Delhi District Court
Sc No. 13/05 Dri vs Harbans Lal Sharma on 28 April, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
Sh Deepak Kumar Mangotra, Intelligence Officer,
Directorate of Revenue Intelligence,
Headquarters, New Delhi.
Versus
Harbans Lal Sharma,
S/o Late Sh Gian Chand,
R/o 1/7600, Street No. 8,
East Gorakh Park, Shahadra,
Delhi.
SC No. : 13/05
U/S : 23/29 NDPS Act
Date of institution : 22.03.2005
Date of reserving judgment : 15.04.2011
Date of pronouncement of judgment : 28.04.2011
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence (hereinafter referred to as DRI) through Sh Deepak Kumar Mangotra, Intelligence Officer against the accused Harbans Lal Sharma for the offence punishable U/S 23 read with 29 of the NDPS Act, 1985 on allegations that on 23.09.2004 at about 3.30 PM a secret information was received by PW8 Sh Ajit Singh, IO, DRI, New Delhi that an export consignment declared to be ' a ctivated powder' and exported vide Airway SC No. 13/05 DRI Vs Harbans Lal Sharma 2 Bill No. 2328 5383502 dated 18.09.2004 by flight no. 191 of the Malaysian Airlines dated 22.09.2004 to South Africa from Delhi via Kualalumpur contained narcotic substances concealed within the declared cargo. The abovesaid information was put up before PW12 Sh Vinod Kumar Mehta, the then Deputy Director (Int.), who had made some inquiries from the Malaysian Airlines office and it was revealed that the above consignment was already loaded on flight no. MH-203 from Kualalumpur for Johannesburg. The Regional Manager, Malaysian Airlines was asked to recall the above consignment and it was subsequently intimated that the above consignment had been recalled and would be brought back to Delhi on 24.09.2004.
2. It is also alleged in the complaint that on 24.09.2004 the officers of DRI led by the IO/PW1 Sh Deepak Mangotra had reached the Import Flight Check Area of Air Cargo at IGI, New Delhi and panch witnesses were called there and were informed about the above specific information and also that on request the abovesaid cargo had been brought back from Kualalumpur by Flight NO. MH-190 dated 24.09.2004 and after unloading the same was brought to the above area of the airport and the witnesses were requested to witness the examination of the said cargo, to which they had readily agreed. The witnesses were also introduced by the DRI Officers to one Sh Surender Khosla/PW14, Director of M/s Necko Freight Forwarder Ltd., New Delhi, who was the freight forwarder in this case, and the DRI Officers had also shown the witnesses the shipping documents of the SC No. 13/05 DRI Vs Harbans Lal Sharma 3 abovesaid consignment, which inter-alia, included the Shipping Invoice No. B0/09/04 dated 16.09.2004, packing list bearing the same number and date, Shipping Bill No. 5306955/17.09.2004 etc.. As per the above documents the Shipper' s name was M/s Bombniyal Overseas, 1156, Street Samosan, Farshkhana, Delhi and the consignee name was M/s Tuflon Plastic C.C. Insulation Machining, PO Box No. 6433, Ansfrene, South Africa and the description of the goods as mentioned in the invoice was ' 0 5 packages 1 to 5 Activated- powder, black colour, for cold drink purpose' , net weight 50 kg with C & F value 150$ @ 3$ per kg and packing list showed each packet containing 10 kgs. The above referred cargo consisting of the above packages in the shape of cylindrical drums with lids, with each drum fully covered with gunny bags duly stitched and having stickers of security check bearing serial no. 3353546 to 3353549 and 3353551 in intact condition, was shown to the panch witnesses and PW14 Sh Surender Khosla by the DRI Officers and there was following markings on the above gunny bags ' To- Tuflon Plastic C.C. Insulation Machining, PO Box No. 6433, Ansfrene, South Africa, From- B.O. New Delhi, MH 190, 24.09.04/14237, 232-8538-3502' . In addition to the above, the drums were also found to be tagged with cargo sticker of MAS Kargo bearing details of Airway Bill, destination and total number of pieces.
3. It is also alleged in the complaint that thereafter the contents of the abovesaid five drums were examined by the DRI Officers in the presence of the witnesses and on SC No. 13/05 DRI Vs Harbans Lal Sharma 4 examination of drums no. 1/5 and 5/5, the same were found to contain black powder in loose condition on visual examination. However, when the drums were completely emptied, a black polythene bag containing some more black powder was also found concealed inside each drum. The drum no. 2/5 was found to contain black powder in loose condition on visual examination. However, when the drum was completely emptied, a bigger polythene bag containing 7 comparatively smaller polythene bags were found and these smaller polythene bags further contained light brownish material in the form of tablets concealed therein. The drums no. 3/5 and 4/5 were also found to contain black powder in loose condition on visual examination. However, when these drums were completely emptied, a bigger polythene bag containing 8 comparatively smaller polythene bags containing light brownish material in form of tablets were also found concealed in each drum.
4. It is further alleged in the complaint that then the above substance found in the above drums was tested with the help of a Field Detection Kit and though the black powder found in loose condition and also in the polythene bags in drums no. 1/5 and 5/5 as well as the black powder in loose condition found in drums no. 2/5, 3/5 and 4/5 had tested negative for any narcotic or psychotropic substance, but the light brown material in the form of tablets found in drums no. 2/5, 3/5 and 4/5 had tested positive for Methaqualone, a psychotropic substance under the NDPS Act. Then the weight of the above powder and light brown material SC No. 13/05 DRI Vs Harbans Lal Sharma 5 in the tablet form found in all the above drums was done and the total weight of the above light brownish material in the tablet form, which had tested positive for Methaqualone, was found to be 27.700 kg and the total weight of the black powder recovered in all the drums was found to be 32.200 kg. The above substances, the gunny bags used for covering the drums, the above tags of MAS Kargo and other packing material were all seized by the IO/Complainant for contravention of the provisions of the NDPS Act. Thereafter, two representative samples of 20 grams each from the above black powder recovered in loose condition in each drum as well as from the above polythene bags found in drums no. 1/5 and 5/5 and also two representative samples of 10 grams (7 tablets) from drum no. 2/5 and 11 grams each (8 tablets) from drums no. 4/5 and 5/5 were drawn and the same were given marking as X-1A and X-1B, X-2A and X-2B, X-3A and X-3B, X-4A and X-4B, X-5A and X-5B and Y-1A and Y-1B, Y-2A and Y-2B, Y-3A and Y-3B, Y-4A and Y-4B, Y-5A and Y-5B. The above A and B batches of samples were further packed into two separate brown paper envelopes and were given corresponding markings. These brown paper envelopes were sealed with DRI seal no. 10 and over and above the seal, paper slips containing the dated signatures of the witnesses, PW14 Sh Surender Khosla and the seizing officer were pasted. The polythene packets containing the above black powder and light brown material in tablet form and the black powder in loose condition were then re-packed in their original packings, i.e. in drums, and these drums were then individually covered with their original gunny bag coverings SC No. 13/05 DRI Vs Harbans Lal Sharma 6 and then were individually wrapped in a white cloth and were marked as 1/5 to 5/5 and were stitched and sealed with the above seal. Over and above the same, paper slips bearing the signatures of the above persons were also pasted. The facsimile of the above seal was also given on the panchnama and the test memo in triplicate for sending the samples to CRCL was also prepared. The above security stickers and tags affixed on the above three drums were also signed by all the above persons and a panchnama Ex. PW1/B was drawn at the spot with regard to the above proceedings conducted there and it was also signed by all of them.
5. It is further alleged in the complaint that in pursuance to the summons the above Sh Surender Khosla had tendered his voluntary statement dated 25.09.2004 U/S 67 of the NDPS Act, wherein he had stated that the above Airway Bill No. 23285383502 was prepared by him for Sh Rakesh Sharma of M/s Life Line Cargo having office at Nangal Dewat, New Delhi and in the evening of 24.09.2004 he was informed by an official of Malaysian Airways that the consignment shipped vide the above airway bill and executed by them on behalf of shipper M/s Bombniyal Overseas at the advice of M/s Life Line Cargo has been recalled on advice of DRI Officers and was arriving at Delhi Airport by 9 PM flight and his presence was required during the course of examination of the above consignment. It was also stated by him that accordingly he had arrived at the airport and had participated in the above panchnama proceedings and he had already called Sh Rakesh Sharma of M/s Life Line Cargo SC No. 13/05 DRI Vs Harbans Lal Sharma 7 Movers/PW2 about the same and Sh Rakesh Sharma in turn had informed him that he was trying to contact the shipper. On the same day the above Sh Rakesh Sharma of M/s Life Line Cargo Movers had also appeared before the DRI officers and had tendered his voluntary statement U/S 67 of the NDPS Act, wherein he had stated about being told by the recall of the above cargo by PW14 Sh Surender Khosla of M/s Necko Freight Forwarder Ltd. and requesting him to come present at the airport. He had informed the above Sh Surender Khosla that he was away from Delhi and after reaching Delhi he had first contacted one Sh Rajesh Sharma of M/s Om Sai International, 2345, Village Nangal Dewat, Opposite Cargo Complex, New Delhi, who had booked the above consignment with him on behalf of the above shipper and then the above Sh Rajesh Sharma/PW4 had contacted the accused H.L.Sharma of M/s Bombniyal Overseas and then they all had reached at the airport and by that time the panchnama proceedings were already over. It was also stated by him that the above consignment was found forwarded by M/s Necko Freight Forwarders and he had also received a cheque of Rs. 10,027/- from the above Sh Rajesh Sharma of M/s Om Sai International on account of the freight charges and he had no knowledge or concern about/with the actual contents of the above cargo. Similarly, the above Sh Rajesh Sharma of M/s Om Sai International had also appeared and tendered his voluntary statement U/S 67 of NDPS Act dated 25.09.2004 before the DRI officers on similar lines, as stated by the above Sh Rakesh Sharma of M/s Life Line Cargo. It was also stated by him that the above consignment was brought to him by the accused SC No. 13/05 DRI Vs Harbans Lal Sharma 8 H.L.Sharma of M/s Bombniyal Overseas on 18.09.2004 and then he had contacted Sh Rakesh Sharma on phone and had requested him to get the airway bill for the said consignment and on getting the same, he had handed over the consignment to CHA M/s Global Marine Agency on 20.09.2004 and thereafter the above CHA had arranged the shipment. He had also stated that on being asked, the accused H.L.Sharma had telephonically furnished the information and on its basis he had prepared the invoice and packing list and had sent the same through one of his employees to the accused for signatures. On the same day the voluntary statements U/S 67 NDPS Act of the above two panch witnesses Sh Asha Ram Yadav and Sh Shashi Singh Khetwal were also recorded wherein they had admitted the above recovery and its seizure and the correctness of the panchnama proceedings.
6. It is also stated in the complaint that in response to the summons the accused Harbans Lal Sharma had also appeared and tendered his voluntary statement dated 25.09.2004 U/S 67 of the NDPS Act wherein he had admitted the shipment of the above consignment on behalf of his company M/s Bombniyal Overseas vide the above Airway Bill through the above Sh Rajesh Kumar Sharma of M/s Om Sai International. He had also admitted that the above contraband substance, i.e. the mandrax/methaqualone tablets were received by him from his one friend Sh Gul Khan, who was based in Afghanistan and kept on visiting Delhi, and as per the instructions of the above Sh Gul Khan he had purchased the above black colour powder/charcoal used for SC No. 13/05 DRI Vs Harbans Lal Sharma 9 purifying soft drinks to conceal the above contraband substance in the above packets, which were delivered by him to the above Sh Rajesh Kumar Sharma. He had also disclosed therein the address of the consignee in South Africa and had further admitted of being informed regarding the recalling of the above consignment by the above Sh Rajesh Kumar Sharma and their reaching at the Air Cargo Complex, IGI Airport, subsequent to the conclusion of the panchnama proceedings.
7. It is also a part of the complaint that thereafter the accused was arrested in this case and intimation regarding his arrest was given to his son. The residential premises of the accused were also raided by PW6 Sh K.K.Gupta, IO on 28.09.2004, but nothing incriminating was recovered further. The report U/S 57 NDPS Act was submitted by the complainant to his immediate senior officer Sh S.K.Sharma/PW7 on 25.09.2004 and on 27.09.2004 one set of representative samples was taken by the complainant and deposited with the CRCL and the remaining case property, alongwith the packing material etc. was deposited in the Valuable Godown. On inquiries the address of 1156, Street Samosan Kashkana Delhi of M/s Bombniyal Overseas given on the shipping documents was found to be not existing and vide report dated 21.12.2004 of the Chemical Examiner, CRCL, the samples of the above three pullandas containing the tablets were found to be of Methaqualone and about the remaining black powder substance of all the samples it was opined that the same did not answer positive for certain known contraband substances for which the CRCL was equipped and it SC No. 13/05 DRI Vs Harbans Lal Sharma 10 was advised that the same may be sent to CFSL, Hyderabad but, however, the same were also not accepted by the CFSL, Hyderabad on the ground that they were already subjected to examination in the CRCL, New Delhi. The address of the consignee in South Africa was though verified, but because of the prohibitions of local laws of South Africa the other desired information was not furnished and ultimately this complaint was filed in the court on 22.03.2005 against the accused for the offences U/S 23 read with Section 29 NDPS Act after the conclusion of the investigation proceedings and cognizance thereof was taken by this court on the same day for the above said offences.
8. A prima facie case for the offence U/S 23 read with Section 29 of the NDPS Act was also found to be made out against the accused and a charge for the above said offences was framed against him on 23.04.2005.
9. The DRI in support of its case has examined on record total 16 witnesses and their names and the purpose of examination is being stated herein below :-
10. PW1 Sh Deepak Kumar Mangotra, Intelligence Officer of DRI, is the main Investigating Officer of this case and he has deposed about the recalling and seizure etc. of the above contraband substance and the sampling and panchnama proceedings regarding the same etc., as stated above. He has also exhibited on record a copy of this complaint filed by him as Ex. PW1/A, the original panchnama proceedings as SC No. 13/05 DRI Vs Harbans Lal Sharma 11 Ex. PW1/B, the arrest-cum-personal search memo of the accused Ex. PW1/G, request letter for his medical examination Ex. PW1/H, the information U/S 57 NDPS Act Ex. PW1/J, a copy of the test memos as Ex. PW1/K and another copy thereof, which was sent to the CRCL with the samples, as Ex. PW1/L, summons given to PW Sh Surender Khosla and his statement U/S 67 NDPS Act as Ex. PW1/G & PW1/G1 respectively, a copy of the relevant entry of the seal movement register as Ex. PW1/M, deposit memo of the case property as Ex. PW1/N and his inquiry report regarding the address verification of the above company of the accused as Ex. PW1/O. He has also brought on record and identified the above three stickers of MAS Cargo as Ex. PW1/D1 to PW1/D3 and some documents procured from the Customs and Malaysian Airlines as Ex. PW1/E1 & E2 and PW1/F1 to F13. Besides the above some other documents were also marked during his statement. During his statement he has also identified the remaining black colour powder and tablets of all the packets, the remnants of the samples, the packing material etc. and the paper slips, containing the signatures of all the signatories, affixed on all the pullandas of the case property and samples and has further identified the signatures of the accused and other signatories on the above slips and documents etc.
11. PW2 Sh Rakesh Kumar Sharma is the proprietor of M/s Life Line Cargo Movers at 1253/3, Nangal Dewat, Opposite IGI Cargo Complex, New Delhi and he has deposed about booking of the above consignment from Sh Rajesh Kumar Sharma, his SC No. 13/05 DRI Vs Harbans Lal Sharma 12 participation in the panchnama proceedings and his making of the voluntary statement U/S 67 NDPS Act Ex. PW2/A.
12. PW3 Sh R.Roy, Intelligence Officer of DRI has only recorded the statements Ex. PW3/C & PW3/D respectively of the above Sh Rajesh Sharma (of M/s Om Sai International) and the panch witness Sh Asha Ram Yadav in response to the summons Ex. PW3/A & PW3/B respectively issued by him. PW4 is Sh Rajesh Kumar Sharma of the above M/s Om Sai International and likewise PW2 he has also deposed about being informed regarding the recall of the cargo, his arrival at the cargo complex and recording of his above statement Ex. PW3/C on summons Ex. PW3/A. He has also identified his signatures on the panchnama Ex. PW1/B and the documents Ex. PW1/E1 & E2 and PW1/F1 to F13, except PW1/F9 & F12.
13. PW5 Sh D.P. Saxena, Intelligence Officer of DRI had only recorded the statement U/S 67 NDPS Act of the above Sh Rakesh Kumar Sharma of above M/s Life Line Cargo Movers Ex. PW2/A on summons Ex. PW2/B. PW6 Sh K.K. Gupta was also posted as Intelligence Officer in DRI office and after giving summons Ex. PW6/A & PW6/C to the accused and panch witness Sh Shashi Singh Khetwal respectively, he had recorded their statements U/S 67 NDPS Act Ex. PW6/B & PW6/D respectively. On 28.09.2004 he was also authorized by his senior officer Sh R.K.Aggarwal vide search warrant Ex. PW6/E to conduct a raid at the residential premises of the accused, but nothing incriminating was recovered and he had SC No. 13/05 DRI Vs Harbans Lal Sharma 13 prepared the panchnama Ex. PW6/F in this regard.
14. PW7 Sh S.K.Sharma was the Senior Intelligence Officer of DRI at that time and on being informed by the complainant/PW1 regarding the seizure of this case, he had reached at the Cargo Complex, IGI Airport with the seal movement register and the DRI Seal No. 10 and had issued the same to the complainant/PW1 vide entry Ex. PW1/M. Later on he had also received the report U/S 57 NDPS Act Ex. PW1/J about the seizure etc. of the contraband substance from the complainant/IO. He has also written two letters Ex. PW7/A & PW7/B to the Assistant Commissioner, Customs Air Cargo in connection with this case.
15. PW8 Inspector Ajeet Singh was also posted as Intelligence Officer in DRI Headquarters on the day of incident and he is the person who had received the secret information about this case and had reduced the same into writing vide Ex. PW8/A and had further put it before his Deputy Director Sh Vinod Kumar Mehta.
16. PW9 Sh R.K. Aggarwal was the Assistant Director of DRI at that time and he had informed the son of the accused about his arrest vide telegram Ex. PW9/A and receipt thereof Ex. PW9/B and on 27.09.2004 he had also countersigned the deposit memo Ex. PW1/N of the case property. On 28.09.2004 he had issued search warrant Ex. PW6/E authorizing PW6 Sh K.K. Gupta to raid the residential premises of accused and had subsequently seen the panchnama Ex. PW6/F thereof.
SC No. 13/05 DRI Vs Harbans Lal Sharma 14 Subsequently on 18.10.2004 he had also sent letter Ex. PW9/C and reminders Ex. PW9/D & E to the concerned authorities in South Africa requiring certain information about the consignee. On 17.03.2005 he had also sent the letter Ex. PW9/F with another letter/forwarding note Ex. PW9/G to CFSL, Hyderabad for testing of the samples of the above substance, which were returned by the CRCL.
17. PW10 Sh P.K.Aggarwal, Assistant Chemical Examiner and PW11 Sh D.K. Beri, Chemical Examiner are both from the CRCL. They have deposed regarding the receipt of the above 10 sample packets in sealed condition in the CRCL from the IO/complainant and the examination thereof on 30.11.2004. The samples were analyzed by PW10 under the supervision of PW11 and vide report Ex. PW10/C three samples marked Y2A, Y3A & Y4A were found positive for Methaqualone and their purity percentage was opined to be 66.2%, 62.0% & 63.8% respectively, whereas the remaining samples were found negative for morphine, heroin, codeine and Methaqualone. They have also identified the above sample contents and remnants thereof, as stated above, as well as the envelopes in which the same were put and have further exhibited on record the forwarding letter of the same as Ex. PW10/A and acknowledgment receipt of the sample pullandas as Ex. PW10/B.
18. PW12 Sh Vinod Kumar Mehta was the Deputy Director, DRI at that time and he is the person to whom the above secret information Ex. PW8/A was put up by PW8 Sh Ajeet SC No. 13/05 DRI Vs Harbans Lal Sharma 15 Singh and after making some initial inquiries he had requested the recall of the above consignment from Kualalumpur, Malaysia vide his letter Ex. PW12/A and was informed that the same will be recalled at Delhi Airport on 24.09.2004. Subsequently, he had authorized PW1/complainant to take the necessary action in the matter on the recall of the consignment.
19. PW13 Sh R.S.Kashyap was posted as Inspector (Disposal), Valuable Godown, New Customs House, New Delhi on 27.09.2004 when on the directions of his senior officer, he had received five packages of the case property from the complainant/PW1 in sealed condition vide deposit memo Ex. PW1/N and had made an entry at Serial No. 33 of his register regarding the deposit of the same.
20. PW14 is Sh Surender Khosla (of above M/s Necko Freight Forwarder Ltd.) and he has deposed regarding his being called to the Cargo Area of the IGI Airport and his participation in the panchnama proceedings. He has stated that the Airway Bill of the above cargo was arranged by him at the instance of Sh Rakesh Kumar Sharma of M/s Life Line Cargo and the cargo handling and custom clearance was done by the above Sh Rakesh Kumar Sharma. He has identified his signatures on the above Airway Bill Ex. PW1/P1, panchnama Ex. PW1/B and various other documents connected with the same and the above paper slips pasted on the pullandas and has also admitted to had made his statement Ex. PW1/G1 in connection with this case. He has also stated that he SC No. 13/05 DRI Vs Harbans Lal Sharma 16 surrendered the documents Ex. PW14/A at that time and has further identified the remnant of the samples and other case property.
21. PW15 Ms Sanyogita Mishra, SIO of DRI had only forwarded the sealed sample pullandas to CRCL through the IO/complainant vide covering/forwarding letter Ex. PW10/A and PW16 Sh Shashi Singh Khetwal is the panch witness from Malaysian Airlines, who had participated in the panchnama proceedings vide Ex. PW1/B and has also made his statement Ex. PW6/D U/S 67 NDPS Act regarding the same. He has also supplied copies of the shipping documents pertaining to the above cargo to the complainant/IO and has also identified the remaining case property and remnants of the sample.
22. After the conclusion of the evidence of the DRI all the incriminating evidence brought on record was put to the accused in his statement recorded U/S 313 Cr.P.C. and the same was claimed by him to be incorrect. The accused has claimed himself to be innocent and to have been falsely implicated while stating that his son Sh Rajesh Sharma is the sole proprietor of M/s Bombniyal Overseas, 1156, Gali Samosan, Farshkhana, Delhi-6 and the above firm deals in the export of various items and had also been allotted IEC Code and it is still functioning at the above address. However, he has denied exporting of the above consignment of Activated Powder to South Africa while stating that the rubber stamp affixed on the shipment documents thereof do not belong to their firm and none of these documents is SC No. 13/05 DRI Vs Harbans Lal Sharma 17 signed by them. He has also claimed that on 24.09.2004 in the early morning hours he and his son Yogesh Sharma were lifted from their house and were taken to the Airport Cargo Area, where they were shown a consignment and on their denial of the above consignment belonging to them, he was threatened and pressurized to write a statement after taking his family history and under pressure and on their dictation, he had written a statement acknowledging the above consignment and his signatures were also obtained on various blank, semi written and written papers and also on some paper slips and he had already retracted his above statement on the first available opportunity and his retraction is a part of the record. It is also stated by him that he was threatened that if he do not write the statement according to them then his son would be falsely implicated. However, no defence evidence was led by the accused.
23. I have heard the oral arguments advanced on behalf of the DRI as well as Sh Yogesh Saxena, Ld counsel for the accused and I have also gone through the written arguments filed on record by Sh Satish Aggarwal Ld SPP for DRI.
24. As already stated above, the recovery of the above contraband substance in this case was effected subsequent to the recalling of a consignment exported through the Malaysian Airlines and no recovery of any contraband substance was effected from the possession of the accused. The above consignment declared to be ' a ctivated powder' was exported vide the Airway Bill NO. 2328-5383-502 dated SC No. 13/05 DRI Vs Harbans Lal Sharma 18 18.09.2004 and a copy of the above Airway Bill has been brought on record by the DRI during its evidence as Ex. PW1/E1, alongwith some other original documents including the declaration form for export of goods and invoice etc. Ex. PW1/E2 and PW1/F1 to PW1/F13 were collected by the IO from the Malaysian Airlines subsequent to the receipt of the above secret information, but there is no explanation on record from the DRI as to why the original Airway Bill Ex. PW1/E1 has not been collected by the IO during the investigation and not brought on record, though more than one copies of the original Airway Bill are prepared. Further, though the remaining documents Ex. PW1/E2 and PW1/F1 to PW1/F13 produced on record are in original, but the exhibition of all the above documents on record, including the copy of the Airway Bill Ex. PW1/E1, was objected to by Ld defence counsel during the examination of the IO/complainant itself when these documents were first exhibited on record and since the IO/complainant is not the author of any of these documents and nor these documents were prepared in his presence, he was not in a position to these documents. It is further observed that though during the examinations of the IO/complainant/PW1, PW2 Sh Rakesh Sharma and PW4 Sh Rajesh Sharma etc. the signatures of these persons as appearing on these documents and some other documents have been identified by the IO and the above witnesses, so far as their own signatures are concerned, but the signatures identified by these witnesses are the signatures which were obtained on these documents either at the time of preparation of the panchnama or subsequent SC No. 13/05 DRI Vs Harbans Lal Sharma 19 thereto. None of PW2, PW4 or PW14 has claimed himself to be the author of these documents nor any of these witnesses had been asked by the Ld SPP for DRI that the handwriting appearing on these documents is their handwriting or that the same were prepared in their presence etc. and hence, simply by obtaining their signatures on these documents and the identification of these signatures subsequently by them in the court will not have the effect of proving these documents, including the above Airway Bill Ex. PW1/E1, as per law. Though PW14 Sh Surender Khosla has also identified his signatures at point G on the above document Ex. PW1/E1 while claiming the same to had been put by him at the time of issuance of the above bill, but since the document being a photocopy was not admissible in evidence for want of the production of the original thereof, the mere identification of signatures on a photocopy of this document cannot have the effect of making the above document admissible in evidence. Therefore, the above documents cannot be said to have been legally proved on record and admissible in evidence.
25. According to the case of the prosecution the above consignment containing the contraband substance was exported by the accused Harbans Lal Sharma on behalf of his firm M/s Bombniyal Overseas, 1156, Street Samosan, Farshkhana, Delhi-06 and the same was booked/shipped for export by him through PW4 Sh Rajesh Sharma of M/s Om Sai International. It is also their case that PW4 in turn had roped in another sub agent PW2 Sh Rakesh Sharma of M/s Line Line Cargo and PW2 SC No. 13/05 DRI Vs Harbans Lal Sharma 20 had arranged the shipment of the above consignment for South Africa, via Malaysia, by Malaysian Airlines through PW14 Sh Surender Khosla of M/s Necko Freight Forwarders.
26. There are specific depositions made by the IO/ complainant/PW1 on record that subsequent to the receipt of the above secret information regarding the exported consignment of contraband substance and the recall of the said consignment, he had visited the Import Flight Check Area of IGI Airport on 24.09.2004, alongwith his team of officers and the panch witnesses, subsequent to the collection of the above documents pertaining to the export of the above consignment. PW14 Sh Surender Khosla was also called there as he was the Director of M/s Necko Freight Forwarders, New Delhi as the name of the above firm was written on the above Airway Bill. The signatures of PW14 Sh Surender Khosla on the above documents were taken at that stage and then the above recalled consignment of five packages was inspected by the IO/PW1 in the presence of the above Sh Surender Khosla and the other panch witnesses and the DRI Staff and the above contraband substance in the form of tablets weighing 27.700 KG in total, which was subsequently opined to be Methaqualone in the report of the CRCL, was detected in three of the above five packages. The panchnama proceedings as well as some security tags etc. found on the above packages were also got signed by the above persons present there at the time of conduction of the panchnama proceedings.
SC No. 13/05 DRI Vs Harbans Lal Sharma 21
27. However, there is no evidence on record to prove that the accused Harbans Lal Sharma had also reached there at that time and he had participated in the panchnama proceedings and even the IO/complainant has not made any claim in this regard during his statement made in this court. Since, no recovery of any contraband substance was effected from the physical possession of the accused or from any of the premises or conveyance etc. in his possession, it was imperative on the part of the IO to had collected sufficient evidence on record to link the accused with the above consignor firm and further to link him with the above consignment of the contraband substance. IO/PW1 in his statement made in this court has admitted that he had come to know the name of the consignor on 24.09.2004 itself, but it is pitiable that apart from collecting the above documents and recording statements of few persons nothing material has been done by the IO/PW1 in the name of the investigation as he had not conducted any inquiry or investigation about the above consignor firm or its relation with the accused. He has not taken any pain to collect any document pertaining to the constitution of the above firm and even to know whether it was a proprietorship firm or a partnership firm. Further, though on some of the documents exhibited by him as Ex. PW1/F1 to PW1/F13, i.e like documents exhibited as F3, F5 and F6, a rubber stamp in the name of the consignor firm M/s Bombniyal Overseas with the signatures of some person, was found to be there, but even then the IO had not taken any specimen signatures of the accused for comparison with the signatures appearing on the SC No. 13/05 DRI Vs Harbans Lal Sharma 22 above documents to find out if the above documents were signed by the accused on behalf of the above consignor firm. During the course of suggestions given to the prosecution witnesses and even during the course of recording of statement of the accused U/S 313 Cr.P.C it has been claimed that the son of the accused Sh Rajesh Sharma (who is a different person from the other Sh Rajesh Sharma of M/s Om Sai International examined on record as PW4) is the proprietor of one firm having name of M/s Bombniyal Overseas, though the export of the above consignment has been denied on behalf of their firm, but the IO has not even taken any specimen signatures of the above son of the accused or of any other member of his family to find out the connection of the accused and his family with the above consignment or the consignor firm. This is despite the fact that in his alleged statement U/S 67 NDPS Act Ex. PW6/B made by the accused during the investigation of this case the accused has claimed that the above company had been opened in the name of his son and the accused was the overall in- charge and looking after the entire imports and export business of the above company/firm. The taking of the specimen signatures of the accused could have been a clinching evidence for the DRI for establishing the identity of the accused as the exporter of the above consignment and there is no explanation on record as to why the IO had not thought it proper to take the specimen signatures of the accused or of his above son for the purposes of comparison with the signatures appearing on the above export documents.
SC No. 13/05 DRI Vs Harbans Lal Sharma 23
28. Again there is also no oral or documentary evidence brought by the prosecution on record to establish that the above rubber stamps in the name of M/s Bombniyal Overseas, appearing on the above documents are in fact the stamps of the above firm or company of which the accused had claimed his son Rajesh Sharma to be the owner. No recovery of any rubber stamp or any other letterhead or other document in the name of the above company or the accused has been effected by any of the IOs of the DRI and though one raid was also conducted subsequently on 28.09.2004 by PW6 Sh K.K.Gupta at the residential premises of the accused, after PW6 was authorized by PW9 Sh R.K.Aggarwal vide authorization Ex. PW6/E, but it is the admitted case of the DRI that no recovery of any rubber stamp, document or other incriminating evidence article was effected in that raid and a panchnama of the above proceedings has also been proved on record by the prosecution itself as Ex. PW6/F. Hence, no incriminating document was collected by the IO/complainant during investigation to connect the accused with the above consignor firm or with the above consignment of the above contraband substance.
29. It is the case of the DRI that the above address of 1156, Street Samosan, Farshkhana, Delhi of M/s Bombniyal Overseas was a fake address and one verification report in this regard has also been proved on record by the IO/ complainant as Ex. PW1/O. However, the case of the accused is that the above address of the above firm owned by his son is very much existing and during the course of cross SC No. 13/05 DRI Vs Harbans Lal Sharma 24 examination of PW6 Sh K.K.Gupta copies of some documents have also been brought on record on behalf of the accused as D1 to D7. It has been argued on behalf of the DRI that the above documents cannot be read in evidence and considered on record as the originals thereof have not been produced on record and the same have also not been proved on record as per the Evidence Act. Though these documents could not have been considered against the DRI for the reasons given above, but certainly these documents can be seen and considered against the accused himself as he himself had produced and brought these on records. However, even on the basis of these documents the only inference that can be drawn from the admissions of the accused on record and these documents is that the above firm namely M/s Bombniyal Overseas is owned by his son Sh Rajesh Sharma and the above address of the firm is correct and still these documents cannot be helpful in connecting the accused or the above firm of his son with the above consignment of the contraband substance.
30. On further appreciation of the prosecution evidence, it is also observed that subsequent to the drawing of the panchnama proceedings, nothing material has been done in the name of the investigation by the IO/complainant, except the recording of the statements of few witnesses as well as of the accused U/S 67 of the NDPS Act and the investigation was continued further only for the confirmation of the particulars of the consignee company, carrying out the above raid at the premises of the accused and awaiting the test report of the samples drawn from the SC No. 13/05 DRI Vs Harbans Lal Sharma 25 recovered contraband substance. One other material aspect which has been ignored by the IO is that as per the above shipping/export documents the CHA (Custom House Agent) for the said consignment was one M/s Global Marine Agency, but the IO/PW1 has not made any investigation or inquiry from the office of the above CHA and that too when this fact has come into his knowledge and he has also come to know that the shipment in question was not got actually cleared by PW14 Sh Surender Khosla of M/s Necko Freight Forwarders, PW2 Sh Rakesh Sharma of M/s Life Line Cargo Movers and PW4 Sh Rajesh Sharma of M/s Om Sai International, as also deposed by him in this court. Even PW4 Sh Rajesh Sharma has deposed in this court that the consignment was cleared through the CHA and thereafter they had handed over the same to Malaysian Airlines, though the Airway Bill of the above consignment was obtained by him through PW2 Sh Rakesh Sharma. Hence, the not making of any inquires from above CHA by the IO/complainant has also been fatal for the case of the prosecution as it was the duty of the CHA to handle the above consignment for clearance.
31. The Ld defence counsel has also referred to Regulation 13 of the Customs House Agents Licensing Regulations, 2004 under which a CHA is required to obtain an authorization from each of the companies, firms or individuals by whom he is for the time being employed as a CHA and that authorization is to be produced whenever the same is required by the Deputy Commissioner or Assistant Commissioner of Customs. Though PW2 Sh Rakesh Sharma, who SC No. 13/05 DRI Vs Harbans Lal Sharma 26 has arranged the above Airway Bill from PW14 Sh Surender Khosla, in his statement has expressed his ignorance regarding the above rule or regulation, but no such authorization given by the accused in his individual capacity or on behalf of the above consignor firm has been collected by the IO during investigation or produced on record. PW2 has also admitted in his cross examination that an authorization is required by the CHA for checking the contents of the consignment, but even no such authorization given by the accused or the consignor firm has been recovered or produced on record. Apart from the above, the IO/complainant had not even called for the accounts book of the above consignor firm or of the firms of the above three PWs to find out any entry or documents connecting the above consignment with the accused and even no offices or godowns of the above consignor firm and the firm of the above witnesses were raided to find out and collect any incriminating material or circumstance and the IO/ complainant simply became satisfied regarding the success of his case on the basis of the above statements U/S 67 NDPS Act of the accused and the witnesses recorded by him, which will be appreciated and discussed subsequently in this judgment.
32. Again PW2 Sh Rakesh Sharma in his statement has also stated that he had received an amount of Rs 10027/- from PW4 Sh Rajesh Sharma after deducting his commission and a cheque for the above amount was given to him by Sh Rajesh Sharma and it was an account payee cheque and was encashed SC No. 13/05 DRI Vs Harbans Lal Sharma 27 by him. IO/complainant had also not taken any pain to find out if any amount as commission or export charges for the above consignment was ever paid by the accused to PW4 Sh Rajesh Sharma at the time of alleged entrustment of the said consignment by the accused to PW4 nor he had taken into possession or scrutinized any accounts or the bank details of the accounts of the said consignor firm to connect the accused or their above firm with the said consignment.
33. Therefore, in the absence of there being any connecting document or material on record, the entire case of the DRI is resting on the alleged voluntary confessional statement of the accused Ex. PW6/B and the depositions made by PW2 Sh Rakesh Kumar, PW4 Sh Rajesh Kumar and PW14 Sh Surender Khosla for connecting the accused with the above consignment of the contraband substance. The statements U/S 67 NDPS Act of the above three witnesses have also been brought on record as Ex. PW2/A, Ex. PW3/C and Ex. PW1/G1 respectively, which have been made before PW5 Sh D.P.Saxena, PW3 Sh R.Roy and the IO/PW1 Sh Deepak Mangotra himself. Besides the above there are also the depositions made in the court and a statement U/S 67 NDPS Act Ex. PW6/D of the panch witness PW16 Sh Shashi Singh Khetwal, who is an official of the Malaysian Airlines, who had supplied some documents to the IO/complainant and was present at the time of panchnama proceedings. Since all the above witnesses already stand examined in this court, their above previous statements cannot be given any relevance and it is only their depositions made in the court which are to be seen, as the SC No. 13/05 DRI Vs Harbans Lal Sharma 28 above statements are only the statements of witnesses and are not confessional in nature. The other panch witness Sh Asha Ram Yadav has not been examined by the prosecution.
34. As far as PW16 Sh Shashi Singh Khetwal is concerned, he has nothing to do with the identity of the accused as the offender and it is only the PW2, PW4 & PW14 who were or could have been the material witnesses of the prosecution story in this regard. On appreciation of their testimonies it is found that PW2 Sh Rakesh Sharma of M/s Life Line Cargo had not claimed to had ever met or seen the accused in the shipping of the above consignment and even no such claim was made by him in his previous statement U/S 67 NDPS Act Ex. PW2/A as he had arranged the above Airway bill only at the instance of PW4 Sh Rajesh Sharma and had not directly dealt with the accused or the consignor firm. Though in the statement U/S 67 NDPS Act Ex. PW3/C of PW4 Sh Rajesh Sharma it was earlier claimed by him that the above consignment was brought to him by the accused H.L. Sharma, but when examined in this court he has simply stated that he had booked 4/5 packets of Sh Harbans Lal Sharma for Johannesburg, South Africa and in his cross examination he has clearly stated that he had never seen the above Harbans Lal or H.L. Sharma and hence he cannot given any description of him and he has also stated that he had never dealt with M/s Bombniyal Overseas for whom he had booked the above consignment with PW2 Sh Rakesh Sharma. He was never re- examined by Ld. SPP for DRI on the above aspect and in view of his above specific depositions made in this court SC No. 13/05 DRI Vs Harbans Lal Sharma 29 regarding the identity of the accused, his alleged statement U/S 67 NDPS Act Ex. PW3/C cannot be used and made basis for fixing the identity of the accused and that too when this witness has also stated in his cross examination that the same was written by him at the dictation of the DRI officer and was not read over to him. He has also stated that whatever the DRI officer had told him, he had signed the same. Even otherwise a simple statement of a witness, which is not confessional in nature, can though bind the maker thereof but cannot bind the accused. Even PW14 Sh Surender Khosla in his testimony has not made any claim to had ever met or seen the accused in the course of the processing of the above shipment/export of the above consignment. Though PW14 in his statement made in this court has gone to state that the exporter of the above consignment had reached at the airport alongwith Sh Rakesh Sharma/PW2 of M/s Life Line Cargo and he has also identified the accused to be the above exporter, but his above claim cannot be considered to be acceptable because in his cross examination he has admitted that in his previous statement U/S 67 NDPS Act no such claim was made by him and his intention was also rightly drawn by Ld defence counsel to his above statement and hence his above depositions made in this court are liable to be ignored being an improvement and cannot be helpful in establishing the identity of the accused as an exporter of the said consignment. Therefore, none of the above witnesses examined on record is helpful in fixing the liability of the accused as an offender.
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35. Now, the only other material or evidence which
remains to be considered for establishing the guilt of the accused is the alleged voluntary statement Ex. PW6/B U/S 67 NDPS Act made by the accused in which the accused had not only claimed the above consignor firm to be the sole proprietorship firm of his son Sh Rajesh Sharma, but had also acknowledged the shipment of the above consignment vide the above shipping documents. The above statement Ex. PW6/B of the accused was recorded before PW6 Sh K.K.Gupta on serving summons Ex. PW6/A. It has been argued on behalf of the DRI that the sole statement Ex. PW6/B of the accused is sufficient to establish his guilt and no corroboration thereof is required as the same had been made by him voluntarily and it is very much admissible in evidence. On the other hand, it has been argued by Ld defence counsel that the above statement in itself is not sufficient to establish the guilt of the accused in the absence of any independent corroborative evidence and further that the same was not voluntary and was extracted upon from the accused under threats and physical extortion etc. and it had already been retracted by the accused at the initial stage and even during the course of recording of his statement U/S 313 Cr.P.C. the accused had retracted from the same and had termed it to be a product of threats and coercion etc. It is also argued on behalf of the DRI that no evidence has been adduced on behalf of the accused to substantiate his above claim of being subjected to any threats or harassment etc. for making the above statement and even the alleged retraction of the accused of his above statement had not SC No. 13/05 DRI Vs Harbans Lal Sharma 31 come at the earliest possible opportunity.
36. On perusal of the case file it is found that two written retraction statements of the accused sent to two Ld. Predecessors of this court through the Jail Superintendent are a part of the record of the judicial file and one retraction was received in this court on 25.10.2004 and the date of receipt of the other retraction is not clear, though it is having one diary/entry No. 1014 dated 01.11.2004. However, one common reply of the DRI to the above two retraction statements of the accused was also filed on record on 18.11.2004. The alleged statement U/S 67 NDPS Act Ex. PW6/B of the accused was recorded on 25.09.2004, i.e. on the very next day of the night in which the above recalled consignment was inspected.
37. The argument of Ld SPP for DRI is that the alleged retractions of the accused had come at least after about one month of the making of the statement Ex. PW6/B and this statement was not retracted by the accused when he was produced in the court on 25.09.2004 and also on 08.10.2004 & 18.10.2004 during the remand proceedings. It is also being argued that the accused was even subjected to medical examination from RML Hospital vide application Ex. PW1/H and no physical injury was observed on his person vide his MLC dated 25.09.2004 mark A, but since the above MLC has not been proved on record according to the law of evidence the same cannot be looked into evidence and cannot be made the basis of acceptance of the above argument on behalf of DRI.
SC No. 13/05 DRI Vs Harbans Lal Sharma 32 In his above retraction statements, the contents of which are more or less similar, the accused had claimed that he was forcibly lifted from his house in the night of 24/25.09.2004 by few officials in civil dress and was taken to the Customs House where his written statement and signatures on various documents were forcibly taken, under threats and by giving beatings and further without disclosing the contents thereof. Even during the course of cross examination of the prosecution witnesses and also in his statement U/S 313 Cr.P.C. he had denied the voluntarily making of any statement by him and besides the above had also claimed that his family history was taken and he was forced to write the above statement as per their dictation. Though the above retractions of the accused have not been proved on record in the evidence as the accused has himself not stepped into the witness box as a defence witness, but the same cannot be ignored as these are a matter of record and are vital documents to arrive at a just conclusion in the matter.
38. Some case law has been relied upon from both the sides with regard to the admissibility, relevancy and the various other aspects concerning such a confessional statement of an accused U/S 67 of the NDPS Act. The Ld defence counsel has relied upon the judgments in cases Noor Aga Vs State of Punjab & Anr. 2008 (3) JCC (Narcotics) 135, Union of India Vs Bal Mukund & Ors. 2009 (2) Crimes 171 (SC) 15 and NCB Vs Aziz Ahmad 2010 (1) JCC (Narcotics) 6. On the other hand, Ld. SPP for DRI has referred to and relied upon SC No. 13/05 DRI Vs Harbans Lal Sharma 33 the judgments in cases Kanhaiya Lal Vs Union of India 2008 (1) JCC (Narcotics) 23 and M. Prabhu Dayal Vs The Assistant Director, Directorate of Revenue Intelligence JT 2003 (Suppl.2) SC 459. In the case of Kanhaiya Lal, Supra, a statement U/S 67 NDPS Act was held to be maintainable on the ground that it is not made by an ' a ccused ' and sections 24 to 27 of the NDPS Act are not applicable and hence such a statement can be acted upon being legal if the same is made voluntarily. In this case their Lordships had also discussed various earlier judgments on the subject and the legal inference which can be drawn from the above judgment, to my mind, is that if such a statement is found to be voluntarily made then no corroboration of the same is required and it can be acted upon, but, however, if such a statement has already be retracted by the accused then the court has to look for some corroborative evidence for convicting the accused on the basis of such a statement. In the case of M.Prabhu Dayal, Supra, also the Hon' b le Supreme Court had mainly dealt with the question of admissibility of such a statement and it was held that such a statement made to an officer of the DRI is admissible as he is not a police officer and such a confessional statement made by an accused was held to be admissible and was acted upon as under the circumstances of that case it was held to had been made voluntarily.
39. As far as the admissibility of such a statement is concerned, the Ld defence counsel has not disputed this SC No. 13/05 DRI Vs Harbans Lal Sharma 34 legal preposition and his only contention is that the statement Ex. PW6/B of the accused in this case had not been made voluntarily and since the same had also been retracted by him, it alone cannot be made the basis of his conviction as there is no independent corroborative evidence to establish the guilt of the accused. In the subsequent cases of Noor Aga and Bal Mukund, Supra, being relied upon by Ld defence counsel it had, however, been held by their Lordships of the Hon' b le Supreme Court that though such a statement, if voluntarily made, can be acted upon but conviction should not be based merely on the basis of such a statement without any independent corroboration and particularly when such a statement had already been retracted and there are also doubts regarding the same having been made voluntarily. Even in the recent case of Aziz Ahmed, Supra, decided by our own High Court their Lordships while discussing the prepositions of law laid down in various cases, including the case of Bal Mukund, Supra, had held that the conviction of the accused merely on the basis of such a confessional statement was not justified as such a statement was not found to be made voluntarily and further the same had already been retracted and there was no other evidence led by the prosecution on record to corroborate the same. In the above case of Noor Aga, Supra, being cited by Ld defence counsel their Lordships of the Hon ' b le Supreme Court had also dealt with the standards of the burden of proof in a case under the NDPS Act and while discussing the prepositions of law laid down in an earlier SC No. 13/05 DRI Vs Harbans Lal Sharma 35 case of State of Punjab Vs Baldev Singh, 1999 (2) JCC (SC) 348 it was held that in a case under an enactment like the NDPS Act where severe punishments have been prescribed, the burden of proof placed on the prosecution to prove its case beyond reasonable doubts becomes more stronger.
40. Since, in the instant case the alleged confessional statement U/S 67 NDPS Act Ex. PW6/B made by the accused was assailed by him on the ground that it was not voluntary and was extracted from him under threats and physical torture etc. and further since the same was already retracted by him during the investigation itself, the onus was on the prosecution to prove that the same was made voluntarily and this onus cannot be shifted upon the accused to prove that it was not his voluntary statement. Moreover, simply the exhibition of such a document cannot be treated as proof of the contents thereof as PW6 Sh K.K.Gupta, who had recorded the same, has not even made any depositions regarding any contents of such confessional statement or as to what was stated by the accused in his above statement. Hence, in view of the above, it is held that in the absence of any other connecting and corroborative evidence led by the prosecution on record, the above statement Ex. PW6/B of the accused cannot be made the basis of his conviction.
41. Further, there are also certain other circumstances which even raise doubts as to when and where the accused and the above witnesses, i.e PW2 Sh Rakesh Sharma, PW4 Sh Rajesh Sharma and PW14 Sh Surender Khosla, SC No. 13/05 DRI Vs Harbans Lal Sharma 36 were served with the summons for recording of their statements U/S 67 of the NDPS Act. PW6 Sh K.K.Gutpa, who has recorded the above statement Ex. PW6/B of the accused, in his statement made in this court has stated that the summons Ex. PW6/A were served upon the accused by him on 25.09.2004 at the IGI Airport and the same were for the appearance of the accused before him in the DRI Office. He has also stated that subsequently the accused had appeared before him in response to the above summons and his above statement Ex. PW6/B was recorded. Simultaneously he had also served the summons Ex. PW6/C to PW16 Sh Shashi Singh Khetwal and recorded his statement Ex. PW6/D in his office. During his cross examination he has stated that on receiving a call from IO/complainant Sh Deepak Mangotra he had gone to the Airport in the intervening night to serve the summons upon the accused, who was present there. However, no acceptable evidence is on record to show the presence of the accused at the Airport and even the IO/complainant in his statement has not made any such claim and has specifically stated in his cross examination that he had seen the accused Harbans Lal for the first time only in his office on 25.09.2004 in the early hours. His these depositions also falsify the claim of Sh K.K.Gutpa regarding the service of summons Ex. PW6/A upon the accused at the IGI Airport. Though in the statements U/S 67 NDPS Act of PW2 Sh Rakesh Kumar and PW4 Sh Rajesh Kumar Ex. PW2/A and Ex. PW3/C respectively they had stated earlier that on being informed about the recall of the above consignment, they had reached there at the Airport at about 4 AM, alongwith the accused. However, none of these SC No. 13/05 DRI Vs Harbans Lal Sharma 37 witnesses in their statements made in the court has stated that the accused had also accompanied them to the Airport at the said time and they had even made contrary depositions regarding the place of service of summons Ex. PW2/B and Ex. PW3/A respectively upon them for the recording of their above statements because according to PW2 the summons were given to him at the IGI Airport whereas PW4 has stated that the same were given to him in the DRI Office itself.
42. On further appreciation of the prosecution evidence it is also observed that PW6 Sh K.K.Gupta in his statement has also deposed that on 25.09.2004 he had not seen PWs Rajesh Kumar, Rakesh Kumar and Surender Khosla in the DRI Office and has also deposed that he had even not met PW3 Sh R.Roy and PW5 Sh D.P.Saxena, the two intelligence officers of DRI, in his office on that day, though the above two officers used to be seated with him. His above depositions even make the recording of the alleged voluntary statements U/S 67 NDPS Act of the above witnesses by the officers of DRI on that day to be doubtful, besides making doubtful the recording of the statement U/S 67 NDPS Act of the accused. Again PW6 in his statement has also stated that he had not warned the accused before recording his above confessional statement that he was not bound to make any such statement and if he wishes he can keep his silence and his above lapse also affects the admissibility of the said confessional statement because it is the constitutional right of the accused guaranteed under Article 20 of the Constitution not to be a witness against himself in any criminal proceedings, SC No. 13/05 DRI Vs Harbans Lal Sharma 38 unless he himself voluntarily decides to depose something.
43. There are also some other discrepancies and lacunae in the story of the prosecution which affect the credibility thereof. The original seal movement register regarding the issuance of seal of DRI 10, which was used in the sealing of the above pullandas, has not been produced in the court either during the examination of the IO/PW1 or in the examination of PW7 Sh S.K.Sharma, SIO, who had issued the above seal to the IO and a photocopy of the relevant entry of the above register brought on record and exhibited as Ex. PW1/M cannot be considered and read in evidence for want of production of the original thereof. The exhibition of this document during the statement of PW7, who had made the relevant entry regarding the issuance of the same, was though objected to by the Ld defence counsel but even then Ld SPP for DRI had not thought it proper to seek the production of the original thereof from the DRI. Again, PW7 in his statement made in this court has stated that he had received a call from the IO/complainant on the date of incident and thereafter he had reached at the Airport with the seal of DRI and the original seal movement register for the issuance of the abovesaid seal. However, IO/PW1 had made no such claim and in the absence of the same, the above depositions made by PW7 do not inspire any confidence. The non production of the original seal movement register is fatal for the prosecution story as the link evidence pertaining to the case property has gone missing.
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44. Further during the examination of the PW7 Sh
S.K.Sharma two letters written/signed by this witness have also been brought on record as Ex. PW7/A and PW7/B and both these letters are addressed to the export authorities of the Customs Department of Airport and are dated 24.09.2004, i.e the date on which the consignment was inspected after recall and the above contraband substance was detected. The letter Ex. PW7/A is for providing the shipping documents pertaining to the above consignment and the letter Ex. PW7/B is for inspection of the recalled consignment lying in the Flight Check Area of IGI Airport. PW7 has not specifically deposed as to how, when, where and under what circumstances the above two letters were written by him and he has simply identified his signatures thereon and has deposed nothing about the contents of these documents. He has also stated that the letter Ex. PW7/A was written by the IO/PW1, but the IO/PW1 is himself silent in this regard and Ex. PW7/A suggests that it was written by PW7. PW7 has also stated that he was informed by the recovery of the above Mandrex tablets only by the IO/complainant and only after receiving the above information, he had reached at the Airport and has also stated that when he reached there the panchnama proceedings were already in progress. He has also stated that he cannot recollect whether the above documents were signed by him before or after the sealing proceedings. If it is so, how the document Ex. PW7/B could had been signed by him at that time as this document was prepared even prior to the inspection of the cargo as it contains a request for permission to inspect the consignment. If the above SC No. 13/05 DRI Vs Harbans Lal Sharma 40 depositions of PW7 are believed, it appears that the entire documentation was subsequently fabricated and serious doubts have been created in the mind of the court regarding the genuineness of the documents and the trustworthiness of the prosecution story.
45. Though Ld SPP for DRI has also placed on record judgments in some other cases titled Balbir Kaur Vs State of Punjab 2009 (3) JCC (Narcotics) 3, Delias Christophe Guy Jeans Vs Customs 2004 (3) JCC 1747 and State of Punjab Vs Lakhvinder Singh & Anr. Crl. Appeal No. 32/09 decided by the Hon ' b le Supreme Court vide judgment dated 05.04.2010 , but it is observed that though the prepositions of law laid down in the abovesaid cases cannot be disputed but these cases have got no applicability to the facts and circumstances of this case because neither such prepositions are applicable to the case in hand nor the Ld defence counsel has argued any such grounds to which these prepositions pertain. Though in the written arguments filed on behalf of the DRI various other judgments have also been referred, but except the above few judgments copies of no other judgments have been made available to this court and from the short prepositions of law laid down in these cases, as reflected in the written arguments, the same are not found to be applicable to the peculiar facts and circumstances of this case.
46. In view of the above discussion, it is held that on SC No. 13/05 DRI Vs Harbans Lal Sharma 41 the basis of the evidence led by the DRI on record, as discussed above, it is not possible to hold the accused Harbans Lal Sharma responsible for exporting the above consignment of 27.7 KG of Methaqualone out of India and to hold him guilty and convict for the offence U/S 23 of the NDPS Act for which charge was framed against him. Though the above charge was framed against him also with reference to Section 29 of the NDPS Act, which pertains to being part of a criminal conspiracy to commit an offence punishable under the said Act, no conviction of the accused can also be arrived at with reference to Section 29 of the said Act for the reasons that the charge for the substantial section 23 of the said Act has not been proved against him and further that besides the accused, no other co-accused being the conspirator of such a conspiracy has been brought before this court and the presence of at least two such persons is required for substantiating any charge for any such criminal conspiracy. With the result, the accused Harbans Lal Sharma is being acquitted in this case of the abovesaid charges. His personal bond is discharged and his surety bond is also cancelled. However, it is found that his bond U/S 437A Cr.P.C has yet not been furnished. Hence, file be consigned to record room after taking the abovesaid bond.
Announced in the open
court on 28.04.2011 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 13/05 DRI Vs Harbans Lal Sharma
42
SC NO. 13/05
28.4.2011
Present: Sh Vikas Gautam Proxy Counsel for SPP for DRI.
Accused on bail.
Vide separate judgment announced and dictated in the open court today the accused Harbans Lal Sharma has been acquitted of the charges for the offence U/S 23 read with Section 29 of the NDPS Act as framed against him. His personal bond is discharged and his surety bond is also cancelled. However, it is found that his bond U/S 437A Cr.P.C has yet not been furnished. Hence, file shall be consigned to record room only after taking the abovesaid bond.
At request of the accused put up on 2nd May 2011 for furnishing of the above bond and further proceedings.
(M.K.NAGPAL)
ASJ-Spl Judge NDPS/Saket
28.4.2011
SC No. 13/05 DRI Vs Harbans Lal Sharma