TaxTMI 
TaxTMI 
2021 (11) TMI 891
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....The brief facts giving rise to the impugned judgment and order on sentence, as noted in the impugned judgment dated 01.09.2018 are as under:- (i) On receipt of intelligence information on 08.09.2008 that a person would come in a Tata Indica car bearing registration No. UP-14-AK-0505 carrying narcotic drugs concealed in a suit case to handover it to another person opposite DLF Golf Course, Gurgaon at about 06.00 P.M., the team of DRI and two independent witnesses, mounted a surveillance near the designated place in an official vehicle. At about 06:30 P.M., vehicle number UP-14-AK-0505 i.e. an Indica car was spotted near the designated place of delivery, which did not stop and kept moving and was followed by the officials of the DRI in the same direction. The said Indica car stopped near an elderly person, who seemed to be waiting for it. One person alighted from the car and started speaking to the elderly person. When DRI officials tried to apprehend them, the person who had alighted from the car, escaped into a nearby lane and the elderly man got into the car, which sped away towards Delhi at a high speed. The car could be finally intercepted and forced to stop opposite Sh....
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....nama was prepared and signatures of two witnesses and three apprehended persons, were obtained thereon. Test Form was also prepared. (v) On 09.09.2008, appellant- Harish Joshi was served with summons under Section 67 of the NDPS Act and upon apprehension, he admitted the recovery. (vi) Vide order dated 19.02.2009, appellant was granted bail by this Court. (vii) Vide order dated 17.02.2010, Charge for the offence under Section 21(c) of NDPS Act, read with Section 29 of the Act, was framed against the appellant and other co-accused. 3. During trial, nineteen witnesses were examined by the prosecution in support of its case and statement of accused/appellant under Section 313 Cr.P.C. was recorded, wherein he denied to lead any evidence in his defence. After hearing the arguments advanced by both the sides, the learned Special Court held appellant guilty of the offences and awarded sentence, as described in Para-1 of this Judgment. 4. Being aggrieved of the impugned judgment and order on sentence, the present appeal has been preferred. 5. At the hearing, learned counsel appearing on behalf of appellant submitted that appellant was forced & threatened....
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....e order dated 21.08.2014. Having no option, DRI sent the samples for retesting. However, the subsequent report dated 21.01.2015 (EX. PW19/8) showed the percentage of "Diactyl Morphin" at 2.9%, 2.7%, 3%, 3.2% and 3.3% respectively. 9. Further, learned counsel for appellant drew attention of this Court to cross-examination of Ajay Sharma, Assistant Chemical Examiner (PW-19) wherein the trial court itself had raised questions with regard to purity percentage of the samples recorded differently in reports dated 22.10.2008 and 21.01.2015 and submitted that with passage of time due to moisture temperature and storage condition the diacetylmorphine (heroin) deteriorates and gets converted to monodactyl morphine and also if there are two different reports, then it is drawn from the different samples. 10. Learned counsel for appellant also submitted that the trial court has failed to consider that the appellant did not have the conscious possession of the contraband, as the same was brought by Sanjay as per the prosecution, who had run away from DLF exclusive Apartments and could not be traced by the DRI, even though his records were available with Dasna Jail. It was also submitted th....
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....d deserves to be upheld. Learned Senior Standing Counsel sailed this court through the testimonies of all the witnesses recorded before this Court to controvert the stand taken by the appellant. 13. According to learned Senior Standing Counsel, it is not necessary for all the panch witnesses to sign the Panchnama and prosecution has got examined PW- 5 and PW-6 in support of prosecution case, who were members of the raiding team. Further, the case property was produced before the court and was proved beyond reasonable doubt. 14. Learned Senior Standing Counsel also submitted that before conducting the raid, the due procedure was followed by the DRI officials and to this effect testimony of Shri Sanjay Kumar, Tax Assistant (PW-1)is on record, who had made an entry in the seal register. Similarly, Shri Dharambir Sharma (PW-2), Inspector Incharge, who had received the case property in sealed condition alongwith deposit memo after verifying the seal on the case property and had made corresponding entry in his own hand in the valuable godown register, has also been examined before the court. Also, Shri Alkesh Rao (PW-4 ) Investigating Officer, DRI, who is the complainant and seizin....
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....of above submissions, learned Senior Standing Counsel relied upon decisions in CBI Vs. Ashiq Hussain Faktoo & Ors. 2003(3) SCC 316; Brij Lai V. State of Haryana 2002(1) SCC 700; Kulwinder Singh & Anr. Vs. State of Punjab 2015 (6) SCC 674; State of Punjab Vs. Balwant Rai 2005 (3) SCC 164. 20. Upon hearing rival contentions raised by both the sides at length and perusal of the testimony of witness recorded before the learned trial court, impugned judgment and order on sentence as well as decisions relied upon, this Court finds that there are material contradictions in the story put-forth by the prosecution. 21. It is pertinent to note that despite DRI officials having information of vehicle number and mounted surveillance near DLF Golf Course, when the vehicle was spotted near the designated place of delivery, why the vehicle was not stopped there and was only followed. Moreover, when the vehicle stopped in a narrow lane and DRI officials tried to apprehend the offending vehicle, the person who had alighted from the car ran away; none of the DRI officials tried to chase the accused who fled away from the spot and all the DRI officials while sitting in the vehicle chose to follo....
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.... "158. We answer the reference by stating: (i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. (ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act." 25. Moreover, as per prosecution's own version, the personal search of appellant accused was not conducted at the spot but at the DRI office, though notice under Section 50 of the Act was purportedly served at the spot. Also, the recovery is said to have been made from the dickey of the car, which was opened by the driver and nothing incriminating was recovered during personal search of appellant. In a catena of decisions, it has been reiterated by the Hon'ble Supreme Court that right of an accused to have a personal search under Section 50 of the Act, is sacrosanct and indefeasible and it c....
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....d as under:- "31. It is surprising that the trial Court overlooked the fact the reports of the IO himself in the case showed that addresses of the two panch witnesses were non-existent. This is very different from the situation where the addresses are correct but the panch witnesses are not available. In such a scenario, it is understandable that after repeated attempts, the DRI was unable to ascertain the whereabouts of such witnesses. However, when the address is shown to be non-existent, then questions arise as to the genuineness of the entire exercise involving the panch witnesses. It must be remembered that the addresses of the panch witnesses are recorded in the panchnama proceeding and notices are served upon them for recording their statements under Section 67 NDPS Act. It is possible that, as explained by Mr. Aggarwala, even during the panchnama proceeding, notices are served upon the panch witnesses and both of them appeared later in this case on 11th February 2011 for recording their statements. It is also possible, as contended by Mr. Aggarwala, that even if the DRI officials could not have insisted at that very moment that the panch witnesses should produce so....
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....fficial witnesses, who are generally interested in securing the conviction. In peculiar circumstances of the case, it may not be possible to find out independent witnesses at all places at all times. Independent witnesses who live in the same village or nearby villages of the accused are at times afraid to come and depose in favour of the prosecution. Though it is well settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In the present case, it is not as if independent witnesses were not available. Independent witness PW 1 and another independent witness examined as DW 2 have spoken in one voice that the accused person was taken from his residence. In such circumstances, in our view, the High Court ought not to have overlooked the testimony of independent witnesses, especially when it casts doubt on the recovery and the genuineness of the prosecution version." 31. Also, prosecution witness, Investigating Officer (PW-4) in his cross-examination stated that when officer of DRI tried to intercept and apprehend the car, accused Sanjay who got down from the ca....
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....nder reference answers positive test for Diacetylmorphine (Heroin), Morphine and monoacetylmorphine. Percentage of these substances in each sample are as below: Marked as % of Diacetylmorphine (Heroine) % of Morphine % of 6- monoacetylmorphine Gross wt. of sample returned in plastic pouch AC1 2.9 17.3 42.8 4.8 BC1 2.7 20.1 42.0 4.5 CC1 3.1 17.3 46.6 4.2 DC1 3.2 17.2 43.0 4.2 EC1 3.3 17.1 48.2 4.6 34. As per first report dated 22.10.08, the purity percentage was 49.0%,82.5%,55.9%,46.5% and 42.8% respectively, whereas as per subsequent report dated 21.01.2015, the purity percentage is 2.9%,2.7%,3.0%,3.2% and 3.3% respectively. On this aspect, the prosecution witness PW-19, had stated before the court that "with passage of time due to moisture temperature and storage condition the diacetyl morphine (heroin) deteriorates and get converted to monoacetylmorphin". Further, this witness has categorically started that if there are two different reports, one of "Diactyl Morphin" (Heroin) and the other of "Opium", it can be safely assumed that it is drawn from the different samples. This witness ha....
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....e was a possibility that the sample drawn for the second time had been diluted. 13. The learned trial Court also noted that while the first set of samples were found to be of off-white colour, the second set of samples were of brown colour. Consequently, it was concluded that the decrease in the purity percentage and difference in colour raised serious doubts whether the samples sent to FSL for the first time had been in fact recovered from the accused persons. This could not be explained away only due to passage of time. XXXXX XXXXX 22. In the present case, the Court finds that the experts examined for the prosecution do not offer a convincing scientific explanation for the marked variations in the DAM percentages in the samples tested on second occasion and that the benefit of the doubt created as regards the proper preservation of the samples, and whether the samples initially tested and subsequently tested were from the same source, should go to the accused." 36. In the considered opinion of this Court, while passing the impugned judgment, the learned trial court has failed to notice the discrepancies, which have been noted by this Court i....