Delhi District Court
Sc No. 4412017 Custom vs . Mohd. Naseem Page No. 1/50 on 14 January, 2020
IN THE COURT OF AJAY GOEL, ADDL. SESSIONS
JUDGE-SPECIAL JUDGE (NDPS), DWARKA COURTS,
NEW DELHI.
Sessions Case No. 441-2017
U/s: 21(c)/23(c)/28 NDPS Act
Department of Customs
Through Nilesh Kumar,
Air Customs Superintendent,
IGI Airport, New Delhi. ..... Complainant
VERSUS
Mohd. Naseem,
S/o Mohd. Mehboob,
R/o H. No. 135, Gali No. 6,
Mehmood Nagar,
PS-Civil Lines,
Muzaffarnagar, UP. ..... Accused
Date of Filing of complaint : 19.07.2017
Date of Final Arguments : 14.01.2020
Date of Judgment : 14.01.2020
JUDGMENT:
CASE OF PROSECUTION:
1. The case of the prosecution is that on 28/29.01.2017, accused was offloaded by GMR Security Officials at Level IV, IGI Airport, New Delhi SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 1/50 when he was intending to depart to Riyadh from IGI Airport by Air India Flight No. SV-761. It is stated that accused was handed over to the Custom Department for further inquiries. It is the case of customs that accused was found carrying two check in baggages bearing Tag No. SV-412585 and SV-412608.
2. During preliminary enquiries, accused was asked by the custom officer whether he was carrying any Indian/Foreign Currency or any narcotics to which he replied in negative.
3. Thereafter, two independent witnesses were called and requested to join the proceedings of case to which they voluntarily agreed and both witnesses were apprised about the offloading of accused and other background of case. It is averred that since accused was having knowledge of Hindi language only, hence an Interpretor/Translator Sh. Gulshan Kumar Malvi was called to explain the proceedings to SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 2/50 accused in vernacular. Thereafter, accused was once again asked by the custom officer whether he was carrying any Indian/Foreign Currency or any narcotics to which he again replied in negative.
4. Thereafter, notices U/s 102 of the Customs Act and notice U/s 50 of NDPS Act were served upon accused whereby he was apprised about his legal rights and that his personal search could be conducted in the presence of Magistrate or Gazetted officer.
5. In response to the said notices, accused replied in writing on the said notices about his consent for search. Before taking his search, customs officer offered their personal search to him to which he declined.
6. During personal search, the travel documents, some Indian/Foreign currencies, mobile phone etc. were recovered from accused. Thereafter, the check SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 3/50 in bags of accused having baggage Tag No. SV-
412585 and SV-412608 were examined.
7. On examination, the said baggages were found contained 260 bottles of Chlorpheniramine Meleate & Codeine Phosphate Cough Linctus Phensedyl Cough Linctus 100 ML each. All 260 bottles were kept inside black polythene bags used for concealing the said bottles which were further kept inside his checked in baggages.
8. On being asked, accused failed to produce any evidence documentary or otherwise in support of lawful possession and export of the above said recovered bottles, therefore vide panchnama Ex. PW- 1/J, same were seized U/s 43 of NDPS Act on a reasonable belief that same were liable to be confiscation. Besides that concealing material was also seized. The case property was sealed with the custom seal and detained and deposited in the SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 4/50 Custom Godown.
9. It is further the case of customs that accused was put under arrest vide arrest memo and his jamatalashi was conducted. Seizure and arrest reports were prepared. Thereafter, accused was medically examined. Accused tendered his voluntary statement whereby he disclosed that recovered bottles were given to him by one person namely Mohd. Arif and he was carrying the same for a monetary consideration. The case property, concealing material and Jamatalashi were deposited in the godown vide DR No. 32160, 32161 and 32162 vide Godown Entries.
10. Thereafter, the case property was produced before the court of Sh. Rohit Gulia, Ld. M. M. Dwarka Court, New Delhi for sampling and vide order dated 09.02.2017, case property was examined and samples were drawn. Sample mark A1 was sent to SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 5/50 the CRCL and vide report received from CRCL, it was opined for positive for Codeine Phosphate along with its density report. The remnant samples was deposited in the godown.
11. After completion of the investigation, the present complaint was filed along with documents. CHARGE:
12. After hearing the arguments, vide order dated 23.08.2017, charges U/s 21 (c), 23 (c) & 28 NDPS Act was framed against the accused by this Court to which he pleaded not guilty and claimed trial. Prosecution Evidence:
13. In support of its case, prosecution had examined following witnesses:
PW-1 is Sh. Ganesh Kumar, Inspector Customs. He is a witness to whom the accused SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 6/50 was handed over by Ms. Monika Gandhi, Duty Manager, CELEBI vide letter dated 28.01.2017 alongwith two checked in baggages on suspicion and thereafter, he made preliminary inquiries from accused and conducted other investigation in this case including calling interpretor, two independent panch witnesses, serving notices U/s 102 of Customs Act and section 50 of NDPS Act. PW-2 is Sh. R. S. Sharma, Asst. Chemical Examiner. This witness has proved the test report of samples sent for chemical analysis to CRCL which upon chemical analysis gave positive answer for presence of Codeine Phosphate. PW-3 is Sh. S. S. Singh, Superintendent, Air Cargo Import. He deposed regarding his joining the search proceedings in the present case being Gazetted Officer. He further deposed regarding investigation done in the present matter. SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 7/50 PW-4 is Ms. Kusum Lata. She is one of the panch witnesses in this case. However, she has not supported the case of customs.
PW-5 is Sh. Akhilesh Meena, Superintendent. He had deposed regarding deposition of case property in custom godown by ACO, Sh. Ganesh Kumar on 02.02.2017. He also deposed regarding production of case property on 09.02.2017 before the court of Ld. MM Sh. Rohit Gulia for conducting proceedings U/s 52A of NDPS Act.
PW-6 is Sh. Jitendra Kumar, Assistant Commissioner. He deposed that he accompanied PW-7 Sh. Akhilesh Meena, ACO for production of case property on 09.02.2017 before the court of Ld. MM Sh. Rohit Gulia for conducting proceedings U/s 52A of NDPS Act.
PW-7 is Sh. Brijendra Singh, Superintendent, ICD Patparganj. He deposed regarding receipt of SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 8/50 remnant samples with test report. He further deposed that test report was sent to preventive shift by him and remnant samples were deposited after sealing them with custom plier seal. PW-8 is Ms. Shweta Tripathi, Senior Associate, DIAL Security. She deposed that she got images of baggage of pax and on seeing the said images, she found some suspicion and therefore, she rejected the image for next level for further inquiries.
PW-9 is Ms. Monika Gandhi, Duty Manager, Celeby Airport Services. She deposed that airline received call regarding baggage and airline informed her that there is two pieces of baggage stuck at Level IV, hence she deputed staff member namely Mohd. Faizan for same.
PW-10 is Sh. Nilesh Kumar, Custom Inspector. He deposed that on 18.07.2017, he filed the SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 9/50 present complaint with documents which was Ex. PW-10/A. PW-11 is Sh. Ajeet Singh, Senior Associate DIAL. He deposed that two baggages of pax namely Mohd. Naseem reached at Level IV for physical check and said information was also given to his seniors and baggages of said pax was offloaded and handed over to airline staff and opening of baggages resulted into recovery of 130 bottles each of phensedyl cough linctus. He further deposed that he received summons and in compliance of same he tendered his voluntary statement which is proved as Ex. PW-11/A PW-12 is Sh. Ravinder. He is another panch witnesses in this case. However, he has not supported the case of customs.
During the course of prosecution evidence, the statement of counsel for accused was recorded SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 10/50 whereby he stated that he is not disputing the role of witnesses namely Sh. Radhey Shyam, Manager CWC Warehouse and Sh. Anil Manager CWC Warehouse who deposited and released the case property in and from CWC Warehouse. The accused also stated that he is disputing the CRCL report and does not want to call Dr. T. C. Tanwar as witness and same be exhibited. He also does not dispute MLC and statement of Interpretor and prayed that same may be exhibited. Hence, their relevant documents were exhibited and the above concerned witnesses were discharged. STATEMENT OF ACCUSED:
14. After recording of the testimonies of the aforesaid PWs, the statement of the accused U/s 313 Cr. P. C. was recorded. During recording of statement of accused, accused pleaded his innocence and SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 11/50 stated that he had been falsely implicated in the present case and the case property has been planted upon him. He also deposed that nothing was recovered from his possession.
15. I have heard the submissions of Sh. P. C. Aggarwal, Ld. Special Public Prosecutor for the Customs and Sh. Munish Kumar Sharma, LAC for accused.
ARGUMENTS OF PROSECUTION:
16. Sh. P. C. Aggarwal, Ld. Special Public Prosecutor for the Customs submitted on the line of case filed by the department as well as on the line of the deposition of the aforesaid witnesses. Ld. SPP for the Customs stated that check in baggages belonging to accused were examined on suspicion which was found containing 260 bottles of Chlorpheniramine Meleate & Codeine Phosphate Cough Linctus SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 12/50 Phensedyl Cough Linctus 100 ML each. It is stated that all 260 bottles were wrapped with black polythene which was kept inside black polythene bag used for concealing the said bottles which were further kept inside checked in baggage of accused.
Ld. SPP further submits that on being asked, accused failed to produce any evidence documentary or otherwise in support of lawful possession and export of the above said recovered bottles, therefore, vide panchnama, same were seized U/s 43 of NDPS Act on a reasonable belief that same were liable to be confiscation. Thus, he is liable to be punished for offences committed by him.
ARGUMENTS OF DEFENCE:
17. On the other hand, Ld. Defence Counsel for accused submitted that accused has been falsely implicated in the present case and he has no concern SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 13/50 with the alleged recovery of the said bottles. He further submitted that the alleged bottles does not belong to accused. Ld. Defence Counsel argued that there are material contradictions in the testimony of the prosecution witnesses which falsify the case of prosecution. It is further argued the Panch Witnesses in the present case in whose presence, the recovery was effected have not supported the case of custom department and their deposition in court has created dent to the case of custom department.
18. I have considered the rival submissions and gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence.
JUDGMENTS RELIED UPON BY LD. SPP FOR CUSTOMS:
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors. SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 14/50
2002 (2) CC Cases (SC) 58;
2) Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) 174;
3) Pon Adithan Vs. Deputy Director NCB, Madras (1999) 6 SCC 1;
4) Raj Kumar Karwal Vs. UOI 1991 Crl. Law Journal 97 (SC);
5) M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631
6) Kanhaiya Lal Vs. UOI-2008 (1) JCC (Narcotics) 23;
7) Dalel Singh Vs. State of Haryana (2010) 1 SCC 149,
8) Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692,
9) Karnail Singh Vs. State of Haryana (2009) 8 SCC 539,
10) Firsozuddin Basheerudin & Ors. Vs. State of Kerala 2001 VI AD SC 413,
11) Banobi & Anr Vs. State of Maharashtra & Ors. JT SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 15/50 1999 (8) SC 125
12) State of Punjab Vs. Baldev Singh (1999) 3 SCC
977. JUDGMENT RELIED UPON BY LD. DEFENCE COUNSEL:
1) Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab & Anr. Reported in (2009) 12 SCC 161 and JT 2008 (7) SC 409;
2) Jagdish Vs. State of M. P. (2003) 9 Supreme Court Cases 159.
FINDINGS:
19. Ld. SPP for Customs has drawn the attention of the court to Section 50 and Section 67 of NDPS Act and relied upon case titled Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) 174, wherein it was held that section 67 NDPS Act permits the recording of statement made by the officers of NCB who are not SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 16/50 the police officers. At this stage, the person concern is not an accused although he may be said to be in custody but on the basis of statement made by him, he could be made an accused subsequently. It is further held in Pon Adithan Vs. Deputy Director NCB, Madras (1999) 6 SCC 1 that :
"Even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under article 20 (3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence".
20. In case Raj Kumar Karwal Vs. UOI 1991 Crl. Law Journal 97 (SC) it was held that such statement made to officer of department of Revenue Intelligence were not hit by Section 25 of the SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 17/50 Evidence Act though twin tests of voluntariness and truthfulness have to be satisfied by the Court. Further in M. Prabhu Lal Vs. Asst. Director, it has been held that if confessional statement is found to be voluntary and free from pressure, it can be accepted. No doubt, it all depends upon facts and circumstances of each case and no hard and fast rule can be laid down in this connection, as to whether a alleged confessional statement should be accepted.
21. So in view of law laid down in the case M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631 Scm Rehmatulla Vs. NCB - 2008 (3) JCC (Narcotics) 174, Kanhaiya Lal Vs. UOI-2008 (1) JCC (Narcotics) 23, the statement U/s 67 can be made basis for conviction but corroboration is required in the present matter, so statement U/s 67 of NPDS Act is not so important and is of no use and same does not strengthen the case of prosecution in the facts of SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 18/50 the present case.
22. In the instant case, there is not enough material to prove the guilt of accused beyond doubt and technical as well as factual defects are there which are being discussed herein below. Ld. SPP for Custom in support of his contentions also placed reliance on the case titled Dalel Singh Vs. State of Haryana (2010) 1 SCC 149, Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692, Karnail Singh Vs. State of Haryana (2009) 8 SCC 539, Firsozuddin Basheerudin & Ors. Vs. State of Kerala 2001 VI AD SC 413, Banobi & Anr Vs. State of Maharashtra & Ors. JT 1999 (8) SC 125.
23. So far as argument raised by Ld. Defence counsel with respect to section 50 of NDPS Act is concerned, Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 19/50 valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
24. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by State of Punjab Vs. Baldev Singh SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 20/50 (1999) 3 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 21/50 could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazetted Officer or a Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was substantial compliance with the requirement of Section 50 of NDPS Act. The Court did not agree with the contention that there was non-compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 22/50 no specific words are necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made".
25. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 23/50 searched before a Gazetted Officer or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
26. Now this court will proceed to decide as to whether all norms required in such cases have been fulfilled or not.
27. Reliance is placed upon judgment titled as Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1 wherein the Hon'ble High Court of Delhi has held as under:-
"Substantial Compliance of - Notice in the states that since there is an information as to the possession of heroin and he (accused) has been apprehended and is required to be searched, if he so desires he can first take the search of the SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 24/50 police party - On refusal, the appellant was asked that if he so desire then his search can be taken before a Magistrate or a Gazetted Officer - This was also declined by the appellant - A perusal of the notice under Section 50 of NDPS Act and the testimony of PW11 the Investigating Officer shows that the appellant was informed only about the option and not about his right of being searched before a Magistrate or a Gazetted Officer- The appellant is thus entitled to be acquitted."
28. I have perused the notices U/s 50 NDPS Act.
The word mentioned is "Legal Right". However, the accused has given his reply in the form of noting on notice itself which is in Hindi. Accused signed on all the documents prepared at spot in Hindi only. It is SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 25/50 nowhere alleged that accused was comfortable with English. So this defence is available to the accused.
29. Nevertheless, recovery of contraband in the present case was not effected in person of accused but from checked in baggage of accused, hence, effect of Section 50 of NDPS Act losses its significance and is not applicable in the present case. To this effect, reliance is placed upon judgment titled as S. K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal having Criminal Appeal No. 459 of 2017 dated 05.09.2018, whereby the Hon'ble Mr. Justice J. Dhananjay Y Chandrachud of Hon'ble Supreme Court has upheld the conviction in a case where recovery was made not in person of accused but from the jute bag and section 50 of NDPS Act was found to be not applicable and certain observations were made. Reliance is placed upon latest judgment titled as State of Punjab Vs. SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 26/50 Baljinder Singh passed by Hon'ble Supreme Court of India dated 15.10.2019 whereby Hon'ble Court has held that "As regards applicability of the requirements under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises." So, in view of latest pronouncement of Supreme Court of India as discussed above, Section 50 of NDPS Act is not applicable when the recovery is not from in person.
30. To come at some conclusion, the evidence of prosecution witnesses is required to be gone through and discussed in the judgment.
31. PW-1 Sh. Ganesh Kumar, Inspector Customs is a witness to whom the accused was handed over by Ms. Monika Gandhi, Duty Manager, CELEBI vide letter dated 28.01.2017 alongwith two checked in SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 27/50 baggages on suspicion and thereafter, he made preliminary inquiries from accused and conducted other investigation in this case including calling interpretor, two independent panch witnesses, serving notices U/s 102 of Customs Act and section 50 of NDPS Act. He proved the letter whereby accused was handed over as Ex. PW-1/A, the baggage Tags No. SV-412608 and No. 412585 as Ex. PW-1/B and Ex. PW-1/C, the baggage stubs as Ex. PW- 1/D and PW-1/E, boarding passing of accused as Ex. PW-1/F, notices U/s 102 of Customs Act as Ex. PW- 1/G, notice section 50 of NDPS Act as Ex. PW-1/H, panchnama as Ex. PW-1/J, DR No. 32160 as Ex. PW- 1/K, DR No. 32162 as Ex. PW-1/L, statement of accused U/s 67 of NDPS Act as Ex. PW-1/M, arrest memo as Ex. PW-1/N, jamatalashi memo as Ex. PW- 1/P, MLC of accused as Ex. PW-1/Q, seizure report as Ex. PW-1/R, arrest report as Ex. PW-1/S, order dated SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 28/50 09.02.2017 passed by Ld. MM as Ex. PW-1/T, photographs as Ex. PW-1/T1, DR No. 32161 as Ex. PW-1/U, attested copy of register of CWC godown as Ex. PW-1/V, another copy of register as Ex. PW-1/W, copy of passport of accused as Ex. PW-1/X, paper slip on cloth pulanda as Ex. PW-1/Y and another paper slip as Ex. PW-1/Z. In his cross-examination, PW-1 failed to tell the colour and make of baggages of accused. He further admitted that CCTV cameras are installed in arrival hall and no footage of CCTV Cameras of arrival hall was taken. PW-1 further admitted that checked in bags were made of cloth material and were not having any locks. From his above discussed deposition, it is clear that there are possibilities of putting or removing things from baggage as it was not having any lock and it was dealt with lots of staff members of airline and custom as per SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 29/50 their own case.
32. PW-2 Sh. R. S. Sharma, Asst. Chemical Examiner is a witness who proved the test report of samples sent for chemical analysis to CRCL which upon chemical analysis gave positive answer for presence of Codeine Phosphate. The receiving of sample was proved as Ex. PW-2/A, test report as Ex. PW-2/B and all the cloth pulandas, envelop and three remnant bottles as Ex. PW-2/C (Colly.)
33. Even otherwise also, this evidence itself is not sufficient unless corroboration is proved because report of Chemical Examiner only suggests that it was contraband material but still prosecution was bound to prove that it was recovered from the accused.
34. PW-3 Sh. S. S. Singh, Superintendent, Air Cargo Import deposed regarding his joining the search proceedings in the present case being Gazetted SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 30/50 Officer. He further deposed regarding investigation done in the present matter. He proved the letter dated 29.01.2017 as Ex. PW-3/A, another letter dated 29.01.2017 as Ex. PW-3/B, letter dated 02.02.2017 as Ex. PW-3/C, summons issued U/s 108 of Customs Act to Ms. Shweta Tripathi as Ex. PW-3/D, summons issued U/s 108 of Customs Act to Ms. Monika Gandhi as Ex. PW-3/E, voluntary statement of Ms. Monika Gandhi as Ex. PW-3/F, summons issued U/s 108 of Customs Act to Md. Faizan as Ex. PW-3/G, voluntary statement of Md. Faizan as Ex. PW-3/H and summons issued U/s 108 of Customs Act to Mr. Ajeet Singh as Ex. PW-3/J.
35. PW-4 Ms. Kusum Lata is one of the star witnesses of customs as she is one of the panch witnesses in this case. However, she has not supported the case of customs. In her examination in chief, she deposed that "I cannot identify the SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 31/50 accused. I could not tell as to why I was called and I had no knowledge about the case". She was cross-examined by Ld. Counsel for customs as she turned hostile in witness box wherein she failed to recollect now as to what was seen by her. She also deposed that she did not see anything and her signatures were obtained on the papers.
36. In the cross-examination conducted by Ld. Defence counsel, she deposed that "It is correct that even though accused would have been present, I could not have identified him. I do not recollect his face, colour, features. I even cannot say now whether I have seen him or not or he was produced before me or not. It is correct that I had signed the blank papers. Again Said: those were written but I cannot say as to what was written over them. It is correct that I cannot tell the number of bottles SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 32/50 recovered from the baggage of accused. I also cannot tell the description of said bottles. I do not know the contents of said bottles. I cannot tell whether the said bottles were wrapped with any carbon paper or polythene. I cannot tell the colour and make of baggage of accused. My signatures were taken on various documents by Custom Officer. I was read over the contents of those documents. I do not know the meaning of Section 50 of NDPS Act or as to what is panchnama. I was not made understood the meaning of Section 50 of NDPS Act and panchnama. I did not read over the documents signed by me on that day. The documents which I signed over were already prepared. However, I signed on 2-4 blank pages also. I have seen photocopy of passport of Mohd. Naseem and I cannot tell whether said SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 33/50 passenger is same person who is accused in present case as I do not remember his face and resemblance today. It is correct that I was not present during the proceedings which were conducted with the accused. It is correct that accused was not present there. It is correct that nothing was recovered from the bag in my presence. It is correct that nothing had happened on that day in my presence".
37. From her above deposition, it is clear that even if accused would have been present, she could not have identified him. She failed to recollect his face, colour, features. She admitted the signing of blank papers. She could not tell the number of bottles recovered from the baggage of accused and description of said bottles and that whether the said bottles were wrapped with any carbon paper or polythene. She further could not tell the make of SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 34/50 baggage of accused. She admitted that her signatures were taken on various documents by Custom Officer. She was not made understood the meaning of Section 50 of NDPS Act and panchnama. Even after seeing the photocopy of passport of Mohd. Naseem, she failed to tell whether said passenger is same person who is accused in present case. She further admitted that she was not present during the proceedings which were conducted with the accused. She further deposed that accused was not present there and that nothing was recovered from the bag in her presence and further that nothing had happened on that day in her presence. The above discussed deposition has totally demolished the case of customs. The deposition of panch witness is totally contrary to the case of customs.
38. PW-5 Sh. Akhilesh Meena, Superintendent and PW-6 Sh. Jitendra Kumar, Asst. Commissioner had SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 35/50 deposed regarding deposition of case property in custom godown by ACO, Sh. Ganesh Kumar on 02.02.2017. He also deposed regarding production of case property on 09.02.2017 before the court of Ld. MM Sh. Rohit Gulia for conducting proceedings U/s 52A of NDPS Act.
39. As far as deposition of PW-7 is Sh. Brijendra Singh, Superintendent, ICD Patparganj is concerned, he deposed regarding receipt of remnant samples with test report. He further deposed that test report was sent to preventive shift by him and remnant samples were deposited after sealing them with custom plier seal.
40. Another witness produced by custom is PW-8 is Ms. Shweta Tripathi, Senior Associate, DIAL Security. She deposed that she got images of baggage of pax and on seeing the said images, she found some suspicion and therefore, she rejected the image for SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 36/50 next level for further inquiries. She proved her voluntary statement as Ex. PW-8/A.
41. In her cross-examination, she failed to tell her duty hours on that relevant date and the time when she noticed the suspicious images in the baggage belonging to accused. She also stated that they received only images of bags and it was not produced physically. She failed to tell the size and numbers of the bottles noticed in image. So her deposition is also not believe-worthy.
42. PW-9 Ms. Monika Gandhi, Duty Manager, Celeby Airport Services in her examination before the court deposed that airline received call regarding baggage and airline informed her that there is two pieces of baggage stuck at Level IV, hence she deputed staff member namely Mohd. Faizan for same. She also proved her voluntary statement as Ex. PW-3/F. SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 37/50
43. In her cross-examination, she deposed that she deputed Mohd. Faizan to look into the matter. She also deposed that she herself had not seen the baggages in question and she failed to tell the name of officer to whom she tendered her voluntary statement or that whether her voluntary statement was handwritten or computer typed. She further failed to tell on which date the incident happened.
44. PW-10 Sh. Nilesh Kumar, Custom Inspector is a formal witness who filed the present complaint with documents which was Ex. PW-10/A.
45. PW-11 Sh. Ajeet Singh, Senior Associate DIAL deposed that two baggages of pax namely Mohd. Naseem reached at Level IV for physical check and said information was also given to his seniors and baggages of said pax was offloaded and handed over to airline staff and opening of baggages resulted into SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 38/50 recovery of 130 bottles each of phensedyl cough linctus. He further deposed that he received summons and in compliance of same he tendered his voluntary statement which is proved as Ex. PW-11/A.
46. In his cross-examination, he failed to tell the name of Custom Official to whom he tendered his voluntary statement Ex. PW-11/A and also as to when same was recorded. He also deposed that he was not apprised the meaning of any sections of law or act detailed in his statement. He also failed to tell the colours of said baggages. He further failed to tell the name of officials from CISF and Airline staff who were present at the time of opening of said baggages. PW-11 further could not tell the colour of bottles. Though baggages were opened in his presence but he also failed to tell the material point as to whether the baggages were locked or not.
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47. Last witness produced by custom is PW-12 Sh.
Ravinder. He is another panch witnesses in this case. However, he also has not supported the case of customs and deposed that he cannot identify the accused now. He was also cross-examined by Ld. Counsel for customs as he turned hostile in witness box wherein he failed to recollect now as to what proceedings were conducted. He also deposed that he did not see anything and his signatures were obtained on the papers.
48. In the cross-examination conducted by Ld. Defence counsel, he failed to identify the accused. He failed to recollect his face, colour, features. He admitted the signing of blank papers. He also could not tell the number of bottles recovered from the baggage of accused and description of said bottles and that whether the said bottles were wrapped with SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 40/50 any carbon paper or polythene. He further could not tell the make of baggage of accused. He admitted that his signatures were taken on various documents by Custom Officer. He also deposed that he was not made understood the meaning of Section 50 of NDPS Act and panchnama. Even after seeing the photocopy of passport of Mohd. Naseem, he failed to tell whether said passenger is same person who is accused in present case. He further admitted that he was not present during the proceedings which were conducted with the accused. He further deposed that accused was not present there and that nothing was recovered from the bag in his presence and further that nothing had happened on that day in his presence.
49. From above discussion, it is clear that both panch witnesses have deposed on similar lines and SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 41/50 have totally demolished the case of customs. Their deposition is totally contrary to the case of customs.
50. It is further observed that an application U/s 311 Cr. P. C. was filed on behalf of customs department whereby the custom department wanted to produce witness namely Mohd. Faizan who is stated to be material witness.
51. The perusal of record shows that witnesses Ajit Singh, Mohd. Faizan and Sh. Nilesh Kumar were summoned for 06.01.2020 vide order dated 18.12.2019. The order dated 06.01.2020 shows that summons sent to witnesses Ajit Singh, Mohd. Faizan and Sh. Nilesh Kumar were not received back either served or unserved. The report was also not available with counsel for custom and status of witnesses was not known to him and he failed to furnished any explanation for not producing witnesses. Thus evidence of witnesses namely Ajit Singh, Mohd. SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 42/50 Faizan and Sh. Nilesh Kumar was closed and matter was posted for recording of Statement of accused U/s 313 Cr. P.C., however liberty was granted to custom department to produce witnesses in court, if they are available on 09.01.2020.
52. The perusal of record further shows that on 09.01.2020, only witnesses Ajit Singh and Nilesh Kumar were produced and they were examined but again custom department failed to produce witness Mohd. Faizan despite liberty granted to custom to produce him, hence again case was posted for recording of Statement of accused U/s 313 Cr. P.C. and at the request of customs, again liberty was granted to custom department to produce witnesses Mohd. Faizan and Ravinder Kumar in court, if they are available on 13.01.2020. On 13.01.2020, only witness Ravinder Kumar was produced and he was examined as PW-12 and again custom department failed to SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 43/50 produce witness Mohd. Faizan in court. Thereafter, the application U/s 311 Cr. P. C. was moved by customs.
53. So from above discussion, it is clear that sufficient opportunities were granted to customs to produce witness Mohd. Faizan in witness box even after fixing the matter for recording of Statement of accused U/s 313 Cr. P. C. and custom department remained reluctant in producing him in court even despite grant of liberty to this effect. The accused is in JC since 29.01.2017. It is further observed that already damaging evidence contrary to the case of customs has come on record as both panch witnesses have not supported the case of customs and no fruitful purpose was going to be served by allowing the examination of witness Mohd. Faizan as he is also witness to the same and the statement of this witness is not going to help custom. Hence, in SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 44/50 view of above discussion, the application U/s 311 Cr. P.C. moved by Custom has been dismissed vide separate order.
54. The Ld. Defence counsel has placed reliance upon judgment titled as Jagdish Vs. State of M. P. (2003) 9 Supreme Court Cases 159 wherein it was held that "Conviction under, solely on basis of testimony of PW 1 who searched the accused - appellant without any prior information or entertaining any suspicion regarding the involvement of appellant - Recovery of opium from appellant's attache - Testimony of PW 1 contradicted as panch witnesses denying that a search and seizure or recovery of opium took place in their presence
- Even driver and conductor of the bus declared hostile- Held, evidence on which prosecution case hinges suffers from SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 45/50 infirmities and it would not be safe to rely upon the sole testimony of PW 1 to hold the appellant guilty - Hence, conviction and sentence st aside".
55. This above judgment is fully applicable to the facts of present case as panch witnesses have not supported the case of custom. Thus the evidence on which prosecution case hinges suffers from infirmities and this court also observes that it would not be safe to rely on sole testimony of IO/Custom officer.
56. Reliance is also placed upon judgment passed by Hon'ble Supreme Court in case titled as Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab & Anr. reported in (2009) 12 SCC 161 and JT 2008 (7) SC 409 respectively wherein it was held that "purported statements tendered by an accused while in custody cannot be presumed to be his voluntary SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 46/50 statement". In para No. 28 of said judgment, it was held that "If a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence". The above judgment is fully applicable to present case.
57. Reliance is placed upon judgment titled as D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416 to contend that "if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence".
58. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 47/50 that evidence is found difficult to prove guilt of other accused persons-falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
59. It has to be kept in mind that whole area of Airport is under CCTV surveillance. Rather, CCTV Footage of accused of particular date and time could have been placed on record to prove the case of prosecution and to ascertain the guilt of accused which has not been done in the present case. It is clear from deposition of witnesses that area from where bag of accused was seized, was covered under CCTV Surveillance.
60. As per the case of prosecution, if accused was SC No. 4412017 Custom Vs. Mohd. Naseem Page No. 48/50 having the bag containing contraband and baggage of the accused was appeared to be heavy from the bottom and he was apprehended and said baggage in question was x-rayed and contraband was recovered. Video recording of all these proceedings apart from his lifting the bag from belt alongwith x- ray images should have been placed on record to prove the guilt of accused.
61. In the instant case all the procedural safeguards provided under a statute have not been strictly complied with. The prosecution has not discharged its burden of proving its case against the accused beyond all reasonable doubt.
62. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the opinion that there are many reasons to discredit the inconsistent testimony of prosecution witnesses.
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63. In view of the documents available on record, testimonies of the prosecution witnesses and the aforesaid discussion, this court holds that prosecution has not proved its case beyond shadow of doubt. He is given benefit of doubt qua the charged sections.
64. It is observed that the ingredients of section 21
(c), 23(c) and 28 of NDPS Act are not made out, hence, accused Mohd. Naseem is acquitted for the offence U/s 21 (c), 23 (c) and 28 of NDPS Act. Bail bonds U/s 437A Cr. P.C. in sum of Rs. 25,000/- on behalf of accused have been furnished on record. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. File be Digitally consigned to record room. signed by AJAY AJAY GOEL Date:
GOEL 2020.01.25
14:40:47
+0530
Pronounced in the open court. (AJAY GOEL)
Dated: 14.01.2020 ASJ/Special Judge (NDPS),
Dwarka Courts, New Delhi.
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