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TMI Blog2004 (12) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... ri N.K. Dhaka, Intelligence Officer, NCB was the Investigating Officer and Shri C.B. Singh, Superintendent, NCB was supervising the raid When the raiding party reached the aforesaid premises, its door was found bolted from inside. Upon knocking, somebody from inside asked as to who was there upon which the Officers replied that they were from NCB. Thereafter, the door was not opened inspite of repeated knocking upon which the Officers pushed the door open with force. The Officers saw that the appellant was pouring some brownish powder from two polythene packets into a plastic bucket filled with water. On seeing them, he put both has hands into the bucket so as to mix the contents of both the packets into water. However, he was overpowered. He was informed that the raiding party had come to search the premises. Search warrants were shown to him. A notice under Section 50 of the Act was also issued to him and he was asked as to whether he wanted to be searched before a Magistrate or a Gazetted Officer. The appellant declined the offer and signed the notice. Upon information by the Officers, the Assistant Director, NCB also reached the spot and authorized the Investigating Officer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the premises in question to meet a friend Mildred Itamere, who was residing there. When he reached there, his friend was not present but some persons in plain clothes were present in that flat. When he was enquiring from them about his friend, they disclosed to him that they were NCB Officers and had recovered some narcotics from the flat. He was taken to the office of the NCB where he was beaten, threatened and forced to sign various blank as well as semi written papers. His passport was also taken by them. He stated that he was staying in a Guest House at Paharganj and was a businessman by profession, who had come to India for business purposes. He did not lead any evidence in defense. 4. Learned Special Judge after considering the evidence on record and the submissions made by learned counsel for the parties held that the prosecution had succeeded in proving that on 30.7.1999 at E-1/19, Vasant Vihar, New Delhi, 19.300 kgs. of Heroin was recovered from the appellant. Accordingly, the learned Trial Judge convicted the appellant and sentenced him under Section 21(c) of the Act. Learned counsel for the appellant assails the impugned conviction and sentence of the appellant mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises No.EA-1/19, First Floor, Vasant Vihar, New Delhi or any contraband was recovered from his possession while he was in those premises. After examining the prosecution case and the evidence on record, this Court finds no explanation forthcoming from prosecution as to why the Investigators had not recorded the statement of the landlord of the premises or any neighbour to establish that the appellant used to live in those premises. The hire agreement Ex.PW-9/D-1 and D-2 which were brought on record at the instance of the appellant show that one Ms. Mildred Itamere was the tenant in the said premises. This document, therefore, shows that the appellant was neither a tenant nor an occupant of the premises in question and as such, possibility cannot be ruled out that at the time of the incident, the appellant had come to the premises in question merely to meet Ms. Mildred Itamere as suggested by the defense. Had the landlord or some neighbour been examined by the prosecution, it could have been proved that the appellant was a tenant in the premises or was living there but it has not been done. PWs-8 and 9 did not make enquiry even from the neighbours which shows that no effort was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahlawat, who had received the secret information and had deputed the Intelligence Officers to carry out the raid, had reached the premises in question subsequently after he was informed that the contraband had been recovered but according to PW-4 K.L. Gauba, Intelligence Officer, N.S. Ahlawat had gone with the raiding party to the premises in question. This contradiction shows that either PW-4 was not a member of the raiding party and has been falsely introduced to support the prosecution case or PW-12 was with them from the very beginning. The absence of entries in the log book of the official vehicle used by the raiding party also casts a shadow of doubt on the prosecution case inasmuch as the log books are meant for recording of the movement of the vehicles and if no entries are found there, it becomes doubtful as to whether the vehicle was actually used or not as represented by the prosecution. Therefore, in view of the absence of any effort on the part of the Investigating Officer to collect proper evidence to link the appellant with the premises in question, the refusal of PW-7, the only public witness to support the prosecution case, non-production of Ravi Tiwari, non-produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .B. Singh Superintendent, NCB, it was also brought out that the seized article could be taken out of the packets without disturbing the seals. It shows that the sealing was not proper and as such possibility of tampering with the samples was there. No Malkhana registers have been produced nor the entries therein proved before the Court to show as to at what time and on what date the article and samples allegedly recovered from the appellant were deposited in the Malkhana and on what date and time and by whom samples were taken out for taking the same to CRCL for analysis. At the top of all this, it has come in the testimony of PW-3, the Chemical Examiner that the samples which were analyzed by him were of white colour powder whereas the prosecution case is that the powder recovered from the appellant was of brown colour. 7 It has also come in the testimony of PW-3 Narinder Kumar, Chemical Examiner, CRCL that had the sample been of brown powder, the report would have been different. This statement of PW-3, therefore, makes it very difficult for the Court to hold that the article which was recovered from the appellant was the same which was examined by the Chemical Examiner. It al ..... 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