Delhi District Court
Ncb vs . Biplab Ray And Ors. on 22 December, 2012
NCB Vs. Biplab Ray and Ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 113/08
ID No. 02403R0185262004
Narcotics Control Bureau
Through Sh. Bhushan Joshi
Intelligence Officer, NCB,
Delhi Zonal Unit, Delhi.
Versus
1. Biplab Ray
S/o Late Sh. B.B. Ray,
R/o 134, Aravalli Apartments,
Alaknanda, New Delhi
2. Anil Chaterjee
S/o Late Sh. Amar Chaterjee,
R/o 115, Aravalli Apartment,
Alaknanda, New Delhi
3. Javed Iqbal
S/o Sh. Aftab Iqbal,
R/o L2/46B, DDA Flats,
Kalkaji, New Delhi
4. Dr. Ritu Raj
S/o Sh. N.P. Singh,
R/o H.No. 1, Near Mata Mandir,
Eros Garden, Faridabad (Haryana)
SC No. 113/08 Page 1 of 60
NCB Vs. Biplab Ray and Ors.
Date of Institution : 30.11.2002
Judgment reserved on : 18.12.2012
Date of pronouncement : 22.12.2012
JUDGMENT
1. The Narcotics Control Bureau (hereinafter referred to as NCB) through its Intelligence officer (IO) Bhushan Joshi, has filed the present complaint against the accused persons u/s 22, 23, 26 and 29 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as the NDPS Act).
2. The allegations against the accused persons which can be culled out from the averments made in the complaint filed against the accused persons and the documents annexed thereto are as follows:
(a) On 27.05.2002, Abrar Ahmed, Zonal Director, NCBDZU received a written information from Chris Noon, Drugs Liaison Officer, Mumbai that between 19.04.2002 and 14.05.2002, HM Customs and Excise Officers based at Coventry, Post Parcel Depot, UK had examined a total of 10 parcels that had arrived from Faridabad and New Delhi and the same were found to contain 2340 class 'C' drugs mainly Diazepam and that the said parcels were found bearing sender's address as R.P.E, B3, Dayal Bagh Road, Faridabad and 224, Pocket Kalkaji Extension/Kap SC No. 113/08 Page 2 of 60 NCB Vs. Biplab Ray and Ors.
Kayi Extension, New Delhi.
(b) Pursuant to the receipt of the said information, some investigation was carried out by NCB which revealed that one firm M/s Venture Netcom, having its office at 3, Dayal Bagh Road, Eros Garden, Charmswood Village, Faridabad, and being run by its partners namely Biplab Ray, Anil Chatterjee and Javed Iqbal is dealing in the online trading of the controlled/scheduled medicines. Accordingly summons u/s 67 NDPS Act were issued to the aforementioned partners of the said firm and pursuant to the said summons all the three partners namely Biplab Ray, Anil Chatterjee and Javed Iqbal appeared before the NCB office and admitted that though they had applied in the name of M/S Venture Netcom for a license to export medicines, they had not received one and that they had been exporting without any license, psychotropic substances/medicines online. The said statements are stated to have been tendered on 28.5.2002, 30.5.2002, 03.06.2012 and 4.6.2002. In view of the said statements, the status of the license of M/s Venture Netcom was got verified from the Chief Drug Controller, Haryana.
(c) Further since the accused persons had also inter alia stated in their statements that they had been procuring the psychotropic substances/medicines without any prescriptions from Dr. Ritu Raj of M/s Charmswood Chemist, Dayal Bagh Road, Eros Garden, a search SC No. 113/08 Page 3 of 60 NCB Vs. Biplab Ray and Ors.
authorization dated 04.06.2002 was issued in favour of IO Jyotimon authorizing him to conduct the search of the premises of M/s Charmswood Chemist, Dayal Bagh Road, Eros Garden, Faridabad.
(d) In pursuance of the said authorization, the NCB officers reached the aforementioned premises and two panch witnesses namely Kiran Kumar and Sidhnath were requested to join the said proceedings. On reaching the premises in question, officers of NCB introduced themselves to accused Ritu Raj and also showed him the search authorization warrant. Thereafter, a notice u/s 50 NDPS Act was also issued to accused Ritu Raj in the presence of the panch witnesses and he was apprised that he has a legal right that his search and the search of his premises can be conducted in the presence of a Gazetted Officer or a Magistrate. Since accused Ritu Raj refused to exercise the said right, the search of his premises was taken by NCB officers themselves and during the said search, number of tablets of Diazepam, Alprazolam, Clonozepam were recovered from his shop/premises.
(e) On enquiry, accused Ritu Raj stated that he is not maintaining proper account/records in relation to the purchase and consumption of psychotropic substances as prescribed by the Drugs Controller or as prescribed under the NDPS Act. Thereafter, the recovered psychotropic substances were divided into 30 different categories as per their batch SC No. 113/08 Page 4 of 60 NCB Vs. Biplab Ray and Ors.
numbers and marked as A1 to A4, B1 to B3, C1 to C7, D1 to D3, E1 and F1 to F13. Two representative samples consisting of one strip each of 10 tablets was drawn from all the drugs except Ativan drug mark B2 of which only 14 tablets had been recovered. With respect to the said tablets one strip of 10 tablets was taken as the original and another one strip of four tablets was taken as duplicate sample. The samples drawn were put in small polythene bag and put in white paper envelopes separately and sealed by using seal of NCB DZU5 and by pasting thereon paper slips bearing dated signatures of both the panch witnesses, accused Dr. Ritu Raj and Sh. Jyotimon, IO. The remaining psychotropic substances marked A1, A1....F13 were bunched together and put in one transparent polythene bag and stapled and wrapped in white cloth which was then duly stitched and sealed in a similar manner as that adopted for sealing the samples and the cloth pullanda was given mark 'G'. The officers of the NCB also seized the bill books of M/S Charmswood Chemist and took into possession certain other documents also with respect to which annexure A was prepared. The officers of NCB also prepared test memo in triplicate for sending samples to CRCL.
(f) The panchnama with a annexure containing the details of the tablets recovered was also prepared. Summons u/s 67 NDPS Act were then issued to Ritu Raj directing him to appear before the NCB on SC No. 113/08 Page 5 of 60 NCB Vs. Biplab Ray and Ors.
04.06.2002.
(g) In view of the statement tendered by all the accused persons and in view of the recovery from the premises of the accused Ritu Raj, all the accused persons were arrested for having committed the offences punishable u/s 22, 26 and 29 of the NDPS Act.
(h) The panch witnesses were also summoned to appear before the NCB to tender their statements, pursuant to which they did so.
(i) Reports u/s 57 NDPS Act with respect to the arrest of the accused persons was duly tendered before the superior officials and the samples were sent to CRCL, Pusa Road for analysis.
(j) During further investigation the persons named in the statements of the accused persons were summoned and their statements were recorded. The said statements revealed that the accused persons through their firm M/S Venturenetcom had been procuring the orders through two websites namely www.RxEpharmabiz and www.universecare.com and the said sites were having their server at M/S Palcom at kalkaji extension. It was also revealed during investigation that after receiving the export orders through the aforesaid websites the accused persons 1, 2 and 3 used to procure the psychotropic substance from accused no. 4 and then used to send the same through speed post, post office Kalkaji through one postal agent namely Sanjay Kantanwal. The bank account statements of the SC No. 113/08 Page 6 of 60 NCB Vs. Biplab Ray and Ors.
accused persons were also verified and it was found that the accused no. 4 had received huge payment from accused no. 1, 2 and 3 during the period 9/1/2002 to 10/5/2002. It was also confirmed that M/S Venture netcom did not have any license for dealing in medicines whatsoever.
(k) On 22.07.2002, a search authorization was again issued for search of the premises of M/s Venture Netcom at 3, Dayal Bagh Road, Eros Garden, Charmswood Village but nothing incriminating was recovered therefrom.
(l) In the meanwhile, a report was received from CRCL, Delhi confirming that the drugs seized from the premises of accused Ritu Raj were psychotropic substances. The NCB also received a lab report dated 06.08.2002 alongwith the statement of Fraser Paul Johnston with detailed Forensic Examination Record through HM C& E, London. The NCB office also received statement of witnesses namely Victoria Wilson, Sean Thomas Lynch, Thomas James Partridge, Myles Carl Brian Dunn, Toni Marie Bowles, Frank James Smith, alongwith the photographs of the parcels dispatched by the accused no.1 to 3 through post to UK and envelopes on various dates for which NCB received the intimation vide letter from Chris Noon dated 27.05.2002.
(m) On 24.07.2002, Sh. Abrar Ahmed, Zonal Director wrote a letter to Government Examiner of Questioned documents, Hyderabad for retrieval SC No. 113/08 Page 7 of 60 NCB Vs. Biplab Ray and Ors.
of deleted data from Hard disks as the accused persons had deleted the remaining data from their hard disks and from the server prior to the date of 15.04.2002. No information was however received from the government examiner by the NCB till the filing of the complaint.
3. On the basis of the aforementioned assertions and the material on record one of the Ld. Predecessors of this Court had framed charges against the accused persons for the offences punishable u/s 22, 23 and 29 of the NDPS Act for having conspired to acquire and possess and deal with psychotropic substances and for having exported the same to U.K between the period 15/4/2002 to23/5/2002. An additional charge against accused no. 4 was also framed for the offence punishable u/s 26 of the NDPS Act for not having maintained proper accounts with respect to the psychotropic substances recovered from his premises.
4. The prosecution in order to prove its case has examined 28 witnesses.
5. PW17 Sh. C.B. Singh, has inter alia deposed that on 27/5/2002 he had received a letter, Ex.PW2/1, of British DLO through his Zonal Director/Assistant Director wherein it was mentioned that British Custom Officers had seized few post packets containing controlled drugs namely Diazepam which were posted from India and on few envelopes sender's address was mentioned as B3, Dayal Bagh Road, Faridabad and on few packets as 224, Kalkaji Extension, New Delhi. As per the SC No. 113/08 Page 8 of 60 NCB Vs. Biplab Ray and Ors.
testimony of this witness he then constituted a team consisting of Jagmohan Khati (PW2), Trilok Singh (PW3), Madan Singh (PW14) and Ajay Kumar (PW15), which went to conduct an inquiry at B3 Dayal Bagh and thereafter submitted a report ExPW2/2 before him. This witness has further deposed that on 3/6/2002 Ajay Kumar submitted a report, ExPW15/5, before him that accused Ritu Raj is indulging in sale of psychotropic substances without prescriptions and that pursuant to this information, on 4/6/2002 he had issued search authorization in favour of PW7 Sh. Jyotimon for search of premises of M/S Charm Wood Chemist and had also supervised this search operation. As per this witness, during search, 398.1 grams of psychotropic substance (2654 tablets) were recovered from the said premises which were unaccounted for. He has also deposed that he being the superior officer of Jyotimon, J.M. Khati, Mangal Dass and Ajay Kumar IOs, the arrest reports and the seizure reports were also submitted before him and that he had also sent the samples to CRCL for examination. This witness has further inter alia deposed that on 20/6/2002 he had sent a letter Ex.PW17/1 to Drug Inspector, Faridabad for any drug licence application made by M/S Venture Net Com and pursuant to this letter a reply was received from Drug Inspector, Faridabad along with a list of documents which has been exhibited as Ex.PW17/2 colly. As per his deposition he had also issued SC No. 113/08 Page 9 of 60 NCB Vs. Biplab Ray and Ors.
authorization letter Ex.PW17/3 in favour of Devender Singh, Hawaldar to collect the reports from CRCL. According to this witness between the period from June 2002 to July 2002 he had written letters to HDFC bank, PNB bank, ICICI bank and Post office and also received replies from them which have been duly exhibited.
6. PW2 Sh. Jagmohan Khati, PW3 Sh. Trilok Singh , PW14 Sh. Madan Singh and PW15 Sh. Ajay Kumar, the Intelligence Officers of the NCB, all being members of the raiding team which assertedly on 28/5/2002 conducted an inquiry at B3, Dayal Bagh, have more or less deposed on similar lines and have reiterated the allegations made in the complaint. The information deposed to have been given by PW17 Sh. C.B. Singh to them has been exhibited as Ex.PW2/1. In addition PW15 Ajay Kumar has also inter alia deposed about the reports tendered by him to PW17 C.B. Singh and has also further deposed that on 22/7/2002 authorisation was issued in his favour for searching the premises of M/S Venture Netcom, pursuant to which he had searched the said premises and had prepared the panchnama ExPW11/2. PW3 Trilok Singh, IO has also inter alia deposed that on 5/6/2002, he had carried 30 samples packets to the C.R.C.L. on the instructions of Sh. C.B. Singh, Superintendent, NCB and had deposited the same in CRCL and the acknowledgment issued in his name by C.R.C.L. has been exhibited as SC No. 113/08 Page 10 of 60 NCB Vs. Biplab Ray and Ors.
Ex.PW3/4.
7. PW1 Mangal Dass, IO has deposed that he had issued summons Ex.PW1/1, Ex.PW1/3, Ex.PW1/6 and Ex.PW1/5 to accused Anil Chatterjee, Biplab Ray and Javed Iqbal u/s 67 NDPS Act respectively and pursuant thereto accused Anil Chatterjee and Biplab Ray had tendered their statements Ex.PW1/2 and Ex.PW1/4 respectively before him. This witness has further deposed that he had arrested accused Javed Iqbal on 4/6/2002 vide arrest memo Ex.PW1/7 and had submitted his arrest report u/s 57 NDPS which has been exhibited as Ex.PW1/9.
8. PW4 Rajinder Sood, IO has deposed that he had issued summon Ex.PW4/1 to accused Javed Iqbal u/s 67 NDPS Act and pursuant thereto accused Javed Iqbal had tendered his statement Ex.PW4/2 before him. This witness has further deposed that in his presence accused Biplab Ray was arrested on 4/6/2002 by PW3 Trilok Singh.
9. PW5 Ms. Meenakshi Bali, IO has deposed that she had issued summon Ex.PW5/1 to accused Anil Chatterjee u/s 67 NDPS Act and that she had also recorded a statement of accused Biplab Ray Ex.PW5/2 on 4/6/2002. This witness has further deposed that in her presence accused Anil Chatterjee was arrested on 4/6/2002 by PW2 Jagmohan Khati.
10.PW6 Sh. Shahid Hassan, IO has merely deposed that he had recorded the statement of Sh. Sanjay Katnawar which has been exhibited as SC No. 113/08 Page 11 of 60 NCB Vs. Biplab Ray and Ors.
Ex.PW6/1.
11.PW7 Sh. Jyotimon, IO has deposed that accused Biplab Ray, Javed, Anil Chatterjee had appeared before him and had given their voluntary statements on various dates which have been exhibited as Ex.PW7/1, Ex.PW7/4, Ex.PW7/5 and Ex.PW7/6. This witness has further deposed that on 4/6/2002 he was given search authorization Ex.PW7/7 by PW17 Sh. C.B. Singh to search the premises of Charmswood Chemist of accused Ritu Raj. In his deposition he has given the details of the search and seizure proceedings conducted by him. The notice u/s 50 NDPS Act issued by him to the accused Ritu Raj has been exhibited as Ex.PW7/8. The six sets of test memos and panchnama prepared by this witness have been exhibited as Ex.PW7/9 to Ex.PW7/15. The annexure to the panchnama has been exhibited as Ex.PW7/16. The summons issued by him to accused Ritu Raj has been exhibited as Ex.PW7/18. This witness has further deposed that on 4/6/2002 he had arrested accused Biplab Ray vide arrest memo Ex.PW7/21 and had submitted report u/s 57 NDPS Act with respect to seizure and arrest of accused Biplab Ray to PW17 which have been duly exhibited as Ex.PW7/22 and Ex.PW7/23 respectively. This witness has further deposed that in response to his telephonic call one Sh. Om Prakash Khanna had appeared before him and tendered his statement Ex.PW7/25 and also tendered bills showing the medicines sold SC No. 113/08 Page 12 of 60 NCB Vs. Biplab Ray and Ors.
by him to Dr. Rituraj which has been exhibited as Ex.PW7/26 (colly). According to this witness during the search of the premises of Dr. Ritu Raj he had taken into possession 16 bill books which have been exhibited as Ex.PW7/28 to Ex.PW7/43.
12.PW8 Devender Singh, Hawaldar has inter alia deposed that on 25/7/2012 Sh. C.B. Singh, Superintendent had sent him to CRCL and that he had collected the said reports and remnant samples in sealed condition in envelopes Ex.PW8/1 to Ex.PW8/6 which he brought from CRCL to his office.
13.PW9 Sanjay Katnawar has inter alia deposed that about 10 years back he used to pick up packets from Javed, Anil and Biplab Ray for sending the same through speed post as he was having agency of speed post. He has also deposed that he had been summoned by the NCB vide summons Ex.PW9/1 and pursuant thereto he had tendered a self written statement Ex.PW9/2 before the NCB officials. He has also deposed that he had tendered postal receipts (total 68 in number), Ex.PW9/3 and Ex.PW9/71 and that the said postal receipts pertained to packets which he had sent outside India on behalf of accused persons.
14.PW10 Sh. Sidhnath according to the prosecution had witnessed the search and seizure proceedings conducted at the premises of accused Ritu Raj. This witness had initially deposed that he does not remember SC No. 113/08 Page 13 of 60 NCB Vs. Biplab Ray and Ors.
anything about the said proceedings and that he had merely written a statement at the NCB office as per the dictation of a NCB officer. On request of Ld.SPP for NCB, this witness was then allowed to be cross examined by the prosecution and during the said cross examination he identified his signatures on certain documents. He however could not recollect whether or not in his presence any medicine was seized from the premises of Ritu Raj.
15.PW11 Sh. Aftab Iqbal has inter alia deposed that about 56 years back, NCB officers had called him on telephone and informed him that they want to open and search the premises of M/S Venture Netcom D3, Dayalbagh Road Eros Garden which is owned by his wife and younger son. As per this witness NCB officers showed him search authorization Ex.PW11/1 and searched the premises but nothing was seized by NCB officers from the said premises.
16.PW12 Sh. S.D. Sahay, Assistant Director, NCB has inter alia deposed about the information received by him from the Zonal Director with respect to the communication received from the British Deputy High Commission. As per his deposition he had discussed the said information with the Superintendent NCB and had directed him to take necessary action. As per the deposition of this witness he had on 4/6/2002 and on 22/7/2002, also issued the seal of NARCOTIC CONTROL BUREAU SC No. 113/08 Page 14 of 60 NCB Vs. Biplab Ray and Ors.
DZU5 to PW7 Jyotimon and PW15 Ajay Kumar respectively. The relevant pages of the seal movement register have been exhibited as ExPW7/19 as per the deposition of this witness. He has also inter alia deposed that various reports u/s 57 NDPS Act were submitted before him by the concerned IOs. As per this witness he had also issued some letters to Senior Superintendent of Post office on 11/6/2002 and 25/10/2002 for providing the EMS receipts and details and pursuant to which he had received replies from Sr. Superintendent Post Office on 26/7/2002 and 19/8/2002 which have been duly exhibited as Ex.PW12/4 and Ex.PW12/3 respectively.
17.PW13 Sh. Abrar Ahmad has inter alia deposed that on 27/5/2002 he had received an information from Chris Noon Drugs Liaison Officer, British Deputy High Commission at Mumbai and the said information/letter has been exhibited as Ex.PW2/1. He has also inter alia deposed that pursuant to the information received he had instructed the Assistant Director, DZU to verify the contents of the information and subsequently during follow up action on 3/2/2002 he himself had written letter to Narcotics Commissioner Gwalior and Chief Drug Controller and the said letters have been exhibited as Ex.PW13/3 and Ex.PW13/4. The letter received by this official from Narcotics Commissioner mentioning that no export authorization had been issued to Venture Net Com has SC No. 113/08 Page 15 of 60 NCB Vs. Biplab Ray and Ors.
been exhibited as Ex.PW13/5. According to this witness he had also received certain reports and statements from Birmingham, UK and the said communications have also been duly exhibited.
18.PW16 Sh. Bhushan Joshi, IO has inter alia deposed that accused Javed Iqbal had tendered his voluntary statement before him on 28/5/2002 which has been exhibited as Ex.PW16/1. As per this witness he had compiled four files of venture net com relating to consignment shipped abroad from 15/4/2002 to 23/5/2002 and the compilation has been exhibited as Ex.PW16/3. This witness has further deposed that he had also made the computation of order/shipping of the psychotropic substance w.e.f. 15/4/2002 to 23/5/2002 in respect of website rxepharma and universecare launched by M/S Venture netcom pertaining to RXEBIZ shipped, RXE orders shipped, UC orders shipped and Universe orders shipped and the same has been exhibited as Ex.PW16/4. This witness has further stated that after collecting all the comments and papers, he, on the basis of notification, Ex.PW16/5, filed the complaint Ex.PW16/6 in the court.
19.PW18 Sh. K.C. Aggarwal, Chemical Examiner has inter alia deposed that the samples sent to CRCL by the NCB were examined by Sh. K.M. Gupta, Assistant Chemical Examiner under his supervision and the reports ExPW18/1 to ExPW18/6 were prepared with respect to the said SC No. 113/08 Page 16 of 60 NCB Vs. Biplab Ray and Ors.
analysis. According to this witness he had also received a letter Ex.PW18/7 from Zonal Director NCB DZU for the purposes of knowing the chemical name of Diazepam and that he had replied the same vide his communication ExPW13/6.
20.PW19 Sh. Ashish Kumar Choudhary has interalia deposed that he was an Operation Manager in M/S Palcom, an inter net service provider in the year 2002 and pursuant to the summons Ex.PW15/14 issued to him by the NCB he had appeared in the NCB office at R.K. Puram and had tendered his statement Ex.PW15/15. He has also deposed that he had tendered statement of account of M/S Venture Netcom Ex.PW15/16 before NCB officials.
21.PW20 Jagbir has inter alia deposed that in October, 2001 he had applied for a job in the company M/S Venture Netcom and that he was told that he would be paid Rs.2500/ PM. and pursuant to the summons Ex.PW15/10 he had appeared before NCB office at R.K. Puram and had tendered his statement Ex.PW15/17.
22.PW 21 Babu Lal Soni has inter alia deposed that in June, 2002 he was working as Assistant Narcotics Commissioner, CBN, Gwalior and that on receipt of an enquiry from the NCB DZU he had informed them vide fax letter Ex.PW13/5 that no export authorization for export of narcotics drugs and psychotropic substance had been issued to M/S Venture SC No. 113/08 Page 17 of 60 NCB Vs. Biplab Ray and Ors.
Netcom and its partners.
23. PW22 Sh. Krishan Kumar has appeared from the Drugs Control Office and has merely deposed that as per records maintained by their office letter dated 20/6/2002 had been received from NCB asking for certain documents with respect to M/S Venture Netcom and that the requisite documents were supplied to NCB vide Ex.PW17/2.
24.PW23 Amit Kumar, Deputy Branch Manager, ICICI Bank, G.K. I has produced before the court the statement of account of M/S Venture Netcom (maintained in the said bank) for the period 3/4/2002 to 31/5/2002.
25.PW24 Mahi Lal, Record Keeper, PNB Alakhnanda, Kalkaji has produced before the Court the true attested copy of statement of account pertaining to M/S Venture Netcom (maintained in the said bank) for the period 1/1/1998 to 25/2/2005.
26.PW25 M.M. Kapoor, Senior Manager, Allahabad Bank, Chittaranjan Park Branch has produced before the court the bank statement of M/S Venture Netcom (maintained in the said bank) for the period of 1/6/1995 to 7/6/2002.
27.PW25 Sh. R.K. Singh (inadvertently two witnesses have been numbered as 25) Senior Manager, NIT, PNB Faridabad has produced before the court the statement of account for accused Ritu Raj (maintained in the SC No. 113/08 Page 18 of 60 NCB Vs. Biplab Ray and Ors.
said bank) for the period 29/10/2001 to 15/5/2002.
28.PW26 Parag Aggaral, Branch Operation Manager, HDFC Bank, G.K. II Branch has produced before the Court the statement of accounts of M/S Venture Netcom (maintained in the said bank) for the period 14/5/2001 to 31/3/2012.
29.PW26 J.B. Gupta, Senior Manager, Bank of Maharashtra, Kalkaji (inadvertently two witnesses have been numbered as 26) has produced before the Court the statement of account of Ritu Raj (maintained in the said bank) for the period 1/8/2001 to 31/10/2002.
30.The entire incriminating evidence was put to all the accused persons and their statements were recorded u/s 313 Cr.PC. In the said statements, all the accused persons have stated that they have been falsely implicated and that they were forced to give their statements u/s 67 NDPS Act admitting their guilt therein.
31. After the recording of the said statements, Ld. SPP for NCB, Sh. Rajesh Manchanda and Ld. Defence Counsels Sh.Sanjeev Kumar and Sh. Tanwar Ahmad Mir advanced final arguments and also filed written submissions. Ld. SPP for NCB, Sh. Rajesh Manchanda has inter alia submitted that the documentary and oral evidence produced on record by the prosecution has proved the guilt of the accused persons beyond reasonable doubt. He has pointed out that the deposition of PW19 Ashish SC No. 113/08 Page 19 of 60 NCB Vs. Biplab Ray and Ors.
Chaudhary has proved that accused no.1, 2 and 3 had launched a website of M/s Venture Netcom and that through the said site they used to obtain orders from abroad for supply of psychotropic substances. He has also pointed out that the four files wherein the details of the consignment shipped abroad from 15.04.2002 to 23.05.2002, Ex.PW2/9 and PW2/10 supports the deposition of Ashish Chaudhary and proves that accused no. 1 to 3 through their partnership firm were doing the business of exporting psychotropic substances without having any license for doing so. He has also pointed out that the deposition of PW9 Sanjay Katnawar, who has placed on record the postal receipts vide which the psychotropic substances used to be exported by accused no.1 to 3 via postal authorities, also bring to the fore the guilt of the accused persons. As regards the role of accused no.4 Ritu Raj, Ld. SPP has submitted that from the premises of this accused, psychotropic substances were recovered and that this accused in his statement tendered u/s 67 NDPS Act has admitted that he used to supply the psychotropic substances to accused no.1 to 3. He has also submitted that similarly accused no.1 to 3 in their statements tendered u/s 67 NDPS Act have also admitted that they used to procure the psychotropic substances from accused no.4 only. Ld. SPP has also pointed out that the statements of the bank accounts of M/s Venture Netcom, the partnership concern of accused no.1, 2 and 3 SC No. 113/08 Page 20 of 60 NCB Vs. Biplab Ray and Ors.
shows that over a passage of time this firm has made huge payments to accused no.4 and thus the entire evidence placed on record by the prosecution conclusively proves that all the accused in conspiracy with each other had exported psychotropic substances outside India.
32.Ld. Defence counsel Sh. Sanjeev Kumar for accused no.1, 2 and 3, on the other hand, has inter alia submitted that no official from Post Parcel Depot, UK has appeared in the witness box to prove that the parcels inspected by them were found to be psychotropic substances and hence the submission is that this court cannot, in the absence of the case property and the chemical analysis report thereof, come to any conclusion that the accused no.1 to 3 in conspiracy with accused no.4 had exported to UK parcels containing psychotropic substances. Ld. Defence Counsel Sh. Sanjeev Kumar has pointed out that though PW13 Abrar Ahmed has deposed that the NCB had received the documents, reports, statements from Birmingham, UK including the report of the Chemical Examiner and that the same have been exhibited as Ex.PW13/6 to PW13/8, none of the said documents can be read in evidence for the authors of the said documents have not been produced in the witness box. In the alternative, he has contended that the Chemical Examiner reports filed on record do not show the percentage of psychotropic substances found in the tablets recovered at UK and his contention therefore is that SC No. 113/08 Page 21 of 60 NCB Vs. Biplab Ray and Ors.
there is no material before this court to determine whether the quantity of psychotropic substances allegedly exported by the accused persons was small, intermediate or commercial. As regards the statements tendered by the accused persons 1, 2 and 3 u/s 67 NDPS Act, Ld. Counsel has pointed out that the said statements were retracted by the said accused persons at the first opportunity available to them and that therefore no reliance can be placed upon the same by this court. Ld. Counsel Sh. Sanjeev Kumar has also pointed out certain contradictions in the depositions of the prosecution witnesses which according to him show that the said statements were never tendered voluntarily by the accused persons.
33.Ld. Defence counsel Sh. Tanvir Ahmed Mir for accused Ritu Raj has inter alia contended that the assertion of the prosecution that various substances/tablets were recovered from the premises of accused no.4 cannot be believed at all for the panch witness PW10 Sidh Nath in whose presence the search and seizure proceedings at the premises of accused Ritu Raj had taken place has admitted in his crossexamination that he kept on signing many documents at the instance of NCB officials without knowing or understanding their contents. He has also pointed out that one of the NCB officials, PW5 Shahid Hassan has also stated that he remained outside the shop no.4 and therefore he cannot say as to what SC No. 113/08 Page 22 of 60 NCB Vs. Biplab Ray and Ors.
had happened inside shop no.4. He has also pointed out that PW15, Ajay Kumar, the main Investigating Officer who allegedly conducted the raid on the shop of Ritu Raj has admitted that the medicines seized from the shop of Ritu Raj would be available with any other local chemist. Ld. Counsel has also submitted that this accused in his statement given u/s 313 Cr.PC has informed this court that no medicines were seized from his shop and that he had never sold any medicines to accused no.1 to 3 and that only Ayurvedic/cosmetic products had been sold by him to Javed. Ld. Counsel has also pointed out that the said accused has also stated that though 19 bill books had been seized by NCB officials from his shop, the prosecution has only produced 16 bill books before this court and that the bills pertaining to the sale of cosmetic products by him to Javed may have been in the three bill books that have been deliberately not produced by the prosecution before this court. It is the contention of Ld. Counsel Sh. Tanvir that apart from the statements that the accused persons were forced to write u/s 67 NDPS Act, there is not a shred of evidence produced by the prosecution to show that the drugs allegedly recovered from UK had been procured by the accused persons from accused no.4. His submission is that the payments reflected in the bank statement accounts of accused no.4 cannot lead to the only conclusion that the said payments were with respect to the substances exported by SC No. 113/08 Page 23 of 60 NCB Vs. Biplab Ray and Ors.
accused no.1, 2 and 3 to UK and the same were infact received by accused no.4 with respect to the cosmetic products sold by him to accused no.1, 2 and 3.
34.Ld. Defence counsel Sh. Sanjeev Kumar and Sh. Tanvir Ahmed Mir have also additionally contended that even if the recovery of certain tablets from the shop of accused no.4 Ritu Raj is taken to be true, there is absolutely no evidence produced on record to show that the medicines recovered from the premises of accused Ritu Raj were meant for export and that the mere possession of the said medicines/substances from Ritu Raj does not constitute an offence under the NDPS Act. It has been pointed out by Ld. Defence counsels that the substances allegedly recovered from the premises of accused Ritu Raj find mention both in the Schedule H to the Drugs and Cosmetics Act and in the Schedule to the NDPS Act but none of them are covered in the Schedule to the NDPS Rules and therefore the first argument of the Defence in this regard is that in view of the orders passed by Hon'ble Delhi High Court in the case titled as Rajender Gupta Vs. State 123(2005) DLT 55, the said substances do not fall within the purview of the NDPS Act and that therefore their manufacture, possession, sale, purchase, export, import is not in contravention of section 8 of the NDPS Act and therefore the accused persons cannot be held guilty of the offences punishable u/s 22, SC No. 113/08 Page 24 of 60 NCB Vs. Biplab Ray and Ors.
23 or 26 of the NDPS Act. Ld. Defence counsels have also pointed out that the said view of the Hon'ble Delhi High Court was subsequently affirmed by the Hon'ble Supreme Court in the case titled as State of Uttranchal Vs. Rajesh Kumar Gupta 2006 Drugs Cases (Narcotics) 623 The second limb of the contention of the Defence is that this court on examination of the tablets recovered from the premises of Ritu Raj has found that most of the tablets were having the label Rx, which as per Rule 97(i)(b) of the Drugs and Cosmetics Rules, 1945 is put only on those medicines which contain a substance specified in Schedule H of the Drugs and Cosmetics Rules and that the said labeling shows that the tablets recovered from the premises of accused Ritu Raj were only medicines and do not come within the purview of the NDPS Act. It has also been pointed out that had the tablets been containing a psychotropic substance within the purview of NDPS Act, they would have been labeled NRx as per Rule 97(i)(c).
35.In rebuttal to the said arguments of the Defence, Ld. SPP for NCB has relied upon two judgments of the Hon'ble Supreme Court pronounced in the cases titled as D. Ramakrishnan Vs. Intelligence Officer NCB pronounced in 2009(3) JCC(Narcotics) 149 and Mohd. Sahabuddin & Anr. Vs. State of Assam pronounced in 2012(10) SCALE 77. SC No. 113/08 Page 25 of 60 NCB Vs. Biplab Ray and Ors.
Relying on the said judicial dicta, Ld. SPP for NCB has contended that the judgment pronounced in Hon'ble Supreme Court in Rajesh Kumar Gupta's case is not applicable to the facts of the present case. Ld. SPP has further pointed out that all the tablets recovered from the premises of accused no.4 Ritu Raj on chemical analysis have tested positive for one or the other psychotropic substances and therefore an inference has to be drawn by this court that the said tablets have been mislabeled by their manufacturer and the said inference can be made despite the fact that there has been no investigation conducted in this regard. His submission therefore is that the labeling Rx on the tablets recovered has no relevance. Ld. SPP has also pointed out that the statements of accused persons tendered u/s 313 Cr.PC to the effect that they were only in the business of exporting the cosmetic products and not in medicines or psychotropic substances is absolutely concocted and false, for had it been so, the accused no.4 who runs a chemist shop could have easily produced the bills vide which he had sold the cosmetic products to accused no.1 to
3. His contention is therefore that a presumption has to be drawn against the accused persons both under section 35 and section 54 of the NDPS Act and under the provisions of the Evidence Act that they were dealing in export of psychotropic substances only. As regards the Chemical Examiner's report with respect to the substances seized at the Post Parcel SC No. 113/08 Page 26 of 60 NCB Vs. Biplab Ray and Ors.
Depot, UK, the contention of Ld. SPP is that if the court is not satisfied about its admissibility the court can easily presume that the nature of substances exported by the accused persons would be the same as those of the substances recovered from the premises of accused no.4.
36.I have carefully considered the submissions made by all the Ld. Counsels and have perused the entire material on record. To put the case of the prosecution in a nutshell, accused no.4 who was running a chemist shop at Faridabad was not keeping a proper account /record of medicines containing psychotropic substances and was supplying psychotropic substances to accused no.1, 2 and 3, without any prescriptions and the said accused persons in turn were exporting the said medicines to its customers based outside India. In order to prove its case against the accused persons, the prosecution is mainly relying upon the following incriminating evidence namely:
(i) A communication received from Coventry Post Parcel Depot, U.K. that 10 parcels that had arrived at the said Depot from Faridabad were found to contain class C drugs mainly dizaepam and that the sender's address mentioned on the said parcels was B3, Dayal Bagh Road, Faridabad, India and 224, Pocket Kalkaji Extension New Delhi.
(ii) The statements tendered by all the accused persons u/s 67 NDPS Act wherein the accused no.1, 2 and 3 have admitted that they had formed a SC No. 113/08 Page 27 of 60 NCB Vs. Biplab Ray and Ors.
partnership in the name of M/s Venture Netcom (having its office at B3, Dayal Bagh Road, Faridabad) and used to procure medicines/drugs from accused no.4 and then supply the same vide post in turn to their customers based outside India, who had placed orders upon them through Internet.
(iii) The computerized data procured from M/s Palcom, an Internet service provider containing the details of the sites Rx Pharma and Universe Care being run by M/s Venture Netcom and also the computerized data tendered by the accused 1, 2 and 3 themselves containing the details of the orders received by them during the period mid April to the end of May.
(iv) The bank statement accounts of M/s Venture Netcom and accused no.4 showing that various amounts were received by M/s Venture Netcom through credit card payments in consideration of the products supplied by them and that they had in turn made considerable payment to accused no.4.
(v) The recovery of psychotropic substances from the premises of accused no.4.
37. As narrated herein above, as per the allegations of the prosecution, two sets of recovery of psychotropic substances were made one from the premises of Dr. Ritu Raj and other from the Post Parcel Depot, UK. SC No. 113/08 Page 28 of 60 NCB Vs. Biplab Ray and Ors.
Coming first to the recovery made at the premises of Ritu Raj, as per the averments made in the complaint and the panchnama drawn at the said premises and exhibited as Ex.PW7/15 tablets bearing the following medicine names/international proprietary name were recovered from the said premises Rivotril, Conotril2, Ativan, Calmpose, Valium, Librium, Nitrosun, Alprax and Trika. Admittedly, all the said tablets were sent for chemical analysis and were found to contain Clonozepam, Lorazepam, Diazepam, Chlordiazepoxide, Nitrazepam and Alprazolam. Admittedly all these psychotropic substances only find mention in the schedule to the NDPS Act and in the schedule H to the Drugs and Cosmetic Act and are not included in the schedule I to the NDPS Rules. Now, though it is the submission of Ld. SPP Sh. Rajesh Manchanda that the aforementioned substances recovered from the premises of Ritu Raj were also meant for supply by accused no.4 Ritu Raj to accused no.1 to 3 who would have in turn then exported the said substances abroad, after going through the evidence relied in this regard namely the statements tendered by all the accused persons u/s 67 NDPS Act, the computerized data filed on record and the bank statement accounts of M/s Venture Netcom, this court is of the considered opinion that none of the said documentary evidence in any way shows that the substances that were recovered from SC No. 113/08 Page 29 of 60 NCB Vs. Biplab Ray and Ors.
the premises of accused no.4 were meant for export by accused no.1, 2 and 3. No doubt in the statements tendered by the accused no.1, 2 and 3 they have admitted that they had earlier purchased certain drugs from accused no.4 and then had exported the same vide speed post to UK, USA and other countries, there is absolutely no mention in the said statements that they have placed further orders for procurement of drugs from accused no.4 and that the same are lying at his premises. On the contrary it is mentioned in the said statements that apart from accused no. 4, medicines were also procured by accused no. 1, 2 and 3 from Bhagirath Palace and Lajpat Nagar. Similarly, though accused no.4 in his statement purportedly tendered u/s 67 NDPS Act has admitted that he had on earlier occasions sold various tablets to accused no.4 and had received payments through cheques for the said supply, there is no statement made by him that the tablets recovered from his premises were also meant for supply to accused no.1, 2 and 3. Further neither the computerized data nor the bank statements contain any entry or data which reflects that the aforementioned substances were meant to be supplied by accused no.4 to accused no.1, 2 and 3. On the other hand, PW7 Jyotimon who had conducted the search and seizure proceedings at the shop of Dr. Ritu Raj in his crossexamination has categorically admitted that during the search operation, he collected evidence to the extent that Dr. Ritu Raj and SC No. 113/08 Page 30 of 60 NCB Vs. Biplab Ray and Ors.
Charmswood Chemists was a licensed Chemist and Druggist and that from the documents seized at the Charmswood Chemists, he gathered no evidence to indicate that Dr. Ritu Raj and Charmswood Chemists were sending any medicines/drugs out of India. The only allegation in respect of the search conducted at the premises of accused no.4 in the complaint filed is that he was not maintaining proper accounts and records in relation to purchase and consumption of psychotropic substances as prescribed under the Drugs and Cosmetics Act, 1945 and that therefore the NCB officials seized the stock of psychotropic substances available at his premises alongwith the bill books. Now the bill books seized from the premises of accused no.4 Ritu Raj have been exhibited as Ex.PW7/28 to Ex.PW7/43 and the same that he had been supplying the said substances even to persons other than accused no.1, 2 and 3 (in this regard specific reference is made to bill no. 29963, 29977, 29674, 29680, 30094, 30097, 30506, 30518, 30663, 31477, 32329, 32332, 32357 and 33456). In other words, as per the evidence produced by the prosecution itself, accused Ritu Raj was a licensed chemist and that apart from selling medicines containing psychotropic substances to accused 1, 2 and 3, he had also been selling the said to his other customers also. This court is therefore of the considered opinion that the evidence placed on record by the prosecution itself, does not lead to the conclusion that the substances SC No. 113/08 Page 31 of 60 NCB Vs. Biplab Ray and Ors.
allegedly recovered at the premises of accused Ritu Raj were meant for export by the accused persons.
38.Further in the considered opinion of this court, it is not necessary to discuss in detail whether or not the prosecution has been able to prove beyond reasonable doubt that the aforementioned substances were infact recovered from the premises of Ritu Raj and that he was not maintaining proper accounts with respect to the same, for as per the judicial dicta placed on record, the mere possession of the said substances, which only find mention in the Schedule to the NDPS Act and in the Schedule to the Drugs and Cosmetics Act, by a licensed chemist without maintaining records thereof, is not an offence punishable under the provisions of the NDPS Act. The judicial dicta referred to by the Ld. Counsels makes it clear that as per Rule 64 of the NDPS Rules the prohibition laid down in section 8 of the NDPS Act with respect to the manufacture, possession, transportation, sale, purchase, use, consumption etc. of any psychotropic substance, is only with respect to the psychotropic substances mentioned in Schedule I to the NDPS Rules and not to the psychotropic substances mentioned in the Schedule to the NDPS Act.
39.In the case of Rajender Gupta (supra), the High Court after considering the relevant provisions under the Drugs and Cosmetics Act, Section 8 and 9 and other relevant sections of the Act, chapter VII of the NDPS Rules, SC No. 113/08 Page 32 of 60 NCB Vs. Biplab Ray and Ors.
Schedule to the NDPS Act, Schedule I to the NDPS Rules observed:
There are several psychotropic substances which find place both in the schedule to the NDPS Act and in Schedule I to the NDPS Rules. For example Tablet methazualone, Deloraepam, Ketazolam, Lorazolam, Pipradrol, Tetrazepam. At the same time there are others like Buprenorphine, Bromazepam, Lorazepam, Phenobarbital and Pemoline which though specified in the Schedule I to the NDPS Act, do not find mention in the schedule I to the NDPS Rules. Clearly, by conscious design, all psychotropic substances mentioned in the schedule to the NDPS Act have not been listed in schedule I to the Rules. The prohibition contained in Rule 64 of the NDPS Rules applies only to those psychotropic substances which are specified in Schedule I to the NDPS Rules. In other words the prohibition in Rule 64 of the NDPS Rules is not applicable to those psychotropic substances, which although they are listed in the Schedule to the NDPS Act, are not part of the listed psychotropic substances in Schedule I to the NDPS Rules. Thus they shall be governed by the Drugs and Cosmetics Act and Rules and not by the NDPS Act or NDPS Rules. So its manufacture possession, sale, transport would neither be prohibited nor regulated by the NDPS Rules and consequently by the NDPS Act. It being Schedule H drug would fall within the rigors of the Drugs and Cosmetic Act and Rules.SC No. 113/08 Page 33 of 60
NCB Vs. Biplab Ray and Ors.
40.In Rajesh Kumar Gupta's case (supra), the Hon'ble Supreme Court after considering elaborately the provisions of section 8, 9, 10, 76 of the NDPS Act and the Chapters VI & VII of the NDPS Rules, 1985, Schedule to the NDPS Act, Schedule I to the NDPS Rules and after taking note of the orders passed by the Hon'ble Delhi High Court in Rajender Gupta's case (supra) observed that though Section 8 of the NDPS Act inter alia prohibits the production, manufacture, possession, sale, purchase, transportation, use, consumption, import, export or any narcotic drug or psychotropic substance, the said provision contains an exception that the use of a contraband for medical or scientific purposes in the manner and to the extent provided by the provisions of the NDPS Act or the rules or orders made thereunder, is excluded from the purview of its operation. After taking note that the provisions of the NDPS Act do not provide for the manner and extent of possession of contraband for medical or scientific purposes, the Hon'ble Supreme Court in para 15 and 16 of its judgment has held:
15. It has not been brought to our notice that the 1985 Act provides for the manner and extent of possession of the contraband. The rules framed under section 9 of the 1985 Act read with section 76 thereof, however, provide for both the manner and the extent, inter alia, of production, manufacture, possession, SC No. 113/08 Page 34 of 60 NCB Vs. Biplab Ray and Ors.
sale, purchase, transport, etc. of the contraband. Chapter VI of the 1985 Rules provides for import, export and transshipment of narcotic drugs and psychotropic substances. Rule 53 contains general prohibition in terms whereof the import and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I appended thereto is prohibited. Such prohibition, however, is subject to the other provisions of the said Chapter, Rule 63 to which our attention has been drawn specifically prohibits import and export of consignment through a post office box but keeping in view the general prohibition contained in Rule 53 the same must be held to apply only to those drugs and psychotropic substances which are mentioned in Schedule I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rules 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for purchase, consumption or use of the psychotropic substances specified in Schedule I, Rule 65 prohibits manufacture of psychotropic substances, whereas Rule 66 prohibits possession, Rule 67 prohibits transport thereof, Rule 67A provides for special provisions for medical and scientific purposes.
16. The general prohibition contained in both Rule 53 and 64, therefore, refer only to the drugs and SC No. 113/08 Page 35 of 60 NCB Vs. Biplab Ray and Ors.
psychotropic substances specified in Schedule I. It is neither in doubt nor in dispute that whereas the Schedule Appended to the 1985 Act contains the names of a large number of psychotropic substances, Schedule I of the Rules prescribes only 35 drugs and psychotropic substances.
41.Thus the ratio decidendi of both the aforementioned pronouncements is that in case a psychotropic substance is not included in Schedule I to the NDPS Rules but finds mention only in Schedule to the NDPS Act and is also covered in any of the Schedule to the Drugs and Cosmetics Act, the prohibition contained in Section 8 NDPS Act and Rule 64 of the NDPS Rules will not be applicable to its manufacture, possession, sale, purchase, transport, etc. In view of the said judicial dicta since the substances allegedly recovered from the premises of Ritu Raj are not included in the Schedule I to the NDPS Rules but find mention only in Schedule to the NDPS Act and are also covered in the Schedule H to the Drugs and Cosmetics Act, he cannot be held guilty for having contravened Section 26 of the NDPS Act and he could have been only prosecuted , if at all, only under the provisions of the Drugs and Cosmetics Act.
42.In D. Ramakrishnan's case, the allegations against the accused were that he was exporting psychotropic substances namely Alprazolam, SC No. 113/08 Page 36 of 60 NCB Vs. Biplab Ray and Ors.
Lorazepam, Nitrazepam, etc, by indulging in illegal Internet pharmacy and though he did have a general permission for import and export under Drugs and Cosmetics Act, 1940, the Hon'ble Supreme Court held that he was also required to have obtained an export license/permission from the Narcotic Commissioner or any other officer authorized in this behalf as per the Rules framed under the NDPS Act and since he had failed to do so, he was not granted bail by the Hon'ble Court. The Hon'ble Supreme Court in this case noted its own judgment delivered in Rajesh Kumar Gupta's case (supra) but held that it is not applicable to the facts before it as the accused had been found exporting psychotropic substances and that the Drugs and Cosmetics Act, 1940 does not deal with exports. Though the Ld. Defence Counsel Sh. Sanjeev Kumar has tried to contend before this court that in view of the pronouncement of the Hon'ble Supreme Court in Rajesh Kumar Gupta's case which was prior in time to the pronouncement in D. Ramakrishnan's case, the observations of the Hon'ble Supreme Court that once a psychotropic substance does not find mention in Schedule I to the NDPS Rules, the prohibition contained in Rule 63 of the NDPS Rules will not be applicable to even its export, this court does not wish to make any observations on the said contention for the same is not relevant for the purposes of the present case in as SC No. 113/08 Page 37 of 60 NCB Vs. Biplab Ray and Ors.
much as the substances found at the premises of Ritu Raj, as discussed hereinabove have not been shown to have been procured or stored for export purposes. Thus, in the considered opinion of this court, the Judgment delivered by the Hon'ble Supreme Court in D. Ramakrishnan's case will not be applicable to the recovery from the premises of accused no.4 Ritu Raj, though the said judgment would have been squarely applicable to the alleged export of psychotropic substances which were recovered at the Post Parcel Depot, UK had the prosecution bothered to prove before this court the said recovery.
43.Admittedly in the present case, though initially accused persons were apprehended on the allegations that 10 parcels sent through speed post by them from Faridabad to UK had been seized and found to contain drugs, the said parcels have not been produced before this court and the prosecution has also not been able to produce any witness from the Customs and Excise Department or Post Parcel Depot, UK in the witness box to prove the seizure of the said parcels or to prove the analysis report of the substances recovered from the said parcels. Though Ld. SPP Sh. Rajesh Manchanda for NCB has tried to contend that the statements of the UK officials (containing a recital that the drugs seized were found to contain Diazepam, etc), received by the NCB officials have been placed on record and exhibited during the deposition of PW13, he could not SC No. 113/08 Page 38 of 60 NCB Vs. Biplab Ray and Ors.
satisfy this court at all as how the said statements can be read in evidence in view of section 66 of the NDPS Act. The said section requires that in case any document has been received from any place outside India it has to be duly authenticated by such authority or person and in such manner as may be prescribed by the Central Government but the said requirement has not been met in this case. The mere submission of Ld. Counsel for NCB that these documents have already been exhibited during trial and that, therefore, this court must read the same in evidence cannot be upheld because it is well settled law that mere exhibition of documents in no manner dispenses with their proof as per law. The same proposition has been laid down by the Hon'ble Delhi High Court in Emmanuel Uchenna Ezenwosu Vs. Narcotics Control Bureau and Ors. 2003 (1) JCC 417. In view of the said judicial dicta none of the aforementioned documents placed on record can be read in evidence against the accused in the absence of their executants being produced in the court and in the absence of these documents having been authenticated as per the requirement of law.
44.Despite the aforementioned failure of prosecution in producing the said parcels and the contraband contained therein or its chemical analysis report, before this court, the contention of the Ld. SPP for NCB is that the SC No. 113/08 Page 39 of 60 NCB Vs. Biplab Ray and Ors.
prosecution has placed on record certain computerized data which contains the details of the consignments shipped abroad by the accused persons 1, 2 and 3 from 15.04.2002 to 23.05.2002 and that the said compilation is Ex.PW2/9 and PW2/10. The said documents according to the Ld. SPP were tendered by the accused persons themselves alongwith their statements tendered u/s 67 NDPS Act and the said data contains the orders which were obtained by M/s Venture Netcom, a partnership firm of accused no. 1, 2 and 3. Ld. SPP has also pointed out that the accused persons on their own had also tendered downloaded documents Ex.PW7/2 which also shows that accused persons had exported the psychotropic substances to UK and USA during the period 15.04.2002 to 23.05.2002. He has also pointed out that the testimony of PW9, the Postal Agent proves that the accused persons had sent through speed post various parcels to UK and USA between the period 15.04.2002 to 23.05.2002. He has also pointed out that the accused persons 1 to 3 in their statements tendered under section 313 Cr.PC, are not disputing that they had formed a partnership firm in the name of M/s Venture Netcom. His submission is that though these accused persons have taken a stand that the said firm started supplying cosmetic herbal products through an Internet site to customers based outside India and that the said cosmetic products were being supplied by accused no.4 to the firm and that the SC No. 113/08 Page 40 of 60 NCB Vs. Biplab Ray and Ors.
said firm in turn used to send the said products in parcels through speed post, no bills or any other documents have been produced on record on behalf of the accused persons to show that they were dealing in cosmetic products and not medicines/drugs. His submission is that therefore, a presumption will have to be necessarily drawn that the accused persons were exporting psychotropic substances only. He has also submitted that the recovery of psychotropic substances from the premises of accused no. 4 and the statement tendered by this accused u/s 67 NDPS Act to the effect that he had supplied the same substances to the accused persons 1 to 3 is sufficient to draw a conclusion that what was exported to UK by the accused persons were of the same nature as those of the substances recovered from the premises of accused no.4.
45.The contention of Ld. SPP is thus that this court can presume that since the tablets recovered from the premises of Ritu Raj were found after chemical analysis to contain psychotropic substances, the tablets already supplied by Ritu Raj to the accused persons during the period AprilMay, 2002 would have also contained the same psychotropic substances and that therefore the accused persons should be held guilty of having exported psychotropic substances outside India without having any license thereof and thereby having committed offences punishable under the NDPS Act, in terms of the judgment of Hon'ble Supreme Court in D. SC No. 113/08 Page 41 of 60 NCB Vs. Biplab Ray and Ors.
Ramakrishnan's case.
46.I am afraid that though the argument of Ld. SPP appears very attractive at first glance, the same cannot be accepted by this court, for this court cannot draw a presumption that the tablets mentioned by the accused persons in the statements tendered by them u/s 67 NDPS Act or in the computerized data placed on record would have also contained the same psychotropic substances as have been found out in the tablets recovered at the premises of Ritu Raj.
47.This is so because firstly this court is not at all satisfied that the statements were tendered by the accused persons voluntarily and secondly even if the said statements are taken into consideration, it is categorically mentioned therein by accused no.1, 2 and 3 that apart from accused no.4 they used to also procure medicines from Bhagirath Palace and Lajpat Nagar and there is no evidence produced by the prosecution before this court that the substances sent vide parcels by accused no. 1, 2 and 3 to UK were purchased by them from Ritu Raj only. The statement of Ritu Raj also does not at all mention any such fact. Thirdly in the absence of the Chemical analysis report proved on record it would also be very dangerous to conclude that the parcels intercepted at UK contained psychotropic substances only because the accused persons have revealed the names of the tablets sent by them and that tablets with SC No. 113/08 Page 42 of 60 NCB Vs. Biplab Ray and Ors.
similar brand names at the premises of accused no.4 were recovered and found to have contained psychotropic substances.
48.Coming first to the purported statements tendered by the accused persons u/s 67 NDPS Act, no doubt the Hon'ble Supreme Court in its various judgments pronounced in NDPS cases has held that a statement given by an accused u/s 67 NDPS Act is admissible in evidence and can be used for determining the guilt of an accused however at the same time the Hon'ble Supreme Court has also cautioned that a court must be satisfied that the said statement was given voluntarily and that before acting solely on confession, as a rule prudence, a court must look for some corroboration. The Hon'ble Supreme Court in its judgments pronounced in cases titled as Union of India Vs. Bal Mukund (2009) 12 SCC 161 and Noor Aga Vs. State of Punjab and Anr. reported in (2009)12 SCC 161 and JT 2008 (7) SC 409 respectively has clearly held that the purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement. In Bal Mukund's case (supra), the Hon'ble Supreme Court observed that the authorities under the NDPS Act can always show that the accused had not been formally arrested when his statement was recorded u/s 67 of the NDPS Act and that therefore a court while weighing the evidentiary value of such a SC No. 113/08 Page 43 of 60 NCB Vs. Biplab Ray and Ors.
statement should not lose sight of the ground realities. Further in para 28 of the said judgment the Hon'ble Supreme Court has reiterated that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. The Hon'ble Supreme Court in the said case also made it clear that the observations made by it in Kanhaiya Lal Vs. Union of India (2008) 4SCC 668, (a judgment relied by the prosecution to contend that it is under no obligation to prove that the statement tendered by an accused was voluntary) was passed in view of the peculiar facts in the said case namely that no crossexamination of a material witness was conducted with respect to statement tendered by the accused. In Noor Aga's case (supra), the Hon'ble Supreme Court has clearly held that whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. In another case titled as Francis Stanly Vs. NCB reported in (2006) 13 SCC 2010 the Hon'ble Supreme Court has cautioned that a confession asserted to have been recorded under the NDPS Act must be made subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act.
49.Now in the present case the accused no.1, 2 and 3 have stated during their SC No. 113/08 Page 44 of 60 NCB Vs. Biplab Ray and Ors.
statement u/s 313 Cr.PC that they were picked up by the NCB officials on 02/03.06.2002 and were confined by the NCB officials in their office till 04.06.2002 and that during this time they had been forced and threatened by the NCB officials to give a statement as per their dictation. The accused persons have specifically stated that no enquiries were made from them by the NCB on 28.5.2002, or 30.5.2002 and that NCB officials had not come to their premises on the said dates at all. The prosecution, on the other hand, has stated that the accused persons were met by the NCB officials for the first time on 28/5/2002 and were summoned u/s 67 NDPS Act to tender their statements on 28.05.2002, 30.05.2002 and 03.06.2002 and on each of the said dates, the accused persons after tendering their statements were allowed to go back and thus they were never in the custody of NCB at the time of tendering their statements. After perusing the entire evidence on record with respect to the recording of the said statements, this court is of the considered opinion that it is the version of the prosecution with respect to the summoning of the accused persons and recording their statements, which cannot be believed to be the truth. In particular, in this regard, it will be relevant to take notice of the depositions of PW2 Jagmohan Khati, PW5 Minakshi Bali, PW7 Jyotimon and PW15 Ajay Kumar. As per the deposition of PW2 Jagmohan Khati on 28/5/2002 he alongwith some SC No. 113/08 Page 45 of 60 NCB Vs. Biplab Ray and Ors.
other NCB officials including PW15 Ajay Kumar had gone to the business premises of accused no. 1, 2 and 3 at B3 Dayal Bagh Road, Faridabad and had met all the said three accused and had made certain enquiries from them. Though the details of the said inquiries have not been disclosed to the Court, according to PW2 Jagmohan Khati after the said inquiry he submitted a report before the Superintendent Sh. C.B. Singh on 28/5/2002 itself and the said report has been exhibited as ExPW2/2. PW2 Jagmohan Khati has further deposed that on the same day itself after having discussions on the said report with Sh. C.B. Singh he again went to Faridabad and served summons upon all the three accused persons to appear in the office of NCB on 28/5/2002 itself to tender their statements u/s 67 of NDPS Act. According to PW2 the accused persons thereafter appeared in the NCB office and he then recorded the statement of accused Anil Chatterjee. Thus as per this witness both he and Ajay Kumar had met all the accused persons on 28.05.2002. However contrary to this deposition, is the deposition of PW15 Ajay Kumar. This witness in his examination in chief has stated that he had recorded the statement of Javed on 30.05.2002 and in his crossexamination he states that he had not met any of the accused persons before this date. Thus according to him though he had gone with PW2 Jagmohan Khati to the business premises of the accused persons on SC No. 113/08 Page 46 of 60 NCB Vs. Biplab Ray and Ors.
28/5/2002 he had not met any of them on this date and this testimony clearly supports the version of the accused persons. Further it will also be relevant herein to state that this witness PW15 and PW5 Minakshi Bali have been completely evasive in their crossexamination with respect to the questions whether or not the accused persons were allowed to leave the NCB office after tendering their statements. In particular, the following statements given by PW15 Ajay Kumar in his cross examination hardly inspires any confidence in his testimony with respect to the service of the summons upon the accused persons on various dates:
I did not meet Javed Iqbal prior to I recorded his statement on 30.05.2002. I also did not meet accused Anil Chatterji and accused Biplab Ray prior to recording of statement of Javed Iqbal. On 28.05.2002, team of the NCB officials visited the office of the firm namely M/s Venture Netcom of all the three accused persons named above. We did not make any recovery from there on 28.05.2002 and nothing was brought from there as per my knowledge. I did not ask accused Javed Iqbal about his whereabouts between 28.05.200230.05.2002. On 28.05.2002 and 30.05.2002, I was on office duty. I do not recall whether 29.05.2002 was a holiday and whether I was on duty on that day or not. I do not recollect today if at the time of recording of statement of accused Javed Iqbal on 30.05.2002, Anil Chatterji was in our office or not. I do not remember the exact date i.e. between SC No. 113/08 Page 47 of 60 NCB Vs. Biplab Ray and Ors.
30.05.2002 to 02.06.2002 whether Anil Chatterji was in our office or not but I recollect that some IO had interrogated him during this period. I did not confront the accused Javed Iqbal and Anil Chatterji in this case at the time of recording of statement of accused Javed Iqbal. The summon on accused Anil Chatterji was served through our writer on 03.06.2002. I did not ask Anil Chatterji whether his statement was recorded earlier when he visited our office prior to 03.06.2002. I did not ask Anil Chatterji in course of recording his statement as to why he has been visiting our office prior to service of summons on him on 03.06.2002. I did not meet Biplab Ray between the period 30.05.2002 to 03.06.2002. I do not recollect the date when the statement of accused Biplab Ray was recorded however the same was recorded in this case. I do not recollect today when the statement of Biplab Ray was recorded by which IO.
50.Similarly, PW5 Minakshi Bali in her crossexamination has evasively stated that she does not remember who all were recording the statements of the accused persons on 03.06.2002 and whether after the recording of the said statements were the accused persons allowed to go back or were kept in the office of NCB. Another witness whose testimony creates a doubt on the version of the prosecution is PW7 Jyotimon. This witness in his crossexamination has specifically stated that on 28.05.2002 all the accused persons were allowed to go back as there as no concrete SC No. 113/08 Page 48 of 60 NCB Vs. Biplab Ray and Ors.
evidence available against them on that day and that similarly on 30.05.2002 after he had recorded the statements of accused no.1, 2 and 3 they were allowed to go home as on that day as well no concrete evidence was available against them. He has also stated that similarly on 03.06.2002 accused Javed Iqbal was allowed to go back. This witness has also, during his crossexamination conducted on behalf of accused Ritu Raj, categorically stated that no raid was conducted on the premises of Dr. Ritu Raj from 28.05.2002 to 04.06.2002 because during this period nothing came on record during the investigation that he was the one who was involved in the supply of medicines. Now if the said statement of this witness is accepted then an inference will have to be drawn that it is the accused persons who are stating correctly that they were made to write all the statements on 04.06.2002 for otherwise a perusal of their statements purportedly tendered on 28.05.2002, 30.05.2002 and 03.06.2002 clearly show that they had admitted on the first day itself itself i.e. 28.05.2002 that they had been procuring the medicines/drugs from the premises of Dr. Ritu Raj without any prescription and then further exporting the same without having a license to do so.
51.The aforementioned discussion shows that an inference will have to be drawn that the accused persons were in the custody of the NCB officials when they were made to tender their statements u/s 67 of the NDPS Act SC No. 113/08 Page 49 of 60 NCB Vs. Biplab Ray and Ors.
and that the prosecution has taken a false stand that these accused persons were summoned on four different dates and were free to go back home. The said conduct of the prosecution therefore does not inspire this court to now place any reliance on the statements tendered by the accused persons, more so when neither any of the NCB officials have deposed before this Court that they had informed the accused persons that they have a right to keep silent if they so wished nor any of the statements exhibited on record contained any such recital.
52.As regards the computerized data purportedly tendered by the accused persons it will be very necessary at this stage to take note of the following lacuna in the case of the prosecution with respect to the said data. By virtue of assertions made in para 4(xxii) of the complaint filed and the annexure 99 with the complaint, the prosecution had asserted that the hard disk components of the computers being used by accused no. 1, 2 and 3 were seized by the NCB and it was discovered that the accused persons had deleted the data pertaining to the period prior to 15.04.2002 from the said hard disk and Sh. Arbar Ahmed, Zonal Director had written a letter dt 24.07.02 to the Government Examiner of questioned documents, Hyderabad, for retrieval of the said data but that no report was received from the the said examiner. However contrary to this assertion made in the complaint that no report was received, is the SC No. 113/08 Page 50 of 60 NCB Vs. Biplab Ray and Ors.
testimony of PW13 Abrar Ahmed. When this witness in his cross examination was asked about the said letter ExPW 13/9 written by him , he has categorically stated that in reply to the said letter the report received from CFSL Hyderabad was placed before him but that he does not remember what orders he had passed thereon. Thus though the assertion of the complainant in the complaint is that no report was received from CFSL, Hyderabad, their own Zonal Director has stated on oath that a report from CFSL, Hyderabad was put up before him. In such view of the matter, it is being rightly contended by Ld. Defence counsel Sh. Sanjeev Kumar that an inference must be drawn by this court that the prosecution has deliberately not produced the report before this court for it would have demolished their case. Though in this regard , Ld. SPP Sh. Manchanda has stated that such an adverse inference may be drawn by this court, his contention is that the said inference can only be drawn with respect to the data that may have been stored in the computer of accused no.1, 2 and 3, before the date 15.04.2002 and not the data tendered by the accused persons for the period 15/4/2002 to 23/5/2002, I am afraid that even the said data cannot be looked into but with suspicion, for the prosecution has miserably failed to come clean with respect to the seizure of the computer from which the accused persons had assertedly downloaded the said data before handing it over to the NCB and SC No. 113/08 Page 51 of 60 NCB Vs. Biplab Ray and Ors.
therefore the same cannot also be relied upon to determine their guilt. In this regard, it would be relevant to consider the depositions of PW7 Jyotimon , PW13 Abrar Ahmad, PW17 C.B. Singh and Pw15 Ajay Kumar and the letter Ex PW 13/9. Now a perusal of the said letter shows that it is mentioned therein that some computer hardware components were taken into possession during investigation. Further PW 13 Abrar Ahmed in his cross examination has categorically stated that the hard disks of some computers seized during investigation were sent to the experts. Further as per the deposition of PW7 Jyotimon and PW15 Ajay Kumar, accused Biplab Ray and accused Anil Chatterjee during the tendering of the their statements had tendered certain computerised data before the NCB officials which contained the details of the orders received by their partnership venture M/s Venture Netcom at its sites and the computers from which the said data was downloaded by the accused persons was brought by them to the NCB office. In particular, PW7 Jyotimon had stated that on 28/5/2002 the accused persons had brought one lap top. Similarly PW15 Ajay Kumar in his cross examination has stated that two computers had been brought by Anil Chatterji at the time of his tendering his statement and that the said computers were in running condition and one of the said computers was also kept at the NCB office but no seizure memo was prepared in this respect. The testimony of SC No. 113/08 Page 52 of 60 NCB Vs. Biplab Ray and Ors.
PW17 C.B. Singh, Superintendent and the Incharge Malkhana also makes it clear that no computer was shown to have been seized in this case. There is no explanation forthcoming from the prosecution why a computer taken away from the accused persons was not shown to be seized in this case and not produced before this Court. In such circumstances when the investigating officials admit that they took into possession the computers used by the accused persons but that did not show the same to be seized, the contention of the accused persons that they had not tendered any computerised data to the investigating officials and that the said data has been prepared by the investigating officials, themselves after taking away the computers of the accused persons cannot be brushed aside lightly by this Court.
53.At this stage, it will also be relevant to note another contention made by Ld. SPP namely that PW19 Ashish Chaudhary, Operation Manager M/s Palcom has also proved certain computerized data on record which shows that the firm of the accused persons M/s Venture Netcom was dealing with medicines/drugs from two of their sites and that the said data is an incriminating piece of evidence against the accused persons. After going through the said computerized data Ex.PW15/12, PW15/12 and Ex.PW15/16, this court finds that the said data merely contains a history of M/s Palcom and the table of products available at the site of M/s SC No. 113/08 Page 53 of 60 NCB Vs. Biplab Ray and Ors.
Venture Netcom and further the said document specifically record that no products namely Diazepam, Lorazepam, Alprazolam, Nitrazepam, etc are available at this site. Yet again though Ld. SPP has tried to contend that the accused persons themselves had deliberately made the said changes in the server of M/s Palcom, no evidence proved in this regard has been pointed out on record.
54. The aforementioned discussion makes it clear that the statements purportedly tendered by the accused persons cannot be made the sole basis of determination of their guilt, more so when the said statements were retracted by the accused persons at the very first opportunity available to them. Further the computerised data placed on record by the prosecution also cannot be relied upon by this Court to come to any conclusion with respect to the guilt of the accused persons.
55. Coming now to the contention of Ld. SPP that since the parcels recovered at U.K. were bearing the address of the firm of the accused persons and further since the accused persons have admitted u/s 313 CrPC that they used to send parcels to U.K. but they have not produced any documents to show that they had exported only cosmetic products in the said parcels, this court can presume that the accused persons would have exported medicines containing psychotropic substances only and that the said medicines would be of the same nature, as recovered from SC No. 113/08 Page 54 of 60 NCB Vs. Biplab Ray and Ors.
the premises of accused Ritu Raj, I am afraid that such kind of presumption cannot be made in a criminal trial of this kind, where the nature and the quality of a substance recovered determines the offence for which an accused can be held guilty. To take an example, in a case under the NDPS Act, even if a person states before the Court that he has acquired and possessed one kg. of heroin, this court will be unable to convict him of having acquired and possessed the said contraband, till the time a chemical analysis report confirms the substance possessed by him to be heroin.
56. The reliance of Ld. SPP Sh. Rajesh Manchanda, in support of his contention, on the provisions of Section 35 and 54 of the NDPS Act is also completely misplaced. As regards the provisions of said sections, the Hon'ble Supreme Court in its judgment pronounced in Noor Agha's Case (Supra) has held as follows:
" Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused and also place burden of proof in this behalf on the accused; but a bare perusal the said provisions would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal SC No. 113/08 Page 55 of 60 NCB Vs. Biplab Ray and Ors.
burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt " but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
57. In the present case as discussed herein above this court is of the considered opinion that the prosecution has failed to prove beyond reasonable doubt, the foundational facts namely that the accused persons had indulged in exporting of psychotropic substances and therefore now it cannot take the aid of Section 35 or 54 of the NDPS Act. Further it is to be noted that the accused persons were not the manufacturers of the tablets exported by them and therefore their mere purported admission that they had sent the tablets labeled as containing Lorazepam, Diazepam, Chlorodiazepoxide, etc to UK and USA cannot be deemed sufficient to hold them guilty of having exported the psychotropic substances outside India and this is so because in this very court in SC No. 25/08 titled as NCB Vs. Vishal Mittal many of the tablets labeled as Phentermine, SC No. 113/08 Page 56 of 60 NCB Vs. Biplab Ray and Ors.
Hydrocodone, Clonazepam, Zenax, Lorazepam, Valium. were not found after chemical analysis to be containing the said psychotropic substances mentioned on the label. In the said case, it is the Ld. SPP Sh. Rajesh Manchanda who is representing the NCB and the defence counsel Sh. Sanjeev Kumar is also representing two of the accused persons and therefore during the course of final arguments this court had brought the said case to the notice of Ld. Counsel Sh. Rajesh Manchanda. In the said case, the parcels containing the psychotropic substances which were being exported by the accused persons were seized before the same could be consigned from the courier office of M/s Fedex Express and therefore the investigating agency could send the substances in the said parcels for chemical analysis and the chemical analysis report revealed that some of the seized tablets were mislabelled and did not contain the psychotropic substance mentioned on the label. The facts of the said case therefore do entitle the accused persons in the present to contend that in the absence of the chemical analysis report of the substances allegedly recovered at the Post Parcel Depot UK, they are entitled to be granted benefit of doubt, more so when it is the contention of Ld. SPP for NCB himself that the tablets recovered from the premises of Ritu Raj in the present case have also been mislabelled Rx by their manufacturers.
58.Had the prosecution proved the said chemical analysis report before this SC No. 113/08 Page 57 of 60 NCB Vs. Biplab Ray and Ors.
court then this court would have in complete agreement agreement with Ld. SPP Sh. Rajesh Manchanda that the mere fact that the said tablets were bearing the inscription Rx would have no relevance for Hon'ble Supreme Court had made it clear in D. Ramakrishnan's case that even if a substance is medicine as defined under the Drugs and Cosmetics Act, its export is prohibited once it contains a psychotropic substance. Though it has been strenuously argued by Ld. SPP that the accused persons have indulged in sale and purchase of psychotropic substances and that even if for the sake of arguments, the said act is not an offence under the NDPS Act, the accused persons had procured, acquired and sold the said psychotropic substances/medicines in contravention of the Drugs and Cosmetics Act and therefore have committed some offence and that therefore this court must not extend any leniency towards them, suffice is to state that on the basis of the assertion of the prosecution that they will during trial prove that the substances exported by the accused persons are psychotropic substances, the accused persons were refused bail by the Ld. Predecessors of this court and they remained in custody for about three and half years before they were finally granted bail by Hon'ble Delhi High Court in view of the judicial dicta pronounced in Rajendra Gupta's case (supra) and therefore the least that was expected from the SC No. 113/08 Page 58 of 60 NCB Vs. Biplab Ray and Ors.
prosecution was that during trial they would proved that the substances exported by the accused persons were in fact psychotropic substances by either procuring the presence of the Chemical Examiner,UK or by placing before this court the duly authenticated analysis report prepared by him. This court fails to understand as to what stopped the prosecution/NCB from getting the chemical analysis report authenticated in the manner prescribed by the Central Government except to draw an inference that the conduct of the prosecution has been completely lackadaisical in this regard.
59.In view of the discussion hereinabove, this court is of the considered opinion that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt and therefore the accused persons are entitled to the benefit of doubt. The prosecution cannot be allowed to plead that the computerised data and the bank statements of the accused persons placed on record coupled with the communication received from the U.K. officials that the parcels in question were bearing the address of the premises of the accused persons raises a grave suspicion that it is the accused persons only who were involved in exporting contraband, for it is well settled law that howsoever grave a suspicion be, it cannot take the place of legal proof. Specific reference in this regard has been made to the judgment of Hon'ble Supreme Court in SC No. 113/08 Page 59 of 60 NCB Vs. Biplab Ray and Ors.
the case titled as Sharad Birdichand Sarda Vs. State of Maharashtra reported in (1984)4 SCC 116.
60.To recapitulate the conclusions reached by this court, in the considered opinion of this Court in the absence of proof of seizure of psychotropic substance at U.K., it is to held that the prosecution has failed to prove beyond reasonable doubt that the accused persons in conspiracy with each other had exported psychotropic substances to UK during the period 15.04.2002 to 23.05.2002. Further the accused no.4 Ritu Raj cannot be held guilty of having contravened section 26 of the NDPS Act for the accused no.4 could have been held guilty of having contravened the said provision only when he was found to have been dealing with substances that find mention in Schedule I to the NDPS Rules, 1985. The accused persons therefore stand acquitted of the charges for which they have faced trial.
Announced in open Court (Anu Grover Baliga)
on this 22nd day of December, 2012 Special Judge NDPS
Patiala House:New Delhi
SC No. 113/08 Page 60 of 60