2017 (2) TMI 873 - HC - Customs

Contraband item - heroin - Learned counsel for the appellants urged that the Trial Court did not appreciate the evidence in its true and proper perspective. It ignored vital discrepancies and infirmities in the statements of the prosecution witnesses without cogent reasons. It overlooked that material independent public witnesses were not produced during evidence. The case property was tampered with - Held that - True, it is not a rule of law that public witnesses should be joined in every eventuality and no conviction can be based upon the testimonies of police/official witnesses. Sometimes it becomes highly difficult for the police/official witnesses to associate independent public witnesses for various reasons. At the same time, it is undoubtedly true that joining of independent public witness is not an empty formality. The Investigating Officer is required to make genuine efforts to associate genuine independent public witnesses. The appellants have produced many documents containing information received through RTI. Number of documents produced in defence reveal that in similar circumstances, in most of the cases, independent public witnesses relied upon by DRI were dropped and could not be served or were found not traceable. It is really a matter of concern. It cannot be coincidence that in various cases detailed in Ex. DW-1/D, the public witnesses won t be available/traceable. The law on this aspect is that stringent the punishment stricter the proof. In such like cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication - appeal allowed by way of remand.

Summary

Issues Involved:
1. Validity of the conviction based on the sole testimony of an official witness.
2. Failure to produce independent public witnesses.
3. Discrepancies in the handling of secret information and the raiding process.
4. Compliance with Section 50 of the NDPS Act.
5. Reliability of statements recorded under Section 67 of the NDPS Act.
6. Overall credibility and sufficiency of the prosecution's evidence.

Issue-wise Detailed Analysis:

1. Validity of the Conviction Based on the Sole Testimony of an Official Witness:
The appellants' conviction was primarily based on the testimony of PW-3 (R. Roy). The court noted that the prosecution failed to produce independent public witnesses, Azim Khan and Annu, who were allegedly present during the investigation. The court emphasized that no genuine efforts were made to secure their appearance, and their absence raised doubts about the prosecution's case. The court highlighted that the raiding party comprised multiple members, but none were cited as witnesses or had their signatures on key documents, which weakened the prosecution's case.

2. Failure to Produce Independent Public Witnesses:
The court criticized the prosecution for not making sincere efforts to produce independent public witnesses. The secret information was received at 5:10 p.m., and the raiding party was organized soon after, but the public witnesses were only called to the office at 12:15 a.m. on 19-7-2008. The court found it suspicious that the witnesses' addresses were not verified, and they were not produced for examination. The court cited previous judgments emphasizing the importance of producing public witnesses to lend authenticity to the investigation.

3. Discrepancies in the Handling of Secret Information and the Raiding Process:
The court noted several inconsistencies in the handling of secret information and the raiding process. The secret information was received by PW-1 (Sujeet Kumar) and put up before PW-2 (P.K. Singh), but the exact timing and mode of communication were unclear. The court found it strange that the vehicle arrived exactly at the specified time and location as per the secret information. The court also questioned why the proceedings were conducted at the DRI office's parking lot instead of the spot where the accused were apprehended.

4. Compliance with Section 50 of the NDPS Act:
The court found that the notices under Section 50 of the NDPS Act were served at the parking lot, not at the spot where the accused were apprehended. The responses were allegedly recorded by the 'panch witnesses' who were not produced in court. The court also noted that the owner of the seized vehicle was not investigated or cited as a witness, raising further doubts about the investigation's credibility.

5. Reliability of Statements Recorded Under Section 67 of the NDPS Act:
The court questioned the reliability of the statements recorded under Section 67 of the NDPS Act. These statements were in the handwriting of PW-5 (Ram Kanwar) and PW-6 (Jaiprakash Raju), who were not directed by the Investigating Officer to assist the appellants. The court found no corroboration or substantiation of these statements, and A-2 had retracted his statement at the earliest opportunity.

6. Overall Credibility and Sufficiency of the Prosecution's Evidence:
The court found numerous deficiencies, inconsistencies, and discrepancies in the prosecution's evidence. The court emphasized that the prosecution failed to establish the commission of the offense beyond a reasonable doubt. The court noted that the law requires stricter proof for cases involving stringent punishment. The prosecution's evidence was deemed scanty and lacking to establish that the contraband was recovered from the appellants' possession as alleged.

Conclusion:
The appeals filed by the appellants were accepted, and the conviction and sentence were set aside. The appellants were ordered to be released forthwith if not required to be detained in any other case. The trial court record was sent back with a copy of the order, and a copy was sent to the Superintendent jail for information.