2017 (1) TMI 864 - HC - Indian Laws

Acquittal of the charge - NDPS Act - Held that - The prosecution has failed to establish its case beyond reasonable doubt and the benefit of doubt given by the learned Trial Court to the respondent cannot be faulted. The Trial Court has noted number of vital infirmities, inconsistencies and discrepancies in the statements of the prosecution witnesses which make it unsafe to base conviction on the unsubstantiated and uncorroborated testimony of PW-21 (Anshul Dwivedi). It is well settled law that the Appellate Court must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal, recorded by the Trial Court. Considering the facts and circumstances of the case, find no substance in the appeal preferred by the appellant NCB; it lacks merits and is dismissed. Pending application also stands disposed of.

Issues Involved:
1. Legality and correctness of the respondent's acquittal.
2. Evidence of the respondent's involvement in the crime.
3. Discrepancies in the prosecution's case.
4. Procedure followed for controlled delivery of contraband.
5. Credibility of witnesses and their statements.
6. Inconsistencies in the recovery of contraband.
7. Role and investigation of other suspects.

Detailed Analysis:

1. Legality and Correctness of the Respondent's Acquittal:
The Narcotics Control Bureau (NCB) challenged the acquittal of the respondent by the learned Special Judge NDPS in Sessions Case No.174/08. The High Court examined the evidence and concluded that the prosecution failed to establish its case beyond reasonable doubt, affirming the trial court's decision to acquit the respondent.

2. Evidence of the Respondent's Involvement in the Crime:
The prosecution alleged that the respondent was involved in sending a parcel containing Hashish to Israel. However, the evidence presented, including statements under Section 67 NDPS Act, was inconsistent and uncorroborated. The respondent denied involvement, claiming false implication and coercion to sign documents.

3. Discrepancies in the Prosecution's Case:
The trial court noted several vital infirmities, inconsistencies, and discrepancies in the prosecution witnesses' statements. These included divergent versions of the respondent's arrest and the lack of clarity on how and when the respondent was brought from Mumbai to Delhi.

4. Procedure Followed for Controlled Delivery of Contraband:
The prosecution failed to clearly establish the procedure followed for the controlled delivery of the contraband to Israel. There were discrepancies in the handling and movement of the contraband, and the prosecution could not reconcile these issues, raising doubts about the integrity of the evidence.

5. Credibility of Witnesses and Their Statements:
The prosecution witnesses provided conflicting testimonies regarding the arrest and handling of the respondent. The trial court found that the statements under Section 67 NDPS Act were suspect, especially since the respondent retracted his statement at the earliest opportunity.

6. Inconsistencies in the Recovery of Contraband:
The trial court highlighted inconsistencies in the recovery of contraband from the residence of PW-21 (Anshul Dwivedi) and the DHL office. The prosecution could not explain the discrepancies in the case property and its handling, leading to doubts about the evidence's reliability.

7. Role and Investigation of Other Suspects:
The trial court questioned why PW-21 (Anshul Dwivedi), from whose residence substantial contraband was allegedly recovered, was not prosecuted. The prosecution did not investigate the role of David, whose name appeared in the consignment note, and failed to trace the source of money sent through Western Union Money Transfer.

Conclusion:
The High Court upheld the trial court's judgment, emphasizing the lack of credible and cogent evidence to prove the respondent's guilt beyond reasonable doubt. The appeal by NCB was dismissed, reinforcing the presumption of innocence and the double presumption favoring the acquitted respondent. The trial court record was ordered to be sent back with a copy of the High Court's order.

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