Delhi District Court
State vs . Kasung Angamphy on 24 December, 2011
State Vs. Kasung Angamphy
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
Date of Institution : 09.07.2010
Judgment reserved on : 16.12.2011
Date of pronouncement : 24.12.2011
SC No. 13/10
ID No. 02403R0297072010
FIR no. 20/2010
PS Special Cell, Lodhi Colony
U/s. 21/61/85 NDPS Act.
State Vs. 1 Kashung Angamphy
D/O Kashung Pamrei
R/o H.No. 151 A Humaunpur,
Safdarjung, New Delhi.
JUDGMENT
1. The charge sheet in the present case has been filed against the accused u/s. 21 of Narcotic Drugs and Psychotropic Substances Act (herein after referred to as the NDPS Act).
2. Briefly stated the allegations made in the charge sheet are as follows.
a) On 07.04.2010 Surendra Dagar, Vigilance officer DTDC gave a 1 State Vs. Kasung Angamphy telephonic information in special Cell/NR that from a parcel booked on 06.04.2010 by a woman Kasung Angamphy for South Africa vide Airway bill no. N92686046, some powder was found leaking and therefore its movement was stopped and that the said lady has come to the office of DTDC on 07.04.2010 for inquiring about the movement of the said parcel.
The said information, was relayed by SI Bhushan to Inspector Attar Singh who then further relayed it to ACP Sh. Ravi Shankar and in pursuant to the directions of the ACP, a raiding team was constituted which then proceeded to the spot.
b) As per further allegations in the charge sheet, on reaching the spot one Manoj Kumar an employee in the DTDC office met the officials of the raiding team and produced the accused and the parcel allegedly booked by her. According to the said Manoj Kumar the parcel was booked by the accused on 06.04.2010 and on checking, some brown colour powder was found leaking from the above said parcel and therefore on suspicion, he had stopped the movement of the parcel. The statement of Manoj Kumar was recorded.
c) The accused was served a notice u/s. 50 NDPS Act and was informed that her search can be conducted before a Magistrate or a Gazetted Officer and that she was also at liberty to conduct search of any member of the raiding party before her search. On the refusal of the accused to get herself so searched, the parcel in dispute was searched in 2 State Vs. Kasung Angamphy her presence. The said parcel was found to be made of khaki board and on opening was found to contain 15 cloth pieces, 3 ladies purses, one shirt and one kurta. On minute inspection of the carton a secret cavity in its side cover was discovered which was found to contain cream colour powder. The said powder on testing was found to be heroin and its total weight came out to be 400 grams. 2 samples were drawn of 5 grams each and were sealed separately.
d) After completing search and seizure proceedings, as per procedure, on the spot the seal was handed over to Manoj Kumar and as per the assertion in the charge sheet, at 11.45 pm L/Ct. Jai shree also reached the spot and then conducted the personal search of the accused in a separate room. Nothing is stated to have been recovered from the body search of the accused. Thereafter site plan was prepared, statement of witnesses were recorded and the accused is also alleged to have given a disclosure statement, as per which she has disclosed that the parcel belonged to her friend Leo and she had booked it at his instance on 06.04.2010. According to the said disclosure statement the accused had come to the spot in a taxi. The driver of the said taxi was also interrogated and efforts were made to trace out Leo but since he could not be traced the charge sheet was only filed against the present accused.
3. On the basis of the material on record the Ld Predecessor of 3 State Vs. Kasung Angamphy this Court had framed charges against the accused for the offences punishable u/s. 23 r/w Section 21 and 28 of NDPS Act to which the accused had pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case has examined fifteen witnesses in all.
5. Pw1 Sh. Manoj Kumar has inter alia deposed that on 06.04.10 he was working as Operation Assistant in DTDC office and on that date when he joined his duty in the evening a parcel was handed over to him. On checking and opening the said parcel, as per this witness, he detected some powder in the same and he thereafter informed his senior officer. He also deposed that though he had tried to contact the person who had booked the said parcel on the telephone number which was mentioned on the parcel, but the said phone was found to be switched off. As per his deposition on 07.04.2010 he received a call from a lady who asked about the shipment of the parcel and he told her that she has to pay more amount as per the weight of the parcel. This witness has also deposed that the said lady informed him that she will come in the evening to the courier office to give the additional amount and at about 07.45 pm the said lady came to the office of the courier at the cash counter and the employee in whose presence the lady had booked the parcel informed him that she had come. 4 State Vs. Kasung Angamphy After meeting the said lady he informed his senior and the police officials also in the meanwhile reached the spot. According to the deposition of this witness, his statement Ex. Pw1/A was recorded by the police and thereafter he was instructed to come to their office at Rohini where he went and then was made to sign some documents. He then identified his signature on the Section 50 NDPS notice, Ex. Pw1/B, seizure memos, Ex. Pw1/C, Pw1/D, Pw1/E and Pw1/F which were prepared by the police. The arrest and personal search memo of the accused, Ex. Pw1/G and Pw1/H, the disclosure statement of the accused Ex. Pw1/I. On being shown the parcel and on being asked whether he can identify the parcel that was booked by the accused, this witness stated before the Court that he can identify the parcel only after it is opened as this parcel was not sealed in his presence. Accordingly the parcel produced by the MHC(M) was opened and amongst other things it was found to contain one khakhi torn envelope, which according to the witness was the envelope in which the powder was concealed in the cavity. This witness also stated that there was two such envelopes which were kept in the cavity of the box but the case property produced before the Court ie the parcel was found to contain only one envelope which was then exhibited as Ex. P5. The recovered substance which as per the case of the prosecution had been sealed in pullanda mark C was also shown to the witness and he then deposed that the pullanda recovered from the cavities of the parcel was similar to the 5 State Vs. Kasung Angamphy parcel shown to him in the court and thereafter the same was exhibited as Ex. P6.
6. PW15 SI Bhushan Kumar Azad is the main investigating officer in the present case and he has in particular deposed about the receiving of the secret information, constitution of the raiding team and the search and seizure proceedings conducted by him. According to him after receiving the secret information and after passing the same to ACP, Special Cell, he was directed to constitute a raiding party and that thereafter he constituted one raiding team consisting of ASI Shamsher, SI Ranbir, H.Ct. Rajbir (PW13) and Ct. Suresh. According to the deposition of this witness, after reaching the office of DTDC Courier Company, Manoj Kumar, the Operation Assistant of the said office had produced the parcel and the accused Kashung before him and thereafter he had opened the parcel and checked the same. As per his his deposition two packets containing brown colour powder were recovered from the two cavities in the said parcel and the said powder gave positive result for heroin on checking with the Field Testing Kit. He has subsequently deposed that the recovered powder was weighed on electronic weighing machine, upon which the total weight came out to be 400 grams and that he had drawn out two samples of 5 grams each from the recovered contraband and had put the same into small transparent polythenes and then converted the 6 State Vs. Kasung Angamphy same into cloth parcels, which were then given mark A and B. All the pullandas, as per this witness, were sealed with the seal of BKA. The remaining heroin, as per this witness, was also converted into a cloth parcel and was given Mark C. He has further deposed that he had affixed the seal impression on form FSL and the seal was handed over to the witness Manoj Kumar. The seizure memo of the case property has been proved by this witness as Ex.PW1/C. He has further deposed that he had given a notice u/s 50 NDPS Act to the accused and had informed her of her legal rights. The said notice proved by this witness as Ex.PW1/B. He has also deposed that he had also recorded the statement of PW Manoj Kumar Ex.PW1/A and had also prepared the rukka Ex.PW15/A. As per his deposition after the preparation of the rukka he sent the four pullandas, carbon copy of the seizure memo to H.Ct. Rajbir Singh to hand over the rukka to the duty officer and the case property with documents to the SHO. He has also deposed that he had interrogated the accused who had given her disclosure statement Ex.PW15/C. As per his deposition he had also sent one Ct. Suresh to search the taxi driver in whose taxi the accused Kashung alongwith one person namely Leo had come to the spot. He has further deposed that Ct. Suresh had brought the taxi driver before him and that he was also interrogated. He has also inter alia deposed that after the arrest of the accused and during her personal search one mobile no. 9650953495 was seized from her and that during further investigation the 7 State Vs. Kasung Angamphy call detail records of the said mobile were collected from Bharati Airtel Ltd. The person, in whose name the said mobile phone was found to be connected, namely Deepak Sangwan was also interrogated by the IO, as per his deposition.
7. PW13 H.Ct. Rajbir Singh being a member of the raiding team has more or less deposed on similar lines as the IO.
8. PW2 ASI Satyaveer Singh has deposed that he was the duty officer on 08.04.2010 at P.S. Special Cell and that on this date he had registered the present FIR on the basis of the Tehrir sent to him. As per his deposition, the copy of the FIR had exhibited as Ex.PW2/A.
9. PW3 Surender Dagar has deposed that he is the Manager Vigilance in DTDC Courier and that on 06.04.2010, PW1 Manoj Kumar had telephoned him raising suspicion on a parcel which was booked from the Khirki Extension Branch on 06.04.2010. According to this witness, on being so telephonically informed, he had stopped the movement of the parcel and that on 07.04.2010, when he was informed that the lady who had booked the parcel had come in the office of DTDC, he had informed the police.
8 State Vs. Kasung Angamphy
10. PW4 ASI M. Baxla, MHC (M), Spl. Cell, Lodhi Colony has deposed that on 08.04.2010 the SHO concerned had deposited with him four sealed parcels and that he made the requisite entry in register no.19. He has also deposed that on 15.04.2010 he had handed over one of the sealed parcels Mark A to Ct. Sandeep for depositing the same with FSL Rohini and that on 07.06.2010 H.Ct. Joginder Singh has deposited with him the remnant sample obtaining from the FSL Rohini. The copy of the relevant pages of register no.19 containing the relevant entries have been placed on record by this witness and have been exhibited as Ex.PW4/A, Ex.PW4/B and Ex.PW4/C.
11. PW5 Insp. Rajinder Sehrawat, SHO, Spl. Cell, Lodhi Colony has deposed that on 08.04.2010 H.Ct. Rajbir had come to his office and handed over him 4 pullandas Mark A, B, C and D sealed with the seal of BKA, one FSL form and carbon copy of the same. He had handed over the said case property to the Incharge Malkhana, ASI, M. Baxla.
12. PW6 Sh. Deepak Sadwan is the person is whose name, as per the investigation, the mobile connection no. 9650953495 the number of mobile that was allegedly found in the possession of the accused was found to be existing. According to this witness he had never got activated this mobile connection and according to him the application form 9 State Vs. Kasung Angamphy deposited with the Airtel has not been filled by him and that his identity Card copy has been misused by someone to obtain the said mobile connection.
13. PW7 Sh. Pritam has deposed that in the year 2010 he was working as a taxi driver at General Taxi Stand, Janakpuri and that on 07.04.2010 he had taken one girl and one boy from General Taxi Stand in his vehicle bearing no. DL 3CAF 5364 to Khirki Extension at Malviya Nagar. According to this witness after getting the taxi parked, the boy and the girl had gone inside the courier company and had told him to wait in the taxi. He has further deposed that after a while some police officials had come and he and the girl were taken to the police station. He has identified the accused as the same girl who had hired his taxi on 07.04.2010.
14. PW8 Sh. Prakash Chand has deposed that in the year 2010 he was working as a taxi driver and that on 06.04.2010 one Tibetan girl and one black man had hired his taxi no.DL 1YA 9342 from General Taxi Stand, Janakpuri and that he had taken them first to Jhandewalan and then to a courier company in Malviya Nagar. According to his deposition, both of them were carrying one cardboard box and had taken the said taxi to the courier company and had booked a parcel. This witness has also identified 10 State Vs. Kasung Angamphy the accused as the same girl who had boarded his taxi on 06.04.2010.
15. PW9 Sh. Tarun Khurana, Nodal Officer, Bharti Airtel Limited has placed before the court, the call details record of mobile no. 9650953495 pertaining to the period 15.03.2010 to 08.04.2010. The same have been exhibited as Ex.PW9/A. The certificate issued u/s 65 B of the Indian Evidence Act bearing the seal of his company has also been placed on record and has been exhibited as Ex.PW9/C.
16. PW10 SI Jayshree has deposed that on 07.04.2010, the Duty Officer of Special Cell, Lodhi Colony had informed her telephonically that as per the orders of the DCP, Special Cell she has to reach the office of DTDC Courier Company at JC 40, Khirki Extension, Malviya Nagar. According to this witness at about 11.45 p.m. she reached the spot and found SI Bhushan Azad alongwith other officials present there. She has deposed that SI Bhushan Azad apprised her about the facts of the present case and thereafter she took the accused in a room and conducted her formal search. As per this witness, no contraband was recovered from the search of the accused. The memo of nonrecovery Ex.PW1/F was prepared in this regard. She has also deposed that after the arrest of the accused she had taken the personal search of the accused in a room and during the said search one carbon copy of the notice u/s 50 of the NDPS 11 State Vs. Kasung Angamphy Act and some articles alongwith mobile, some cash and some papers were recovered. According to her, the mobile Nokia was seized vide seizure memo Ex.PW1/E. She has also described in brief the proceedings conducted by the IO in her presence.
17. PW11 SI Gyan Chand has deposed that on 08.04.2010 he was working as SO ACP, Special Cell and that on this date DD no. 29 dated 07.04.2010 lodged by SI Bhushan Azad was received in the office of ACP and the entry to this effect was made in the diary register. The said DD in original has been exhibited as Ex.PW11/A and the copy of the relevant entry of the diary register has been exhibited as PW11/B. This witness has also deposed that on 08.04.2010 report u/s 57 NDPS Act, prepared by SI Bhushan Azad, was also received in the office of ACP. The said report has been exhibited as Ex.PW11/C and the copy of the relevant entry of receipt of the said report has been exhibited as Ex.PW11/D.
18. PW12 Ct. Sandeep has deposed that on 15.04.2010 he had taken a sealed parcel Mark A from MHC (M), Spl. Cell, Lodhi Colony and deposited the same with FSL, Rohini and the copy of the road certificate in this regard has been exhibited by this witness as Ex.PW4/B. This witness has categorically deposed that the pullandas remained intact in his possession and no tempering was done.
12 State Vs. Kasung Angamphy
19. PW14 Sh. Nitin Mittal, Regional HR Manager, DTDC Courier Company has placed on record two certificates Ex.PW14/a and Ex.PW14/B, as per which it has been certified that Sh. Surender Dagar and Manoj Kumar are employees of DTDC.
20. The entire incriminating evidence was put to the accused and her statement u/s 313 Cr.P.C. was recorded. In the said statement, the accused has inter alia stated that she hails from Manipur and was residing in Safdarjung Enclave during the time she was arrested. As per her statement, she had became friends with one lady Rachel, who introduced her to her boy friend Leo and had requested the accused to help him. According to the statement of the accused, the said person Leo had wanted to book a parcel for her sister but that since he did not have an identity card/identity proof, her friend requested her i.e. the accused to give her identity card to him for booking of the parcel. The accused has further stated that she acceded to the said request and gave her Icard to Leo, but on the next day her friend called her up and told her that there is some problem in her Icard and that she will have to accompany them to the courier office. As per the accused, her friend Rachel asked her to come to the Janakpuri Metro Station and that on reaching there she was told to accompany Leo to the Courier Office as Rachel had to go somewhere. The 13 State Vs. Kasung Angamphy accused has further stated that she then accompanied Leo in a taxi to a courier company and that Leo had also give her a sim card to put it in her mobile and told her in case she received a call from the courier company, she must tell them that they are reaching there in a short while. She has further stated that when she went inside the office of the courier company two persons took her away from Leo and made her sit for 1/2 hour in a separate room. According to her, after a long time they told her that some drugs have been recovered from the parcel booked by her but that she told them that she had not booked any parcel and the Leo, who was sitting inside the courier office, was the one who had booked it. She has further stated that the said persons did not listen to her and after a while a lady officer came and took away her purse and mobile and on the next day produced her in the court.
21. In order to prove her defence, the accused summoned one nodal officer from the Airtel company and the said witness DW1 Sh. Vishal Gourav has placed on record the cell site IC Chart and after going through the call detail records of mobile no. 9650953495, Ex.PW9/A this witness has revealed the location of the aforementioned mobile phone at different times on 07.04.2010. The relevant pages of the record brought by him have been exhibited as Ex.DW1/A1 to Ex.DW1/A3. As per the case of the prosecution, this mobile number was recovered from the accused and 14 State Vs. Kasung Angamphy therefore its location should have been at the courier office during the search and seizure proceedings, however as per the record produced by this witness, the location of this mobile number during the said period was not at the courier office.
22. After the Defence evidence was led, both Ld. Counsels submitted their final arguments. According to Ld. APP for the State the deposition of PW Manoj Kumar, the employee of the courier company, the deposition of the two taxi drivers who have deposed about dropping the accused at the office of the courier company and the testimony of the investigating officer amply prove the guilt of the accused.
23. On the other hand, Ld. Defence counsel has submitted that the prosecution has infact miserably failed to prove its case against the accused. According to him, the prosecution in the present case was under
a duty to prove that it was the accused who had booked the parcel in question on 06.04.2010 at DTDC office, the fact that there was no tampering with the parcel which was booked on 06.04.2010 before its seizure on 07.04.2010 and the fact that the search and seizure proceedings were conducted as per law. He has submitted that no admissible evidence whatsoever has been produced before the court to prove that it was the accused who had booked the parcel on 06.04.2010. He has contended that 15 State Vs. Kasung Angamphy the prosecution in this respect cannot rely upon the testimony of Manoj Kumar for admittedly this witness was not present when the parcel in question was booked in the DTDC office. He has pointed out that the employee with whom the parcel in question had been booked has neither been cited as a witness nor has been examined by the prosecution. He has also submitted that PW8 Prakash Chand, the taxi driver who allegedly had dropped the accused at the office of DTDC on 06.04.2010 has admitted in his crossexamination that he is not certain about the identity of the accused. Ld. Counsel has further submitted that the prosecution has also not produced any documentary evidence to corroborate the booking of the parcel by the accused on 06.04.2010. He has pointed out that the copy of the Airway Bill and the copy of the voter identity card of the accused are only marked documents and have not been exhibited during trial as the same were not proved. He has also then pointed out various contradictions between the depositions of the prosecution witnesses (the same have been discussed herein below in detail) which according to him clearly prove that the case property was not sealed on the spot and that the possibility of tampering with the case property cannot be ruled out. He has also submitted that the prosecution has failed to explain satisfactorily the delay in sending the samples to FSL and this in itself is fatal to the case of the prosecution. According to the Ld. Defence Counsel, the defence of the accused that it was one Leo who had booked the parcel in question has 16 State Vs. Kasung Angamphy infact been shown to be true, in view of the record produced before this court by DW1 and in view of the deposition of the PW7 the taxi driver who had dropped the said person Leo and the accused at the office of DTDC on 07.04.2010. In support of his contentions Ld. Defence Counsel has relied upon the following judgments : ● State Vs. V.C. Shukla and Another, AIR 1980 SC 1382, ● Mukhtiar Ahmed Ansari Vs. State, AIR 2005 SC 2804(1), ● Kuldeep Singh Vs. State of Punjab, Cri. A. No.1842 of 2010, ● Anwar @ Annu (Mohd.) Vs. State, Crl. A. No. 501/1999, ● Rishi Dev @ Onkar Singh Vs. State, Crl. A. No. 757 of 2000 and Crl. M (B) ● Karnesh Kumar Singh and others Vs. State of U.P., AIR 1968 SC 1402,
24. In rebuttal Ld APP has contended that the prosecution is not required to establish its case beyond all shadows of doubt but is only required to prove its case beyond reasonable doubt and according to her in the present case the prosecution has been able to prove its case beyond reasonable doubt. She has further contended that mere delay in sending the sample to the office of Chemical Examiner is not sufficient to conclude that the sample has been tampered with, when there is no 17 State Vs. Kasung Angamphy infirmity in the link evidence and the evidence on record indicates that the delay was wholly unintentional. In support of her contentions Ld APP has relied upon the following judgments.
● Jarnail Singh Vs State of Punjab 2011 (2) (Narcotics) 86 ● Iqbal Moosa Patel Vs State of Gujrat (2011) 2 S.C Cases 198
25. I have given careful consideration to the submissions made by both the ld counsels. Though it has been rightly contented by Ld APP that the prosecution is not required to prove its case beyond all kinds of doubts, in the present case the following lacunae in the evidence produced on behalf of the prosecution shows that it has not been able to prove its case against the accused even beyond reasonable doubt.
(a) The witness PW1 Manoj Kumar, the public witness in whose presence, as per the version of the prosecution, the parcel was searched and seized has not supported the case of the prosecution with respect to the said seizure. Contrary to the deposition of the IO PW15, this witness has stated that the parcel in question was opened by himself on 6.4.2010 and not by the IO on 7.4.2010. Further though according to the case of the prosecution, the entire search and seizure proceedings were done in the presence of this witness at the DTDC office this witness has stated in his cross examination that the parcel and the recovered substance were not sealed in the DTDC office and that even 18 State Vs. Kasung Angamphy the procedure of sampling was not done in his presence. He has specifically deposed that his signature on the sealed pulandas and on the documents were taken in Special Cell Rohini and that he had not witnessed the sealing of the pulandas containing the contraband. He has further specified that the seal allegedly used for sealing the contraband was not handed over to him, though as per the testimony of PW15 the said seal was handed over to this witness. He has also clearly deposed that he had not seen the mobile phone that was allegedly recovered from the accused and that he had seen the said phone for the first time in court. It has been rightly contented by ld defence counsel that this witness has not been declared hostile by the prosecution despite the fact that he has deposed facts which were contrary to the version of the prosecution and therefore the prosecution now cannot now expect this court to ignore his testimony to the extent that it does not support its case. The testimony of this witness makes it clear that the sealing of the contraband and the pulanda was not done at the spot and the samples were not drawn or sealed at the spot and this itself completely vitiates the entire search and seizure procedure. The Hon'ble Supreme Court in its judgment pronounced in the case titled as Kuldeep Singh Vs State of Punjab (2010) 10 SCC 219 has laid down that non drawing of sample at the initial stage of recovery at the spot by the seizing officer amounts to violation of Section 42 of the NDPS Act and completely vitiates the 19 State Vs. Kasung Angamphy recovery.
(b) Another very material discrepancy which has come to the fore in view of the testimony of PW1, is with respect to the case property itself. According to PW1 there were two envelops, which were found kept in the separate cavities of the cardboard carton and which contained the contraband in question. However admittedly when the case property was produced in court there was only one torn envelop that was found contained in the pullanda allegedly prepared by the IO. Now when the IO, PW15 SI Bhushan Kumar Azad is enquired about the same in his cross examination he very conveniently has deposed that he does not remember what kind of packets contained the contraband. He then states that he had retained the two packets from which the contraband was recovered and that they must be in the parcel which he had prepared at the spot. According to the Ld. APP for State, this discrepancy is not material as the IO in his examination in chief has stated that one packet each was recovered from two cavities of the carton box and that both the said packets were found to contain heroin. She further submits that after drawing out the samples the remaining heroin was mixed together and converted into a cloth parcel and therefore it is immaterial if the prosecution has not produced the two original packets from which the contraband was recovered. I am totally unable to agree with this contention of Ld. APP - Firstly, the 20 State Vs. Kasung Angamphy explanation sought to be given by Ld.APP should have been given by the IO, secondly it is inconceivable that the main investigating officer in the case of recovery of a narcotic drug is so lackadaisical in his investigation that he does not bother to seize the original packets in which the contraband was allegedly recovered and then does not even remember the description of the packets from which the contraband was recovered. Infact if one considers the entire cross examination of this witness, it is clear that this investigating officer has not conducted the investigation of the present case in respect of the parcel in question, in a proper and fair manner. He admits in his cross examination that he made no investigation to verify who all handled the parcel between 6 and 7 April 2010 and that he did not ask the DTDC officials as to why the information regarding the suspicious parcel was given one day after the same was intercepted. He also further admits that the person who had received the parcel in question, in the office of DTDC on 6/4/2010, was available but that his statement was not recorded by him. He also admits that he did not seize the original Airway Bill despite the fact that he had seen the same. He further admits that though the seizure in the present case was allegedly made on 7/4/2010, he sent the samples to FSL only on 15/4/2010, despite the fact that he was not on leave in between the period 8/4/2010 to 15/4/2010. He has brushed aside the question of delay in sending the samples by merely stating that he was busy in other 21 State Vs. Kasung Angamphy official work. His entire testimony shows that the search and seizure proceedings in the present case have not been properly conducted.
(c) Apart from the aforementioned discrepancies, the prosecution has been unable to even prove conclusively that it was the accused who had booked the parcel in question on 6/4/2010. The prosecution is relying upon the testimony of PW1 Manoj Kumar and PW8 Prakash Chand to prove that it is the accused who had booked the parcel in question on 6.4.2010. Now PW1 in his cross examination admits that he had not seen the person who had booked the parcel in question on 6.4.2010. As per this testimony on 6.4.2010, when he had joined his duties in the evening the parcel in question was handed over to him for forwarding and it is at that time that he had detected that it contained some powder. No doubt as pointed out by Ld APP this witness has deposed that on 7.4.2010 he had received a call from a lady who enquired about the parcel in question and that he then informed her that she has to pay more and that at about 7.45 p.m on 7.4.10 the said lady came to the courier office, but neither has this witness deposed that he was telephonically informed by the said lady that her name was Kashung or that she had booked the parcel. In fact this witness has categorically deposed that the person in whose presence the parcel had been booked had informed him that the lady who had booked the parcel on 6.4.2010 has come to the courier office and is present on the cash counter. Now this testimony given by this witness is only hearsay evidence and 22 State Vs. Kasung Angamphy therefore is inadmissible in evidence as rightly contended on behalf of the defence. In order to prove that accused was the same lady who had booked the parcel on 6.4.2010, the prosecution should have produced that employee of the courier office who had himself booked the parcel in question. There is absolutely no explanation forthcoming from the prosecution as to why the said employee of the courier office was not examined during investigation. It is the said employee only who had also prepared the airway bill No.N92686046 and the invoice dated 6.4.2010 and in the absence of the testimony of the said employee even the said documents cannot be read in evidence. Even otherwise the airway bill and invoice show the senders name as Angamphy and some address of Malviya Nagar i.e to say the full name of the accused is not mentioned on the airway bill or on the invoice and neither her present address that of Safdarjung as mentioned in the charge sheet that of Safdarjung nor the address of her native village which is given in the voters identity card is reflected in the invoice and the Airway Bill. As narrated herein above the IO has also not bothered to seize the original Airway Bill.
Now coming to the testimony of PW8 Prakash Chand, the taxi driver who has deposed that it is he who had dropped the accused at the courier office on 6.4.2010, admittedly no test identification parade of the accused was got conducted by this witness and this witness saw the accused for the first time in the court. The IO of this case, PW15 has also admitted in his 23 State Vs. Kasung Angamphy cross examination that he did not get the accused identified by this taxi driver. The Hon'ble Supreme Court in its judgment pronounced in the case titled as State Vs Sanjay Gandhi AIR 1980 SC 1382 has observed that the identification of an accused by a witness for the first time in the court without being tested by a prior identification parade is valueless. Though, ld APP has pointed out that the other taxi driver PW7 had identified the accused at the spot and that therefore the identity of the accused was not in dispute, the identification of accused by PW7 cannot be read to prove her presence at the courier's office on 6.4.2010. To prove the presence of the accused on 6.4.2010 at the courier office it was necessary for the prosecution to have proved that PW8 had brought the accused only at the courier office on 6.4.2010 and for that purpose a test identification parade of the accused by PW8 should have been got conducted. It has also been rightly pointed out by ld defence counsel that this witness in his examination in chief has deposed that he had taken one Tibetan looking girl on 6.4.2010 to the courier office at Malviya Nagar and when this witness had seen the accused after a year in the court on 8.4.2011 admittedly she was the only Tibetan girl present in the court and therefore such an identification can hardly be stated to be conclusive. In his cross examination even this witness has admitted that he cannot say with certainty whether the accused was the same girl whom he had taken to the courier office and that accused only looks similar to the girl that he had taken. In view of such deposition it cannot be stated that this 24 State Vs. Kasung Angamphy witness has been able to prove that he had taken the accused to the courier office on 6.4.2010.
d) In her defence the accused has stated that at the instance of one of her friend Rachel, she had agreed to give the photocopy of her I card to one Leo, the boy friend of Rachel in order to help him send a courier to his sister. She has also specifically stated that she had not gone to the courier office on 6/4/2010 for booking of the said parcel in question but on 7/4/2010 on request of Leo and Rachel that there is some problem in her I card she had agreed to accompany Leo to the courier office. Ld. Defence counsel has pointed out that as per the case of the prosecution two mobile phone numbers 9650953495 and 9711453635 were handwritten on the photocopy of the I card of the accused which was annexed with the Airway Bill and that the mobile with the number 9650953495 was recovered from the accused. Ld. Defence counsel has contended that the accused was never in possession of Mobile no. 9650953495 and the entire version of the prosecution in this regard is concocted. He has pointed out that DW1, the Nodal officer from Airtel company has proved that the location of this mobile number during the alleged search and seizure proceedings was not at the courier office but was continuously roaming. He has also submitted that the IO of the present case has deliberately not brought on record the call details of the number 9711453635 which was the number of the accused, for the said call detail record would have 25 State Vs. Kasung Angamphy shown that the accused was nowhere near the DTDC courier company on 6/4/2010 at the relevant time. He has also contended that the police officials deliberately let go of the Negro Leo and have also deliberately withheld the only eye witness to the booking of the parcel in question from stepping into the witness box for his testimony would have made it clear that the accused had not gone to the courier office on 6/4/2010. This defence of the accused that the parcel in question was infact booked by one Leo and that the police officials deliberately let go of the said person does appear to be a probable defence. Both the taxi drivers PW7 and PW8 have deposed that there was a Negro accompanying the accused on 6/4/2010 and 7/4/2010. PW8 the taxi driver who allegedly had dropped the accused on 6/4/2010 at the office of the courier company has clearly stated in his cross examination that it was the black African looking man who had carried the packet inside the courier company and that it is who had paid him his taxi fare. Similarly PW7 has stated that on 7/4/2010 along with the accused he had taken an African looking black boy to the courier office and that though he (i.e. taxi driver) and the girl (i.e. accused) were taken to PS the said boy was not taken to the PS. PW15 the IO when enquired about the said person has admitted that the taxi driver has disclosed about the presence of one Negro person also. The IO is also unable to explain as to why did he not record the statement of Ct Suresh whom he had allegedly sent for searching the Negro and the taxi 26 State Vs. Kasung Angamphy
26.driver. Further no explanation whatsoever is forthcoming from the prosecution with respect to the evidence brought on record by DW1, the nodal officer from the Airtel company. Clearly the evidence brought by this witness proves that the mobile number 9650953495 was not in operation at DTDC office during search and seizure proceedings but was roaming from one location to another and this clearly proves the testimony of the IO that this phone was recovered from the accused, as completely false. This IO PW15 has also admitted that the Airway Bill regarding the consignment in question mentioned the mobile number of the consignor as 971456345 and that despite collecting the call details records of this mobile number as well as its subscription form, the same have not been placed on record along with the charge sheet. The prosecution has also been at pains to explain as to why the IO despite having collected the call details record of mobile number 9711453635, which accused asserted to her number, withheld the same from the court. In my considered opinion the deliberate withholding of the only eye witness to the booking of the parcel in question, suppression of relevant material and suspicious conduct of the IO does make the case of the prosecution doubtful.
27. The only inference that can be drawn in view of the circumstances and the discrepancies discussed herein above is that the prosecution has not been able to prove its case against the accused beyond 27 State Vs. Kasung Angamphy reasonable doubt and accused on the other hand has been able to show her defence as probable. The Apex Court in the case of Noor Aga vs. State of Punjab and Anrs. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. It has also been observed by the Hon'ble Supreme Court in the said case that though the standard of proof required to prove the guilt of the accused on the prosecution is ''beyond all reasonable doubt'' but the standard of proving required for the accused to prove his or her innocence is "preponderance of probability''. In State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed". In the present case it is clear that the investigating agency has not followed the proper procedure for drawing out of sample and sealing the case property and further the evidence produced by the prosecution is also not sufficiently credible to hold the accused guilty of the offence with which she has been charged with. In view thereof, it is hereby held that the prosecution has not been able to prove beyond reasonable doubt, the 28 State Vs. Kasung Angamphy charges against the accused and therefore she hereby stands acquitted. Announced in open Court th on this 24 day of December, 2011 (Anu Grover Baliga ) Special Judge NDPS : New Delhi Patiala House : New Delhi 29