Delhi District Court
Sc No. 628/2018 Custom vs . Mohd. Nadeem Page No. 1/49 on 17 January, 2019
IN THE COURT OF AJAY GOEL, ADDL. SESSIONS
JUDGE-SPECIAL JUDGE (NDPS), DWARKA COURTS,
NEW DELHI.
Sessions Case No. 628/2018
U/s: 21(c)/23(c)/28 NDPS Act
Department of Customs
Through Sh. Dinesh Bhardwaj,
Air Customs Officer,
IGI Airport, New Delhi. ..... Complainant
VERSUS
Mohd. Nadeem,
S/o Sh. Azad,
R/o Village Baghonwali,
PS-New Mandi,
Muzaffarnagar, UP. ..... Accused
Date of Filing of complaint : 10.08.2018
Date of Final Arguments : 15.01.2019
Date of Judgment : 17.01.2019
JUDGMENT:
CASE OF PROSECUTION:
1. The case of custom department in brief is that on 13.02.2018, accused herein was intercepted SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 1/49 at IGI Airport, New Delhi along with his baggage having baggage Tag No. AI 099428 while accused was going to Riyadh by Air India Flight No. AI 925 dated 13.02.2018. The identity of accused was established from his travel documents and accused was asked whether he was carrying any India/Foreign Currency or any narcotics drugs with him to which accused replied in negative. AIU staff asked orally the airline staff to produce the checked-in-baggage of the accused for examination and accordingly, the airline staff produced the checked-in-baggage before the customs officer.
2. It is the case of customs that accused was introduced to the panch witnesses and in the presence of panch witnesses, the accused was passed through DFMD and no loud beep was heard.
It is stated that after that the baggage of accused was passed through X-ray installed in arrival hall and SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 2/49 some suspicious images were noticed and thus accused was brought to the preventive room.
3. Thereafter, notice U/s 50 of NDPS Act was served upon accused in the presence of panch witnesses Sh. Bhag Chand and Sh. Manish. By virtue of said notice, accused was apprised about his legal rights. It is averred that in the presence of said panch witnesses, the accused was again asked about Indian/Foreign Currency or narcotics drug being carried by him to which he again denied. Thereafter, personal search of the accused was conducted by customs officer which resulted into recovery of some currency, passport of accused, boarding pass and an old and used mobile etc.
4. It is further the case of customs that check in baggage of accused was examined and same was found containing 145 bottles of Chlorpheniramine Maleate & Codeine Phosphate Cough Linctus SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 3/49 PHENSEDYL COUGH LINCTUS 100 ML. The said bottles were containing Codeine Phosphate which is a covered drug under the NDPS Act. It is averred that on being asked, accused failed to produce any evidence or document for lawful possession and export of the recovered said bottles, therefore, the said bottles and concealing material were seized under the provisions of NDPS Act vide panchnama prepared by Customs officers. Thereafter, the case property was sealed with the custom seal and detained vide DR No. 29599 dated 13.02.2018 and the recovered case property and concealing material was deposited in the godown as per rules on completing formalities. The travel documents of accused i.e. boarding pass, baggage tag and part of checked in baggage tag were detained by the investigating officer for further investigation in the matter.
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5. Thereafter, accused tendered his voluntary statement U/s 67 of NDPS Act wherein accused admitted the recovery of drug kept in the aforesaid bottles, his involvement in the illegal possession and export of the recovered drug besides the other facts.
6. It is averred that vide arrest Memo dated 14.02.2018, accused was put under arrest and ground of arrest was read over and explained to accused and medical examination of accused was also conducted. It is further the case of customs that seizing officer prepared seizure report U/s 57 of NDPS Act and was put up before Sh. Kulwant Singh. It is stated that arrest report U/s 57 of NDPS Act was also prepared by seizing officer and was also put up before Sh. Kulwant Singh.
7. It is further averred that an application U/s 52- A of NDPS Act for drawl of samples was filed before the court which was allowed vide order dated SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 5/49 27.02.2018. It is stated that the sample drawn from the case property was forwarded to the laboratory vide Authorisation letter, the sample was tested vide test report and same was found positive for Codeine Phosphate. It is stated that the case property and samples deposited in the godown vide godown register entry. After completion of the investigation, present complaint was filed against accused by custom department.
8. It is pertinent to mention here that a supplementary complaint was filed in the court against accused Faisal Mouli whose name was disclosed by accused Mohd. Nadeem in his disclosure statement. Said accused Faisal Mouli was discharged for the offence charged in the charge sheet vide order dated 20.09.2018 passed by the court as no recovery was effected from accused Faizal Mouli and their call details were not tallying. SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 6/49 CHARGE:
9. After hearing the arguments, charges U/s 21
(c), 23 (c) & 28 NDPS Act was framed against the accused vide order dated 20.09.2018 passed by the court to which accused pleaded not guilty and claimed trial.
Prosecution Evidence:
10. In support of its case, custom department had examined following witnesses:
PW-1 is Sh. Bhaga Chand. He is one of the panch witnesses in this case. However, he failed to identify the accused in the court. He was cross- examined by Ld. SPP for the customs. PW-2 is Ms. Mukta Srivastava, Chemical Examiner. She deposed that sample was received in their office for chemical analysis which was SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 7/49 allotted to Dr. Anil Mahendrakar. The receipt was proved on Ex. PW-2/A and attested copy of test report was Ex. PW-2/B. PW-3 is Dr. T. C. Tanwar, Chemical Examiner. He proved the letter received in the office of CRCL as Ex. PW-3/A. He further deposed that in response to said letter, he had written letter dated 02.07.2018 which was Ex. PW-3/B. PW-4 is Sh. Anil Kumar, Assistant Grade-1, Warehouse. He deposed regarding receipt of two packets in CWC Godown. He further deposed that same were handed over to Custom Officer in pursuance of letter Ex. PW-4/A. He also proved the entry made in register as Ex. PW-4/B. PW-5 is Sh. Manish Kumar. He is also one of the panch witnesses in this case. However, he failed to identify the accused in the court. He was cross-
examined by Ld. SPP for the customs.
SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 8/49 PW-6 is Sh. Jaswinder Singh. He deposed that on 13.02.2018, he was on duty and was working as Superintendent at CWC. He further deposed that Sh. Neeraj Kumar Vashisht, ACO came to their office and requested to deposit the corrugated boxes said to contain 145 bottles of cough syrup and he received the same. He further deposed that he had received the summons from Air Customs Superintendent which was Ex. PW-6/A. He also deposed that in pursuance of said summons, he appeared before ACS and tendered his voluntary statement Ex. PW-6/B. PW-7 is Dr. Anil N. Mahindrakar, Assistant Chemical Examiner. He deposed sample in the present case were received in their office and he examined the same after their allotment to him by Ms. Mukta Srivastava. He further deposed that it was sample under reference was found positive for SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 9/49 codeine phosphate.
PW-8 is Sh. Rajesh Kumar. He deposed regarding receipt of intelligence telephonically qua one pax/ accused Mohd. Nadeem from Dr. Anees C, Assistant Commissioner, AIU. He further deposed regarding interception of accused consequent to intelligence. He proved the report regarding information as Ex. PW-8/A. PW-9 is Sh. Rohit Kumar. He had witnessed the proceedings qua the forensic examination of mobile phone which was recovered from pax. He identified his signatures at point A on panchnama Ex. PW-9/A. PW-10 is Sh. Anurudh. He had also witnessed the proceedings qua the forensic examination of mobile phone which was recovered from pax. He identified his signatures at point B on panchnama Ex. PW-9/A. SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 10/49 PW-11 is Sh. Santosh Kumar. He is a witness who has conducted forensic examination of mobile phone on the request of customs official. He proved the paper slip affixed on box wherein mobile phone was kept as Ex. PW-11/P1, the mobile phone as Ex. PW-11/P2 and pen drive as Ex. PW-11/P3.
PW-12 is Sh. Neeraj Kumar Vashisht, Superintendent. He deposed that in the morning of 13.02.2018, Sh. Rajesh Kumar, ACS had handed over him one passenger namely Mohd. Nadeem alongwith one checked-in-baggage and one hand bag for conducting further proceedings. He deposed that he had tole me that said passenger was intercepted and 145 bottles were found in his baggage. This witness had deposed regarding further investigation done by him in his case. PW-13 is Sh. Sandeep Rana, Superintendent. SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 11/49 He deposed that on the instructions and secret intelligence regarding accused as received from Superintendent Sh. Rajesh Kumar, he alongwith his colleague Sh. Dilip Meena, ACO went to departure Hall and informed airline staff that one passenger Mohd. Nadeem would come to collect his boarding pass and requested the airline staff to intimate him as and when said pax comes. He further deposed regarding interception of accused after crossing immigration.
PW-14 is Sh. Kulwant Singh, Superintendent. He deposed that AIR Intelligence Unit Staff had intercepted one passenger namely Mohd. Nadeem and he was handed over to Sh. Neeraj Vashishtha, ACO for further course of action. He proved the report U/s 57 of NDPS Act as Ex. PW-14/A, voluntary statement of accused U/s 67 of NDPS Act as Ex. PW-14/B, summons issued to accused as Ex. SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 12/49 PW-14/C, another statement of accused as Ex. PW- 14/D, report U/s 57 of NDPS Act as Ex. PW-14/E, a letter written to MS, RML Hospital for conducting medical examination of accused as Ex. PW-14/F, letter dated 27.02.2018 to the Chemical Examiner as Ex. PW-14/G, summons issued to Sh. Anil Kumar as Ex. PW-14/H, statement of said Anil Kumar as Ex. PW-14/J, summons issued to Faizal as Ex. PW- 14/K and statement of said Faizal as Ex. PW-14/L. PW-15 is Dr. Anees C, Deputy Commissioner. He deposed that on the intervening night of 12/13.02.2018, he was posted in Air Intelligence Unit as Assistant Commissioner and he received a telephonic information regarding one pax namely Mohd. Nadeem to the effect that said pax is suspected to carry some prohibited items and he passed the said information telephonically to Sh. Rajesh Kumar, Superintendent Customs. SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 13/49 PW-16 is Sh. Deepak Kumar, ACO. He is a witness who had taken the samples on the directions of senior custom officers to CRCL. The Forwarding letter was proved as Ex. PW-16/A and acknowledgment of deposition of sample as Ex. PW-2/A. PW-17 is Sh. Uman Chopra, Assistant Commissioner. He deposed that he had written a letter to the Manager, CWC Godown for release of goods. He identified his signatures at point A on the test memo Ex. PW-17/A. PW-18 is Sh. Kailash Kataria, ACS. He deposed that he had written a letter to Chemical Examiner, CRCL on 19.06.2018 requesting him to forward the final report of sample. He further deposed that in pursuance of said letter, he received a letter from Chemical Examiner informing that the remnant sample with test report had already been SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 14/49 dispatched by the office of CRCL. He proved the statement of accused as Ex. PW-18/A. PW-19 is Sh. Dinesh Bhardwaj, ACO. He deposed that he had seen the complaint of present matter which has been filed by him in the court and he proved the said complaint as Ex. PW-19/A. During evidence, Ld. SPP for the Customs Ms. Mala Sharma made statement for dropping Sh. Dilip Meena, ACO on the ground that he is a witness pertaining to same facts as deposed by PW-13 Sh. Sandeep Rana, Superintendent. Hence, said Sh. Dilip Meena was allowed to be dropped vide order dated 04.01.2019.
The Counsel for accused also made his statement and admitted the MLC of accused and proceedings U/s 52-A of NDPS Act conducted by Sh. Samar Vishal, Ld. MM, hence witnesses namely Dr. Ananta Kanwar, CMO and Sh. Samar Vishal, Ld. SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 15/49 MM were requested to be dropped. Hence, on the statement of counsel for defence, said witnesses were dropped vide order dated 04.01.2019. STATEMENT OF ACCUSED:
11. After recording of the testimonies of the aforesaid PWs, the statement of the accused U/s 313 Cr. P. C. was recorded. During recording of statement of accused, it was stated that false case has been planted upon him and he pleaded his innocence. It was also stated that no contraband was recovered from his possession or from his bag and customs officers forcefully obtained his signatures on some blank and semi-printed papers at the custom office which were later on converted into different documents to make out a false case against him. He further stated that no notice U/s 50 of NDPS Act was served upon him and he was not apprised about his SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 16/49 legal rights.
12. I have heard the submissions of Ms. Mala Sharma, Ld. Special Public Prosecutor for the Customs and Sh. Vikas Bharti, Ld. Defence Counsel from Legal Aid.
ARGUMENTS OF PROSECUTION:
13. Ms. Mala Sharma, Ld. Special Public Prosecutor for the Customs submitted on the line of case filed by the department as well as on the line of the deposition of the aforesaid witnesses. Ld. SPP for the Customs stated that check in bag of accused was examined which was found containing 145 bottles of Chlorpheniramine Meleate & Codeine Phosphate Cough Linctus Phensedyl Cough Linctus 100 ML each. On being asked, accused herein failed to produce any evidence documentary or otherwise in support of lawful possession and export of the above said SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 17/49 recovered bottles. Thus, he is liable to be punished for the offences committed by him.
ARGUMENTS OF DEFENCE:
14. On the other hand, Ld. Defence Counsel for accused submitted that accused has been falsely implicated in the present case and he has no relation or concern with the alleged recovery of the said bottles. He further submitted that the alleged bottles stated to be recovered from the baggage of accused does not belong to accused. Ld. Defence Counsel argued that there are material contradictions in the testimony of the prosecution witnesses which falsify the case of prosecution. It is further argued the Panch witnesses in the present case in whose presence, the recovery was effected, have failed to identified the accused and they seem to be stock witnesses and their deposition in court has created dent to the case SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 18/49 of custom department.
JUDGMENTS RELIED UPON BY LD. SPP FOR CUSTOMS:
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58;
2) Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) 174;
3) Pon Adithan Vs. Deputy Director NCB, Madras (1999) 6 SCC 1;
4) Raj Kumar Karwal Vs. UOI 1991 Crl. Law Journal 97 (SC);
5) M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631
6) Kanhaiya Lal Vs. UOI-2008 (1) JCC (Narcotics) 23;
7) Dalel Singh Vs. State of Haryana (2010) 1 SCC 149,
8) Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692, SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 19/49
9) Karnail Singh Vs. State of Haryana (2009) 8 SCC 539,
10) Firsozuddin Basheerudin & Ors. Vs. State of Kerala 2001 VI AD SC 413,
11) Banobi & Anr Vs. State of Maharashtra & Ors. JT 1999 (8) SC 125
12) State of Punjab Vs. Baldev Singh (1999) 3 SCC 977.
JUDGMENT RELIED UPON BY LD. DEFENCE COUNSEL:
1) Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab & Anr. Reported in (2009) 12 SCC 161 and JT 2008 (7) SC 409;
2) Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1;
3) Jagdish Vs. State of M. P. (2003) 9 Supreme Court Cases 159.
15. I have considered the submissions of Ld. SPP SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 20/49 for the Customs as well as Ld. Defence Counsel and gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence.
FINDINGS:
16. Ld. SPP for Customs has drawn the attention of the court to Section 50 and Section 67 of NDPS Act and relied upon case titled Rehmatullah Vs. NCB (2008) (3) JCC (Narcotics) 174, wherein it was held that section 67 NDPS Act permits the recording of statement made by the officers of NCB who are not the police officers. At this stage, the person concerned is not an accused although he may be said to be in custody but on the basis of statement made by him, he could be made an accused subsequently. It is further held in Pon Adithan Vs. Deputy SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 21/49 Director NCB, Madras (1999) 6 SCC 1 that :
"Even if a person is placed under arrest and thereafter makes a statement which seeks to incriminate him, the bar under article 20 (3) of the Constitution would not operate against him if such statement was given voluntarily and without any threat or compulsion and if supported by corroborating evidence".
17. In case Raj Kumar Karwal Vs. UOI 1991 Crl. Law Journal 97 (SC) it was held that such statement made to officer of department of Revenue Intelligence were not hit by Section 25 of the Evidence Act though twin tests of voluntariness and truthfulness have to be satisfied by the Court. Further in M. Prabhu Lal Vs. Asst. Director Supra, it has been held that if confessional statement is found to be voluntary and free from pressure, it can be SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 22/49 accepted. No doubt, it all depends upon facts and circumstances of each case and no hard and fast rule can be laid down in this connection, as to whether the alleged confessional statement should be accepted. Though Ld. Counsel for Customs has stated that accused has filed the application for retraction from confession and they have filed the reply to the same so the court should take the confession as correct and retraction should not be allowed. As observed above, this court is not deciding the case solely on the basis of confession because same is only point of the whole case. Even if confession is accepted still it requires corroboration which depends on the evidence as available on record.
18. So in view of law laid down in the case M. Prabhulal Vs. A. D. DRI 2003 (3) JCC 1631 Scm Rehmatulla Vs. NCB - 2008 (3) JCC (Narcotics) 174, Kanhaiya Lal Vs. UOI-2008 (1) JCC SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 23/49 (Narcotics) 23, the statement U/s 67 can be made basis for conviction but corroboration is required in the present matter, so statement U/s 67 of NPDS Act is not so important and is of no use and same does not strengthen the case of customs in the facts of the present case.
19. In the instant case, there is not enough material to prove the guilt of accused beyond doubt and technical as well as factual defects are there. Ld. SPP for Custom in support of his contentions also placed reliance on the case titled Dalel Singh Vs. State of Haryana (2010) 1 SCC 149, Sajan Abrahan Vs. State of Kerala (2001) 6 SCC 692, Karnail Singh Vs. State of Haryana (2009) 8 SCC 539, Firsozuddin Basheerudin & Ors. Vs. State of Kerala 2001 VI AD SC 413, Banobi & Anr Vs. State of Maharashtra & Ors. JT 1999 (8) SC 125.
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20. So far as argument raised by Ld. Defence counsel with respect to section 50 of NDPS Act is concerned, Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
21. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 25/49 officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by State of Punjab Vs. Baldev Singh (1999) 3 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 26/49 Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazette Officer or a Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was substantial compliance with the requirement of SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 27/49 Section 50 of NDPS Act. The Court did not agree with the contention that there was non- compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made".
22. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 28/49 suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
23. Now this court will proceed to decide as to whether all norms required in such cases have been fulfilled or not.
24. Reliance is placed upon judgment titled as Parveen Singh @ Kalia Vs. State of NCT of Delhi 2011 (1) JCC (Narcotics) 1 wherein the Hon'ble High Court of Delhi has held as under:- SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 29/49
"Substantial Compliance of - Notice in the states that since there is an information as to the possession of heroin and he (accused) has been apprehended and is required to be searched, if he so desires he can first take the search of the police party
- On refusal, the appellant was asked that if he so desire then his search can be taken before a Magistrate or a Gazetted Officer - This was also declined by the appellant - A perusal of the notice under Section 50 of NDPS Act and the testimony of PW11 the Investigating Officer shows that the appellant was informed only about the option and not about his right of being searched before a Magistrate or a Gazetted Officer- The appellant is thus entitled to be acquitted."
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25. I have perused the notices U/s 50 NDPS Act Ex. PW-1/B. The word mentioned is "Legal Right". The accused has appended his noting from point X to X on the notice U/s 50 of NDPS Act in Hindi to the effect that any custom officer can take his search. His signatures are appearing at point D. From perusal of notice U/s 50 NDPS Act Ex. PW-1/B, it is clear that accused had understood the contents of said notice and thereafter, he appended his signatures on the said notice. So there is sufficient compliance and this defence is not available to the accused and argument qua the same is discarded as observed below.
26. Even otherwise, recovery of contraband in the present case was not effected from the person of accused but from checked in baggage of accused, hence effect of Section 50 of NDPS Act losses its significance and is not applicable in the present case. SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 31/49
27. To come at some conclusion, the evidence of prosecution witnesses is required to be gone through and discussed in the judgment.
28. Sh. Bhaga Chand was examined as PW-1. He is one of the panch witnesses in this case. During recording of his examination in chief, though initially, he supported the case of customs but he failed to identify the accused after seeing in the court room as well as outside the court room. In his cross- examination conducted by Ld. SPP, he deposed that "I cannot identify the accused. The accused had remained with me for 1 hour on that day. It is correct that all the proceedings were carried out in my presence as well as in the presence of accused but today I am unable to identify him, even if shown to me.
29. From his above deposition, it is clear that accused had remained with this witness for sufficient time and all the proceedings were carried out in his SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 32/49 presence as well as in the presence of accused still he failed to identify the accused. In his cross- examination, he has admitted that cameras are installed in the area. But no such footage of said proceedings have been placed on record. He has also admitted that he was made Panch witness in another case but he failed to tell the name of said case. Thus it seems that he is a stock witness produced by customs.
30. PW-2 Ms. Mukta Srivastava, Chemical Examiner had deposed that sample was received in their office for chemical analysis which was allotted to Dr. Anil Mahendrakar. The receipt was proved on Ex. PW-2/A and attested copy of test report was Ex. PW-2/B. She has deposed that when the sample was taken out, the seals affixed thereon were in intact condition and sample was analyzed by Sh. Anil Mahendrakar under his direct supervision. She further deposed that SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 33/49 sample under reference was found positive for Codeine Phosphate.
31. Even otherwise also, this evidence itself is not sufficient unless corroboration is proved because report of Chemical Examiner only suggests that it was contraband material but still prosecution was bound to prove that it was recovered from the accused.
32. Dr. T. C. Tanwar, Chemical Examiner was examined as PW-3 and he is a formal witness who proved the letter received in the office of CRCL as Ex. PW-3/A. He further deposed that in response to said letter, he had written letter dated 02.07.2018 which was Ex. PW-3/B.
33. PW-5 Sh. Manish Kumar is another one of the panch witnesses in this case. In his examination in chief in para No. 1 recorded on 14.11.2018, he deposed that "When I went in the room to clean SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 34/49 the said room, I saw that some bottles were lying on the table and blue colour sticker was affixed on each bottle. The customs officer had prepared the documents and they requested me to put my signatures on the documents prepared by them. To which, I readily agreed to put my signatures on the documents".
34. From his above deposition, it is clear that bottles were lying on the table, it means that customs officer had already opened the bag before calling the panch witness. From above deposition, it is further clear that documents were already prepared by customs officers in mechanical manner just to complete the formalities and PW-5 was simplicitor asked to sign those documents.
35. In para No. 4 of his examination in chief, he deposed that "This is my first case in which I had participated as a panch witness. Prior to this SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 35/49 case, I had never signed any document. I have appeared in the Court first time. I cannot identify the accused as I have not seen the accused on date of seizure". From the above discussion, it is clear and apparent that PW-5 had not seen the accused on the date of seizure and he has cited this reason for not identifying the accused in the court. The deposition of PW-5 to the effect that this is his first case in which he participated as panch witness and that he had never signed any document prior to this case and further that he had appeared in the court first time is totally false, belied and is rejected from the fact that both panch witnesses namely Sh. Bhag Chand and Sh. Manish had also appeared in the court being Panch Witnesses in case titled as Customs Vs. Aman Kumar which has been decided by this court and it is observed that they are stock witnesses produced by Customs and they SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 36/49 seems to be planted in this case as panch witness just to complete the mandate of law. Moreover, recovery proceedings were conducted in this case on 13.02.2018 and recovery proceedings in case titled as Customs Vs. Aman Kumar were conducted on 27.10.2017 which is prior to present case. So deposition of PW-5 that this is his first case being panch witness is totally false and baseless.
36. In cross-examination conducted by Ld. SPP for the customs, PW-5 Manish again admitted that "It is correct that on 13.02.2018, some bottles were lying on the table and the customs officers asked me and Bhagchand to join as a panchwitness, to which we agreed. The said bottles and one black colour bag were lying on the table." He further deposed that his signatures were obtained on blank papers. In the cross- examination conducted by Ld. Defence counsel, he SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 37/49 deposed that "When I saw the bottles, two custom officers and myself were present. There was only one bag lying on the table, which I had saw. I do not know, if any bag was lying on the floor. Sh. Bhagchand was not present when I entered in the room and he had already left the room before my arrival. I do not know about the contents of the documents which I had signed. No tag was removed in my presence. It is further wrong to suggest that I put my signature at the instance of Customs officers due to fear of loosing my job. I do not know the number of bottles which were taken into possession by the Customs officers. I also do not know about the contents written on the bottles. It is correct that no articles was sealed in my presence". It has come in his evidence that his signatures were obtained on blank papers. When SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 38/49 he entered the room, another witness had already left. He failed to tell the contents of documents and same seems to have been prepared in mechanical manner. It is observed that panch witnesses of this case are stock witness who join the proceedings at the instance of customs officers and they cannot be termed as independent witness. Moreover, they have not supported the case of customs. Thus, it is clear that panch witnesses of this case have totally demolished the case of customs department. They have also weakened the case of customs and in these circumstances, their testimonies are relevant for accused.
37. The Ld. Defence counsel has placed reliance upon judgment titled as Jagdish Vs. State of M. P. (2003) 9 Supreme Court Cases 159 wherein it was held that "Conviction under, solely on basis of testimony of PW 1 who searched the SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 39/49 accused - appellant without any prior information or entertaining any suspicion regarding the involvement of appellant - Recovery of opium from appellant's attache - Testimony of PW 1 contradicted as panch witnesses denying that a search and seizure or recovery of opium took place in their presence
- Even driver and conductor of the bus declared hostile- Held, evidence on which prosecution case hinges suffers from infirmities and it would not be safe to rely upon the sole testimony of PW 1 to hold the appellant guilty - Hence, conviction and sentence st aside".
38. This above judgment is fully applicable to the facts of present case as panch witnesses have not supported the case of custom. Thus the evidence on which custom's case hinges suffers from infirmities. SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 40/49
39. Reliance is also placed upon judgment passed by Hon'ble Supreme Court in case titled as Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab & Anr. Reported in (2009) 12 SCC 161 and JT 2008 (7) SC 409 respectively wherein it was held that "purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement". In para No. 28 of said judgment, it was held that "If a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence". The above judgment is fully applicable to the present case.
40. Reliance is placed upon judgment titled as D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416 to contend that "if a person in custody is subjected to interrogation, he must be SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 41/49 informed in clear and unequivocal terms as to his right to silence".
41. The Ld. SPP has relied upon case titled as Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 wherein it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons-falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar". But again this judgment is not applicable to the facts of the present case.
42. PW-9 Sh. Rohit Kumar is another material SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 42/49 witness of the case. He had witnessed the proceedings qua the forensic examination of mobile phone which was recovered from pax. He identified his signatures at point A on panchnama Ex. PW-9/A. In the cross-examination, this witness also admitted that CCTVs were installed in the arrival hall but no such videography of said footage have been placed on record. PW-10 Sh. Anurudh has also deposed on similar lines as of PW-9.
43. PW-12 Sh. Neeraj Kumar Vashisht, now Superintendent is another material witness in this case. He deposed that in the morning of 13.02.2018, Sh. Rajesh Kumar, ACS had handed over him one passenger namely Mohd. Nadeem alongwith one checked-in-baggage and one hand bag for conducting further proceedings. He deposed that he had tole me that said passenger was intercepted and 145 bottles were found in his baggage. This witness SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 43/49 had deposed regarding further investigation done by him in his case. The part of checked-in-baggage tag was proved as Ex. PW-12/A. The baggage tag removed from bag and placed on judicial file was proved as Ex. PW-12/B, arrest memo as Ex. PW-12/C, personal search memo of accused as Ex. PW-12/D, the application U/s 52A of NDPS Act as Ex. PW-12/G and the proceedings dated 27.02.2018 as Ex. PW- 12/H. In his cross-examination, conducted on 09.01.2019, he deposed that "When I received the pax alongwith baggage, the lock was not found on the baggage when I received the same. The zip of said baggage was 90% closed. ....... No camera recording was conducted qua the panchnama proceeding. No permission was obtained from the seniors of the panch witnesses." So this witness had admitted that when baggage was received by him, there was no lock on SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 44/49 the same and rather, zip of said baggage was not completely closed. It shows the possibility and it casts suspicion that small bottle of cough syrup can be put in the same.
44. The other witnesses have deposed as per their role in the investigation and proceedings conducted in the present case.
45. Sh. Dinesh Bhardwaj, ACO was examined as PW-19 in this case. He deposed that he had seen the complaint of present matter which has been filed by him in the court and he proved the said complaint as Ex. PW-19/A.
46. To the utmost shock and surprise, in his cross-
examination dated 14.01.2019, he deposed that "It is correct that complaint does not bear my signatures and it bears signatures of only counsel Ms. Mala Sharma. Same is with respect to list of witnesses but the memo SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 45/49 showing the pages bears my signatures at point A. ....... I was second IO. All the proceedings have been completed by first IO. I cannot tell averments without going through the file. (Vol. The filing of complaint was mere formality as all the proceedings were conducted by first IO who has merely handed over me the material to file in the court). It is correct that I have not carried out any investigation in the present matter. It is also correct that I have filed the complaint on the basis of material handed over to me by 1st IO". From his above deposition, it is clear that though he was 2nd IO of the case and all the proceedings were conducted by first IO who had handed him over all the material to file the complaint in the court but he seems to have filed the complaint and other relevant documents without application of mind as he even SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 46/49 failed to sign the same being 2nd IO of the case.
47. From above discussion, it is clear that there are several lacunas in the proceedings and investigation done by customs officials and Custom officers should have not acted in such casual manner seeing the seriousness of the offence.
48. It has to be kept in mind that whole area of Airport is under CCTV surveillance. Rather, CCTV Footage of accused of particular date and time could have been placed on record to prove the case of prosecution and to ascertain the guilt of accused which has not been done in the present case. As per the case of prosecution, if accused was having the bag containing contraband and baggage of the accused was appearing to contain suspicious items during x-ray process and later on, contraband was recovered from said baggage. Video recording of all these proceedings apart from his booking of checked SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 47/49 in baggage at airline counter should have been placed on record to prove the guilt of accused.
49. In the instant case, all procedural safeguards provided under a statute have not been strictly complied with. The prosecution has not discharged its burden of proving its case against the accused beyond all reasonable doubt.
50. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the opinion that there are many reasons to discredit the inconsistent testimony of prosecution witnesses.
51. In view of the documents available on record, testimonies of the prosecution witnesses and the aforesaid discussion, this court holds that prosecution has not proved its case beyond shadow of doubt. He is given benefit of doubt qua the charged sections.
52. It is observed that the ingredients of section SC No. 628/2018 Custom Vs. Mohd. Nadeem Page No. 48/49 21 (c), 23(c) and 28 of NDPS Act are not made out, hence, accused Mohd. Nadeem is acquitted for the offence U/s 21 (c), 23 (c) and 28 of NDPS Act.
53. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. File Digitally signed by be consigned to record room. AJAY AJAY GOEL Date:
GOEL 2019.01.21 15:37:34 +0530 Pronounced in the open court. (AJAY GOEL) Dated: 17.01.2019 ASJ/Special Judge (NDPS), Dwarka Courts, New Delhi.
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