TaxTMI 
TaxTMI 
TaxTMI 
2020 (11) TMI 74
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....e that acting on an intelligence on 19th March, 2007 at about 11:00 PM the appellant and co-accused Mandeep Kaur were apprehended at Singhu Border, GT Karnal Road, Delhi, while they were travelling in a Mahindra Bolero bearing No.HR-70-3719. They were taken to the parking area in the IP Estate, where 13 packets from inside a cavity created in the floor of the vehicle, below the foot mat of the driving seat and 7 packets from the cavity of vehicle, below the foot mat of the seat adjacent to the driver seat, were recovered. Each packet was found to contain heroine, the gross weight of which was found to be 20.754 kg and the net weight was 20.022 kg. 3. Statement of the appellant under Section 67 of the NDPS Act was recorded wherein the appellant is alleged to have stated that he was carrying the said contraband at the instance of co-accused Dr. Balwinder Singh, who had employed the appellant as a driver for his Maruti Wagon-R Car, 8/9 days ago. 4. As per the narrative, on 19th March, 2007 at about 11:00 AM co-accused Balwinder Singh had asked the appellant to bring the Wagon-R at Gurudwara Manji Sahib, Ludhiana and accordingly the appellant started from Delhi at about 12:00 noon an....
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....n error in invoking the presumption under Sections 35 and 54 of the NDPS Act. 8. It is next contended that the only panch witness PW-12A examined in the Court has not identified the appellant and the other panch witness was not even examined by the prosecution. Thus, while it may not be imperative to examine the independent witnesses, but an adverse inference can be drawn against the prosecution, if they are material witnesses. In this case, the panch witness Anil Kumar was a material witness and learned counsel relies on the judgment of the Supreme Court in Noor Agha vs. State of Punjab reported as 2008 (16) SCC 417 in this regard. 9. The fulcrum of the argument of the learned counsel for the appellant is that the prosecution was unable to establish beyond reasonable doubt that the appellant was in conscious possession of the contraband. The appellant was only a driver by profession engaged few days prior to the alleged incident by Balwinder. There is no evidence to connect the appellant with the crime and the prosecution story as presented cannot be believed. No evidence has emerged to infer any nexus between the appellant and the co-accused. Learned counsel relies on a judgmen....
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.... counsel for the parties and examined their rival contentions. 12. The first question that needs consideration is whether the suspension of sentence sought by the appellant is permissible within the stringent parameters laid down under Section 37(1)(b) of the NDPS Act. It is beyond a doubt that by a reading of the provision the parameters laid down are with respect to grant of bail, but by judicial pronouncements they have been made applicable to cases of suspension of sentence under the NDPS Act also. Section 37 of the NDPS Act reads as follows:- "37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonabl....
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....he above parameters in the background, I have carefully gone through the impugned judgment. From the perusal of the impugned judgment itself, I find force in the contention of the learned counsel for the appellant that the charge for the offence punishable under Section 29 of the NDPS Act pertaining to criminal conspiracy to possess the contraband substance or to deal with it, was held to be proved only against the co-accused Mandeep Kaur and not against the appellant. The Trial Court has observed that there was no independent corroborative evidence led by the prosecution to substantiate the said charge. It has also come in evidence that the appellant was only a driver of the main accused Balwinder and had been hired by the latter a few days prior to the alleged incident. During the course of the argument learned counsel for the appellant had repeatedly pointed out that Balwinder is absconding for the last several years and his status as reflected is of a proclaimed offender. There was no rebuttal to this by the Respondent"s counsel. 15. I also find force in the submissions made by the learned counsel for the appellant, towards the end of her arguments, that the trial court has ba....