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Delhi High Court

Ncb vs Rozen Cohen @ Halloo on 9 January, 2017

Author: S.P.Garg

Bench: S.P.Garg

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


                                   RESERVED ON : 19th OCTOBER, 2016
                                    DECIDED ON : 9th JANUARY, 2017

+                 CRL.A.1449/2013 & CRL.M.A.No.5662/2016
        NCB                                                   ..... Appellant
                              Through :    Mr.Sourabh Sachdeva, Proxy
                                           Counsel.
                              versus
        ROZEN COHEN @ HALLOO                                  ..... Respondent
                              Through :    Mr.Yogesh K.Saxena, Advocate with
                                           Ms.Priya Saxena & Mr.Sikandar
                                           Azam Khan, Advocates.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Present appeal has been preferred by Narcotics Control Bureau (in short 'NCB') to challenge the legality and correctness of a judgment dated 28.02.2013 of learned Spl. Judge NDPS in Sessions Case No.174/08 pertaining to case file No.VIII/40/DZU/2006 registered under Section 20(b)(ii)(C) and 23 NDPS Act by which the respondent was acquitted of the charge. The appeal is contested by the respondent.

2. I have heard the learned counsel for the parties and have examined the file minutely.

3. Briefly stated, allegations against the respondent were that on 27.07.2006 at about 1330 hours PW-1 (Ajay Kumar), Intelligence Officer, Crl.A.1449/2013 Page 1 of 15 received a secret information from DHL office that a parcel bearing airways bill No.1403649730 destined for Telaviv, Israel booked from Udaipur lying at DHL Express Pvt. Ltd. office at 40, Okhla Industrial Estate-III, New Delhi is suspected to contain Hashish. The said information was conveyed to Superintendent NCB - R.R.Kumar who directed PW-1 (Ajay Kumar) to constitute a raiding team and take necessary legal action.

4. Further case of the prosecution is that pursuant to the secret information the raiding team arrived at DHL Express Pvt. Ltd. office and met Mahesh Chand Pathak, Supervisor. Anish Khan, Supervisor was associated as member of the recovery team. On opening the parcel, it was found to contain three golden plated wooden tables of different sizes. On opening the top of the tables, it was found to contain some black substance wrapped in packets. Six packets were found in the smallest table and seven and nine packets respectively were found in other two tables. The total weight of the entire substance came to be 8.700 kg. Small quantities of the substance were taken as representative samples. Necessary seizure memos were prepared. Both the independent witnesses Mahesh Chand Pathak and Anish Khan were asked to appear before the NCB to record their statements under Section 67 NDPS Act. The Investigating Officer submitted seizure report under Section 57 of the Act. On 27.07.2006 and 28.07.2006, Anish Khan and Mahesh Chand Pathak recorded their statements informing that the parcel in question was booked by one Vinod Vaish of M/s.AFL Pvt.Ltd., Mahipalpur Ext., New Delhi. Pursuant to the summons issued under Section 67 of the Act, statement of Vinod Vaish was recorded and it was informed that the parcel bearing airways bill No.1403649730 had been booked from the office of AFL Pvt. Ltd., Udaipur, in the account of Sanskriti which is a Crl.A.1449/2013 Page 2 of 15 franchise located in Udaipur run by one Savya Sachi Bhatnagar. It led to recording of Savya Sachi Bhatnagar's statement under Section 67 NDPS Act who informed that on 23.07.2006 one Anshul had booked the parcel containing three wooden stools (chowkies) to Israel. He further disclosed that the parcel was found to be weighing 37 kg. and `16,000/- were fixed as courier charges. Since Anshul Dwivedi considered the charges to be excessive and offered to pay only a sum of `12,000/-, on 23.07.2006 the deal could not be finalized. Subsequently the parcels were agreed to be sent from the account of Sanskriti Expression for `12,000/- and the parcel was booked on 24.07.2006 in the account of Sanskriti Expression.

5. Prosecution case is that Anshul Dwivedi recorded his statement under Section 67 of NDPS Act and revealed that the 'chowkies' recovered from the DHL office were consigned by him on the instructions of the respondent. Pursuant to the said information got on 31.07.2006 Mr.R.R.Kumar, Superintendent directed the Investigating Officer - PW-1 (Ajay Kumar) to constitute a raiding team and to take necessary action. Thereafter the raiding team reached Udaipur at the residence of Anshul Dwivedi and he produced six wooden tables / chowkies out of which in three tables, sixteen packets wrapped with khaki tapes were recovered. On search, there were found to contain total weight of 5.6 kg. of Hashish. Necessary seizure memos were prepared. Report under Section 57 of NDPS Act was submitted. Subsequently, statements of the witnesses conversant with the facts were recorded. Upon completion of investigation, a charge- sheet was filed against the accused / respondent who was arrested on 04.07.2008 pursuant to the LOC opened against him at Mumbai.

6. To establish its case, the prosecution in all examined twenty- two witnesses. In 313 Cr.P.C. statement the respondent denied his involvement in the crime and pleaded false implication. He examined himself as DW-1 under Section 315 Cr.P.C.

7. Upon appreciation of the evidence and after considering the rival contentions of the parties, the Trial Court came to the conclusion that the prosecution was unable to establish its case beyond reasonable doubt against the respondent. Resultantly, the respondent was acquitted of the charges.

8. In cases arising out of the provisions of NDPS Act, the Legislature in its wisdom has provided a very stringent punishment. When the punishment is very stringent, it is obligatory on the part of the prosecution to prove the charge beyond reasonable doubt by leading cogent, reliable and satisfactory evidence leaving no chance for the court to formulate an adverse opinion.

9. On perusal of the evidence adduced on record by the prosecution, I am of the view that the prosecution has failed to establish its case beyond reasonable doubt and the benefit of doubt given by the learned Trial Court to the respondent cannot be faulted. The Trial Court has noted number of vital infirmities, inconsistencies and discrepancies in the statements of the prosecution witnesses which make it unsafe to base conviction on the unsubstantiated and uncorroborated testimony of PW-21 (Anshul Dwivedi).

10. The prosecution witnesses have given divergent versions as to how and under what circumstances, the respondent was arrested, and if so, by whom. In 313 Cr.P.C. statement the respondent disclosed that he had Crl.A.1449/2013 Page 4 of 15 come to India from Russia on 04.07.2008 and was picked up at Mumbai Airport by the police. He was informed at PS Mumbai that he was wanted in some case in Delhi and he accompanied them to Delhi. He had purchased air tickets for himself and for the police man accompanying him. At Delhi airport, the NCB officials came and took him to the office. He was forced to put signatures on certain documents including statement under Section 67 of NDPS Act. He has nothing to do with the recovery of the contraband. He further informed that the statement under Section 67 of NDPS Act was retracted by him at the earliest opportunity.

11. PW-1 (Ajay Kumar), initial Investigating Officer, deposed that on 04.07.2008 the respondent was intercepted at Mumbai Airport due to opening of LOC against him. He had issued summons under Section 67 of NDPS Act to the respondent directing him to appear in the office of NCB Delhi forthwith. Subsequently, statement (Ex.PW-10/8) under Section 67 NDPS Act was recorded by him. In the cross-examination, he was however unable to disclose as to how the summon to record accused's statement under Section 67 NDPS Act was served upon him. He was unable to tell as to on which date the said summon was prepared i.e. whether before issuance of LOC or after that. He himself did not go to Mumbai in the present case. He did not remember who had gone to Mumbai to bring the accused to Delhi and who brought him from Mumbai to Delhi. He further admitted that the respondent did not appear before him pursuant to the summons. As per PW- 5 (Akhilesh Mishra)'s testimony he had prepared the arrest memo of the respondent and he was medically examined. He, however, was unable to inform as to when and how the accused was arrested and brought back to Delhi. PW-7 (Ram Babu Sharma) informed that on 04.07.2008 at about Crl.A.1449/2013 Page 5 of 15 11.30 p.m. the respondent was arrested by IO Akhilesh Mishra in his presence. In the cross-examination, he was also unable to inform if any summons were served upon the accused at Mumbai. He was also unable to inform as to who had brought the accused from Mumbai to Delhi. Admittedly he was not a witness to arrest. PW-10 (Insp.P.C.Khanduri) in his examination-in-chief disclosed that on 04.07.2008 the respondent appeared before IO Harcharan Singh, NCB in the office of DZU. On respondent's request, his part statement was recorded by him as per his dictation (Ex.PW-10/8). He was also unable to tell in the cross-examination as to when the respondent was intercepted at Mumbai airport. He did not know whether he was brought to NCB office by some NCB officials or he came on his own. He did not know who had issued summons under Section 67 NDPS Act to the respondent; when the summons were issued and served upon him. He was unable to inform whether the summons were served at Mumbai airport or in the office at New Delhi. He elaborated that on 04.07.2008 he was called by IO Harcharan Singh in the post lunch session to record respondent's statement. He was unable to tell whether it was 2/3/4/8 p.m. that day. He did not ask IO Harcharan Singh since when the respondent was in his custody. He was confronted with the statement under Section 67 NDPS Act where there was no mention if the respondent was informed that if he did not want to record his statement; he could do so. He was unable to explain as to why the respondent's statement (Ex.PW-10/8) was not written by IO Harcharan Singh or by the accused in his own handwriting. PW-16 (Harcharan Singh) was unaware as to from where the accused was apprehended and brought to NCB Delhi. He did not know when the accused was apprehended at Mumbai airport. He did not know Crl.A.1449/2013 Page 6 of 15 whether the team of NCB officials had gone to Mumbai airport. He did not inform PW-1 (Ajay Kumar) as to where the summons under Section 67 NDPS Act were served. No explanation has been given as to why PW-1 himself did not record statement under Section 67 NDPS Act pursuant to the alleged summons issued by him. Recording of statement under Section 67 NDPS Act is not a mere formality.

12. None of the prosecution witnesses has clearly disclosed as to when and how the respondent was arrested; when he was brought to Mumbai, if so, by whom. It is also not clear as to when the summons to record his 67 statement under the NDPS Act was served i.e.whether at Mumbai or Delhi. No witness to arrest of the accused at Mumbai has been produced. The police officials from Mumbai who had allegedly intercepted the respondent pursuant to the opening of LOC have not been examined. Issuance of the summons under Section 67 NDPS Act on 04.07.2008 itself on the day the respondent was intercepted at Mumbai seems suspect.

13. The Trial Court has further noted various discrepancies regarding the case property recovered at Delhi and Udaipur. It is alleged that the case property along with the packing materials i.e. tables etc. recovered from the DHL office, Delhi was handed over to Israel authorities as controlled delivery. None of the prosecution witness was able to apprise the Court as to where, by whom and to whom the 'controlled delivery' was effected after taking it from the concerned malkhana. At the time of production of the case property before the Court, it transpired that the packing materials i.e. tables recovered at Udaipur from the residence of Anshul Dwivedi were delivered along with the case property recovered at DHL office to the Israel authorities. Impugned order records that it was the Crl.A.1449/2013 Page 7 of 15 case of the prosecution that the contraband recovered at DHL office along with packing materials i.e. three wooden tables were sent as 'controlled delivery'. During trial it came on record that though the contraband sent to Israel was the one that was recovered from the DHL, the chowkies / tables that were sent were that of the recoveries effected at Anshul Dwivedi's residence. The prosecution was unable to reconcile the major discrepancy. It was unable to establish if all the necessary precautions were taken for the proper storage of the case property and its avoidance from tempering with. The Trial Court noted that PW-1 (Ajay Kumar) in his testimony claimed that he had opened the parcel / pullanda containing 8.7 kg. of Hashish and three wooden stools / tables from the office of DHL Courier on 09.08.2006 after taking out from the malkhana. There was, however, no entry in the malkhana register with respect to the said movement of the contraband. PW-10 (Insp.P.C.Khanduri) in his Court statement admitted that no such entry was made in the malkhana register. As per his testimony at no time whatsoever the case property recovered from Anshul Dwivedi's house at Udaipur was taken out from the malkhana. The Trial Court further noted that a plastic gunny bag produced before the Court bore number 40A/06 and mark 'B'. PW-1 realised that wrong gunny bag mark 'B' had been opened on 09.08.2006 and the wooden chowkies containing therein were sent to Israel. As per his deposition, this gunny bag was prepared by him at the office of DHL Courier and that he had only written 40/06 on the same and he was not aware as to who had added alphabet 'A' after the figure 40. Thus neither PW-1 (Ajay Kumar) nor PW-10 (Insp.P.C.Khanduri) were able to explain as to how the gunny bag had the marking 40A/06 on it.

14. The Trial Court further commented about the Memorandum of Understanding (Ex.PW-3/2) executed between Zonal Director, NCB, A.Shankar Rao and the authorized signatory of Israel Police in public security. It noted that the prosecution was unable to satisfy if the proper procedure for delivery of the contraband to the Israel authorities was followed. Memorandum of Understanding (Ex.PW-3/2) was executed by Zonal Directoer, NCB, A.Shankar Rao. The Trial Court noted that in his cross-examination, he was confused regarding the procedure of handing over of the 'controlled delivery'. At one point he deposed that Hashish sent to Israel through 'controlled delivery' was recovered from some other source. He was not even able to depose consistently that the contraband sent to Israel was one that was recovered from DHL office.

15. Scrutinising the testimonies of the various witnesses on record it is unclear as to who had delivered the contraband to the Israel authorities. According to PW-1 (Ajay Kumar), the contraband was sent to Israel through PW-19 (Avnish Kumar). Admittedly, panchnama (Ex.PW-10/A) with respect to the taking out of the contraband from the malkhana does not contain signatures of PW-19 (Avnish Kumar). The prosecution did not reveal the name of the Israel police officer to whom the contraband was delivered. As per Ex.PW-3/1 the sealed packet was handed over to Israel officer at Mumbai Airport on 09.08.2006. Another document (Ex.PW-19/1), however, records that it was handed over to him on 10.08.2006. PW-1 (Ajay Kumar), in the cross-examination, admitted that he had not seen any authorization letter of the Israel officer authorizing him to undertake the controlled delivery of NCB. PW-3 (A.Shankar Rao) the then Zonal Director deposed that he had received intimation from headquarters regarding Crl.A.1449/2013 Page 9 of 15 controlled delivery of Hashish and had authorized Avnish Kumar to deliver the packet at Mumbai to one of the officers of Israel Police. In the cross- examination he informed that he was not having any information about the present case prior to input given by the headquarters with regard to controlled delivery of Hashish. He disclosed that Hashish weighing 8.7 kg. was given by him to Avnish Kumar, however, he did not remember the date on which the said quantity was given. He did not have any knowledge as to how long the said consignment remained with Avnish Kumar. He in the further cross-examination said that the packet of 8.7 kg. of Hashish was collected by the Investigating Officer from the source information given by the Intelligence Officer for its delivery to Mumbai. The said Hashish was never with NCB office. He did not remember the date on which it was delivered. He did not remember when the Mumbai counterpart of NCB further delivered the said consignment of Hashish to Israel authorities. He did not have any personal knowledge as to when the Israel authorities had opened the contraband parcel. He was unable to say if any identity proof of the person who had taken the delivery of the consignment was kept by them or not. He disclosed that the said fact can be revealed by the Mumbai NCB authority. In the cross-examination by learned Special Public Prosecutor, he again came up with another plea that seizure of 8.7 kg. Hashish was effected by his unit and it was sent for delivery to Israel. Apparently, the exact movement of the contraband recovered at DHL office and its delivery to Israel police has not been established beyond reasonable doubt to ensure that the case property remained intact and was not tempered with.

16. PW-19 (Avnish Kumar) deposed that on 08.08.2006 Zonal Director had detailed him to undertake the controlled delivery of a packet Crl.A.1449/2013 Page 10 of 15 and he had handed over it to the Zonal Director, Mumbai. He collected the packet from Delhi and handed over to an Israel official at Mumbai Airport in the presence of an Intelligence Officer of Mumbai Zonal Unit. In the cross- examination, he did not remember if in the Memorandum of Understanding name of Israel police official to whom the controlled delivery was to be given was mentioned. He did not know whether the Israel police official who had taken the controlled delivery on 10.08.2006 had come to their office on 09.08.2006 in Delhi. He did not meet any such Israel police official in their Delhi office on 09.08.2006. He admitted that he did not handover the controlled delivery parcel to Zonal Director, Mumbai. He did not obtain the photocopy of the identification document of Israel police officer at the time of handing over. He did not remember the name of Israel police official to whom the controlled delivery was handed over.

17. The prosecution was also unable to establish beyond reasonable doubt the recovery of contraband from the residence of PW-21 (Anshul Dwivedi) on 1.8.2006. Admittedly no independent public witness was associated at the time of recovery at the residence of PW-21 (Anshul Dwivedi). No plausible explanation has been offered for not associating any independent public witness despite its availability. Prior to that, PW-21 (Anshul Dwivedi) had visited the NCB office and purportedly statement under Section 67 NDPS Act (Ex.PW5/1) was recorded on 31.07.2006. The Trial Court noted that PW-21 (Anshul Dwivedi) in his cross-examination had disclosed that the recovery was effected before he went to the office of NCB Delhi i.e. before 31.07.2006. He admitted in the cross-examination that an individual from NCB had visited his residence in Udaipur on 29/30.06.2006 in the afternoon and had disclosed him that some recovery of Crl.A.1449/2013 Page 11 of 15 contraband has been effected from some chowkies in Delhi and that on that day itself PW-21 (Anshul Dwivedi) had disclosed to the said officer that similar type of chowkies three in number were lying in his house. According to PW-21 (Anshul Dwivedi)'s deposition, 'chowkies' were checked by the said officer that time and hashish was recovered and the chowkies and contraband were sealed and taken by him to the NCB office at Delhi.

18. The Trial Court further noted various members of the raiding team have given inconsistent version about the recovery of the contraband from PW-21 (Anshul Dwivedi)'s residence. PW-18 (Insp.Manoj Kumar), in the cross-examination, did not remember the shape of the recovered 'charas' from the chowkies; whether these were in the form of sticks or square. He did not remember the number of pieces recovered out of the sixteen packets. He did not know how the samples were drawn by the Investigating Officer Ajay Kumar. PW-10 (Insp.P.C.Khanduri) when asked about the shape of the charas stated that probably it were rectangular slabs. He was unable to tell the length and width of slabs. He did not clearly know as to what sampling procedure was adopted. PW-6 (Vikas Kumar) was unable to answer many of the questions put to him in the cross-examination and even in the examination-in-chief did not describe the seizure and sample procedure in detail.

19. The Trial Court questioned the Investigating Agency as to why PW-21 (Anshul Dwivedi) from whose residence substantial contraband was allegedly recovered was exonerated and not sent for trial. His statement under Section 67 NDPS Act was taken as gospel truth when he himself was a suspect. The Trial Court observed that increase of 9 kg. weight at the time Crl.A.1449/2013 Page 12 of 15 of booking of the parcel itself must have created a doubt in the PW-21 (Anshul Dwivedi)'s mind about the contents of the parcel booked by him. It further held that the prosecution was unable to unearth as to why the parcel was booked in the name of Sanskriti Expression without their consent and permission. Had the parcel been booked by PW-21 (Anshul Dwivedi) in the normal course of conduct, it should have been in the name of either of the sender or the person on whose behalf it was being sent i.e. the accused. The consignment i.e. chowkies in question was consigned on behalf of Sanskriti Export. PW-21 (Anshul Dwivedi) was confronted in his cross-examination with the consignment note (Ex.PW-4/3). He initially denied that it was booked by him. Subsequently, he came up with the plea that he did not remember whether he had sent. He, however, categorically stated that he had not given the name of Sanksriti Export; he had told the courier official that consigner's name has to be Rama Arts and Export. He further categorically stated that his signatures did not appear either on Ex.PW-4/3 or the invoice (Ex.PW-4/4). He did not remember whether he had mentioned the name of David Cohen on the consignment note but according to him he had orally stated that the consignment was on behalf of the accused. The Trial Court further noted that the deposition of the PW-15 (Savyasachi Bhatnagar) owner of the courier office was to the contrary. In his cross- examination, he stated that the name of David Cohan was provided by PW- 21 (Anshul Dwivedi) and the invoice (Ex.PW-4/4) was also signed by him (Anshul Dwivedi). The witness reiterated his version (Ex.PW10/6) when he was called by re-summoning as to why in the initial statement he had mentioned that the parcel had been consigned by PW-21 (Anshul Dwivedi) of Rama Arts and Exports. In answer to the specific question, he informed Crl.A.1449/2013 Page 13 of 15 the NCB, that though the parcel was brought by Anshul of Rama Arts and Export, he had informed him that the consigner of the parcel was David who wanted to send it to Israel and had told him that in the consignment note the name of David should be mentioned. He further explained that he was authorized to give discount for the parcels sent by them. Admittedly David's role in the entire episode has not been investigated. The Trial Court observed that the prosecution had no explanation as to why the Investigating Officer chose to completely accept the statement of PW-21 (Anshul Dwivedi) and did not even bother to check David's role. They failed to explain as to why no enquiry was initiated against David despite his name appearing in the consignment note and why Investigating Officer did not bother to trace out as to who had sent money through Western Union Money Transfer to PW-21 (Anshul Dwivedi). It further noted that the prosecution did not prove on record various documents from the RTDC Hotel where David and the accused had allegedly stayed at the relevant time. Various other discrepancies have been detailed by the Trial Court in the impugned judgment.

20. In the comprehensive judgment, the Trial Court has listed various major lacunas on the part of the Investigating Agency. All these vital infirmities in the prosecution case cannot be ignored particularly when there is no credible and cogent evidence to prove if it was the accused who had placed an order upon PW-21 (Anshul Dwivedi) for purchase of the tables. The Trial Court has also discussed various inconsistencies between the statements of the various witnesses which cannot be overlooked. The accused had no direct role in the entire evidence and circumstantial evidence on record does not establish his guilt beyond reasonable doubt.

21. It is well settled law that the Appellate Court must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.

22. If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal, recorded by the Trial Court.

23. Considering the facts and circumstances of the case, I find no substance in the appeal preferred by the appellant - NCB; it lacks merits and is dismissed. Pending application also stands disposed of.

24. Trial Court record be sent back forthwith with the copy of the order.

(S.P.GARG) JUDGE JANUARY 09, 2017 / tr Crl.A.1449/2013 Page 15 of 15