Delhi District Court
Ncb vs Benjamin David Billington on 12 May, 2007
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IN THE COURT OF MS. SWARAN KANTA :
SPECIAL JUDGE : NDPS : NEW DELHI
Session Case No. 8A/04
NCB Versus Benjamin David Billington
S/O Sh. Neville Billington
R/O 302, Hotel Moon Palace,
Pahar Ganj, New Delhi.
Permanent Add: 34, Nevis Grove,
Milton Keynes-MK2, 3NY England
(Holder of British Pass-port no.
060035460)
Ilhan Hrari Beckett
S/O Sh. Joseph
R/o I-51, 3rd Floor, Lajpat Nagar,
New Delhi.
Permanent Add: Haoren 46/4,
Akoo Israel.
(Holder of Israeli pass port no.
9609865)
Under Section : 20 (b)(ii)(C)/23/28/29 NDPS Act, 1985.
JUDGMENT:
1. The case of the NCB is that a complaint had been filed by Sh. Jyotimon, IO NCB, DZU, New Delhi against accused Benjamin David Billington and Ilhan Harari Beckett for offence U/s 2 20 (b) (ii) (C ), 23, 28 and 29 NDPS Act, 1985, thereby raising allegations to the effect that on 08.03.2002 at about 17.45 hours Sh. Rajinder Sood, IO, NCB, DZU, New Delhi received a secret information and consequent thereto a search authorization was issued and a raiding party constituted of NCB Officers who reached the departure left wing. IGI Airport, New Delhi and in the presence of two panch witnesses namely Sh. Sanjay Sharma and Sh. Sarabjeet Singh, located accused Benjamin David Billington a British National who had checked-in flight no. LX 173 of Swiss Air and had cleared immigration and Customs counter. On the search of his baggage which was matched with the baggage tag and luggage Swiss tag of Swiss Air Conveyor Belt, the said baggage i.e. VIP Sky Bag suitcase was opened by the accused Benjamin David Billington which contained used personal effects and on removing the clothes, it was found that below the rod of carrying handle, there was one black plastic sheet base inside the suitcase and on opening the black plastic sheet, the officers of NCB found two yellow cello tape covered sheets underneath the black plastic sheet and the two yellow cello tape covered sheets were pulled out and it was found that there were three more layers 3 of plastic covering underneath and inside was black semi solid substance in both the sheets which was tested with the help of Field Testing Kit which gave positive test for Hashish and thus, from one sheet Mark as A 4.840 kgs and from another sheet Mark B 4.700 kgs totaling 9.540 kgs gross of Hashish was recovered which accused Benjamin David Billington had attempted to export out of India. Search proceedings were completed, panchnama was prepared, statement of witnesses were recorded.
2. Thereafter in pursuance to the summons dated 09.03.2003, accused no.1 gave his voluntary statement under Section 67 NDPS Act before Sh. Jagmohan Khati, IO, NCB and on the basis of the said statement, a search authorization dated 09.03.2003 was issued by Sh. C.B. Singh, Superintendent in favour of Sh. Bhushan Joshi, IO to carry out the search of residential premises of accused no.2 Ilhan Hrari Beckett at I-51, IIIrd Floor, Lajpat Nagar-I, New Delhi and thereafter the search of the said premises of accused no.2 was conducted by Sh. Bhushan Joshi, IO in the presence of two panch witnesses namely Sh. Ram Parsad and Sh. Nathu Ram and other officers of NCB and from 4 the search of the residential premises of accused No. 2, from one cloth bag of multi coloured stripes, black coloured substance kept inside a polythene pocket was recovered which was tested with the help of Field Testing Kit which gave positive test for Hashish a banned narcotic drug, total weight of which came to be 75 grams. Samples were drawn from the banned narcotic drug which was seized at the airport from the baggage of accused No. 1 as well as at the residential premises of accused No.2 and were sent to CRCL for their chemical analysis by the chemical examiner.
3. On chemical examination, the sample gave positive test for the presence of Charas and Tetra Hydro Cannabls (THC) content was found as 4.7% in the sample which were taken out from the recovered substance seized from the baggage of the accused No.1 and in the third sample, the percentage of Tetra Hydro Cannabls was found as 5.9%.
4. The complainant has further alleged that after the recovery of Hashish from the residential premises of accused No. 2, his statement was recorded U/s 67 NDPS Act.
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5. Vide a detailed order charge U/s 20 (b0 (ii) (C ), 23 read with 28 as well as 29 read with Section 20 (b) (ii) ( C ) NDPS Act is made out against accused No. 1, whereas U/s 20 (b) (ii) (A) as well as 29 read with 20 (b) (ii) (C ) NDPS Act is made out against accused no. 2, to which they pleaded not guilty and claimed trial.
6. The NCB in support of its case has examined 16 witnessed.
7. During deposition of the witnesses it emerged on record that Shri Rajender Sood, who has been examined as PW-10 had received secret information Ex.PW10/1 that a British national Benjamin David Billington will fly to London via Durish on that day and he was in possession of 10 kg of Hashish which he had concealed in the bottom of the suitcase. The information was also mentioned in the intelligence report Ex.PW10/1 that said Hashish had been supplied by a man named Ilhan who is an Israeli national. The information which was received was reduced 6 into writing and forwarded to Shri C.B. Singh, Superintendent, NCB, DZU, New Delhi.
8. Shri C.B. Singh who appeared as PW-11 stated that on receipt of secret information Ex.PW10/1 he had discussed the same with the Zonal Director and had obtained the necessary approval and thereafter, he had issued a search authorization letter Ex.PW4/1 dated 8.3.2003 in favour of Jyotimon, IO. He also deposed regarding the proceedings which had taken place at the departure hall of IGI Airport and identified the case property, produced in the court. He also stated that Shri Jyotimon had deposited the entire case property, sample and the test memo form with him and he was Incharge of the malkhana. He had kept the case property in the malkhana after making necessary entries in the malkhana register Ex.PW4/30. He also proved the report submitted by Shri Jyotimon U/S 57 NDPS Act regarding seizure Ex.WP4/31 and the execution report Ex.PW4/11. Shri C.B. Singh also proved the report U/S 57 NDPS Act submitted by Shri Jyotimon, IO Ex.PW3/1 regarding arrest of accused Benjamin David Billington and Ex.PW1/1 regarding sending PW-5 Shri Shiv 7 Rattan Hawaldar to deposit the samples at CRCL, New Delhi. The receipt of the depositing of the sample was proved as Ex.PW2/1. He also proved on record the letter which was written to the High Commission of England and Israel and the communication between him and the Under Secretary, Ministry of External Affairs, the General Manager Airtel and General Manager, Essar. He also identified both the accused persons in the court.
9. On being cross examined by Ld. Defence Counsel on behalf of accused Ilhan he stated that he did not know as to whether accused Ilhan had written in his statement before the NCB officials that he did not understand or was not aware as to what was written on the pages, which were got signed from him. He did not direct the statement to be re-written in the presence of a person who could understand the language known to accused Ilhan as the statement already stood recorded and there was no objection raised by the accused.
10. On being cross examined by Ld. Defence Counsel 8 Shri Yogesh Saxena for accused Benjamin David he admitted that airport is a restricted area and only the persons having passes and valid tickets can enter the said area. He admitted that his statement was not recorded in this case. He admitted that many foreigners were present in the departure hall but he did not make any inquiries from them. He admitted that baggage was booked with security tag which is affixed only after baggage is x-rayed. He also stated that security agency after satisfying themselves either through x-ray machine or personal verification issued security tag. He also admitted that once the baggage is checked- in it cannot be retrieved without the consent of the concerned airlines. He also admitted that neither himself nor any officer had obtained consent from the concerned airlines for retrieval of the baggage from the baggage hold area. The same was brought by the accused himself in the presence of concerned airlines staff and Jyotimon. He further stated that the panch witnesses of the Courier Company were posted at the airport. He denied that they are stock witnesses.
11. PW-7 Shri P.N. Verma deposed regarding issuance of 9 seal of Narcotics Control Bureau, DZU-5 to the seizing officer Shri Jyotimon on 8.3.2003 which was returned on 9.3.2003. He also stated that he had issued the same seal to Bhushan Joshi on 9.3.2003 which was returned on the same day at 2.00 p.m. He also proved the seal movement register and the entries made therein Ex.PW4/31. He also stated that a reminder letter was written to General Manager, Airtel regarding subscriber and call details.
12. PW-4 Jyotimon who is the IO of the case stated that Shri C.B. Singh had issued a search authorization letter in his favour regarding search of baggage of accused Benjamin David Billington at departure hall of IGI Airport Ex.PW4/1 and that he had got issued seal of NCB, DZU-5 from Incharge of seals, Shri P.L. Verma on 8.3.2003. He further stated that on reaching departure hall of IGI Airport he had discussed the secret information with Sanjay Sharma and Sarajbit Singh. He had requested them to join the proceedings as panch witnesses. They have agreed to the same.
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13. Thereafter, NCB officers along with panch witnesses had approached accused Benjamin David and disclosed to him regarding the secret information with the NCB. Accused was also shown the search warrants Ex.PW4/1 to conduct his search which was signed by the accused and the panch witnesses. The officers of NCB had offered their personal search which was declined by the accused. Thereafter, accused Benjamin David was told about his legal right to get his search conducted before a Gazetted Officer or Magistrate and was given the written notice U/S 50 of NDPS Act. The notice was explained to the accused, however, he declined to be searched by a Gazetted Officer or Magistrate. The denial of the accused was reduced into writing in the handwriting of the accused himself. Thereafter, recovery of 9.5 kg of Hashish was made. Accused Benjamin David had already cleared security and immigration. He had a polo sports bag as his cabin luggage and he informed the NCB officers that he had one more suitcase which has already checked in. He was asked to retrieve the suitcase from the Conveyor bag. The suitcase as security tag, checked in tag, attached on the suitcase. The suitcase was of blue colour VIP brand. Thereafter, accused was asked to open 11 the suitcase. On opening the suitcase a false bottom of the suitcase was found and when the same was opened, the same was found to contain two yellow colour slap packets. After cutting the same, it was found to contain three different polythene bags which contained black semi solid substance in both the packets. Small quantity was taken from both the packets and on testing with same with the help of field testing kit, it was found to be Hashish. The same was weighed. One packet containing 4.840 kg of Hashish and another packet found to contain 4.700 kg of Hashish. The seized packets were given mark A and B and 25 grams each was taken from both the packets. All the four samples were put in polythene packets. Thereafter, he described the procedure by which the samples and the case property were given mark and were sealed. The remaining property articles was kept in the same bag and tied with a thread. The panch witnesses had signed all the necessary documents. The checked in bag of accused Benjamin David did not contain any incriminating articles. Some documents recovered from the bag were also seized. The Panchanama was prepared at the spot.
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14. The embarkation card Ex.PW 4/5, immigration authority, flight manifest Ex.PW4/6 and air ticket Ex.PW4/7 were also seized. Thereafter, summons U/S 67 NDPS Act were issued and the case property, samples, test memo were deposited in the mlakhana through C.B. Singh. The seal was returned to Shri S.D. Sahay, Assistant Director. The report was given to the Zonal Director. He also stated that he recorded the second statement of accused Ilhan which was written by Sh. Bhushan Joshi at the request of accused Ilhan which is Ex.PW4/12. Accused Ilhan had signed the statement in Hebrew and stated that he does not know how to write in English.
15. Thereafter, he had gone to Hotel Moon Palace in Pahar Ganj on 10.3.2003 and had collected signed and stamped copy of hotel register and C-form regarding stay of accused in that hotel which is Ex.WP4/13 and Ex.PW4/14. Thereafter, statement of accused Anil Bhardwaj was recorded who had supplied the copy of ticket and passport regarding the ticket booked by him for accused Benjamin David. The statement of Anil Bhardwaj was recorded which is Ex.PW4/16. The photocopy of the passport of 13 accused Benjamin David and ticket coupon which was handed over by Anil Bhardwaj were proved as Ex.PW4/17 and Ex.PW4/18. Statement of Vijay Srivastava was also recorded which is Ex.PW4/19. Vijay Srivastava had handed over the photograph of accused Benjamin David to the same person to whom he had handed over the ticket and the photocopy of entry regarding delivery of ticket to accused Benjamin as Ex.PW4/20. The photocopy of the register pertaining to the said entries was proved as Ex.PW4/21. The copy of the passport from where he had identified accused Benjamin and in token thereto he had put his signatures was proved as Ex.PW4/22.
16. Statement of Sanjay Sharma, panch witness was recorded on 23.8.2003 at IGI Airport is Ex.PW4/26. On 23.8.2003 he had found the address given by panch witness Sarabjeet was incorrect and the report regarding the same is Ex.PW4/29. The witness identified both the accused persons as well as the case property and the samples which were produced in the court. He has also identified the blue colour trolley bag. The trolley bag has been identified as Ex.P-8. As per court observation the same was 14 found to contain the present effects i.e. false bottom, one lock and one key by which the suitcase has been locked along with used clothes and shoes.
17. The witness was cross examined by Shri Yogesh Saxena, Ld. Defene Counsel for accused Benjamin David. In his cross examination he has stated that he had seen the accused Benjamin David for the first time on 8.3.2003. He stated that after receipt of information and the issuance of search authorization lettter he had proceeded along with IO Mangal Dass to IGI Airport and had reached there before 11.00 p.m. He stated that before check-in by the passenger the baggage was checked and was got x-rayed by airlines employees. The airlines was Lufthansa airlines. He denied that the baggage was x-rayed by CISF staff as at that time it was run by the airlines staff. He admitted that no inquiry was made from the airlines staff. He stated that they had no photograph of accused Benjamin David and were only having his description with them when they had reached at the airport. They had not made any inquiry from CISF staff, Customs Preventice Unit and Airlines staff regarding the description of 15 accused Benjamin David. The baggage which goes in conveyor bag was x-rayed by airlines staff and the security checking tag is attached thereafter.
18. After the baggage crosses through the x-ray machine, only thereafter, the security checked in sticker is affixed on the baggage. He denied that after the bag was x-rayed even thereafter, the passenger is required to carry the baggage to airlines counter where it is weighed and the ticket of the passenger is checked and only thereafter, the security and baggage checked tags are attached. He also denied that the baggage is x-rayed by the airlines staff at that stage. He admitted that after the baggage has been cleared by the security checks, the same cannot be retrieved without the permission of airlines staff. He also stated that he did not remember the name of any official of airlines to whom the request for retrieval of baggage was made. He stated that the request was made by the accused himself and he was accompanying him at that time. He also stated that he himself and C.B. Singh had spoken to the airlines staff and had introduced themselves, but at no stage of 16 investigation the statement of any airlines staff was recorded. No inquiry was made from the Custom Officials at the airport. The flight manifest was collected from the Customs Officers.
19. He stated that he did not know if the procedure is that when the passenger reports at the airlines counter, the number of air ticket along with details of number of baggage and baggage tag number allotted to them and the record is maintained. He admitted that he had not collected any record neither he had recorded statement of any airlines official to the effect that baggage tag and the security check tags were alloted against the ticket of the accused. When the accused Benjamin David for the first time had come to the check-in his baggage, he was not accompanied by anyone. There was other passengers as well.
20. The search of the accused was taken in the custom preventive room in the departure hall, but no custom officer was present in the room. Besides the panch witnesses no custom officer or airlines official were asked to witness the proceedings. The trolley bag was opened by the accused Benjamin David 17 himself with the key. No seizure memo of the key was made. No permission was taken from the Custome Authorities to use the custom preventive room. Officers of the Custom department were coming and going out to the said room. He admitted that accused Benjamin had come to the NCB office with the members of the raiding party at 6.00 a.m. Accused Benjamin was with Sh. Jagmohan Khatti. Benjamin David was arrested at 6.30 a.m on 9.3.2003. He denied that the panch witnesses were stock witnesses of NCB.
21. On being cross examined by Ld. Defence Counsel for accused Ilhan he admitted that the airport area is a restricted area where only the passenger with valid ticket and staff and visitors with passes can enter. He stated that the statement of accused Ilhan was in the handwriting of Shri Bhushan Joshi. He stated that accused Ilhan was signing different signatures on every stage. He admitted that it was not recorded in the statement of accused Ilhan that the statement was read over and explained to him and was admitted by him to be correct.
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22. PW-6 Bhushan Joshi stated that on 9.3.2003 Shri C.B. Singh had issued a search authorization in his name to take search at the residential premises I-51, IIIrd Floor, Lajpat Nagar, Delhi. Thereafter he along with Mangal Dass and Satinder Tomar had reached at above said premises and had reached there at 10.00 a.m. He had called two panch witnesses Nathu Ram and Ram Prashad and had informed them about secret information. They were requested to join the search. They had reached the door of the house and the landlord of the house Dinesh Kumar had made inquiries from him. He also informed him about the secret information and was requested to remain present during the search. Accused Ilhan had opened the door. The members of the raiding party had introduced themselves by showing their identity card and also search authorization letter. Thereafter accused Ilhan had put his signatures on the search authorization. The panch witnesses as well as landlord Dinesh Kumar had also put their signatures on the same.
23. Thereafter, accused Ilhan was asked whether he wanted to get his search conducted before any Gazetted Officer or 19 Magistrate. However, he denied the same. Notice U/S 50 NDPS Act was served upon him. He also denied to take search of the members of the raiding party. Thereafter, search of the house was conducted. A multi striped cloth bag was recovered which was hanging on the door of the bedroom. It was found to contain a polythene packet containing black colour substance. Upon checking the substance with the help of field testing kit, the same was found to be Hashish. The same was weighed and it was found to be 75 grams. Two samples of 25 grams each were drawn. Thereafter, he described how the case property and the samples were sealed and the packets were prepared and seized at the spot. Thereafter, accused Ilhan along with the panch witnesses tendered their voluntarily statements. Statement of Nathu ram is Ex.PW6/8 and of Ram Prashad is Ex.PW6/9. Thereafter, the case property was deposited in the malkhana after making the relevant entries in the malkhana register. Thereafter, he also proved the entries in the seal movement register. He also stated that he had recorded the statement of Jyotimon. He identified the case property produced in the court. 20
24. On being cross examined by Ld. Defence Counsel for accused Ilhan he stated that he had not received any information regarding presence of the narcotics, however, he was given a search authorization letter by the Superintendent. He stated that the search proceedings were over by 1.00 p.m. He stated that they left the office at 9.10 a.m. He stated that he had not recorded the statement of landlord, neither he had asked the landlord for copy of lease deed or the rent agreement. He stated that while he was recording the statement of Ilhan the questions had been framed and were put by him to which accused Ilhan had given answer and they were recorded by him. He again said that questions were put by IO Jyotimon before whom the statement was recorded. He admitted that something is written on all the pages of the statement of accused Ilhan which can be his full signatures. The test memos were not kept in sealed envelope at the spot. He stated that he did not know if accused Ilhan had made any statement that he did not understand his statement.
25. PW-8 Sarabjeet Singh who is panch witness stated that in the month of March 2003 he was working with All Abroad 21 Courier Company at IGI Airport, New Delhi. Two custom officials had requested him to become witness to search. Another witness was also requested. Thereafter they had taken him and the other witness to the departure side first floor. He stated that the officers had taken both the accused persons who were present near conveyor belt. The officer had informed the accused persons that their search can be taken in presence of Gazetted Officer or Magistrate however, they refused. They also signed the papers. The said papers were also signed by him and the other witnesses. Thereafter, the officers had opened the bag and from under neath the use clothes they had taken out two packets wrapped in cello tape which were checked with the field testing kit found to be Hashish. Two samples were taken from each packet and were sealed separately. He also identified the case property produced in the court as well as the blue trolley bag. He further stated that officers had taken search of hand bag, but nothing incriminating was recovered from the bag.
26. The Ld. SPP for NCB sought permission from the court to put a leading question to the witness regarding recovery 22 being made from one of the accused persons which was allowed by the court. The witness stated that the seizure of the contraband and documents were made from accused Benjamin David whereas another person was also sitting near the place where seizure was affected. The search of that person was not taken by the NCB officers.
27. On being cross examined by Ld. Defence Counsel accused Benjamin stated that he had no documentary proof regarding his employment with the Courier Company. He admitted that once the baggage is x-rayed and handed over to the concerned airlines and security tag, baggage tag and baggage stub are alloted against the said baggage, it cannot be retrieved from the conveyor belt by the passenger without permission from the concerned airlines. It is stated that at the time of recovery of contraband two officials of Custom were also present. One Custom Officer was also sitting in that room.
28. He stated that only one accused and two panch witnesses were present at the time of recovery. He stated that he 23 had studied upto 9th class and cannot make dictation in English. Sanjay Sharma, the other panch witness could give dictation in English. He also stated that his name and age which is mentioned in the panchnama was written after inquiries made from him. He had given address of his maternal grand mother to the NCB officers. He also stated that he had gone to Punjab for six months as grand father has expired. After he came back he came to know that NCB officials required his presence. HE stated that his statement was not recorded during investigation.
29. PW-9 Satvinder Kumar Tomar, IO is the witness of recovery from the possession of accused Ilhan. He also stated similar facts as stated by PW-6 Bhushan Joshi and deposed as to how recovery of Hashish had been effected from accused Ilhan.
30. On being cross examined by Ld. Defence Counsel of accused Ilhan he stated that he had not signed any document nor the panchnama prepared in his presence.
31. PW-10 Ravinder Sood is the witness of recovery of 24 Hashish from Ilhan and stated similar facts as stated by PW-6 Bhushan Joshi. He further stated that they had also recovered one weighing machine and scale from the room of accused Ilhan and had also taken into possession some documents for investigation. They had also recovered Indian currency as well as foreign currency including Dollars, Yen and Ponds, which were seized.
32. On being cross examined by Ld. Defence Counsel for accused Benjamin David he stated that he had received information regarding possession of drugs by accused Benjamin David. He did not know in which hotel accused Benjamin David was staying. The panchnama was prepared outside the house. He could not give any explanation as to why he had not signed panchnama or any document on the day of recovery. He stated that he had not received any information regarding address and full name of the Israeli mentioned in the secret information.
33. PW-12 Shri Anu Anand who is the Nodal Officer, Hutch proved the call detail report Ex.PW11/5 and Ex.PW12/X. 25
34. On being cross examined by Ld. Defence Counsel for accused persons he has stated that he had no personal knowledge as to who had issued the documents. He had not seen the original documents. He also stated that he could not identify as to whom the telephone No. 9811832505 belonged. He also stated that as per their official record, the name of the person to whom this number belonged is not mentioned.
35. PW-13 Shri Anil Bhardwaj stated that he is working with M/S AA BEE Travels, T-298, Main Bazar, Pahar Ganj for the last 16 years as a Manager. On 8.3.2003 probably accused Benjamin David came to their officer and wanted a ticket from Swiss Airlines to London for the same night. He had arranged the ticket for him. He had also taken his original passport from him and had kept the photocopy of passport and ticket. Thereafter, he informed his colleague Shri Vijay Srivastava that accused will come and will collect the ticket and Rs.52,130/- are to be taken from him. Thereafter, Jyotimon from NCB came to their office next day and make inquiries from him. Summons were served upon 26 him. Statement Ex.PW4/16 was recorded which was given to Jyotimon.
36. On being cross examined by Ld. Defence Counsel Shri S.S. Dass for accused Ilhan he stated that he had sold 9-10 tickets on that day and cannot give details of all the tickets sold on that day. He stated that he remember the present person as he was called in this case by NCB Officials. He denied that no ticket was sold to Benjamin David or that he never came to their office to buy ticket for London.
37. On being cross examined by Ld. Defence Counsel for accused Benjamin David he stated that Sh. Anil Bhalla is the owner of travel agency with whom he was working.
38. PW-14 Shri Vijay Srivastava stated that on 8.3.2003 he was working as night Manager in M/S AA BEE Travels, Pahar Ganj. When he reported at 6.00 p.m the ticket had already been prepared. Shri Anil Bhardwaj or Shri Anil Bhalla had informed him that ticket is ready and is to be handed over to customer Benjamin 27 David after receiving Rs.52,130/- from him. Benjamin David thereafter, had come to collect the ticket between 6.30 to 7.00 p.m. The ticket was handed over to him. Next day NCB Officials had come to their office. He had shown the passport and ticket to him, which he identified and had informed that the same was handed over to Benjamin David. They had also made inquiries as to whether Benjamin David had come alone or he accompanied by some one else. He told that he had come alone. He proved the statement Ex.PW4/20. He had also handed over the photocopy of register showing issuance of tickets.
39. On being cross examined by Ld. SPP for NCB he stated that summon was not personally served upon him by NCB Officials.
40. On being cross examined by Shri S.S. Dass, Ld. Defence Counsel for accused Ilhan he submitted that he did not prepare the ticket in question.
41. PW-15 Shri Mangal Dass has stated that on 9.3.2003 28 9.54 kg Hashish was recovered at IGI Airport from Benjamin David and 75 grams of Hashish was recovered from accused Ilhan from his rented accommodation. He had prepared annexure A of panchnama contained documents seized from accused Benjamin David. He also stated that he had recorded the statement of accused Ilhan at the request of Ilhan in the presence of Satinder Kumar, IO. He had served summons to Shyam.
42. On being cross examined by Ld. Defence Counsel for accused Ilhan he stated that he had not taken any independent witness either from his office or nearby office. The independent witness was called by Sh. Bhushan Joshi. He stated that the witnesses were not called from the premises or any place siutated around the premises. Ilhan could speak little bit of English and Hindi. He did not know whether Ilhan could write any language or not. He had also not made any inquiries from Ilhan regarding language written and spoken by him. He had not called any interpreter to explain the proceedings to accused Ilhan and also stated that he had written statement of Ilhan on his dictation. He admitted that he did not know what was written on page No. 64 to 29 73 by Ilhan. He stated that he had thought that the same must be signatures of Ilhan.
43. PW-16 is the Manager of Bharti Airtel who has proved the call record of mobile No. 9810211405 Ex.PW16/2 and details of mobile No. 9810681600 Ex.PW16/3. He stated that telephone No. 98180211405 is in the name of Benjamin David and 9810848113 is in the name of one Rajbir.
44. On being cross examined he admitted that the documents brought by him to the court bear only the seal of Bharti and do not bear any endorsement that it is certified true copy. He also admitted that he cannot show any document to prove that the mobile phone No. 9810211405 was in the name of Benjamin David.
45. Prosecution evidence was closed and statement of accused persons U/S 313 Cr. P.C recorded. Accused Benjamin David did not lead any evidence in his defence. 30
46. Accused Ilhan examined one defence witeness in his defence, who stated that he is the holder of Israeli passport No. 9810861. He stated that he is resident of Israel and can read, write and speak Israeli. He was shown the documents annexure 20 Ex.DW1/D1 at point C and page 65, 66, 67 of the said exhibit and stated that it read as "I do not understand". He stated that on Ex.PW4/12 it was written that "I am not aware what is written and then there are signatures dated 9.3.2003". He also proved the same fact regarding Ex.PW6/3, Ex.PW6/4, Ex.PW6/5 and page 68 annexure 21 Ex.PW6/1.
47. On being cross examined by Ld. SPP for NCB he stated that he had not brought any certificate regarding his educational qualification. He stated that he does not know accused Ilhan and had seen him for first time in the court. He stated that he is a qualified translator of Israeli, but was not authorized by anybody to depose in the court in this case. He further stated that one M.S. Racheal, Counselor, Embassy of Israel had directed him to come to the court when he had gone to the Embassy to collect his passport. He admitted that he had not 31 seen the handwriting or signatures before coming to the court. Defence evidence was closed.
48. Final arguments were heard. Ld SPP for NCB argued that the NCB had proved the embarkation card maintained by immigration authority which has the endorsement that the passenger has been off loaded by NCB which means that passenger i.e. accused No. 1 was not allowed to board the plane by the officials of NCB. The boarding pass also contains the said number of accused No.1 and therefore, they have also proved that the suitcase from which the contraband was recovered belonged to accused No.1.
49. It is also submitted that the seizure has been proved as per law. There is no major contradiction in the statement of the witnesses, therefore, accused Benjamin David be convicted. It is also submitted that non examination of the witnesses from the concerned airlines does not weaken the case of the NCB as accused himself had retrieved his bag.
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50. It is further stated that as far as accused Ilhan is concerned, recovery has been proved beyond doubt from him and the connivance of accused Benjamin David and Ilhan has been proved as accused Ilhan had admitted in his statement U/S 67 of NDPS Act regarding his link with Benjamin David and the call details of the conversation of both the accused persons also proves that there were connivance between both the accused persons. It is also submitted that the endorsement made by the accused Ilhan on various pages of the statement had not been proved by the accused as the certified copy of the translation obtained from Embassy of Israel was neither obtained after permission of the court nor the copy of the statement sent for translation were certified copies. It is also submitted that authorized translator has not been examined in the court and therefore, the statement of DW-1 cannot be relied upon. It is also stated that accused Ilhan is married to an English lady. He held a British passport and visa as well as driving licence and therefore, it cannot be believed that he does not know English language. It is also stated that accused Ilhan had not asked for any interpreter during the panchnama proceedings also. Neither he had made 33 any application to the court that he should be provided with an interpreter.
51. My attention has been to drawn an order dated 26.10.2004 whereby the accused Ilhan had made a submission before the Ld. Predecessor of this Court that he was made to sign on blank paper and he had written in Hebrew that "I am not aware of what is written". Ld. ASJ has also mentioned in the said order that the statement which is running into five pages where accused has stated about the above endorsement have been encircled by the Ld. ASJ.
52. Vide the same order, Ld. Predecessor of this court has also mentioned that accused Benjamin David had pointed out to the Ld. Judge that he had put initials "U.D." on certain papers on statement to show that the statement was written under duress. He has mentioned this, on the pages where ever possible as he was under close watch by the NBC officials and he could not have written that his statement was under duress, otherwise he would have been beaten up.
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53. The Ld. Counsel for accused persons submits that both the accused persons had not only retracted their statements, but even at the time when they were made to sign the statement forcibly after being tortured they had mentioned on those papers itself that they were not guilty and that the papers were being got signed under duress.
54. My attention has also been drawn to the statement of the accused persons recorded U/S 67 of NDPS Act. I have seen the statement of accused Benjamin David recorded by NCB Officials dated 9.3.2003 wherein he has mentioned that he was desperate for money as he wanted to go back to his country. He had met some male and female members of various countries who offered him help to arrange for free ticket and 3,000 US Dollars. Thereafter, he had gone to Hari Rama Hotel and had received a bag. Upon leaving a man of large group had given to him a blue sky bag and had paid him money. A photograph was shown to the accused which he identified as that of Ilhan an Israeli national. He told that he is a good friend of his. However, he 35 clearly stated that Ilhan had nothing to do in this case and there is no involvement of Ilhan in the drug business.
55. Shri S.S. Dass, Ld. Counsel for the accused Ilhan has submitted that the prosecution has miserably failed to prove its case against the accused persons for the reasons that the secret information does not give complete name or other particulars of accused Ilhan neither his complete address and therefore, it could not be proved that the secret information was qua accused Ilhan. It is also submitted that as per the statement of accused Benjamin David he has clearly stated that accused Ilhan has nothing to do with the present case and that accused Ilhan was merely his friend. It is also submitted that accused Benjamin David has also stated that he had received the packet which was found to contain Charas from Hari Rama Hotel Reception counter which was lying unattended. It is therefore, submitted that the accused Ilhan has written on his all statements and documents which have been prepared by NCB officials that he does not know anything about the present case and he also does not understand anything written in the documents or statement written by NCB officials. It 36 is also stated that there are no public witnesses to the alleged recovery of Charas from the room of accused Ilhan. Therefore, he be acquitted.
56. Shri Yogesh Saxena, Ld. Counsel for accused Benjamin David has stated that the prosecution case is doubtful since there are discrepancies in the statement of the witnesses regarding recovery from the accused. It is also stated that since custom officials, airlines and security staff have not been examined or made witness in this case, the recovery from accused Benjamin David is highly doubtful. It is further stated that the public witnesses have been introduced later on and they have made improvement in their statements. It is also stated that the secret information is inadmissible in law and the statement of accused U/S 67 NDPS Act is not voluntary and had been retracted by the accused at the first available opportunity. It is also submitted that there is no question of any criminal conspiracy between both the accused persons as mere association of two persons does not constitute conspiracy, therefore, accused be acquitted.
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57. Having heard the rival submission of the parties, regarding recovery from accused Benjamin David, I am of the opinion that the witnesses of NCB have stated that after the secret information was received they had reached the airport and on the basis of the description available with the NCB officials they had called the accused Benjamin for inquiry and thereafter, the accused was asked to retrieve his baggage from the conveyor belt. Thereafter, upon search of the said baggage the recovery of Charas had been made. During the cross examination the witnesses were unable to explain as to why the Custom Officials, the Security Personnel, the ground checking staff and the persons who had conducted the search of the baggage of the accused by using x-ray machines etc. were not examined. It is not the case of NCB that either any of them was not available or that they had refused to join the proceedings. There is no explanation as to why no other ground staff etc. had also been examined by the NCB officials. As per PW Sarabjeet two custom officials were present at the time of search but the official witnesses have denied the same.
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58. It is well known fact that the procedure of check-in of the baggage of passengers of international flights is full proof for security reasons and not only the baggage is thoroughly checked manually but also with the use of x-ray machines. There is no mention of names of those persons, nor examination of the officers who had conducted the x-ray of the baggage of accused Benjamin David which had resulted in recovery of Charas and the disclosure of fact that there was hidden bottom in the baggage of accused Benjamin David.
59. The case of NCB regarding recovery from accused Benjamin David was, therefore, highly doubtful. It is also known that once a baggage is checked in after security check, the same cannot be retrieved without permission of the Custom Officials or the Airlines Staff. This fact is also admitted by the NCB officials and public witnesses themselves, therefore, it is not clear as to how the baggage had been retrieved without any oral or written permission of the Customs Staff.
60. The fact however remains that since retrieval of 39 baggage already checked in after a security check is not possible without permission of the staff of Airport Authority of India or Customs Officials etc. then how the baggage was retrieved by accused himself. That will amount to interference with the rules and regulations of the airport authority and will be a flaw in security checking itself. In case the permission of the Custom Officers or any other staff is not required the said fact was neither brought on record by the NCB officials nor any investigation etc was placed on record. On other hand the NCB officers examined in the court themselves admitted in their cross examination that the permission is required for retrieval of the baggage after the security check-in.
61. My attention has also been drawn to the embarkation card which has been placed on record by NCB officials themselves, according to same there is no evidence on record to show that the baggage of Benjamin David was off loaded or retrieved with the consent of the concerned Custom Officers and the staff of the concerned airlines. The recovery of the baggage of accused Benjamin David itself therefore was doubtful in absence 40 of any testimony oral or written in the court or in the form of any document to prove that the luggage was actually retrieved by the accused Benjamin David himself, which otherwise in any case is not possible as per the relevant rules of the Airport Authority.
62. There was no explanation in the testimony of any of the witnesses as to why the best witnesses of the recovery of the baggage of accused Benjamin David were neither associated in the proceedings of the retrieval of the baggage or for conducting search of the baggage of the accused.
63. Moreover, the accused has mentioned in his statement before the NCB officials themselves and also maintained this defence through out the trial that he had collected one bag from Hare Rama Hotel from the reception which was lying unattended which was handed over to him by some un-known foreign national. Therefore, as far as conspiracy between the accused Ilhan and accused Benjamin David is concerned, even that could not be proved by the NCB beyond reasonable doubt. On the other hand accused Benjamin David has himself given a 41 clean chit to accused Ilhan and has categorically stated right at the time when he was arrested by the NCB officials that accused Ilhan had no role to play in any of the event of this case.
64. No other proof could be placed on record to show that there was criminal conspiracy between both the accused persons for exporting drugs. The contention of the Ld. SPP for NCB that the NCB has placed on record the call details between both the accused persons is also of no help to the NCB since officials who appeared form the concerned service providers stated during their cross examination that they are not aware about the name of the customers.
65. It is not the stand of accused Benjamin David right from the time of his arrest that he did not know accused Ilhan and has maintained that he knew Ilhan only as a friend, so therefore, even if it is presumed that even accused Benjamin David and Ilhan had been talking to each other on their mobile phone that will not necessarily lead to the conclusion that it was for the purpose of hatching or carrying out conspiracy for export or possession of 42 drugs.
66. Even the diary allegedly that of accused Benjamin David and the personal documents of accused Benjamin David allegedly recovered from the accused Ilhan do not point out towards any criminal conspiracy between two accused persons as the same do not mention or point out anything regarding export or possession of drugs. The documents are personal documents like driving licence or medical papers which have been allegedly recovered from the accused Ilhan which further reflect that they were just friends or acquaintances and being only friends and acquaintances in absence of any proof pointing out towards criminal conspiracy does not make out or prove any offence.
67. Interestingly, the NCB was bound to prove that the baggage in question from which the alleged recovery was effected belonged to accused Benjamin David. Once the baggage is checked in by the concerned airlines the procedure is that the baggage tag is affixed on the baggage and the corresponding number of the said baggage tag is affixed on the stub which is 43 affixed on the air ticket of the passenger.
68. The best proof, therefore, to connect the ownership of the bag in question was the stub and the corresponding number of the said baggage number or the air ticket of the accused which strangely does not tally with number of the baggage. There is no tag or number on the baggage from where alleged recovery has been effected.
69. In a nut shell the baggage tag number which is essentially mentioned on the air ticket of the passenger is the only proof regarding ownership of the baggage of a particular person. Since, in the present case the same is missing, the best evidence and link to prove that the bag in question belonged to the accused could not be brought on record. It has also been admitted during the cross examination of PW Jyotimon, IO that he had not collected any record or recorded any statement of any of the airlines official to the effect that the baggage tag and the security tags were allotted to the accused.
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70. Therefore, the NCB failed to prove that the baggage in question belonged to accused Benjamin David. Moreover, PW Sarabjeet, who is the public witness in his examination in chief before lunch did not support the prosecution case and stated both accused were arrested at Airport, however, when he was examined after lunch he made improvements in his statement which made his testimony doubtful regarding alleged recovery from accused Benjamin David. The other Public witness namely Sanjay Sharma could not be produced by NCB as he could not be traced. It has also emerged in the statement of PW Sarabjeet that another foreign national was sitting with accused Benjamin David who has been identified by the witness as accused Ilhan, in his examination in chief before lunch and he had correctly identified him to the same foreign national present at the airport whereas when he appeared after lunch he denied the same. But he kept his stand that another foreign national was through out present during investigation who was not apprehended, but there is no mention about that foreign national in any of the proceedings drawn by NCB officials.
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71. Accused Benjamin David had also retracted his statement at the first instance when he was produced before the Ld. ASJ and had mentioned that the statements were got signed under duress from him and he had mentioned the same on the corner of his statement which had been duly signed by the Ld. ASJ.
72. In view thereof, I am of the opinion that the NCB has failed to prove any of the charges framed against accused Benjamin David beyond reasonable doubt and he is acquitted of the charged offences.
73. Coming to the recovery from accused Ilhan, the case of the NCB is that on prior information regarding accused Ilhan that there was a secret information that he was a supplier of drugs to accused Benjamin David, however, they did not have any address which was later on supplied to them by accused Benjamin David after his arrest.
A perusal of the Ex.PW3/2 which is on the basis of the 46 information regarding address of Ilhan given by accused Benjamin David, it shows that it does not mention the complete address or place of alleged residence of accused Ilhan as it does not mention as to which part of Lajpat Nagar accused Ilhan is allegedly residing.
74. It is therefore, very strange as to how the NCB officials reached the place of residence of accused Ilhan. The contention of Ld. SPP for NCB that Shri C.B. Singh had prepared the search authorization letter which finds mention regarding complete address of accused Ilhan, but even then they failed to explain as to how Shri C.B. Singh came to know about the complete address of accused Ilhan. There is no mention in the entire testimony of Shri C.B. Singh or any other witness as to how within the time gap of about 1 ½ hours they reached house of Ilhan. Even in the search authorization letter, it is mentioned that the same has been made on the basis of the intelligence report prepared on the basis of the statement of the accused Benjamin David. Therefore, it cannot be ruled out that the address was mentioned on the search authorization letter after manipulation 47 later on at any other stage.
75. The case of NCB against accused Ilhan is that recovery of 75 grams of Hashish was recovered from him along with some Indian currency. The alleged search of the premises and the said recovery has been effected in presence of one Dinesh Kumar, who is the landlord of accused Ilhan and Shri Nathu Ram and Ram Prashad, who are public witnesses. None of the above said panch witnesses has been examined by the NCB. Accused Ilhan being a foreign national it was also essential for NCB to prove that he was tenant of one Shri Dinesh Kumar. However, since Dinesh Kumar has not been examined, no rent agreement has either been seized or placed on record for the reasons best known to NCB officials which makes the recovery or stay of accused Ilhan in the house in question doubtful. Moreso since PW Sarabjeet identified accused Ilhan to be the foreign national who was arrested at the airport with accused Benjamin David.
76. None of the witnesses examined by the NCB could 48 explain as to why the rent agreement was not seized which was the best evidence to prove that the place from where the recovery of accused Ilhan was affected was actually occupied by him. This has also adversely effected the case of the NCB and makes the arrest and recovery of Hashish from accused Ilhan doubtful. Moreover, not only the panch witnesses have not been examined or produced in the court and the rent agreement was not seized by NCB officers, accused Ilhan has also led defence evidence which further strengthens his defence that of Ilhan that he has been falsely implicated in this case.
77. When accused Ilhan was produced before the Ld. ASJ he had mentioned that he had written in Hebrew that he did not understand the contents of the statements allegedly made by him and the same were got signed by him forcibly. These portion on the statement of the accused Ilhan have been signed by the Ld. ASJ.
78. The contents were also sent to the Embassy of Israel for translation and report. The report was called through NCB and 49 as per the report of Embassy of Israel it has been found that accused Ilhan had written on all his statements and documents prepared by NCB that "I do not know", "I do not understand" and "I am not aware what is written on each page". It shows that accused right at the time of his arrest did not even know as to why he has been arrested and what was being written on the papers on which he was made to sign, therefore, it cannot be said the statement before the NCB officials was made by him and therefore, question of the same being voluntary does not arise.
79. The Ld. SPP for NCB submitted that accused Ilhan has admitted in his statement that he had supplied the contraband to Benjamin David and had paid for his ticket, but this also does not help the Ld. SPP for NCB since the statement made by Ilhan before the NCB officers itself has been found to be not a voluntary statement and the fact that accused Benjamin David had already given a clean chit to accused Ilhan in his statement before the NCB officers; it is further proved that accused Ilhan had nothing to do with the present case. Neither the recovery nor the stay of accused Ilhan nor his association for the purpose of 50 criminal conspiracy with the accused Benjamin David, therefore, could be proved on record beyond reasonable doubt by the NCB officials.
81. Even, perusal of the statement of PW-13 Anil Bhardwaj and PW-14 Vijay Srivastava clearly shows that there is no mention of the fact that the money for buying ticket of accused Benjamin David was paid by accused Ilhan which further demolishes the case of the NCB.
82. I find support in my opinion from the judgment of Ritesh Chakarborty Vs. State of Madhya Pradesh reported as 2006 (3) JCC (Narcotics) 115; Francis Stenley @ Stelin Vs. Intelligence Officer, NCB 2007 (1) JCC Narcotics 1 and 1996 Criminal Law General, 2001 Mohd. Alam Khan Vs. NCB.
83. In view thereof, I am of the opinion that the NCB has failed to prove any of the charges framed against the accused Ilhan beyond reasonable doubt and he is acquitted of the charged offences.
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84. The accused persons be released, forthwith, if not required in any other case. Case property be confiscated to the State after the expiry of period of appeal. FRRO to make arrangements for the deportation of the accused persons to their respective countries. File be consigned to record room. Announced in open court.
Dated : 12th May, 2007 ( SWARAN KANTA )
Special Judge : NDPS
New Delhi