2020 (7) TMI 312 - HC - Indian Laws

Smuggling - white powdery substance - prosecution s case rests almost entirely on the alleged voluntary statements of the appellants (accused) recorded under Section 67 of the NDPS Act, and the statements of Sagar Iyer Subramanium (PW8) and Mushahid Ali (PW18) - HELD THAT - The Trial Court erred in not examining the material placed on record and accepted the prosecution s case even though there is sufficient material to doubt the case set up by the prosecution. The Trial Court had completely ignored that the parcel seized by NCB weighed 2.4 kgs and the parcel allegedly received by Nitesh Patel weighed 36 kgs and this belied the prosecution s case that the parcel dispatched by Sagar Iyer was the same that was received by Nitesh Patel from Chennai - There is a doubt whether the sample of the substance seized is the same as the sample received by the Central Revenue Control Laboratory because the weight of the sample sent and received is different. NCB has failed to garner any hard evidence either on account of being highly economical in carrying out any investigation or for some ulterior motives. The net result of the exercise conducted by the NCB is also that the person (sagar Iyer) who is admittedly guilty of fabricating the invoice; falsely signing on behalf of the shipper of the parcel; and shipping the parcel, has been absolved of his role in the said offence. This is despite his statements indicating the reasons for doing so are not consistent. Further, there is no credible explanation as to why he was chosen to book the parcel by another courier agent (Nitesh Patel) even though he was not the franchisee of Fedex and the parcel was booked through Freight Centre (as reflected on the Airway Bill in question) - The impugned judgment convicting the appellants and the impugned order are set aside - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Voluntariness of self-incriminating statements.
2. Evidence supporting the prosecution's case.
3. Authenticity of the sample tested by the Central Revenue Laboratory.
4. Adequacy of the investigation conducted.

Issue-wise Detailed Analysis:

1. Voluntariness of Self-Incriminating Statements:
The appellants argued that their conviction was based solely on the self-incriminating statements of one appellant, which were not made voluntarily. The court noted that the prosecution's case relied heavily on these statements recorded under Section 67 of the NDPS Act. It was emphasized that such statements are weak evidence and must be corroborated by other evidence. The court found that the statements were not voluntary, as the accused were under the effective custody of NCB officials and subjected to pressure and coercion. The court also highlighted the discrepancies in the statements and the lack of corroborative evidence.

2. Evidence Supporting the Prosecution's Case:
The prosecution's case was primarily based on the alleged voluntary statements of the appellants and the statements of two witnesses, Sagar Iyer and Mushahid Ali. The court found that no meaningful investigation was conducted to verify the information contained in these statements. The court noted that the statements of the witnesses were inconsistent and self-serving, and there was no documentary evidence to support the prosecution's case. The court also pointed out the lack of evidence connecting the appellants to the seized parcel and the failure to produce any hard evidence, such as call records or payment receipts.

3. Authenticity of the Sample Tested by the Central Revenue Laboratory:
The court observed a material inconsistency between the weight of the sample drawn and the weight of the sample received by the Central Revenue Control Laboratory. The discrepancy in the weight raised doubts about the authenticity of the sample tested. The court assumed that the sample drawn was the same as the sample received in the laboratory, but this assumption did not resolve the doubts about the prosecution's case.

4. Adequacy of the Investigation Conducted:
The court criticized the NCB for conducting a superficial investigation. It noted that no inquiries were made from key individuals, such as Rafiq, Ibrahim, Kasim Bhai, and Salim Bhai. The court also pointed out the failure to collect and analyze call records, secure documentary evidence, and verify the addresses and phone numbers of the accused. The court highlighted the lack of effort to trace the identities of the individuals involved and the failure to follow through with the summons issued. The court concluded that the NCB's failure to conduct a thorough investigation and produce meaningful evidence indicated either negligence or ulterior motives.

Conclusion:
The court found that the prosecution's case was based on weak and uncorroborated statements, and the investigation conducted by the NCB was inadequate. The court emphasized that it would be unsafe to convict any person solely on the basis of such statements without corroborative evidence. The court noted several discrepancies and inconsistencies in the statements and evidence presented by the prosecution. As a result, the court set aside the impugned judgment and order, acquitted the appellants of all charges, and ordered their immediate release from custody.

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