Delhi District Court
Neetu vs State Of Himachal Pradesh, 2017(15) Scc ... on 4 February, 2021
IN THE COURT OF SHRI BHUPESH KUMAR, SPECIAL SUDGE- NDPS/ASJ (SOUTH), SAKET COURTS, NEW DELHL S.C. No. 7103/2016 Directorate of Revenue Intelligence Versus Rizwan Ahmad S/o Mr. Ahmed Hassan, R/o A-69, Khureji Khas, Badi Masjid, Delhi-51. Proprietor of : M/s Rizwan Exports, 58/2, Street no.6, Rashid Market, Delhi. Unique ID No. : DLST01-000297-2010 Date of Institution : 18.12.2010 Date of arguments - 16.01.2021 Date of Decision : 04.02.2021 JUDGMENT
1. The present complaint was filed U/s 9A. rhy Section 254 of Nps Act 1985 by Alkesh Rao, Intelligence Officer Directorate of > i TOTAL 33 SC no, 7103/16 BNienicbe, Spl. Judge (NDPS), South, Saket Ney, Dething 02 209 et teatare the C yfony Ld. Revenue, Delhi Zonal Unit, New Delhi, before the Court ¢ y
- ae taint that specific Predecessor Court. It hag been mentioned in complaint that 5} information was received at the Zonal Unit of DRI to the effect that a consignment of Ketamine was being attempted to be exported to Canada base consignee by Delhi based exporter M/s Rizwan Exports, 58/2, Street no.6, Rashid Market, New Delhi having Lec ney code No 0504082701 against shipping bill no. 1653146 dated 11.10.2010. On receipt of this information, officers of Directorate of revemne intelligence Delhi unit reached at export shed of ICD, 'Tughlakabad (TDK) on 13.10.2010, there they called two witnesses who were informed about the information. The witnesses were also informed that the said export consignment had arrived at ICD, TKD, New Delhi on 12.10.2010 and was lying in the examination area of export shed. The officers collected the copies of relevant pages of FSL Carting register in which the name of the export firm was reflected as Rizwan Shipping, bill no. 1653146, from the CONCOR, the custodian of the said cargo. Based on the CHA code reflecting on the export document the concerned persons of CHA firm namely Pradeep Kumar, G-card holder and Narender H- card holder of M/s Exim Cargo Services and Mr. Sarabjit Singh of M/s Speed Cargo were contacted and asked to appear in examination of goods. The proprietor of firm M/s Rizw an Exports was also contacted and was also asked to appear for examination of the goods. All of them arrived at export shed with copies of export documents of the said consignment. After reachine at examination ° & Z .
area, Rizwan Ahmed acknowledged that the said consignment Said consignment . . an . & being exported against shipping bill no. 1653146, invoice no. 19 > os SC ae, 710316 BhYpess Khe:
Spl. dudge --
pl tudge (NDS), South, Saket. New Deihi/04.02.2021 dated 06.10.2010 was his consignment. Thereafter, DRI officers, Inspector of Panch witnesses ie. Rizwan Ahmed, Tarun Kumar- custom, Export Shed of ICD, TKD, Pradeep Kumar G-card holder, Narender H-card holder and Sarabjit Singh, proprietor of M/s Speed Cargo went to examination hall of the export shed, where the said consignment was lying. Mr. Rizwan Ahmed identified the consignment consisting of 263 packet of various sizes including the metal boxes. The invoice no. 19 dated 06.10.2010 and the packing list revealed that the consignment consist various items like Agarbatti, Ganga Jal, MDH Masala, Sarees, Kapoor, Chunri etc. and it was further revealed from the said documents that consignment was being exported to M/s Madhvi Musical and Pooja Center, at Ontario, Canada and the total declared cost of the said consignment was Rs.14,84,126/-.
DRI started examination of said consignment after with the help the labour arranged by Mr.Rizwan. On_ external examination of all packets, Cardboxes were found to be packed in white coloured HDPE sheets and it was having description "From M/s Rizwan Exports, New Delhi, India, Inv no. 19, Boxes no., Lot no. and MMPC Ontario, Canada". Thereafter, each box was opened and examined in the presence of Rizwan Ahmed but nothing offending was noticed till examination of box no. 89. However, when box no. 90 was opened, it was found containing Sarees and old clothes and under the said items, white coloured transparent polythene pack containing white powder was found. On being asked, Rizwan admitted that said white coloured polythene contain Ketamine and further informed that there Were six more packets of ' acKets o SC no. 7103/16 Bhabech ke pry eer Spl. Jude S -
pl. Judge (NDPS), South, Saket, New Delhi/o4 02 202) . Simi » all the the same item contained in packet no. 91-96. Similarly, packets from Sr. no. 91-96 were opened and all were found containing the same white coloured transparent polythene . , . were containing white powder. Thereafter, boxes from 97 to 263 also opened and examined but the same were found containing declared items. Thereafter, the boxes from serial no. 91-96 were separated and were taken to AC Custom Export Shed office alongwith Rizwan Ahmed and Panch witnesses. The remaining boxes were placed in export shed. The box from serial no. 90-96 were thoroughly examined and found that polythene box containing white coloured granule powder were concealed under Sarees and old used clothes so that the same could not be detected easilv. The boxes from serial number 90-96 were given serial number | to 7. These packets were weighed at electronic weighing machine available in the import shed of ICD, TKD in the presence of Panch witnesses and Rizwan Ahmed and there gross weight was found as under < -
Packet marked No. 1 (90): 14.4 Kgs.
Packet marked No. 2 (91): 14.8 Kgs.
Packet marked No. 3 (92): 13.2 Kgs, Packet marked No. 4 (93): 15.6 Kgs.
Packet marked No. 5 (94): 12.0 Kgs.
Packet marked No. 6 (95): 15.0 Kegs.
Packet marked No. 7 (96): 16.4 Kes, Bhike ora x Spt Jutge (NOPS), South, Saket, New Detheng. a2
207) The collective weight of seven boxes was found to be 101.4 KG.
The adhesive tape and two layered polythene bags were separated from the material and each packing material was found to be of 13 . . ys Day -aleutated and gram. Then net weight of white coloured powder was calculate found as under :
Packet marked No. 1 (90): 14.387 Kgs.
Packet marked No. 2 (91): 14.787 Kgs.
Packet marked No. 3 (92): 13.187 Kgs.
Packet marked No. 4 (93): 15.587 Kgs.
Packet marked No. 5 (04): 11.987 Kgs.
Packet marked No. 6 (95): 14.987 Kgs.
Packet marked No. 7 (96): 16.387 Kgs.
Hence, net weight of recovered material of all seven packets was 101.309 KG. The Seizing Officer Rohtash took DRI seal from Mr. R.K.Rati on 13.10.2010 at 11 hours and returned the same on 14.10.2010 at 10.30 AM after completion of seizure formalities.
In the follow-up action, Mr.D.N.Nistane, Dy. Director authorized Rajender Verma, Intelligence Officer u/S 105 of Custom Act to conduct search at M/s Rizwan Exports, 58/2 Gali no.6, Rashid Market, Delhi. Mr. Rajender Verma, Intelligence Officer alonowith team of the officers conducted search at above mentioned premises in presence of two independent witnesses and certain documents found. These documents appear to be containing some incriminating facts.
The team alongwith independent witnesses reached at premises of ul : S$ =S C SC no, 7103/16 Bh deomscugetins Spl. Judge (NPPS), Soh, Saket New DelthivOd 02 202] Jt euh04 62 202 6 har ; ere the search was Rizwan Ahmed at A-69, Khajuri Khas, where the . . . ans were recovered.
conducted at his residential premises and two laptops We Panchnama dated 13.10.2010 was drawn to this effect.
In another follow-up action search authorisation was given by Sh. H. N. Meena Depuly Director DRI Regional Unit Ludhiana to Sh. R.K.Saini 1O DRI Ludhiana to search premises of Calcutta Music House railway road Jalandhar who alongwith his team of officers conducted search at said premises in presence of two witnesses anc certain documents were found. These documents also appear to contain some incriminating facts. Panchnama dated 14.10.2010 was drawn to this effect.
Accused admitted that recovered substance contained in seven boxes was Ketamine and he did not have any permission to export the same as required under DGFT Notification No67(RE)2004-2009 dated 27,12,2007. The recovery of approximate 101.3 KG Ketamine which was being attempted to export without permission of the competent authority was seized under the provisions of Customs Act, 1962. The declared value of export document was INR 14,84,126/, whereas the value of recovered Ketamine was Rs.40,52,360/-.
From each of seven boxes, three representative samples of 10 Gram each were drawn. The samples as well as remainino Ketamine a x were sealed. The Panchnama started at 15.30 hours 20.00 Hours on 13.10.2010.
and concluded ar Mr. Rizwan Ahmed made voluntarily Statement dated 13.10.2010 and 14.10.2010 U/s 108 of Custom Act, 1962 wherein. h ~. Wherein, he SC no, 7103/16 Blunkett y Spl Judge (NDPS), South. Saker New Dethi Odor 2a A072 2074 » * ® ~ : apap a < ayy ref oth er has inter alia, admitted the aforesaid recovery, SelZure and oth . . > " 7 ' : " ' sant . aye ) i coy incriminating facts. He further stated that he has sent three other air, one through ICD Tuglakabad consignments to one Prabha Karan N He has further stated and two through [CD Patparganj, New Delhi.
that he had been exporting various items lo Ontario Canada. His buyer from Canada on recent visit to India had gone to Jalandhar and told him that he has brought a consignment from Jalandhar and asked him to export it through his firm M/S Rizwan Exports and offered him Rs.One lac to him for exporting Ketamine. On his request, he arrangec to transport 7 cartons containing Ketamine to his own godown situated at 58/2, Gali no. 6. He also admitted that he and his buyer packed the said Ketemine in other carton boxes and concealed it under old and used clothes and covered with new Sarees so that the same were not visible to avoid detection. He also purchased other goods which were to be exported under shipping number 1653146, The buyer prepared the invoice and packing list on his laptop which was forwarded to Speed Cargo.
In his voluntarily statement dated 13.10.2010, U/s 108 of Custom Act, Mr. Pradeep Kumar has, inter alia, stated about recovery and seizure of Ketamine. He has further stated that he had processed the export documents of shipping bill no. 1653146 on the basis of documents and packing list of Rizwan Export received through Sarabjit Singh. He further stated that he knew Rizwan Ahmed through Sarabjit Singh. He was shown statement of Sarabjit Singh ot Ms Speed Cargo recorded on 13.10.2010. He agreed to the contents thereof.
SC no. 7103/16 an nares Sph Judge (NDPS), South, Saket, New Rathi o> 70 . SAV OF TON In the voluntarily shatement dated 13.10.2010 made by Mr. Narender Singh, H-card holder, inter alia stated that he was working with Exim Cargo and has handed over documents pertaining to bill no, 1653146 pertaining to M/s Rizwan Lixport and the shipment: was examined on 13.10.2010 by officers of DRE and recovered Ketamine had been served.
Sh.Sarabjit Singh of M/s Speed Cargo also made statement U/s 108 of Custom Act and stated that Pradeep Kumar of Exim Cargo was collecting his sca shipment from ICD, Patpar Ganj and Tuglakabad. When confronted with statement of Pradeep Kumar and Rizwan Ahmed he put his signature in token of having seen and reading the same and agreed the contents thereof in relation to his reference. He further stated that shipment in question of Rizwan Export was put under the process through shipping no. 1653146 dated 11.10.2010 by him and that Rizwan Ahmed was in negotiation with him for clearance since October, 2010 which was finalized on 06.10.2010 and as per negotiation he had agreed to arrange for flight and custom clearance te book a container with M/s Sea Sky and requested Rizwan Ahmed to get goods cleared from custom. He has also identified Riawan Ahmed.
proprietor of M/s Rizwan [xports.
The samples were sent to laboratory in intact condition tor testing vide letter dated 18.10.2010 and subsequent reminders dated 26.11.2010, 02.12.2010 and 7.12.2010 were sent requesting CRCL. to send testing report at the earliest, Vide report dated O7 122010. the contents of seized samples were found to be Ephedrine Mvdrochloride.
263 packets of various sizes containing other Puja items cle, had been SC no, THOG/6 rust as Spl dudee (NDPS), South, Saky esauth, Sakop New Dothvad OE deposited at ICD, Tughlakabad in intact condition. The accused Rizwan Ahmed was arrested on 14.10.2010 and was produced before the ACMM on 14.10.2010 and was remanded to judicial custody under Custom Act.
In view of report of laboratory, an application for initiating proceedings under NDPS Act was moved on 09.10.2010. Accused was produced before the Special Judge, NDPS on 10.12.2010 and was remanded to judicial custody for offence under NDPS.
The Ephedrine Hydrochloride is a controlled substance and the same is covered under NDPS Act. The report required U/s 57 of NDPS Act regarding production and arrest of accused was made before the Ld. Special Judge, NDPS Act, Saket by the complainant through his superior. It has been stated that accused has committed offence U/s 9A r/w Section 25A of NDPS Act,1985 and he may be tried and punished.
The complaint was initially filed before the Court of Special Judge, NDPS, Outer District Rohini, but it was transferred to my Ld. Predecessor Court, South, Saket. Thereafter, my Ld. Predecessor Court has taken the cognizance. The copies of complaint and documents were supplied to the accused.
2, Vide order dated 04.01.2013, my Ld. Predecessor had found that, prima facie, case is made out against accused for violation of clause 3,4 & 6 of the Control order issued under 9A of NDPS Act. hence, the accused has committed an offence punishable U/s 254 of NDPS Act. Separate formal charge was framed accordingly against the accused to which accused pleaded not guilty and SC no. F1O3/16 SC no sn PorKGt cs Spl. Judge (NDPS), South, Saket, New Delhicod 02 20
3.
4.
5. SC no. 7103/16 claimed trial.
The prosecution has examined 16 witnesses in support of its Case.
PW-1 is Alkesh Roy, Assistant Director, Enforcement Directorate, New Delhi. He deposed to the effect that the accused was arrested on 14.10.2010 by IO Manish Kumar Pinto for recovery of 101 KG of suspected Ketamine from him. Accused was correctly identified by him in the court. He further submitted that on the receipt of report from CRCL, it was found that substance recovered in this matter was Ephedrine Hydrochloride which is controlled substance under the NDPS Act. He has moved an application dated 10.12.2010 before the Special Judge, NDPS Court for granting judicial custedy of the accused under NDPS Act. Then the Court controverted the custedy of accused under NDPS Act vide order dated 10.12.2010. He further submitted that he had also submitted his report U/s 57 of NDPS Act regarding seized contraband substance to his Senior Officer, TassineSultan, the then appraiser, whose signature he can identify being his senior and he has seen him writing and signing the documents. The said report is Ex, PW1/B bear his signature of Mr.TassineSultan at point B. Then he was deputed by the then ADG, Rakesh Sharma for filing the present complaint vide authority letter Ex. PWI/C and the complaint is Ex. PW1/D. PW-2 Mr. Rajender Verma, IO is the witness who has carried out the search and seizure proceedings of contraband at house an haart DRY @ PS), South, Saker, New Dethioa.o2.202:
and Spl. Judge (ND ll office of accused. He has stated to the effect that he was working, as Intelligence Officer, DRI DZU, in the month of October, 2010. On 13.10.2010, search authorization was issued in his name by Mr.D.N.Nistane for checking the premises of M/s Rizwan Exports, 58/2, Street no.6, Rashid Market, New Delhi. He has visited the said premises alongwith his team where they found Mr. Rais Ahmed alongwith Ms. Sana were present. Before conducting search two public witnesses namely Mazhar and Khati Burahman were joined the proceedings. The witnesses and occupants were shown the authorization letter Ex. PW2/A. As per information provided by Rais Ahmed, ground floor of the premises was occupied by accused, who was not present there at that time.
During search of the said premises of accused, some documents were resumed for purpose of investigation as mentioned in annexure A of Panchnama prepared at spot. During further investigation he was told by Rais Ahmed that accused was residing at A-69, Khajuri Khas, New Delhi and thereafter all of them with public witnesses reached at the said premises where Smt. Talat Jahan, wife of accused was found present.
Then search of said premises was conducted and he seized two laptops vide Panchriama Ex. PW2/B. The annexure of A and B of Panchnama are Ex. PW2/B1 and Ex. PW2/B2. He further deposed that on 14.10.2010 vide his letter the sealed case property containing of seven sealed envelopes containing samples, 256 sealed packets containing Pooja items and 7 sealed packets containing substance to be Ketamine weighted 101.300 KG was got osited with Assistant issioner. Custome © dep Commissioner, Customs, Export Shed to SC no. 7103/16 mn Ranney 3 Spl. Judge (NPS), South, Saket, New Delhisod 92.202) [2 keep the same in safe custody, which was recvived by Sh. Tarun Kumar Saini, Inspector Customs who had also given . " . : attor 4 > . Ty .
acknowledgment in this regard on the letter Ex. PW2/C, Two laptops seized by witness were produced in the Court and were identified by the witness as Ex. P-1 and Ex.P-2. He further deposed that laptops were forensically examined on 15.12.2010. The witness was cross-examined at length by Ld. Counsel for accused.
However, the same shall be discussed at relevant time during appreciation of evidence.
6. PW-3 is Mr. TassineSultan, Assistant Director, Financial Intelligence Unit, New Delhi. He was also member of raiding party alongwith PW-2 Rajender Verma. He has deposed to the effect that on 12.10.2010 he was working as Appraiser, DRI, DZU, New Delhi. On said date, Dy.Director Mr.D.N.Nistane called him to his room and discussed with him qua intelligence report submitted to him by IO SI M.B.Pathak. After discussion with Dy.Director, he instructed him in writing to constitute the team of officers for conducting raid in view of information. Then he constituted the raiding team comprising of SIO Man Singh Yadav, IO Rohtash Pandey, IO Manish Pinto to visit ICD, TKD and he also constituted a team comprising of himself, IO Rajender Verma, Smt. Anju Singh. He has brought the intelligence report on record as Ex.PW3/A. He further deposed to the effect that on 13.10.2010, he alongwith Rajender Verma and other team member, went to conduct search proceedings at premises of M/s Ri. m p gs at premises of M/s Rizwan Exports at 58/2, Gali no.6, Rashid Market. At the said premises two publi Ses two public witnesses were called by the IO for scarch proceedings, One tad be. Uae Lq¢ y SC no. 7103/16 wiNdssrrrene K2 & 1 I re iN] ' y PL Judpe (NDPSy South, Saku. New Delhieu, a2 x9 1 SC no. FIO3/16 13 : we and Ms.Sona were shown Sona was present there, Both witnesses and Ms.Sona we ahh nn aaare ~ the premises Was such authorization. 'Thereafter, search o! the prem ' : . PETES AS THEY io xd in conducted by 1O, who has seized some documents as mentione annexure A and two laptops as marked B of Panchnama dated 13.10.2010. Panchnama of seized laptops and document ts pix, PW2/B with its annexure Ex. PW2/B1 and B2. He further deposed to the effect that on 18.10.2010, he had forwarded 7 scaled sample boxes in duplicate through Hawaldar Bhopal Singh, DRI for depositing the same with CRCL with fetter is Ex. PW3/B. Hawaldar Bhopal Singh intimated and given one acknowledgment of CRCL regarding receipt of sample packets and he has handed over the said receipt to concerned [O. He further deposed that on 02.12.2010 he sent Hawaldar Bhopal Singh to collect the report from CRCL through letter Ex. PW3/C and Bhopal Singh told him that report was not ready. On 07.12.2010 he again sent Bhopal Singh to CRCL alongwith letter Ex P'W3/D to obtain the result, On the same day Hawaldar Bhopal Singh has given him scaled test report and remnant having seal of CRCL and he had further handed over the same to the concerned IO. He further deposed that as per test report, the CRCL had opined that samples were positive for Ephedrine Hydrochloride which falls under NDPS Act. Then IO had sought judicial remand of accused under NDPS Act, He further deposed that IO Manish Pinto has also forwarded seizure report of contraband of seized substance vide Panchnama dated {3.| 0.2010, The report of said seizure which was initially suspecte d to be Ketamine was forwarded to him in the form of note-she tof tt t note-sheet of the investigation file which he marked to his Senior oft . COUS LC.
indeameaety Spt ftljse 4G pt itd (NPS), Sonat, Sahor New Delhiaid ar vaay ~ oki whet SC na. 7/03/16 14 Assistant Director, Mr. Nilank Kumar, which is Ex.PW3/E. The . . Le 4, ' .C Te iS Cross~ witness has identified the accused in the Court. He wa examined at length by Ld, Counsel for accused. However, the same shall be discussed at relevant stage at the time of appreciation of evidence.
PW-4 is Insp. Rohtash Pandey. He has made similar deposition to that of PW-3 Mr.TassineSultan qua receipt of intelligence report and constituting two raiding teams. He further deposed that one raiding team consist of SIO TassineSultan, IO Rajender Verma and Smt. Anju Singh, as standby team, and another team consisting of himself, M.S. Yadav-SIO, Manish Pinto-IO. He further deposed thai he alongwith other members of raiding party left for the spot i.e. ICD, TKD and before leaving the office he had collected the seal of DRI having impression of Director of Revenue Intelligence from the dealing officer for which he made entry in the seal movement register, signed by him. He further deposed that on 13.10.2010, raiding team had reached at ICD, TKD and they inquired from the Custom Office regarding number of shipping bill of consignment material to be exported by Rizwan Ahmed. On their request, the custom office provided them shipping bills alongwith other relevant documents i.e. invoice of Rizwan Ahmed. They were also provided with relevant shipping bill. SIO M.S.Yadav issued letter to Dy. Commissioner, ICD not to allow any kind of change in the said shipping consignment. Then they called two public witnesses namely Gurdarshan Singh and Raju to join raiding team after disclosing them about intelligence available with them. Thereafter. he contacted Pradeep Kumar, G-card holder and one Hee BA ius, 5 Spl fudge (NPPS}, South Saket ard holder New Dethicdd 02 202] iS of M/s Exim Cargo Services who had told them that relevant shipping bills were filed by them on behalf of M/s Rizwan Exports, proprietor firm of Rizwan Ahmed and on their asking they had also contacted accused who subsequently arrived in the export shed. He further deposed that then he called Mr. Sarabjit Singh of M/s Speed Cargo. All the said persons arrived at the export shed alongwith copies of said documents filed for export of suspected consignment. They had also procured copy of invoice no. 19, packing list and other relevant documents from the customs and from perusal of documents it was found that consignment was consisting of Agarbattis, MDH Masale, ladies Sarees etc. and was to be exported to M/s Madhvi Musical and Puja Center at Canada and the declared cost of consignment was Rs.14,84,126/-. The witness further deposed that labour was arranged by accused. Then the consignment was examined which contained cardboard boxes wrapped in HDPE sheet and on each of the box "from Rizwan Exports, New Delhi alongwith other details i.e. invoice no.19, box number, lot number and also having written the name and address of consignee i.e. MMPC, Canada" was written. Thereafter, they started examining the said consignment at identification of accused which was found containing 263 packets of carton boxes. From examining of box no. 1 to 89 they did not fing anything incriminating. However, in box no. 90, they found that same was containing Sarees and other old used clothes and one white coloured transparent polythene bag containing white colour powder in granule form. On their inquiry from accused, he informed them that said material as Ketamine. The accused further informed that SC no. 7103/16 indoors a Spl. Judge (NDFS}, South, Saket. New Defhy04.02 202} 16 mine was also concealed in more Six boxes
6. Thereafter, they started granule powder said substance of Keta of said consignment from serial no. 91-9 examining box 91-96 and found white coloured packets. Then they examined the box from xes were found containing concealed in all the said serial no. 97-263, however, the said bo goods as declared in the invoice and packing list. The witness further stated to the effect that he has given serial no. 1 to 7 to kets, having serial no. from 90 to ch of the box was contraband of the above seven pac 96 for the purpose of identification. Then ea weighted on electronic machine and the gross weight of the same was found to be 101.4 KG. Then after separating the material from packets, it was again weighed and the net weight of the contraband of all seven packets was found to be 101.309 KG. On inquiry, accused has informed that he did not have any permission from DGFT notification issued under Foreign Trade Development Regulation Act, 1992 to export the said consignment of Ketamine. Then they informed the accused that Ketamine falls under the category of prohibited goods and cannot be exported without 'no objection certificate' and the same is liable for confiscation. Then the substance suspected to be Ketamine was seized alongwith its packing material. He had taken out three samples of 10 gram each of the substance from all above seven packets, which were marked Al, A2, A3 to GI, G2, G3, respectively. It was sealed with the seal of DRI over paper slip. The signature of accused was also taken on the paper slip. He further submitted that remnant contraband of all the seven boxes was kept by him in the same polythene packet from which the same were recovered and thereafter the same were kept BHLDES TK AA Spi. Judge (NDPS}, South, Saket, New BeliiCd 02202 SC no. 7103/16 17 in cardboxes from which the same were recovered and those . 9 cardboxes were sealed with the seal of DRI. The remnant 256 aled by him in the same manner 90-96 were boxes of said consignment was se and the custody of 263 boxes including packet no.
handed over to custom officer Mr.Tarun Kumar Saini who remained present with them in the entire search and seizure proceedings on behalf of the custom. The estimated value of contraband was found to be Rs.40,52,360/-. He prepared Panchnama Ex. PWS5/A for recording search and seizure proceedings which were signed by him, witnesses, accused, Custom Officers, one officer from CONCOR, Pradeep Kumar, Narender and Sarabjit Singh. The impression of the seal used was also appended by him on the Panchnama Ex. PW5/A. It was also signed by all the persons present on spot including accused. He further submitted that vide recording Panchnama the weight of the material was mentioned 101.26 KG which was bonafide clerical mistake. However, the total weight of the contraband was 101.30° KG. He had also prepared test memo during Panchname proceedings and facsimile of the test seal was also appended on the test memo on Ex. PW4/Al to Ex.PW4/Al4. The witness further submitted that proforma portion of test memo from point X to X1 were prepared by him. The witness has correctly identified the accused. The case property was produced during evidence of this witness First of all, all seven envelopes duly sealed with seal of CRCL were produced in the Court as Ex. Pl to P7, Oy opening of each of the packet, it was found that it was containing some writing i.e. sample drawn from packet no. 90 op DE. Pp p (1) under Panchname dated SC no. F1GI16 ap aabicaremty Spl. Judge (NPS), South, Saket, New Dethioet he SEW Det 0d O72 23} 18 13.10.2010, drawn at ICD, 'Tughlkabad from export consigamen| of M/s Rizwan Exports (A)(1) and above endorsement was appearing:
on all above envelopes were same except the changes about packet number i.e. 91(2) to 96(7), with respect to marking Bi, Ct, Ob El, Fl & Gl, respectively. On further opening of these envelopes. each of the envelope further contained onc smal! polythene pouch containing white coloured powder which was identified by withess and further deposed that these are samples received back after examination by CRCL as remnant sample and were brought on record as Ex. P-7/l to Ex. P7/7. Apart from the pouch tt alse contained paper slip bearing signature of the witnesses. The paper slips were exhibited as Ex. P-8 to P-14. The witness has also identified another seven envelopes duly sealed with seal of DRI. The envelopes were exhibited as Ex, P-15 to P-21, Each of the packet was opened which contained some writing i.e. sample drawn from packet no. 90(1), Panchnama dated 13.10.2010 etc. The endorsement appearing on the above envelopes were same except the changes about packet number i.e. 91(2) to 96(7), with respect to marking B2, C2, D2, E2, F2 & G2, respectively. On further opening of the envelopes, the same were containing paper slips EX. P22 to Ex. P28 and one small polythene pouch containing whit« coloured powder and the witness identified the same as sample drawn by him from the case property as Ex. P-29 to Px, P35. 'Ihe witness has identified his signatures and signatures of witnesses on the paper slips. Then seven other packets were produced in. the Court wrapped with HDPE sheet, sealed with Lae on the stitched portion (it was observed that some seals were broken and samp! os EOS CUELO RG SC na, 7103/16 Bhi Pronk) Spl Judie: (NDPS), South, Saket. New Dein ao MAMBO Oa tay SC no. 7103/16 19 seals were not readable). HDPE sheet of packets were exhibited as Ex. P-36 to Ex. P-42. 'The paper slips containing the pas exhibited as Ex.P-43 to Ex.P-45. The paper slips were bearing pened after removing kets were signatures of witnesses. The packets were 0 the Lac seal. On opening the packet bearing no. 90, it contained some powdery substance, Sarees and the same were identified by witness as Ex. P-46 & Ex. P-47, respectively. On opening the packet bearing no. 91, it contained some powdery substance Ex. P- 48 and Sarees Ex.P-49 and the same were identified by witness. On opening the packet bearing no. 92, it contained some powdery substance Ex. P-50 and Sarees Ex.P-51 and the same were identified by witness. On opening the packet bearing no. 93, it contained some powdery substance Ex. P-52 and Sarees Ex.P-53 and the same were identified by witness. On opening the packet bearing no. 94, it contained some powdery substance Ex. P-54 and Sarees Ex.P-55 and the same were identified by witness. On opening the packet bearing no. 95, it contained some powdery substance Ex. P-56 and Sarees Ex.P-87 and the same were identified by witness. On opening the packet bearing no. 96, it contained some powdery substance Ex. P-58 and clothes Ex.P-59 and the same were identified by witness. The Sarees and polythene packs containing powdery substance was found in the cardboxes which was also containing seven paper slips Ex, P-60 to Ex P-66 The cardboxes brought on record as Ex. P-67 to Ex. P-73. Then three HDPE packets duly stitched and sealed with seal of DRI was produced in the Court. The paper slips were taken, out from the said e { packets as Ex. P-74 to Ex.P-76. On opening of one of the packet CHI phpean ROTA Spl ludge 3 Pp ge (NDPS), South, Saket, New Delhizi4.02 2021 SC no. 7103/16 20 containing six card boxes with number 151, it was found that it was contained plasue jar of Gangoiri Purest Ganga Jat which further
77. HDPE sheet as px.P-78, Card box etc. were collectively Ex. P . . ¢ spy ew ate om As as Ex.P-79. On opening of packet bearing, no, 49 the same was containing six card boxes of Gangotri Ganga Jal as Ex.P-80, HDPE ete, and certain jars which were collectively brought on record sheet as Ex.P-81 and cardboxes as Ex.PW-82. The witness further submitted that he had taken the seal on 13.10.2010. Photocopy of seal movement register was brought on record as mark P4/A. PW5 is Mr. Gurdarshan Singh, who was working as Sales Executive in the proprietorship firm namely M/s. Speed Cargo Movers. He deposed to the effect that the work of their firm was to book the consignment for sending the same abroad. On 13.10.2010, he had visited ICD, TKD with Sh. Sarabjit Singh, proprietor of M/s. Speed Cargo Movers on receipt of call from customs regarding some queries. He further submitted that he does not remember the exact date but he was asked to sit in a separate room outside the office as some queries were required to be conducted from Sh. Sarabjit Singh and he was told that if he wanted to leave the ICD, he was free to do so. He further deposed to the effect that on the next morning, he was told that some white colour powder has been recovered from the seized consignment, regarding which a container was booked with them to send the consignment to Canada. The container was booked by them on behalf of M/s. Rizwan Exports, owned by one Rizwan Ahmad.
He has identified the accused in Court. He further deposed that when he arrived in the ICD area, accused Rizwan G-Card Hold
- Tolder anos Spl. Judee (NDPS) < pl. Judge (NDPS), South, Saket, New Dethis0d 02.202] Re ne. TO3/10 al and HeCatd Holder of CLEA, (Clearing House Agent naa Pradeep Kuni and Rajender Kuni were also presvat AS per the documents Le. invoice and the packaging list, the consignment consisted of Peaja Seaman' but tie has not seen the contents alike consignment. The cousigninent consisted of avout 290 packels but exact number of packets were mentioned in the TaaReaks, He further stated that he cannot tell in whieh particule packet having any particular serial number. white colour powder ot Objectionable substimee was recovered, Llowever, th was recovered from seven packets and the total weight of white powder wis around 100 Ke. He was told that the substance was required to be sent to laboratory. The paekets were of cardboard boxes and the powder was concealed in some other articles, but he had not seen the same. 'The weight of the substance might have been taken by the DRI officials inside the premises ef LC) aud he was ory fold about the total weight ef the subsiumee. ta his presenee, no sealing work was carried out, He was sitting tn the warchouse aren outside the office of Customs Departnent and fe was only told that the substance separnted for the SUMTER Was to be sent te same laboratory. One decument called Panclusaae Was prepared by DRI officials regarding the proceeding condneted The itvetoe atid packing Hist ete. were also taken ito possession | there and he had also signed the document as vvitnoss documents pertaining 10 above consignment like wWoihe DRI offivers bul same were not signed by hin, Uhe witness | ' S WAtleNS Has identified his signatures on Persechaeneg Ly. PWAPA aud it : wg i 4 Us annexures colleetively Ux, PWSAR (cousisting of 2x Pies), "PY ge bod TERT Te a i Spl didhee (NDP seni goa seedy Ratha Nowy Vathy ure iy yaya SC na, 7103/16 22 containing remaiming witness has identified -- the packets f PW4 Sh.
contraband substance opened during the evidence © Rohtash Pandey in seven packets bearing DO. 90 to 96. The witness has also identified his signatures at point Z2 on Paper slips Ex. P43 to Ex. P45. He further identified his signatures on paper slips Ex. P-60 to Ex. P-66, Ex. p-74 and Ex. P-75. The envelopes Rx. Pl to P7 were opened, found containin hes but the witness has stated that the g white colour substance in plastic pouc samples were not drawn in his presence. The witness Was CrOss- examined by Ld. Special PP for DRI with the permission of Court on the ground that he was resiling from his earlier statement.
as suggested to the witness that he DRI officials During the cross-examination it w when he was sitting outside the DRI office, t requested to join the proceeding regarding the consignment booked for export by M/s. Rizwan Exports. He further stated that he does not know that another witness Raju was called to witness the proceedings. The witness has denied the suggestion that at request of DRI officials, he agreed to join the proceeding Le. examining the goods booked by M/s. Rizwan Exports. It was suggested to the witness that the accused Rizwan Ahmad identified the consignment consisting of 263 packets of various size including two metal boxes. The witness has also denied that the entire proceedings were conducted by the DRI officials in his presence on 13.10.2010 during 15:30 Hours to 20:00 Hours. The witness also denied the suggestion after collecting all the documents, the DRI officials started examination of said consignment. The witness has not supported the case of on Roomate Spl Judge (NDPS), South, Saket, New Dethi/04.02.202! 9, 20 ; ave as effected in his prosecution on the point that the recovery was efle presence, PW6 is Mr. V.B. Chaurasia, the Chemical Examiner. He deposed to the effect that he was posted in the Narcotic Section, CRCL in the month of November 2010 where seven sample packets were already received on 18.10.2010 during the period of Ms. Meenakshi Gupta, Chemical Examiner, CRCL. He further deposed that on 01.12.2010, the samples packets were taken out from Strong Room by Mr. Ajay Sharma, A.C.E. for chemical analysis. The samples were in sealed and intact condition and the facsimiles of the same tallied with the facsimile given on the test memo. The packets were opened and were analysed and it was found that the material containing the samples were Ephedrine Hydrochloride. After analysing, the remnants were sealed with the seal of CRCL and final analysis report was issued under his signatures on the back side of test memo vide Ex. PW4/A8 to Ex. PW4/A-14 and the same are exhibited as Ex. PW6/A1 to AZ. The short analysis report was also given in Section-2 of test memo Ex.
PW4/A8 to Al4 under the signatures of Mr. Ajay Sharma, A.C.E..
10. PW7 is Mr. Bhopal Singh, Head Hawaldar. He is the link SC no. 7/03/16 witness, who has taken the sample from the office of DRI to CRCL. He deposed to the effect that on 18.10.2010, Senior Intelligence Officer (S.I.0) Mr. TassineSultan handed over seven sealed packets along with test memo in duplicate to him oNieoraty Spl Judge (NDPS), South Saket, New De] s Saket New De along hi/OS 02 2023 oa ay with authority letter and he took the same to CRCI. and deposited the same over there. He further deposed that he was given authority letter and the above seven packets afler sealing the same in his presence, were given to him for depositing the same in CRCL. The receipt in this respect was issued by CRCL. He identified his signatures on the authority letter given by Mr. Tassine Sultan as Ex. PW3/A and receipt issued in the name by CRCL vide Ex. PW7/A. The witness was cross-examined by Ld. Spl. PP for DRI on the ground that he has not deposed properly on certain aspects. During cross-examination, the witness submitted that the samples were never sealed in his presence and his deposition in this respect has been made by misiake. The witness further submitted that on 02.12.201 0, he was given authorization letter for collecting the report but the same was not ready. On 07.12.2010, he was again given authorisation letter, which is Ex. PW3/B.
11. PW-8 is M.B.Pathak, IO DRI. He deposed to the effect that on 12.10.2010 he received secret intelligence report on telephone that approximately 100 KG Ketamine was to be exported in the export consignment of M/s Rizwan Exports. He had reduced the information into writing and put the same before Sh.D.A.Nistane, the then Dy.Director DRI. The witness has brought the intelligence report on record as Ex. PW3/A.
12. PW9 is Mr. Manish Kumar Pinto. He was also member of the raiding team. He made similar deposition to that of PW-4 Rohtash Pandey in respect to search and seizure at ICD, TRD on SC no. 7103/16 wibDosnssom Ls Spl fudge (NDPS), Sout, Sake, New Dethifod.02.202) 25 13.10.2010. He further deposed that the statement alter wan Ahmad 10.2010 Panchnama procecding, ihe staternent of accused Biz an Singh Yadav on 13-14.
gubmitted that he has willingly Nair, owner of M/s. Madhvi was recorded by $.1.0., Mr. M under Customs Act, in which he procured white powder from one Mr. Musical Pooja Centre, Canada for exporting the same under the pretext of Pooja material like Agarbatti, Gangajal etc, He also submitted that he did so for monetary consideration of Rs. | Lakh.
Pradeep, G-Card Holder }, Mr. He further stated that statements of Mr. and Mr. Narender, H-Card Holder of Exim Cargo (C.H.A. Sarabjit Singh of M/s. Speed Cargo, were also recorded by Mr. Man Singh Yadav under Customs Act on 13.10.2010 and in their statements, they stated that they have proceeded the papers for export in respect of seized consignment of M/s. Rizwan Export.
He further submitted that after approval, he has arrested the accused on 14.10.2010 at 1230 pm and the accused was subsequently got medically examined at R.M.L. Hospital. The arrest memo of accused was proved by this witness as Ex. PW9/A, Jamatalashi memo of accused as Ex. PW9/B and the MLC vide which the accused was medically examined, as Ex. PWI1/A. The witness further submitted that before the arrest of the accused, the file was put up before Mr. TassineSultan, Appraiser, by him on 14.10.2010, explaining the recovery seized etc. The said note sheet is already Ex. PW3/F. On 15.10.2010, he again put up the note before senior officer, intimating him regarding arrest of accused and medical examination etc. vide note sheet Ex. PW9/C
13. PWI0 Is Mr. Man Singh Yadav, Assistant Director a SC no. TLOBAG oe Spl. Judge (NDPS), South, Saket, Mew Dethios 02 20274
14.
15. SC no. 7}03/16 26 Enforcement. He was also member of the party, conducted search at 1.C.D. Tughalakabad and made similar deposition to that of PW4 Mr. Rohtash Pandey and PW9 Mr. Manish Pinto in respect to the search and seizure of the items. The witness further submitted that the statement of Mr. Pradeep Kumar, Sarabyit Singh, Narender Singh and accused were recorded in his presence and brought on record the statement of Mr. Pradeep Kumar as Ex, PW10/B, statement of Mr. Narender Singh as Ex. PWIO/C, statement of Mr. Sarabjit Singh as Ex. PW10/D and the statement of accused Rizwan Ahmad as Ex. PW10/E. PWI1 is Dr. Rajnish Kaushik, Casualty, C.M.O. of R.M.L. Hospital. He deposed to the effect that on 14.10.2010, he has medically examined one person namely Mr. Rizwan Ahmad vide MLC Ex. PWII/A. PW12 is Mr. Ajay Sharma, Assistant Chemical Examiner. He deposed to the effect that on 01.12.2010, he had taken the samples to the Strong Room and chemically examined the same in presence of Mr. V.B. Chaurasia, the then Chemical Examiner and on chemical examination, the material was found positive for Ephedrine Hydrochloride. He further submitted that samples were again sealed with the seal of CRCL and final analysis report was issued under the signatures of Mr. V.B. Chaurasia. The report is already Ex. PW6/A1 to Ex. PW6/A7. The short analysis report was given in section-2 of the test report vide Ex, PWI2/Al to PW12/A-14 by him.
DHRC be Spl Judge (NDPS), South, Saket, New Dethis04.02.2021 '* PARE Ue CU! a?
Tis S3
16. PW13 is Mr. Rajkumar Digvijay, Joint Commissioner. Cents Excise. Delhi. He deposed to the effect that in the month 0} one day October 2010, he was posted as Deputy Commissioner, Tughalakabad, He further deposed to the effect that during the said month, certain DRI officials carne {6 him a sd tole him that they have information that there was contrabant substance in one export consignment of M's. Rizwan Expo They were having one shipping bill. He checked the same on system and identified the position of the consignment and the officer, who was handling the goods. He called Mr. TS. Saini, Inspector and instructed him providing of necessary assistance for examining of the said goods by the DRI officials. Anter examination of the goods, the officers of his office and DRi officers told him they have detected some contraband substance in the consignment and they want to hand over the goods back 1 them. He instructed his officers to receive the goods and keep the tn same in warehouse ie. CONCOR. One letter was signed. vide © por fe;
wet cy ' ta wal fi which the seized case property was handed over by Ex. PWI3/A.
17. PWi4 is Mr. Ramesh Sharma. Assistant Commissioner, Centra:
Excise (Ludhiana). He deposed to the effect that on 14.10.2010, while he was posted as senior intelligence officer, FRI, Amriss he conducted search of a business premises of Catoutta Music Bh AAAS LWELIMSA House Railway Board, Jalandhar, on the basis of warrant issued Be Mr. HLL. Meena, the then Deputy Directer, Ludhiana, Two fips 2:ik> containing documents related to export of musical instmumenss MELE ORPPSEP Epes were covered and taken into possession by MrROK) Sani y ide
- < mR aANS& SC ne FIGES ----
18.
19. SC na. FIOS/IG Panchnama Ex. PWI454. The stateres partner of M/s. Calcutta Music House. W Customs Act, which is Ex. PWI4-R. tA nwo + ' tT Ps + ett j as PW15 is Mr. D.A. Nistane. He deposed to the esc that he w ctor. In the posed at DRI, DZU from 2008 to 2010 as Depure Direc instant case, on 12.01.2010, he recet ived intelligence report irom Mr.M.B. Pathak. Intelligence Officer. regarding attempt t export contraband i.e. Ketamine drug in export consignment concealed in This report was placed before Mr. MLB.
miscellaneous goods consignment.
him on 12.16.2616 at about 11:30 am 1140 am bs Pathak, 1O. On the perusal of the said report. two teams of the officers were formed for initiate action on the said information. The endorsement on the said intelligence report in his hand writing, is already Ex. PW3)A. The witness further submitted that he has discussed the matter whith Sh. Tassine Sultan. the then appraiser, SIO. On 13.10.20210, he has tssued the search authorization vide Ex. PW2°A in favour of Mr. Rajender Verma.
the then IO, to conduct the search of M's. Rizwan Exports.
PWI16 is Mr. Mazhar Sabri. He deposed to the effect that ir October 2010, he was residing in the area of Rashid Marker, New Delhi. On October 2010, some government officials visited their colony. He was present in his house, when niece of Rizwan (the accused) had come to his house and told him that some government officials were calling him. When he reached ar premises no. 58/2, Gah no. 6, Ground Floor, Rashid Market. he found 4-5 officers and told themselves to be officers of DRI. He Rus T Rita Spi Fudge (NDPS) Stith Sate. se Sench sea Dathycs ct 29 was told that they have taken some files and documents, which were already listed by them and they have to take the files and documents with them. He signed the list of documents as witness and after signing the same, he had left the place. The witness was shown Panchnama Ex. PW2/B and on looking at the same, the witness submitted that he has signed this document when it was blank. The witness further submitted that annexure A and B of Panchnama Ex. PW2/B1 and Ex. PW2B2 bear his signatures. The witness was cross-examined by Ld. Spl. PP for DRI, but during the cross-examination of Ld. Spl. PP for DRI, the witness denied all the queries put up to him by way of suggestion in respect to the raid conducted by the DRI and the recovery of the articles etc. The prosecution evidence was closed.
20. The statement of accused was recorded u/s. 313 Cr.P.C., SC ao. TIGH16 wherein, he has impleaded false implication and innocence. He further deposed that he was forcibly picked up from B.L. Kapoor hospital where he was taking care of his nephew Anish Raja who was admitted in said hospital. He has to deposit money in the hospital. He was brutally tortured and compelled to write a statement and according to their dictation, he did to save his fife. They had also taken his signatures on many blank papers and on written/printed papers and did not allow him io read the written documents. He was never present on the spot of alleged reeovery of contrabands nor any proceedings were conducted in his presence. The accused further stated that he intends to lead defence evidence.
= Br Wes Ry ye Spl Judge (NDPS) Routh Saker, Ney Detavit o2 2054 30 . aecuged in his defence.
2). DWE Saad Mushtaq wats examined by the accused in AIS fied Unani Dowt last 1 years. On | . a or and know He deposed to the effect that he is a quali aceused Rizwan Abmed who was his patient for the 14.10.2010, at about 9-10 AM, accused ¢ LL. Kapoor hospil ame ta him and requested to w Danish 1, He accompany him to B. al as his nephe suffering from Dengue was admitted there, who required blooc hat while going to hospital, they stopped at J&K Bank, Connaught Place and went to the said bank to callect money apoor hospital at about 11 AM. At dto blood, suddenly further deposed t and thereafter they went to BL K the reception while they were discussing in regar 5-6 persons in civil dress approached them and inquired their names. They disclosed their names to them. The said officers after hearing their conversations with regard to blood asked accused to help him for providing blood. Thereafter, they asked accused to come out of the hospital, then they gave slap to accused and took him to a vehicie and when he inquired as to where they were taking him, instead of answering the same they threatened him take him alongwith accused. Accused was asked to sit in the vehicle and left the spot by giving warning him not to make any complaint. After few days from the neighbourers and family members of accused he came to know that he was falsely implicated in this case.
22, | have heard the arguments of Sh. Satish Agarwal, Ld. Sr. SPP for DRI and Mr. $.8.Dass, Ld. Counsel for accused. Written submissions have also been filed on behalf of DRI as well as accused = as accused, 93, Ld. Sr. SPP for DRI has submitted that an 12.10.2016. PW-s SC no. 710216 Nee ne BRASH Rima?
Spl Midae (NDPS), South. Saker. New Dethine ac tnt 3] M.B.Pathak received intelligence report Ex. PWw3/A to the effect that approximate 100 KG of Ketamine was to be exported in the export consignment of M/s Rizwan Export. He has placed the said intelligence report before his senior officer pw-15 D.A.Nistane, Dy. Director who has made office noting dated 12.10.2010 at point A on intelligence report Ex PW3/A to form a team for surveillance and suitable action. Then vide official noting from Point X to XI op intelligence report Ex. PW3/A duly signed by appraiser TassineSultan, IO Rohtash Pandey, and SIO Man Singh Yadav, two teams were constituted. First team was comprising of PW-4 IO Rohtash Pandey, PW-9 IO Manish Pinto and PW-10 SIO Man Singh Yadav and they were directed to visit ICD, Tughlakabad and for surveillance and search proceedings. The second team was comprising of SIO Tassine Sultan, IO Rajender Verma and Ms.Anju Singh was formed as standby team. The team consisting of 10 Rohtash Pandey, 1O Manish Pinto and SIO Man Singh Yadav went to ICD, Tughlakabad, where they enquired from Custom Officers regarding shipping bills pertaining to M/s Rizwan Export and PW-10 SIO Man Singh Yadav has given letter Ex. PW10/A to DC, Export not to allow any changes in consignment. Then said party has joined Gurdarshan Singh and Mr.Raju as independent witnesses, Pradeep Kumar G-card holder and Mr.Narender H-card holder of M/s Exim Cargo and Sarabjit Singh of M/s Speed Cargo to the investigation. Accused Rizwan Ahmed was also called on spot through Sarabji Singh. Then in the export shed of ICD, Tughlakabad, the consignment consisting of 263 packets of carton boxes were identified by the accused by stating that the same belongs to him
- Tet Ne ¢ SC na. 71OSNG Aver aby Spl Judge (NDPS), South, Saket, New Dethi/os 02 202) 32 Then on search of all these 263 packets, it was found that apart from other material, packet no. 90 to 96 found to be some white coloured substance. The accused told the raiding team that said substance consist of Ketamine. The samples were drawn from said seven packets. The remaining substance and the samples were sealed with seal of DRI and beneath the each seal, paper slip was attached duly signed by accused and other Panch witnesses. The Panchnama of the proceedings was prepared which is Ex. PW5/A. The statement Ex. PW10/B of Pradeep Kumar, statement Ex. PW10/C of Narender Singh both of M/s Exim Cargo and statement Ex. PW10/D of Mr. Sarabjit Singh of M/s Speed Cargo were recorded U/s 108 of Customs Act, wherein, they have inter alia, stated that accused has booked the said consignment in question and the same belongs to him. It is further submitted that statement of all these witnesses can be read in evidence as the statements have been duly proved by PW-10 Man Singh Yadav, who has recorded these statements. It has been further submitted that the statement of accused recorded U/s 108 of Customs Act can be read as statement U/s 67 of NDPS Act.
It has been further submitted that the statement of accused Rizwan Ahmed Ex. PW10/E was also recorded U/s 108 of Customs Act and he has also admitted that consignment belongs to him. The accused was arrested vide arrest memo Ex. PW9/A on the ground that he attempted to export Ketamine in contravention with U/s 108 of Customs Act. The samples were sent for chemical examination and vide chemical examination report Ex. PW6/A1 to By. PW6/A7, the material was found to be Ephedrine Hydrochloride which SC no. 7103/16 Niposeiatey Spl. Judge (NDPS}, South, Saket New Deli is nVO4.02,202] Then the custody of accused Ape ote tecatian bx. PWI/A, vide was converted under NDPS Act vide applicallon iy PWIA, vide controlled substance in the NDPS Act.
. . . . . . -- > vedaasge Qt wd ad order dated 10.12.2010 of the Court. If has been further submitted that compliance of Section 37 of NDPS Act was made by the IO.
immediately thereafier and the same is E's. PWI/B. it has been further submitted that at ICD, TKD the documents WIZ, IAVOICES, Packing list, SDF form, shipping bill etc. in the name of accused were seized and the same have been proved collectively as Ex. PWws/t.
It has been further submitted that another team consisted of PW-3 Tassine Sultan, PW-2 Rajender Verma and Ms. Anju Singh has searched the premises of M/s Rizwan Exports and seized certain documents and twe laptops, and all the documents and laptops were containing some incriminating material and the same were seized, The statement of witnesses were also recorded U/s 108 of Customs Act.
Inter alia, on the basis of these submissions, it has been submitted that the evidence of all the prosecution witnesses Is corroborating each other and the prosecution has proved that the accused intended to export the controlled substance ic. Ephedrine Hydrochloride through his firm M/s Rizwan Exports.
24. Per contra, Ld. Counsel for accused has submitted that case of prosecution suffers from material infirmities, contradictions and defective investigation.
It has been further contended that as per case of prosecution, at ICD, TKD at instance of raiding party, the accused was called over there through Mr.Sarabjit Singh of M/s Speed Cargo. But no one ean SC no. 7103/16 oNrcarenter Spl. Judge (NDPS), South, Saket Noy Delhived U2 36 ~ AGE OD Sat VM . oe fen fhe Concerned enter (CD, TKD without the prior permission from fhe cone : ars aes } cord arly authorities, The prosecution has aot brought on Poe / ; seed ¢ vd the accused 16 document/inaterial fo prove thal who had allowed fhe 4 5 a cament has been made enter the premises or that any entry many document bas been m when he entered ICD, TKD. 'This creates serious doubt with regard to his presence of accused al TCD during the alleged search and SCIAUPS. On this aspect, it has been submitted that accused was apprebendes from B.L. Kapoor Hospital on 14.10.2010 when he had gone to attend his nephew Danish, who was admitted there due to Dengue fever and this fact stands proved from the evidence of DW-! Saad Mushtay.
It has been further submitted that as per case of prosecution, al ihe time of raid, the case property was under custody of CONCOK. But prosecution has not brought on record any evidence that DRI has requested anybody to take the possession of consignment from CONCOR, and ifso, to whom. It has been further contended that ne witness from CONCOR was examined by prosecution, which makes the case of prosecution doubtful if the actual proceedings were conducted as claimed by the prosecution.
It has been further contended that as per case of prosecution, Insp. Tarun Kumar Saini was instructed by his senior officer to assist DRI for examination of consignment, but Insp.Tarun Kumar Sain:
was not examined by DRI. Purther as per case of prosecution, the custody of samples and case property was handed over to Insp. Yarun Kumar Saini, but there is no documentary evidence jn this respect when the case property was taken back. Hence, the important link that in whose possession the case property remained till it was produced in the Court, is missing.
SC ae. THOS uiNbsesands ' Ne Spl Ralpe (DPSS, South. Sabot New Leth ¢ News Dethild ag aon 35 ange of prosecution, Insp.
it has been further argued that as per case of prose I Pradeep Kumar Gi and Mr.Sarabjil int -card holder, Tarun Kumar Saint, p.KKhullar, I-card holder of M/s Exim Cargo and two independe Narender Singh I : : . nt witnesses Singh Proprictor of M/s Speed Cargo i { 4g tf ay. " 7 P > »] syant namely Gurdarshan Singh and Raju were signatory to the rele Panchnamas. But apart from Gurdarshan Singh PW-5, no other witness was examined. However, Mr. Gurdharshan Singh has also not supported the case of prosecution as he i unmistakable term has deposed that he was not present on spot at the time of examination or recovery of contraband etc. because he was asked to outside the room at ICD and on the next morning, he was told that some white coloured substance was recovered and his signatures were obtained and as per testimony of this witness no search and sealing took place in his presence. Hence, no reliance can be made on the evidence of this witness. In the absence of any independent witness to the search and seizure proceedings, the accused is entitled for benefit of doubt. Reliance in this respect has been made in cases Naresh Kumar @ Neetu vs State of Himachal Pradesh, 2017(15) SCC 684, Kishan Chand vs State of Himachal Pradesh, 2018 (1) SCC 222; Gunesh Kumar vs State, 2016 SCC Online Delhi 3943; Ritesh Chakravorty ys State of MP, 2006(12) SCC 321.
It has been further contended that mandatory provisions of Section 41, 42 and 50 of NDPS Act were not complied with in this matter.
It has been further contended that there is no evidence on record which shows that in whose possession, samples remained from . * ained from SC no. 7103/16 Nes | .
hubposiehnn "ys Spk Judge (NOES), South. Saket, New Delirizo- 02.202) 36 . > c oo ¥ o> 1 a the day same were collected i.e. on 13. 10.2010 and sent for chemical examination on 18.10.2010. It has been further submitted that the : > > = aT ; a "
explanation in this regard was called from PW-3 Tassine Sultan who deposed to the effect that case property used to be deposited with senior officer/Supervisor and in this matter he was the Supervisor, but the sample parcel was not placed in his custody after seizure as the same was in custody of IQ Manish Pinto. It has been further pointed out that on 18.10.2010, IO Manish Pinto produced the same, before him and he had forwarded the same to CRCL and the sarnples remained in his custody for 10-15 minutes only. Reliance in this regard has been made in case State of Rajasthan y. Gurmail Singh, (2005) 3 SCC 39.
It has been further submitted that there is delay of six days in sending the samples to CRCL, which is fatal to the case of prosecution. It has been further argued that prosecution has not brought on record any evidence to prove that case property was kept in intact condition and was not tampered with in any manner till it was sent for chemical examination. Hanna vs State of NCT of Dethi, Cri. A 773/2010 decided on 11" April, 2013.
It has been further contended that case of prosecution is doubtful on account of seal movement also. On this score, it has been further submitted that as per evidence of PW-3 Tassine Sultan, the seal remained in custody of concerned officer of Administration Department and separate register is maintained for the use'issuanee of seal. But neither the register nor impression of seal ever produced before him.
SC no, 7103/16 iy ae Spl Rudge (NDPSD, South. Sakee Now Delt Se NAW Dethpok:
PANY Doss 37 it has been further argued that when the case property was oduced in the Court, the seals on several | were not reada kets were iD broken pr packet iti 'n facsimile of > on certain condition and certain facsimile of sea ble o packets. This fact shows, the case property was not in intact condition t was produced in the Court which 1s fatal to the case af when i prosecution.
It has been further submitted that there are number of exporters The material in this case, if, booked e export firm of the in the name of Rizwan Exports.
in the name of M/s Rizwan Exports, it was not th accused.
It has been further submitted that prosecution has failed to bring on record any cogent material on record that alleged consignment belongs to accused and was booked by the accused for export purpose. On this aspect, it has been stated that there is no evidence on record which shows that to whom the accused has initially handed over the consignment for export. The prosecution has examined PW-4 Rohtash Pandey, Intelligence Officer, but as per his evidence, he has not made any inquiries from the representatives of CHA firm, if the accused Rizwan Ahmad of M/s Rizwan Exports booked the consignment directly or indirectly. It has been further contended that as per evidence of PW-4, he has not collected anv register or any document in regard to entry and exit of consignment in question in the Cargo shed. It has been further submitted that authorization letter is required from the exporter by the CHA firm before proceeding further for the export of consignment as per evidence of PW-10 Man Singh Yadav. But as per evidence of PW-4 SC no, 7103/16 \~--
Biupesh Kudite® Spl. Judee (NDPS) < pl. Judge (NDPS). South, Saket, New Delhudd 02 2021 38 'oat stter by the Rohtash Pandey, he has not seen any authorization Ict ;
. yA ge ar My 5 is aspect, exporter in the name of CHA firm M/s Exim Cargo. On this aspect, . . . . ed ist do not bear it has been further contended that invoice and packing list don signature of accused in capacity of proprietor of M/s Rizwan Exports. It has been further submitted that even PW-5 Gurdarshan Singh, Sales Executive of Speed Cargo Movers has not brought © any document that the consignment was booked by accused with n record them. Rather this witness has deposed to the effect that he does not maintain any record as to who has booked the consignment with them. It has been further submitted that even PW-5 Gurdarshan Singh is a hostile witness and is devoid of any evidentiary value. The attention of the Court was also drawn towards the cross-examination of PW1O0, wherein, he has stated that authorization letter is required from the exporter by the CHA to export the consignment but as practice the things are done through mail and the CHA takes up the job of exporter. But even there is no such mail is on record.
It has been further submitted that statement Ex. PW10/B of Pradeep Kumar, statement Ex. PWI0/C of Narender Singh both of M/s Exim Cargo and statement Ex. PW10/D of Mr. Sarabjit Singh of M/s Speed Cargo recorded U/s 108 of Customs Act, cannot be read in evidence as none of these witness has been examined and moreover. the statements recorded U/s 108 of Customs Act cannot be used against the accused for any other offence.
It has been further contended that statement of accused was also recorded U/s 108 of Customs Act, but he has not made any such statement voluntarily. He had even informed the Court in this respect SC no. 7103/16 oNtorcabe;
Spl. Judge (NDPS}, South, Saket, New Dethiand 92 3024 BY and denied to make any such statement voluntarily, on 3E.03.2001. t has been further contended that the statement of accused recorded U's 108 of Customs Act cannot be read in any other statute. Reliance im this respect has been made in case Neor Aga v, State of Punjab.
(2008) 16 SCC 417.
lt is turther submitted that even otherwise, the statement of accused recorded U/s 67 of NDPS Act cannot be the sole basis of conviction. The reliance in this respect has been made in case Tafan Singh vs State of Tamilnadu, 2020 SCC On-line SC 82.
It has been further submitted that even as per statement of accused, he had no knowledge with regard to concealment of any incriminating material ie. Ephedrine Hydrochloride im the consignment in question. It is further submitted that the statement of accused recorded U/s 108 Customs Act is in respeet to Ketamine only. Hence, the accused cannot be held liable for which he was charged in this matter. The reliance in this respect has been ni case Gangadhar v. State of M.P., (2020) 9 SCC 202 : 2020 SCC OnLine.
ride in On the basis of these submissions, it has been Stated that prosecution has failed to prove its case beyond reasonable daubts ° *SReEES : } s against accused and as such accused may be acquitte do by giving benefit of doubt.
25. | have heard the arguments of Ld. Sr. SPP for DRY and) AL Course! for accused besides going through the written Submissions tiled by SST OE them and material on record.
SC no, 7105/16 anboen ~ Spt fade CNPPS), Sods Mithet Now Daye ag ass VO wou ODDIE ee s .
26, First of all the contentions of Ld, counsel for accused, whether the consignment was actually belonging to accused, or not, fo whom the consignment was handed over for export, existence of other firms by the name and style of M/s Rizwan Exports, signatures of accused on the documents in capacity of proprietor of M/s Rizwan hxporis and the plea qua existence of other firm M/s Rizwan Fxports has been considered.
From perusal of material on record, admittedly as contended by Ld. Counsel for accused, PW-10 Man Singh Yadav, Asstt. Director, Enforcement Directorate has stated that authorization letter from Exporter was required for CHA to export the goods. Further it is also matter of record that PW-4 Rohtash Pandey, IO, during cross examination has stated to the effect that he has not seen any authorization letter of exporter in the name of M/s Exim Cargo, and further that he did not mquire from the representatives of CHA namely Sarabjit Singh and Pradeep Kumar, whether the consignment was booked with them by accused Rizwan Ahmad of M/s Rizwan Exports, directly or indirectly. It is also matter of fact that PW-S Gurdarshan Singh, independent witness who was Sales Executive of firm M/s Speed Cargo Movers, has deposed to the effect that they do not maintain any record as to who has booked the consignment.
Under these circumstances, at this juncture, the question arises. if on the basis of the said evidence of PW-4 Rohtash Pandey, PW-5 Gurdarshan Singh and PW-10 Man Singh Yadav it stands concluded that accused has not booked any consignment for export to Canada.
SC no. 7103/16 obarmeby Spl Redge (DES), South, Saker, New Dewids a2 202) SC na. 7103/16 4} ocuments On record evidence and d of PW-4 Rohtash In this respect the verbal has been perused carefully. As per evidence igence report that 4 consignment Pandey, on receipt of intell llaneous 2° ods of M/s KD, on other misce e exported from ICD, T h Pinto and pw-i0 M.S. Yadav nstance, the custom office containing Ketamine alongwith Rizwan Exports was likely to b 13.10.2010 he alongwith PW-9 Manis reached at ICD, TKD. There at their i provided them shipping bill alongwith other relevant documents filed swan Exports. AS per for exporting the consignment by M/s Ri nchnama Ex.PW-S/A further evidence of this witness, alongwith Pa certain documents Ex.PW5/B (Colly 28 pages) wer documents Ex. PW5/B (colly. 28 pages) which include C Container Corporation of India, the documents of CHA, shippin e also seized. The RN slip of g bill no. 1653146 dated 11.10.2010, self SDF form dated 11.10.2010, invoices showing the name of exporter as M/s Rizwan Exports, 58/2, Street no.6, Rashid Market, Delhi, packing list, duplicate CRN slip of Container Corporation of India Ltd., PCL Carting register. Among said documents, the shipping bill no. 1653146, self declaration form, invoices, packing lists bear the signatures of accused. As per the statement of accused Ex. PWI0/E, recorded U/s 108 of Customs Act. ms a _ inter alia, stated that his firm M/s Rizwan Exports as no. 0504082701. Whether the said stat i seaihle j this matter or not shall be looked into later sn afer th mse ~ of other evidence on record. However, for the purpose ne "en the fact whether the consignment was likely to be ex ees same JEC number ie. 0504082701, the other a nner the , evidence has been perused. As per evidence of PW-5 Gurdarst i han Singh, for the »f purpose Spt. Judge (NDPS}, South. Sake: N "D wi New Dalhyns ge ana:
42of exporting any article out of India, the IEC code is mandatory and M/s Rizwan Exports was having IEC code. In the documents pertaining to CHA M/s Exim Cargo services, the same IEC number i.e. 0504082701 pertaining to M/s Rizwan Exports has been mentioned. The accused at any point of time has not controverted that the IEC no. 0504082701 does not belong to his firm. Hence, the fact stands prove that said IEC number pertains to the firm M/s Rizwan Exports belonging to the accused.
Further the invoices bearing no. REC/Oct/19/263 bear signature of accused. The packing list also shows the same invoice number which also bears signatures of accused. The shipping bill bearing no. 1653146 dated 11.10.2010 also bears the same invoice no. i.e. REC/Oct/19/263 which also bears the signatures of accused. In the self declaration form, the shipping bill no. has been disclosed - as 1653146 dated 11.10.2010 and it also bears the signatures of the accused. However, in this respect the contention of Ld. Counsel for accused was that none of these document bears signature of accused as Proprietor of firm namely M/s Rizwan Exports. But from perusal of the invoices and packing list shows that accused has signed both these documents in capacity of Proprietor of M/s Rizwan Exports as the stamp of M/s Rizwan Exports and its proprietor appear alongwith the signatures of accused. In respect to shipping bill and self declaration form, it is found that both these documents do not reflect that accused has signed these documents being Proprietor of the firm. However, on this score as discussed above, the number of invoices have been mentioned on the shipping bill and the same shipping bill has been mentioned on the Self Declaration Form. Moreover, as per SC no. 7103/16 BAipesh Kika Spl Judge (NDPS), South, Saker, New Dethiseu.2 2091 SO go. PEGS 43 collected all Unese evidence of PW-d4 Rohiash Pandey. he has by all these documents decuments from the Custam Office, meaning snsignment wath custom:
were already submitted for the expart of ce . : Hee Py EEX i a aReE.
office and none of the document was prepared by the DF:
Under these circumstances, it is found thal In case the ace . s "tn sing bh has not mentioned his status alongwith his signatures of shipping not and SDF form, as Proprietor of M/s Rizwan Export. it does were not submitted for export of the prove the documents consignment alongwith consignment.
Further the prosecution has examined PW-5 Gurdarshan Singh. Sales Executive of M/s Speed Cargo Movers. However, Id. Caunse.
for accused has contended that no reliance can be made on evidence of PW-5 Gurdarshan Singh being hostile witness. In respect to the evidentiary value of the hostile witness, Hon'ble Supreme Court ir case Bhajju v. State of M.P., (2012) 4 SCC 327 at page 343, kas, infer alia, held as under:
Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence pug forward on behalf of the appellant-accused Normally, when a witness deposes contrary to the stand of the prosecution and his awn statemess recorded under Section 161 CrPC. the prosecutor with the permission of the court, can pray to the court for declaring that wiiness hostile and for granting leave to crass-examine the said witness {¢ such a permission is granted by the court thes tH. witness is subjected to cross-examination py the prosecutor as well as an opportunity is provided Ss the defence te cross-examine such WHHESSES. SF be so desires, in other words. there js i lintiteds iy id ro) Be a on by tlie cross-exantinall the counsel examination-in-chief, examination by prosecutor ante' CrOSS- .
i eet ble yee ff for the accused, It is admissible fo use . pratiOnt ief be CFOSS~ evamination-in-ehief as well as the C :
yale] WITNESS insofar as if examination of the stepports fhe case of the prosecution.
it is settled law that the evidence of hastile can also be relied upon by the nt to which if supports the incident. The evidence eated as washed off WEE SSES prosecution fo the exte prosecution version of the of such withesses cannot be tf the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, (0 permnit the persot who calls a witness, to pul any question to him which might be put in cross- examination by the adverse party.
The view that the evidence of the witness who has heen called and cross-examined by the party with the leave of the court, cannot be believed or dishelieved in part and has to he excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled canon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution.
In the light of this judgment, the testimony of hostile witness which supports the case of prosecution can be relied upon and the entire evidence is not liable to be discarded.
Reverting to the present matter, it is admitted fact that PW-S Gurdarshan Singh has not supported the case of prosecution it prosecution in SCno. FLO34L6 SC no. 7103416 nNbsmenbe Spl hnige (NDPS) South, Saket, Now Dethios an 203! 45 the case property. He was respect to the fact of search and seizure of n during cross~-
d. SPP for DRI and eve even cross-examined by L | osecution version regarding examination, he has not supported the pr n arises whether search and seizure of case property. Now ihe questio 'this wi is li 'scarded. In this the entire evidence of this witness is liable to be discarded. | regard, before proceeding ahead, here it is necessary to reproduce the relevant portion of the evidence of pw-5 Gurdarshan Singh, which is as under :
The above container was booked by us on hehalf of M/s Rizwan Exports, which is owned by one Rizwan Ahmed. I can identify the above Rizwan Ahmed as I have seen him. (At this stage on being asked to identify Rizwan Ahmed among other persons present in the Court, the witness has correctly identified the accused Rizwan Ahmed standing in the Court). ....... M/s Rizwan Export was having IEC code (Import-Export code) as the above code is mandatory for exporting any article out of India. ......... One document called Panchnama was prepared by DRI officers regarding abovesaid proceeding conducted there and I had also signed the above documents aS WIMESS.......... The documents pertaining to above consignment like invoice, packing list etc. were also taken into possession by DRI but the same were not signed by me.
bes een ees the Panchnama is Ex. PW35/4A and its annexures are collectively exhibited as Ex. PW5/B (consisting af 28 pages, including the above CRN slip at page no. 27). ........ At this stage, witness has also stated that above annexures consisting of 28 pages, including the invoice, packing list and shipping documents etc. are also bearing his signatures, though earlier he had stated that same were not signed by him, and he could recollect this fact due to lapse of time sj nor since the SC no. 7103/16 oe BhyRewr killa 3 8 S S pl. Judge (NDPS), South, Saket, Now Delt MO4.€ : CthwO4 02.202 | 46 above date and till date.
From the careful scrutiny of evidence of this witness, it Is found that during examination-in-chief this witness has identified accused in Court and in unmistakable terms has stated that they have booked the container on behalf of M/s Rizwan Exports, owned by Rizwan Ahmed. The witness has even identified the relevant documents of Ex. PW5/B (consisting of 28 pages) and further identified his signatures on the documents like Invoice, shipping documents ete. on documents, part of Ex. PW5/B. During cross-examination, the evidence of this witness in respect to identification of accused and seizure of documents Ex. PW5/B remained un-controverted and unshaked as no explanation of this witness in this respect has been called. Even no suggestion was put to this witness that he has wrongly identified accused in Court or that documents Ex. PW5/B were not seized in his presence or that signatures of this witness on documents Ex PW5/B were | obtained later on by the DRI. Considering the manner in which pw-5 Gurdarshan Singh has deposed, as stated above, it is found that portion of his evidence which supports the case of prosecution can be considered by the Court. The findings in the case Bhajju @ Karan Singh (Supra) are squarely applicable to the facts of the present matter.
77, One of the contention of Ld. Counsel for accused in this respect was that there are number of exporters in Delhi under the name and style of M/s Rizwan Exports. But from careful Scrutiny of evidence on record, it has been found that none of the prosecuti cution SC no, 7103/56 So ~ Spl. Judge (NDPS), South, Saket, New Dethio4 02.2021 4] SSE fine § has hee } 1 b * unsel ror a ecused in WItness | as been cross-e xamined y Ld. Co Q f yc exporter m 82701.
order to bring on record the fact of existence of otf exports with {EC number 95040 the name of M/s Rizwan f ) substantiate his Even no defence witness has been examined te St thi ; eneed has not taken this contentions in this respect. Further, the accused has rot taker plea in his statement recorded U/s 313 Cr.P.C. Here for the sake of arguments, if, it is admitted that there are some ot under the name and style of M/s Rizwan Exports, even then the her firms also IEC Code 0504082701 allotted to the export firm in question cannot be the same because to every exporter unique [EC number is allotted by the Directorate of General of Foreign Trade, on the basis of PAN of an entity. Hence, the contention of Ld. Counsel for accused that other exporter in Delhi exists with the name and style of M/s Rizwan Exports has been found to be without force.
28. Further the CRN slip of Ex PW5/B has been perused which reflect that number of packets mentioned therein are 263, name of exporter as Rizwan Exports, bearing bill no. 1653146 and the allotted container number TRLU8856161. The copy of the FCL carting register is also part of Ex. PW5/B and on the said copy of carting register at serial no. 494, inter alia, the shipping bill no. has been mentioned as 1653146, the name as Rizwan, and the number of allotted container number has been mentioned as TRLU8856161. The details of the consignment as mentioned in the carting register tallies with particulars of CRN Ship. It reflect that the materia] entered the shed was with the same shipping bill no. 1653146 ie. the bill pertains to M/s Rizwan Exports. Therefore, the contention of Ld. Counsel for accused that the prosecution has failed to bring on record SC no, 7103/16 ahdboarenenthy Spl Judge (NDPS), South. Sate: New Dethia2 02.29 Ne 04.02 202} 4k any dacumentary proof qua the entry of the consignment m the espeart shed is found to be without any merits.
29. Considering the entire chain of documents right [rom the invoice, packing list, shipping bill, CRN. slip ete. and other evalence particularly the evidence of PW-5 Gurdarshan Singh, itis found tat prosecution has proved beyond reasonable doubt that the consignment in question belongs to the accused Rizwan Ahmed only and nobody else.
36, The next limb of arguments of Ld. Counsel for accused is that the prosecution has failed to bring on recerd any clear and cogent evidence that in whose possession the seven sample packets remained wef, 13.10.2010 to 18.10.2010 and that there was delay of around six days in sending the samples to CROLL which has sot been explained by the prosecution anywhere, In this respect as contended by Ld. Counsel for accused, admittedly PW-3 ST 'Tausine Sultan stated to the effect that case property was uscd to he deposited with senior officials/supervisor and in the present matter he was supervises and the sample parcels were not in his custody afer seizure nnd the same were in custody of 1O Manish Pinto when he forwarded the same to CRCL. He has further deposed that on IRAIO 2010, IO Manish Pinto produced the same before him, before ihe Same was forwarded to CRCL and it remained in his euMtody for 10.18 minutes It has also been contended that PW-4 Rohtash Pandey ov PW.1G Mary Singh Yadav, both members of raiding party have howhere stnted that the samples were handed over to 10 Manish Pints « 8 Spat.
SO eo. THOMIG Nesey fot Sy Harhae (HUME Fowl Behe Messas 4 phen PN bia ae 49 oT
31. In this respect, on the other hand, Ld. Counsel for DRI has submitted that it is not mandatory that samples should be remained in the possession of supervisor only but the Court is required to consider whether the samples remained in intact condition till the same reached at CRCL for chemical examination. It is further submitted that it is not the case where the case property was sealed with simple seal only. But as per practice of DRI, in order to avoid any tampering, paper slips bearing signatures of accused and other witnesses used to attach beneath the seal. This process was also adopted in this matter and paper slips bearing signatures, inter alla, of accused was affixed beneath the seal. It has been further submitted that the samples were in intact condition as per evidence of PW-12 Ajay Sharma, Assistant Chemical Examiner who has chemically examined the samples. Further as per evidence of PW-12 Ajay Sharma, the facsimile on the test memos sent alongwih sealed sample was similar to that of the seal affixed on the samples. Reliance in this respect has been made in case Siddiqua vs Narcotics Control Bureau, 2006 SCC OnLine Del 1553.
32. In respect to the possession of samples, admittedly, PW-4 Rohtash Pandey or PW-10 Man Singh Yadav have nowhere stated that samples collected at the spot were handed over by him to PW/IO Manish Pinto. Now the question arises whether this fact effects the case of prosecution. On this aspect, it is found that PW-9 Manish Pinto has stated to the effect that search and seizure of the case property was effected at ICD, TKD and the samples in triplicate from each of the seven packets were drawn, the test memos were also prepared on spot and that one set of sample remained with them for SC no, 7103/36 ania Ken mf Spi. Judge (NDPS), South, Saket. New Delhvod 02 2024 SO sending the same to the office of CRCL. During lengthy -- examination ef this witness, the evidence of this witness remained uneontroverted in respeet of the fact that one set of samples drawn ' a aat PY from the case property remained with them. As per evidence of f . 3 Tassine Sultan, who has forwarded seven sealed samples packets alongwith test memos to CRCL through Hawaldar Bhopal Singh, en calling explanation of this witness during cress examination, WHNESS inter alia, stated that on 18.10.2010 when the samples were sent by him to CRCL, 10 Manish Pinto produced the sealed samples before him and the same remained in his possession for 1-15 minutes prior to sending the same to CRCL. But no further explanation of this witness was called qua handing over the samples t@ him by [O gestion was put to the witness that he has oo Manish Pinto. Even no sug not obtained the samples from IQ SI Manish Pinte, Hence, the evidence of PW-9 Manish Pinto and PW-3 TassineSultan remained unimpeachable and uncontroverted that the samples remained in possession of PW-9 Manish Pinto wel 13.10.2010 to L8.10.201d, Henee, it does not effect the case of prosecution if PW-4 and PW-10 are silent on point of handing over samples to PW-9, PW-4 Rohtash Pandey has stated to the effect that signatures of accused were obtained on paper slips and the said paper slips wer oNE BS x aN L YS attached with sealed samples. During cross-e examination. Ld. Counse! for accused has nowhere controverted the evide Ree of this witness in respeet to obtaining of signatures of accused on paper slip "urther, PW-? Bhapal Singh js i Further, PW-? Bhapal Singh is the link WitRess who had tak : Be SSN OY Wat Taken the samples from PW-3 'Tassine Sultan and deposited th 40s © same with SC ne. PURO \ Rupes Ks. NA Spl dindse INDE South, Nakor z Mare Poi A Sats 5] CRCL on 18.10.2010. He has also deposed that he had taken seven sealed samples. During cross-examination he has stated that each of the sample was having seven seals on the front, middle and backside of envelopes. There is nothing in his evidence which suggest that the seals on samples were not intact when he had taken the samples from DRI office and deposited the same with CRCL.
On this aspect, PW-12 Ajay Sharma has stated that samples were in intact condition when he has chemically examined the same. This witness was also cross-examined at length and it is found that apart from putting mere suggestions, inter alia, that the case property was tampered with which was denied by this witness, no other explanation called from this witness, which suggest that samples were not in intact condition when the same were chemically examined by him. As per further evidence of PW-12 Ajay Sharma, after the examination the samples were sealed with seal of Central Revenue Control Laboratory, Government of India Uf and the fina! analysis report was issued under the signatures of Mr. V.B.Chaurasia on the back of copies of test memos.
In case Hannan vs State of NCT of Dethi, Cri. A 773/201 &. as relied upon by Ld. Counsel for accused, the case property was sealed in ordinary manner, whereas in the present matter the paper slips. inter alia, containing the signatures of accused were also affixed beneath the seal. Hence, this judgment can be distinguished in view of the facts of the present matter.
In case State of Rajasthan v. Gurmail Singh, (2008) 3 SCC 59 the benefit was given to the accused because sample of seal was noi SC no. 7/03/16 Spl. Judge (NDPS), South, Saket. Na A ay alist sik om tena Ney Delhi GT Fo Sa 52 . re 'n this matter, aS per sent with sample to Excise laboratory. But 19 this 1 Pp evidence of PW-6 V.B.Chaurasia, Chemical j i : j ? { oy Hage BF Cc Ajay Sharma, Assistant Chemical Examiner, the sample pa facsimile of the same also Examiner and PW-12 kets were sealed and in intact condition and the tallying with facsimile given on the test memos. The test memos were already proved as Ex. PW4/A-8 to PW4/A-14, and both these witnesses identified the same. On test memos Ex. PW4/A-8 to A-14, the facsimile of the seal is affixed at point B on each document. Under these circumstances, the findings of the judgment Gurmail Singh (Supra) can also be distinguished.
In case Siddiqua vs Narcotics Control Bureau, 2006 SCC OnLine Del 1553, Hon'ble High Court has, inter alia, held as under :
Mere possibility of a thing does not cast doubt on the prosecution case. In this case, the samples and the case property were sealed with paper Slips, . containing the signatures of the panch witnesses. These paper slips were found intact by the learned trial court when the case property was produced in the court. Similarly, when the samples were received by the CRCL, the seals were found intact with the paper slips. There is another factor. The samples in this case were sent to CRCL on the very next day i.e. on 26th March, 1998. Any possibility of tampering the seals, therefore, stands ruled out.
In this matter also, the samples were produced in the Court during evidence of PW-4 Rohtash Pandey as Ex.P-1 to P-7 and on each packet seal of CRCL, Govt. of India IL, was affixed and each of the packet further found containing one polythene pouch containine white powder and one paper slip containing certain signatures, PW SC no. 710316 pnioarnds "ipl. Judge (NDPS), South, Sakel, New Dethioa do 20°:
TOA OD 2074 53 qiures on each paper slip at d alse identified the Rohtrash Pandey has identified his sign used at point B an point A and signatures of acc The paper slips were signatures of other witnesses on paper slip. Ex, P-8 to P-14- Whe produced in the Court, it was found that seal on each of & n the samples were brought on record as nvelope EX.
P-1 to P-7 were in intact condition. Considering the entire chain of events, it is found that samples were in intact condition till the same were chemically examined.
33, As contended by Ld. Counsel for accused, admittedly, the samples were drawn on 13.10.2010, whereas the same were sent for chemical examination on 18.10.2010, meaning by there is delay of six days in sending the samples for chemical examination. On account of delay, in case Hardip Singh vs State of Punjab, Cri, A no. 737 of 2007, decided on 20.08.2008, Hon'ble Supreme Court has, inter alia, held as under :
So far as the question of delay in sending the samples of opium to the Forensic Seience Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of the appellant stands proved and established by cogent and reliable evidence led in the trial....... It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chem ical examination contained the same opium which was recovered from the possession of SC ni 7103/16 SC no. atomety, Ss doe (NEPS) < pl. Judge (NDPS), South, Saket, New DelhifOd 02.2021 e §4 mallek, sertples dudice the appellant, In that view af the delay of about 40 days in sending (te did not and eautd not have caused any prope te the appellant, The aforesaid comenlon, therefare, also stands rejected.
co a taef ee Ut ne duly In this judgment, the samples which were found lo be duty wy were chemically sealed and seals were intact while the sampk examined, no advantage was granted fo the accused on accounl of delay in sending (he samples for chemical examimalion.
arlicr, the sample al COROT.
Reverting to the present maticr, as discussed ¢ were duly sealed and intact when the same were received Hence, in view of aforesaid judgment, the delay of six days in sending the samples for chemical cxamination does not effect the case of proseculion.
Further in respect (o seal moment register, as per evidence of PW-4 Rohtash Pandey, he has collected the seal front DRI having impression of Directorate of Revenue Intelligence from the dealing officer, keeping the register for the movement of seal. He further deposed thai he has returned the seal back to Mr.RUK Patil on 14.10.2010 and entry in this respect in register aro in his own handwriting. 'The photocopy of seal moment register was brought on record as Mark PW4/A. The document mark PW4/A is a photocopy, No doubt, the mark document or photocopy cannot he read in evidence. But since the lke Counsel for accused has also relied upon this document by drawin 2 the attention of witness towards this document and calling his explanation, it is found that under these circumstances, this document cau be SC no. TOO tiNboveio wih Apt Hkine (NDP), Seth Sihet, Mew Puthieth as ony 55 t Mark pw4/A has considered in the evidence. As such the documen 4 Rohtash | was taken by PW-
been perused which reflect that sea eturned the same on Pandey on 13.10.2010 at 11.00 AM and r it is found that seal movement 14.10.2010 at 10.30 AM. Hence, register is duly proved.
ded that as per case om Insp.
Ld. Counsel for accused has further conten of prosecution, the case property was handed over to Cust TK Saini for safe custody, but there is no evidence that when the DRI has taken back the case property from Insp.T.K.Saini and that case n intact condition as seals on certain packets were in property was not i broken or not readable when same was produced in the Court. Hence, the prosecution has failed to prove that the case property remained intact and was not tampered with.
On this score, it is admitted fact that Mr. T.K.Saini was not examined. It is also not disputed that when the case property was produced in the court, on certain packets some seals were in broken and on certain seals, facsimile of the seals were not legible. However, as matter of record, inter alia, the name of the consignor was mentioned as Rizwan Exports, Delhi, invoice number, box number 90- 96 and the consignee name was mentioned as MMPC, Toronto, Canada. On some of the packets the seals were legible as Directorate of Revenue Intelligence and on some of the above packets one paper slip was found below the seal of DRI. The paper slips, inter alia, bearing signatures of accused were exhibited as Ex.P-60 to P-66 It is also admitted fact that prosecution has not brought on record any material that when the case property was taken back fro rom SC no. T103/16 Bhubtsietenrere Spl, Judge (NDPS), South, Saket, New Delhi 02.203} ' MW. 202 ft 56 Mr. T.K. Saini and even he was not examined. It is the deficiency in the case of prosecution. But the question arises whether this deficiency makes the case of prosecution doubtful. On this aspect it is found that case property was produced first time in the court during evidence of PW-4 Rohtash Pandey. On certain packets the seal was broken and on certain packets the seal was not legible. But as matter of fact there is nothing in the evidence of PW-4 that case property can be taken out from the packets/boxes without disturbing the seal. In respect to case property, PW-4 Rohtash Pandey has stated that it is the same case property recovered by him from the consignment of accused. During lengthy cross examination of this witness, Id. Counsel for accused has failed to shake the testimony of this witness which shows that case property was not the same recovered in this matter. Under these circumstances, it is found that even though the prosecution has not brought on record where the case property remained before it was produced in the Court, but since the identification of case property was not disputed, no justified ground is found to doubt that case property produced in the court was the same it was recovered in this matter. Even certain seals were found to be in broken condition, which could occur during handling/transportation of the packets but it does not prove that the case property was tampered with. Under these circumstances it does not effect the case of prosecution, if Mr. T.K.Saini was not examined or the absence of the material that when the case property was taken by DRI from the Possession of Insp. T.K.Saini, when it remained uncontroverted that case property produced in the Court was the same which was recovered.
35, One of the contention of Id. Counsel for accused was that BC ag, FIGSS Spl Judge (NUPS), South, Saker. New Belhioa oo 20} $7 h and seizure proceedings t making entry accused was not present on spot during searc on the ground that nobody can enter ICD, TKD, withou 'aaj f the concerned on relevant document or without permission of the co authority. It has been further contended that accused was arrested 410.2010 where he had gone to visit ere, which stands proved ct, first of all from B.L.Kapoor Hospital on | his nephew Danish, who was admitted over th from the evidence of DW-! Saad Mushtaq. In this respe the evidence of DW-1 Saad Mushtaq has been perused carefully. As per him, on 14.10.2010 at about 9-10 AM accused asked him to Danish was admitted who was suffering from Dengue and while going to hospital, accompany him to B.L. Kapoor Hospital where his nephew accused collected some money from J &K Bank, Connaught Place and at about 11.00 AM when they were at B.L.Kapoor Hospital, suddenly 5-6 persons in civil dress came there and apprehended the accused. During cross-examination this witness has submitted that he has not brought any document to show that Danish was admitted in hospital or any document to show that accused went to J&K Bank on 14.10.2010 to withdraw the money. Further as matter of evidence of DW-1 Saad Mushtaq, he has not specifically stated that whether accused has withdrawn money from ATM or from bank account or through cheque. Accused has not brought on record his bank statement to substantiate his contention that actually any amount was withdrawn by him only and not by somebody else on his behalf through cheque ete No document of B.L.Kapoor hospital has been brought on record to substantiate his contention that actually his nephew was admitted over there. Further as per evidence of DW-I Saad Mushtag, when he alongwith accused were present at reception of B.L. Kapoor Hospital, SC no. 7103/16 * BhibeSricnie Spl. Judge (NDPS), South, Saket, New Dethiva es » New Delhi 02.2027 ns oe 5-6 persons approached them and inquired, inter alia, the name of accused Rizwan Ahmed, thereafter they slapped him a ises If 5-6 persons had taken nd took the accused in vehicle. But the question ar the accused without disclosing their identity then why he had not informed the police immediately or brought this fact to the notice of the hospital staff or security etc. Considering the entire facts and circumstances it is found that no reliance can be made on the evidence of DW-1 Saad Mushtaq and it is found that accused has taken the plea after thought.
36. In respect of entry of accused m ICD, TKD, admittedly no entry or exit register brought on record by prosecution. But on this aspect it 1S found that PW-4 Rohtash Pandey has stated that after they reached at ICD, TKD, at his instance, accused was called on spot by Mr.Sarabjit Singh of M/s Speed Cargo. Further evidence of this witness reveal that accused was present on spot at the time of search and seizure of case property. The evidence of this witness qua the presence of accused on spot has been corroborated by evidence of PW-9 Manish Pinto and PW-10 Man Singh Yadav, both officers of DRI. As discussed earlier, PW-5 Gurdarshan Singh of Speed Cargo has also identified accused and stated that he was present alongwith DRI officers on the day of search and seizure. PW-5 Mr.Gurdarshan Singh is an independent witness and he has no reason to depose against accused. Considering the entire evidence on record, in this respect it is found that accused was present on spot at the time of search and seizure proceedings. Under these circumstances, even if the prosecution has not brought on record any documentary proof that accused has entered ICD, PKD on 13.10.2010 does not effect the case of prosecution.
SC no, 7103/56 i Ronee, Spl. Judge (NDPS), South, Saket, New DethisGd 0 22001 59 | for accused was that as per th CONCOR, but
37. One of the contentions of Ld. Counse case of prosecution, the case property was lying Wi no witness from CONCOR has been examined. In this doubt no one from CONCOR has been examined by prosecution nor respeci, No has brought on record any material that in whose possession the consignment was lying when DRI team raided there. However, in this respect the evidence of PW-13 Raj Kumar Digvijay, as Dy. Commissioner, ICD, T KD, Export Shed has been perused. As who was posted per his evidence when DRI officials approached and told him about the information regarding some contraband substance in one export consignment of M/s Rizwan Exports, he checked the same from system and identified the position of consignment and officers who were handling the goods. Then he called Mr. Tarun Kumar Saini, Inspector and instructed him to provide all the necessary assistance to the officers of DRI and after examination of goods, Inspector Tarun Kumar Saini and officers of DRI informed him that they had detected some contraband substance in the consignment and they want to handover the goods to them for safe custody. Thereafter he has instructed the officers to receive goods and to keep the same in bonded warehouse i.e. of CONCOR. He has even signed the letter Ex. PW13/A that case property was handed over to them. During cross- examination of this witness, the evidence of this witness that he had checked the position of consignment and given instructions to Mr. Tarun Kumar Saini, Inspector to provide all necessary assistance for examination of said goods by DRI officials remain unshaked as no query in this respect was called from him and even no suggestion was put to this witness in this respect. Once the DRI officials have be ACh een SC no. 7103/16 snNteerremab sake \ New Dethi/og 02,2021 60 ort Shed, who has even deputed assisted by Dy. Commissioner of Exp . . . 'vation of goods, it one of his officer to assist the DRI officers for examination Of 2 , . . amit : erson is found that it does not effect the case of prosecution, if any p from CONCOR has not been examined.
d was that the ot of Mr.
38. The next contention of Ld. Counsel for accuse statement of Mr. Pradeep Kumar as Ex. PW10/B, stateme Narender Kumar as Ex. PW10/C, statement of Mr. Sarabjit Singh as Ex. PW10/D and the statement of accused Rizwan Ahmad as Ex. PWI0/E, recorded U/s 108 of Customs Act, cannot be read in evidence.
In this respect, in case Noor Aga vs State of Punjab, (2008) 16 SCC 417, Hon'ble Supreme Court has, inter alia, held as under :
that we may, at the outset, notice that a fundamental error has been committed by the High Court in placing explicit reliance upon Section 108 of the Customs Act. It refers to leading of evidence, production of document or any other thing in an enquiry in connection with smuggling of goods. Every proceeding in terms of sub-section (4) of Section 108 would be a judicial proceeding within the meaning of Section 193 and 228 of the Penal Code. The enquiry conptemplated under Section 108 is for the purpose of the 1962 Act and not for the purpose of convicting an accused under any other statute including the provisions of the Act.
In the light of this judgment the statements recorded U/s 108 of Customs Act cannot be read against accused in any other statute apart from the Customs Act. Moreover, Narender Singh, Pradeep Kumar and Sarabjit Singh were not examined in this matter hence, ev . » even SC no. 710316 Bhite:
cash Spl. Judge (NDPS), South, Saket. New Delhiod 02.2 402 2 61 i i heir any of such statement.
otherwise no reliance can be made on their any of such st . Lo . - ; Supra), the Furiher in view of judgment in case Tofan Singh (Supra) : . > basis of his statement accused cannot be convicted only on the basis of hi é recorded U/s 67 of NDPS Act.
39, 'The next contention of Id. Counsel for accused is that the prosecution has not examined any independent Witness in this matter which is fatal to the case of prosecution. It has been further submitted that as per case of prosecution the raid was conducted at ICD, TKD as well as at office and residence of accused. Further as per case of prosecution when the raid was conducted, Panchnarma Ex. PW5/A was prepared and Insp. T.K.Saini, PK. Khullar, Pradeep Kumar and Narender Kumar G & H Card holder of M/s Exim, Sarabjit Singh and Gurdharshan Singh of M/s Speed Cargo and one independent witness Raju were attesting witnesses to said Panchnama tix. PW5/A, but none of the said witnesses apart from PW-5 Gurdarshan Singh has been examined. PW-5 has not supported the case of prosecution. He was declared hostile by Ld. SPP for DRI but even during his cross-examination by Ld. SPP for DRI, he has not deposed anything against accused. It has been further contended that when the raid was conducted at the house and office of accused, one independent witness PW-16 Mazhar Sabri was joined to the investigation, but he has not Supported the case of prosecution at all. Hence, no reliance can he made on his statement. In this respect, ld. Counsel for accused has relied upon on judgments in cases, Naresh Kumar @ Neen, vs State of aie re ee mM ROE fC OF Himachal Pradesh, 2017 (15) SCC 684: Kishan Chand \) SC MOSH ' CITT ' SC na. 71¢ Bh Po Sy Spl Judge (NDPS), South, Sake New Dott a SHEED Nes 62 Himachal Pradesh, 2012 (15) SCC 358; Bahadur Singh vs State, 2016 SCC Online Dethi 3943 and Ritesh Chakravorty vs State of Madhya Pradesh, 2006 (12) SCC 32).
On the other hand, Ld. Sr. SPP for DRI has submitted that PW- 5 Gurdarshan Singh has supported the case of prosecution on material points as he has also signed Panchnama and other documents seized in this matter vide seizure memo Ex. PW5/B. {ft has been further submitted that the official witnesses examined in this matter had no reason to depose falsely and implicate the accused in this matter. They had no enmity with accused. It has been further submitted that there is no reason for DRI to implant such huge quantity upon the accused. In this respect, in case Sumit Tomar y. State of Punjab, (2013) 1 SCC 395, Hon'ble Supreme Court has, inter alia, held as under :
As regards the first two contentions raised by the learned Senior Counsel for the appellant, it is true that Kaur Singh, according to the prosecution, is an independent witness, however, he was not examined on the side of the prosecution... In such circumstance, his presence cannot be doubted, an the other hand, his presence seems to be aatureai and a perusal of the consent memo, the recovery memo and the arrest memo shaws that he wes present at the time when the recovery was effected? from the accused. His signatures appended in ai! these memos show that he has wittessed the recovery, lt is true that the prosecution could iene examined him. For this, i is the said of the prosecution that in spite af necessary steps take; by issuing SunMUnORS, he did not appear far whics:; the prosecution case cannot be throwe cut.
SC no. 7IO3/16 t '\ Y oe Syd dadye (NDPS) Sauth Saker \ vew Dethiedd 03 207) SU ng Fees &3 &.
prosecrtion examined Shri Luakincinder Sinet Head Constable ay PWT. Shei Devineder Kussnis. owner af te car as PU Shei Gurdeep Son Assistant Si}. Iaspecto root Police ax PW 3. are Shri Mohan Singh Mead Constaite as PH 8 The Special Court as well as the High Caurt, an gure through ihe evidence of the ahovementionce:; aff iciad witresses and the documents, nermedy PES. seizure memo, PSL report, ete. accepted the case of the prosecution. Even before us. the fearnes Senior Counsel for the appellant took us throes the evidence af the abovementioned prosecution inorder tn substantinte is claim witnesses and the connected miterials. in a case 3! this nature, itis better if the prosecution exaniines at feast one independent witness to corroborate is case. However, in the absence of any antmosis between the accused and the official witnesses there is nothing wrong in relying on ifreir festimonies and accepting the documents places jor basing conviction. After taking into accoLest the entire materials relied on by the prosecutian, thers is no animosity established on the part of the official witnesses by the accused in defence apd we alsa do not find any infirmity in the proxecuthk.:
case. ff is not in dispute that the present appe fe:
(A-2) was driving the car in questian why carried the contraband PW 2. awner of ie He was also examined and proved its menershin on deposed that Sumit Tomar demanded tae saul ccs for personal use la view of the above discensshass we Hold that though it ix desirable te exanuec ciey indep endent witness, haawever, in tes GAN SRS any Such withess, if ile statements) alficers are reliable und when tory Me animosity estublixhed ageing thea y Bes gecus Seen s yes BAECS conviction bused om tei xtatemicnty ooneics ; § IPS Re get PAU R Ooty wdopied By te prosecstion is wperaeppsdeueids den cepePooccedopadce Cae dee. . PEernssele, POE CERRY OF Feypey OF the op ~ "4 64 under the NDPS Act. Accordingly, we reject both the contentions.
In the light of this judgment, if the evidence of the police officials is reliable and trustworthy and there is no enmity between accused and official witnesses, then evidence of official witnesses can be relied upon.
40. Further, in case State Of Punjab vs Balwant Rai, Appeal (Crl) 1240 of 1999, decided on 24 February, 2005, Hon'ble Supreme Court, has inter alia, held as under :
Moreover, if such a plea of the respondent were to be accepted, in no case can the respondent be prosecuted because if prosecuted, his plea would be that the police was inimically disposed towards him, and therefore, falsely implicated him. We have examined the evidence on record and from the facts of this case, it does not appear to be a case of implanted evidence. The police had prior information of the fact that poppyhusk contained in several bags had been unloaded at the point where they were ultimately found. Intimation of this fact had been given to the Superintendent of Police who reached the place where the bags were unloaded. The respondent was found present there. The quantity is so large that the question of implanting does not arise. No other explanation has been offered by the respondent.
Reverting to the present matter, as discussed earlier evidence of PW-5 Gurdarshan Singh has been partly relied upon. The evidence of PW-4 Rohtash Pandey , PW-9 IO Manish Pinto and PW-10 SIO Man Singh Yadav has been scrutinized carefully. It is found that all these witnesses have categorically state that on 13.10.2010, all of B Npectonb y Spl. Judge (NDPS), South, Suket. New Delhie4 02,202} SC no, 7HBG 4], SC na, 7403/16 65 them went to ICD, TKD, where they had joined independent d Cargo to the the witnesses, employees of M/s Exim and Spee investigation. They further deposed to the effect that contrabands were recovered and seized. There is no ground to doubt the testimonies of all these witnesses qua their presence at ICD, TKD and search and seizure proceedings conducted by them. There is nothing in their evidence that they had amy reason to falsely implicate the accused or to implant such huge quantity of contraband upon the accused. Under these circumstances, it is found that even though the prosecution has examined limited witnesses to the Panchnama Ex.PW5/A, but the witnesses of Panchnama which were examined in this matter are fully reliable and trustworthy.
The prosecution has also examined PW-2 Rajender Verma, PW- 3 Tassine Sultan who have conducted raid at 58/2, Gali no. 6 Rashid Market, Delhi i.e. premises belonging to M/s Rizwan Export. Both of them have stated that on 13.10.2010, they went to said place and conducted search in premises in the presence of independent witnesses and seized two laptops and certain documents. One witness namely Mazhar Sabri was examined, but he has not supported the case of prosecution and stated that no search was conducted in his presence nor any maiterial was recovered. Even if the evidence of this witness is discarded, it is found that evidence of PW-2 Rajender Verma and PW-3 Tassine Sultan is found to be reliable qua their search at the aforesaid premised of M/s Rizwan Exports.
B Nevers?
Spl Judge (NDPS), South, Saket, New Delhi/04 02.2033 66
42. 1 have carefully gone through the judgments in cases Naresh Kumar @ Neetu vs State of Himachal Pradesh, Kishan Chand vs State of Himachal Pradesh, Gunesh Kumar andRiteshChakravorty vs State of MP (Supra), and found t e to the facis of the ys State hat the findings of said judgments are not applicabl instant case.
Considering the entire facts and circumstances it 1s found that even certain independent witnesses, who were joined to the investigation was not examined by the prosecution, it does not effect the case of prosecution.
43. The next contention of Ld. Counsel for accused was that accused at the instance of buyer had agreed to export Ketamine to Canada. He had no knowledge, if any, that actually the said substance was Ephedrine Hydrochloride 1. controlled substance. It has been further submitted that even the information was received by DRI that it was Ketamine which was intended to be exported. On the basis of these submissions, it was contended that since the accused had no knowledge of Ephedrine Hydrochloride, he cannot be held guilty for the same. In this respect, from careful scrutiny of all the. material on record, it is found that the Panchnama Ex. PW5/A was prepared at ICD, TKD qua search and seizure of the contraband. PW-4 Rohtash Pandey, PW-9 Manish Pinto and PW-10 Man Singh Yadav are the witnesses to the Panchnama. PW-S Gurdarshan Singh is also witness to the same.
Even if the evidence of PW-5 Gurdarshan Singh is not relied upon qua the preparation of Panchnama Ex. PW5/A, it is found that SC no, 7103/6 Bhs ssp tes BY Spl. Judge (NDPS), South, Saket, New DelhisO4 02.207} USS eee 67 evidence of PW-4 Rohtash Pandey, PW-9 Manish Pinto and PW-10 Man Singh Yadav is clear and consistent, in this respect. all these three witnesses, during the As per evidence of al no. 90-96, search of the consignment, the seven packets from sen it was found containing some old Sarees and old clothes including one packet of polythene containing white coloured substance. The consignment was belonging to accused, as discussed earlier. The way in which the packet no. 90 -- 96 were packed, that the same could it is found that the contraband was concealed in such a manner not be detected. There were total 263 packets in the consignment, but the contraband was kept only in seven packets that too from serial number 90 -- 96. It appears that substance was kept only in seven packets purposely that in case of random checking the same could not be easily detected. Further the question arises why the accused indulged himself into illegal activities of sending Ketamine to Canada, without any license. As matter of fact, in the invoices and packing list, there is no mentioning of Ketamine.
Further the evidence of prosecution witnesses perused and it is found that none of the witness has been cross-examined in order tc bring on record any material to show that the accused had no knowledge about the presence of Ephedrine Hydrochloride in consignment. The accused has not even taken this plea in his statement recorded U/s 313 Cr.P.C.. Even no witness was examined by accused to prove this fact. Considering the entire facts and circumstances, it is found that plea of accused that he had no knowledge about the presence of Ephedrine Hydrochloride in the SC no. 7103/6 an .
Bhpest tsi?
Spl didge (NDPS), South, Saket. New D: £104.02 202 EME IIE OA 2 202 } SC no. 7103/16 68 consignment is vague, without any basis and taken by him after thought. Hence, the same is liable to be discarded and stands discarded accordingly. I have carefully gone through the judgment In case Gangadhar (Supra) and found that findings of the judgment are not applicable to the facts of the present case.
Ld. Counsel for accused in his written submission has taken the plea that provisions of Section 41, 42 and 50 of NDPS Act have not been complied with. But no detailed arguments were advanced by Ld. Counsel for accused. However, the circumstances of the present matter are peculiar in nature because when the contraband was recovered, accused had disclosed the same as Ketamine. For export of Ketamine, license is required from DGF T, therefore, the accused was arrested under Customs Act. The samples of same were collected on 13.10.2010 and sent for chemical examination on 18.10.2010 and the report was prepared on 07.12.2010, wherein, it has been mentioned that he substance was found to be positive Ephedrine Hydrochloride and when the report was received. immediately on 10.12.2010 the custody of accused was converted to NDPS Act and even compliance of Section 57 of NDPS Act was made by PW-1 Alkesh Rao, Assistant Director vide report Ex. PW1/B. Under these circumstances, there was no question of compliance of these Sections.
45. As discussed earlier, vide notification bearing no. SO [296(E) dated 28.12.1999, inter alia, Ephedrine Hydrochloride was declared as controlled substance under NDPS Act.
Spl. Judge (NDPS), South, Saket, New Delhv0s.02 Of:
6946. | . nt : . . ws he light of above discussion, it is found that the prosecution has proved its case against accused beyond reasonable doubts that the consignment booked vide shipping bill no. 1653146 dated 11.10.2010, part of exhibit PWS5/B for export to MMPC, Brampton Ontario, Canada through M/s Rizwan Exports was belonging to accused Rizwan Ahmed being proprietor of M/s Rizwan Exports and on 13.10.2010 the said consignment was found containing controlled substances i.e. Ephedrine Hydrochloride weighted about 101.309 KG, has been declared to be controlled substance under NDPS vide notification no. SO 1296(E) dated 28.12.1999 and in this process the accused has attempted to export out of India, the said controlled substance and has violated clause (3), (4) and (6) of Narcotic Drugs and Psychotropic Substance (Regulation of Controlled Substance) Order, 1993, issued U/s 9A of NDPS Act and thereby accused has committed offence punishable U/s 25A of NDPS Act, 1985.
Let he be heard at point of sentence.
ae ph\pesh Re mib5y Special Judge (NDPS) South, Saket Courts, New Delhi.
Announced in the Court on 4" February, 2021.
ett SC no. 7} 03/16 Bhupesh Kumar Spl. Judge (NDPS), South, Saket. New Delhi4Os.02 2921