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2014 (12) TMI 400 - HC - CustomsConviction u/s 21 of NDPS Act - Intelligence Officer had received a secret information that a person of Indian origin, would be handing over some narcotic substance to a African person - Nothing incriminating was found in the personal search of the accused - Packet of heroine found in the bag of accused - Appellant forcible made to copy already written statement and sign it - Trial convicted appellant u/s 21(c) of NDPS Act - Held that - It was impossible for the DRI officers to know in advance, even before the search of the bags, that the accused were in possession of heroin packets. It must be recollected that the secret information reduced to writing (Ex.PW-1/A) only referred to the information that a person of Indian origin would be handing over some narcotic substance to a medium built African person. The trial Court appears to have completely overlooked the above glaring lacuna. This shows that the notice under Section 50 NDPS Act could not have possibly been issued prior to commencing the search of the bags as contended by the DRI but much later. The trial Court also failed to notice another important aspect of the matter regarding the truthfulness of the so-called confessional statement made by the Appellant under Section 67 NDPS Act. The Appellant in both retraction statements, i.e., one dated 20th February 2009 and the subsequent dated 8th December 2010 stated that he had been picked up from his rented house at Patiala. Both the statements of retraction formed part of the record. Despite repeated reminders by the DRI to the Ministry of External Affairs, High Commission of Nigeria, High Commission of Nigeria, and Qatar Airways (City Office), Mumbai to confirm whether the visa stamp issued by the Indian Commission in Nigeria, no information was forthcoming. Additionally, Mr. Aggrawala placed on record a copy of letter dated 2nd December 2014 received from the Deputy Commissioner of Police, Special Branch-II, CID & FRRO, Mumbai that the name of the Appellant did not figure in the list of registered foreigners at the said office. Computer data showed that the Appellant, a Nigerian national, having the same passport a photocopy of which had been produced by the Appellant, did arrive at Mumbai on 19th October 2009 by Qatar Airways. Documents which expose the falsehood of the case of the DRI could have been easily verified by the DRI itself. The Court would add that when an accused offers an alternative theory and produces documents in support thereof, the DRI can itself verify their genuineness without waiting for the order of the Court. For an accused in judicial custody, it is only to be expected that it would be difficult for him to produce witnesses. This difficulty is further compounded when the accused is a foreign national. Unfortunately this difficulty was not been appreciated by the trial Court. It unfairly cast the burden on the Appellant to further lead evidence to prove the details of his passport and visas stamps. It may be further added here that according to the Appellant, his original passport was with the Nigerian Embassy in India. The Appellant has been in judicial custody throughout and it is obvious that he does not have his passport with him. It is surprising that the trial Court overlooked the fact the reports of the IO himself in the case showed that addresses of the two panch witnesses were non-existent. This is very different from the situation where the addresses are correct but the panch witnesses are not available. In such a scenario, it is understandable that after repeated attempts, the DRI was unable to ascertain the whereabouts of such witnesses. However, when the address is shown to be non-existent, then questions arise as to the genuineness of the entire exercise involving the panch witnesses. It must be remembered that the addresses of the panch witnesses are recorded in the panchnama proceeding and notices are served upon them for recording their statements under Section 67 NDPS Act. It is possible that, as explained by Mr. Aggarwala, even during the panchnama proceeding, notices are served upon the panch witnesses and both of them appeared later in this case on 11th February 2011 for recording their statements. It is also possible, as contended by Mr. Aggarwala, that even if the DRI officials could not have insisted at that very moment that the panch witnesses should produce some identity document, it should always be possible for the DRI officials to verify the correctness of the address in the next few days. No serious attempt in this case was made by the DRI, despite knowing that the address was non-existent, to ascertain the correct present address of the panch witnesses and secure their presence at the trial. 33. The Court is unable to agree with the approach of the trial Court in not drawing adverse inference against the DRI. In a situation where the panch witnesses are unable to be produced, because their addresses are non-existent, it is not sufficient for the DRI to simply drop the panch witnesses and avoid the consequence of an adverse inference being drawn. - record of the trial Court speaks for itself. It exposes the untruthfulness of the evidence placed before the Court by the DRI officers. The Court cannot help observing that the evidence of PWs 5 and 9 can hardly be stated to be reliable or truthful. On the contrary, the Appellant has been able to probablise his defence that he came to India by air as a tourist with a valid India visa stamp on his passport. These facts have been verified by the FRRO, Mumbai. As explained by the Supreme Court in State of U.P v. Zakaullah (1997 (12) TMI 635 - SUPREME COURT), that a conviction can be based even on the evidence of police officers but the evidence of DRI officers should inspire confidence. In the present case, the record of the trial Court speaks for itself. It exposes the untruthfulness of the evidence placed before the Court by the DRI officers. The Court cannot help observing that the evidence of PWs 5 and 9 can hardly be stated to be reliable or truthful. On the contrary, the Appellant has been able to probablise his defence that he came to India by air as a tourist with a valid India visa stamp on his passport. These facts have been verified by the FRRO, Mumbai. The Court accordingly, set asides the impugned judgment dated 9th July 2013 and the order on sentence dated 20th July 2013 of the trial Court. The Appellant is hereby acquitted for the offence under Section 21 (c) of NDPS Act. The Appellant will now be released to the FRRO for further steps for deporting him. His bail bond and surety bond will continue for a period of three months in terms of Section 437-A Cr PC. - Decided in favour of appellant.
Issues Involved:
1. Legality of the notices under Section 50 of the NDPS Act. 2. Truthfulness of the Appellant's statement under Section 67 of the NDPS Act. 3. Non-examination of public witnesses. 4. Reliability of the evidence provided by DRI officials. Detailed Analysis: Legality of the Notices under Section 50 of the NDPS Act: The court noted a significant issue regarding the notices purportedly issued to the accused under Section 50 of the NDPS Act. The notices were typed and included detailed personal information, which should not have been known before the search. The court observed that the notices mentioned the possession of "heroin packets" even before the search, which was impossible to know in advance. This indicated that the notices were likely prepared after the search, not before, which undermined their legality. Truthfulness of the Appellant's Statement under Section 67 of the NDPS Act: The Appellant retracted his statement under Section 67, claiming it was coerced. He provided photocopies of his passport and visa to prove he legally entered India, contradicting the DRI's claim that he arrived illegally by cargo ship. The trial court dismissed these documents due to procedural constraints, but the High Court verified them and found them authentic. This verification disproved the DRI's narrative and highlighted the falsehood of the Appellant's alleged confession. Non-examination of Public Witnesses: The trial court failed to secure the presence of the panch witnesses, whose addresses were found to be non-existent. This raised serious doubts about the genuineness of the panch witnesses and the entire exercise involving them. The High Court criticized the trial court for not drawing adverse inferences against the DRI for this failure, emphasizing that the non-existent addresses of the panch witnesses severely undermined the prosecution's case. Reliability of the Evidence Provided by DRI Officials: The High Court scrutinized the evidence provided by DRI officials and found it unreliable. The court noted that the Appellant's defense, supported by verified documents, was more credible. The DRI's failure to verify the Appellant's documents and the inconsistencies in their evidence led the court to conclude that the evidence of the DRI officials did not inspire confidence. Conclusion: The High Court set aside the trial court's judgment and the order on sentence, acquitting the Appellant of the offence under Section 21(c) of the NDPS Act. The court ordered the Appellant's release and directed that he be handed over to the FRRO for deportation. The court also appreciated the assistance of the amicus curiae and directed timely payment of his fees. The appeal was allowed, and all pending applications were disposed of. The court emphasized the need for reliable evidence and proper procedural adherence in such serious cases.
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