TaxTMI 
TaxTMI 
TaxTMI 
2014 (12) TMI 400
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....used No. 1 ("A-1") and Ajmer Singh was Accused No. 2 (A-2). Criminal Appeal No. 1171 of 2013 of A-2 was dismissed by this Court on 28th August 2014 on account of his failure to appear before the Court after being on bail. The case of the DRI 3. The case of the Directorate of Revenue Intelligence ("DRI") is that on 7th February 2009 Madan Singh, Intelligence Officer ("IO") [PW-1] had received a secret information "that a person of Indian origin, around 30 years of age, 5 feet 7 inches tall, sporting trimmed beard, wheatish complexioned with medium built, wearing sky blue coloured striped T-shirt would be handing over some narcotic substance to a medium built African person in the evening hours between 7.30 pm to 8 pm on that day in the parking area outside the Majnu Ka Tila Gurudwara, Delhi." The secret information (Ex.PW-1/A) was recorded on 5.30 pm on that very day and was placed before Mr. K.K. Sood, (PW-7), Assistant Director, DRI Headquarters. Mr. Sood then called IO, Mr. D.P. Saxena, [PW-9] and directed him to take appropriate action. The raid proceedings 4. On the above basis, PW-9 along with a team of DRI officers consisting of himself, Mr. Ashok Kumar, Senior Tax Assist....
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....ite colour cloth packing having some rubber stamp markings. These 9 packets were then marked A-1 to A-9. The red and blue coloured bag was found to contain 10 heat sealed transparent polythene packets which again contained white colour cloth bags having rubber stamp markings. These were marked as X1 to X7, Y1, Y2 and Z1. Thereafter, the aforesaid packets were opened and found to contain granular substance, small quantities of which were taken and tested with the help of Drug Detection Kit which gave positive result for the presence of heroin. The total weight of the recovered 19 packets and was found to be 19.046 kg. Samples of 5 gm each were taken from each packet and were marked, sealed and labelled. The test memos in triplicate were prepared and sent to the Central Revenues Control Laboratory ("CRCL"), New Delhi for examination. 7. According to PW-9, the panchnama proceedings started at 9 pm on 7th February 2009 and concluded at 2 am on 8th February 2009. The panchnama proceedings were explained in vernacular to the accused persons and got signed by them. Notices were issued to both the accused under Section 67 of the NDPS Act. The Appellant is stated to have made his voluntary....
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....and over the said packets to Mr. Chika when he came back at the same place later. That is how the Appellant reached the Gurudwara in Delhi at around 8 pm on 7th February 2009. 9. On 8th February 2009 summons under Section 67 NDPS Act was issued both the panch witnesses, i.e., Arun Kumar Sahni and Arjun Dev Bhatt (Ex.PW-9/O and Ex.PW-9/Q respectively) and they were asked to appear before the DRI office on 11th February 2009 at 4.30 pm to make their statement. Both the panch witnesses made their respective statements (Ex PW-9/P and Ex. PW-9/R) which are at pages 541-555 of the trial Court record. 10. It must be noted that on 20th February 2009 before the learned Metropolitan Magistrate ("MM") the Appellant retracted the aforementioned statement. In his retraction (Ex DW2/A), the Appellant stated that he was in a friend"s house situated at 252, Patiala Housing Estate, Patiala, Punjab just opposite Punjab University. Some men in plain clothes came to his place and asked for the owner of the flat. When they could not meet the owner, they forcibly picked up the Appellant and brought him to Delhi. He further stated that on arriving at the DRI Office at about 7 pm on 7th February 2009 he....
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....d Mr. John. He denied the said suggestion. He denied the suggestion that his statement under Section 67 NDPS Act, was truthful and voluntary and that he had given his retractions application on the basis of legal advice given to him. He voluntarily stated as under: "When I was produced in the Court on the first day I had pointed out my grievances to the learned Judge, but I was told by the Judge to put the things in writing and to give the same to the Court on the next date. It is further wrong to suggest that I am deposing falsely. It is further wrong to suggest that no torture/beatings was used by the officers as stated by me in my examination-in-chief." 14. In his further cross-examination, he maintained that it was wrong to suggest that he had entered into India without a valid tourist visa or through any illegal means. The judgment of the trial Court 15. In the impugned judgment, the trial Court, while convicting the Appellant for the offence under Section 21 (c) of NDPS Act, came to the following conclusions: (i) the evidence of PW-5 and PW-9 showed that the proceedings including the service of notice on the accused under Section 50 NDPS Act were done in the presence of ....
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....nhaiya Lal v. Union of India 2008 (1) AD (Crl.) (SC) 277. 16. This Court has heard the submissions of Mr. Ajit Sharma, learned amicus curiae for the Appellant and Mr. Satish Aggarwala, learned Standing Counsel for the DRI. Notices under Section 50 NDPS Act 17. At the outset it requires to be noticed that one remarkable feature of the present case is in regard to the notices purportedly issued to each of the accused, including the Appellant, under Section 50 NDPS Act. From the evidence placed on record it appears that soon after their apprehension outside the Gurudwara the accused were taken to the DRI office. There the DRI officers served notices on the accused under Section 50 NDPS Act. Both the Section 50 NDPS Act notices were typed. They were typed on a computer and printed out. On both notices, the addresses of two accused including their parentage, residential addresses have been set out. In the case of Appellant, his father's name and residential address in Zimbabwe have been typed out. 18. Mr. Aggarwala drew the attention of the Court to the panchnama (Ex.PW-9/C) which records that when they were apprehended each of the accused introduced themselves giving their pare....
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.... Indian Embassy in Nigeria. It also contained the immigration stamp with the date of entry. The Appellant also produced a photocopy of the stub of the Qatar Airline boarding pass to show that he had travelled by air from Doha to Mumbai on 19th October 2009 by flight (QR 200). In para 72 of the impugned judgment, the trial Court noted as under: "Though the accused himself has pointed out that a photocopy of his passport and one boarding pass etc. are in the judicial file to show that his arrival in India was not illegal, but due to the legal constraints, this Court cannot take note of any such documents as no steps have been taken on record on behalf of the accused to lead any evidence on this aspect. Hence, the above retraction statements of the accused cannot be given much weight and his above statement Ex.PW-5/A under Section 67 of the NDPS Act is held to be his voluntary statement." 23. The above approach of the trial Court was unfortunate given the fact that the DRI could have easily verified the above documents to ascertain their truth. 24. During hearing of the present appeal on 4th August 2014, this Court after noting the above observation of the trial Court, passed an or....
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....s an alternative theory and produces documents in support thereof, the DRI can itself verify their genuineness without waiting for the order of the Court. For an accused in judicial custody, it is only to be expected that it would be difficult for him to produce witnesses. This difficulty is further compounded when the accused is a foreign national. Unfortunately this difficulty was not been appreciated by the trial Court. It unfairly cast the burden on the Appellant to further lead evidence to prove the details of his passport and visas stamps. It may be further added here that according to the Appellant, his original passport was with the Nigerian Embassy in India. The Appellant has been in judicial custody throughout and it is obvious that he does not have his passport with him. Non-examination of public witnesses 29. The next serious problem in the present case is the failure to secure the presence of the panch witnesses at the trial. A careful perusal of the record of the trial Court shows that as regards Arun Kumar Sahni, his address was shown to be A-181, Geeta Colony, Delhi. The proceeding of 30th May 2011 before the trial Court records that "the address of public witness....