Delhi District Court
Sc No. 4282017 Custom vs . Faiem Ahmed Page No. 1/52 on 12 April, 2019
IN THE COURT OF AJAY GOEL, ADDL. SESSIONS
JUDGE-SPECIAL JUDGE (NDPS), DWARKA COURTS,
NEW DELHI.
Sessions Case No. 428-2017
U/s: 21(c)/23(c)/28 NDPS Act
Department of Customs
Through Satish Kumar,
Air Customs Superintendent,
IGI Airport, New Delhi. ..... Complainant
VERSUS
Faiem Ahmed,
S/o Sh. Saiyyad,
R/o Village Bajheri,
P O & PS-New Mandi,
District-Muzaffarnagar, UP. ..... Accused
Date of Filing of complaint : 17.07.2017
Date of Final Arguments : 12.04.2019
Date of Judgment : 12.04.2019
JUDGMENT:
CASE OF PROSECUTION:
1. The case of the prosecution is that on 29.01.2017, accused Faiem Ahmed was offloaded by Air India Security Officials when he was intending to SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 1/52 depart to Dammam from IGI Airport by Air India Flight No. AI-913. The accused was handed over to the Custom Department for further inquiries. It is stated that accused was found carrying one check in baggage bearing Tag No. AI-625328 and one hand bag.
2. It is further the case of customs that during preliminary enquiries, accused was asked by the custom officer whether he was carrying any Indian/Foreign Currency or any narcotics to which accused replied in negative. Thereafter, two independent witnesses were called and they were requested to join the proceedings of case to which they voluntarily agreed and both witnesses were apprised about the offloading of accused and other background of case. It is averred that since accused was having knowledge of Hindi only, hence an Interpretor/Translator Sh. Rahul Kumar Rawat was SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 2/52 called to explain the proceedings to accused in vernacular. Thereafter, accused was once again asked by the custom officer whether he was carrying any Indian/Foreign Currency or any narcotics to which accused herein again replied in negative.
3. It is further the case of customs that notices U/s 102 of the Customs Act apart from Notice U/s 50 of NDPS Act were served upon accused whereby he was apprised about his legal rights and that his personal search could be conducted in the presence of Magistrate or Gazetted officer. In response to the said notices, accused replied in writing on the said notices about his consent for search. It is stated that before taking his search, customs officer offered their personal search to accused to which he declined.
4. It is the case of customs that during personal search of accused, travel documents, some Indian/Foreign currencies, mobile phone etc. were SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 3/52 recovered from his possession. Thereafter, check in bag belonging to accused having baggage Tag N. AI- 625328 was examined which was found contained 95 bottles of Chlorpheniramine Meleate & Codeine Phosphate Cough Linctus Phensedyl Cought Linctus 100 ML each. It is stated that all 95 bottles were wrapped with black adhesive tape which was kept inside black polythene bag used for concealing the said bottles which were further kept inside checked in baggage of accused.
5. It is averred that on being asked, accused failed to produce any evidence documentary or otherwise in support of lawful possession and export of the above said recovered bottles, therefore, vide panchnama, same were seized U/s 43 of NDPS Act on a reasonable belief that same were liable to be confiscation. It is stated that besides that concealing material was also seized and the case property was SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 4/52 sealed with the custom seal and detained and deposited in the Custom Godown.
6. It is stated that vide arrest Memo, accused was put under arrest, vide jamatalashi Memo, his jamatalashi was conducted and the seizure report was prepared. Thereafter, accused was medically examined vide MLC and arrest report was also prepared. It is stated that accused tendered his voluntary statement whereby he disclosed that recovered bottles were given to accused by one person namely Sonu and accused was carrying the same for a monetary consideration. It is stated that the case property and samples were deposited in the godown vide DR No. 32163, 32164 and 07601.
7. As per the case of customs department, the case property was produced before the court of Sh. Rohit Gulia, Ld. M.M. Dwarka Court, New Delhi for sampling and vide order dated 09.02.2017, case SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 5/52 property was examined and samples were drawn. It is averred that sample mark A1 was sent to the CRCL and vide report received from CRCL, the substance of recovered bottled was found positive for Codeine Phosphate. The remnant samples was deposited in the godown.
8. After completion of the investigation, present complaint was filed along with documents. CHARGE:
9. After hearing the arguments, vide order dated 01.08.2017, charges U/s 21 (c), 23 (c) & 28 NDPS Act was framed against the accused by Ld. Predecessor of this Court to which he pleaded not guilty and claimed trial.
Prosecution Evidence:
10. In support of its case, prosecution had examined following witnesses:
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PW-1 is Sh. Satish Kumar, Superintendent Customs. He is a witness who has filed the present complaint as Ex. PW-1/A. PW-2 is Sh. Parveen Kumar, ACO. He deposed regarding production of accused through representative of Air India on 29.01.2017. He further deposed regarding making preliminary inquiries from accused, calling of panch witnesses, serving of notices U/s 102 and U/s 50 of the Act, search of accused and recovery of 95 bottles of phensedyl cough linctus 100 ML each and other proceedings conducted on spot.
PW-3 is Sh. Rohit Gulia, Ld. Metropolitan Magistrate. He deposed regarding production of case property in the court by customs officers for conducting proceedings U/s 52A of NDPS Act. PW-4 is Sh. Rahul Kumar Rawat. He deposed regarding routine checking at level-IV and non- SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 7/52 clearing of accused Faiem Ahmed at level-IV due to some suspicious liquid articles which was found during the x-ray of baggage of accused. PW-5 is Sh. Dinesh Rao, Duty Manager, Air India SATS, IGI Airport. He deposed regarding receipt of telephonic call from back up office that one baggage belonging to one person namely Faiem Ahmed was containing some commercial quantity bottles and he informed Mr. Rahul Kumar Rawat to handle the said baggage and passenger and to do the needful.
PW-6 is Sh. Pradeep Sharma. He is one of the panch witnesses in this case. However, he has not supported the case of customs.
PW-7 is Sh. Akhilesh Meena, Superintendent. He had deposed regarding deposition of case property in custom godown by ACO, Sh. Praveen Kumar on 02.02.2017. He also deposed regarding SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 8/52 production of case property on 09.02.2017 before the court of Ld. MM Sh. Rohit Gulia for conducting proceedings U/s 52A of NDPS Act.
PW-8 is Sh. Jitendra Kumar, Assistant Commissioner. He deposed that he accompanied PW-7 Sh. Akhilesh Meena, ACO for production of case property on 09.02.2017 before the court of Ld. MM Sh. Rohit Gulia for conducting proceedings U/s 52A of NDPS Act.
PW-9 is Sh. R. K. Chauhan, Assistant Chemical Examiner, CRCL. This witness has proved the test report of samples sent for chemical analysis to CRCL which upon chemical analysis gave positive answer for presence of Codeine Phosphate.
PW-10 is Sh. Radhey Shyam, WA-I, CWC, IGI Airport. He deposed that on 29.01.2017, Sh. S. K. Gautam, ACS deposited the case property in the SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 9/52 present case with DR no. 32163.
PW-11 is Sh. Anil Kumar, WA-I, IGI Airport. He deposed that on 02.02.2017, Sh. Praveen Kumar, ACO withdraw the case property in the present case from CWC in his presence.
PW-12 is Sh. D. V. Singh, Assistant Commissioner. He deposed that test report duly received from CRCL was put up before him and he marked the same to Sh. Jitender Kumar, ACS, Disposal for further necessary action. PW-13 is Sh. S. K. Gautam, Air Custom Superintendent. He deposed regarding proceedings conducted in his presence by IO after interception of accused on 29.01.2017. He also deposed that he wrote a letter dated 29.01.2017 to Manager, CWC Warehouse for depositing the case property. He also deposed regarding recording of statement U/s 67 of Sh. Chandra Bhan SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 10/52 Yadav, Sh. Rahul Kumar Rawat and Sh. Dinesh Rao. During the course of prosecution evidence, the statement of counsel for accused was recorded whereby he stated that he does not want to cross- examine witnesses namely Dr. Sahil and Dr. Ajay Sharma and stated that MLC be read as such. In view of his statement, the said witnesses were dropped vide order dated 27.02.2019. STATEMENT OF ACCUSED:
11. After recording of the testimonies of the aforesaid PWs, the statement of the accused U/s 313 Cr. P. C. was recorded. During recording of statement of accused, accused pleaded his innocence and stated that he had been falsely implicated in the present case and the case property has been planted upon him. He also deposed that nothing was SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 11/52 recovered from his possession. He further deposed that on 29.01.2017, the timing of his flight AI-913 is 11.20 p.m. and for the said reason, he entered in the IGI Airport at about 9.00 pm. At that time, when he was sitting in waiting room, one person called him and pressurise him to come into a room. When he shouted then some other persons also gathered there and forcefully pushed him towards the basement and from there, they sent him to Jail in this false case for the reason best known to them.
12. I have heard the submissions of Sh. P. C. Aggarwal, Ld. Special Public Prosecutor for the Customs and Sh. Juned Alam, Ld. Defence Counsel.
ARGUMENTS OF PROSECUTION:
13. Sh. P. C. Aggarwal, Ld. Special Public Prosecutor for the Customs submitted on the line of case filed by the department as well as on the line of the SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 12/52 deposition of the aforesaid witnesses. Ld. SPP for the Customs stated that check in bag belonging to accused having baggage Tag N. AI-625328 was examined which was found contained 95 bottles of Chlorpheniramine Meleate & Codeine Phosphate Cough Linctus Phensedyl Cought Linctus 100 ML each. It is stated that all 95 bottles were wrapped with black adhesive tape which was kept inside black polythene bag used for concealing the said bottles which were further kept inside checked in baggage of accused. Ld. SPP further submits that on being asked, accused failed to produce any evidence documentary or otherwise in support of lawful possession and export of the above said recovered bottles, therefore, vide panchnama, same were seized U/s 43 of NDPS Act on a reasonable belief that same were liable to be confiscation. Thus, he is liable to be punished for the offences committed by him.
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ARGUMENTS OF DEFENCE:
14. On the other hand, Ld. Defence Counsel for accused submitted that accused has been falsely implicated in the present case and he has no concern with the alleged recovery of the said bottles. He further submitted that the alleged bottled does not belong to accused. Ld. Defence Counsel argued that there are material contradictions in the testimony of the prosecution witnesses which falsify the case of prosecution. It is further argued the Panch Witnesses in the present case in whose presence, the recovery was effected have not supported the case of custom department and their deposition in court has created dent to the case of custom department.
15. I have considered the rival submissions and gone through the voluminous documents and SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 14/52 evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence.
JUDGMENTS RELIED UPON BY LD. SPP FOR CUSTOMS:
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors.
2002 (2) CC Cases (SC) 58;
2) Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) 174;
3) Pon Adithan Vs. Deputy Director NCB, Madras (1999) 6 SCC 1;
4) Raj Kumar Karwal Vs. UOI 1991 Crl. Law Journal 97 (SC);
5) M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631
6) Kanhaiya Lal Vs. UOI-2008 (1) JCC (Narcotics) 23;
7) Dalel Singh Vs. State of Haryana (2010) 1 SCC 149, SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 15/52
8) Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692,
9) Karnail Singh Vs. State of Haryana (2009) 8 SCC 539,
10) Firsozuddin Basheerudin & Ors. Vs. State of Kerala 2001 VI AD SC 413,
11) Banobi & Anr Vs. State of Maharashtra & Ors. JT 1999 (8) SC 125
12) State of Punjab Vs. Baldev Singh (1999) 3 SCC
977. JUDGMENT RELIED UPON BY LD. DEFENCE COUNSEL:
1) Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab & Anr. Reported in (2009) 12 SCC 161 and JT 2008 (7) SC 409;
2) Jagdish Vs. State of M. P. (2003) 9 Supreme Court Cases 159.
SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 16/52 FINDINGS:
16. Ld. SPP for Customs has drawn the attention of the court to Section 50 and Section 67 of NDPS Act and relied upon case titled Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) 174, wherein it was held that section 67 NDPS Act permits the recording of statement made by the officers of NCB who are not the police officers. At this stage, the person concern is not an accused although he may be said to be in custody but on the basis of statement made by him, he could be made an accused subsequently. It is further held in Pon Adithan Vs. Deputy Director NCB, Madras (1999) 6 SCC 1 that :
"Even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under article 20 (3) of the Constitution would not operate against him if such statement SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 17/52 was given voluntarily and without any threat or compulsion and if supported by corroborating evidence".
17. In case Raj Kumar Karwal Vs. UOI 1991 Crl. Law Journal 97 (SC) it was held that such statement made to officer of department of Revenue Intelligence were not hit by Section 25 of the Evidence Act though twin tests of voluntariness and truthfulness have to be satisfied by the Court. Further in M. Prabhu Lal Vs. Asst. Director, it has been held that if confessional statement is found to be voluntary and free from pressure, it can be accepted. No doubt, it all depends upon facts and circumstances of each case and no hard and fast rule can be laid down in this connection, as to whether a alleged confessional statement should be accepted.
18. So in view of law laid down in the case M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631 Scm SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 18/52 Rehmatulla Vs. NCB - 2008 (3) JCC (Narcotics) 174, Kanhaiya Lal Vs. UOI-2008 (1) JCC (Narcotics) 23, the statement U/s 67 can be made basis for conviction but corroboration is required in the present matter, so statement U/s 67 of NPDS Act is not so important and is of no use and same does not strengthen the case of prosecution in the facts of the present case.
19. In the instant case, there is not enough material to prove the guilt of accused beyond doubt and technical as well as factual defects are there which are being discussed herein below. Ld. SPP for Custom in support of his contentions also placed reliance on the case titled Dalel Singh Vs. State of Haryana (2010) 1 SCC 149, Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692, Karnail Singh Vs. State of Haryana (2009) 8 SCC 539, Firsozuddin Basheerudin & Ors. Vs. State of SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 19/52 Kerala 2001 VI AD SC 413, Banobi & Anr Vs. State of Maharashtra & Ors. JT 1999 (8) SC
125.
20. So far as argument raised by Ld. Defence counsel with respect to section 50 of NDPS Act is concerned, Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
21. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 20/52 the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by State of Punjab Vs. Baldev Singh (1999) 3 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 21/52 conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazetted Officer or a Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 22/52 presence of a Gazetted Officer or a Magistrate". It was held that it was substantial compliance with the requirement of Section 50 of NDPS Act. The Court did not agree with the contention that there was non-compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made".
22. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 23/52 which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
23. Now this court will proceed to decide as to whether all norms required in such cases have been fulfilled or not.
24. Reliance is placed upon judgment titled as Parveen Singh @ Kalia Vs. State of NCT of Delhi SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 24/52 2011 (1) JCC (Narcotics) 1 wherein the Hon'ble High Court of Delhi has held as under:-
"Substantial Compliance of - Notice in the states that since there is an information as to the possession of heroin and he (accused) has been apprehended and is required to be searched, if he so desires he can first take the search of the police party - On refusal, the appellant was asked that if he so desire then his search can be taken before a Magistrate or a Gazetted Officer - This was also declined by the appellant - A perusal of the notice under Section 50 of NDPS Act and the testimony of PW11 the Investigating Officer shows that the appellant was informed only about the option and not about his right of being searched before a SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 25/52 Magistrate or a Gazetted Officer- The appellant is thus entitled to be acquitted."
I have perused the notices U/s 50 NDPS Act. The word mentioned is "Legal Right". Accused has appended his noting in Hindi language on the notice itself under his signatures. It is not the case that accused does not know Hindi. So there is sufficient compliance and this defence is not available to the accused and argument qua the same is discarded as observed above.
25. But one thing more is that recovery of contraband in the present case was not effected from the person of accused but from checked in baggage of accused, hence effect of Section 50 of NDPS Act losses its significance and is not applicable in the present case. SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 26/52
26. To come at some conclusion, the evidence of prosecution witnesses is required to be gone through and discussed in the judgment.
27. PW-1 Sh. Satish Kumar, Superintendent Customs proved the present complaint as Ex. PW-1/A. In his cross-examination, he deposed that he was not present at the time of incident or that he is a formal witness and has filed the complaint on the basis of documents and investigation and he has no role otherwise. So he is a formal witness who has just filed the present complaint only.
28. PW-2 Sh. Parveen Kumar, ACO is one of the star witnesses of customs. In his examination in chief, he deposed regarding production of accused through representative of Air India on 29.01.2017. He further deposed regarding making preliminary inquiries from accused, calling of panch witnesses, serving of SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 27/52 notices U/s 102 and U/s 50 of the Act, search of accused and recovery of 95 bottles of phensedyl cough linctus 100 ML each and other proceedings conducted on spot. He proved the letter dated 29.01.2017 Ex. PW-2/A, notice U/s 102 as Ex. PW-2/B, notice U/s 50 of NDPS Act as Ex. PW-2/C, panchnama as Ex. PW-2/D, DR No. 32163 as Ex., PW-2/E, voluntary statement of accused U/s 67 of act as Ex. PW-2/F, arrest memo of accused as Ex. PW-2/G, jamatalashi memo as Ex. PW-2/H, MLC of accused as Ex. PW-2/J, seizure report as Ex. PW-2/K, arrest report as Ex. PW-2/L, letter dated 29.01.2017 as Ex. PW-2/M, entry No. 14426 as Ex. PW-2/N etc. He proved other documents also.
29. PW-2 in his cross-examination recorded on 24.01.2019 had deposed that "I do not remember whether the baggage was locked or unlocked. I opened the same first time and same was SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 28/52 opened by unzipping the same. It is correct that representative of Air India handed over the accused alongwith baggages to me." From his above deposition, it is clear that he opened the bag after unzipping the same and there was no lock on the same. So, there is possibility of putting things in same as it was handled by several officers including personnels of Air India and thereafter by Customs officers. He has also admitted that whole premises of Airport is covered under CCTV Surveillance. He also admitted that preliminary inquiries from accused which were made outside the preventive room, that area is covered under the CCTV Surveillance and no CCTV footage of said area of particular date and time were obtained by him. Said CCTV footage of relevant date and time was very much precious part of evidence as same must have shown the person who had first time observed SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 29/52 the suspicious item in bag and handled same as per the case customs and said CCTV footage must have strengthened the version of customs. However, same has not been placed on record for the reasons best known to customs.
30. It is further pertinent to mention here that PW-2 Sh. Parveen Kumar during his cross-examination, in para No. 16, 17 and 18 deposed as under:-"16. The panchnama was signed after its preparation by me then it was signed by accused and then by Sh. Rahul Rawat and thereafter, it was signed by both panch witnesses. It is wrong to suggest that I have obtained the signatures of panch witnesses and of Interpretor on some blank papers which were later on converted into panchnama and notice U/s 102 of Customs Act, notice U/s 50 of NDPS Act, jamatalashi dated 29.01.2017. It is correct that there is no SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 30/52 signature of Mr. Rahul on page No. 1 and 2 of panchnama. The signatures of panch witnesses are taken at the bottom of paper as per available space on document below the signature of accused. It is wrong to suggest that signatures of Sh. Rahul is present on page No. 3 to 5 of panchnama because I have only three pre-signed pages available and panchnama increased upto 5 pages.
17. It is correct that notice U/s 50 of NDPS Act Ex. PW-2/C is not having the signature of Interpretor Rahul. It is wrong to suggest that Ex. PW-2/C does not bear the signature of Rahul as he was not present there at that time. It is correct that statements of accused U/S 67 of NDPS Act which is already Ex.PW2/F did not bear my signatures as well as the signature of the panch witnesses. It is correct that the SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 31/52 arrest memo dated 29.01.2017 which is already Ex.PW2/G did not bear the signature of panch witnesses. After the accused was arrested he was allowed to intimate regarding his arrest to his brother Farma and same was mentioned on the arrest memo along with the phone numbers 919690225993 and 8474981039. I did not obtain the CAF and CDR of the abovesaid phone numbers since I was transferred after some days.
18. At the time of preparing the seizure report u/S 57 of NDPS Act which is already Ex. PW2/K, panch witnesses, interpretor and the accused were also present there. When arrest report U/S 57 of the NDPS Act which is already Ex.PW2/L was prepared, the panch witnesses and the interpretor along with the accused were present there. It is wrong to suggest SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 32/52 that when seizure and arrest report U/S 57 of the NDPS Act which is already Ex.PW2/K and Ex.PW2/L respectively was prepared panch witnesses along with the interpretor was not present there. It is correct that panch witness Afran Ansari is also a panch witness in another case of custom.
31. From his above deposition, it is clear that signature of Mr. Rahul are appearing only at page No. 3, 4 and 5 of Panchnama and same are not appearing on page No. 1 and 2. Suggestion was also given to PW-2 that signatures of Sh. Rahul is present on page No. 3 to 5 of panchnama because he has only three pre-signed pages available and panchnama increased upto 5 pages. The deposition of PW-2 shows that signatures of accused, panch witnesses and said Sh. Rahul were taken mechanically in advance and panchnama was prepared later on as no explanation SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 33/52 has been given by this witness as to why page No. 1 and 2 of panchnama were not signed by him. There are further contradiction in the signatures on notice U/s 50 of NDPS Act Ex. PW-2/C which is not having the signatures of Interpretor Rahul. If said Sh. Rahul was Interpretor as per the case of customs, then he must have signed the notice U/s 50 of NDPS Act because by virtue of this notice accused was made understood and explained about his legal rights regarding his search and in the absence of signatures of Interpretor on notice, it cannot be established that legal rights of accused were explained to him. PW-2 in para No. 18 of his cross-examination also admitted that panch witness Afran Ansari is also a panch witness in another case of customs and he has not been produced as witness in this case.
32. In para No. 20 and 21 of cross-examination, PW-
2 further deposed that "20. It is correct that SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 34/52 Gazetted officer of different department are routinely present at any given time at the Airport. Sh. Sushil Gautam is a Gazette Officer of Customs. It is correct that accused was not intimated that a Gazetted officer of Customs was present there at the time when notice U/S 102 of Customs Act and U/S 50 of NDPS Act were served and explained to accused. It is correct that I have not mentioned anywhere under section 50 NDPS Act as wll as U/S 102 Customs Act that I explained the meaning of Gazetted officer and Magistrate to the accused.
21. I did not obtain any CCTV footage of the place where search of accused was taken and neither any video recording of the same was recorded. I did not obtain any X-Ray image of baggages of accused from security check of Air-India. I did not obtain any CCTV footage of SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 35/52 area where the baggages were obtained from the accused. I do not know the name of the person who scanned the baggage of the accused at the time of security checking of Air- India. I inquired from Security level-IV in the present case verbally. It is wrong to suggest that I never inquired from the security level-IV in the present case as I am aware that the present case is false and fabricated.
33. From his above deposition, it is clear that accused was not intimated that a Gazetted officer of Customs was present there at the time when notice U/S 102 of Customs Act and U/S 50 of NDPS Act were served and explained to accused. PW-2 further admitted that he has not mentioned anywhere under section 50 NDPS Act as well as U/S 102 Customs Act that he explained the meaning of Gazetted officer and Magistrate to the accused. So the accused was SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 36/52 not told that Gazetted officers were easily available at the spot and he was not even explained the meaning of Gazetted officer. He further admitted regarding non-obtaining of CCTV Footage of area /place where search of accused was taken or x-ray image of baggages of accused from security check of Air India.
34. Sh. Rohit Gulia, Ld. Metropolitan Magistrate, Dwarka Courts was examined as PW-3. He deposed regarding production of case property in the court by customs officers for conducting proceedings U/s 52A of NDPS Act.
35. PW-4 Sh. Rahul Kumar Rawat deposed regarding routine checking at level-IV and non-clearing of accused Faiem Ahmed at level-IV due to some suspicious liquid articles which was found during the x-ray of baggage of accused.
36. It is very strange to note here that PW-4 in para SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 37/52 No. 7 of his cross-examination deposed that "I never joined the investigation in the present case on 29.01.2017 when I handed over the accused to the custom officials. In the month of May or June, I was called by one Mr. Satish Sharma to conduct proceedings regarding panchnama. Customs officials never recorded my statement in the present case. It is correct that after handing over the accused to customs officials, I left the spot to my office. Floor Walkers handed over the accused to me on that day at boarding gate and then I took the accused to level-IV. Except the above said documents mentioned in my examination in chief, I did not sign any document. It is correct that my signatures are only on abovesaid documents as I left the spot thereafter on that day. It is wrong to suggest that I identified the accused in the court today SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 38/52 on asking of my senior Sh. Dinesh Rao who is present in the court today". From his above deposition, it is clear that he did not join the investigation in the present case on 29.01.2017 though as per the case of customs, he was called as Interpretor after interception of accused at Airport. It is also clear as per his deposition that he was called in the month of May or June to conduct proceedings regarding panchnama. So this witness has totally demolished the case of customs.
37. PW-5 Sh. Dinesh Rao, Duty Manager, Air India SATS, IGI Airport had deposed regarding receipt of telephonic call from back up office that one baggage belonging to one person namely Faiem Ahmed is containing some commercial quantity bottles and he informed Mr. Rahul Kumar Rawat to handle the said baggage and passenger and to do the needful. Nothing contrary has come in his cross-examination. SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 39/52
38. The most important witness of present case was PW-6 Sh. Pradeep Sharma because as per the case of custom department, he is one of the panch witness in this case and entire proceedings were conducted in his presence, however he has not at all supported the case of prosecution. In his examination in chief, he deposed that he does not know anything about the present case. This witness was cross-examined by Ld. SPP for the customs as he was resiling from his statement and was concealing material facts. In his cross-examination conducted by Ld. SPP for the customs, he deposed that "It is incorrect that accused present in the court was ever produced before me. I cannot identify him. I do not know Faiem. I have never seen him. It is incorrect that I have seen him and proceedings took place in my presence. It is wrong to suggest that I have signed SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 40/52 documents in his presence. It is wrong to suggest that I am concealing the facts as I have joined hands with accused. I have seen documents Ex. PW-2/T, PW-2/T1, PW-2/B, PW- 2/C, PW-2/D, PW-2/H, Ex. PW-2/E, I cannot say whether same bear my signatures or not. It is wrong to suggest that I was called by IO on 29.01.2017 at preventive office. I have never seen the case property. Now shown to me today. It is wrong to suggest that I am deliberately not deposing correctly being won over by accused."
39. In the cross-examination conducted by Ld. Defence counsel, he admitted and deposed that "I have been Panch Witness in other case also. It is correct that I never joined investigation in the present matter and nothing happened in my presence".
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40. From above discussion, it is crystal clear that panch witness has not at all supported the case of custom. This witness failed to identify accused in court and rather stated that he had never seen him. He failed to identify his signatures on the documents produced by customs and thus said documents have lost their veracity. He failed to identify the case property by stating that he had never seen the case property. Rather, in cross-examination, he admitted that he has been Panch Witness in other case also and that he never joined investigation in the present matter and nothing happened in his presence. His deposition in court has totally demolished the case of customs.
41. It is further pertinent to mention here that said Sh. Pradeep Sharma was also produced by Customs in case titled as Customs Vs. Farhan decided by this court on 14.11.2018, hence he seems to be a stock SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 42/52 witness produced by customs in witness box. So this witness has also weakened the case of custom department and in these circumstances his testimony has lost its credibility. Similar situation is with respect to witness Arfan Ansari who is also stock witness.
42. The Ld. Defence counsel has placed reliance upon judgment titled as Jagdish Vs. State of M. P. (2003) 9 Supreme Court Cases 159 wherein it was held that "Conviction under, solely on basis of testimony of PW 1 who searched the accused - appellant without any prior information or entertaining any suspicion regarding the involvement of appellant - Recovery of opium from appellant's attache - Testimony of PW 1 contradicted as panch witnesses denying that a search and seizure or recovery of opium took place in their presence SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 43/52
- Even driver and conductor of the bus declared hostile- Held, evidence on which prosecution case hinges suffers from infirmities and it would not be safe to rely upon the sole testimony of PW 1 to hold the appellant guilty - Hence, conviction and sentence st aside".
43. This above judgment is fully applicable to the facts of present case as panch witness has not supported the case of custom. He has denied his presence and signatures on documents. Thus the evidence on which prosecution case hinges suffers from infirmities and this court also observes that it would not be safe to rely on sole testimony of IO/Custom officer.
44. PW-7 Sh. Akhilesh Meena, Superintendent and PW-8 Sh. Jitendra Kumar, Assistant Commissioner had deposed regarding deposition of case property in SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 44/52 custom godown by ACO and regarding production of case property on 09.02.2017 before the court of Ld. MM Sh. Rohit Gulia for conducting proceedings U/s 52A of NDPS Act. In their deposition also, nothing contrary has come.
45. PW-9 Sh. R. K. Chauhan, Assistant Chemical Examiner, CRCL had proved the test report of samples sent for chemical analysis to CRCL which upon chemical analysis gave positive answer for presence of Codeine Phosphate. The test memo was proved as Ex. PW-9/A and test report was proved as Ex. PW-9/B.
46. Even otherwise also, this evidence itself is not sufficient unless corroboration is proved because report of Chemical Examiner only suggests that it was contraband material but still prosecution was bound to prove that it was recovered from the accused.
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47. PW-10 Sh. Radhey Shyam, WA-I, CWC, IGI Airport and PW-11 Sh. Anil Kumar, WA-I, IGI Airport are formal witness who had deposed regarding deposition of case property in the present case with DR no. 32163 and regarding withdrawal of case property respectively.
48. Sh. D. V. Singh, Assistant Commissioner was examined as PW-12 who had deposed that test report duly received from CRCL was put up before him and he marked the same to Sh. Jitender Kumar, ACS, Disposal for further necessary action. Nothing contrary has come in his cross-examination.
49. The last witness produced by customs is Sh.
S. K. Gautam, Air Custom Superintendent who was examined as PW-13. He deposed regarding proceedings conducted in his presence by IO after interception of accused on 29.01.2017. He also deposed that he wrote a letter dated 29.01.2017 to SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 46/52 Manager, CWC Warehouse for depositing the case property. He also deposed regarding recording of statement U/s 67 of Sh. Chandra Bhan Yadav, Sh. Rahul Kumar Rawat and Sh. Dinesh Rao. The letter dated 02.02.2017 was proved as Ex. PW-13/A. From his cross-examination, it is clear that only personal search of accused was conducted in his presence and he was not present when case property was opened by IO. In para No. 9 of his cross-examination, he admitted that "at the time of recording of statement U/s 67 NDPS Act, I alongwith accused and Sh. Rahul Kumar Rawat were present" however when said Rahul Kumar Rawat appeared in witness box as PW-4, in his cross- examination, he negated the fact of joining of proceedings in this case on 29.01.2017. He also admitted that he orally informed accused that he is a gazetted officer of Customs before his personal SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 47/52 search but same is nowhere mentioned on the documents on record.
50. Reliance is also placed upon judgment passed by Hon'ble Supreme Court in case titled as Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab & Anr. Reported in (2009) 12 SCC 161 and JT 2008 (7) SC 409 respectively wherein it was held that "purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement". In para No. 28 of said judgment, it was held 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 above judgment is fully applicable to the present case.
51. Reliance is placed upon judgment titled as D. K. Basu Vs. State of West Bengal (1997) 1 SCC SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 48/52 416 to contend 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".
52. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons-falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
53. It has to be kept in mind that whole area of SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 49/52 Airport is under CCTV surveillance. Rather, CCTV Footage of accused of particular date and time could have been placed on record to prove the case of prosecution and to ascertain the guilt of accused which has not been done in the present case. PW-13 Sh. S. K. Gautam, Air Custom Superintendent in his cross-examination recorded on 03.04.2019 in para No. 7 deposed that "There are no CCTV cameras installed inside the preventive room, however, green channel area outside preventive room is covered under CCTV Surveillance". So it is clear from his deposition that area from where bag of accused was seized, was covered under CCTV Surveillance.
54. As per the case of prosecution, if accused was having the bag containing contraband and baggage of the accused was appeared to be heavy from the bottom and he was apprehended and said baggage SC No. 4282017 Custom Vs. Faiem Ahmed Page No. 50/52 in question was x-rayed and contraband was recovered. Video recording of all these proceedings apart from his lifting the bag from belt should have been placed on record to prove the guilt of accused. Deposition of PW-2 regarding having no lock on the bag in question and further that he opened the bag by unzipping the same has also become fatal to the case of customs as observed above.
55. In the instant case all the procedural safeguards provided under a statute have not been strictly complied with. The prosecution has not discharged its burden of proving its case against the accused beyond all reasonable doubt.
56. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the opinion that there are many reasons to discredit the inconsistent testimony of prosecution witnesses.
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57. In view of the documents available on record, testimonies of the prosecution witnesses and the aforesaid discussion, this court holds that prosecution has not proved its case beyond shadow of doubt. He is given benefit of doubt qua the charged sections.
58. It is observed that the ingredients of section 21
(c), 23(c) and 28 of NDPS Act are not made out, hence, accused Faiem Ahmed is acquitted for the offence U/s 21 (c), 23 (c) and 28 of NDPS Act.
59. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. File Digitally signed by be consigned to record room. AJAY AJAY GOEL GOEL Date:
2019.04.23 13:16:21 +0530 Pronounced in the open court. (AJAY GOEL) Dated: 12.04.2019 ASJ/Special Judge (NDPS), Dwarka Courts, New Delhi.
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