) and Mushahid Ali (PW18). Apart from the said statements which are alleged to have been made voluntarily, there is no material on record which would even remotely connect the two accused to the parcel that was seized by NCB from the office of Fedex. As is apparent from the above, the facts as recorded in the said statements have not been corroborated by any concrete evidence as no investigation of any value was conducted. The NCB seems to have restricted itself to writing letters, issuing summons and recording statements in their office. Even this exercise was left incomplete. According to PW1, summons issued to Salim Bhai and Kasim Bhai on 01.07.2011 remained unserved. No such summons are on record. Assuming that the same were issued, no steps were taken to ensure that the same are ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cargo. 83. The Trial Court convicted the appellants solely on the basis of the statements made by the appellant Nitesh Patel. The Court proceeded on the basis that the said statements were also corroborated by statement of independent witnesses, namely, Sagar Iyer (PW8) and Mushahid Ali (PW18). Paragraphs 69 and 70 of the impugned judgment reflect the above and are set out below: 69. In the facts and circumstances of the case both the statements of accused Nitesh Patel appear to be voluntary. They are further corroborated by statement of independent witnesses i.e. PW-8 Sagar Iyer and PW-18 Musahid Ali. 70. Hence, court is of the opinion that prosecution has successfully proved that both accused conspired together for export of 2.4 kg of psychotropic substance Amphetamine in a parcel vide airway bill no. 466420580086 seized on 21.03.2011 at 16:04 hours at Fedex Express Services India Pvt. Ltd. C-152, Mayapuri Industrial Area, Phase-II and thereby both of them contravened the provisions of section 8 (c) of NDPS Act and committed offences punishable u/s 23 r/w section 29 of NDPS Act. 84. At this stage it is relevant to refer to section 53A of the NDPS Act and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 87. Having stated the above, it is also necessary to bear in mind that an incriminating statement recorded under Section 67 of the Act is a weak evidence and must be tested and evaluated before the same can be accepted. First of all, the Court must be satisfied that such a statement has been made voluntarily without any fear, coercion or duress. In addition, such statement can only be used to corroborate other evidence. The Supreme Court in the case of Kashmira Singh v. State of Madhya Pradesh: AIR 1952 SC 159 had examined the evidentiary value of a confession made by a co-accused. After referring to various decisions, the Supreme Court held as under:- 10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piece of evidence and there must be some corroborative evidence. 91. It is, thus, necessary to evaluate the evidentiary value of the statements of the accused (appellants herein) bearing in mind the aforesaid principles. 92. Insofar as the alleged voluntary statement of Rafiq (Ex PW1/K) is concerned, he had on 28.07.2011 sent a letter to Inspecting Officer SAFEMA/NDPS Mumbai in connection with freezing of his bank accounts, clearly stating that he was arrested on 06.06.2011 and his statement was obtained under pressure, threat and coercion and he had retracted from the same. He had stated that he had nothing to do with the alleged seizure effected by the NCB officials on 21.03.2011. He stated that he was a proprietor of M.R. Express, a courier agency; an income tax payee and the money deposited into his account was his legitimate money from the said business, which was duly accounted for in his books. The said statement was forwarded by the jail authorities to the Inspectig Officer SAFEMA/NDPS, Mumbai on 26.08.2011. Rafiq also submitted his retraction statement to the learned Trial Court and the same was forwarded by the concerned jail authorities under cover of the letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s difficult to accept that the statements made by Nitesh Patel can be considered as corroborated by the statements of PW8, which have little evidentiary value. First of all, PW8 had recorded his statement twice (PW7/B and PW1/Z3) and, as noticed hereinbefore, the said statements are not entirely consistent in material aspects. The explanation for signing the Proforma Invoice is different. 97. Secondly, the statements are self-serving and they cannot be accepted at their face value. 98. Thirdly, there was no credible explanation as to why PW8 had made the invoice (Ex PW1/B1) in his own office and signed on behalf of Ramesh Bhai. His explanation, as recorded in his first statement, (ExPW 7/B) is that he did so in all cases where local couriers did not know the particulars of the senders. In his second statement (Ex PW1/Z3), he stated that he had done so at the instance of Nitesh Patel. He stated that Nitesh Patel had asked him to do so because his address was reflected on the invoice. This can hardly be a reason for signing on behalf of any person. In his cross examination, he offered yet another explanation: he stated that Nitesh Patel used to come at the last moment, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from M.R. Express Mumbai, which had five synthetic fibre bags and he had delivered the parcel to one Kasim Bhai. Thereafter, Kasim Bhai had asked him to book the parcel to Ahmedabad but he had refused. He stated that thereafter, at the instance of Rafiq, he had accepted the parcel from Kasim Bhai and booked the same to Ahmedabad. In his cross-examination, he deposed that Kasim Bhai had taken the delivery of the said parcel and had left his office. He stated that thereafter, Kasim Bhai came back again after two-four days for booking the parcel. 103. It has not been established that the parcel allegedly booked by Kasim Bhai was the same that was received by him from Mumbai (if at all) two-four days prior to the same being booked. The statement made by Mushahid Ali does not conform entirely to the statement made by Nitesh Patel. Nitesh Patel has not made any reference to Kasim Bhai, who according to Mushahid Ali, was the person who had finally booked the parcel from Chennai to Ahmedabad. 104. It is also relevant to note that whereas Nitesh Patel had handed over certain documents, more particularly POBC Delivery Run Sheet and document bearing CD No. as *517864804* (Ex. PWD1/DC). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gestion and deposed as under: It is correct that NCB officers had also shown me the copy of proforma invoice, airway bill and manifest report which I had identified as the documents received along with the aforesaid consignment . 108. PW18 was cross-examined in respect of this testimony. In his cross-examination, he stated as under: When the parcel in question was received by me from Mumbai the proforma invoice Ex.PW1/B1 was not accompanying the said parcel. Vol. The proforma invoice Ex.PW1/B1 was handed over to me when the parcel was booked to me by Kasim Bhai . 109. He, subsequently, stated that he did not go through Ex.PW1/B1 and had put his signatures on the same without going through its contents. He, subsequently, stated in his cross-examination that he was told by the NCB officials that this document (Ex.PW1/B2) relates to the consignment in question. 110. There is no question of any of the said documents (proforma invoice, airway bill in question and the manifest report) accompanying the parcel allegedly received by Mushahid Ali and delivered to Kasim Bhai or received by Mushahid Ali from Kasim Bhai and dispatched to Nitesh Patel. The Proforma Invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble evidence. In the present case, the statements made by the accused and Mushahid Ali is not consistent with the evidence on record including the POBC Delivery Run Sheet. 115. Further, Mushahid Ali s (PW8 s) testimony and his statement (ExPW1/Z8) seeks to establish that he could identify the parcel dispatched by Sagar Iyer (PW8) as the parcel dispatched by him to Ahmedabad on the basis of the Proforma Invoice, Airway Bill in question and VISA manifest report (Ex PW1/B1 an Ex PW1/B2), which is impossible in the given facts. Clearly, his statement/testimony could not be relied on to provide the link evidence or ascribe any corroborative value. 116. The Trial Court erred in not examining the material placed on record and accepted the prosecution s case even though there is sufficient material to doubt the case set up by the prosecution. The Trial Court had completely ignored that the parcel seized by NCB weighed 2.4 kgs and the parcel allegedly received by Nitesh Patel weighed 36 kgs and this belied the prosecution s case that the parcel dispatched by Sagar Iyer was the same that was received by Nitesh Patel from Chennai. 117. There is a doubt whether the sample of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /B), named three employees (Kumar Pillai, who worked at the office and Shailesh Solanki and Kamlesh Kohli, who collected the couriers) but none of them were examined; (xii) no one was examined from Patel On Board Couriers (POBC) and no documents regarding the dispatch and receipt of the parcel in question were recovered from it; (xiii) no inquiries were made from M/s Konnection Express Cagro and Couriers and no evidence of booking of any parcel by the said agency was produced. (xiv) although the letter (Ex PW6/C) received from Ahmedabad Zonal Unit of NCB alleges that Nitesh collected the parcel from POBC on showing a document named certificate , there is no such document on record and no evidence in this regard was led by NCB; (xv) NCB had put some documents to Nitesh Patel in his cross examination and assuming that the document showing CD No. *517864804* (DW1/DC) is the said certificate (although there is no assertion by NCB to this effect), there is no material on record as to how and from whom this document was received by Nitesh Patel; and (xvi) Although PW1 stated that she had issued summons to Salim Bhai on 01.07.2011, the same are not on record and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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