TaxTMI 
TaxTMI 
2020 (7) TMI 312
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.... undergo Rigorous Imprisonment for ten years with a fine of Rs.1,00,000/- each for the offences punishable under Section 23 read with Section 29 of the NDPS Act. And, in case of default of payment of fine, to undergo Simple Imprisonment for a further period of fifteen days. 2. The appellants challenge the impugned judgment, essentially, on four fronts. First, that the learned trial court has erred in convicting the appellants solely on the basis of self incriminating statements of the appellant Nitesh Patel, which were not made voluntarily. Secondly, the case set up by the prosecution is not supported by evidence on record. Third, that the sample tested by the Central Revenue Laboratory is not the sample of the seized substance allegedly sent to the said laboratory. And fourth, that the case has not been properly investigated. The Prosecution's Case 3. The appellants were charged for committing an offence punishable under Section 23 read with Section 28 and 29 of the NDPS Act. By an order dated 11.10.012 passed by the learned trial court, the appellants were charged that on or before 21.03.2011, they had conspired to export illegal psychotropic substances from India to Mal....
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....and witness the proceedings, for which they voluntarily agreed. 6. Mr Puneet Sharma produced the parcel in question. The same was examined. It was a cardboard box containing five executive synthetic fibre bags. The envelope attached to the parcel contained a proforma invoice dated 24.02.2011 and Airway Bill No. 466420580086. The same indicated that the parcel was booked by Ramesh Bhai, 15 Ground Floor, Gold Souk Complex, CG Road, Ahmedabad, Gujrat and was consigned to Mr S. Ganeshan, No. AGF08, Pongsapuri Lakshmana Jaya, A. Kanpung Lakshmana, Batu Caves, Selangor Darulehsan - 68100, Malaysia. 7. On close examination of the said parcel, it was found that there were cavities stitched in the inner layer of the bags and the same contained a white powdery substance. The said substance was tested and was found to be amphetamine. Since the texture and the colour of the substance in each bag were similar, they were transferred into a transparent polythene bag which was weighed and found to be 2.4 kgs. Two samples of 5 grams each were taken from the said bag and put in zip lock packets. The said samples were put in paper envelopes and were marked as A-1 and A-2. The packing material c....
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....d "this shipment" to Indo Express Courier Service, owned by Sagar Iyer, for couriering it to Malaysia. It was alleged that Nitesh Patel had collected "the said shipment" from another courier company at Ahmedabad, namely, Patel On Board Courier (POBC) and "the shipment" had arrived from Chennai. It was alleged that Nitesh Patel was given the contract to receive "the shipment" and dispatch it further to the consignee (Ganeshan in Malaysia) by Rafiq Shaikh of M.R. Express Courier Mumbai, whose address was provided as K-104, Hanjar Nagar,Opposite Aghadi Nagar, Pump House, Andheri (East), Mumbai-93. 14. It is alleged in the complaint filed by the NCB that Nitesh Patel "had received a copy of the document i.e airway bill no. from Konnection Express Courier and Cargo, Royal Villah Room No.15, 3rd floor, 27/69, Venkatesh Street, Chintadripet, Chennai." 15. The Ahmadabad Zonal Office of NCB recorded the statements of Nitesh Patel and Sagar Iyer under Section 67 of the NDPS Act on 04.04.2011. It is alleged in the complaint that Nitesh Patel was shown a copy of the Proforma Invoice dated 24.02.2011, which was seized vide Panchnama dated 21.03.2011 (that is, seized from the office of Fed....
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....ccording to NCB, summons were issued to Rafiq pursuant to which he appeared on 06.06.2011 and voluntarily gave his statement. NCB alleges that while recording his statement, he was shown the Proforma Invoice dated 24.02.2011 and he submitted that "the said parcel" was booked by him through Nitesh Patel and dispatched from Konnection Express Courier and Cargo, Royal Villah, Chennai. He allegedly disclosed that the said parcel was dispatched through POBC, Ahmadabad and that he had contracted with Nitesh Patel to receive the shipment and to further dispatch it to Malaysia. He allegedly stated that he would give details of the consigner and the consignee on mobile phone or SMS to Nitesh. According to NCB, Nitesh Patel received a copy of the document named "Certificate" from Konnection Express Courier and on the basis of the said certificate, collected the shipment from the Ahmedabad office of POBC. 20. NCB alleges that Rafiq had packed "the said parcel with five Indian made synthetic fiber executive bags and concealed Amphetamine". The said substance was given to him by one Salim Bhai. 21. NCB alleges that consequent on the recovery of 2.4 kgs. amphetamine on 21.03.2011 and on th....
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.... of Evidence and Reasons 26. The prosecution's case rests almost entirely on the alleged voluntary statements of the appellants (accused) recorded under Section 67 of the NDPS Act, and the statements of Sagar Iyer Subramanium (PW8) and Mushahid Ali (PW18). It is also apparent from the record that apart from recording of such statements, no investigation of any value was conducted by NCB. 27. The Trial Court has convicted the appellants on the basis that the statements of the appellant Nitesh Patel are corroborated by statements of Sagar Iyer (PW8) and Mushahid Ali (PW18). The said statements establish the case of the prosecution notwithstanding that no other evidence of dispatch of the parcel from Mumbai to Chennai and Chennai to Ahmedabad is placed on record. However, a closer examination of the statements indicate that the same do not reconcile with the material on record. 28. According to NCB, secret information was received by Mehak Jain, Intelligence Officer, DZU (who deposed as PW1). She had deposed that she had received secret information that some narcotic drug is concealed in a parcel bearing Airway Bill No. 466420580086, which is lying with Fedex Express Services....
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....e (marked as A) and the pullanda containing five fibre bags (marked as B), were deposed with the Malkhana. 30. It is important to note that Ms Mehak Jain (PW1) also testified that Mr Puneet Sharma (PW5) had produced the parcel bearing Airway Bill No. 466420580086 along with documents - Invoice (Ex PW1/B-1) and Airway Bill (Ex PW1/B-2). The test memo was marked as Ex.PW1/C. 31. There is a material inconsistency between the weight of the sample of the illicit substance as drawn and the weight of the sample as received by the Central Revenue Control Laboratory. PW1 (Ms Mehak Jain) deposed that she had drawn two samples of 5 grams each and packets containing the same were marked as A1 and A2. The panchnama also reflects the same. The copy of the test memo indicates that the net weight of the sample received by the Central Revenue's Control Laboratory as 5.5 grams. It is also material to note that although the test memo (Ex PW1/C) requires that the weight of each sample be stated by the seizing officer, PW1 had not mentioned the weight of the sample in the relevant column of the pre-printed test memo. The copies of the test memo produced also indicate that there is some overwritin....
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....s was suspected in the parcel. He stated that the packet normally takes five to seven daysto reach its destination. 36. Thus, even though the parcel in question was booked on 24.02.2011, Fedex did not dispatch it to its destination but detained the same as it appears that the security staff had found that there was some suspicious substance in the said parcel. It is apparent that this information was provided to NCB and the security staff had also informed its concerned employees that an NCB team would come and take the said parcel. Clearly, the said parcel was not intercepted by NCB while it was on his way in the normal course, to its destination. The courier service provider (Fedex) had detained the said packet and information in this regard had been provided to NCB. Notwithstanding the same, no investigation as to the discovery and storage of the parcel in question was conducted. The security staff of Fedex who had detected the same were not examined by the officials of the NCB. Nor, any inquiries were conducted to ensure that the parcel remained untampered after it was detained. However, NCB built a case that the information received was secret and had sought to present the ....
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.... dimensions of the parcel are reflected as 35 x 32 x 22 cm. Undisputedly, the Airway Bill in question was generated by Fedex. It reflects the origin as: "Origin ID - AMDA 26400141 C/O THE FRIGHT CENTRE MR. RAMESH 15, GR. FL. GOLDSUKH COMPLEX, C.G. ROAD, AHMEDABAD 380009, INDIA, IN" 43. Although the Airway Bill in question (Ex PW1/B2) as well as the Proforma Invoice (PW1/B1) clearly indicated the address and the telephone number of the consignor, no further inquiry was made immediately on the seizure of the parcel on 21.03.2011. However, on 24.03.2011, the Superintendent, NCB sent a letter to the Zonal Director, Ahmedabad Zonal Unit of NCB seeking verification of the name, address and antecedents of Mr Ramesh Bhai (the consignor) as reflected in the Airway Bill in question. The Ahmedabad Zonal Unit of NCB responded by a letter dated 25.03.2011 (Ex.PW6/A) stating that an officer had visited the address of the shipper on 25.03.2011 and noticed that the address was that of a courier company in the name of "Trackon Courier Pvt. Ltd.". The said office was run by Mr Sagar Iyer assisted by Mr Kumar Pillai. No person by the name of Mr....
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....04.04.2011 and other documents allegedly collected from them were also forwarded. 48. The aforesaid letter dated 05.04.2011(Ex.PW6/C), essentially, encapsulated the case pursued by NCB. The voluntary statements allegedly made by Nitesh Patel and Sagar Iyer which were annexed with the letter (Ex.PW7/A and Ex.PW7/B) thereafter formed the foundation of NCB's case. It does not appear that apart from accepting the said statements as correct, NCB undertook any worthwhile investigation in the matter. No document named "certificate", on the basis of which the Nitesh Patel is alleged to have collected the parcel in question, has been produced on record. Although it appears that a slip mentioning the CD No *517664804* forming a part of the documents marked as DW1/DC, may be the document referred to in the letter dated 05.04.2011(Ex PW6/C) but NCB has done little to establish the same. 49. Examination of the voluntary statement allegedly made by Nitesh Patel on 04.04.2011 (Ex PW7/A), indicates that the first page contains two paragraphs written in Nitesh Patel's own handwriting. The second paragraph records his request that the remaining statement be written on his behalf. The remaining....
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....s the address of Rafiq (MR Express) as well as his telephone numbers (four in number) 52. Nitesh Patel was interrogated as to what was the reason for the difference in the weight of the parcel as dispatched from Chennai and as received in Ahmedabad. He allegedly responded by stating that one staff member, Ibrahim, had received the parcel and he had no idea as why the weight of the parcel dispatched and received was different. 53. Statement of Sagar Iyer Subramanium (PW7/B) was recorded on 04.04.2011 and the same was sent by the Ahmedabad Zonal Unit along with the letter dated 05.04.2011 (PW6/C). In his statement, he stated that he ran a courier agency as a franchisee of Trackon Courier Pvt. Ltd. He acknowledged that he had signed as the authorized signatory of Ramesh Bhai, the shipper (consignor), on the Proforma Invoice (Ex PW1/B1). He stated that whenever a local courier brings a parcel, where the name of the sender is not available, he writes the address of his office and also signs the same. He admitted that the Proforma Invoice was prepared in his office. He stated that the parcel in question, which was dispatched from his office, was given to him by Nitesh Patel at his ....
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....r received any reply from Mumbai NCB nor we sent any reminder". Thus, apart from sending the two letters (Ex.PW20/E and Ex.PW20/F), no further investigations were carried out by NCB at Mumbai. This is despite the fact that NCB had in its possession the complete address and phone numbers of Rafiq and his courier agency. There is no material on record to even remotely suggest that Rafiq was not available at the address or on the phone numbers as available with the NCB were not genuine. Concededly, he was also not served any summons for further inquiries at the material time (that is prior to 06.06.2011). 58. Although, the statements allegedly made by Nitesh Patel and Sagar Iyer are the foundation of the NCB's case against the accused, no effective investigation was conducted to verify the information as contained in the said statements. Nitesh Patel had disclosed in his allegedly voluntary statement recorded on 04.04.2011 (Ex PW7/A) that the parcel was booked from Chennai on 23.02.2011 through Konnection Express Courier and Cargo and he had also provided the address and the phone number of the said agency. However, there is no document available on record, which would indicate tha....
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....W1, the said secret information was recorded and forwarded to Mr Yadav (PW 20) who authorized the search. 63. It is important to note that there is no material on record to establish that Rafiq was "wanted" in connection with the seizure of 2.4 kgs amphetamine. There is nothing on record to indicate that any effort was made to contact Rafiq or to make any inquiries from him. Mr Yadav (PW20) had, in his letters (Ex.PW20/E and Ex.PW20/F) sent on 6.04.2011 and 7.04.2011, requested that inquiries be conducted by NCB Mumbai in a secret manner. Thus, even if his request was complied with, inquiries if any would have been done in a secret manner. There is no material whatsoever to indicate that Rafiq was evading NCB or avoiding any inquiries. His telephone numbers and his addresses were known to NCB and also provided to the Zonal Unit in Mumbai. It is also important to note that, admittedly, no summons under Section 67 of the NDPS Act were sent to Rafiq prior to 06.06.2011. This Court is unable to appreciate as to why Rafiq was treated as a wanted man in connection with the seizure of 2.4 kg of amphetamine. 64. Be that as it may, Rafiq was apprehended on 06.06.2011 from the hotel Mi....
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....i and he responded by giving Mushahid Ali's name. He further stated that he knew Mushahid Ali since last one year and Mushahid Ali worked for one Kasim Bhai of Chennai. He further stated that Mushahid Ali was fully aware that Ketamine/Amphetamine was concealed in the said bags. Rafiq stated that he had no other source of income except his courier business, which is being run in the name of M.R. Express. He further stated that he received commission of Rs.700/per kg for couriering the substances. 70. Rafiq was arrested on the same date 06.06.2011. Thus, his apprehension at the hotel Millenium, his examination under section 67 of the NDPS Act and his arrest was done in succession, He was effectively in NCB's custody after his apprehension as a wanted man. 71. PW1 in her cross-examination stated that she sent summons under Section 67 of the NDPS Act to Nitesh Patel, Sagar Iyer, Mushahid Ali, Kasim Bhai and Salim Bhai. According to her, all the said summons were issued by her on 01.07.2011. It is important to note that although summons issued to Nitesh Patel, Sagar Iyer and Mushahid Ali have been placed on record (Ex.PW1/Z, Ex.PW1/Z-1 and Ex.PW1/Z-2); the summons allegedly claime....
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....s to why he had signed as an authorized signatory of Ramesh Bhai (the consignor) on the Proforma Invoice (Ex PW 1/B1) if h0e did not know him. He had responded by stating that if any local courier brought a parcel to him and was not aware of the sender's name, then he would put his office address on the invoice and also sign as a signatory for the sender. Thus, if Mr Sagar Iyer's first statement is to be accepted, it would mean that he would prepare invoices in his office and sign the same in all cases where the local courier was not aware of the sender's name, address and other details. 75. On 11.07.2011, he was again asked the same question as to why he had signed as an authorized signatory of Ramesh Bhai if he did not know him. This time he responded by saying that Nitesh Patel used to come at the last moment and insist that it is necessary to send the parcel urgently. He stated that he knew Nitesh Patel and complied with his request. Nitesh Patel had told him to put his office address as that of the shipper Ramesh Bhai. Insofar as signing as an authorized signatory for Ramesh Bhai is concerned, he stated Nitesh Patel had told him that since he had put his address as the ship....
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.... there till 09:00-10:00 p.m. He stated that they wrote something on certain papers and obtained signature on the same. He further stated that the officials called him to their office on the next day as well. On that day also, they made him write on certain papers and obtained his signatures. Thereafter, he was allowed to go back and was never called at NCB Office at Ahmedabad. He further testified that in July, they handed over the summons to him and asked him to go to NCB Office in Delhi, where he gave a statement in similar manner. He stated that when his first statement was recorded, he was under pressure to make the statement and was told that he would be let free if he made the statement. He stated that he went to NCB office on 14.07.2011 and reached the office at about 09:30 a.m. He met Ms Mehak Jain (PW1) and four or five other officers. He further stated that Ms Mehak Jain put questions to him regarding the consignment, to which he replied that he did not know anything about the consignment but thereafter, he was pressurized to write the statement as dictated by them. He stated that he was beaten and forced to write the dictated statement, which he wrote and signed. Thereaf....
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....amined or the said records did not support the case set up by the NCB and therefore, the same have not been produced in evidence. In either event, there is no evidence (except the statements of the accused and Mushaid Ali) to support the prosecution's case. 81. It is the prosecution's case that Rafiq had packed five fibre bags in a parcel and had dispatched the same from Mumbai to Chennai. The said parcel was collected by Mushahid Ali of Nisha Couriers and Cargo at Chennai and he had thereafter dispatched the said parcel to Ahmedabad through M/s Konnection Express Cargo & Couriers and Patel On Board Couriers (POBC). The said parcel was thereafter collected by Nitesh Patel from the office of POBC and dispatched through Indo Express Courier and Cargo, run by Sagar Iyer (PW8), who in turn booked the parcel through Fedex to Malaysia on 24.02.2011. And, the said parcel was then seized on 21.03.2011 from the office of Fedex at New Delhi. PW8 had deposed that he was not a franchisee of Fedex and Ex PW1/B2 (Airway Bill) indicates that parcel originated at Freight Centre. Thus, it appears that PW8 had booked the parcel at Freight Centre. 82. It is material to note that there are no do....
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....ving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act or the rules or orders made thereunder, other than a proceeding before a court, as they apply in relation to a proceeding before a court." 85. By virtue of Section 53A of the Act, a statement signed by a person before any officer empowered under Section 53 for investigation of offences, during the course of inquiry, would be relevant for the purpose of proving the truth of the fact stated in the said statement in circumstances set out in clause (a) of sub-section (1) of Section 53A of the Act. 86. In the present circumstances, none of the said circumstances exist. Nonetheless, the ....
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.... by the Supreme Court are set out below: "Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a coaccused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu's case has been cited with approval." 89. In Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence: (2018) 8 SCC 271, the Supreme Court held that "it would be inappropriate to base the conviction of the appellant purel....
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....r evidence, namely, the statements made by Sagar Iyer (PW8)and Mushahid Ali (PW18). This Court is of the view that the said conclusion is manifestly erroneous for several reasons. 94. First, it is doubtful, if the statements were voluntary. The first statement (Ex PW7/A) was not in his handwriting for the ostensible reason that he could not write English correctly and had no practice. This does not appear to be correct, as he had written his second statement (ExPW1/Z4) in his own handwriting. Further, Nitesh Patel testified that he was called to the NCB office on two consecutive days and he was made to sit idle for several hours. He stated that the officers asked him about his family members, educational qualifications etc. and took his signatures on papers. In his cross examination, he affirmed that he did not know the contents of the other pages (the ones written by NCB officers) of the statement (Ex PW7/A). 95. In so far as second statement (Ex PW1/Z4) is concerned, Nitesh Patel testified that he was beaten and forced to write the statement. He further testified that he had retracted the said statement by a letter dated 19.07.2011 sent from the jail. There are serious doub....
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....tiated by any other tangible evidence such as confirmatory correspondence, invoices for courier charges, receipts of payments etc. It is important to note that in his cross examination, P8 stated that he had sent confirmatory emails to Nitesh Patel. But no such emails were produced. Further, no such assertion was made by PW8 in either of his two statements (Ex PW7/B and Ex PW1/Z3). It is material to note that NCB has not disclosed or brought in evidence any document whatsoever, which would establish a business connection between Nitesh Patel and PW8. 101. PW8 had produced a photocopy of a print out of data (PW8/DA) allegedly maintained by him. This document was sought to be voluntarily placed on record by PW8 during his cross examination. No such document was produced by him or disclosed earlier. Interestingly, it indicates that PW8 had booked parcels in the month of February, 2011 to consignees in Malaysia through other courier companies (UBS and DHL) as well. He did not disclose this in any of the earlier statements. The printout contains various columns. It is discernable that the same purports to include name of the courier company (DHL/UBS/Fedex); the date of shipment; the ....
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....ight in the parcel, namely, the weight of the parcel when dispatched from Chennai (38 kgs) and weight of the parcel received by him (36 kgs), no such queries were put to Mushahid Ali. This is for obvious reasons that the weight of the parcel, as claimed to have been received by Nitesh Patel in his statement, did not reconcile with the weight of the parcel in question, which was 7.4 kgs. 106. Mushahid Ali was shown the invoice (Ex.PW1/B1) and inquiries were made regarding that parcel. Mushahid Ali in his statement (PW1/Z8) stated that he neither knew the shipper (Ramesh Bhai) nor the consignee (Ganeshan), as reflected in the said invoice. He, therefore, could notpossibly provide any information as to the parcel which was finally dispatched by Sagar Iyer (PW8) to Malaysia. 107. NCB was fully aware of that it did not have the evidence to connect the parcel allegedly sent by Mushahid Ali (if at all one was sent) and the parcel in question, namely, the parcel dispatched by Sagar Iyer (PW8). It appears that in order to connect the two, NCB sought to project a case that the documents under which the parcel in question was dispatched, namely, the Proforma Invoice (Ex. PW1/B1), the Ai....
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....tched by Mushahid Ali.Clearly, such link evidence,as was sought to be established by the NCB, is non-existent. 111. According to the statement of Nitesh Patel, his employee had received the parcel dispatched by Mushahid Ali and the said delivery is reflected in the POBC delivery run sheet. The same was allegedly handed over by him to the officials of NCB as the same is reflected in his statement (PW7). The POBC Delivery Run Sheet (DW1/DC)indicates that the parcel consisted of two pieces weighing 36 kgs, and the consignee's name is 'Patel'. The said parcels were against CD No.*517864804*. However, according to the testimony of Mushahid Ali, "there was only one parcel". This is inconsistent with the POBC Delivery Run Sheet, which indicates two pieces received from Chennai (MAA). Conclusion 112. To summarize the above, NCB has founded its case on statements of the accused Nitesh Patel, Sagar Iyer (PW8) and Mushahid Ali (PW18). Notwithstanding that there is little evidence to corroborate the statements, the Trial Court accepted the said case on the premise that the self-incriminating statements of the accused were corroborated by the statements of Sagar Iyer(PW8) and Mushahid ....
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....l time (in April and May 2011) even though his complete address and phone numbers were available with the NCB on 04.04.2011; (ii) call records were not collected and analyzed to establish any connection between Rafiq, Nitesh Patel or Mushahid Ali and therefore, there is no hard evidence that they even knew each other; (iii) no documents were collected to establish that any courier was dispatched by Rafiq from Mumbai to Chennai; (iv) there is no material to establish that Rafiq had paid any money to Mushahid Ali or Nitesh Patel as their charges; (v) t no documentary evidence was produced to establish that Nitesh Patel had paid any charges to Sagar Iyer for his services; (vi) according to the statement of Nitesh Patel (Ex PW7/A), the parcel in question was collected by his employee Ibrahim but no enquiries were made from him; (vii) Nitesh Patel had stated that he received the money from Angaria "Vishnu-Vijay" and had also provided the address of the said Angaria but no investigation/enquiries were conducted in this regard; (viii) according to Mushahid Ali, he had delivered the parcel to Kasim Bhai and subsequently (two-fo....