Delhi District Court
Ncb vs . Rozen Cohen on 28 February, 2013
NCB Vs. Rozen Cohen
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 174/08
ID No. 02403R0974352008
Narcotics Control Bureau
Through Ajay Kumar,
Intelligence Officer, NCB, New Delhi
Versus
Rozen Cohen @ Halloo @ Cohen Rozen
S/o Sh. Aziz
R/o Parazon 4, 19355, Israel
Date of Institution : 24.12.2008
Judgment reserved on : 08.02.2013
Date of pronouncement : 28.02.2013
JUDGMENT
1. The Narcotics Control Bureau (hereinafter referred to as NCB) through its Intelligence officer (IO) Sh. Ajay Kumar, has filed the present complaint against the aforementioned accused under Section 23 read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as the NDPS Act).
2. Briefly stated, the averments made in the complaint filed against the accused are as follows: SC No.174/08 page 1 of 58 NCB Vs. Rozen Cohen
(a) On 27/7/2006 at about 1330 hours, Sh. Ajay Kumar, IO received a secret information from DHL office that one parcel, bearing airway bill no. 1403649730 destined for Telaviv, Israel and booked from Udaipur, lying at DHL Express Pvt. Ltd. office at 40, Okhla Industrial Estate III, New Delhi is suspected to contain hashish. The said information was put up before the Superintendent NCB, Sh. R.R. Kumar, who directed Sh. Ajay Kumar, IO to constitute a team and take necessary legal action.
(b) Sh. Ajay Kumar, IO along with Hawaldar Shiv Ratan then reached the DHL Express Pvt. Ltd. office at Okhla and the parcel in question was opened and searched in front of two employees of the DHL Express office namely, Sh. Mahesh Chand Pathak, Supervisor and Sh. Anish Khan, Supervisor. The parcel, on opening, was found to contain three golden plated wooden tables of different sizes. On opening the top of the tables it was found that some black substance wrapped in packets by khaki tapes was concealed therein. Six packets were found in smallest table and seven and nine packets were found in the other two tables. Small quantity of the said black substance was tested with the help of field testing kit and it gave positive result for hashish. The total weight of the entire substance was found to be 8.700 kg. Small quantities of the said substance were taken out from each of the packets and two representative samples of 25 grams each were made and were kept in two SC No.174/08 page 2 of 58 NCB Vs. Rozen Cohen polythene pouches which were further kept in white paper envelops and were given mark A1 and A2. Remaining hashish was further kept in another polythene and given mark A. Packing material i.e. chowkies, thermocol sheets, khaki tapes etc. were kept in green colour gunny bag and given mark B. Test memo in triplicate and seizure memo were prepared at the spot.
(c) Summons were issued to both the independent witnesses and they were asked to appear before the NCB to give their statements.
(d) Seizure report u/s 57 NDPS Act was submitted by the IO Sh. Ajay Kumar to his immediate superior officers.
(e) In pursuance of the summons issued to Anish Khan and Mahesh Chand Pathak, they presented themselves before Sh. P.C. Khanduri and Sh. Ajay Kumar, IO in the NCB office and tendered their statements on 27/7/2006 and 28/7/2006 respectively. Anish Khan in his statement interalia informed that the parcel in question was booked by one Vinod Vaish of M/s AFL Private Limited, Mahipalpur Extension ,New Delhi.
(f) During further investigation, summons u/s 67 NDPS Act were then served upon Vinod Vaish, who, in pursuance of the said summons, appeared in the NCB office and gave a statement that the parcel bearing airway bill no. 1403649730 had been booked from the office of AFL Private Limited, Udaipur, in the account of Sanskriti which is a franchise SC No.174/08 page 3 of 58 NCB Vs. Rozen Cohen located in Udaipur and is being run by one Sh. Savya Sachi Bhatnagar. Summons were then issued to the said Savya Sachi Bhatnagar who thereafter tendered his statement u/s 67 NDPS Act and interalia stated therein that on 23/7/2006, one Anshul had come to his office for booking of a parcel containing three wooden stools (chowkies) to Israel. He further disclosed that the parcel was found to be weighing 37 kg. and therefore an amount of Rs.16,000/ was fixed as courier charges but Anshul Dwivedi found the the said charges to be on the higher side and offered to pay a sum of Rs.12,000/ only. As per the said statement on 23.7.06 since the deal could not be finalised, Anshul went back along with the parcels and that in the meantime he (Mukherjee) thought that the stools could be sent at discounted price from the account of Sanskriti Expression, who were his regular clients and so the next day he called Anshul Dwivedi and agreed to send the parcels for Rs.12,000/ only and thereafter booked the parcel on 24/7/2006 in the account of Sanskriti Expression.
(g) During further investigation, summons u/s 67 NDPS Act were then served upon Anshul Dwivedi. Sh. Anshul Dwivedi, in pursuance of the said summons, appeared in the NCB office and inter alia gave a statement that the chowkies which have been recovered from the DHL office were consigned by him on the instructions of one Rozen Cohen.
SC No.174/08 page 4 of 58 NCB Vs. Rozen Cohen
As per the said statement, he was into the business of gem stones and was introduced to Rozen Cohen through one of his acquaintances namely David Cohen and that both David and Rozen had come to Udaipur on 08th09th June, 2006 and had placed an order of 9 stools on him and had also told him that the stools should have a special kind of cavity, which could be used for storing costly articles. This person also narrated to the NCB that pursuant to the said order, he placed an order for the manufacture of the chowkies on one Rayman Exports and that on 9th of July, 2006, Rozen again called him in a hotel at Udaipur and asked him to deliver the chowkies and that he had then on 10th July, 2006, delivered six chowkies (as the remaining three were not ready) to Rozen Cohen and that thereafter on the next day, on instructions of Rozen Cohen he again picked up the said chowkies and consigned one set of three chowkies to an address in Israel. He further disclosed that the other set of three chowkies that he took from the Rozen Cohen were still lying in his house. He also gave some details of the payments made by Rozen Cohen to him for the manufacture of stools and for their consignment. He also informed the NCB officials that he could identify Rozen Cohen as he was having his photograph in his mobile.
(h) Pursuant to the information given by Anshul Dwivedi on 31/7/2006 Sh. R.R. Kumar, Superintendent directed Sh. Ajay Kumar, IO to SC No.174/08 page 5 of 58 NCB Vs. Rozen Cohen constitute a raiding team and take necessary action. Thereafter Sh. Ajay Kumar along with Sh. P.C. Khanduri, Sh. Vikas Kumar and Sh. Manoj Kumar along with Anshul Dwivedi reached at the residence of Anshul Dwivedi at H.No. 3A8, HIG Colony, Hiran Magari, Sector 7, Udaipur, Rajasthan where Ansul Dwivedi produced six wooden tables/chowkies out of which in three tables, sixteen packets wrapped with khaki tapes were found. The packets were opened and searched in front of Anshul Dwivedi and his mother, Manjula Trivedi and on opening, were found to contain black colour hard substance in transparent polythene which on testing with the help of field testing kit gave positive result for hashish. The total weight of the substance was found to be 5.600 kg. Two samples of 25 grams each were drawn from recovered substance and were kept in small polythene pouches which were then further kept in white paper envelops and were given mark A1 and A2. Remaining hashish was further kept in another polythene and given mark A. Packing material i.e. three chowkies, were kept in gunny bag and given mark B. Test memo in triplicate and seizure memo were prepared.
(i) Seizure report u/s 57 NDPS Act was submitted by the IO Sh. Ajay Kumar to his immediate superior officers.
(j) Samples drawn at the time of both the recoveries were duly sent to the CRCL.
SC No.174/08 page 6 of 58 NCB Vs. Rozen Cohen (k) During further investigation, summons u/s 67 NDPS Act were
again served upon Anshul Dwivedi and Savya Sachi Bhatnagar and also upon Manjula Trivedi, Virender Singh, proprietor of M/s Rayman Exports and one Ravinder Tank and on the basis of the facts disclosed by the aforementioned persons, Sh. Ajay Kumar, IO obtained the passport number of accused Rozen Cohen along with copy of C form by fax from Manager, RTDC Hotel Kajari, Udaipur, Rajasthan and on 7/8/2006 a request for LOC was sent to FRRO from Zonal Director NCB against Rozen Cohen i.e. the accused.
(l) On 8/8/2006, the Zonal Director, NCB, DZU New Delhi received a letter from Sh. A.P. Siddiqui, Deputy Director NCB intimating him that on the request of Israeli authorities, the Director General NCB had ordered for controlled delivery of the parcel that had been seized from DHL, to Israel. The Zonal Director Delhi was instructed to carry out the controlled delivery operation in consultation with Zonal Director, NCB, Mumbai. A memorandum of understanding with respect to the procedure for the delivery of contraband was also executed and signed by the authorized signatory of Israel police and Sh. A. Shankar Rao, Zonal Director.
(m) On 09.08.2006, the IO opened the seals of the pullanda mark A and mark B in the presence of P.C. Khanduri, Malkhana Incharge and a SC No.174/08 page 7 of 58 NCB Vs. Rozen Cohen panchnama in this regard was prepared and thereafter the recovered hashish of 8.7 Kg and the tables in which the same was concealed was handed over to Avnish Kumar IO, who then further handed it over to the Israeli officials.
(n) On 04.07.2008, NCB, Delhi received information from Joint Deputy Director/SC that on account of the LOC opened against accused Rozen Cohen, he had been apprehended on his arrival from Moscow at CSI Airport, Mumbai on 04.07.2008. Immediately summons were issued to the accused u/s 67 NDPS Act directing him to appear in the NCB office forthwith. The accused then appeared in the NCB office and tendered a statement u/s 67 NDPS Act admitting therein that he had given the chowkies to Anshul for consignment and that David had concealed Hashish in the same in his presence.
(o) Since the accused appeared to have committed offences punishable under the provisions of NDPS Act, he was arrested on 4/7/2008 and was thereafter got medically examined. Intimation of arrest of accused was sent to the Ministry of External Affairs. Arrest report u/s 57 NDPS Act was submitted by the IO Sh. Akhilesh Kumar to his immediate superior officers. After the report from the Chemical Examiners was received confirming that the seized substance was hashish, the present complaint was filed.
SC No.174/08 page 8 of 58
NCB Vs. Rozen Cohen
3. On the basis of material on record, charges were framed against the accused u/s 20 (b) (ii) (C) and 23 (c) r.w.s. 28 of the NDPS Act, for having acquired and having made an attempt to export hashish outside India.
4. The prosecution in order to prove its case has examined 24 witnesses.
5. PW1 Sh. Ajay Kumar and PW17 Sh. Shiv Ratan Hawaldar, being members of raiding party have more or less reiterated the assertions made in the complaint. PW1 Sh. Ajay Kumar is the main Intelligence Officer who has conducted the investigation in this case. This witness has inter alia deposed that on 27/7/2006 he had received a secret information in the present case and the said secret information has been exhibited as Ex.PW1/A. The test memo deposed to have been prepared by PW1 has been exhibited as Ex. PW1/B. Various summons issued by the IO to the persons called for enquiry and who tendered their statements u/s 67 of NDPS Act have also been duly exhibited. PW1 has further deposed that on 1/8/2006 he along with PW6 Sh. Vikas Kumar, PW10 Sh. P.C. Khanduri and PW18 Sh. Manoj Kumar had left for Udaipur along with Sh. Anshul Dwivedi at his residence. As regards the recovery proceedings at Udaipur, the seizure memo prepared by PW1 at Udaipur has been exhibited as Ex.PW9/9. The summons issued by this witness to various other persons during investigation have also been duly SC No.174/08 page 9 of 58 NCB Vs. Rozen Cohen exhibited as per the deposition of this witness. According to this witness, on 9/8/2006 he had prepared a panchnama Ex.PW10/8 of the case property seized at Okhla and handed over the same to Israel Police Authorities through Sh. Avnish Kumar. Summons u/s 67 NDPS Act deposed to have been issued by this witness to accused have been exhibited as Ex.PW1/K.
6. PW2 Sh. S.K. Mittal, Chemical Examiner has proved the chemical analysis reports with respect to the samples deposited with the C.R.C.L. and the same have been exhibited as Ex. PW2/3 and Ex.PW2/4. As per his deposition, the samples in question were examined by Sh. Shyam Singh under his supervision and had tested positive for Charas.
7. PW3 Sh. A. Shankar Rao, Zonal Director has inter alia deposed that he had received the intimation from Head Quarter regarding controlled delivery of hashish. This witness has further deposed that he had authorized IO Avnish Kumar to deliver the packet of the contraband to an IO of Bombay Zonal Unit for delivery to Israel. LOC has been opened in the name of accused. The paper regarding opening of LOC against accused is Ex.PW3/3 and letter dated 17/1/2007 in connection with the LOC is Ex.PW3/4.
8. PW4 Mahesh Pathak who is stated to have witnessed the entire recovery proceedings at DHL office, has supported the version put SC No.174/08 page 10 of 58 NCB Vs. Rozen Cohen forward by the Investigating Officer and has identified his signatures on the seizure memo, airway bill and copy of invoice. He has also deposed that in pursuance of the summons served upon him he had appeared in the office of the NCB and had tendered his statement Ex. PW4/5.
9. PW5 Akhilesh Mishra, IO has inter alia deposed that on 31/7/2006, in pursuance to the summons issued to Anshul Dwivedi by PW1 Sh. Ajay Kumar, IO, the witness Anshul Dwivedi had appeared before him and had tendered his voluntarily statement in his own handwriting, Ex.PW5/2. This witness has further deposed that Anshul Dwivedi had revealed during the course of his statement that he could identify the accused as he had his photograph in his mobile. A print out of the said photo Ex.PW5/2 was taken which was identified by Anshul Dwivedi in the presence of PW5. This witness has further deposed that after recording the statement, he put up information before Superintendent Sh. R.R. Kumar on 31/7/2006 that certain wooden chowkies booked by accused were lying at the residence of Anshul Dwivedi. The information has been exhibited as Ex.PW5/3. This witness has also inter alia deposed that he had arrested the accused in the presence of PW7 Sh. Ram Babu Sharma and the arrest memo cum jamatalashi memo in this regard has been exhibited as Ex.PW5/4. The arrest report tendered by him u/s 57 of the NPDS Act has been exhibited as Ex.PW5/C. SC No.174/08 page 11 of 58 NCB Vs. Rozen Cohen
10.PW6 Sh. Vikas Kumar, though being a member of raiding team has not deposed in detail about the search and seizure proceedings and has merely deposed that the same were conducted by PW1 Ajay Kumar. In addition, PW6 Vikas Kumar has deposed that he had also recorded the statement of Manjula Dwivedi at the spot.
11. PW8 Sh. Jai Bhagwan, IO has merely signed the forwarding letter sent to CRCL for analysis of the samples for THC as per the orders of the court. The letter has been exhibited as Ex.PW8/1.
12.PW9 Sh. R.R. Kumar has inter alia deposed that on 27/7/2006, he was posted as Superintendent, NCB DZU and on that day, PW1 Sh. Ajay Kumar had put up before him a secret information and after going through the information he had directed him to take necessary action and he had issued departmental seal of NARCOTIC CONTROL BUREAU DZU3 to PW1. As per this witness, he had signed on the seal movement register with respect to the handing over and return of the seals to and from the IO Sh. Ajay Kumar. He has then further deposed that on the same day, PW1 Sh. Ajay Kumar put before him report u/s 57 NDPS Act Ex.PW9/C regarding seizure of 8.70 kg. of hashish from the parcel. As per this witness, on 28/07/2006, he had forwarded the sample alongwith test memo (copy of Test memo Ex.PW9/D) to CRCL vide forwarding letter Ex.PW2/1 through Hawaldar Shiv Ratan. This witness has further SC No.174/08 page 12 of 58 NCB Vs. Rozen Cohen deposed that on 31/07/2006, PW1 Sh. Ajay Kumar had put up before him an information and after going through the information he had directed him to take necessary action and had issued him the departmental seal of NARCOTIC CONTROL BUREAU DZU3. As per this witness, he had signed on the seal movement register with respect to the handing over and return of the seals to and from the IO Sh. Ajay Kumar. He has then further deposed that on 2/8/2006, PW1 Sh. Ajay Kumar put before him report seizure report u/s 57 NDPS Act Ex.PW9/G regarding recovery of 5.60 kg. As per this witness, on 03/08/2006, he forwarded the samples alongwith test memo to CRCL vide forwarding letter Ex.PW2/2 to CRCL and on 05/07/2008 PW5 Sh. Akhilesh Mishra put before him arrest report u/s 57 NDPS Act Ex.PW5/6 and be intimated the Ministry of External Affairs regarding the arrest of accused vide Ex.PW8/J and H.
13.PW10 Sh. P.C. Khanduri, has inter alia deposed that on 27/07/2006 he was working as Intelligence Officer Malkhana Incharge in NCB, DZU, R.K. Puram. He has deposed on similar lines as the main IO Sh. Ajay Kumar. He has also deposed that the entire case property and test memo in triplicate were deposited with him in the Malkhana and the entries to this effect in the Malkhana register have been exhibited as Ex.PW10/1 and Ex.PW10/2. In addition, PW10 has deposed that he had also recorded the statements of Anish Khan, Vinod Vaish, Savya Sachi Bhatnagar and SC No.174/08 page 13 of 58 NCB Vs. Rozen Cohen Ravinder Tank. He has further deposed he had recorded voluntary part statement of accused as per his dictation in the presence of Sh. Harcharan, IO. The said statement has been exhibited as Ex.PW10/8.
14. PW11 Sh. Virender Singh has inter alia deposed that he is in the business of handicraft and stone articles and that in the year 2006 one Anshul Dwivedi of M/s Rama Arts and Exports had approached him for the preparation of some chowkies and as per orders given by him he had manufactured nine chowkies. He has also deposed that the said chowkies were manufactured under his supervision as per the specification and that the designs given by Anshul Dwivedi. He has also inter alia deposed that when Anshul Dwivedi came to take delivery of the aforesaid 9 chowkies he was accompanied by the accused and that the accused had himself checked the chowkies along with him. He has also deposed that though he had received a summon from the NCB to appear at their R.K. Puram office on 4/8/2006, he could not appear as he was busy in some business at Udaipur and on his behalf his son Harneet Singh had appeared before NCB and had tendered a statement.
15.PW12 Sh. Ravinder Tank has inter alia deposed that in the year 2006 one David Cohen @ Doodhi, one of his customers from Israel has met him in relation of the supply of semi precious stones and that it is he who had got Anshul Dwivedi introduced to him. He has also deposed that SC No.174/08 page 14 of 58 NCB Vs. Rozen Cohen sometime in the year 2006 he had introduced Anshul Dwivedi to the said David Cohen while he was staying in Delhi and at that time one Halloo was also present along with David and he has identified the accused as Mr. Halloo.
16.PW13 Sh. K.K. Singh, Lab Assistant, has inter alia deposed that he had received sample, test memo forms and forwarding letters from Shiv Ratan on 28/7/2006 and 3/8/2006 respectively and had issued receipts Ex.PW9/E and Ex.PW9/I respectively.
17. PW14 Sh. Vinod Kumar Vaish, has inter alia deposed that in the year 2006 he had been working with AFL Pvt. Ltd. at Mahipal Pur who were authorized agents for collecting the documents and the parcels for DHL and he has identified the airway bill Ex.PW4/3, vide which he parcel was booked. He has further stated that pursuant to the receipt of summons Ex.PW4/3 from the NCB office, Delhi he had tendered his statement Ex.PW14/1 in the NCB office.
18. PW15 Sh. Savyasachi Bhatnagar has inter alia deposed that on 23/7/2006 Anshul Dwivedi had come to his office for booking of one parcel containing three wooden stools to Israel. As per the deposition of this witness, the chowkies/stools were weighed and were found weighing 37 kg. and that he had demanded an amount of Rs.16,000/ from Anshul Dwivedi which he found on a higher side and proposed to pay only Rs.
SC No.174/08 page 15 of 58
NCB Vs. Rozen Cohen
12,000/ for the booking of the said parcel and therefore did not book the parcel on 23/7/2006. This witness has further stated that he had a regular customer namely M/s Sanskriti Expressions and that he then informed Anshul Dwivedi that the parcel could be booked in their account on discounted charges of Rs.12,000/, to which Anshul Dwivedi agreed and then came again on 24/7/2006 to book the parcel. He has further stated that pursuant to the receipt of summons Ex.PW15/1 from the NCB office, Delhi he had tendered his statement Ex.PW10/5 in the NCB office giving therein the aforementioned details. He has also identified the bill and the invoices prepared by him on the judicial record.
19.PW16 Sh. Harcharan Singh has inter alia deposed that in pursuance of the summons served upon accused by PW1, he had appeared before him in the office of the NCB and on the request and dictation of accused his statement was written by PW10 and the said statement has been exhibited as Ex. PW10/8.
20.PW17 Sh. Shiv Ratan has inter alia deposed that he had taken the samples of the present case to CRCL on 28/7/2006 and 3/8/2006 and had deposited the same with PW K.K. Singh, CRCL Pusa and the receipts issued by the said officer of CRCL have been exhibited as Ex.PW9/E and I. As per the further deposition of this witness, on 31/10/2008 as per court order he had taken two samples both mark A1, to CRCL and had SC No.174/08 page 16 of 58 NCB Vs. Rozen Cohen deposited the same with Mr. Bhuwan, CRCL Pusa and the receipts issued by the said officer of CRCL has been exhibited as Ex.PW17/1.
21. PW18 Manoj Kumar has deposed on similar lines as the main IO Sh. Ajay Kumar. In addition, this witness has further deposed that in pursuance of the summons issued to Anshul Dwivedi by PW1 Sh. Ajay Kumar, IO, the public witness Anshul Dwivedi had appeared before him and had tendered his voluntarily statement, Ex.PW18/1.
22.PW19 Sh. Avnish Kumar, IO has inter alia deposed that on 8/8/2006 he had been directed by Sh. Shankar Rao, Zonal Director, NCB to undertake the controlled delivery of a packet destined for Israel and had handed over the same to Zonal Director, Mumbai. As per this witness pursuant to the said instructions, he collected the packet from Delhi and handed over the same to an Israel official at Mumbai Airport, in presence of an IO of Mumbai Zonal unit. The request for controlled delivery of the contraband has been exhibited, as per the deposition of this witness, as Ex.PW3/1 and the handing over report prepared by this witness has been exhibited as Ex.PW19/1.
23.PW20 Smt. Manjula Trivedi is the mother of Anshul Dwivedi and she has inter alia deposed that on 01/08/2006 at about 2:00 PM, NCB team along with his son had come to their house and had got recovered 6 chowkies out of which 16 packets of hashish were recovered from three SC No.174/08 page 17 of 58 NCB Vs. Rozen Cohen chowkies lying in their house. She has also more or less reiterated the assertions made in complaint on search and seizure proceedings conducted by NCB. The statement tendered by this witness u/s 67 NDPS Act before the NCB official has been exhibited as Ex.PW6/1.
24.PW21 Sh. Anshul Dwivedi has inter alia deposed that in the year 2006 he had started his own business of export of Gem Stones and that the accused had placed an order with him and had instructed him that 9 meenakari chowkies be made and sent to Israel. This witness has inter alia deposed that the accused had given him a specific design for the chowkies and had told him that there should be a cavity in the top of the chowkies, which could be used for storing passport and jewellery as there was problem of income tax and theft in Israel. As per this witness, based on the said order, he got the chowkies made from one sardarjee who used to run a company in the name of Rayman Arts and then delivered these chowkies to the accused Halloo in the hotel of RTDC, where he was staying. He has also stated that the remaining three chowkies had not been prepared by that time and he had therefore delivered only six chowkies. As per the deposition of this witness, the accused on the next day of the delivery again contacted him and told him to courier the chowkies as the courier whom he had contacted was charging high rates. He has further deposed that accused gave him some amount to deliver the SC No.174/08 page 18 of 58 NCB Vs. Rozen Cohen chowkies which was sufficient to send three chowkies and that as per the instructions of the accused he then asked the DHL office at Udaipur for consigning the three chowkies for delivery at Israel. As per the deposition of this witness the chowkies in question had been consigned by him somewhere between 2125 July, 2006 and that on 30/7/2006 he had received a summon from the NCB office directing him to appear in the NCB office at Delhi for purposes of inquiry. He has also deposed that pursuant to the said summons, he went to the NCB office at Delhi and tendered his statement Ex.PW5/1 explaining therein the events which led him to courier the chowkies. He has also further deposed that on the asking of the NCB officials he had informed them that he had the photograph of the person who had ordered chowkies, downloaded in his mobile. He has further deposed that thereafter he along with the NCB officials reached his house at Udaipur on 1/8/2006 and that from the six chowkies lying in his house, 5.6 kg. Of hashish was recovered from three of the said chowkies. He has then deposed about the search and seizure proceedings conducted by the NCB officials.
25.The entire incriminating evidence produced on record by the prosecution was put to the accused and his statement was recorded u/s 313 Cr.PC. In the said statement, though the accused has admitted that in June, 2006 he had come to Delhi and he was introduced to this person Anshul by David SC No.174/08 page 19 of 58 NCB Vs. Rozen Cohen and David had told him that Anshul deals in gem stones, he has stated that he had never placed any order upon the person Anshul for the making of chowkies. His stand is that he did not like the gem stones shown to him by Anshul and that therefore he had not entered into any business transaction with him. The accused has reiterated the said statement by stepping into the witness box also and by deposing the same facts on oath. In particular, in his evidence as DW1, he has deposed inter alia that in 2006 he had come to Delhi and had met one Israeli, David who had introduced him with one person Anshul and told him that Anshul was in a business of gem stones. According to his deposition, about a month after June, 2006, he had received a call from David who asked him to come to Udaipur if he wished to invest in gem stones and that therefore he went in July, 2006 to Udaipur where Anshul and David took him to some shop of gem stones. He has further deposed that after visiting the said shop, he went to his hotel and then left for Goa and then one month thereafter he left India and came back to India only in July, 2008 and as soon as he landed in India on 04.07.2008, he was told by the Immigration Officer that he was wanted in some case in Delhi. He has also gone on to depose that thereafter he was taken to Delhi and was taken into custody by the NCB officials who then made him to sign many blank papers and also made him to write certain lines. As per the SC No.174/08 page 20 of 58 NCB Vs. Rozen Cohen deposition of the accused, the day he was produced before the court for remand, he had informed the judge the he does not know how to read and write English and that he had been made to sign many documents. He has also deposed that he was informed by Ld. Judge that he must give his retraction in writing and accordingly he had sent his retraction from the jail. The said retraction has been proved as Ex.DW1/C. According to the accused, while he was in NCB office he had been beaten and threatened. The accused was duly crossexamined by Ld. SPP for NCB and it was suggested to him that it was he who had placed the order for manufacture of nine chowkies to Anshul and that he was the one who had attempted to export the hashish outside India by concealing the same in the chowkies.
26.After the conclusion of Defence Evidence, Ld. SPP for NCB has advanced final arguments on behalf of the prosecution and Ld. Counsel Sh. Y.K. Saxena has advanced arguments on behalf of the accused. Ld. SPP Sh. Manchanda has contended that the deposition of the prosecution witnesses and the documentary evidence brought on record sufficiently proves the guilt of the accused. According to him, the fact that independent witnesses have witnessed the entire recovery proceedings and have deposed the facts with respect to the same is sufficient to hold that the prosecution has been able to prove its case against the accused beyond all reasonable doubt. He has also pointed out that the statement SC No.174/08 page 21 of 58 NCB Vs. Rozen Cohen tendered by the accused u/s 67 NDPS Act also proves his complicity in the present case.
27. The contentions of the defence inter alia are that:
(i) the failure of the prosecution in producing the chowkies and the contraband allegedly recovered on 27.07.2006 is fatal to their case, more so when they have not been able to prove beyond reasonable doubt that the said contraband was handed over to the Israel police, pursuant to a proposal of controlled delivery;
(ii) the tampering in the case property cannot be ruled out at all in view of the depositions of the main seizing officer PW1. Various contradictions have also been pointed out by the Defence Counsel in the depositions of the prosecution witnesses to contend that the said discrepancies prove that the case of the prosecution is false.
(iii) there are various discrepancies in the testimony of the star witness of the prosecution, Anshul Dwivedi and that therefore the accused cannot be held guilty on the basis of the statement of this witness alone. It is also the contention of the defence that the NCB had no right to make Anshul Dwivedi a witness in the present case when the contraband allegedly was recovered at his instance and from his house. According to the Ld. Defence counsel, it is Anshul who should have been made an accused and that the investigating agency had no powers to assume that SC No.174/08 page 22 of 58 NCB Vs. Rozen Cohen Anshul was innocent and that he had given a correct statement implicating the accused. It is the contention of the defence that infact it was Anshul and David who had in conspiracy with each other decided to export hashish by concealing the same in the chowkies and when they were caught, Anshul Dwivedi in order to save himself and David, gave the name of the accused and the investigating agency blindly accepted the statement of Anshul Dwivedi without even investigating or verifying the contents of the same.
(iv) the statement tendered by the accused u/s 67 NDPS Act cannot be termed to be his voluntary statement and that therefore it cannot be relied upon by this court to determine his guilt.
In support of his contentions, Ld. Defence counsel has relied upon the following judgments:
● Valsala Vs. State of Kerala 1993 Supp (3) 665 SCC. ● State of Rajasthan Vs. Daulat Ram 1980(3) SCC 303. ● Eze Val Okeke Vs. NCB 116 (2005) DLT 399.
● Noor Aga Vs. State of Punjab JT 2008(7) SC 409. ● Union of India Vs. Bal Mukund & Ors. 2009(2) Crimes 171 (SC). ● Shiva Karam Payaswami Tewari Vs. State of Maharashtra JT 2009 (1) SC 625.
● CBN Vs. Bahadur Singh 2011(1) JCC (Narcotics) 59. ● Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat (2000)2 SCC
513.
● Jitender & Anr. Vs. State of M.P. 2003(3) JCC 1502.
SC No.174/08 page 23 of 58
NCB Vs. Rozen Cohen
28.In rebuttal, Ld. SPP has contended that the deposition of Anshul and the statement tendered by the accused u/s 67 NDPS Act is sufficient to hold the accused guilty in the present case. He has submitted that minor discrepancies in the depositions of the prosecution witnesses does not make the case of the prosecution doubtful at all. As regards the non production of the part of the case property before this court, the contention of Ld. SPP is that the prosecution has been able to prove that the said contraband has been delivered to Israel as a part of controlled delivery. Ld. SPP has relied upon certain judgments of Hon'ble Supreme Court to contend that even if the investigating agency has not properly investigated some of the facts narrated by Anshul Dwivedi, the same itself does not entitle the accused to claim acquittal, for the investigating agency has otherwise completely proved its case against the accused.
29.In support of his contentions, Ld. SPP for NCB has relied upon the following judgments:
● Gajanand Vs. State of Rajasthan 2012(1) CCC 155. ● Balraj Singh Vs. State of Punjab PLR(1983) 85 P&H 373 ● Malkiat Singh Vs. State of Punjab (2207) 3 RCR(Cri) 395. ● Ramesh Kumar Maingi Vs. Revenue Intelligence Crl. Appeal No. 347 DCB of 2007 ● Mohd. Muzam @ Thambi Vs. State of Madras Crl. Appeal No. 1368 of 2004.
● Ram Singh Vs. CBI (2011) 11SCC 347 SC No.174/08 page 24 of 58 NCB Vs. Rozen Cohen ● Kanhaiyalal Vs. Union of India (2208)4 SCC 668 ● Prithipal Singh Vs. State of Punjab (2012) 1SCC 10 ● Custom Vs. Konan Jeans (2012) 186 DLT 379 ● Siddiqua Vs. NCB 2009(93) DRJ 386 ● Gita Lama Tamang Vs. State (GNCT) of Delhi 2007(93) DRJ 813 ● Visveswaran Vs. State (2203) 6 Supreme Court Cases 73 ● State of Himachal Pradesh Vs. Tara Dutt & Anr. AIR 2000 Supreme Court 297 ● Rotash Vs. State of Rajasthan 2007 CRI. L.J. 758
30.I have given careful consideration to the submissions made by both the Ld. Counsels and have gone through the entire record of this case and the judicial dicta referred to by both the Ld. Counsels. As narrated hereinabove, present is a case where two sets of recoveries have been made according to the investigating agency 8.7 Kg of hashish concealed in 3 wooden chowkies at the courier office of DHL, Okhla and another 5.7 Kg of hashish concealed in 3 wooden chowkies from the house of Anshul Dwivedi, PW21 at Udaipur. Though as per the assertions made in the complaint, the contraband that was recovered in the DHL office alongwith its packing material i.e. three wooden chowkies was sent to Israel as a controlled delivery, during the trial it has come on record that though the contraband sent to Israel was the one that was recovered from the office of DHL, the chowkies that were sent were the ones that were recovered from the house of Anshul Dwivedi. As per the contention of SC No.174/08 page 25 of 58 NCB Vs. Rozen Cohen Ld. SPP Sh. Manchanda, it is only an inadvertent slip made by the Intelligence Officers and that the said error in no way has prejudiced any rights of the accused. He has also placed on record about 56 judgments to contend that the non production of the case property that was recovered from the office of DHL does not entitle the accused to claim that he cannot be convicted for the said recovery. Though this court is of the considered opinion that in view of the judicial dicta relied upon by the Ld. SPP it is to be held that the non production of the case property in every case will not lead to the acquittal of an accused, it is also to be noted that in all the judgments relied upon by the Ld. SPP, the prosecution was able to prove conclusively that all the necessary precautions had been taken for proper storage of case property to ensure that there had been no possibility of the tampering of case property. The same however cannot be said in the facts of the present case. It will have to be taken note of that though as per the assertions of the investigating agency, it was on 09.08.2006 that PW1 Ajay Kumar had opened the parcel/pullanda containing 8.7 Kg of Hashish and three wooden stools seized from the office of DHL Courier after taking the same from the malkhana, there is no entry in the malkhana register with respect to the said movement of the contraband. The Malkhana incharge at the said time, P.C. Khanduri, PW10 in his deposition had admitted that no such SC No.174/08 page 26 of 58 NCB Vs. Rozen Cohen entry was made in the malkhana register. Further it is interesting to note that as per the deposition of this witness, at no time whatsoever the case property recovered from the house of Anshul Dwivedi at Udaipur was taken out from the Malkhana a fact which is contrary to the deposition of PW1 Ajay Kumar who has deposed before this court that inadvertently, the chowkies that were seized from Udaipur were given by malkhana incharge to him and the same were sent to Israel. In fact the error committed by the NCB in this regard was discovered by the prosecution only during the deposition of PW1 Ajay Kumar before this court. During the deposition of this witness, a plastic gunny bag having 40A/06 and mark B written on it was produced before this court. A paper slip was also found affixed on the same and the signature of Anis Khan, Mahesh Chand Pathak and Ajay Kumar were found appearing on the said paper slip. It is at that stage when it came to the notice of the witness that the paper slip was bearing the signature of panch witnesses who had witnessed the search at DHL office, that he realised that wrong gunny bag mark B had been opened on 09.08.2006 and the wooden chowkies contained therein sent to Israel. As per his deposition, this gunny bag was prepared by him at the office of DHL Courier and that he had only written 40/06 on the same and that he is not aware who has added the alphabet 'A' after the figure 40. Thus neither he nor P.C. SC No.174/08 page 27 of 58 NCB Vs. Rozen Cohen Khanduri have been able to explain as to how the gunny bag had the markings 40A/06 bearing on it. Further though PW1 Ajay Kumar in his testimony has stated that when he had opened the pullandas relating to the recovery made at the office of DHL courier, he had handed over the paper slips, the cloth pullanda, etc to the MHCM P.C. Khanduri and it was only the contraband and the chowkies that were handed over to Israeli Authorities for controlled delivery, the said paper slips or the cloth pullandas have not been produced before this court at all. It has been vehemently contended by Ld. SPP Sh. Manchanda that the said ommission on the part of the prosecution do not take away anything from the charges for which the accused is facing trial, for according to him this court should not at all doubt that the contraband recovered from the courier parcels were sent to Israel through controlled delivery in view of the Memorandum of Understanding Ex.PW3/2 executed between the Zonal Director, NCB, A. Shankar Rao and one authorized signatory of the Israeli police in public security. No doubt the said contention of Ld. SPP has some force but it is not at all understandable as to why such a casual attitude was adopted by the NCB during this entire procedure of controlled delivery and why the prosecution witnesses have not been able to satisfy this court that the proper procedure for delivery was followed. It will not be out of place to point out that though it was the Zonal SC No.174/08 page 28 of 58 NCB Vs. Rozen Cohen Director, A. Shankar Rao who assertedly had executed the MOU Ex.PW3/2, in his crossexamination before this court he was so confused with respect to the procedure of controlled delivery that at one point, he has deposed that the hashish that was sent to Israel through controlled delivery was recovered from some other source in other words, he was not even able to depose consistently that the contraband that was sent to Israel was the one that was recovered from the DHL office. An official of the rank of Zonal Director is expected to stand the test of cross examination and is also expected to remember such important details. Even with respect to the actual delivery of the contraband to the authorized Israeli official, the evidence brought on record is absolutely unsatisfactory. According to the deposition of PW1 Ajay Kumar, the contraband was sent to Israeli officer through Avnish Kumar (PW20) but admittedly the signatures of Avnish Kumar do not at all appear on PW10/8, i.e. the panchnama that was assertedly prepared by PW1 Ajay Kumar with respect to the taking out of the contraband from the malkhana in fact one Israeli police official (whose name has not been disclosed to this court) has witnessed the said panchnama. Further though as per Ex.PW3/1, it is recorded that the sealed packet was handed over to Israeli official at Bombay airport on 09.08.2006, another document Ex.PW19/1 records that the parcel in question was handed over SC No.174/08 page 29 of 58 NCB Vs. Rozen Cohen to him on 10.08.2006.
31. Ld. Defence counsel has also pointed out that even the recovery from the house of Anshul Dwivedi at Udaipur is not beyond doubt for though according to the version put forward by the prosecution the said recovery was effected on 1/8/2006, PW21 Anshul Dwivedi in his cross examination has stated that the said recovery was infact effected before he went to the office of NCB in Delhi i.e. before 31/7/2006. Admittedly this witness in his cross examination has deposed that one person from NCB had come to his residence in Udaipur on either 29th or 30/6/2006 in afternoon and had disclosed to him that some recovery of contraband have been effected from some chowkies in Delhi and that on this date itself Anshul Dwivedi had disclosed to the said officer that similar type of chowkies i.e. 3 in number were lying in his house. According to the deposition of Anshul Dwivedi the said chowkies were checked by the said officer at that time itself in his and his mother's presence and from there hashish was recovered and then the said chowkies and hashish were sealed and were taken along with him and the said NCB official to Delhi. The said discrepancy in the deposition of Anshul Dwivedi is sought to be explained by Ld. SPP Sh. Manchanda by stating that perhaps this witness got confused and that the said discrepancy must be ignored for all the other witnesses to the recovery have withstood the test of cross SC No.174/08 page 30 of 58 NCB Vs. Rozen Cohen examination. In the considered opinion of this court the said discrepancy is not something minor which can be brushed aside so lightly. As regards the deposition of the other members of the raiding team who had allegedly witnessed the recovery of the contraband from the house of Anshul Dwivedi, it cannot be stated that they have withstood the test of cross examination. One of the said members PW18 Manoj Kumar has stated in his cross examination "I do not remember the shape of the recovered charas from the chowkies. I cannot tell whether it was in the form of sticks or a square shape. I do not know the number of pieces recovered out of the sixteen packets recovered from the chowkies. I do not know how the samples were drawn from the seized charas by Ajay Kumar, IO." The other witness PW10 P.C. Khanduri when asked about the shape of charas has stated that probably it was rectangular slab but he cannot tell the length or width of the said slab. He has also unable to answer clearly as to what sampling procedure was followed by the IO Ajay Kumar. The third witness PW 6, Vikas Kumar has been unable to answer many of the questions put to him in the cross examination and even in his examination in his chief has not described the seizure and sampling procedure in detail. The aforementioned lacunae in the depositions of the members of the raiding team and the SC No.174/08 page 31 of 58 NCB Vs. Rozen Cohen specific deposition of Ansul Dwivedi do lead to an inference that search, seizure proceedings and in particular the sample procedure were not conducted at the house of Ansul Dwivedi in the manner asserted by the prosecution. It cannot be at all held that the said inference does not at all make a difference in the case of the prosecution. The Hon'ble Supreme Court, recently in its judgment pronounced in a case titled as Kuldeep Singh Vs. State of Punjab reported in 2011 Cr.L.J. 2672 has held that non collection of samples at the initial stage of seizure is a defect which could not have been cured by opening the bags later on and that the entire search and seizure procedure in such facts stand vitiated and the accused is liable to be acquitted.
32.Now even despite the aforementioned discrepancies, if the contention of Ld. SPP that the said lacunae in the case of the prosecution do not effect the factum of recovery of hashish, is accepted, let us now examine whether the prosecution has been able to prove, beyond reasonable doubt that the hashish recovered from the DHL courier office and that from the residence of Anshul Dwivedi at Udaipur, was infact, acquired by the accused and given to Anshul Dwivedi for exporting the same to Israel. Now to prove this allegation that the contraband i.e hashish was concealed in the wooden chowkies by the accused, the sole material/ evidence produced by the prosecution is the deposition of PW21 Anshul SC No.174/08 page 32 of 58 NCB Vs. Rozen Cohen Dwivedi. This witness, has inter alia, deposed on oath in his examination in chief before this court, that in the year 2006 he had started his own business of export of Gem Stones and that the accused had placed an order with him and had instructed him that 9 meenakari chowkies have to be got made and sent to Israel. He has also stated that the accused had given him a specific design for the chowkies and had told him that there should be a cavity in the top of the chowkies, which could be used for storing passport and jewellery as there was problem of income tax and theft in Israel. As per this witness based on the said order he got the chowkies made from one sardarjee who used to run a company in the name of Rayman Arts and then delivered six chowkies to the accused Halloo in the hotel of RTDC, where he was staying. He has also stated that the remaining three chowkies had not been prepared by that time and he had therefore delivered only six chowkies. As per the deposition of this witness, the accused on the next day of the delivery, again contacted him and told him to courier the chowkies as the courier whom he had contacted was charging high rates. He has further deposed that accused gave him some amount to deliver the chowkies which was sufficient to send three chowkies and that as per the instructions of the accused he then asked the DHL office at Udaipur for consigning the three chowkies for delivery at Israel. As per the deposition of this witness, the chowkies SC No.174/08 page 33 of 58 NCB Vs. Rozen Cohen in question had been consigned by him somewhere between 2125 July, 2006 and that on 30/7/2006 he had received a summon from the NCB office directing him to appear in the NCB office at Delhi for purposes of inquiry. He has also deposed that pursuant to the said summons he went to the NCB office at Delhi and tendered his statement Ex.PW5/1 explaining therein the events which led him to courier the chowkies. He has also further deposed that on the asking of the NCB officials, he had informed them that he had the photograph of the accused downloaded in his mobile. He has further deposed that thereafter he along with the NCB officials reached his house at Udaipur on 1/8/2006 and that from the six chowkies lying in his house, 5.6 kg. Of hashish was recovered from three of the said chowkies. He has then deposed about the search and seizure proceedings conducted at his home by the NCB officials.
33.Now this statement of the aforementioned witness has been questioned on behalf of the defence by inter alia contending that this witness has not deposed true facts before this court and that he has deposed falsely to save himself and David and that he had knowingly sent the parcels containing the contraband, at the instance of David and not the accused. Ld. Defence counsel has submitted that not only has this witness failed to stand the test of crossexamination, none of the facts deposed by him have been corroborated during investigation. Ld. Defence counsel has SC No.174/08 page 34 of 58 NCB Vs. Rozen Cohen pointed out that this witness has not stated, on oath, before this court many of the facts that he had assertedly told the NCB officials at the time of tendering his statement u/s 67 NDPS Act. Ld. Defence counsel has brought the attention of this court to the fact that this witness was categorically asked in his crossexamination whether he has informed all the details of the transactions between him and the accused to this court and in answer thereto, he has incorrectly stated that he has disclosed to the court, all the details given by him in his statement recorded u/s 67 NDPS Act and that he has not left anything therefrom. According to the Ld. Defence counsel, the said witness could not recollect all the facts before this court because he had concocted all the said facts at the time of tendering his statement u/s 67 NDPS Act and the investigating agency did not even bother to verify the facts narrated by him and blindly believed him, for reasons best known to them.
34.In order to appreciate the said contention of the defence, it will be relevant at this stage, to consider all the facts that were disclosed by this witness at the time of tendering his statement to NCB when he was firstly summoned by them. In the said statement, this witness had assertedly informed the NCB that he was introduced to the accused Halloo @ Rozen Cohen through David Cohen in Delhi. As per the said statement, he used to earlier work for a company by the name of Manak Arts during SC No.174/08 page 35 of 58 NCB Vs. Rozen Cohen the period 20022005 and that with effect from January, 2006, he had started his own export business and that he was introduced to the accused by David with the plans/intention to help him procure some export business. It is also narrated in the said statement that on 0809 June, 2006, both David and Halloo came to Udaipur and telephonically informed him to meet them as they wanted to place certain export orders on him. He has further narrated that both of them told him that they want to get 9 chowkies made with special meenakari and specific design and he therefore placed an order for the manufacture of the chowkies on one Rayman Exports. It is further narrated in the said statement that after placing the said order, he came back to the hotel where David and Halloo were lodged and at that stage, Halloo gave him 500 dollars out of which part of the amount was to be paid to Rayman Exports and the remaining amount was to be used for sending the said chowkies through parcel. Thus, as per this statement at the initial stage itself, accused Halloo had told him (Anshul Dwivedi) that he (Anshul Dwivedi) has to parcel the said chowkies. It is further narrated in the said statement that thereafter on 9th July, 2006, accused came to Udaipur alone and then again stayed in the hotel RTDC and called him on 10.07.2006 with the directions that he must bring the chowkies to the hotel. As per the said statement, Anshul Dwivedi then went to Rayman Exports workshop to SC No.174/08 page 36 of 58 NCB Vs. Rozen Cohen collect the six chowkies that were ready by that time, took the same to Halloo's room and then Halloo told him that he must pick up the chowkies the next morning to parcel the same. It is further narrated therein that the next morning he again went to the hotel, picked up the six chowkies and was told by the accused that he will give him more amount towards the manufacture and parcel of the six chowkies and that in the evening of the same day, the accused assertedly handed him over Rs. 18000/ in cash and told him to give a cheque of Rs.25,500/ in favour of the person who had manufactured the said chowkies. It is then very interestingly mentioned in the said statement that 45 days thereafter, he received money vide Western Union Money Transfer about which he informed the accused and that accused informed him by a SMS that Rs. 17000/ should be deposited by him in the account of the accused in HDFC bank and that he should send three chowkies at an address in Israel. The address of the consignee at Israel was also provided assertedly by the accused through SMS.
35.Thus, admittedly in the aforementioned statement, Ex.PW5/1 there are many more details of the transaction mentioned firstly and foremostly according to the said statement, it was both the accused and one David who had placed the order of the chowkies upon him. Secondly, contrary to the deposition of Anshul before this court that it was only after the SC No.174/08 page 37 of 58 NCB Vs. Rozen Cohen delivery of the chowkies to the accused in his hotel, that the accused on the next day told him that his courier was demanding high rates and that Anshul therefore should courier the chowkies, in the said statement, it is narrated that at the initial stage of placing the order, the accused had informed Anshul that he has to also parcel the same and infact gave him 500 dollars for the said purpose and for making payment to the manufacture of the chowkies. Thirdly though before this court this witness has not all stated what amount was paid by the accused to him, in the statement Ex.PW5/1, he has given the details of the various amounts allegedly paid by the accused to him for ensuring that the payments are made to the manufacturer of the chowkies and for sending the parcel to Israel.
36.According to Ld. Defence counsel, Sh. Y.K. Saxena, in view of the fact that the witness has not narrated on oath, the details of payment allegedly paid by the accused to him, this court cannot read the same and the defence was also not bound to crossexamine him with respect to the said facts. It is relevant to mention herein that at one stage, PW21, Anshul Dwivedi had stated before this court that since the incident is very old he does not recall all the details of the transaction and that when at the time he had tendered his statement u/s 67 NDPS Act, all the facts were in his knowledge and he had mentioned the same in his statement. Further this SC No.174/08 page 38 of 58 NCB Vs. Rozen Cohen statement was made by the witness after he had gone through the contents of his statement Ex.PW5/1. Thus, once this witness has stated on oath before this court that the facts narrated by him in his statement Ex.PW5/1 were the correct facts, the defence should have cross examined him with respect to all the facts mentioned in the said statement, in particular with respect to the payments allegedly made by the accused to him in cash and this court therefore does not completely agree with the contention of the Ld. Defence Counsel in this regard. Be that so, this court however does agree with Ld. Defence counsel that the testimony of this witness is not sufficiently credible to make it the sole basis for convicting the accused for the offence that he has been charged with. Even if the facts narrated by this witness in his statement Ex.PW5/1 are considered by this court, there are certain facts which stand out which show that this witness has not deposed completely true facts the most glaring fact which stands out in the statement of this witness Ex.PW5/1 and his testimony before this court is with respect to the consignment note. Now according to the deposition of this witness, he had consigned the chowkies in question on the instructions of the accused in the normal course of conduct therefore, it is the name of the accused that should have been intimated by this witness to the courier official. The consignment note, Ex.PW4/3 however proved before this SC No.174/08 page 39 of 58 NCB Vs. Rozen Cohen court shows that the chowkies in question were consigned on behalf of David, Sanskriti Expressions. Now when this witness in his cross examination, is confronted with the consignment note Ex.PW4/3, he initially completely denies that the consignment note Ex.PW4/3 was booked by him but then again states that he does not remember whether it is the same consignment note vide which he had sent the chowkies in question. He, however, has categorically stated that he had not heard the name of Sanskriti Expression ever before and that he had told the courier officials that the consignors' name has to be Rama Export (the name of his own proprietorship firm). He is further categorical in stating that his signature do not appear either on the consignment note Ex.PW4/3 or on the invoice Ex.PW4/4. He again however forgot the detail whether he had mentioned the name of David on the consignment note or any other paper but according to him he had orally told that the consignment was infact on behalf of Halloo i.e. the accused. Contrary to the said deposition of this witness, is the deposition of Savyasachi Bhatnagar, the owner of the courier office where the parcel was first booked, who has appeared in the witness box as PW15. In his cross examination, this witness has categorically stated that the name of David was provided by Anshul Dwivedi and the invoice Ex.PW4/4 was also signed by Anshul Dwivedi. In the supplementary statement tendered by this witness u/s 67 NDPS SC No.174/08 page 40 of 58 NCB Vs. Rozen Cohen Act to the NCB which has been proved by this witness as Ex.PW10/6, the same fact namely that Anshul Dwivedi had informed him that the consignment was being booked at the instance of one David finds a categorical mention. A perusal of the said statement shows that this witness was resummoned by the NCB and he was questioned as to why when according to his initial statement Ex.PW10/5 he had mentioned that the parcel had been consigned by the Anshul Dwivedi of Rama Arts and Exports, was the consignment note then mentioning the name of David and Sanskriti Expression. In answer to this specific question this person had informed the NCB that though the parcel was brought to the DHL office by Anshul Dwivedi of Rama Arts and Exports, he had informed him that the consignor of this parcel is Mr. David who wants to send it to Israel and told him that in the consignment note the name of David should be mentioned. He has further explained that the parcel was booked in the account of Sanskriti Expressions since the said firm had sent a lot of parcels through him and he was authorised to give discount for the parcels sent by them. In the considered opinion of this court, the deposition of this witness that Anshul Dwivedi had categorically informed him that the consignor of the parcel is David and therefore the said name is written in the consignment note cannot be brushed aside lightly and infact proves what the defence has been reiterating namely SC No.174/08 page 41 of 58 NCB Vs. Rozen Cohen that Anshul Dwivedi had sent the parcel at the instance of David and not the accused. It also cannot be lost sight of that this witness in his statement u/s 67 NDPS Act had infact narrated that both David and the accused had placed the order of chowkies upon him and when confronted with this fact, has merely tried to side step the issue by stating that he had not at all mentioned the name of David before this court for it was only the accused who had made the payment for the chowkies and the parcel. It is indeed strange that in the present case, the investigating officials on their own, during investigation decided that Anshul Dwivedi is speaking the truth and that though the contraband was recovered from his possession, they did not chose to array him as an accused. Section 54 NDPS Act makes it clear that once a contraband is recovered from the possession of a person, it may be presumed, until and unless the contrary is proved, that the person found in possession of contraband has committed an offence under this Act and it goes without saying that such a burden of proof can be discharged only in a court of law. 8.7kgs of Hashish was recovered from the parcel booked by Anshul Dwivedi and there is absolutely no explanation forthcoming from the investigating agency as to why the investigating officials chose to completely accept the statement of Anshul Dwivedi and then did not even bother to check out about the role of David. Ld. SPP has been at pains to SC No.174/08 page 42 of 58 NCB Vs. Rozen Cohen explain as to why the investigating agency did not make enquiry against David despite the fact that it is his name which occurred in the consignment note and why did the investigating agency not bother to trace out as to who had sent Anshul Dwivedi money through Western Union Money Transfer; why was the investigating agency so keen to accept the version of Anshul Dwivedi that it was the accused who had placed the order upon him; why did the investigating agency not confirm from RTDC whether David and the accused had also stayed in their Hotel on 89 th June 2006, as stated by Anshul? As per the statement tendered by Anshul, Ex.PW5/1, both accused and David had first come to Udaipur on 8/9 June, 2006 and it is on the said date that both of them had placed an order of 9 meenakari chowkies upon him and thereafter on 09.07.2006, the accused Halloo had alone came back to Udaipur (without David) and had then called Anshul Dwivedi to deliver the chowkies in his room. No doubt, based on this statement given by Anshul Dwivedi, the NCB had assertedly written a letter to RTDC hotel to verify whether the accused Rozen Cohen had stayed in the said hotel for the period 09.07.2006 to 11.07.2006. The said letter has been exhibited as Ex.PW1/H. Now as per the statement of PW1 Ajay Kumar, the said hotel had sent to the NCB a copy of the form 'C', hotel arrival report that had been filled up at the time accused Rozen Cohen had checked into the said SC No.174/08 page 43 of 58 NCB Vs. Rozen Cohen hotel. The said fax copy of the form 'C' has been placed on record and marked as mark 'B' the prosecution has not bothered to summon a witness from the hotel Kajarry, RTDC, Udaipur to prove the said document and has also not bothered to explain why such a query was not asked for the period 89th June 2006. At this stage, it will be very relevant to point out that in the said document, mark B, the date of arrival in India of the said accused Rozen Cohen is mentioned as 28.10.2003 and the period of his proposed stay in India is mentioned as three months and the purpose of his visit, as tourism. In the column of date and time of arrival of the accused in the hotel, there is some cutting and though as per the prosecution the said date should be read as 09.07.2006, they have been unable to explain that if the date is indeed read as 09.07.2006 then how is it that the same form mentions the date of arrival of accused in India as 28.10.2003 for a period of three months. No doubt, the accused himself during trial has admitted that he had stayed in some hotel, RC, in Udaipur, but obviously this admission was not known to the investigating agency during investigation and therefore it is not understandable as to why the document mark B was not even examined carefully and the Hotel officials questioned in this regard. The aforementioned issues and questions raised by the Defence and unanswered by the prosecution do throw a grave doubt on the case of the prosecution. No doubt, defective SC No.174/08 page 44 of 58 NCB Vs. Rozen Cohen investigation does not always lead to the complete rejection of the case of the prosecution but it will have to be said that in the present case, the same does have an important bearing on the determination of the guilt of the accused.
37. At this stage, it would be relevant to note that Ld. SPP for NCB Sh. Manchanda has laid much stress on the fact that the accused, has in his statement u/s 313 CrPC, admitted that Anshul Dwivedi had deposited the amount of Rs.17,000/ in his bank account and his contention is therefore that if the accused had nothing to do with the orders placed on Anshul Dwivedi, there would not have been any question of monetary transactions. In this regard it will be relevant to point out that accused had explained both in his statement u/s 313 CrPC and in his deposition u/s 315 CrPC that David had taken a loan of $500 from him and that Rs. 17,000/ were deposited by Anshul Dwivedi on the instructions of David in his account, towards the repayment of the said loan. The said explanation given by the accused is found much more plausible than that given by Anshul Dwivedi. If one accepts the version of Anshul Dwivedi, then clearly he was paid nothing for his efforts to get the chowkies manufactured and then sending the same by courier. As per his version in Ex.PW5/1, the accused had given him 500 dollars and then Rs.18,000/ in cash and that he(Anshul) had given two cheques for Rs.15,000/ and Rs.
SC No.174/08 page 45 of 58 NCB Vs. Rozen Cohen
25,500/ in favour of Rayman Export for manufacture of chowkies. In another words he had received approx Rs.40,500/ and had paid the same amount to Rayman Exports. In addition, he has also admittedly paid the amount of Rs.12,000/ to the courier company. Though Ld.SPP, Sh. Manchanda has pointed out that Anshul in his statement, Ex.PW5/1 has also narrated that he had received some amount from Western Union Money Transfer, it is pertinent to note herein that in Ex.PW5/1 the amount of money received by Anshul through the said transfer is not mentioned and it is merely mentioned that he received money and that on the instructions of the accused he deposited Rs.17,000/ in his account. It is very interesting to note that though in the contents of page L of the complaint filed, it is mentioned inter alia that Anshul had disclosed to the NCB that he had received Rs.25,900/ from Western Union Money Transfer, Ld. SPP has been unable to point out to this Court from where has the said amount been mentioned, for in Ex.PW5/1, the statement of Anshul u/s 67 NDPS Act, there is no reference to any such amount. In this regard, all that Ld. SPP could state was that the said amount is mentioned in the statement of the accused tendered by him u/s 67 NDPS Act clearly that is not the averment made in page L of the complaint. Further if the Ld. SPP wishes to rely on the statement of the accused in this regard then the accused has also clearly stated therein that it was SC No.174/08 page 46 of 58 NCB Vs. Rozen Cohen David who had sent the said amount to Anshul and this was after he and David had left for Israel. Even otherwise, if the said amount of Rs. 25,900/ is also considered to have been received, Rs. 17,000/ were deposited from the same in the account of the accused and Anshul would have been left only with Rs. 8,900/, which is less than what he had to pay for the courier of the parcels. Ld. Defence Counsel has thus rightly pointed out that had the investigating agency infact bothered to check up the said transaction it would have come on record that it was David who had sent the money to Anshul Dwivedi. It is indeed surprising that why the Investigating agency has not chosen to investigate the said fact more so when it was clear from the facts narrated by Anshul Dwivedi in his statement Ex.PW5/1 that the said amount was not received by him from the accused as per the said statement he had received money from Western Union Money Transfer and it is he who had informed the accused about the said money. PW5 Akhilesh Kumar, the official who had recorded the statement of Anshul Dwivedi was specifically asked by the Ld. Defence Counsel whether any investigation was carried out with respect to Western Union Money Transfer or with respect to the SMS or with respect to the telephone number 09822521822 (which according to Anshul Dwivedi was being used by the accused) and this official has merely stated that he did not verify the information given to him by SC No.174/08 page 47 of 58 NCB Vs. Rozen Cohen Anshul Dwivedi. Admittedly no other Intelligence Officer had also made any such effort. The said failure of the investigating agency does lend credence to the contention of the defence that the investigating agency deliberately did not make any enquiry against David and made the accused an scapegoat.
38.Apart from the aforementioned discrepancies in the statement of Anshul Dwivedi, this court would also like to mention herein that his testimony has also not been found credible by this court for the reason that this Court has itself observed the case property consisting of the three wooden chowkies very carefully. The cavities in the said chowki in which the drugs were allegedly concealed were found covered by a lid which was not screwed on the cavity and the said lid could be easily lifted. Now as per the version of the prosecution, the weight of the contraband recovered from the chowkies, which were sent vide courier, was about 9kg. In other words, the weight of the chowkies which Anshul had got manufactured and had taken delivery thereof, had increased by 9kg before the same were parceled. In such view, it is therefore indeed difficult to accept as probable that Anshul Dwivedi could not discover that the weight of the chowkies that he had gone to book at the courier office had increased by almost 9 kg, more so when PW 15 Savyasachi Bhatnagar, has stated both before the NCB and in his cross examination SC No.174/08 page 48 of 58 NCB Vs. Rozen Cohen before this court that it was Anshul Dwivedi, who in his presence had packed the said chowkies in the courier office. The increase in the weight of the chowkies and the fact that the lid of the cavities could be easily lifted make it indeed difficult to accept the testimony of Anshul Dwivedi that he at no point of time came to know that something had been concealed in the cavities of the wooden chowkies. The perceptible difference in the weight of the chowkies before and after the contraband was concealed in them could not have been ignored by Anshul Dwivedi.
39.At this stage, it would also be relevant to mention herein that Ld. SPP Sh. Manchanda has also pointed that one another PW11 Virender Singh, who had manufactured the said chowkies has also identified the accused and that the said identification supports the allegation of the prosecution that it was the accused who had placed an order of the chowkies on Anshul Dwivedi. Admittedly no statement of this witness was recorded u/s 67 of the NDPS Act during investigation. As per record though a summon was sent to him to appear before the NCB, he had sent his son Harneet Singh in his place. The said Harneet Singh gave a statement Ex.PW1/G (exhibited during the deposition of IO Ajay Kumar who has deposed that statement was given in his presence) and in the said statement Harneet Singh has merely stated that the chowkies in question were made on the instructions of Anshul Dwivedi of Rama Arts and Exports and that he SC No.174/08 page 49 of 58 NCB Vs. Rozen Cohen only had made the payment of it vide cheque in Indian currency and the said chowkies were supplied to him under one invoice. On a specific question whether he knew any person by the name of Halloo and David, this person informed the NCB that he had never heard the said names. Thus though this person Harneet Singh has categorically stated that the chowkies were collected by Anshul Dwivedi only and the delivery of the chowkies were made only to Anshul Dwivedi and in this statement there is no reference whatsoever that the accused had also came to collect or check the chowkies, the witness PW11 Virender Singh, his father has stated in his examination in chief that Anshul Dwivedi was accompanied by the accused when he had come to take the delivery of the said 9 chowkies. Not only is the said statement contrary to the statement given by his son Harneet Singh, it is also contrary to the statement of Anshul Dwivedi, for Anshul Dwivedi has never taken a stand that the accused had accompanied him to take the delivery of the chowkies. Infact, when this witness was subjected to cross examination, he has first admitted that unless some special circumstances occur he would not remember the name and description of a person who accompanies a customer and at the time of delivery in the present case no such special circumstance had taken place and then has finally admitted that the accused had not come to his shop with Anshul Dwivedi on the date of delivery of goods in SC No.174/08 page 50 of 58 NCB Vs. Rozen Cohen question. Thus this witness has taken a complete somersault in his cross examination and his deposition therefore cannot be stated to be of any use to the case of the prosecution.
40.Coming now to the statement allegedly tendered by the accused u/s 67 NDPS Act, the prosecution appears be in two minds whether to rely upon it or not, in support of its allegations. This is for the reason that in the said statement, the accused has not admitted that he had concealed hashish in the chowkies and had made Anshul, courier the same. In the said statement, the accused has exculpated himself to the extent that he has inter alia stated that the hashish was sealed in the wooden chowkies not by him but by David and that his role was only to the extent that he had passed on the instructions of David to Anshul Dwivedi with respect to the sending of parcels. Ld. SPP for NCB, Sh. Manchanda, though on the one hand, has vehemently contended that the case of the prosecution was always that the accused had put the hashish in the chowkies and not that he merely had the knowledge that David had done so, it is however very interesting to note that when the accused had stepped into the witness box, a suggestion was given to him by Ld. SPP that it was David who had concealed the hashish in the chowkies and the accused was aware of the same. Be that so, since the prosecution has taken a specific stand before this court that it is not its case that David was, in any SC No.174/08 page 51 of 58 NCB Vs. Rozen Cohen manner, involved in the illegal transaction and that it was only the accused who was instrumental in concealing the hashish inside the chowkies, it is being rightly contended by Ld. Defence counsel that if the prosecution itself does not wish to take a stand that the role of the accused was only to aid David then this court cannot on its own convict the accused for having aided or abetted David in commission of the offence, even on the basis of his own statement and more so when the accused has never been given an opportunity to meet this limited allegation. Even otherwise the said statement can hardly be called a confession of guilt which can be admitted in evidence. The Privy Council pronounced in a case titled as Pakala Narayana Swami Vs. Emperor reported in AIR 1939 PC 47 (the judgment affirmed and reiterated by Hon'ble Supreme Court in many cases) has made it clear that admission of even a conclusively incriminating fact cannot be called a confession of guilt if the statement of admission also contains an exculpatory statement, which if true would negate the offence alleged to be confessed. Further the evidence on record makes it clear that the said statement has not been voluntarily tendered by the accused. No doubt the Hon'ble Supreme Court in its various judgments pronounced in NDPS cases, that have been relied upon by the Ld. SPP, has held that a statement given by an accused u/s 67 NDPS Act is admissible in evidence and can be used SC No.174/08 page 52 of 58 NCB Vs. Rozen Cohen for determining the guilt of an accused however at the same time the Hon'ble Supreme Court has also cautioned that a court must be satisfied that the said statement was given voluntarily and that before acting solely on it, as a rule of prudence, a court must look for some corroboration. The Hon'ble Supreme Court in its judgments pronounced in cases titled as Union of India Vs. Bal Mukund (supra) and Noor Aga Vs. State of Punjab and Anr. (supra) respectively has clearly held that the purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement. In Bal Mukund's case, the Hon'ble Supreme Court observed that the authorities under the NDPS Act can always show that the accused had not been formally arrested when his statement was recorded u/s 67 of the NDPS Act and that therefore a court while weighing the evidentiary value of such a statement should not lose sight of the ground realities. Further in para 28 of the said judgment the Hon'ble Supreme Court has reiterated that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. The Hon'ble Supreme Court in the said case also made it clear that the observations made by it in Kanhaiya Lal Vs. Union of India (2008) 4SCC 668, (a judgment often relied by the NCB to contend that it is under no obligation to prove that the statement tendered by an accused was voluntary) was passed in view of the peculiar SC No.174/08 page 53 of 58 NCB Vs. Rozen Cohen facts in the said case namely that no crossexamination of a material witness was conducted with respect to statement tendered by the accused. In Noor Aga's case, the Hon'ble Supreme Court has clearly held that whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. In another case titled as Francis Stanly Vs. NCB reported in (2006) 13 SCC 2010 the Hon'ble Supreme Court has cautioned that a confession asserted to have been recorded under the NDPS Act must be made subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act.
41. In the present case, the statement purportedly tendered by accused u/s 67 NDPS Act has not only been retracted by him, it is an admitted fact that a Look Out Circular had also been issued against the accused and that he was immediately detained at the Mumbai Airport, on his arrival in India and sent to NCB, Delhi and further he was in the custody of NCB, when the said statement was recorded. The said statement is also admittedly not in the handwriting of the accused and as per the testimony of PW16, Harcharan Singh, on request of the accused, his statement was written by PW10 P.C. Khanduri before him, on the dictation of the accused. This witness admits that he had interrogated the accused and that it is not SC No.174/08 page 54 of 58 NCB Vs. Rozen Cohen recorded in the statement Ex.PW10/8 that the accused was informed that he has a right to remain silent. Further this witness in his cross examination is unable to explain at all where the summons u/s 67 NDPS Act were served upon the accused and since how long he had been in the custody of IO Ajay Kumar, before he was called upon to give his statement. In the considered opinion of this court, in view of the judicial dicta laid down by Hon'ble Supreme court in the judgments referred to hereinabove, the said statement cannot be even used to draw an inference that the accused was involved in the transaction of illegal export of hashish.
42.Thus, in the present case, we have only the word of one man against the other. Both Anshul, the witness for the prosecution and the accused have stepped into the witness box and therefore both of them have deposed on oath before this court. In the considered opinion of this Court the fact that David had also placed the order for chowkies along with the accused upon Anshul is admitted by him; the fact that Anshul had also received money from David through Western Money Transfer; the fact that Anshul had mentioned to the courier official, PW15 Savyasanchi Mukherjee that the parcels were to be consigned on behalf of David; the fact that though Anshul has deposed before this court that he was in the business of export of gem stones, he has not explained his role in the manufacturing SC No.174/08 page 55 of 58 NCB Vs. Rozen Cohen of the chowkies or the profit/commission earned by him (it is not his case that meenakari on the chowkies were provided by him), the fact that he has been inconsistent statements about the time and the manner in which he was directed by the accused to courier the said chowkies, the fact that the chowkies were packed by himself and yet he has taken a stand that he did not come to know that the weight of the chowkies had increased and had contraband concealed in them, all cumulatively lead to a grave suspicion that he has not spoken true facts before this court. It is very pertinent to mention herein that during his cross examination when this witness was asked whether the provisions of section 67 NDPS Act were explained to him or not, he has stated that he was told by the NCB officials that the offence under NDPS Act does not allow bail. Thus at the time this witness was called upon to narrate all the facts with respect to the parcels in question, he was made aware that the offence in which he is involved is non bailable. In such circumstances it is not difficult to imagine that the first instinct of a person in such a situation would be to save himself and therefore it cannot be ruled out that Anshul Dwivedi, has named the accused as the culprit, despite having sent the parcels at the instance of David, with whom he had good relations and had done business in the past. It also cannot be ruled out that Anshul Dwivedi himself was promised by David, a share in the proceeds of export of the SC No.174/08 page 56 of 58 NCB Vs. Rozen Cohen contraband and that he was fully aware about the contents of the parcel. No doubt, the testimony of Anshul Dwivedi would have been given more weightage by this court had it been corroborated by some other evidence collected during investigation but in the absence of the same, in the considered opinion of this court, his sole testimony, which is not without blemishes, as discussed hereinabove is not sufficient to hold the accused guilty of the offences that he has been charged with. The sole testimony of Anshul Dwivedi has not inspired such confidence in the mind of this court so as to convict the accused solely on its basis. The Apex Court in the case of Noor Aga vs. State of Punjab and Anrs. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. It has also been observed by the Hon'ble Supreme Court in the said case that though the standard of proof required to prove the guilt of the accused on the prosecution is 'beyond all reasonable doubt', the standard of proving required for the accused to prove his or her innocence is 'preponderance of probability'. In the considered opinion of this court, in the present SC No.174/08 page 57 of 58 NCB Vs. Rozen Cohen case, the discrepancies that have emerged in the case of the prosecution, in particular in the deposition of Anshul Dwivedi have raised a reasonable doubt and do entitle the accused to be granted the benefit of doubt. Accordingly, the accused is hereby acquitted of the charges framed against him by giving him the benefit of doubt. Announced in open Court on this 28th day of February, 2013 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House:New Delhi SC No.174/08 page 58 of 58