2015 (1) TMI 21 - HC - Customs

Offences under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Acquittal of Respondents - Seizure of heroin - Held that - conviction cannot depend only on the fact that a huge quantity of heroin is shown to have been seized. Also, the argument that the prosecution will not needlessly implicate innocent persons does not impress the Court. The NCB has to discharge the burden of proving beyond reasonable doubt that it is the Respondents who are guilty of the offences with which they have been charged. Since the NCB has presented a version in which independent witnesses are stated to have participated throughout the raid, the NCB has to satisfactorily explain how and why the addresses given for such witnesses has turned out to be non-existent and they have not been produced in Court. No effort appears to have been made by the NCB to ascertain the correct addresses and summon the independent witnesses. That was not the responsibility of the Court. In the circumstances, the only inference that was possible to be drawn was that the said witnesses and their addresses did not exist. There was also a serious discrepancy regarding the signatures of the so-called independent witness Shiv Dayal on the seizure memo (Ex.PW-2/D) and on his purported statement under Section 67 NDPS Act (Ex.PW-8/J). They were shown by DW-1, a handwriting expert, not to be of the same person. - On the voluntariness of the statements of the Respondents under Section 67 of NDPS Act, the trial Court noticed that as far as A-2 was concerned, in her statement under Section 313 Cr PC she stated that no summons were served upon her. The NCB had forcibly taken her from her house to their office and they mercilessly gave beatings to her cousin brother co-accused Rakeshnath Tiwari (A-3). She got scared and as per the dictation of the NCB officials, she wrote the statement in her own handwriting and signed it. This was substantiated by the medical report of A-3 (Ex.PW-2/A) prepared by the doctors of Safdarjung Hospital after the jail officials of Tihar Jail had refused to admit him on the ground that there were injuries on his body which were not mentioned in his medical report prepared by the NCB officials after arresting him. The medical report clearly shows that A-3 had a swelling and abrasion on his forehead and bruises all over his back and on his knee. The injuries noted in the said report substantiated his statement given under Section 313 Cr PC that his head was banged against the wall by the NCB officials and that he was beaten mercilessly by them at their office. Consequently, the conclusion drawn by the trial Court as to the statements of the Respondents under Section 67 NDPS Act not being voluntary, cannot be faulted. - Decided against Revenue.

Summary

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Validity of independent witnesses.
3. Voluntariness and admissibility of statements under Section 67 of the NDPS Act.
4. Discrepancies in the seizure of US$ 30,000.
5. Burden of proof and reasonable doubt.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:
The trial Court negated the plea that the provisions of Section 42 of the NDPS Act were not complied with. The Petitioner, Narcotics Control Bureau (NCB), issued search authorizations and conducted raids based on secret information received about the accused's involvement in heroin trafficking.

2. Validity of Independent Witnesses:
The trial Court found discrepancies in the addresses and signatures of the independent witnesses, Ramkaran and Shiv Dayal, whose addresses were found to be non-existent. The handwriting expert (DW-1) confirmed that the signatures purportedly belonging to Shiv Dayal on different documents did not match. The trial Court inferred that the signatures had been manipulated by NCB officials, leading to the conclusion that the witnesses were fictitious.

3. Voluntariness and Admissibility of Statements under Section 67 of the NDPS Act:
The trial Court questioned the voluntariness of the statements given by the accused under Section 67 of the NDPS Act. A-2 claimed that she was forcibly taken by NCB officials and made to write the statement under duress. A-3's medical report from Safdarjung Hospital corroborated his claims of being beaten by NCB officials, showing injuries not mentioned in the initial medical report by NCB. Thus, the trial Court concluded that the statements were not voluntary.

4. Discrepancies in the Seizure of US$ 30,000:
The trial Court noted that one of the independent witnesses to the seizure, Anand Singh (PW-9), did not support the prosecution's case. He testified that he did not witness any proceedings conducted by the police officials and was asked to write on a blank paper. The other witness, Sunil Kumari (PW-10), was a police officer and not an independent witness. This lack of credible independent witness testimony cast doubt on the seizure process.

5. Burden of Proof and Reasonable Doubt:
The Court emphasized that the NCB must prove beyond reasonable doubt that the respondents were guilty. The failure to produce credible independent witnesses and the discrepancies in their addresses and signatures created reasonable doubt. The Court also noted that the mere seizure of a large quantity of heroin does not suffice for conviction without credible evidence.

Conclusion:
The High Court dismissed the petition for leave to appeal, stating that the NCB failed to satisfactorily explain the discrepancies related to the independent witnesses and the voluntariness of the statements under Section 67 NDPS Act. The trial Court's conclusion that the prosecution's conduct was "not beyond reproach" and that the evidence presented did not meet the burden of proof was upheld. The petition was dismissed, and the trial Court record was ordered to be returned.