State vs Prem Chand on 31 January, 2013

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Delhi District Court

State vs Prem Chand on 31 January, 2013

         IN THE COURT OF SH.SURESH CHAND RAJAN
      ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
               DWARKA COURTS, NEW DELHI

SC No.03/02/10
FIR No.193/09
U/s 20 NDPS Act
PS Crime Branch



State 

Vs.

Prem Chand S/o Sh Tota Ram
                                                               .......... Accused
                                                                                                       
Challan filed on : 30.04.2010
Reserved for Order on : 22.01.2013
Judgment delivered on : 31.01.2013

JUDGMENT

The facts in brief of the prosecution case are that on 10.11.09 DD no.24 was lodged with Narcotic cell Shakarpur relating to information of drugs, received through telephone from DTDC courier company D101 Naraina Industrial Area, Ph.1 Delhi which was marked to ASI Paramjeet Singh who proceeded u/s 42 NDPS Act and with the direction of Inspector Narcotics Cell reached the office of courier service alongwith HC Sanjiv Kumar and also carried alongwith him the IO bag, field testing kit, electronic weighing scale and camera in the official State Vs.Prem Chand FIR no.193/09 Page No. 1 of 66 vehicle driven by HC Kanwal Singh. At the office of courier company he met Mr. Bakul Chatterjee who handed over to parcels which were smelling odd. On one of the white cloth parcel it was written 'For sarah York, 29 Moden Court, Moden SM4 SHN, England from Ramchand s/o Khetram R/O V&PO Naggar District Kullu, HP 175130, India and was wrapped with the tape of DTDC. The stitchig of the cloth was opened and it was found containing a carton box of Britania Good Day which contained 8 books. On four of the books it was written "Dalai Lama of Tibet'. On one book it was written "Indian Silver". On the other "Indian Sculpture", on another "Himalaya' and on the last book "Traditional Indian Architecture' was written. The binding of all the books was found to be thick and soft as such they were opened and checked and found to be containing thin slabs of blue colour with brown stripes, they were 16 in number and on opening they were found containing black colour substance and on testing it was found to be charas. The total wight of these slabs was found to be 3 kg 200 gms. Small quantity of substance was taken out from each slab and as such two samples of 25 gms each were drawn and were given mark A1 and A2 and the remaining substance was given mark A3. The form FSL was filled in. The sealing work was done and the recovered substance was seized. Similarly, the other parcel of brown colour paper was checked on which "From Rasika Bodh Police Park, Terece, Colombo 5 Srilanka to N Silva" was written. It was also opened and found containing one book with the titled State Vs.Prem Chand FIR no.193/09 Page No. 2 of 66 Himalayan Rivers, Lakes and Glaciers, one pair of woolen socks and one decoration piece. The binding of the book was checked and found containing black substance wrapped in sky blue colour polythene and brown colour tape. It was also tested positive for charas and on weighing it was 110 gms in weight. Two samples of 25 gms were drawn therefrom which were given Mark B1 and B2 and remaining substance was given mark B3. FSL form was filled and sealing work was done. Rukka was prepared and FIR no.193/09 was registered through ASI Paramjit. The provisions of sec 55 of NDPS Act were complied with. During investigation statement of Sh Bakul Chowdhary was recorded and police team was sent to Manali which reached on 14.11.09. They went to the office of DTDC courier Company at Manu Market where one Kehar Chand was interrogated who disclosed that on 19.10.09 both the parcels were booked by him and these were brought to him by two persons and on that day those persons were not possessing any proof of identification and they told that they would produce the same on the next day and photocopy of an identity card in the name of Ramchander was sent to him and hence Kehar Chand sent both the parcels to Delhi as per practice. So far the other parcel booked by one Rasika Bodh is concerned, Kehar Chand could not give any information or the identity proof of the booker. It was disclosed that the person who booked the parcel, visited Kehar Chand several times. He was directed to call the said person on some pretext and Kehar Chand gave call from his mobile State Vs.Prem Chand FIR no.193/09 Page No. 3 of 66 to mobile number 9805204142 and informed that his parcel was received back and the person on the other side replied that he was coming to collect the parcel. After sometime that person came to the office of DTDC courier company and asked Kehar Chand to return the parcel and he was identified by him to be the same person who had booked the parcel containing books on 19.10.09. The said person was apprehended and he disclosed his name to be Prem Chand s/o Tota Ram r/o village Badai ka gaon, HalanI, PS Manali District Kullu H.P. He was informed about the facts of the present case and he was arrested. His search was conducted. On 15.10.09 he was produced before CJM, Kullu and transit remand was obtained. He was brought to Delhi and produced before Inspector. Report u/s 57 NDPS Act was prepared and forwarded the senior officers. The samples were sent to FSL.Mobile of accused was recovered which was having sim of number 9805204142 and it was revealed that he talked to Kehar Chand on number 9816132098. It was disclosed that the writing work on parcel containing 8 books was done by one Jai. Original Airwaybill was also received by Jai who signed as Ramchand. Jai could not be traced. ID Proof of Ramchand was found to be forged as none by the name of Ramchand found living in village Roomsu. The investigation was done and after completion of investigation challan was filed.

2. The charge against accused Prem Chand was framed u/s 20 State Vs.Prem Chand FIR no.193/09 Page No. 4 of 66

(b) (ii) (C) r/w sec 29 NDPS Act and u/s 23 r/w sec. 29 of NDPS Act on 28.01.2011 by my Ld. Predecessor Ms. Ravinder Kaur, the then Ld. ASJ/Special Judge (NDPS) to which the accused pleaded not guilty and claimed trial.

3 The prosecution in all has examined as many as 24 witnesses. PW1 Kehar Chand has deposed that he is running DTDC Courier services and he know accused present in the court and his name is Ram Chand. On 18.10.2009 accused present in the court alongwith three persons visited his office for enquiry that they had to send a parcel containing books to England and thereafter on 19.10.2009, the accused alongwith 23 persons came to his office alongwith one parcel for sending to England and they had brought one carton box. He opened and checked and found nine books in the same. He converted it into parcel and thereafter he prepared the airway bill which is Ex.PW1/A. He has been shown the carbon copy of airway bill which is on judicial file Ex.PW1/A1. There are some telephone numbers mentioned on the original airway bill which are not mentioned on the carbon copy. These telephone numbers were mentioned by him later on. The accused used to come to his office to enquire if the parcel reached its destination and given mobile no. 9805204142, 9805726508 and 00447966350115 which he had written on Ex.PW1/A. The parcel was bearing the name of booker as Ram Chand s/o Khekh Ram District Kullu and address of receiver was State Vs.Prem Chand FIR no.193/09 Page No. 5 of 66 Saran York, 29 Moden Court, Modern SMU SHN, England. The declaration form signed by the consignee is Ex.PW1/B and he produced the photocopy of the declaration form Ex.PW1/B1. He does not know who had filled Ex.PW1/B1. In the original the description of books is mentioned as 9 while after cutting it was made 8. After booking of parcel it was sent to Mandi then to Ambala from where it reached Delhi and from Delhi it was to be sent to England. The accused was not having ID Proof with him at the time of booking and accused told him that he is resident of that area only and would give him ID proof later on. Trusting him, he booked the consignment. He has further deposed that on 20.10.09 one person came to his office and gave ID proof of the consignee which is in the name of Ramchand and same is Ex.PW1/C. He had received calls on his mobile phone number 9816132098 from mobile phone number 9805204142 and called told his name as Ram Chand. He has further deposed that in Nov.2009 he received call from Sunil Dagar that there were some illegal items in the consignment and he told that he had checked the consignment before booking and he does not know how it was carrying illegal items. On 14.11.09 some police official from Delhi came to him. He has further deposed that one more parcel was booked vide declaration form no. 457 by Rasika Bodh to be sent to Srilanka. He showed the photocopy of ID card to the police of consignee Ramchand. They went to the address mentioned on card and gram pradhan told that no person is residing by the name of Ram Chand. State Vs.Prem Chand FIR no.193/09 Page No. 6 of 66 He was told by the police to call the consignee and he made call on number 9805204142 and the person on other side told that Ram Chand had gone to Mandi. He informed that person alleged to be brother of Ram Chand that his consignment had been received back. He received back call after 1520 minutes and said Ram Chand enquired as to why the consignment was received back to which he replied that there is some objection. On 14.11.2009 at about 6 p.m accused alongwith one another person came to take back the consignment. He informed the police that the said person had booked the parcel on 19.10.2009. Upon enquiry accused disclosed his name to the police as Prem Chand s/o Tota Ram. His partner Rajesh Joshi was also there. Accused could not give any proper reply to the police on being inquired about the purpose of his visit to his office. Accused was arrested vide memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E and his disclosure statement was recorded which is Ex.PW1/F. In cross examination he has deposed that he does not possess any document to show that he is associated with DTDC Courier in partnership with Mr. Rajesh Joshi except the telephone which is installed in his office in his name and they are getting the bill in his name. He had not handed over or produced the said phone bill to police. He does not recollect if Rajesh and Pooja were present in the office on 18.10.2009 when the accused alongwith 23 persons came to the office. He admitted that it is mandatory to take I.D proof of the consignee in case any parcel is sent to foreign country before State Vs.Prem Chand FIR no.193/09 Page No. 7 of 66 despatch. It is correct that he did not know accused and 23 persons before 18.10.2009. In answer to court question he has stated that in case there is any parcel which is brought to them for booking and is containing books or such like items they do not check the binding of the same. He had not taken out the books from the carton box to check them. He dispatched the parcel on 19.10.2009. He admitted that the book containing declaration from is a binded book, however, it is not necessary to fill the declaration form in sequence. He admitted that the printed tape of the company used for packing the parcel is not available in the open market. Vol. they use other tapes also. He has brought the manifest copy of which is Ex.PW1/D1. From there office the consignment is sent till bus stand of Manali by a coolie from where it is loaded in a Government Bus and thereafter it is received in Mandi office. He admitted that three pages of the manifest consisting of total 5 pages are torn from the middle portion out of which page no.2 is Ex.PW1/D1 and its middle portion is also torn. They do not maintain any record in their office regarding the receiving of consignment at their office at Mandi HP. The original manifest can be produced by officials of DTDC, Ambala. He admitted that no official from their company accompany the consignment from bus stand of Manali to Mandi (HP) vol. from Mandi HP to Ambala one employee of DTDC accompanied the consignment to Ambala. He had not send the consignment of Rasika Bodh alongwith this consignment on 19.10.2009. The consignment of Rasika was booked on State Vs.Prem Chand FIR no.193/09 Page No. 8 of 66 14.10.09 and it takes about a day or two to reach Delhi. He cannot admit or deny if the parcel is opened by anyone from Manali to Mandi or that the same can be tampered by any one during this transit. He admitted that he had not received any information from the office of DTDC Delhi that said books were containing some illegal substance. However, an intimation was received in his office from the office of DTDC Delhi by some of their staff and he was informed by his staff. He met Delhi police at about ¾ pm on 14.11.09 and shown airway bill Ex.PW1/A. He denied the suggestion that the mobile number 9805204142, 9805726508 and 00447966350115 was written by him later at the behest of police. He produced the bill of his business place Ex.PW1/DA and receipt is Ex.PW1/DB. He also produced the computerized record of statement of account of bank which is Ex.PW1/DC. He is also having mobile phone no. 9816132098. He admitted that accused had never called him on landline number and he had only contacted on his mobile and he used to give his name as Ram Chander. He himself checked the parcel, packed it, sealed it and sent it. None of the officials from Manali to Delhi had accompanied with the consignment. His statement was not verbatim recorded by the police. Vol. Police has changed the number of books, the name of the consignee etc in his statement. He admitted that he had satisfied himself the person who came to him was Ramchander and then he had booked the consignment. In answer to court question he has stated that the accused Premchand is the same person who booked the State Vs.Prem Chand FIR no.193/09 Page No. 9 of 66 consignment. He has stated that he collected the photocopy of his statement u/s 161 Cr.PC and denied the suggestion that he had been told by Sh Bhaghwan Singh to depose in the court in terms of his statement. He admitted that accused Premchand had never booked any other consignment with their courier service except the consignment involved in the present case. He was reexamined by Ld.APP and he has stated that colour of the books were pink. The pullanda is containing 8 books. He identified the books as colly. Ex.PA1 to 8.

Question You stated above that the books were of pink colours whereas none of the books are of pink colour. Explain?

Ans. The upper and lower bindings of the books was covered with pink colour paper and thereafter with a transparent polythene. He has further stated that their office remain closed on Sunday. He admitted that on Sunday no employee used to be present in the office. He admitted that on 18.10.2009 it was Sunday. They used to weigh the consignment before charging the rates. He admitted that the weight of the consignment is mentioned on the parcel by the staff of his office. He denied the suggestion that since pink colour cover is not there as such these are not the same books which were booked by the accused with him. He admitted that on Icard the picture of holder is clear. It is also correct that the photo appearing on the voter I card Ex.PW1/C is not of the accused. The said card was not furnished at the time of booking but later on after 23 days. Accused Prem Chand had signed the documents State Vs.Prem Chand FIR no.193/09 Page No. 10 of 66 Ex.PW1/A and Ex.PW1/A1 in his presence at the time of booking and had represented himself as Ram Chand.

4. PW2 Rajesh Joshi is the proprietor of DTDC Courier at Manali which is run as franchisee. The copy of agreement is Ex.PW2/A. He has deposed that on 14.11.09 police from Delhi came to his office to enquire Kehar Chand about one parcel. Kehar Chand was not present and he was called. Kehar Chand made call on a number and the phone was picked up by someone and he was told that parcel had returned. After sometime Kehar Chand received a call from said Ramchander and he told that he would be coming to collect the parcel. He came at about 5.30 p.m and asked for return of parcel. Kehar Chand made him sit and called the police from outside and Kehar Chand identified the said person who had booked the parcel of books for England on 19.10.2009. He handed over the copy of agreement, ID proof of Ram Chand which were seized vide memo ex.PW2/B. The copy of agreement is Ex.PW2/A and copy of Election Icard is Ex.PW1/C. Accused was arrested and his disclosure statement was recorded which is Ex.PW1/F. In cross examination he has stated that no attendance register in respect of the employees is maintained in the office. He admitted that he did not prepare any document in respect of booking of the parcel. He admitted that on 19.10.09 he was not in the office. Accused had handed over the ID proof to him by saying that a booking has been made in the name of Ram State Vs.Prem Chand FIR no.193/09 Page No. 11 of 66 Chand and thereafter he accepted the same. He did not verify the photograph on the ID proof with the person who had given the same to him. He admitted that no person of his office accompany the parcel from Manali to Mandi and thereafter Mandi to Delhi, however, one person accompany from Mandi to Ambala. He did not receive any call from the consignor of this parcel. He did not go anywhere with the IO in connection with the investigation of this case. He admitted that Ex.PW2/A and Ex.PW1/C were available in the office on 14.11.2009.

5. PW3 HC Chandram is the MHCM who has deposed that on 10.11.09 he was called by Insp. Akshay Kumar to his room with register no.19 where he handed over 8 parcels mark A, A1, A2 and A3 alongwith FSL forms. All the 8 pullandas were sealed with the seal of PS and AK. FIR no.193/09 was written. Two carbon copies of seizure memos of charas which were bearing the signatures of Insp.Akshay were also handed over to him. He made entry at sr.no.505 copy of which is Ex.PW3/A on which Insp. Akshay signed. Insp. Akshay also lodged DD no.13 at about 11.55 p.m in this respect. He has further deposed that on 16.11.09 SI Bhagwan Singh deposited the belongings of personal search of accused Prem Chand in the Malkhana. He made entry no. 512 which is Ex. PW3/B. He has further deposed that on 23.11.09 he sent two pullandas marked A1 and B1 to FSL vide RC no.376/21/09 through Ct. Satpal and entry was made which is Ex.PW3/C. Copy of receipt of State Vs.Prem Chand FIR no.193/09 Page No. 12 of 66 exhibit in malkhana is Ex.PX. He has further deposed that on 11.3.2010 FSL result was received which was handed over to SI Bhagwan Singh. In cross examination he has admitted that FIR no. on pullanda were not put in his presence. He had not stated in his statement that the road certificate was prepared by Munshi Ram Avtar. He admitted that he did not mention dates on all the exhibits. He admitted that he mentioned the contents of the seizure memo in column no.4 of register no.19

6. PW4 HC Sandeep was posted as DO on 10.11.09. He recorded FIR on the basis of rukka sent by ASI Paramjeet Singh throuch HC Sanjeev Kumar. The copy of FIR is Ex.PW4/A. He recorded DD no. 12 copy of which is Ex.PW4/B. His endorsement on rukka is Ex.PW4/C. He also recorded DD no.14 after recording of FIR which is Ex.PW4/D.

7. PW5 Bakul Chatterjee is the witness from DTDC Courier and Cargo Company. He has deposed that one parcel was received in their office from their Manali franchisee and when the parcel was reprocessed for sending to its destination in U.K and while he was carrying that parcel to weigh he felt some odd type smell and informed his seniors as declaration form relating to some books however, it was smelling odd. His seniors also smelt and asked him to inform the narcotic cell. On another parcel was also received from Manali which was on hold with this parcel. Both the parcels i.e one containing books and the other one State Vs.Prem Chand FIR no.193/09 Page No. 13 of 66 received from their Manali Franchise were already on hold as they were not having the contact number of the consignor. When the consignment was not delivered in time, their Manali franchise was repeatedly making inquiries from them telephonically regarding the said parcel and they made request to Manali Franchise to update them with telephone number of the consignor. He informed the Narcotic Cell and SI Paramjeet Singh came with his staff and both the consignments were produced to them. The parcels were opened and found containing books with thick cover. The cardboard cover of the books was appearing to be soft as if something was pasted thereon. One of the cardboard cover was cut open and some sticky substance wrapped in transparent plastic was found spread on the entire cardboard in the same shape. Polythene was opened and substance was taken out by ASI Paramjeet Singh and tested and it was found to be charas. Other side of the cardboard cover of the book was checked and in the similar manner the charas wrapped in transparent polythene was found. Cardboard cover of all the remaining books were cut and found containing charas. There were 8 books in the parcel and total 16 layers of charas were taken out from 8 books. Photographs of the same was taken. The recovered substance was sealed. ASI Paramjeet prepared three documents at the spot and signed the same. He identified his signatures on seizure memos Ex.PW5/A, B and C. He has further sated that accompanying police official was sent to PS with tehrir and sealed pullanda. He handed over copy of invoice and airway bill to SI State Vs.Prem Chand FIR no.193/09 Page No. 14 of 66 Bhagwan. Site plan of the spot was prepared. Later he came to know the mobile number of the person who had booked the parcel. On leading question put by the Ld.APP, he has stated that he cannot say if the mobile number was 9805204142. The cloth piece is Ex.PA/9. The corrugated box is Ex.PA/10. He identified 8 books as Ex.PA/1 to 8. He has further stated that the second parcel was also booked from the franchisee and was to be sent to Sri Lanka. On opening, it was also found containing one book and from that book, charas was recovered in similar manner. He has further stated that he has given two airway bills Ex.PW22/B and Ex.PW5/A1 to the IO. He has also given original declaration form Ex.PW1/B to the IO and copy of airway bill no. 92665318 Ex.PW1/A1. Declaration form is Ex.PW22/C. All the documents were seized by the IO vide memo ex.PW5/C. He was told by Mr. Joshi and Mr. Kehar Chand who were working at DTDC Courier, Manali that the person who had booked the said parcels is making enquiry. He identified the charas as Ex.PA/13 to PA/28, samples of substance Ex.PA/11&12. In cross examination he has stated that it is mandatory to take the identity proof of the consignor in case of parcel being sent to abroad. Consignment is received in their office at Delhi on the next date of its booking. Any consignment booked at Manali is firstly sent to Ambala. He cannot tell in which vehicle the consignment in question was received in their office from Manali to Ambala. Entry was made in their office regarding the receipt of consignment. He informed State Vs.Prem Chand FIR no.193/09 Page No. 15 of 66 Sh. Pankaj Saxena, AGM Operation. The parcel in question was wrapped with plain tape and not with the tape of the company i.e. DTDC. It is not necessary that every parcel should be wrapped with tape of DTDC and it can be wrapped with plain tape also. He did not make an enquiry from Manali office as to from where this parcel was received. There was cutting on the declaration form on the number of books Ex.PW1/B. However, on airway bill Ex.PW1/A1 colly., the number of books was mentioned as 9 and there was no cutting on it. The parcel/consignment in question was opened and checked by the police after their arrival and not by the same employee. He admitted that on opening the said consignment was found containing 8 books. The tape used for wrapping the consignment was kept as it is as it was cut open and not removed for opening the consignment by the IO. The police never met him after recovery. The seal was handed over to some police official who had left from there at about 9.3010 p.m. SI Bhagwan Singh prepared the site plan.

8. PW6 Paras Ram is the witness from Manali and he has stated that he does not know who had taken mobile connection no. 9805204142. He admitted that Election Icard Mark PW6/A is bearing his photograph. He had never applied for Airtel prepaid connection. He never signed in English and can only sign in Hindi. Fresh photograph of the witness is taken on record for comparison with the original record State Vs.Prem Chand FIR no.193/09 Page No. 16 of 66 mark PW6/A1. In cross examination he has stated that he had given the photocopy of his election Icard to the service provider at the time he obtained Airtel SIM. The said connection was closed after 4 months. Last four digits of the said number were 2222. He denied the suggestion that he had taken the connection of mobile number 9805204142.

9. PW7 Jwala Dass is the Election Kanungo and he appeared with record of election Icard no. HP/02/056/264543 dated 12.7.96/No.HP/02/056/090410. He deposed that this card was issued to Prem Chand s/o Budh Ram in the year 1996 and updated in the year 2009. The copy of the same is Ex.PW7/A. The entry in register alongwith Nazri Naksha is Ex.PW7/B. He also produced the record of I card no. HP/02/056/090410 which is issued in the name of Paras Ram s/o Thakru. The copy of Icard is Ex.PW7/C and copy of register pages is Ex.PW7/D. He has seen the letter dated 22.4.2010 on file signed by Sh Amrit Lal Sharma, the then Electoral Registration Officer. The letter is Ex.PW7/E.

10. PW8 ASI Ram Swaroop is witness from PS Manali who has stated that on 14.11.09 Si Bagwan Singh lodged DD no.16A regarding investigation of case FIR no. 193/09 The copy of the same is Ex.PW8/A. He further stated that on 15.11.09 again DD no.8A was lodged mentioning that accused Prem Chand s/o Tota Ram was arrested and State Vs.Prem Chand FIR no.193/09 Page No. 17 of 66 information about his arrest was given to his brother Amar Chand Singh. The attested copy of DD is Ex.PW8/B. In cross examination he has stated that none from their police had accompanied SI Bhagwan Singh and his staff for any investigation.

11. PW9 SI Om Chand is also the witness from PS Manali and he has stated that SI Bhagwan lodged DD no.20A on 16.1.10 in the PS copy of which is Ex.PW9/A.

12. PW10 HC Jaiveer Singh has deposed that on 10.11.09 Sh Bakul Chatterjee of DTDC had telephonically informed that their company had received two parcels which had been booked from their company situated at Manali and the said parcels were to be sent abroad and they are smelling like drugs. It was brought in the notice of Insp. ML Sharma of Narcotics Cell who had spoken to ACP Narcotics and thereafter ASI Paramjeet Singh was directed to go to the said office for necessary action and this fact is recorded in DD no.24 copy of which is Ex.PW10/A

13. PW11 Ct.Satpal has deposed that on 23.11.09 he had taken two sealed pullanda mark A1 and B1 to FSL vide RC no. 376/21 Ex.PW3/C. The copy of acknowledgment is Ex.PX. In cross examination he admitted that it is not mentioned in road certificate that State Vs.Prem Chand FIR no.193/09 Page No. 18 of 66 he had taken two FSL forms form MHCM. He admitted that whatever is received in FSL, they mention the same on the receipt issued by them. He admitted that there is no mention about receiving of FSL form on receipt Ex.PX.

14. PW12 HC Kanwal Singh has deposed that on 16.1.2010 he alongwith SI Bhagwan Singh visited Manali and went to DTDC office where they met the proprietor of the company Sh Rajesh Joshi. The copy of agreement and ID proof of the person who booked the parcel containing 8 books was collected and seized vide seizure memo Ex.PW2/A. In cross examination he has stated that he had also visited on 14.11.09. They were informed that one person who had booked the consignment had been called Kehar Singh on telephone to verify as to whether the consignment has reached its destination and in their presence Kehar Singh had a talk with that person and told him that consignment had been received back and he was told by the person that he was coming back to collect the same. When that person came to the office of DTDC courier, Kehar Singh informed them that he was the person who had booked the consignment and accused present in the court is the person who as per Kehar Singh had booked the consignment. He does not know if on 14.11.09 the documents referred above were demanded by SI Bhagwan Singh from DTDC courier. No local police official had accompanied them to the office of DTDC courier either on 14.11.09 or State Vs.Prem Chand FIR no.193/09 Page No. 19 of 66 on 16.01.2010.

15. PW13 Insp. Akshay Kumar has deposed that on 10.11.09 HC Sanjeev Kumar brought 8 sealed parcels, two FSL forms and two carbon copies of seizure memos. The pullanda and FSL seal were bearing the seal of PS. He had counter sealed pullanda as well as FSL form with his seal of AK. He noted down the FIR number. He called MHCM alongwith register no.19 and deposited the sealed pullanda alognwith FSL form in his custody. He recorded DD no.13 which is Ex.PW13/A. He has further sated that on the same day he received two more parcels mark A and B and he also put seal of AK on them and mentioned FIR no.193/09 on pullandas, FSL form and carbon copy of seizure memos. MCHM made entry no. 505 in his presence.

16. PW14 HC Om Prakash has deposed that on 10.11.09 DD no. 24 was received in the office of ACP Narcotics duly forwarded by Insp. Narcotics Cell. He made entry in diary register at sr.no.1037 and put the copy of DD before ACP Sh SR Yadav and after seeing the same he put his signatures. The copy of DD is Ex.PW14/A. Ex.PW14/B is the DD seen by the ACP. He further deposed that on 11.11.09 report u/s 57 of NDPS Act regarding seizure duly forwarded by Insp. Narcotic was received regarding which entry no. 1042 was made copy of which is Ex.PW14/C. The report bearing signatures of ACP is Ex.PW14/D. On State Vs.Prem Chand FIR no.193/09 Page No. 20 of 66 16.11.09 he received special report u/s 57 NDPS Act regarding arrest of accused to which he made entry no.1061 copy of which is Ex.PW14/E. It was put up before ACP and signed copy of ACP is Ex.PW14/F.

17. PW15 Tarun Khurana is the Nodal Officer from Bharti Airtel and he has produced the record of mobile phone no. 9816132098 and 9805204142 for the period 14.10.09 to 14.11.09. The certificate is Ex.Pw15/A. As per application form the mobile was registered in the name of Paras Ram s/o Thakru. Copy of application form is Ex.PW15/B. He has brought the record of call details from 14.10.09 to 14.11.09 pertaining to mobile no. 9805204142 the same is Ex.PW15/C and details of other phone 9816132098 is Ex.PW15/D. The computerized certified record of mobile no. 9816132098 is Ex.PW15/E and this phone was issued in the name of Kehar Singh . The ID Site chart is Ex.PW15/F. The customer application of mobile no. 9816132098 is not traceable. In cross examination he has stated that he cannot admit or deny if the photograph of the subscriber appearing on customer application form Ex.PW15/B is of the same person whose photograph is appearing on Mark PW15/A which is the photocopy of ID of the subscriber namely Paras Ram. He admitted that it is necessary that the ID proof of the customer applying for the connection is required to be annexed alongwith his customer application form.

State Vs.Prem Chand FIR no.193/09 Page No. 21 of 66

18. PW16 Insp. ML Sharma has deposed that HC Jaiveer informed him about the message received from Bakul Chatterjee regarding parcels received from Manali are smelling like drugs. He informed ACP Sh SR Yadav on whose direction ASI Paramjeet was sent for action and DD no.24 was recorded. He sent the DD to ACP. The carbon copy of said DD bearing his signatures is Ex.PW16/A and it was sent to the office of ACP vide diary no. 842/Insp.N.Cell dt 10.11.09. He further deposed that SI Paramjeet and HC Sanjeev left in vehicle no.DL1CJ 3481 driven by HC Kanwal vide DD no.25. He has further deposed that on 11.11.09 special report u/s 57 of NDPS Act regarding seizure of 3.310 kgs charas was put up before him by ASI Paramjeet which he forwarded to ACP. The report is Ex.PW14/D. On 14.11.09 accused Prem Chand was arrested from Manali and produced before him on 16.11.09. He interrogated him. On the same day special report u/s 57 of NDPS Act regarding arrest of accused was put up before him which he forwarded to ACP. The report is Ex.PW14/F and copy of special report is Ex.PW16/C. In cross examination he has stated that the information given to him by duty officer on 10.11.09 was not reduced into writing by him. ASI Paramjeet was present in the office when information was received. He admitted that it is mentioned in his statement that secret informer had also accompanied ASI Paramjeet when he had left the office on 10.11.09 VOL. It is a typographical mistake and there was no secret information received in this case. He State Vs.Prem Chand FIR no.193/09 Page No. 22 of 66 does not recollect at what time and on which telephone number, he was informed by SI Bhagwan Singh regarding arrest of accused on 14.11.09

19. PW17 HC Alam Gir has deposed that is the witness from HP police posted as MHC and he produced record of DD no.16A dated 14.11.09. The copy of DD is Ex.PW17/A1. The copy of DD no.8A and 20A is Ex.PW17/A2 and A3 recorded by SI Bhagwan Singh.

20. PW18 Amit Jeffrey has deposed that the agreement Ex.PW2/A was signed by Ms. Radha Srihari at point B and he identified her signatures.

21. PW19 Ct. Narender Paul has deposed that on 22.4.2010 he was posted as Moharrer Constable in PS Sadar Kullu and he recorded GD no.23A for arrival and departure of HC Mahesh Kumar . The copy of the same is Ex.PW19/A.

22. PW20 HC Mahesh has deposed that he went to Kullu, HP for verification of Icard no.HP/02/056/264543 and 090410 and ownership of mobile no. 9805204142. The verification report is Ex.PW7/E vide which card no. 264542 was issued to Prem Cand s/o Budh Ram and card no. 090410 was issued to Paras Ram. Mobile no. 9805204142 was obtained by Pras Ram by providing the above ID proof. He has further State Vs.Prem Chand FIR no.193/09 Page No. 23 of 66 stated that apparently the Icard no. HP/02/56/264543 was in the name of Ram Chand s/o Khekh Ram but as per verification report it was issued in the name of Prem Chand s/o Budh Ram. On enquiry Paras Ram told him that he has no connection of mobile no. 9805204142 and had not obtained the same. He showed his ignorance as to who is using the aforesaid mobile phone and about any person by the name of Prem Chand s/o Tota Ram. Thereafter he reached the house of Prem Chand s/o Budh Ram r/o H.No.51 Khadar Ist Post Office Dhalpur, Kullu and on enquiry it was told that there is no person by the name Prem Chand s/o Tota Ram. The copy of Icard is already Ex.PW1/C. DD no.23 is Ex.PW20/A and DD no.25 is Ex.PW20/B. His arrival and departure entry at PS Sadar Kullu is Ex.PW19/A. The application moved by him to the Electoral Registration Officer is Ex.PW20/B. In cross examination he has deposed that he had not recorded the statement of Prem Chand s/o Budh Ram but he had recorded the statement of Paras Ram. The accused present in the court is not that Prem Chand from whom he had made enquiries as the accused was in the present case in judicial custody at that time and he had made enquiries from Prem Chand S/o Budh Ram. He had not collected any ID proof of Prem Chand s/o Budh Ram and of Paras Ram.

23. PW21 HC Sanjeev Kumar has deposed that on 10.1.109 ASI Paramjeet got recorded DD no.23 and thereafter they both reached at State Vs.Prem Chand FIR no.193/09 Page No. 24 of 66 B101 Naraina Indl.Area where two parcels were handed over to him which were smelling drugs and addressed to England from Ram Chand s/o Khekh Ram VPO Naggar having tape of DTDC. The tapes and stitching were removed and one cardboard box on which Britannia Good day was written was found in which 8 books were there and out of them on 4 books Dalai Lama of Tibet was written. On the other books, Indian Silver, Indian Sculpture, Himalaya and Traditional Indian Architecture was written. He has further deposed that on checking 16 slabs of blue colour with brown colour strips were recovered. On checking with testing kit it was revealed as charas. The total weight was found to be 3.200 kgs. Out of the said substance samples of 25 gms each were drawn and pullanda of samples were marked A1 and A2. The remaining substance was as converted into pullanda and marked A3. Form FSL was filled. ASI Paramjeet put his seal on mark A1,A2 and A3 and FSL form and seized the same vide memo Ex.PW5/A. He has further deposed that ASI Paramjeet checked the 2nd small parcel addressed to MR. N Silva , Srilanka from Rashika Bodh District Kullu in which one book of Himalyan River was found in which charas ot 110 gms was found out of which two samples of 25 gms were drawn. Pullandas were prepared and given mark B1 and B2 and remaining substance was also sealed and seized and given mark B3. FSL form was filed and it was seized vide memo Ex.PW5/B. Seal after use was given to Bakul Chattterjee. ASI Paramjeet prepared the tehrir and handed over to him. He was also State Vs.Prem Chand FIR no.193/09 Page No. 25 of 66 handed over 8 pullandas, two FSL forms, two carbon copies of seizure memo with the direction to hand over the same to SHO for proceedings u/s 55 NDPS Act. He left the place and handed over the pullandas to SHO and tehrir to HC Sandeep, duty officer. SHO after checking the same, put FIR number on all the above documents and pullandas and also put his seal of AK on pullandas and FSL form. MHCM was called with register no.19 and case property was handed over to him. SHO Akshay Kumar recorded DD no.13. After registration of FIR duty officer handed over him the copy of FIR and rukka and he reached at the spot where SI Bhagwan Singh to whom the further investigation was entrusted met him. SI Bhagwan recorded the statement of Bakul Chatterjee. Thereafter they came to the cell where SI Bhagwan informed Insp. ML Sharma about the facts. He has further deposed that he alongwith SI Bhagwan Singh and HC Kanwal Singh left for Manali (HP) on 13.11.09. Thereafter they reached at Ist floor of Manu Market in the office of DTDC Courier and met Kehar Chand. Kehar Chand was asked to call at no. 9805204142 and ask the caller to come in the office to collect the parcel. Kehar Chand called that person who told that he is coming to receive the parcel. They waited for about half an hour and thereafter one person came and enquired from Kehar Chand about the parcel. Kehar Chand informed SI Bhagwan that he is the same person who had booked the parcel on 19.10.09. Thereafter accused Prem Chand s/o Tota Ram whose name came to know after enquiry was apprehended and he was State Vs.Prem Chand FIR no.193/09 Page No. 26 of 66 interrogated. He was arrested vide memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E and his disclosure statement was recorded which is Ex.PW1/F. From the personal search of accused Prem Chand one mobile phone NOKIA having SIM card no. 9805204142, one black colour purse containing Rs.300/ and keys were recovered. He identified the accused present in the court. He identified the books Ex.PA/1 to 8, cloth piece Ex.PA/9 and corrugated box Ex.PA/10. He identified the blackish colour solidified substance in pieces which is smelling odd as Ex.PA/11 & Ex.PA/A12 being the samples of charas drawn from recovered substance. 16 packing material containing substance of black colour in the same size of the book in the form of thick layer as Ex.PW13 to Ex.PA/28. The packing material are containing charas Ex.PA13 to PA/28 in the binding of the books. The substance is ex.PW13/ to PA/28 is smelling odd which is charas seized vide memo Ex.PW5/A. He also identified NOKIA mobile of grey colour containing battery and SIM card of Airtel. The SIM card no. is 9805204142 and he identified the same as Ex.PA29. Purchase containing Rs.330/ is Ex.PA30. In cross examination he has stated that the information was firstly received by HC Jaiveer and he noted down the same on rough paper and then it was noted in roznamcha by HC Jaiveer. They first met Bakul Chatterjee. There were many buildings there. None from those offices were called to join the investigation. Other staff in the office was also present but they had no conversation with those officials. State Vs.Prem Chand FIR no.193/09 Page No. 27 of 66 The parcel was wrapped with the piece of cloth and was stitched. However, the box inside the cloth parcel was packed with the tape of DTDC. The rukka and seizure memo are in his handwriting which he prepared on the dictation of ASI Paramjeet Singh. He cannot assign any reason as to why IO ASI Paramjeet did not prepare rukka and seizure memo in his own handwriting. No senior officer from the office of DTDC except Bakul Chatterjee was called by the IO to sign the seizure memo. Seal after used was handed over to Bakul Chatterjee. On 14.11.2009 they wen to DTDC office straight and had not gone to local PS in Manali. The arrest and personal search memos of accused were prepared in the office of DTDC. They went to local PS to inform about their visit. When they again reached at the office of DTDC Manali accused Prem Chand was not present there and he came after sometime of their reaching there. No other public person was called to join the investigation. In his presence no enquiry was made by IO regarding mobile phone no. 9805204142. After arrest of accused Prem Chand, an information was got recorded in PS Manali regarding his arrest and information regarding arrest was given to his relatives.

24. PW22 SI Paramjeet Singh has deposed that on 10.11.2009 he received an information from duty officer about this present case and DD no.24 Ex.PW10/A was recorded and produced to Insp. ML Sharma who informed ACP and on the directions of ACP and SHO he alongwith HC State Vs.Prem Chand FIR no.193/09 Page No. 28 of 66 Sanjeev left vide DD no.25 and reached in the office of DTDC where Bakul Chatterjee met them who produced to parcels smelling odd. He opened the big parcel on which addressee was Sarah York, England and sender was Ram Chand s/o Khekh Ram. There was tape of DTDC on the said parcel. On checking the parcel was found containing 8 books and both inner sides binding covers/layers of 8 books was appearing to be soft and thick which caused suspicion. On opening the inner sides binding covers, he found 16 slabs of blue colour with brown colour strips from all the 8 books. On further checking with test kit, it was found to be charas. It was weighed and found to be 3 kgs 200 gms. He took some part of said charas from all 16 slabs and prepared two samples of 25 gms each out of it and prepared pullanda marked A1 and A2 and remaining 16 slabs were also sealed and given pullanda no.A3. Form FSL was filled. He put impression of his seal on FSL form. Seizure memo ex.PW5/A was prepared. He has further deposed that Sh Bakul Chatterjee had also produced one another parcel which was found containing one book, a pair of socks and one decoration piece. The said consignment was also found containing charas and separate proceeding vide seizure memo Ex.PW5/B were conducted. Seal after use was handed over to Sh Bakul Chatterjee. He prepared rukka Ex.PW22/A, carbon copies of seizure memos Ex.pw5/A and Ex.PW5/B, all sealed pullandas sealed with the seal of PS and FSL forms bearing his seal impression seizure memo of contraband Ex.PW5/A and B were handed State Vs.Prem Chand FIR no.193/09 Page No. 29 of 66 over to HC Sanjeev with the direction to hand over rukka to Duty Officer and remaining documents to SHO PS Crime Branch. He has further deposed that SI Bhagan Singh came at the spot and he handed over the relevant document to him. HC Bhagwan prepared the site plan Mark PW22/X on his pointing out. Sh Bakul Chatterjee produced copies of airway bill no. N 926655318 Ex.PW1/A1 declaration form NO. 434 bearing name of sender Ram Chand Ex.PW1/B, two copies of another airway bill no. N 92665316 Ex.PW22/B, original declaration form no. 457 wherein the name of sender Rasika Bodh is written Ex.PW22/C and seizure memo Ex.PW5/C. He prepared special report u/s 57 of NDPS Act Ex.PW16/B regarding seizure of charas and forwarded the same to Insp. ML Sharma. He identified the books Ex.PA/1 to 8, cloth piece Ex.PA/9, corrugated box Ex.PA/10. Samples drawn by him as Ex.PA/11& PA/12, 16 packing material containing substance of black colour in the same size of book in the form of thin layer as Ex.PA/13 to Ex.PA/28. The substance i s Ex.PA/13 to Ex.PA/28 smelling odd. The same was seized vide memo Ex.PW5/A. In Cross examination he has deposed that the call regarding present case was not received in his presence. Insp. ML Sharma was informed by DO in between 3.30 p.m to 4 p.m about information received by him from Bakul Chatterjee. When the information in DD no. 24 was received at that time HC Sanjeev was also sitting alongwith DO. The field testing kit had already been issued to him from his office while his posting at Narcotic Cell. He admitted State Vs.Prem Chand FIR no.193/09 Page No. 30 of 66 that public persons were available outside his office. He does not recollect if he had requested the public persons from outside his office for joining the investigation. There were other building near DTDC office. He did not call any one from those offices to join the investigation. He did not talk with any other staff member present there except Bakul Chatterjee. He did not enquire Bakul Chatterjee if there was any senior officer in the said office. The parcels were not lying loose and they were packed and wrapped with cloth piece. The entire writing work of the investigation conducted by him was done by HC Sanjeev Kumar on his behalf and narration. He had not mentioned in the rukka that the writing work on his behalf is done by HC Sanjeev. He had handed over the seal to Mr. Bakul after use and he returned his seal after 1012 days when he had himself gone to the DTDC office to take back his seal. He does not recollect if the parcels produced to him by Mr. Bakul were smelling odd when they were produced to him.

25. PW23 Amit Rawat is the witness from FSL and he appeared for Dr. Madhulika Sharma. He has seen FSL result dated 3.3.10. The report of examination is Ex.PW23/A and as per report the contraband examined was found Charas. The remnant of the exhibits were resealed with the seal of MS FSL Delhi and sent back to the concerned PS.

26. PW24 SI Bhagwan Singh is the second IO in this case and he State Vs.Prem Chand FIR no.193/09 Page No. 31 of 66 went to the spot with HC Kanwal Singh vide DD no.2 copy of which is Ex.PW24/A where SI Paramjeet Singh handed over two seizure memos Ex.PW5/A and B. HC Sanjeev reached at the spot and handed over copy of FIR and rukka. He prepared the site plan Ex.PW24/B. Complainant Bakul Chatterjee handed over him six documents which he seized vide seizure memo Ex.PW5/C. He has further deposed that on 12.11.09 he applied for call details of mobile phone no. 9805204142. On 13.11.09 he alongwith HC Kanwal Singh and HC Sanjeev Kumar went to Manali and reached on 14.11.09 where in the office of DTDC they met Kehar Singih and recorded his statement. He has stated that the person who booked the parcel is contacting him through phone no. 9805204142 on Mobile Phone of Kehar Singh. He was asked to call that person. At about 7 p.m accused Prem Chand present in the court came to the office of DTDC. Kehar Chand identified the accused as the person who had booked the parcel of 8 books for England on 19.10.2009. After interrogation accused was arrested vide memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E. In personal search apart from other articles one mobile phone make NOKIA having SIM no. 9805204142 was recovered from accused. He recorded the disclosure statement of accused which is Ex.PW1/F. Kehar Chand disclosed that the accused had given a copy of Election Icard in the name of Ram Chand as ID proof on 20.10.09 and in the same name parcel was booked on 19.10.2009. He has further deposed that accused was brought to Delhi after obtaining transit State Vs.Prem Chand FIR no.193/09 Page No. 32 of 66 remand from local court at Manali on 15.11.09 and produced to Insp. ML Sharma. He prepared special report Ex.PW16/C u/s 57 NDPS Act and produced before Insp. ML Sharma. He sent the exhibits to FSL. ON 15.1.10 he alognwith HC Kanwal again went to Manali where Sh Rajesh Joshi handed over agreement Ex.PW2/A and photocopy of Election I card already Ex.PW1/C in the name of Ram Chand. He seized the same vide memo Ex.PW2/A. He made efforts to trace the lady who booked the second parcel but she could not be traced. He collected the customer application form from Airtel. He collected the FSL result. He collected the copies of DD entries. He identified the mobile phone Ex.P24/1. In cross examination he has stated that he was informed by Insp. ML Sharma about the entrustment of the investigation to him. Many employees were found in DTDC office. He did not make any enquiry from those employees except Bakul Chatterjee. He did not take assistance of local police in Manali on 13.11.09. On 13.11.09 he did not ask for the documents from Kehar Chand and Rajesh Joshi. Statement of Kehar Chand was recorded twice. The investigation of the present case remained with HC Mahesh Kumar from 21.4.2010 to 24.4.2010. Prem Chand s/o Budh Ram could not be traced. He cannot tell now the contents of each and every DD entries, places on record and mentioned in his examination in chief. He admitted that the connection of mobile phone no. 9805204142 is not in the name of accused Prem Chand. It was found in the name of Paras Ram. He did not ask any other public person State Vs.Prem Chand FIR no.193/09 Page No. 33 of 66 except Kehar Chand and Rajesh Joshi to join the investigation.

27. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and stated that he is innocent and have been falsely implicated in this case. He never booked any parcel with DTDC at Manali nor he has connection with this case. He did not lead any defence evidence.

28. I have heard the Ld. APP for the State as well as Ld. counsel for the accused. Ld. APP for the State has drawn the attention of the court on the statements of witnesses and their cross examination and stated that the prosecution has proved its case beyond reasonable doubts. So, accused may kindly be convicted.

29. Ld. Counsel for the accused has also drawn the attention of the court on the testimonies of witnesses and pointed out various contradictions. He has submitted that there is no public witness associated by the police at the time of seizure of charas as well as at the time of arrest of accused in this case. He further submitted that ID proof of sender was not obtained at the time of booking the parcel and it was given later on after 23 days.He has submitted that as per statement of PW1 there were nine books while as per statement of PW21 and PW22 8 books were recovered. He has also taken the plea that when accused is State Vs.Prem Chand FIR no.193/09 Page No. 34 of 66 stated to have come to enquire about sending parcel to England on 18.10.09 it was Sunday on that day when offices remain closed. Another submission of the Ld. Counsel is that PW1 stated that he received called in Nov. 2009 from Sunil Dagar from Delhi Police while said Sunil Dagar is not the witness in this case. It is submitted that the mobile in question does not belong to accused and it is issued to one Paras Ram who has also stated that he neither knew the accused nor gave any mobile to him.Ld. Counsel further submitted that PW1 does not remember whether he had mentioned the weight on the parcel while it was observed by the Hon'ble Court in the testimony of PW2 that cutting and name of Khekh Ram and weight i.e. 9.600 kgs are in same ink. Ld. Counsel has further submitted that PW5 has stated that the plain tap was used to wrap the parcel while PW21 states that DTDC tap was used. He has further submitted that as per testimony of PW5 seal was handed over after use to some police official while as per statement of PW21 & 22 it was handed over to PW5. Ld.counsel has also drawn the attention on the testimony of PW6 and stated that he has never possessed connection no. 9805204142 while in cross examination he admitted that he had taken card of Airtel about two and half years ago and he did not hand over his election card or any other identity document to other person. Ld. Counsel has also drawn the attention of the court on the testimony of PW7 Jwala Dass Election Kanungo and stated that voter ID card no. HP/02/056/264543 was issued in the name of Prem Chand s/o Budh State Vs.Prem Chand FIR no.193/09 Page No. 35 of 66 Ram. He has also drawn the attention on the testimony of PW24 and stated that Prem Chand s/o Budh Ram was not traced out as per his testimony while PW20 HC Mahesh stated that he met with Prem Chand s/o Budh Ram on 21.4.2010 and inquired about Prem Chand s/o Tota Ram. It is submitted that Prem Chand s/o Budh Ram is not the witness in this case. No notice u/s 50 NDPS Act was served to the accused. Ld. Counsel submitted that the sample pullanda was sent to FSL after delay of 13 days which is in violation of NCB guidelines. He relied upon Judgments Basant Rai Vs. State, 2012 (3) JCC (Narcotics) 138, Matloob Vs. State, 67(1997) DLT 372, Rishi Dev @ Onkar Sigh VS. State (Delhi Admn) decided on 1.5.2008 in Crl. Appeal no. 757/2000.

30. In the overall analysis of the testimonies of all the witnesses it is revealed that PW1 Kehar Singh is the witness who booked the consignment, PW2 Rajesh Joshi is the proprietor of the DTDC Courier at Manali, PW5 Bakul Chatterjee is the witness from DTDC where parcel was received and on suspicion he gave information to Police, PW6 Paras is the witness from Manali in whose name the mobile being used by accused was, PW7 Jawala Prasad is the Kanoongo and others are police witnesses. In view of the testimony of PW1 Keher Singh he has stated that he know accused present in the court and his name is Ram Chand. It was observed by the court that the witness has pointed out the accused Prem Chand and he addressed him as Ram Chand. He has stated that on State Vs.Prem Chand FIR no.193/09 Page No. 36 of 66 18.10.2009 accused alongwith three persons had visited their office and enquired about sending parcel to England and on 19.10.2009 the accused present in the court alongwith 23 persons came to his office alongwith one parcel for sending to England. He opened the carton box and checked and found nine books in the same. Thereafter he closed the carton and converted into a pullanda. He prepared the airway bill.

31. Ld. Counsel has contented that on 18.10.2009 it was Sunday and he has drawn the attention of the court on the cross examination of witness wherein he admitted that 18.10.2009 was Sunday. The case of the prosecution is that on 18.10.09, accused alongwith his associates came and enquired about sending the parcel to abroad. But admittedly on 18.10.2009 was Sunday and PW1 has admitted that on Sunday it used to be holiday. So, when there was holiday on 18.10.2009 the version of PW1 seems to be doubtful that accused and his associates had come to enquire about sending parcel to abroad on that day.

32. PW1 has further stated that there are some telephone numbers mentioned on the original airway bill which are not mentioned on the carbon copy. These telephone numbers were mentioned by him later on. He has also stated that accused present in the court today used to come to his office to enquire about he parcel if they had reached at the destination and had given mobile nos..9805204142, 9805726508 and one another State Vs.Prem Chand FIR no.193/09 Page No. 37 of 66 phone no. 00447966350115 which he had written on Ex.PW1/A. He has stated that the parcel was bearing the name of booker as Ram Chand s/o Khekh Ram District Kullu HP and address of the receiver was Saran York, 29 Moden Court, Modern SMU SHN, England. The declaration form Ex.PW1/B was filled before Airway bill. He has stated that in the description of the books there are 9 books, however, in the original there is overwriting and the word 9 has been changed to 8 and this cutting was not made in his presence when declaration form Ex.PW1/B was filled in. I have considered the airway bill Ex.PW1/A in which 9 books were mentioned. The declaration form Ex.PW1/B finds mention 8 books but it seems that first 9 was written in the declaration form and thereafter 8 was made. PW1 has specifically stated that this cutting was not made in his presence. Admittedly the declaration form was handed over to the police by PW5 Bakul Chatterjee who first informed the police after he felt odd smell in the parcel. As per statement of PW1 Kehar Chand that the photocopy of declaration form Ex.PW1/B1 was given to him after filling by accused present in the court and description of the books are mentioned as 9 books. But admittedly there is cutting in the original Ex.PW1/B. It is therefore manifest that the cutting in the number of books on Ex.PW1/B was made afterward. Reverting the testimony of investigation witnesses, on receipt of information from PW5 Bakul Chatterjee about receiving of parcel with odd smell, they reached in the office of DTDC and on checking the parcel, PW21 HC Sanjeev and State Vs.Prem Chand FIR no.193/09 Page No. 38 of 66 PW22 SI Paramjeet found eight books in the parcel. I have also perused the seizure memo Ex.PW5/B which also establish that eight books were found in the parcel booked from Manali under the name Ram Chand s/o Khekh Ram. As per statement of PW1 Kehar Chand and even as per document Ex.PW1/A i.e. airway bill, nine books was booked from Manali but the parcel received in Delhi was found to have contained only eight books. The overwriting in the declaration form Ex.PW1/B seems to have been made afterthought. I am therefore in the agreement with the contentions of the Ld. Counsel for the accused that only eight books were received in Delhi against the nine booked at Manali and therefore it could not be established by the prosecution that the parcel received at Delhi DTDC Office by PW5 Bakul Chatterjee is the same parcel booked from Manali containing nine books as there is no explanation by the prosecution as to how one book was less in the parcel in question.

33. Further there are two declaration forms available on file bearing no. 434 and 457. Form no. 434 is the form for the consignment booked by Ram Chand s/o Khekh Ram and form no. 457 is the form for consignment booked by Rasika Bodh to Srilanka. Form no. 457 was made on 14.10.09 and form no. 434 was made on 19.10.2009. On perusal of the consignment nos. written on forms it is found mentioned as N92665316 for form no. 457 and N92665318 for form no. 434. It is clear that consignment booked on 14.10.09 vide declaration form no.457 State Vs.Prem Chand FIR no.193/09 Page No. 39 of 66 and thereafter consignment was booked vide form no. 434. The difference between the two consignment/airway bills shows that from 14.10.09 to 19.10.09 only one more consignment would have been booked vide no. N92665317 while considering the difference between declaration form is such in relation to consignments which create doubt about manipulation of documents. Further PW1 has stated that it is correct that declaration form no.434 was left blank in August 2009. But no reason has been given as to why it was left blank in the year 2009 and why it was used in the year 2010 for the purpose of present case consignment.

34. It has come in the evidence that the parcels used to be sent by DTDC firstly to Manali then to Ambala and then to Delhi. PW1 has admitted that consignment is sent till bus stand of Manali by coolie from where it is loaded in Govt. bus and thereafter it is received in Manali office. They do not maintain any office for receiving parcels in office. He cannot admit or deny if the parcel was opened in transit by anyone. No information was received by him regarding receipt of goods or recovery of something from his Delhi office. PW2 Rajesh Joshi has also stated the same procedure for sending the goods to Delhi from Manali. In consideration of the statements of PW1 and PW2 who are heading the Manali office of DTDC courier, they used to send consignment in a very careless way since no one from the office accompany the consignment State Vs.Prem Chand FIR no.193/09 Page No. 40 of 66 from their office to Manali. It is also on record the consignment is also loaded on Government bus on the way. Therefore opening/changing/loss of the parcel on the way cannot be ruled out. It seems that in the present case also it had happened as 8 books were found in the parcel instead of

9. It is also not the case of the prosecution that the consignment in question was found in broken/opened parcel. PW1 in cross examination has stated that his statement was not verbatim recorded by the police. Police changed number of books and name of consignee etc in his statement. This statement of PW1 further create doubt about the present case of the prosecution.

35. PW1 Kehar Chand has further stated that at the time of booking he had asked for the I.D. Proof from the accused. However, he was not having any such I.D proof with him and he told him that he would come and given him the ID proof after two days and trusting him he booked the consignment. They prepare four copies of original airway bill. I have perused the airway bills. Ex.PW1/A1 is the General copy of bill, Ex.PW1/A is the Accounts copy of POD and one more unexhibited copy of airway bill named as POD Copy is available on file. PW1 has stated that there are some telephone numbers mentioned on the original airway bill which are not mentioned on the carbon copy. These number were mentioned by him later on. On perusal of the file, it is revealed that there is no original airway bill available on file. There is also no State Vs.Prem Chand FIR no.193/09 Page No. 41 of 66 evidence or investigation as to where the original airway bill has gone. It might be with accused or with his associates. But no recovery of original airway bill has been made in this case from the accused. On perusal of airway bill Ex.PW1/A it is revealed that PW1 had written some telephone numbers with blue pen on it. But this is a Accounts Copy of airway bill which must have been in the possession of accounts department of the company. As per version of PW1 he booked the parcel on the assurance of accused that he will give the ID proof after two days. But in cross examination he admitted that he did not know accused and 23 persons before 18.10.09. It is therefore clear that PW1 was not knowing accused or his associates. He further stated that it is mandatory to take I.D proof from consignee/sender before despatching the parcel. In cross PW1 has stated that he despatched the parcel on 19.10.2009 i.e. before receiving the I.D Proof. It was incumbent upon PW1 to first take the I.D proof of accused/his associate that then book/despatch the parcel to its destination. It has also come in evidence that the I.D proof was furnished after 23 days to the staff of PW1. It was mandatory duty of PW1 to collect the ID proof of the sender first and then book the parcel.

36. PW1 Kehar Chand has stated that on 20.10.2009, one person came to his office and gave ID proof of the consignee to him which was a photocopy of election ID Card which is lying in judicial file in the name of Ram Chand, the same is Ex.PW1/C. To the contrary, he himself State Vs.Prem Chand FIR no.193/09 Page No. 42 of 66 in cross examination has stated that the ICard was not furnished at the time of booking but later on after 23 days to his staff. He has further stated that he had already informed his staff that one Ram Chand would come and furnish his identity proof but his staff had not seen the accused. He does not know which of his staff received the ICard Ex.PW1/C. Further in cross examination PW2 Rajesh Joshi is the owner of DTDC Courier at Manali has stated that they used to take the ID proof of the person who books the consignment. Accused had handed over the ID proof to him by saying that a booking has been made in the name of Ram Chand and thereafter he accepted the same from him. In this case PW1 Kehar Chand himself has made contradictory statement regarding receiving of I.D Proof from accused. He himself has admitted that the photocopy of the voter I Card Ex.PW1/C is not of the accused.

37. I have perused the said copy of Icard Ex.PW1/C. It is found to have been issued in the name of Ram Chand s/o Khekh Ram. It is bearing no. HP/02/056/264543. PW20 HC Mahesh went to Manali for verification of above ICard and another card no. HP/02/056/090410 regarding ownership of mobile in the name of Paras Ram. The prosecution has also examined PW7 Jawala Prasad, Kanoongo who produced the electoral register. As per record the Icard no. HP/02/056/264543 was found to have been issued to Prem Chand s/o Budh Ram in the year 1996 and updated in the year 2009. The copy of State Vs.Prem Chand FIR no.193/09 Page No. 43 of 66 entry is Ex.PW7/A. PW20 has also stated that he went to the house of Prem Chand s/o Budh Ram r/o H.No. 51 Khadar Ist, Post Office Dhalpur, Kullu and enquired from him who told that he did not know about any person by the name of Prem Chand s/o Tota Ram. PW24 SI Bhagwan Singh in cross examination has stated that Prem Chand s/o Budh Ram could not be traced. Both the witnesses PW20 HC Mahesh and PW24 SI Bhagwan Singh have made contradictory statement regarding Prem Chand s/o Budh Ram. As per statement of PW7 Jawala Prasad, Kanoongo of the area, the Election ICard was found to have been issued in the name of Prem Chand s/o Budh Ram while the father name of present accused is Tota Ram. Both the witnesses have made contradictory statements about meeting Prem Chand s/o Budh Ram. Had Prem Chand s/o Budh Ram met PW20, it was incumbent upon the prosecution to make him a witness in this case as the election Icard made for him was allegedly used as I.D in this case for sending the consignment. On perusal of the Icard it is revealed that it bears the photograph with seal of election office. Instances have come in the knowledge in the recent past where it was noticed that there used to be certain mistakes in the election cards. Sometime the photographs are wrongly affixed and sometimes names are found to have changed. Therefore, in my view the prosecution should have brought forward Prem Chand s/o Budh Ram in this case to establish the genuineness of the Icard. Admittedly there is no documentary proof available on file State Vs.Prem Chand FIR no.193/09 Page No. 44 of 66 that the present accused had booked the consignment except the ocular version of PW1.

38. PW1 Kehar Chand has stated that he alongwith police officials went to the address mentioned on identity card and gram pradhan told that no person is residing by the name of Ram Chand. But this version of PW1 that they went to grampradhan has not been corroborated either by PW21 HC Sanjeev Kumar or by PW24 SI Bhagwan Singh who are the witnesses of investigation. There is also no statement of grampradhan available on file in this respect nor he has been examined in this case by the prosecution to establish that there is no person by the name of Ram Chand s/o Khekh Ram living in village Roomsu, Tehsil and District Kullu. Even after coming to know that the Election ICard in question was issued for Prem Chand s/o Budh Ram, no investigation has been made from Pradhan of the area as to whether Prem Chand s/o Budh Ram is living in the said village or not. From the evidence on record it seems that no investigation has been conducted regarding Ram Chand s/o Khekh Ram in this case also.

39. Another contention of the Ld. Counsel is regarding mobile phone being possessed by the accused Prem Chand s/o Tota Ram. PW1 Kehar Chand has stated that after 910 days, accused present in the court today came to his office to enquire about the said parcel and told him State Vs.Prem Chand FIR no.193/09 Page No. 45 of 66 that his parcel had not reached Delhi. It is not understood as to how accused came to know that his parcel did not reach Delhi when it was to go to England and it was in the possession of DTDC Courier Company. However, PW1 has further stated that he received call of accused on his mobile number 9816132098 from mobile phone no. 9805204142 to enquire about the parcel and the caller told his name as Ram Chand. So, even on the phone the caller told his name as Ram Chand. It cannot be made out on phone as to who is talking on the other side except in the cases where someone is known to but in this case admittedly the accused was not known to PW1. It is the case of the prosecution that the parcel was booked by the associate of accused named Jai and he also signed on the airway bill as well as declaration form. The allegations against the present accused is that the accompanied the said Jai (since not arrested). The present accused signed his statement recorded u/s 313 Cr.PC as well as disclosure and other documents in Hindi language as 'Prem Chand'. PW1 in cross examination has stated that whenever a call was made by the said consignee on his mobile for making query about his consignment he used to give his name as Ram Chand.

40. PW1 has stated that he called the accused by making call on mobile no. 9805204142. No doubt that as per call details Ex.PW15/C the call was made by PW1 on this number at about 4.35 p.m. It has been stated by PW1 that the phone was picked up by one person who on being State Vs.Prem Chand FIR no.193/09 Page No. 46 of 66 inquired about Ram Chand told him that he was his brother and that Ram Chand was not there as he had gone to Mandi. He informed about taking back the consignment and after 1520 minutes he received a call from the said Ram Chand who enquired as to why the parcel was received back and he further told that he would be coming to at about 6 p.m to take back his parcel. At about 6 p.m on 14.11.2009 accused alongwith one another person came to his office to take back his consignment. On enquiry he disclosed his name as Prem Chand s/o Tota Ram. Accused could not give any proper reply to the police on being inquired about the purpose of his visit to his office. As per statement of PW1, accused had come at that time with one more person to his office to take back the consignment. But there is no investigation as to who was that person. PW21 HC Sanjeev Kumar and PW24 SI Bhagwan Singh have also not disclosed as to who was the other person. It is the case of the prosecution that the accused was called by PW1 through telephone for taking back his consignment where he was apprehended. I have perused the testimony of PW20 HC Mahesh who went to establish the ownership of mobile phone. As per his testimony the mobile no. 9805204142 was obtained by Paras Ram by providing his ID Proof. He obtained the record of mobile phone. PW7 has stated that ICard no HP/02/056/090410 was issued in the name of Paras Ram s/o Thakru in the year 1996. PW6 Paras Ram has also been examined by the prosecution who has stated that he does not know who had taken mobile State Vs.Prem Chand FIR no.193/09 Page No. 47 of 66 connection no. 9805204142 and he also does not know who is using the said mobile number. He denied the signatures on enrollment form mark PW6/A1 and PW6/A as he never signed in English and only signs in Hindi. He denied that mark PW6/A1 is not bearing his photograph. In cross examination he has stated that he did not hand over his election I card or his other identity document to other person Vol. He had taken a SIM card of Airtel and at that time, he had given the photocopy of his election Icard to concerned service provider. He denied that he had taken the connection of mobile number 9805204142. I have also perused the said documents available on file produced by PW15 Tarun Khurana witness from Airtel. Ex.PW15/B is the form for taking connection and Ex.PW15/B is the copy of Icard. The copy of Election Icard has been admitted by PW6 Paras Ram as belonging to him. However, he denied his signatures on form as well as his photograph. This connection was obtained during Sept.2008. I tried to tally the original photograph Ex.PX kept during the examination of PW6 on file and the carbon copy of photograph available on Ex.PW15/B. Sometime it seems that the carbon copy of the photograph available on Ex.PW15/B is of PW6 Paras Ram but sometime it seems to be not. It could not be tallied properly since the other photograph is a carbon copy. The prosecution has tried to produce the form filled in by the subscriber alongwith photograph. But the prosecution has failed to bring on record the original of form Ex.PW15/B in which the photograph was affixed to enable tally that photograph State Vs.Prem Chand FIR no.193/09 Page No. 48 of 66 with the photograph Ex.PX. Though PW6 has denied having taken the connection in question but admitted that his election Icard was attached to the application for taking the connection. As per documents available on file, it is crystal clear that the mobile in question was in the name of Paras Ram s/o Thakru and not in the name of accused Prem Chand s/o Tota Ram. PW6 Paras Ram has nowhere stated that he has ever given his ICard to accused or he has given the mobile connection in the name of accused. This contention is further supported as PW1 in his examination in chief has stated that when he called up at this number on 14.11.09, some one picked up the phone and stated that Ram Chand is not there and he is his brother talking on phone. This makes clear that the mobile phone in question was not in the possession of accused when PW1 had called him up and it was in the possession of someone else. Admittedly at the time of booking of parcel, no mobile number was given or mentioned anywhere. In my view the prosecution has failed to prove the ownership of accused for mobile phone no. 9805204142.

41. PW1 has further stated that the disclosure statement of accused Ex.PW1/F was recorded. This version has also been supported by PW21 HC Sanjeev and PW24 SI Bhagwan Singh. I have perused the said statement. As per statement Ex.PW1/F one Jai packed the books and he accompanied Jai to the courier office. Declaration form was filled by Jai and Jai had signed as Ram Chand on declaration form as well as State Vs.Prem Chand FIR no.193/09 Page No. 49 of 66 Airway bill. Thereafter the copy of Election ICard was also given to him by Jai which he handed over to DTDC company. It is also stated by him that Jai had given him Rs.15,000/ advance for booking of parcel. It is admitted fact that said Jai could not be arrested in this case. Further all the jobs were done by Jai and as per disclosure, the present accused has only accompanied him. It has come in disclosure statement that Jai had given Rs.15,000/ in advance to present accused. But IO of this case has not made any effort to recover the said money from accused. It has also not been brought on record as to where the said money is or as to whether it was spent by accused or used somewhere else. Since no recovery on the disclosure statement was effected, this disclosure statement is inadmissible in evidence. PW1 in answer to court question has stated that the accused is the same person who brought the consignment. As per disclosure statement, accused was not alone but other person name Jai was with him at that time and said Jai had signed on the documents i.e. airway bill and declaration form as Ramchand. Then there is no question that accused would have disclosed his name as Ramchand at that time. Further, it is settled law that the confessional statement of the accused is a weak type of evidence and conviction should not be based on it and it needs to be corroborated by independent evidence. It is held by the Hon'ble Apex Court in the case of Union of India Vs Bal Mukand & Ors reported in 2009 (2) Crimes 171 SC that conviction should not be based merely on the basis of statement State Vs.Prem Chand FIR no.193/09 Page No. 50 of 66 made U/s 67 of the Act without any independent corroboration, particularly, in view of the fact that such statement has been retracted.

42. It is further held that confession must be voluntary and that the statement made during interrogation while the accused is in custody, cannot be said to have been made voluntarily which satisfies the conditions precedent laid down U/s 67 of the Act. In the backdrop of the aforesaid events, we find it difficult to accept that such statement had been made by the accused though they had not been put under arrest. As the authorities under the act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken.

43. It is further held by the Apex Court in the case of D K Basu Vs State of West Bengal reported in (1997 ) l SCC 416 that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his rights to silence.

44. The Hon'ble Apex court in the case of Union of India Vs Balmukand & Ors reported in 2009(2) Crimes 171 SC held that:

" A confession must be voluntary. A statement made during interrogation cannot be construed as confession.

State Vs.Prem Chand FIR no.193/09 Page No. 51 of 66 Circumstances attendant to making of such statements should be taken into consideration.

Conviction should not be based merely on the basis of a statement made U/s 67 of the Act without any independent corroboration, particularly in view of the fact that such statements have been retracted."

45. There is also no evidence on record that the accused was warned before recording his alleged statement that he had a right to maintain a silence which was his constitutional right.

46. During reexamination of PW1 he has stated that the colour of the books which were booked in the consignment were of pink colour. The pullanda was found packed with DTDC tap. Also as per statement of PW21 HC Sanjeev the parcel was packed with DTDC tap but PW1 in his statement has stated that the DTC tap is not available in market and it is available in DTDC offices and he does not recollect which tape was used in packing the parcel in this case. Further on seeing the parcel, it was observed by the court that name of the sender was originally mentioned as Mark Carlos c/o but Mark Carlos is deleted with black marker and thereafter the name of Ram Chand is mentioned in the same sequence and with same ink with which the other particulars are written. The observation of the court during reexamination of PW1 that name of originally mentioned as Mark Carlos create doubt in the case of the State Vs.Prem Chand FIR no.193/09 Page No. 52 of 66 prosecution as the name of Ramchand was mentioned in the same sequence with same ink.

47. Further on opening the parcels books were found having orange, multicolour, brown and balck & grey colour covers. None of the book was having pink covers as deposed by PW1. Court question was put to this witness as under: Question: You stated above that the books were of pink colours whereas none of the books are of pink colour, Explain?

Answer: The upper and lower binding of the books was covered with pink colour paper and thereafter with transparent polythene.

48. IO of this case SI Bhagwan Singh was also called inside the court during the examination of witness PW1 and he was questioned about pink colour cover of the books but he could not offer any reply. PW1 Kehar Chand has stated in further cross examination that 'it is correct that in the parcel mark A, no pink colour cover on the books is available'. There is also no explanation in this respect from first IO ASI Paramjeet Singh who had seized the books in question at DTDC Office, Delhi. From the evidence on record it can be inferred that the books seized at Delhi were not having pink colour cover while PW1 had booked the books which were having pink colour covers. The prosecution has miserably failed to explain this aspect and therefore the identity of the recovered books is in dispute and it is also not proved that State Vs.Prem Chand FIR no.193/09 Page No. 53 of 66 the present accused has booked the recovered books.

49. On perusal of the cross examination of PW1 it is revealed that he has admitted that the weight of the consignment is mentioned on the parcel by the staff of his office and on opening the parcel it was found bearing weight as 9.600 g. He does not remember whether he had mentioned the weight on the same or his staff. He cannot say whether the weight and word 's/o Khekh Ram' mentioned on the cloth pullanda in the same ink. It was observed by the court that word 's/o Khekh Ram' are appearing to have been written with the same ink. When admittedly the weight on the parcel as 9.600 g was mentioned by the staff of PW1 it can therefore be easily inferred that the word 's/o Khekh Ram' would also have been mentioned by them.

50. PW2 Rajesh Joshi is the proprietor of DTDC. PW18 Amit Jafferey produced the agreement to run franchisee with PW2. He has stated about arrest of accused and he handed over related documents to the police. As per admission of PW2 he was not in the office when the parcel in question was booked. He did not verify the photograph on the ID proof with the person who had given the same to him.

51. PW5 Bakul Chatterjee is the complainant who informed the police when he smelt something odd/foul. SI Paramjeet came and checked the parcel and found containing charas. The same was seized. State Vs.Prem Chand FIR no.193/09 Page No. 54 of 66 He has given the copies of airway bill to IO which is Ex.PW2/B and 22/B and declaration form Ex.PW22/C. In cross examination he has stated that the seal after use was handed over to some police official. PW21 HC Sanjeev Kumar remained with IO ASI Paramjeet Singh during recovery of these books and both HC Sanjeev and ASI Paramjeet PW22 have stated that total 3.200 gms charas was recovered which was concealed in books and there were 16 slabs. The substances was sealed, seized and deposited in malkhana. PW21 as well as PW22 have stated that the seal after used was given to Bakul Chatterjee PW5. But as per statement of PW5 Bakul Chatterjee, it was handed over to some police official. Handing over of seal is of prime important in this case. But there is contradictory statement in this respect from PW5 and PW21 & 22. The case property was deposited in malkhana and PW3 HC Chandram made entries on 10.11.09 and PW11 Ct. Satpal took the same to FSL on 23.11.09. PW22 SI Paramjeet Singh has stated in cross examination that seal was received back by him after 1012 days from him. First of all there is contradiction regarding handing over of seal to Bakul Chatterjee PW5 as PW5 has denied having taken any seal which clears that seal in question was in the possession of the police officials. Secondly even if it is presumed that seal was handed over to him, it is admitted by PW22 that he had taken back the same after 1012 days. It is manifest that the seal was taken by him when the case property was in the malkhana as it was deposited on 10.11.09 and sent to FSL on 23.11.09. In case law State Vs.Prem Chand FIR no.193/09 Page No. 55 of 66 Amarjit Singh & Anr Vs. State (Delhi Admn.) reported as 1995 JCC 91 it is observed in paragraph 9 that 'The investigating officer does not say that the said seal had not been taken back by him before the samples were sent to the office of CFSL'. In the instant case there is clear evidence that seal had been taken back before the sample had been sent to FSL. Further the person to whom the seal was allegedly given has denied having received the same. Therefore there was ample opportunity and possibility to temper with the seals on the sample packet sent to FSL. Reliance placed on 67(1997) DLT 372 titled Matloob Vs. State (Delhi Admn.).

52. In this case the case property was sent to FSL after 13 days of deposit in the malkhana. It is stated in case law 67(1997) DLT 372 titled Matloob Vs. State (Delhi Admn.) that : 'Narcotic Drugs and Psychotropic Substances Act, 1985 - Sec.20 - Contravention relating to Cannabis plant - Delay in despatch of samples - samples to CFSL - Despatched about one month after seizure of substance - No explanation for so much time taken - prescribed promptitude lacking.'

53. It was held that samples to CFSL in this case were despatched about one month after the substance was seized and no explanation for so much time taken in despatching the samples is forthcoming on record. Thus the prescribed promptitude appears to be State Vs.Prem Chand FIR no.193/09 Page No. 56 of 66 lacking in this case.

54. According to Narcotic Control Bureau Instruction, the sealed parcels should be deposited within 72 hours with the Chemical Examiner for testing. This rule is salutary because any attempt or tampering with the sample recovered can have fatal consequences to the case of the prosecution. Strict compliance has to be insisted upon in such an event. In Matloob Vs State (Delhi Admn) (supra) it was observed in para 11 as under: 'My attention was drawn to Delhi High Court Rules and Orders PartIII Chapter 18B, which interalia, provides that articles for the opinion of the Chemical examination should be forwarded without the least possible delay. In considering all this, delay if any, can be explained by the prosecution. Samples to CFSL in this case were dispatched about one month after the substance was seized and no explanation for so much time taken in despatching the samples is forthcoming on record. Thus the prescribed promptitude appears to be lacking in this case.'

55. Turning to the present case, there is delay of about 13 days in sending the samples to FSL while it should have been done immediately within 72 hours. There is no explanation from the prosecution regarding delay in sending the parcel to FSL. Thus a vital link in the chain of the prosecution case is missing and it creates a doubt that the samples which were deposited in the FSL were the true representative of the State Vs.Prem Chand FIR no.193/09 Page No. 57 of 66 recovered substance and there was no tampering.

56. PW22 SI Paramjeet that he opened both the inner sides binding of covers of all the books and he found 16 slabs of blue colour with brown colour strips from all the 8 books i.e. two such slabs from each book. He checked the said substance after breaking the corner of each slab with the help of field testing kit which was found to be charas. The total weight was 3 kg 200 gms. He took some part of the said charas from all 16 slabs and prepared two samples of 25 gms each out of it and kept the same in two separate transparent polythene and tied their mouths with rubber band. Pullandas of the same were prepared and remaining 16 slabs were also kept by him in separate polythene. In Basant Rai Vs State, 2012 (3) JCC (Narcotics) 138 it is stated in headnote that : 'Narcotic Durgs and Psychotropic Substance Act, 1985 - Sec.20(b) (ii) (c) - Recovery of 3.5 kgs of Charas - The samples were drawn after breaking small pieces from 8 of the polythene bags which were allegedly kept in a green coloured bag by the appellant in his right hand - The IO prepared two samples of 25 gms each after taking a small quantity from each of the slabs - Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination - otherwise, result thereon may be doubted - For example, if the 8 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any State Vs.Prem Chand FIR no.193/09 Page No. 58 of 66 contraband; though all may be of the same colour, when mixed the substance of all packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces - Therefore, the process adopted by the prosecution creates suspicion - In such a situation, as per settled law, the benefit thereof should go in favour of the accused - It does not matter the quantity - Proper procedure has to be followed, without that the result would be negative - Appeal allowed. '

57. In case Javed A Bhatt Vs. Union of India, 2007 Cri LJ 3145 it has stated that : In the case at hand, the prosecution did not send all the pieces either in the form of cigar or hats for analysis but the prosecution remained satisfied only by sending some of the such pieces weighing about 50 gms and therefore, applying the principle laid down by the Apex Court it has to be concluded that what the accused was found with, was only 50 gms of charas/hasis and not the entire quantity of 380 gms as contended by the prosecution and that is the inference which has got to be drawn, as drawn by the Apex Court, upon the failure of the prosecution to send all the cigars or flats found with the accused'.

58. In case law Gaunter Edwin Kicher Vs. State of Goa, 1993(3) SCC 145 it was held that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination.

59. In view of the settled law in case Basant Rai Vs. State, I State Vs.Prem Chand FIR no.193/09 Page No. 59 of 66 have perused the evidence of the present case. The IO has categorically stated that he took some part of the said 'charas' from all 16 slabs and prepared two samples of 25 gms each. IO has never stated that he mixed those samples after breaking the same. The testing would have been done in FSL on small piece and not the entire quantity since there is no evidence that the samples were mixed. Therefore it is crystal clear that the result of sample was for the piece taken out from one of the slab and not from entire slabs and therefore it is clear that no examination were done on the samples taken from each slab in this case.

60. The prosecution has examined PW23 Amit Rawat from FSL who appeared for Ms. Madhulika Sharma, Dy. Director (Chemistry). He has stated that report Ex.pw23/A bears the signatures of Dr. Madhulika. In case law 1995 (1) Crimes 274 Mahmad Hanif Ibrahim Vs. State of Gujarat it is held in para 8 that : 'Further, the public analyst cannot afford to forget that he was sending his opinion report to be used in a criminal trial which brooks no negligence or doubt. Any remissness, therefore, on the part of Public Analyst in discharge of the aforesaid duties, like naked electric wire permits no mistake to prove fatal. He should also further know that his opinion is admissible merely on the ground that he being an expert. In other words, merely because by virtue of sec. 293 of the Code, his report could be admitted in evidence and exhibited without giving evidence before the court that by itself does not mean that the same is to be accepted straightway as a conclusive proof of evidence against the State Vs.Prem Chand FIR no.193/09 Page No. 60 of 66 accused, more, particularly when it does not contain even a grain of material indicating on what scientific tests his opinion was arrived at. Before the evidence of Public Analyst can be safely accepted and relied upon to base the order of conviction and sentence, the court must have an opportunity of its own to independently assess and appreciate the same on the basis of scientific tests etc. Instead if the court is to surrender to any bare opinion of the Public Analyst, that can amount to abdication of its judicial function, relegating, itself to mechanically record the order of conviction and sentence without doing anything else.'

61. In the present case the Assistant Director Chemical Ms. Madhulika Sharma could not be examined by the prosecution. The report prepared by her has also not been forwarded by the Director (FSL).

62. The only circumstance against the accused in this case is that he came to DTDC office when called by PW1 Kehar Chand to collect the parcel in question where he was apprehended. It is admitted case that Kehar Chand PW1 had called on the phone no. 9805204142 and it was picked up by some other person and not by the accused. It may be that the said person would have deputed the present accused to take back the parcel in question from the DTDC office. Though there is recovery of mobile in the personal search of accused but the prosecution has failed to prove that the accused was owner of the said phone or that it was given to him by PW6 Paras Ram. The ICard in question was in the name of State Vs.Prem Chand FIR no.193/09 Page No. 61 of 66 Ram Chand but on verification it was found to be in the name of Prem Chand s/o Budh Ram. The said Prem Chand s/o Budh Ram has not been made as witness in this case while PW20 HC Mahesh met him. There is also delay in sending the sample to FSL.

63. In this case charge has also been framed u/s 29 IPC which contemplates 'Criminal Conspiracy'.

Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason section 10 of the Indian Evidence Act was enacted. It reads as under:

10.Things said or done by conspirator in reference to common design: where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the person believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

A conspiracy is a march under a banner. The very agreement, concert or league is the ingredient, of the offence like most crimes, conspiracy requires an act and the accompanying mental state (mens rea). The agreement constitutes the act and the intention to achieve unlawful object constitutes the mental state. Conspiracy criminalizes the agreement to commit a crime. Inherently, conspiracy is a clandestine activity. Its covenants are not formed openly. It has to be inferred from circumstantial evidence of cooperation.

If conspiracy are hatched in the darkness of secrecy and direct State Vs.Prem Chand FIR no.193/09 Page No. 62 of 66 evidence is seldom forthcoming and if the offence is to be proved in relation to the acts, deeds or things done by the coconspirators, the question would arise as to what is the nature of these acts, deeds and things. Is merely moving around together or seen in each other's company sufficient? If not, what more should be there from which it could be inferred that the conspirators were acting to achieve the desired offence in furtherance of a crime.

64. It is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The Law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties "actually came together' and agreed in terms" to pursue the unlawful object; there need ever have been an express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done.

65. Since more often that not, conspiracy would be proved on circumstantial evidence, four fundamental requirements as laid down as far back as in 1881 in the Judgment reported 60 years later at the suggestion of Rt. Hon'ble Sir Tej Bahadur Sapru i.e. 1941 ALJR 416 Queen Empress vs.Hoshhak is reemphasized: I. That the circumstances form which the conclusion is drawn be fully established;

II. That all the facts should be consistent with the hypothesis of guilt; State Vs.Prem Chand FIR no.193/09 Page No. 63 of 66 III.that the circumstances should be of a conclusive nature and tendency; IV.That the circumstances should, by a moral certainty, actually exclude every hypothesis but the one proposed to be proved;

66. In case law State (NCT of Delhi) Vs. Navjot Sandhu MANU/SC /0465/2005 : AIR 2005 SC 3820 it is stated that : 'A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy'.

67. To bring home the charge of conspiracy within the ambit of section 29 NDPS Act it is necessary to establish that there was an agreement between the parties for doing an unlawful Act. It is difficult to establish conspiracy by direct evidence. It is true that it is difficult to support the charge of conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial evidence, a clear link has to be established and the chain has to be completed, otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the basis of such incomplete evidence, the allegation of conspiracy cannot be accepted. Considering the facts and circumstances of the present case and in view of the above discussions and major contradictions in the case of the prosecution, I am of the view that prosecution has failed to prove that the accused had hatched criminal conspiracy before the commission of offence in this case.

State Vs.Prem Chand FIR no.193/09 Page No. 64 of 66

68. No doubt that trafficking narcotic drug is a menace to the society but in the absence of sufficient proof, accused cannot be convicted. The prosecution has to establish its case beyond reasonable doubt and has to stand on its on legs. The contradictions as discussed above goes to the root of the case and makes the case doubtful against the present accused.

69. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".

70. In view of my above discussions, the link in the chain of the prosecution evidence is missing at every nook and corner and I am of the opinion that the prosecution has failed to prove its case beyond any reasonable doubt and the accused is entitled for the benefit of doubt. I therefore give the benefit of doubt to accused Prem Chand s/o Tota Ram and he is acquitted for the commission of offence punishable u/s 20)(b)

(ii)(C) r/w sec. 29 NDPS Act and Sec. 23 r/w sec.29 NDPS Act. State Vs.Prem Chand FIR no.193/09 Page No. 65 of 66

71. Accused is in JC in this case. He is directed to furnish personal bond in a sum of Rs.25,000/ with one surety in the like amount in view of the direction u/s 437A IPC. Bail bond furnished and accepted. File be consigned to record room.

Announced in the open Court on 31.01.2013.

(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs.Prem Chand FIR no.193/09 Page No. 66 of 66

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Delhi District Court

State vs Prem Chand on 31 January, 2013