Delhi District Court
Ncb vs . Sakshi Arya & Ors. on 21 December, 2011
NCB Vs. Sakshi Arya & Ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
Date of Institution : 05.06.2008
Judgment reserved on : 01.12.2011
Date of pronouncement : 21.12.2011
SC No. 47/08
ID No. 02403R0872752008
NCB Vs. 1 Sakshi Arya
D/o Late Sh. Suresh Arya
R/o 60 G, Shaheed Bhagat Singh
Nagar, Ludhiana, Punjab.
2 Poonam Marwah
S/o Sh. Arun Kumar
R/o 176, Dugri Phase II, Urban
Estate, Ludhiana, Punjab.
(Proclaimed offender)
JUDGMENT
1. The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer (IO) Sh. Akhilesh Kumar Mishra has filed the present complaint against the accused persons u/s 18, 21 and 23 r.w.s. 29 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as the NDPS Act).
1 NCB Vs. Sakshi Arya & Ors.
2. Briefly stated the allegations against the accused persons as contained in the complaint are as follows:
(a) It is asserted that on 18/9/2007 at about 1610 hours a secret information was received by Sh. Ajay Kumar, IO that a parcel booked vide airway bill no.7376260205 booked from Canada and destined to Ludhiana was lying at DHL office, Okhla and was suspected to contain cocaine.
(b) On the instructions of the superiors, the said IO Ajay Kumar alongwith one Havaldar Shiv Rattan went to the office of DHL at Okhla and there one Anish Khan, Supervisor, DHL produced before the said IO, the parcel in question. The said parcel was then opened in presence of two independent witnesses Anish Khan and one P.N. Bhatt, both employees of DHL office.
(c) On opening the parcel it was found to contain a book titled "Business the Ultimate Resource", which on search revealed a polythene concealed in the cavity created in the book . The said polythene was found to contain white powder, which on testing with the help of field testing kit gave positive result of cocaine and weight of the white powder substance came out to be one kg. Two samples of 5 grams each were drawn and were separately sealed and seized, the polythene containing remaining substance was kept in the same cavity of the book from where it 2 NCB Vs. Sakshi Arya & Ors.
was recovered and the book was further kept in the same card board box from where it was recovered. The card board box was then wrapped in a white cloth and signatures of the witnesses were taken on all the sealed pullandas. Seizure memo was also prepared.
(d) A copy of the invoice and airway bill were also taken into possession. The name of the consignee mentioned on the parcel was M/s. Fair Deal Management, 2nd floor, Gurbachan Market, Ludhiana, Punjab, India. The entire case property alongwith samples and its memo were deposited in the malkhana and statements of Anis Khan and P.N. Bhatt, the employees of DHL were recorded. During course of further investigation it was revealed that a parcel with airway bill no. AWB 7329836942 and addressed to the same firm namely Ms. Fair Deal Management was also received in the office of AFL couriers (I) Pvt. Ltd, Ludhiana . Pursuant to the said information summons were issued to Tara Singh courier boy and Sh. Sanjeev Prabhakar, Operation Manager, AFL Pvt Ltd u/s. 67 of NDPS Act and in pursuant thereto both of them appeared before Sh. P.C. Khanduri, IO, NCB and gave their voluntary statements. Sh. Tara Singh is asserted to have given a statement that on 10.09.07 he had delivered a parcel AWB no. 7329836942 to Fairdeal Management, 2nd floor, Gurbachan Market, Ludhiana, Punjab where one Sakshi Arya (accused no. 1) had taken delivery of the said parcel and had affixed her signature and her office stamp on the delivery slip. A similar 3 NCB Vs. Sakshi Arya & Ors.
statement was also given by Sanjeev Prabhakar.
(e) Search authorization warrants were also given by the Superintendent NCB, DZU to IO to search the premises of Fair Deal Management and the residence of the accused and on the basis of the said search authorization the officials of NCB Delhi alongwith local police officials of SSP, Ludhiana, Punjab reached the office premises of Fairdeal Management where the accused Sakshi Arya, Proprietor of Fairdeal Management was present. She was informed of the case and her office was subsequently searched but nothing incriminating was recovered.
(f) The house of the accused Sakshi Arya was also then searched but nothing incriminating was recovered from her house also. Thereafter summons u/s. 67 NDPS Act were served upon the accused Sakshi Arya and in pursuant thereto she is asserted to have given a statement admitting therein her complicity in the present case. As per the said statement she is alleged to have informed the NCB officials that her coaccused Poonam Marwah was her friend and that she had asked this accused to receive one courier parcel from Canada at her office address in the month of September 2007. According to the said statement, accused Sakshi Arya admitted that her coaccused Poonam Marwah had informed her that the said parcel would contain cocaine and that it belonged to one Raj Balwinder. As per the said statement the accused is also stated to have informed the NCB officials that her coaccused after 15 days thereafter 4 NCB Vs. Sakshi Arya & Ors.
informed her that another parcel containing cocaine would be coming from Canada which the accused must receive at her office address. She is also stated to have admitted that she had made inquiries about the said parcel at AFL office, Industrial Area, Ludhiana.
(g) Pursuant to the said disclosure, accused Sakshi Arya is alleged to have pointed out the house and office premises of Poonam Marwah but both the said premises were found locked. On the basis of the statement made by Sakshi Arya and the statements of the other witnesses she was arrested and she was brought to Delhi.
(h) On 09.10.2007 another team of NCB is asserted to have gone to the house of coaccused Poonam Marwah and on that day both the said houses were found open and two ladies namely Kumari Vasudha and Smt Janak Dulari, mother of accused Poonam Marwah were present during the search proceedings. Two public witnesses Daljeet Singh and Amarjeet Singh are also stated to have witnessed the said recovery proceedings. On the search of the said premises 45 grams of opium, some ornaments and documents were recovered from an almirah, lying in the said home. Sampling and sealing of the contraband was done at the spot as per procedure and the statements of Janak Dulari, Km. Vasudha, Daljeet Singh and Amarjeet Singh were also recorded after issuing them summons u/s 67 of the NDPS Act. Summons were issued to Poonam Marwah, her son Sandeep Marwah and her husband Arun Kumar u/s 67 of the NDPS 5 NCB Vs. Sakshi Arya & Ors.
Act and they were directed to appear before the NCB officials. None of the said persons however were served with the said summons personally and they were reported to be absconding. Poonam Marwah was also arrayed as an accused in the present complaint and she was declared a proclaimed offender by the Ld. Predecessor of this court vide order dated 19.03.2009.
3. On the basis of the material available on the record, vide order dated 02.04.2009 charges were framed against accused Sakshi Arya for the offences punishable u/s 18 (b), 23(c) r.w.s. 29 of the NDPS Act, to which she pleaded not guilty and claimed trial. Coaccused Poonam Marwah was declared a proclaimed offender vide order dt. 19.03.2009.
4. The prosecution in order to prove its case has examined 28 witnesses(including one numbered 10A).
5. PW13 Sh. Ajay Kumar, IO has deposed about the search proceedings conducted by him at the office of the DHL Okhla. He has inter alia deposed that the secret information received by him was reduced into writing by him and was also produced before Pw4 Sh. RR Kumar, Superintendent, NCB. The said secret information has been exhibited as Ex. PW4/A. As per the deposition of both Pw13 Ajay Kumar and 6 NCB Vs. Sakshi Arya & Ors.
Havaldar Shiv Rattan, both of them left the NCB office on 18.09.07 at about 1700 hours and reached the DHL office at about 1730 hours where they met the supervisor of DHL office Pw5 Anis Khan. Pw5 Anish Khan and Pw7 PN Bhatt, both employees of DHL couriers have inter alia deposed that on the request of IO Ajay Kumar they agreed to be present during the search of the parcel in question. Regarding the search and seizure proceedings, all three witnesses namely Pw5, Pw7 and Pw13 have deposed on similar lines.
6. According to the deposition of these three witnesses on opening the parcel it was found to contain a book titled "Business the ultimate resources" and on opening the book it was found to contain a polythene concealed in a cavity created in the pages of the book. The polythene was found to contain white material in semi solid state which was then tested by the IO with the help of field testing kit and the same gave positive result for cocaine. The IO, has in particular, deposed that the white material was then weighed and its weight came out to be one kg. The witness has then deposed in detail about the manner of sealing and seizure of the substance. The seizure memo prepared by this witness has been exhibited as Ex. PW5/C, the copy of the test memo prepared by this witness has been exhibited as Ex. Pw4/D. The copy of the invoices taken into possession has been exhibited as Ex. Pw5/A and Ex. PW5/B. 7 NCB Vs. Sakshi Arya & Ors.
7. The IO has also deposed that he had issued summons to both the witnesses Pw5 and Pw7. The said witnesses have also deposed that pursuant to the summons issued to them they had appeared before the NCB officials and had tendered their statements. The statement of PW5 tendered u/s. 67 NDPS Act has been exhibited as Ex. Pw5/D and that tendered by Pw7 has been exhibited as Ex. PW7/B. The report tendered by Pw13 u/s. 57 of the NDPS Act has been exhibited as Ex. PW4/C.
8. As regards the investigation at Ludhiana, it is PW11 IO PC Khanduri who was the main investigating officer. This witness has inter alia deposed that on 24.09.2007 Sh. R.R. Kumar, Supdt. had handed over to him a search authorization warrants for conducting search of the office of Fairdeal Management at Ludhiana and of the premises bearing no. 60 G, Shaeed Bhagat Singh Nagar, Ludhiana. The said search authorization warrants have been exhibited as Ex.PW11/A and Ex.PW11/B respectively. As per this witness on the directions of PW4 R.R. Kumar he also went alongwith PW15 Manoj Kumar IO and PW14 Vikas Kumar IO to the office of AFL Pvt. Ltd. Industrial Area Cinema Chowk Ludhiana and met its two employees PW2 Tara Singh and PW3 Sanjiv Prabhakar. According to this witness both the said persons were issued summons u/s 67 NDPS Act and the said notices have been exhibited as Ex.PW3/A and Ex.PW2/C. 8 NCB Vs. Sakshi Arya & Ors.
Pursuant to the said summons both Tara Singh and Sanjiv Prabhakar are stated to have given their statements. The said statements have been exhibited as Ex.PW2/D and Ex.PW3/B respectively. Both these witnesses in their examination in chief have also confirmed that they have given the said statements.
9. PW2 Tara Singh has, in particular, deposed that on 10.09.2007 a parcel was received in the office of AFL Ludhiana and that the said parcel was handed over to him by PW3 Sanjiv Prabhakar to deliver the same at Fairdeal Management. According to this witness the accused, at the office of Fairdeal Management, received the said parcel and also signed on the delivery receipt and that she further put the stamp of Fairdeal Management and wrote her mobile number on the said receipt. The copy of the delivery receipt has been exhibited by this witness as Ex.PW2/B. The copy of the Airway Bill produced with respect to the said parcel has been exhibited as Ex.PW2/A.
10. PW3 Sanjiv Prabhakar has deposed to the effect that the parcel with Airway bill Ex.PW2/A had been handed over by him to PW2 Tara Singh for delivery and that as per the delivery receipt the parcel had been properly delivered and had affixed on it the stamp, and the signatures and the telephone number of the receiver.
9 NCB Vs. Sakshi Arya & Ors.
11. After recording the statement of PW2 and PW3, as per the deposition of PW11 P.C. Khanduri, the raiding team then proceeded to the office of SSP Headquarters Ludhiana and on their request PW16 ASI Harbans Singh and PW20 ASI Surinder Kaur from the said office were deputed for their assistance. The entire team then, as per this witness, reached the office of Fair deal Management where the accused Sakshi Arya was found present. According to this witness, he showed the search authorization warant to the accused and she signed on the same at point B. He has also deposed that the entire team offered their search before conducting the search of the office of the accused but that she refused. He has further deposed that nothing was recovered from the office of the accused and the nil recovery memo has been exhibited by this witness as Ex.PW11/C. The summons issued by this witness to the accused u/s 67 NDPS Act have been exhibited as Ex.PW11/D and as per this witness after receiving the said summons the accused voluntarily gave her statement in her own handwriting. The said statement has been exhibited as Ex.PW11/E. This witness has further deposed that on the pointing out of accused Sakshi Arya the raiding team then reached in front of House no.167 Dogri, Phase 2 Ludhiana, which was found locked. The pointing out memo in this regard has been exhibited as Ex.PW11/F. Similarly this witness has deposed that on the pointing out of the accused, the team also 10 NCB Vs. Sakshi Arya & Ors.
visited the office of Jai Amba Real Estate but the same was also found locked and the pointing out memo in this respect has been exhibited as Ex.PW11/H. Search of the house of the accused Sakshi Arya is also stated to have been conducted and the search memo in this regard has been proved by this witness as Ex.PW11/I. This witness has then deposed that on the basis of the statement made by the accused Sakshi Arya and the evidence collected till that date, she was arrested vide arrest memo Ex.PW11/J and her personal search was taken by PW 20 ASI Surender Kaur. The said personal search memo has been exhibited as Ex.PW11/K. Thereafter, as per this witness he made a written, request Ex.PW11/L to SHO P.S. Ludhiana for providing a lady officer to accompany the accused to Delhi. This witness has lastly deposed that after reaching the office he submitted his report u/s 57 NDPS Act, Ex.PW4/D to the Superintendent R.R. Kumar.
12. PW26 W/H.Ct. Veena Rani and PW27 W/H.Ct. Gurmeet Kaur were the said lady officers who were provided by the SHO P.S. Ludhiana and as per the deposition of these witnesses they had accompanied the accused Sakshi Arya to Delhi and had dropped her at the NCB office at R.K. Puram in Delhi.
11 NCB Vs. Sakshi Arya & Ors.
13. PW14 IO Vikas Kumar, PW15 IO Manoj Kumar, PW 16 ASI Harban Singh and PW 20 ASI Surinder Kaur have more or less deposed on similar lines as PW11 P.C. Khanduri. In addition, PW14 Vikas Kumar has also deposed that on 09.10.2007 he was also the member of the joint team which went to the house of Poonam Marwah at house no.176 Doongri Place Phase II, Ludhiana, Punjab. According to this witness it was Balvinder Kumar, Supdt. NCB Chandigarh, who had conducted the search and seizure proceedings at the said premises.
14. PW25 Balvinder Kumar has inter alia deposed that on 09.10.2007 while he was posted as Superintendent, NCB Chandigarh, he received information that Superintendent NCB, Delhi along with his team is likely to reach Ludhiana and that therefore he reached Ludhiana at 2 p.m. and near Samrala Chowk he met with the officials of NCB team, Delhi and thereafter proceeded to the house of Poonam Marwah to conduct its search. He has then deposed about the search proceedings conducted at the house of Poonam Marwah during which 45 grams of opium are stated to have been recovered from her house. The panchnama prepared by this witness at the aforementioned premises has been exhibited as Ex.PW4/F. He has also deposed that two ladies Ms. Vasudha and Janak Dulari were found present in the said premises and the statement of Janak Dulari was written by Vasudha and the same has been 12 NCB Vs. Sakshi Arya & Ors.
exhibited as Ex.PW7/A. He has also then explained the search and seizure proceedings and the documents prepared by him. According to this witness the sampling and sealing of the contraband was done at the spot and that thereafter the panchnama Ex.PW4/F, seizure memos, test memos in triplicate were prepared by him. As per this witness after concluding the search of the house of Poonam Marwah her shop was also searched and some documents were recovered from there. As per this witness he had handed over the said documents and the case property to Sh. R.R. Kumar.
15. As per the deposition of PW22 Daljeet Singh, H.Ct., Ludhiana, he had accompanied the NCB team, Delhi to search the house and shop of Poonam Marwah and he has deposed on similar lines as that of PW25 Balvinder Kumar. The statement of this witness u/s 67 NDPS Act was recorded by PW14 Vikas Kumar and the same has been exhibited as Ex.PW14/A.
16. PW8 Amarjeet Singh is a property dealer from Ludhiana, who was produced by the prosecution as a witness, who had witnessed the search proceedings at the house of Poonam Marwah. But this witness turned hostile and has not supported the case of the prosecution. 13 NCB Vs. Sakshi Arya & Ors.
17. PW9 Balvinder Singh, Sepoy, NCB, Chandigarh is the witness who has deposed about the deposit of the samples of the contraband at the office of CRCL recovered from the house of co accused Poonam Marwah.
18. PW10 Rajesh Kumar, Sepoy, NCB, Chandigarh has merely deposed that he was directed to guard the house of Poonam Marwah while the search proceedings were being conducted inside the house by the raiding team.
19. PW18 V.P. Bahuguna, Assistant Chemical Examiner and PW19 S.C. Mathur, Chemical Examiner, posted in Narcotics Section of CRCL, New Delhi in the month of November 2007 have both proved the test report with respect to the sample that was drawn out from the contraband that was allegedly recovered from the house of accused Poonam Marwah. The said report has been exhibited as Ex.PW18/D.
20. PW6 Sh. Lalit Mohan Aggarwal, Assistant Chemical Examinar, CRCL, Pusa and PW21 Sh. Jagdish Sharan have both proved the report with respect to the sample that was drawn out from the contraband that was allegedly recovered from the parcel lying at the DHL office and the said report has been exhibited as Ex.PW6/A. 14 NCB Vs. Sakshi Arya & Ors.
21. PW1 Jaiveer, Lab Assistant, CRCL, Pusa, New Delhi has deposed about the receiving of samples on 20.09.2007 from PW12 Shiv Rattan Hawaldar and on 10.10.2007 from Balvinder Singh.
22. I have heard Ld Spl. PP for NCB Sh. Narender Singh and Sh. S.S. Dass on behalf of the accused.
23. Both the counsels have also filed written submissions on record. According to Ld Spl PP for NCB the case against the accused has been proved beyond doubt by the prosecution. He has submitted the fact that the parcel in question was addressed to the firm of which the accused Sakshi Arya is the proprietor, the own voluntary statement given by Sakshi Arya u/s. 67 of NDPS Act, the deposition of the witnesses that even on an earlier occasion a parcel from Canada had been delivered to accused Sakshi Arya all cumulatively prove the case of the prosecution against the accused beyond reasonable doubt. He has submitted that infact the statement of Sakshi Arya recorded u/s. 67 of NDPS Act can be made the sole basis for holding her guilty, for the said statement is admissible in evidence and it has not been proved by the accused that she was threatened in any manner whatsoever, in giving the said statement. According to the Ld. Counsel for the NCB the statement tendered by the accused u/s 67 of the NDPS Act was tendered voluntarily by the accused 15 NCB Vs. Sakshi Arya & Ors.
and the mere fact that she has retracted the same after obtaining legal advice does not have any effect on its admissibility. He has contended that in the said statement the accused has confessed that she had agreed to receive the parcel containing cocaine at her office address, at the instance of her friend and partner Poonam Marwah. His contention is, therefore, that the accused is to be held guilty of having conspired and aided Poonam Marwah in the illegal import of cocaine into India. He has further submitted that the said statement has corroborated the evidence produced by the NCB to show that the parcel in question was to be delivered at the office of M/s Fair Deal Management, of which the accused is the sole proprietor. He has also contended that the admission of the accused that she had agreed to take delivery of such parcels is also corroborated by the fact that even on an earlier occasion i.e. on 10.09.2007 she had accepted delivery of a similar kind of parcel that had been consigned from Canada in the name of M/s Fair Deal Management as the consignee.
24. In support of his contentions, Ld Spl. PP has relied upon the following judgments: ● Rehmatulla Vs. Narcotics Control Bureau 2008 (3) JCC [Narcotics] 174, ● Namdi Francis Nwazor Vs. Narcotics Control Bureau 1995 16 NCB Vs. Sakshi Arya & Ors.
Cri. L.J. 665, ● Krishna Mochi & Ors Vs. State of Bihar & Ors 2002 (2) C.C. Cases (SC) 58, ● Nathusingh Vs. State of Madhya Pradesh (1974) 3 SCC 584 ● Sohrab Vs. State of Madhya Pradesh (1972) 3 SCC 751.
25. On the other hand Ld. defence counsel has submitted that apart from the statement of the accused u/s 67 of NDPS Act which was coerced out of her by the NCB officials by threatening her, the prosecution has not brought on record any evidence to link the parcel in question with the accused. He has submitted that the parcel was not recovered from the possession of accused Sakshi Arya and nor was she apprehended after she had taken delivery of the parcel and that therefore by no stretch of imagination can she be charged with being in possession of drugs or being involved in the import of drugs. He has submitted that no investigation whatsoever was done to find out as to who was consignor of the parcel nor was any investigation done to find out to whom did the telephone number mentioned alongwith the consignee address, on the parcel belong to. He has further submitted that though in the para 12 of the complaint it has been asserted that "during the course of surveillance and investigation" the investigating agency came to know that AFL courier company at Ludhiana had also delivered a parcel to the accused, no surveillance or investigation 17 NCB Vs. Sakshi Arya & Ors.
report in this regard has been filed before the court and therefore it is not clear as to who had provided the address of AFL courier company to the investigating agency. He has also pointed out certain discrepancies in the search authorizations issued by Pw4 RR Kumar (the same have been discussed herein below) and according to him the said documents were manipulated, fabricated to implicate the accused in the present case. According to the ld defence counsel there is no evidence brought on record to show that the accused Sakshi Arya had to do nothing with the import of the narcotic drugs into India. As per his submissions it is not the case of the prosecution itself that the accused had personally imported the consignment or that she had made any payment for the same or that she had any authority to deal with the said parcel. According to him mere fact that the office address of the accused was mentioned on the parcel cannot lead to the conclusion that the accused is guilty of illegal import of drugs into India. As regards the charge framed against the accused for being in conspiracy with Poonam Marwah and also having been charged for being in possession of opium that was recovered from the house of accused Poonam Marwah, Ld. Defence Counsel has contended that the accused has been wrongly charged u/s. 18(b) r/w Section 29 of the NDPS Act. He has pointed out that there is absolutely no evidence on record to show that accused Sakshi Arya had conspired with Poonam Marwah in possessing opium or that she had in any manner abetted or aided Poonam Marwah in 18 NCB Vs. Sakshi Arya & Ors.
possessing this opium allegedly recovered from her house. He has also pointed out various contradictions in the depositions of the members of the raiding team, which conducted the search at the house of accused Poonam Marwah to show that even the said search was never done and that no opium was recovered from the house of accused Poonam Marwah.
26. In support of his contentions Ld defence counsel has relied upon the following judgments: ● Emma Charlotte Eve Vs. Narcotics Control Bureau 2000 (2) JCC (Delhi) 331, ● DRI Vs. Raj Kumar Mehta & Ors. 2011 (3) JCC (Narcotics) 156, ● Ram Singh Vs. CBN 2011 (3) JCC (Narcotics) 140, ● CBN Vs. Bahadur Singh 2011 (11) JCC (Narcotics) 59, ● Rfaju Premji Vs. Customs NER Shillong Unit 2009 (3) Crimes 109 (SC), ● Noor Aga Vs. State of Punjab 2008 (3) R.C.R. (Criminal) 633,
27. I have given careful consideration to the submissions made by the Ld. Counsels. As narrated herein above, the case of the prosecution against the accused with respect to the charge of having conspired to import cocaine rests primarily on three pieces of evidence firstly the fact 19 NCB Vs. Sakshi Arya & Ors.
that the name of the proprietorship firm of the accused M/s Fair Deal Management was mentioned as the consignee of the parcel in question, secondly the statements of the employees of AFL Pvt. Ltd. which show that even on an earlier occasion the accused had taken delivery of a parcel sent from Canada in the name of M/s Fair Deal Management and thirdly the confessional statement of the accused tendered under Section 67 of the NDPS Act. Let us now first consider the confessional statement of the accused, for it is the said statement, which according to the prosecution conclusively proves the guilt of the accused. The relevant portion of the said statement wherein the accused is stated to have admitted her complicity in the present offence is as follows : "................two months back Poonam asked me to give my office address and told me that one courier parcel from Canada would come at my office address and that I should accept the parcel. When I asked her about the parcel she told me that this parcel belongs to one Raj Balwinder, her friend and this parcel would contain cocaine, a drug. On 10.09.2007 I received a parcel from Canada in my office. I informed Poonam on her Cell No. 9356008792 about this. She told me that she would get the parcel for my office. On the same day Tony the driver of Poonam came to my office and took the parcel. Further Poonam told me that she had received the parcel and that contained cocaine. She also told me that I would also get another parcel containing cocaine from Canada within 15 days. On being asked I stated that I made that only direction of Poonam. I made enquiries about the parcel at AFL office, Industrial Area, Ludhiana. But the parcel had not reached Ludhiana. I informed Poonam about this. She was very anxious about the parcel and told me that this parcel also belong to Raj Balvinder.
28. Now the accused has stepped into the witness box and has deposed that she was threatened to give the said statement and that the 20 NCB Vs. Sakshi Arya & Ors.
same was not given voluntarily and that she retracted it at the first available opportunity. Though I do agree with the Ld. Counsel for NCB that the mere retraction by the accused of her statement tendered u/s 67 NDPS Act should not be taken as proof of the fact that the accused had been threatened to give the said statement, however in my considered opinion the attendant circumstances of the present case force me not to place much reliance on the said statement. The said attendant circumstances infact show that the investigating agency has not brought out the full and true facts before this court. The first such circumstance is the failure of the prosecution to explain as to why no investigation whatsoever was made with respect to Raj Balvinder, whose name had been mentioned by the accused in her statement u/s 67 of the NDPS Act, as the person who was the owner of the parcel in question, in other words, who was the main culprit. The Intelligence officer Sh. A.K. Mishra who has filed the present complaint in his cross examination admits that he had come across the name of Raj Balvinder, who is a DSP of Punjab police, in the present case but that he did not initiate any action against the said person. He also admits that in his five years of service with NCB whenever the name of a person figures as recipient or source of supply of a contraband, he has never left out any such person from investigation. In other words though in other cases the NCB would have made investigation with respect to a person named in a statement, no such investigation was 21 NCB Vs. Sakshi Arya & Ors.
done in the present case against Raj Balvinder and the reasons for not doing so are apparently the status and position held by this person. The influence exerted by this person appears to be so much that in the present case despite the fact that there was a mobile number mentioned just below the address of the consignee on the parcel in question, and the number admittedly does not belong to the accused, no efforts were made by the Investigating agency to trace out the owner of the said number or if any investigation was made, the investigating agency does not want to reveal the result of the same. Further despite the fact that the judicial remand of the accused was got extended by the complainant beyond the period of 180 days for allegedly conducting investigation/enquiry from the Royal Canadian Mounted Police of Canada, the result of any such investigation or the investigation done with respect to the consignor, whose complete details were mentioned on the parcel in question, have not been revealed in the complaint. The Defence had specifically asked the Intelligence and Investigating Officers of this case as to why no investigation was done with respect to the consignor and owner of the mobile number mentioned alongwith the name of consignee and this is what the said Officers had to say. PW A.K. Mishra, the Officer who has filed the present complaint has deposed that no investigation was required to be done in this regard for the name of M/S Fair Deal Management was mentioned on the parcel in question and the NCB had preplanned the delivery of the parcel in 22 NCB Vs. Sakshi Arya & Ors.
question at the office of M/s Fairdeal and that in the presence of NCB officers the accused had infact received the parcel in question. PW13 Ajay Kumar also in his cross examination has deposed that he did not make any inquiry about the consignor of the said parcel as the delivery in the present case was a case of controlled delivery, as decided by the Zonal Director. How credible the said witnesses are can be inferred from the fact that in the entire complaint there is not a whisper that present is a case of controlled delivery and admittedly the accused never took delivery of the parcel in question. Either these witnesses have no clue about the case made out against the accused or perhaps the investigating agency at one point of time had thought of making controlled delivery to the accused but then did not want to face a situation where the accused would not have taken delivery of the parcel in question.
29. Further Ld. Defence counsel has also rightly pointed out that even as per the alleged confessional statement of the accused, she had no role in importing the contraband nor would she have acquired possession of it as she was required to hand over the same to Poonam Marwah. The contention of the Defence that the NCB officials in order to shield the real culprits coerced the accused to admit that she had the knowledge that the parcel in question contained cocaine and thereby framed the accused in this case cannot be brushed aside lightly if one considers the discrepancies 23 NCB Vs. Sakshi Arya & Ors.
that have come to the fore in the depositions of the witnesses, in whose presence the said alleged statement is asserted to have been tendered. As per the version of the prosecution the said statement was tendered by the accused to PW11 P.C. Khanduri who in his cross examination has stated that while recording the said statement 23 members of the raiding team including a lady ASI were present. None of the NCB officials who were part of the raiding team have stated in their evidence that they were present when the said statement was tendered. Further though the lady official PW20 SI Surinder Kaur has deposed in her examination in chief that the accused had given her statement Ex.PW11/E in her presence, in her crossexamination she is unable to state in presence of which NCB official was the said statement tendered. She is also unable to tell in her cross examination how many pages were there in the said statement and as to how many questions were asked or written in the said statement and how much time was taken by the accused to write the said statement. Further though the alleged statement Ex PW11/ E records that certain questions were put to the accused, this witness has deposed in her cross examination that in her presence there was no interrogation done from the accused during her statement, with regard to any cocaine, heroin, Ganja or any substance or with respect to any consignment from Canada or any other country nor the accused disclosed anything with regard to the same. As per this witness in her presence nobody asked the accused as to who is 24 NCB Vs. Sakshi Arya & Ors.
the owner of the contraband in question or whether the accused had booked or ordered the consignment in question. Further though very interestingly this witness has deposed that she had signed the confessional statement given by the accused and so had PW16 ASI Harbans Singh, the said statement does not bear the signatures of any of the said officials. Similarily PW16 ASI Harbans Singh has stated in his cross examination that he cannot state what was the interrogation done by the NCB officials of the accused with regard to any Narcotics Drug and that he does not know the number of questions that were put to the accused by Sh. Bhandari. As per his deposition in his crossexamination he does not know so since he was standing at a little distance from the accused while her statement was being recorded. In view of such depositions of PW20 and PW16 , the deposition of PW11P.C. Khanduri that the accused had tendered her voluntary statement in presence of the said officers can hardly be believed.
30. The contention of the Defence that the accused was framed in this case is also lent credence by the manipulations pointed out by the Defence in the documents namely the secret information reduced into writing, ExPW4/A and the authorisation warrants issued by PW4 Sh. R.R.Kumar for searching the office of Fair Deal Management and residence of accused i.e. Ex.PW11/A & Ex.PW11/B. A perusal of 25 NCB Vs. Sakshi Arya & Ors.
Ex.PW4/A shows that the secret information that a parcel suspected to contain cocaine is lying in the DHL office, was received by PW13 IO Ajay Kumar at 16.10 hours on 18.9.2007. However, according to PW15 I.O Manoj Kumar he had gone to Ludhiana on 18.9.2007 to search the premises of Fair Deal Management and had reached Ludhiana at about 4 p.m. i.e. to say he was at Ludhiana even before the alleged secret information was received. The said discrepancy shows either the document Ex.PW4/A is manipulated or PW15 Manoj Kumar has deposed incorrect facts before this court. The facts deposed by this witness in his cross examination have infact completely demolished the case of the prosecution . According to a statement made by this witness in his cross examination it was on 18/9/2007 that the office of the Sakshi Arya was searched and it was on 24/9/2007 that opium was recovered from the house of coaccused Poonam Marwah, though as per the averments in the complaint and the deposition of this witness in his chief examination, the office of Sakshi Arya was searched on 24/9/2007 and opium was recovered from the house of Poonam Marwah on 9/10/2007. Ld. Counsel for NCB, Sh. Narender Singh has submitted before this court that this witness of the prosecution got confused due to lengthy cross examination done and that this court must not give much importance to the discrepancies which have come to the fore in the cross examination of this witness. In my considered opinion the discrepancies pointed out by the 26 NCB Vs. Sakshi Arya & Ors.
Defence cannot be brushed aside lightly in such a manner for in a criminal case an accused has no other way to show that a false case has been foisted on him or her except to show that the witnesses examined by the prosecution are not telling the truth when they are making discrepant statements on material aspects of the case.
31. Coming now to the search authorisation warrant, Ex.PW11/A, vide the same Sh. P.K. Khanduri was authorised to search the office of Fair Deal Management, second floor, Gurbachan Market near Singla Hardware, Dholewal, Ludhiana. Now admittedly the land mark of Singla Hardware Dholewal was not mentioned in the consignee's name on the parcel in dispute. On the parcel the address of Fair Deal Management was only mentioned as second floor, Gurbachan Market, Ludhiana, Punjab. Further as per the evidence on record, the residential address of the accused was not revealed to NCB by the employees of DHL and therefore it is not clear as to how the said address was mentioned on the search authorisation warrant, before the apprehension of the accused. When asked about the said search authorisations, PW4 Sh. R.R. Kumar in his cross examination has deposed that Vikas Kumar IO had conducted discreet inquiries regarding the recipient's address and therefore it is being contended by the Ld. Counsel for NCB that the said inquiry would have revealed the complete address of Fairdeal Management and the residential 27 NCB Vs. Sakshi Arya & Ors.
address of the accused and that therefore there is no discrepancy in the mentioning of the said details in the search authorisation warrants. The said explanation given on behalf of the Ld. Counsel would have been acceptable if the IO Vikas Kumar in his deposition would have mentioned that he had made any discreet inquiry with respect to the address of the Fair Deal Management or that of the accused. However, it is a matter of record that in his examination in chief this witness has not stated a word about the said inquiry and according to his deposition he had gone to Ludhiana for the first time alongwith P.C. Khanduri on 24/9/2007.
32. Further as per the evidence on record it is also not revealed as to how the investigating team came to know that a parcel from Canada had been delivered to Fair Deal Management by AFL Courier Company on 10.9.2007. Though in para 12 of the complaint it has been asserted that during the course of surveillance and investigation, the said fact came to be known to NCB, no document whatsoever has been filed in the court with respect to the said investigation nor has any witness deposed anything in this regard. On the contrary PW11 Inspector P.C Khanduri in his cross examination has stated that he has no knowledge as to whether any investigation was conducted with regard to the said courier company. He has also stated that he is not aware whether the said courier company is a franchise of DHL courier company or not.
28 NCB Vs. Sakshi Arya & Ors.
33. The aforementioned discussed discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecution's case must be held to be lacking in credibility. The only inference that can be drawn in view of the circumstances discussed hereinabove is that the complainant did not wish to investigate the complete facts of this case and did not want to catch the real culprits and therefore the possibility that the accused was coerced and forced to admit her complicity in the present case so as to stop further investigation in the present case cannot be ruled out. This court cannot ignore the fact that the statement of the accused was allegedly recorded in the presence of police officials of Ludhiana and the accused was also taken into custody in Ludhiana where the said Raj Balwinder, the DSP Of Police would have yielded much influence and the possibility that NCB Officials, whose conduct discussed hereinabove shows that they were averse to conduct any investigation against the said DSP would have coerced the accused to admit that she had the knowledge that the parcel of which she had agreed to take delivery, contained cocaine, cannot be ruled out. It has been held by the Hon'ble Supreme Court in the case reported as Noor Aga Vs. State of Punjab, 2008 (10) SCR 379 that the burden of proving that a confession was voluntary is upon the prosecution and the standard of proof required to prove the guilt of the accused on the 29 NCB Vs. Sakshi Arya & Ors.
prosecution is "beyond all reasonable doubt" but the standard of proof required for the accused to prove his or her innocence is "preponderance of probability". Keeping the aforementioned principle in mind I am of the considered opinion that the accused has been able to sufficiently show on the preponderance of probability that her statement was not given voluntarily.
34. Now if no reliance can be placed upon the retracted confessional statement of the accused, and the credibility of the witnesses of the prosecution is also in doubt, in my considered opinion, the other two pieces of evidence are not sufficient to hold the accused guilty of the offence of having imported or having conspired to import cocaine. In the absence of the actual delivery and acceptance of the parcel in question by the accused, the mere mentioning of the name of her proprietorship firm as the consignee on the parcel, cannot be sufficient to hold her guilty of importing heroin. The tampering of the said parcel cannot also be ruled out in view of the deposition of PW5 Anish Khan and PW7 P.N. Bhatt, the employees of DHL courier who have stated in their cross examination that they cannot tell since when the said parcel was lying in their office and who was the custodian of the said parcel. The deposition of the witnesses in whose presence the said parcel was allegedly opened is not even consistent with each other with respect to the description of the parcel. As 30 NCB Vs. Sakshi Arya & Ors.
per the case of the prosecution the parcel in question was opened in the presence of two NCB officials namely PW13 Ajay Kumar and PW12 Shiv Ratan Havaldar and two employees of the DHL courier namely PW5 and PW7. Though according to PW12 and PW5, the parcel was contained in DHL Flyer cover, PW13 and PW7 have not deposed anything about the said cover. Further PW12 Hawaldar Shiv Rattan, the NCB official, in whose presence the said parcel was allegedly opened has deposed in his crossexamination that when the parcel was produced before the NCB officials the same was already opened from one side and that this deposition itself makes it clear that the possibility of tampering with parcel in question cannot be ruled out altogether. The Hon'ble Supreme Court has reiterated more than once that in cases filed under the NDPS Act, where the said statute confers drastic powers and provides for stringent penal provisions, greater care has to be taken that all the safeguards provided in the statutes have been scrupulously followed. As regards the fact that the accused had earlier also taken delivery of a parcel consigned in the name of M/s Fair Deal Management from Canada, even if is taken to have been proved in view of the testimony of PW Tara Singh, the delivery boy of the courier company AFL, all that it proves is that the accused had taken the delivery of some documents which were sent vide the said parcel. The airway bill pertaining to the said parcel reflects that only documents had been consigned vide the said parcel in the name of one Jass Gill and in the 31 NCB Vs. Sakshi Arya & Ors.
absence of any proof that the said parcel contained heroin, the mere fact that accused took delivery of the said parcel cannot be sufficient to hold her guilty of having imported or to have agreed to import heroin.
35. Coming now to the charge framed against the accused with respect to the recovery of 45 grams of opium from the house of co accused Poonam Marwah, I am of the considered opinion that there is no evidence whatsoever produced on record to show that the accused Sakshi Arya had anything to do with the said contraband. There is not a whisper even in the alleged confessional statement of the accused that the drug opium was delivered by her to accused Poonam Marwah or that she had the knowledge that Poonam Marwah also had in her possession opium or that there was any agreement whatsoever with respect to the said contraband. The mere fact that the address of accused Poonam Marwah was furnished by accused Sakshi Arya is not even prime facie sufficient to hold that this accused had aided, abetted or conspired with accused Poonam Marwah in acquiring the said opium and I, therefore, do not find it necessary to discuss the discrepancies in the evidence of the witnesses who have deposed about the recovery proceedings allegedly conducted at the house of Poonam Marwah.
36. In view of my discussion hereinabove, it is hereby held that the 32 NCB Vs. Sakshi Arya & Ors.
prosecution has not been able to prove beyond reasonable doubt any of the charges against the accused Sakshi Arya and therefore she is hereby acquitted.
Announced in open Court on this 21st day of December, 2011 (Anu Grover Baliga ) Special Judge NDPS : New Delhi Patiala House : New Delhi 33