Delhi District Court
Ncb vs Manoj Kumar & Anr. on 26 August, 2023
IN THE COURT OF SUDHIR KUMAR SIROHI:ASJ
(SPECIAL JUDGE) (NDPS ACT): NEW DELHI DISTRICT:
PATIALA HOUSE COURTS:NEW DELHI
NCB Versus MANOJ KUMAR & ANR.
SC No. : 113/2017
NCB Case No. : VIII/21/DZU/2016
Date of Institution : 19.04.2016
Date of Judgment reserved on : 04.08.2023
Date of Judgment : 26.08.2026
Brief details of the case
A) CNR No. : DLND01-0005367-2017
B) Offence complained of : 22(c), 23 (c) & 29
or proved NDPS Act
C) Date of Offence : 12.01.2016
D) Name of the complainant: IO B. L. Bairwa
E) Name of the accused : (1) Manoj Kumar
S/o Sh. Hari Krishna
Mandal
r/o H. No. 41, UGF, Om
Vihar, Phase-IA
Uttam Nagar, Delhi.
(2) Virginus Ifeanyi
Emegwele
s/o Emegwele
r/o H. No. 68, FF, Left
Hand Side, Sec-31,
Faridabad, Haryana
(Proclaimed Offender
vide order dated
30.05.2018)
F) Plea of the accused : Pleaded not guilty
G) Final order : Acquittal
H) Date of Judgment : 26.08.2023
Digitally signed
SUDHIR by SUDHIR
KUMAR SIROHI
KUMAR Date:
NCB Vs. Manoj Kumar and Anr. SIROHI 2023.08.26
15:59:24 +0530
SC No. 113/2017
Page No. 1 of 30
JUDGMENT
Brief facts mentioned in the charge-sheet This judgment is passed only against accused Manoj Kumar (hereinafter called accused).
1. As per the case of prosecution, on the basis of information on 02.12.2016 one parcel was intercepted and examined at DHL, Rama Road, New Delhi and said parcel was found containing 300 gms Methamphetamine. The ID documents of accused Manoj Kumar was affixed with the parcel as Consignee. However, upon verification no person was found at the said address as mention in ID documents of Manoj Kumar. During investigation, it revealed that parcel was originally booked from Brother International Co. and was transmitted to DHL to book abroad. Accordingly, Sh. Tapan Kumar the owner of brother international company was summoned and he tendered his statement wherein he disclosed that parcel in question was booked by one Manoj Kumar. He further disclosed that Manoj Kumar made telephonic conversation with him from mobile no. 9953013127 and was asking about status of parcel. Accused Manoj Kumar, was called by Tapan Kumar and informed him that his parcel has been returned and same was to be delivered to his given address of Paschim Vihar, New Delhi but nothing was found there, to which Manoj Kumar gave his new address of Uttam Nagar. Accordingly, NCB team along with Tapan Kumar went to the house of Manoj Kumar at Uttam Nagar where accused was found and identified by Tapan Kumar as a person who had booked the parcel in question, Accordingly, accused SUDHIR Digitally signed by SUDHIR NCB Vs. Manoj Kumar and Anr. KUMAR KUMAR SIROHI Date: 2023.08.26 SC No. 113/2017 SIROHI 15:59:32 +0530 Page No. 2 of 30 Manoj Kumar was summoned, his statement was recorded wherein he disclosed that he has booked the parcel and said parcel was given to him by one Nigerian person Tony who is residing in Faridabad. Accordingly, on the revelation of accused Manoj Kumar, the NCB team reached at the house of said Nigerian person at Faridabad. The door of the house was opened by Nigerian person who introduce him as Virginus Ifeanyi Emegwele and accused Manoj kumar identified him as the person who gave the parcel in question for booking. Since both accused were found involved in drug trafficking, they were put under arrest after recording their voluntarily statements u/s 67 of the NDPS Act wherein they admitted their involvement in present crime besides the other incrementing facts, thereafter, complaint was filed.
2. On appearance of the accused, copy of documents were supplied to him. Charge for committing offence punishable under Sections 22(c), 23 (c) r/w Section 29 of NDPS Act was framed against accused by Ld. Predecessor order on 18.07.2017 and amended charge on 20.12.2022, to which accused pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined 17 witnesses. Prosecution witnesses correctly identified the accused in the court. Prosecution evidence was closed vide order dated 31.10.2022.
Prosecution Evidence:-
Only evidence of important witnesses reiterated.Digitally signed
SUDHIR by SUDHIR NCB Vs. Manoj Kumar and Anr. KUMAR KUMAR SIROHI Date: 2023.08.26 SIROHI 15:59:39 +0530 SC No. 113/2017 Page No. 3 of 30
4. PW 1: Sh. Pardeep Kumar deposed that he was posted in the Delhi Zonal Unit of NCB since November 2012. On 02.12.2016, he was present in the office of NCB at about 10 AM.
He received a telephonic information from DHL, Express Pvt. India Limited, Kirti Nagar, New Delhi from Mr. Gaurav Chaudhary thereby informing that a parcel bearing Airway bill no. 6477446835 was lying in their office, it was suspected to contain Narcotics Drug. He immediately reduced the information in writing and put up before Ms. Tulika Morang, Superintendent. On the information, she directed him to constitute a team, take action as per law (Ex. PW1/A). In pursuance to the information and directions, PW1 constituted a team consisting of himself, Sh. Manmohan Jhakmola (IO) and Sh. Babu Lal (Driver). The team collected all necessary items required for search and seizure proceedings. He collected official seal i.e. NARCOTICS CONTROL BUREAU, DZU-1 from Ms. Tulika Morang, Superintendent. The entries were made in the movement register by Ms. Tulika Morang, Superintendent. The team left for the DHL, Kirti Nagar, New Delhi in government vehicle bearing no. CH 01 GA 5491 at about 11.00 hours. They reached at DHL at about 11.45 hours. On reaching there, he met Sh. Gaurav Chaudhary, security supervisor, DHL and disclosed his identity and shared the information to which, Mr Gaurav also confirmed about the said suspicious parcel. Sh. Gaurav Chaudhary also introduced Sh. Bharat Panwar c/o R.K. Services, Arjun Nagar, New Delhi present there as the said parcel was received from his courier company. PW1 requested both the persons to join NCB team as independent witnesses during search and seizure to Digitally signed SUDHIR by SUDHIR KUMAR SIROHI KUMAR Date:
NCB Vs. Manoj Kumar and Anr. SIROHI 2023.08.26 15:59:45 +0530 SC No. 113/2017 Page No. 4 of 30 which, both of them had agreed voluntary. Before proceeding further, PW1 offered search of NCB team to both the witnesses to which, they declined politely. Thereafter, PW1 requested Sh. Gaurav Chaudhary to produce the parcel in question. Sh. Gaurav Chaudhary produced a packet in yellow DHL polythene package alongwith shipping documents. The documents of the parcel was examined. These were copy of airway bill bearing no. 6477446835, copy of invoice, driving license of consignor Manoj Kumar and copy of Voter Id-card of consignor Manoj Kumar, the airway bail (Ex. PW 1/B) & invoice (Ex. PW 1/C). The copy of Voter Id-card and driving license of consignor Manoj Kumar are marked as Mark 1 & 2. Thereafter, the parcel was opened. It was found containing a cardboard box of green, black and white colour on which, the item was mentioned as Executive Golf set. Shipping details were also mentioned on the cardboard box. The cardboard box was opened. It was found containing an aluminum box. The aluminum box was opened, two white colour golf balls and a golf stick were kept in a rubber case. The balls and the stick were examined, however, no drug was found in them. Then, the rubber packing was removed, beneath it a black colour packet was found. Its mouth was closed with adhesive tape. The packet was cut open. It was found containing white colour crystalline substance. A small amount of the said substance was tested with the help of field testing kit, it gave positive result of amphetamine. The substance alongwith packet was weighed and it came out to be 320 gms. The substance was weighed separately and came out to be 300 gms. Two representative samples of 5 gms each were drawn and put inside the transparent zip lock SUDHIR Digitally by SUDHIR signed KUMAR KUMAR SIROHI Date: 2023.08.26 NCB Vs. Manoj Kumar and Anr. SIROHI 15:59:51 +0530 SC No. 113/2017 Page No. 5 of 30 polythene pouches and again put inside two white paper envelopes and given marked as A1 and A2 respectively. Then, the mouth of the black colour packet alongwith the substance was pasted with adhesive tape and put inside the DHL yellow polythene packet. Thereafter, cardboard alongwith aluminum box containing concealment material was also kept inside the same yellow DHL polythene packet. Then, the yellow DHL polythene packet stitched in a markin cloth and given mark as Mark A. Then, the packets A1, A2 and A were pasted with white colour paper slips. Test memo in triplicate (Ex PW1/D) was also prepared and the impression of seal was also obtained on the test memo. The packets A1, A2 & A and the documents were taken into possession through a panchnama drawn at the spot, the impression of the seal was also obtained on the panchnama. Panchnama (Ex PW1/E) was read over to both the witnesses. PW1 issued a notice U/s 67 of NDPS Act (Ex PW1/F) to witness Sh. Gaurav Chaudhary to tender his statement on 12.12.2016. PW1 also issued a notice U/s 67 of NDPS Act (Ex PW1/G) to witness Sh. Bharat Panwar to tender his statement on forthwith on 02.12.2016. On 02.12.2016, witness Bharat Pawar appeared before PW1 in compliance to summons issued by him and tendered his voluntary Statement (Ex. PW1/H). He had also brought one letter, in the said letter, he had written that the parcel bearing airway bill number 6477446835 was booked by his authorized agent M/s Overseas Courier Company, Bhikajicama Place, New Delhi by their booking agent Sh. Parmanand Tiwari (Ex. PW1/I). On the basis of said information, PW1 issued notice u/s 67 NDPS Act (Ex PW1/J) to Sh. Parmanand Tiwari c/o SUDHIR Digitally by SUDHIR signed KUMAR KUMAR SIROHI Date: 2023.08.26 NCB Vs. Manoj Kumar and Anr. SIROHI 15:59:57 +0530 SC No. 113/2017 Page No. 6 of 30 Overseas Courier Company on 02.12.2016 to tender his statement. In compliance of said notice, witness Sh. Paramanand Tiwari appeared before PW1 on 02.12.2016 and tendered his voluntary Statement in his own handwriting (Ex PW1/K) wherein he disclosed that the said parcel bearing no. 6477446835 was handed over to him by Sh. Tapan Kumar of M/s Brother International Courier company. On the above said information, PW1 issued notice u/s 67 NDPS Act (Ex PW1/L) to Sh. Tapan Kumar of M/s Brother International Courier company to tender his statement. Sh. Tapan Kumar appeared before on 02.12.2016, during the course of enquiry, he disclosed that on 01.12.2016, one Manoj Kumar had booked the parcel bearing airway bill no. 6477446835 destined to Newzealand and had given two documents i.e. copy of Election I.D. Card and Driving Licence and he had also given a copy of invoice. In the further verbal enquiry, Mr Tapan Kumar disclosed that Manoj Kumar also gave two mobile numbers ending with 27 and 28. Manoj Kumar insisted to get the parcel booked by DHL Company only. He booked the parcel and got bill generated as they were not authorized agent of DHL, they handed over the parcel to Overseas courier company to further book at DHL. He further disclosed that Manoj Kumar has been calling him to seek the tracking report of the parcel booked by him. PW1 instructed him to remain in constant touch with Manoj Kumar and to inform him in that regard. PW1 further instructed him not to disclose that some drug had been recovered from his parcel so that he may not get alerted. With said instruction, he was allowed to go. All the inquiries conducted by PW1 from Mr. Tapan Kumar on Digitally signed SUDHIR by SUDHIR KUMAR KUMAR SIROHI Date: 2023.08.26 NCB Vs. Manoj Kumar and Anr. SIROHI 16:00:03 +0530 SC No. 113/2017 Page No. 7 of 30 02.12.2016 were verbally and not recorded in writing. On 02.12.2016, PW1 sent Sh. Sanjiv Kumar Sepoy to verify the address mentioned in the Driving Licence and Voter I.D. Card given as KYC Document along with the parcel. After returning from the verification, Sanjiv Kumar, Sepoy reported that the address is correct but the person Manoj Kumar was not residing at the said address (Ex. PW1/M). On 02.12.2016, PW1 submitted report U/s 57 NDPS Act to Ms. Tulika Morang, Superintendent.
On 02.12.2016, after returning from DHL Courier company, after seizure, on reaching to the office, PW1 immediately handed over official seal to the Superintendent and deposited the case property along with sample and test memo to the malkhana incharge. On 03.12.2016, PW1 was in constant touch with Mr. Tapan Kumar. In the evening, Mr Tapan informed him that he received a call from Manoj Kumar. Accused was asking about the tracking status of parcel in question to which Mr Tapan informed that the parcel booked by him has returned due to incomplete KYC. Mr Tapan further informed to Manoj Kumar that he tried to deliver his parcel at his address in Paschim Vihar but no one received the parcel there. Mr Tapan Kumar asked him to tell his proper/new address where he can return his parcel, on which Manoj Kumar told him to deliver his parcel as house no. 41, UGF, Om Vihar, Phase 1A after 8:00 PM. The said information was reduced into writing and was put up before Superintendent Tulika Morang who directed Rajiv Sherawat to constitute a team take action as per law (Ex. PW2/D). Ms. Tulika Morang, Superintendent also issued a search authorization in favour of Rajiv Sherawat (Ex. PW2/E). Sh. Rajiv Sherawat requested PW1 Digitally signed SUDHIR by SUDHIR KUMAR KUMAR SIROHI NCB Vs. Manoj Kumar and Anr. SIROHI Date: 2023.08.26 16:00:10 +0530 SC No. 113/2017 Page No. 8 of 30 to join the team as team member. PW1 informed Rajiv Sherawat background and the facts of the case and PW1 also called Mr. Tapan Kumar in the office to join the raiding party as a public witness and to identify Manoj Kumar. The raiding team consisting of himself, Anand Kumar IO, Hawaldar Mr. Bhuvnesh Kumar, Mr. R.S. Yadav and Mr. Tapan Kumar left the NCB Office at about 7:30 PM and left for Om Vihar Phase 1, New Delhi. At about 8:15 PM, they reached at house no. 41, UGF, Om Vihar, Phase 1, (Uttam Nagar) New Delhi. On knocking the door, Mr. Tapan Kumar identified the person opening gate as the same person who had booked the parcel on 01.12.2016. Sh. Rajiv Sherawat introduced the NCB Team to Manoj Kumar and disclosed that the drug had been recovered from the parcel got booked by him and asked about his identity to which he disclosed his name as Manoj Kumar. PW1 correctly identified the accused Manoj Kumar. A notice u/s 50 of the NDPS Act was issued to the accused Manoj Kumar. He was informed about legal right that if he so desire, his search can be taken before a Gazetted Officer or a Magistrate which he declined and offered that the search can be taken by any team member. He wrote the same on the notice u/s 50 NDPS Act. On his personal search no contraband was recovered, however, the original election card (Ex PX-1) and DL (Ex PX-2), whose copies were used to book the parcel in question were recovered. On further search, one visiting card of DTDC and DHL Courier company were also recovered. The said visiting card are Ex. PX-3 and PX-4. After search of the house was taken. A slip (Ex.PW1/M) was recovered on which the address of Newzealand was written to which the parcel was Digitally signed SUDHIR by SUDHIR NCB Vs. Manoj Kumar and Anr. KUMAR KUMAR SIROHI Date: 2023.08.26 SC No. 113/2017 SIROHI 16:00:16 +0530 Page No. 9 of 30 destined. All the above said documents were taken into possession by Sh. Rajiv Sherawat and a panchanama was prepared. A notice 67 of NDPS was served upon accused Manoj Kumar by IO Anant Kumar. A notice u/s 67 NDPS Act was served upon witness Tapan Kumar by PW1 and was asked to appear in the NCB Office on 04.12.2016 (Ex. PW1/N). After completion of the investigation, team returned back to the office. On 04.12.2016, Sh. Tapan Kumar appeared before PW1 and tendered his statement (Ex PW1/O) in his own handwriting and also handed over copy of the Airway bill initially booked at Brother International (Mark A-1) and photocopy of Aadhar Card of accused (Mark A-2). On 04.12.2016, PW1 was requested to join a raiding team as a member, proceedings for Faridabad by Sh. Arvind Kumar Ojha. The team consisting of Arvind Kumar Ojha, himself, Anand Kumar IO, Babu Lal Driver, along with Manoj Kumar had gone to Faridabad address i.e. house no. 68, Sec 31, Faridabad on the disclosure made by accused Manoj Kumar. At the above said address, one Nigerian National namely Virginus Ifeanyi, Enegwele was found (PO). His personal and house search was conducted and he was summoned to NCB Office. During evidence of PW1, MHC(M) produced a pullanda having case particulars i.e. VIII/21/DZU/2016 Mark A. The neck of the pullanda was tied with a plastic sutli and a paper card board was affixed which was also having the case particulars and the said card board is Ex P1. The neck of the pullanda was tied and sealed in such a way that the same cannot be opened without breaking the seal. During evidence of PW1, the pullanda was opened and it contained a yellow colour DHL polythene packet Digitally signed by SUDHIR SUDHIR KUMAR KUMAR SIROHI NCB Vs. Manoj Kumar and Anr. SIROHI Date: 2023.08.26 16:00:24 +0530 SC No. 113/2017 Page No. 10 of 30 and the mouth of the same was affixed with yellow adhesive tape. One copy of way bill no. 6477446835 was also affixed. The yellow tape was removed. On opening the said polythene packet, a black colour polythene packet and a cardboard box of green, white and black colour was found. PW1 stated that the black polythene packet was the same from which 300 gms suspected substance (Amphetamine) was recovered. The said black colour polythene packet was opened and it contained white crystalline substance and PW1 stated that it was the same which was recovered from the said suspected parcel. The crystalline powder along with black colour plastic packing is Ex P2. From the said polythene packet, a golf set which was packed in silver colour metallic box and kept in a cardboard box and the silver colour metallic box is Ex P3. The white crystalline powder which was concealed in the metallic box. During evidence of PW1, a white envelope marked A1 having case particulars i.e. VIII/21/DZU/2016 and CLD no. 288 (n) dt 05.12.2016 of CRCL. PW1 stated that it was the one of the sample which was prepared at the spot (Ex P4). During evidence of PW1, a white envelope marked A2 having case particulars i.e. VIII/21/DZU/2016 and sealed with seal of NARCOTICS CONTROL BUREAU DZU 1 and was also having signatures of PW1 and that of two public witnesses. The same was opened and it contained one small zip lock pouch which contained white crystalline substance. PW1 stated that it was the same sample which was prepared at the spot from the case property. The white crystalline powder along with zip lock and the envelope is Ex P5.
SUDHIR Digitally by SUDHIR signed KUMAR Date: 2023.08.26 KUMAR SIROHI SIROHI 16:00:29 +0530 NCB Vs. Manoj Kumar and Anr.
SC No. 113/2017 Page No. 11 of 305. PW2 Ms. Tulika Morang deposed that on 02.12.2016 at about 10:00 am IO/Pradeep had brought a written information that a parcel was lying in the DHL, Kirti Nagar and the said parcel was suspected to contain some narcotic drug. she directed IO/Pradeep to constitute a team and take action. The said information was Ex. PW 1/A. She issued seal NARCOTIC CONTROL BUREAU, DZU-1 to IO/Pradeep. At about 10.30 AM, the seal was returned to her by the IO/Pradeep. She made entry in the seal movement register and entries were duly signed by her. The entry on the photocopy of the seal register in this respect was Ex. PW 2/A and the entry was made from point A1 to A2. The case property Mark A, samples Mark A1 and A2 and test memo in triplicate were deposited by IO/Pradeep at about 3.50 PM and entries were made in the malkhana register, photocopy (Ex. PW 2/B) and entries were made from point A1 to A2. On 05.12.2016, sample Mark A1 alongwith test memo in triplicate were sent to CRCL through Sh. A.K. Garg (sepoy). On 02.12.2016, seizure report U/s 57 of NDPS Act (Ex. PW 2/C) was submitted to her by IO/Pradeep. On 03.12.2016, information was put up before her by IO/Pradeep that Mr. Tapan Kumar, booking person had informed that said parcel was originally got booked at Brother International, Bikaji Cama Place on 02.12.2016 by one Manoj Kumar. Mr. Tapan Kumar further informed IO/Pradeep that said Manoj Kumar was making calls on phone and inquiring about the tracking of the said parcel. Mr. Tapan Kumar further informed IO/Pradeep that he had told Manoj Kumar that KYC of the said parcel was not complete and address given in the ID by which the said parcel was got booked, Digitally signed by SUDHIR SUDHIR KUMAR NCB Vs. Manoj Kumar and Anr. KUMAR SIROHI Date: 2023.08.26 SIROHI 16:00:36 +0530 SC No. 113/2017 Page No. 12 of 30 the said parcel was returned as no one collected the said parcel. Mr. Tapan Kumar further informed IO/Pradeep that Manoj told him that he would collect the parcel from Uttam Nagar. On the said information (Ex. PW 2/D), PW2 directed Rajeev Sahrawat to constitute a team and take action. PW2 also issued seal of Narcotic Control Bureau, DZU-2 to Rajeev Sahrawat at about 6.45 PM and entries were made in the seal movement register and the said seal was returned to PW2 by Rajeev Sahrawat at about 10 PM. PW2 also issued a search authorization (Ex.PW2/E) in favour of Rajeev Sahrawat and after returning, Rajeev Sahrawat submitted a report (Ex.PW2/F) in pursuance of the search authorization. Entries in respect of seal movement register are from point B1 to B2 on Ex.PW2/A. On 04.12.2016 information (Ex.PW2/G) was put up before PW2 by IO Anand Kumar and PW2 marked the same IO Arvind Kumar Ojha to constitute a team and take action as per law. In the said information it was stated that Manoj Kumar had disclosed from which 300 gm of amphetamine was recovered which was given to him by a Nigerian Person Tony residing in Faridabad and Manoj could identify him. PW2 issued seal of NARCOTICS CONTROL BUREAU DZU 3 to IO Arvind Ojha and entries were made in seal movement register and the copy of said entry was Ex.PW2/H from point C1 to C2. IO Arvind Ojha constituted a team consisting of IO Pradeep Kumar, IO Anand Kumar, IO Rajeev Sehrawat and driver Babu Lal and she also accompanied the team. The team left the NCB office R.K. Puram at about 01.00 PM in a vehicle bearing no. DL12CK 7897 alongwith accused Manoj Kumar and reached Faridabad at about 02.40 PM.
Digitally signed by SUDHIR SUDHIR KUMAR
KUMAR SIROHI
NCB Vs. Manoj Kumar and Anr. SIROHI
Date: 2023.08.26
16:00:44 +0530
SC No. 113/2017
Page No. 13 of 30
Upon reaching there, IO Arvind Kumar Ojha showed his identity and shared the information with owner of the house, Ramanjeet Singh where Toni was residing and also requested him to become public witness at the time of raid and he agreed. They went upstairs on the first floor and knocked the door and the said door was opened by one foreign national and Manoj Kumar identified him as Toni, the same person who got booked the parcel. The person told his name as Virginus Ifeanyi Emegwele. After completing the formalities, his personal search was taken but nothing was recovered. After that his house was searched but nothing objectionable was recovered. A panchnama in this respect was prepared. A notice u/s 67 NDPS Act (marked X1) given to Virginus Ifeanyi Emegwele. The seal of NARCOTICS CONTROL BUREAU DZU 3 was returned to PW2 by IO on reaching the office and entry was made (Ex.PW2/H). A report u/s 57 regarding the arrest of accused Manoj Kumar was submitted by IO Anand Kumar on 05.12.2016 and arrest report regarding the accused Virginus Ifeanyi Emegwele was submitted by IO Arvind Kumar Ojha (Ex.PW2/I and Ex.PW2/J). On 05.12.2016 a letter was written to Ministry of External Affairs regarding arrest of accused Virginus Ifeanyi Emegwele (Ex.PW2/K). Copy of letters were sent to Ministry of Home Affairs and FRRO, R.K. Puram. On 26.12.2016 PW2 sent a letter to Ministry of External Affairs regarding verification of passport and visa of accused Virginus (Ex.PW2/L) and the reply (Ex.PW2/M). An e-mail was also received from MEA (Ex.PW2/N collectively]. On 26.12.2016 PW2 sent a letter to FRRO regarding the arrival and departure report of the accused Virginus and reply received from Digitally signed by SUDHIR SUDHIR KUMAR KUMAR SIROHI Date: 2023.08.26 NCB Vs. Manoj Kumar and Anr. SIROHI 16:00:52 +0530 SC No. 113/2017 Page No. 14 of 30 FRRO. The letter sent to FRRO (Ex.PW2/O) and reply received from FRRO (Ex.PW2/P). On the same day PW2 sent a letter to Central Foreigner Bureau and the said letter (Ex.PW2/Q) and reply was received (Ex.PW2/R collectively). On 15.12.2016 PW2 sent a letter to SHO PS Uttam Nagar (Ex.PW2/S).
6. PW3 Sh A K Garg, Sepoy, CISF Unit, NTPC, Tapovan, Badrinath, Uttarakhand deposed that on 05.12.2016 he was posted as a sepoy in NCB, DZU, New Delhi. On that day Ms Tulika, Superintendent, NCB, DZU handed over him one sample mark A1 along with duplicate test memo in her office along with a forwarding letter and asked him to deliver the same to CRCL. He handed over the sample mark A1 along with test memo in duplicate and forwarding letter to a officer of CRCL and he gave him a receipt. The forwarding letter (Ex PW3/A), test memo (Ex PW1/D) and receipt (Ex PW3/B) and the seals on the samples were intact.
7. PW4 Sh Jai Kishan deposed that on 27.12.2017 he was posted as a Superintendent, NCB, DZU, New Delhi. On that day he received a report from CRCL and he marked the same to IO malkhana and IO of the case (Ex PW4/A).
8. PW5 Sh Ram Kumar Chauhan, Asstt Chemical Examiner, CRCL, New Delhi deposed that on 05.12.2016 he was posted as Asstt Chemical Examiner with CRCL, Pusa Road, New Delhi. On that day, Sh A K Garg, Sepoy came to him along with one sample Mark A-1 with four lacs seals along with test memo in duplicate and a forwarding letter. Firstly, Sh A K Garg met with their incharge Smt Meenakshi Gupta who received the same and marked the same to PW5 for giving receipt.
SUDHIR Digitally by SUDHIR signed NCB Vs. Manoj Kumar and Anr. KUMAR KUMAR SIROHI Date: 2023.08.26 SC No. 113/2017 SIROHI 16:00:57 +0530 Page No. 15 of 30
9. PW8 Dr. T.C. Tanwar, Chemical Examiner deposed that in February, 2017, sample no. CLD-288(N) dated 05.12.2016 was taken out from strong room on 16.02.2017. Sample was marked as A1 found in sealed and intact condition. Each seal affixed on sample packet tallied with the facsimile of seal given on test memo. On basis of chemical, chromatographic, spectroscopic analysis, it was concluded that sample under reference answered positive test for methamphetamine hydrochloride. After that remnant sample was sealed with seal of CENTRAL REVENUE CONTROL LABORATORY GOVT. OF INDIA-2 and returned with test report to NCB dated 17.02.2017 (Ex. PW8/A).
10. PW9 Sh. Tapan Nayak deposed in line of PW1. PW9 also deposed that said parcel has to be sent through overseas logistic as per request of accused and through DHL. PW9 proved recovery of parcel booking (Ex.PW9/X) and submitted that original receipt was given to accused.
11. PW-10 Sh. Anand Kumar deposed that about being part of team under IO Rajeev Sehrawat on 03.12.2016 and deposed in line of PW1. PW2 further deposed that information about Tony @ Virginus Ex.PW-2/G was reduced in the writing on 04.12.2016 and submitted to Ms. Tulika Morang, Superintendent and Ms. Tulika Morang, directed Arvind Kumar Ojha to consititute a team and take action as per law. Sh. Arvind Kumar Ojha asked PW10 to join the team and PW10 along with Arvind Kumar Ojha IO, Rajeev Sehrawat IO, Pradeep Singh IO and Driver Babu Lal. Ms. Tulika Morang Superintendent was supervising the operation and Manoj Kumar also accompanied them. The team left the Digitally signed by SUDHIR SUDHIR KUMAR NCB Vs. Manoj Kumar and Anr. KUMAR SIROHI Date: 2023.08.26 SIROHI SC No. 113/2017 16:01:04 +0530 Page No. 16 of 30 NCB Office at about 1300 hours in a Government vehicle DL-12 CK-7987 and reached at the address given by Manoj Kumar at about 1440 hours. On reaching there Sh. Arvind Kumar Ojha called owner of house and knocked the house. A person having black complexion opened the door and that person was identified by accused Manoj as Tony who gave parcel to him. On being asked he disclosed his name as Virgines Ifeaneyi Emegwale. While informed about the information and notice under Section 50 NDPS was given to him by Sh. Pradeep Singh, IO. Nothing was recovered from him. The search of his house was conducted but nothing objectionable was recovered. The panchnama was prepared which was (Mark-X1). After that the team returned back to the office. PW10 completed the statement (Ex.PW-10/D) of accused Manoj Kumar. On the basis of his statement PW10 arrested the accused persons.
12. PW11 Sh Gaurav Choudhary deposed that he was working as a Manager in DHL Express India Pvt Ltd and posted at Rama Road, Kirti Nagar, Delhi and deposed in line of PW1 w.r.t. incident of 02.12.2016 w.r.t. recovery of parcel and contraband.
13. PW12 Sh Bharat Pawar deposed that on 02.12.2016 he was working as a driver with R K Services. He had gone to DHL, Rama Road, near Patel Nagar, Delhi. He was called by Mr. Pradeep Singh of NCB. Gaurav Chaudhary was also there. Mr. Pradeep called PW12 to stand as a witness. Mr. Pradeep Singh asked Gaurav Chaudhary to bring one parcel. Mr. Gaurav Chaudhary brought the parcel. The said packet was sealed by tapes of DHL. After that PW12 deposed about recovery of Digitally signed by SUDHIR SUDHIR KUMAR NCB Vs. Manoj Kumar and Anr. KUMAR SIROHI Date: 2023.08.26 SC No. 113/2017 SIROHI 16:01:11 +0530 Page No. 17 of 30 contraband from parcel in line of PW1 & PW11. PW12 also gave his ID and submitted the list of the parcels booked by Overseas Logistics. PW12 also wrote a letter already Ex.PW1/I in which PW12 sated that Sh. Armanand Tiwari was authorized by DHL and who had forwarded this parcel to DHL.
14. PW15 Sh. A.K. Ojha deposed that on 04.12.2016 one information (Ex.PW2/G) was marked to me by Ms. Tulika Morang, Superintendent with direction to constitute a team and take necessary action as per law. On the basis directions, he had constituted a team consisting of himself, IO Anand Kumar, IO Rajiv Sehrawat, IO Pradeep Singh. He had collected seal of NARCOTICS CONTROL BUREAU DZU 3 from the superintendent. He had also collected other articles like stationery, weighing machine, DD kit, etc. and left the NCB office at about 01.00 PM for H.No. 68, Sector-31, Faridabad, Haryana by the government vehicle and reached there at about 02.40 PM. Accused Manoj Kumar also accompanied the team and on his pointing out the team was moving for the abovesaid given address. Superintendent Tulika Morang was also accompanying the team as superintendent. Driver Babu Lal was driving the vehicle. After reaching the abovesaid house, Sh. Ramanjeet Singh, owner of the house was called and he was introduced with the team members and informed about the purpose of visit of the team. Ramanjeet Singh was also requested to join the raiding team as independent witness to which he had joined. On the pointing out of accused Manoj Kumar, the team proceeded for first floor of the said house, the door of the first floor was knocked and same was opened by one foreign national Digitally signed by SUDHIR SUDHIR KUMAR KUMAR SIROHI NCB Vs. Manoj Kumar and Anr. Date: 2023.08.26 SIROHI 16:01:16 +0530 SC No. 113/2017 Page No. 18 of 30 and he was identified by accused Manoj Kumar as Tony. The said Tony was also apprised about the purpose of visit. During preliminary inquiries, the said Tony disclosed his name as Virginus Ifeanyi Emegwele. Notice u/s 50 NDPS Act (Ex.PW15/A) was served upon the said Virginus Ifeanyi Emegwele whereby accused Virginus was apprised about his legal right that search could be conducted in presence of gazetted officer or magistrate to which accused Virginus declined in writing that accused Virginus did not want the presence of magistrate or gazetted officer and NCB officer could take search. Before starting search, NCB officials offered their personal search to the accused as well as independent witness and same was declined by accused persons. Thereafter search of first floor of the said house was conducted but nothing objectionable was recovered. The search proceedings were recorded in the panchnama dated 04.12.2016 (Ex.PW15/B). Notice u/s 67 NDPS Act was served upon accused Virginus Ifeanyi, (Ex.PW15/C). On 05.12.2016, accused Virginus Ifeanyi tendered his voluntary statement u/s 67 NDPS Act (Ex.PW15/D). During statement of accused Virginus Ifeanyi, he submitted copy of his passport (Ex.PW15/E). On 05.12.2016 vide arrest memo (Ex.PW15/F) accused Virginus Ifeanyi was put under arrest. On the same day, PW15 prepared arrest report qua accused Virginus Ifeanyi and same was put up before Ms. Tulika Morang, Superintendent and (Ex.PW2/J). The seal was deposited back with seal incharge and entry in this regard (Ex.PW2/H).
15. PW16 Sh Rajeev Sahrawat deposed that on 03.12.2016 he was posted at NCB, DZU, Delhi as IO. On that day Digitally signed SUDHIR by SUDHIR KUMAR KUMAR SIROHI NCB Vs. Manoj Kumar and Anr. Date: 2023.08.26 SIROHI 16:01:23 +0530 SC No. 113/2017 Page No. 19 of 30 information dated 03.12.2016 (Ex PW2/D) was marked to him by superintendent Ms Tulika Morang. Search authorization (Ex.PW2/E) was issued to PW16 by superintendent Ms Tulika Morang. The said search authorization was issued for the purpose of search at H. No. 41, UG floor, Om Vihar, Phase-IA, Uttam Nagar, New Delhi. In compliance of said information and direction of superintendent, PW16 constituted a team consisting himself, IO Anand Kumar, Pradeep Singh, Hawaldar Bhavnesh Kumar and driver R S Yadav. PW16 collected seal of NARCOTICS CONTROL BUREAU DZU-2, besides that he also collected other articles like DD kit, weighing machine, stationery etc and left the NCB office for abovesaid house in govt vehicle bearing no. CH 01GA5143 at about 7pm and reached there at about 8.15pm. Besides the abovesaid team members, Sh Tapan Kumar, booking clerk of Brother International courier company was also accompanied with them. After reaching there, they identified the house and knocked door. The door was opened by a person and said person was identified by Mr. Tapan Kumar as the same who had booked the parcel no. 6477446835. On being asked the said person, he disclosed his name as Manoj Kumar S/o Hari Krishan Mandal, he also disclosed that he had booked the parcel no. 6477446835 with Brother courier company. They disclosed their identity and purpose of visit. Notice u/s 50 NDPS Act (Ex.PW10/A) was served upon Manoj Kumar by IO Anand Kumar, whereby he was apprised about his legal rights, in response to the same, he replied on the notice itself that he does not want presence of Gazetted Officer/Magistrate and any NCB officer can take his search.
Digitally signed SUDHIR by SUDHIR
KUMAR KUMAR SIROHI
Date: 2023.08.26
NCB Vs. Manoj Kumar and Anr. SIROHI 16:01:33 +0530
SC No. 113/2017
Page No. 20 of 30
During personal search of accused Manoj Kumar, nothing incriminating was recovered. Before personal search of accused Manoj Kumar, he was asked to take search of the raiding team members and same was declined by him. Thereafter search of his house was conducted. During search of house, original election card and DL were recovered whose copies were used to book the parcel in question. The election card (Ex.PX1), DL (Ex.PX2). One visiting card of DTDC and DHL courier company were also recovered (Ex.PX3 and ExPX4). One slip bearing address of New Zealand to which the parcel was destined was also recovered (Ex.PW1/M). The recovered documents were taken into possession for further investigation. Notice u/s 67 NDPS Act was issued to Manoj Kumar by IO Anand Kumar and to Tapan Kumar by IO Pradeep Singh. After completion of search proceedings, they came back to NCB office. PW16 prepared execution report (ExPW2/F) and same was put up before superintendent Ms Tulika Morang after coming back to NCB office. The seal was deposited back with seal incharge against proper entry in seal register. On 04.12.2016 PW16 joined the raiding team headed by Sh A K Ojha and then deposed in line of PW15 (Mr. A. K. Ojha) Statement of the accused:
16. Statement of the accused Manoj Kumar was recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in evidence were put to the accused, to which accused denied all the incriminating circumstances and did not opt defence evidence, hence defence evidence was closed.
Digitally signedSUDHIR by SUDHIR KUMAR SIROHI KUMAR Date:
NCB Vs. Manoj Kumar and Anr.
SIROHI 2023.08.26
SC No. 113/2017 16:01:46 +0530
Page No. 21 of 30
Arguments:
17. Ld. SPP for NCB has argued that by deposition of PW11 Mr. Gaurav Chaudhary, PW12 Mr. Bharat Prashar and IO PW1 Mr. Pradeep Kumar, it has been proved that parcel was containing 300 grams of methamphetamine and by the CRCL report Ex.PW8/A, the substance recovered has been confirmed as methamphetamine hydrochloride. It is further argued that by evidence of PW9 Mr. Tapan Kumar it has been proved that accused Manoj booked the parcel and gave his voter-ID card with driving licence for booking the parcel. It is also argued by Ld. SPP for NCB that NCB has proved its case beyond reasonable doubt therefore, accused Manoj Kumar may be convicted.
18. Ld. counsel for accused Manoj argued that NCB has failed to prove its case beyond reasonable doubt. It is further argued by Ld. Counsel for accused that there is discrepancy in the evidence of NCB witnesses, therefore, the evidence of NCB witnesses can not be relied. Ld. Counsel for accused Manoj further argued that PW1 IO Pradeep has deposed that the accused Manoj insisted to book the parcel through DHL company only but in the bill Mark A of Brother's international courier the Fedex has been ticked instead of DHL (Ex.PW9/X), the weight of parcel has been mentioned as 2.1 and the parcel has been originated from Delhi to New Zealand while in Ex.PW1/9 the parcel was booked by DHL and the weight of parcel in DHL Receipt (Ex.PW1/B) has been mentioned as 1.8kg therefore, there is discrepancy in the courier service provider name as well as in the weight of parcel in the document of NCB, the parcel was in possession of PW9 Mr. Tapan therefore, in the light of difference of weight there is SUDHIR Digitally by SUDHIR signed NCB Vs. Manoj Kumar and Anr.
KUMAR KUMAR SIROHI
Date: 2023.08.26
SC No. 113/2017
SIROHI 16:01:53 +0530
Page No. 22 of 30
reasonable doubt that PW9 Mr. Tapan has tampered with the parcel. It is further argued by Ld. Counsel for the accused that PW Mr. Tapan was given notice u/s 67 of NDPS Act to join on 04.12.2016 or 02.12.2016 and there is no notice to join on 03.12.2016 but Mr. Tapan has been cited as a witness in Panchanama dated 03.12.2016 (Ex.PW16/A), therefore this also shows that NCB officials have tried to save PW Mr. Tapan in order to falsely implicate the accused. It is also argued by Ld. Counsel for accused that the sample in this matter has been drawn in violation of Section 52A NDPS Act as the same has not been drawn before the Ld. Magistrate. It is further argued that PW11 Mr. Gaurav chaudhary who is also a witness of seizure of Narcotics Substance given report then on opening of plastic packet some green colour powder was found but as per panchnama it was white in colour. It is further argued that PW11 did not depose about the preparation of panchnama or identifying his signature on the panchnama (Ex.PW1/E) nor the panchnama was shown to the witness. It is further argued by Ld. Counsel for accused that PW12 Mr. Bharat Pawar is also a witness of seizure but the case property and sample was not shown to witness and objection was raised during examination when during cross examination the parcel was shown to the witness. It is also argued by Ld. Counsel for accuse that PW12 Mr. Bharat Pawar during cross examination has deposed that he was called by NCB official Mr. Pradeep to reach at DHL office by 08:00 am while PW1 IO Pradeep has deposed that when he reached at DHL Office at about 1145 hours then he met Mr. Gaurav Chaudhary security supervisor and PW11 Mr. Gaurav Chaudhary introduced Digitally signed SUDHIR by SUDHIR NCB Vs. Manoj Kumar and Anr. KUMAR KUMAR SIROHI Date: 2023.08.26 SC No. 113/2017 SIROHI 16:01:58 +0530 Page No. 23 of 30 PW12 Mr. Bharat Pawar to him, therefore, this shows that there is contradiction with respect to presence of PW12 Mr. Bharat Pawar and he is a planted witness. It is also argued by Ld. Counsel for accused that no statement of Mr. Tapan was recorded on 02.12.2016, therefore, the whole case of NCB is doubtful and prays for acquittal of accused Manoj.
19. Ld. Counsel for accused Manoj relied upon following judgments/orders:-
a) Simarjit Singh Vs. State of Punjab Riminal Appeal no.
1443/2023 decided by Hon'ble Supreme Court of India decided on 09.05.2023
b) Simarjet Singh Vs. State of Punjab CRAS No. 2030/2006 by Hon'ble Supreme Court of India decided on 31.08.2022
c) Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat (2000) 2 Supreme Court Cases 513
d) Naresh Kumar @ Nitu Vs. State of Himachal Pradesh 2017 (3) JCC (Narcotics) 137
e) Rajesh Kumar @ Sanjay Vs. State of NCT of Delhi 2014 (3) JCC (Narcotics) 156.
Discussion:
20. The case of NCB is that the accused booked the parcel on 01.12.2016 at M/s Brother International courier company where PW9 Mr. Tapan Kumar completed the formalities of booking parcel and thereafter parcel was sent by M/s Brother's International courier to M/s Overseas Courier company Bhikaji Cama Palace where Mr. Parmanand Tiwari received he parcel and then the parcel was sent by M/s Overseas Company to R. K. Services and from R. K. Services to DHL where its recovery was effected in presence of PW11 Mr. Gaurav Chaudhary and PW12 Digitally signed by SUDHIR SUDHIR KUMAR NCB Vs. Manoj Kumar and Anr. KUMAR SIROHI Date: 2023.08.26 SC No. 113/2017 SIROHI 16:02:05 +0530 Page No. 24 of 30 Mr. Bharat Parashar (R. K. Services). It is further the case of NCB that the contents of parcel (narcotics substance) was given by accused Virginus Ifeany (PO) to the accused Manoj, but ironically the complaint and disclosure statement of Virginus Ifeany is different as in the complaint Ex.PW14/T in para 34 it is mentioned that "on 04.12.2016 Virginus Ifeany Emegwele appeared in the NCB office at R. K. Puram, New Delhi and made his voluntary statement before Sh. Arvind Kumar Ojha, IO, NCB in his own handwriting duly signed by him and in his statement he admitted that he contacted Manoj Kumar on mobile no.
9968101287 through his mobile no. 7838157674 and gave the said parcel having 300 grams of Ephedrine to Manoj Kumar for booking and the said drug was given to him by one blessed sun and he also gave money to him", therefore as per said para of complaint and disclosure statement of accused Virginus Ifeany (Ex.PW15/T), he gave 300 grams of ephedrine to Manoj and not methamphetamine which was recovered in this matter, therefore, the case of NCB is itself is in contradiction as the person who has been alleged as source of narcotics substance to accused Manoj has stated altogether different substance then the substance recovered.
21. As per PW9 Mr. Tapan, accused Manoj gave parcel to him for booking and the PW9 has deposed that accused Manoj exercised the option to book the parcel through FedEx while PW1 IO Pradeep has stated that the accused Manoj insisted to book the parcel by DHL company only. The receipt issued by PW9 at the time of booking the parcel at M/s Brother International Courier Company (Ex.PW9/X) does not bear the Digitally signed by SUDHIR SUDHIR KUMAR KUMAR SIROHI Date: 2023.08.26 NCB Vs. Manoj Kumar and Anr. SIROHI 16:02:11 +0530 SC No. 113/2017 Page No. 25 of 30 signature of receiver and PW9 has also affirmed during his cross examination that Ex.PW9/X does not bears his signature and he is the issuer of that receipt. The weight of parcel in Ex.PW9/X when it was booked at Brother's International was 2.1 kg and the courier agency opted was FedEx, PW9 has also deposed same regarding courier booked at Brother's International but ironically at the place where the courier was recovered it was found booked through DHL Courier company and the weight of parcel came down to 1.8kg (Ex.PW1/B) from 2.1 kg. There is no explanation on record by the NCB how the courier company changed from FedEx to DHL and how the weight of parcel came down from 2.1 kg to 1.8kg. There was no such material in the parcel which can reduce or increase weight due to moisture content.
22. M/s Brother's International whose office at Bhikaji Cama Place gave parcel in question to M/s Overseas Courier company Bhikaji Cama Place but there is no document on record to this effect that parcel in question was given by M/s Brother's International to M/s Overseas Courier company nor the person who received the parcel from Brother's International at M/s Overseas company namely Mr. Parmanand Tiwari has been examined as a witness by the NCB for the reason best known to the NCB. In addition to this, parcel was given by M/s Overseas to R. K. services and there is no document on record to this effect, ultimately R. K. Services handed over parcel to DHL, accordingly, when there is change in courier agencies and change in weight of parcel therefore it raises doubt on the case of NCB.
23. As per PW1 Mr. Pradeep Kumar IO, PW9 Mr. Tapan Kumar was given notice 12.02.2016 to join the investigation but Digitally signed SUDHIR by SUDHIR NCB Vs. Manoj Kumar and Anr. KUMAR KUMAR SIROHI Date: 2023.08.26 SC No. 113/2017 SIROHI 16:02:17 +0530 Page No. 26 of 30 no statement of PW9 Mr. Tapan Kumar was recorded on 02.12.2016 and on 3.12.2016, the IO/PW2 was in constant touch with Mr. Tapan Kumar, after receiving the phone call from accused Manoj Kumar to deliver the parcel back at house no. 41, UGF Om Vihar, Phase-1A, the accused Manoj Kumar was apprehended, but there is no notice to the witness PW9 Mr. Tapan Kumar to join the investigation on 03.12.2016. The statement u/s 67 NDSP Act of PW9 Mr. Tapan was recorded on 04.12.2016 (Ex.PW1/O) while notice to attend proceedings on 04.12.2016 was given on 02.12.2016 (Ex.PW1/N) but notice bears the date as 02.12.2016 at point X1 (given at the time of judgment) and the date with signature of PW1 Mr. Pradeep Singh at point A is having mentioning of 03.12.2016, therefore, there is difference of dates in notice u/s 67 of Mr. Tapan Kumar and PW9 Mr. Tapan Kumar is very crucial witness in this matter as the alleged parcel was received from accused by the PW9 Mr. Tapan Kumar and the parcel remains in his possession when the weight of parcel changed. PW9 Mr. Tapan Kumar also deposed that 02.12.2016 he was called at the office of DHL but the IO PW1 has never deposed that PW1 was called at the office of DHL on 02.12.2016 i.e. the date when the parcel was recovered. There is also discrepancy in the evidence of PW12 Mr. Bharat Pawar as he deposed during cross examination that he was called by NCB officical to reach DHL office Rama Road, Near Patel Nagar at about 08.00 am and he was called by IO Pradeep Singh but PW1 Mr. Pradeep Kumar IO of the case has given a totally different version and he stated that PW11 Mr. Gaurav Chaudhary who was the manager of DHL introduced PW12 Mr. Bharat Pawar of R. Digitally signed SUDHIR by SUDHIR KUMAR SIROHI NCB Vs. Manoj Kumar and Anr. KUMAR Date:
SC No. 113/2017 SIROHI 2023.08.26
16:02:29 +0530
Page No. 27 of 30
K. Courier services and PW12 was already present there. PW1 has never deposed that he never himself called PW12 Mr. Bharat Pawar to reach at DHL Courier and PW12 is the alleged independent witness therefore his presence at DHL office is itself doubtful at time of recovery of parcel.
24. It is the version of PW9 that accused Manoj Kumar called him on 03.12.2016 to enquire about the parcel and thereafter the accused Manoj was apprehended as the accused Manoj told his address but ironically no CDR of accused Manoj or PW9 Tapan has been obtained by the IO for the reason best known to the IO to prove fact that accused called PW9 to inquire about parcel.
25. In the judgment of Simarjit Singh Vs State of Punjab, SLP No. 1958/2023 dated 09.05.2023 Hon'ble Apex, it was held: -
5. The learned counsel appearing for the appellant relied upon a decision of this Court in the case of Union of India v. Mohanlal & Anr. He submitted that the prosecution is vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub-section 2 of Section 52A of the NDPS Act. He also pointed out that the examination-in-Chief of PW-7 SI Hardeep Singh which shows that the samples were drawn immediately after the seizure.
6.The learned counsel appearing for the respondent- State supported the impugned judgments.
7.We have perused the evidence of PW-7 Hardeep Singhin which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.
8.In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case, it was held thus:
"15.It is manifest from Section 52-A(2)include(supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest SUDHIR Digitally by SUDHIR signed NCB Vs. Manoj Kumar and Anr. KUMAR KUMAR SIROHI Date: 2023.08.26 SC No. 113/2017 SIROHI 16:02:37 +0530 Page No. 28 of 30 police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16.Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer- in-charge of the police station or the officer empowered,the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence,which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words,the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17.The question of drawing of samples at the time of seizure which, more often than not,takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
9.Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the Digitally signed SUDHIR by SUDHIR KUMAR SIROHI KUMAR Date:
NCB Vs. Manoj Kumar and Anr. SIROHI 16:02:42 +0530 2023.08.26 SC No. 113/2017 Page No. 29 of 30 prosecution's case that substance recovered was a contraband.
10. Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence.
26. In the present case also as per deposition of PW1 Mr. Pradeep Kumar (IO) samples were drawn at spot after recovery of parcel, in violation of law laid down of Hon'ble Apex Court in Mohanlal Judgment with respect to non compliance of Section 52A NDPS Act and confirmed again in judgment of Simarjit (supra), therefore, it raises a doubt on the case of prosecution that the substance recovered from the parcel was contraband.
Final verdict:
27. In view of the abovesaid discussions, various fatal contradictions and violation of mandatory provision Section 52A NDPS Act, the NCB has failed to prove its case, hence, accused Manoj Kumar is acquitted of the offence under Sections 22(c), 23(c) r/w Section 29 NDPS Act. Manoj Kumar is directed to furnish bail bond u/s 437-A in the sum of Rs. 50,000/- with one surety of like amount. Separate order has been passed for compliance of Section 437-A CrPC.
Announced in the open court
on 26.08.2023 SUDHIR Digitally signed by
SUDHIR KUMAR SIROHI
KUMAR Date: 2023.08.26
SIROHI 16:02:48 +0530
(SUDHIR KUMAR SIROHI)
ASJ (SPECIAL JUDGE) NDPS Act,
New Delhi District, PHC, ND
NCB Vs. Manoj Kumar and Anr.
SC No. 113/2017
Page No. 30 of 30