TaxTMI 
TaxTMI 
2016 (2) TMI 241
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.... Maheshwari (PW-6) and other officers of DRI reached local bus stand, opposite ISBT, Kashmere Gate, Delhi at about 2 pm and saw two ladies of the same description alighting from Punjab Roadways bus at the local bus stand, opposite ISBT Kashmere Gate alongwith green colour and blue colour bags. They were intercepted at 2.05 pm. After showing their identity cards, the women were asked whether they were carrying any narcotics drug with them in person or in their luggage to which they replied in negative. Both the ladies were informed that they have an intelligence that they may be carrying narcotic drugs with them and since that place was a busy place and was not suitable, therefore, they were asked to come to DRI office to which they agreed. Thereafter, all of them alongwith both the ladies intercepted at the bus stand reached DRI office where two panch witnesses were called and asked to join the proceedings. Both the ladies revealed their names as Lydia Ninglianting and Sheikh Dilshad. Notice under Section 50 of the NDPS Act (for short, 'the Act') Ex.PW6/B and Ex. PW6/C was served upon them inquiring whether they wanted to be searched in the presence of a Gazetted Officer or a Magis....
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....red from their possession. As regards their statement under Section 67 of the Act, it was alleged that no such statement was given by them and they were made to sign documents against their will. 5. Vide impugned judgment dated 29.07.2010, both the accused were convicted for offence punishable under Section 21(C) read with Section 8(C) of the Act. However, they were acquitted of the charge under Section 29 of the Act on the ground that no evidence has come on record to prove that the accused were party to any conspiracy to commit any offence punishable under Chapter IV of the Act. Except for the statement of accused under Section 67 of the Act, there is no evidence on record to link either of the accused in any conspiracy with the said Raja who had not been arrested in the case. 6. Vide order on sentence dated 31.07.2010, both the accused/appellants were sentenced to undergo rigorous imprisonment for a period of ten years and fine of Rs. 1 lac each, in default to undergo simple imprisonment for a period of one month. 7. Feeling aggrieved separate appeals being CRL.A. Nos. 770/2011 and CRL.A. 1046/2012 have been preferred by both the convicts. Since both the appeals are ari....
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....very of contraband articles the same are sealed. A paper slip is affixed on the same which bears not only the signatures of the officers of DRI but also signatures of the accused persons. It has come in the statement of witnesses that the paper slips were affixed bearing the signatures of the accused as well and the same were found intact. Moreover, there is no delay in depositing of case property as the recovery was effected on 20.11.2006 and the same was deposited with CRCL on 21.11.2006. Further, besides the testimony of the Intelligence Officer, recovery of contraband articles recovered from the possession of the appellants, there is statement of accused recorded under Section 67 of the Act wherein they have admitted the recovery from their possession, which is another clinching evidence against the appellants as such the impugned judgment does not suffer from any infirmity which calls for any interference. 11. The main thrust of arguments of learned counsel for the appellants is that panch witnesses - Vikas Singh and Rohan Malik were not examined and, therefore, the entire prosecution case has to be rejected. In the absence of any independent witness, the conviction based o....
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....examination of independent witness is fatal. Repelling the contention, it was held that: "13. If the public witnesses chose not to disclose their correct address to the NCB officials, NCB cannot be faulted for not producing them in the Court. It is quite possible that though the aforesaid witnesses did agree to join the proceedings on being persuaded by NCB officials, they gave wrong address to NCB officials so that they do not have to visit the Court for the purpose of giving evidence during trial. The other possibility in this regard is that the witnesses had left the place where they were residing at the time of seizure of the drug, without conveying their fresh address to NCB.... Presuming, however, that no public witness was joined before seizing drug from the appellant, that by itself cannot be a good ground to reject the testimony of NCB officials, who, on receipt of an information, which was duly reduced in writing and brought to the notice of the superior officer, went to the spot and apprehended the appellant, on his being identified by the informer and seized the narcotic drug from him. The appellant does not claim any previous enmity or ill-will between him and....
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..... Under those circumstances, the High Court did not find any ground to interfere with the order of acquittal by granting leave to the appeal and the petition was dismissed. 18. In the instant case, despite lengthy cross examination, nothing material could be elicited to discredit the testimony of PW6 - M.C.Maheshwari and PW8 - Parminder Kaur. Both these witnesses stood the test of cross examination. Learned counsel for the appellants pointed out a slight discrepancy in their testimony that according to PW6, statements of the appellants was recorded from 7.15 pm to 10.15 pm by PW8, however, PW8 stated that she left the office at 7 pm. However, the recovery was effected in the year 2006 while these witnesses came to be examined in the year 2009 and 2010. Human memory fades away with lapse of time and such a minor discrepancy which does not go to the root of the matter does not cast any doubt on the prosecution version. Moreover, none of the appellants alleges any animosity, ill-will or grudge against any of the officers of DRI for which reason they will falsely implicate them and plant such a heavy recovery upon them. 19. Coming to the next limb of argument of learned counsel f....
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....upport that no tampering was done with the samples. The defence failed to bring out anything in the cross examination of the witnesses with respect to tampering of the samples. Under the circumstances, the prosecution has sufficiently proved its case to establish the guilt of the accused in the present case. 20. Hannan (supra), relied upon by learned counsel for the appellants was a case where the search was effected by the police officials. It was pleaded that there was unexplained delay in sending the samples to CFSL as the alleged recovery was made on 25.07.2006 and the samples were sent on 28.08.2006. There was material contradictions in the statement of witnesses regarding colour and description of the bag, colour of substance recovered. Moreover, it was alleged that after sealing the samples and the case property, the seals were handed over to HC Samim Akhtar but he was silent about the seals and till when they were in his custody. The details of FSL were not given in register number 9 though mentioned in road certificate. There was no clinching evidence that the case property was not tampered with ,as such, considering all these circumstances, it was held that the prosecu....
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.... within a reasonable time, same shall be a relevant factor to adjudge as to whether the confession was voluntary or not. Here in the present case appellant was produced before the Court on several dates and at no stage he made any complaint before the Special Judge of any torture or harassment in recording the confession. It is only when his statement was recorded under Section 313 of the Code of Criminal Procedure that he retracted and denied making such a confession and went to the extent of saying that his signatures were obtained on blank pages. In the facts and circumstances of the case we are of the opinion that the confessional statements made by the appellant were voluntary in nature and could form the basis for conviction. 19. The view which we have taken above finds support from the judgment of this Court in the case of M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, 2003 (8) SCC 449, in which it has been held as follows: "It has been established that the Customs Office was about 20 km from the place where the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with Accused 2, ....