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TMI Blog2017 (1) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... turb 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. - CRL.A.1449/2013 & CRL.M.A.No.5662/2016 - - - Dated:- 9-1-2017 - S. P. Garg, J. For the Appellant : Mr.Sourabh Sachdeva, Proxy Counsel For the Respondent : Mr.Yogesh K.Saxena, Advocate with Ms.Priya Saxena Mr.Sikandar Azam Khan, Advocates ORDER S. P. Garg, J. 1. Present appeal has been preferred by Narcotics Control Bureau (in short NCB ) to challenge the legality and correctness of a judgment dated 28.02.2013 of learned Spl. Judge NDPS in Sessions Case No.174/08 pertaining to case file No.VIII/40/DZU/2006 registered under Section 20(b)(ii)(C) and 23 NDPS Act by which the respondent was acquitted of the charge. The appeal is contested by the respondent. 2. I have heard the learned counsel for the parties and have examined the file minutely. 3. Briefly stated, allegations against the respondent were that on 27.07.2006 at about 1330 hours PW-1 (Ajay Kumar), Intelligence Officer, received a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Subsequently the parcels were agreed to be sent from the account of Sanskriti Expression for ₹ 12,000/- and the parcel was booked on 24.07.2006 in the account of Sanskriti Expression. 5. Prosecution case is that Anshul Dwivedi recorded his statement under Section 67 of NDPS Act and revealed that the chowkies recovered from the DHL office were consigned by him on the instructions of the respondent. Pursuant to the said information got on 31.07.2006 Mr.R.R.Kumar, Superintendent directed the Investigating Officer - PW-1 (Ajay Kumar) to constitute a raiding team and to take necessary action. Thereafter the raiding team reached Udaipur at the residence of Anshul Dwivedi and he produced six wooden tables / chowkies out of which in three tables, sixteen packets wrapped with khaki tapes were recovered. On search, there were found to contain total weight of 5.6 kg. of Hashish. Necessary seizure memos were prepared. Report under Section 57 of NDPS Act was submitted. Subsequently, statements of the witnesses conversant with the facts were recorded. Upon completion of investigation, a charge- sheet was filed against the accused / respondent who was arrested on 04.07.2008 pursuant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 the respondent was intercepted at Mumbai Airport due to opening of LOC against him. He had issued summons under Section 67 of NDPS Act to the respondent directing him to appear in the office of NCB Delhi forthwith. Subsequently, statement (Ex.PW-10/8) under Section 67 NDPS Act was recorded by him. In the cross-examination, he was however unable to disclose as to how the summon to record accused s statement under Section 67 NDPS Act was served upon him. He was unable to tell as to on which date the said summon was prepared i.e. whether before issuance of LOC or after that. He himself did not go to Mumbai in the present case. He did not remember who had gone to Mumbai to bring the accused to Delhi and who brought him from Mumbai to Delhi. He further admitted that the respondent did not appear before him pursuant to the summons. As per PW- 5 (Akhilesh Mishra) s testimony he had prepared the arrest memo of the respondent and he was medically examined. He, however, was unable to inform as to when and how the accused was arrested and brought back to Delhi. PW-7 (Ram Babu Sharma) informed that on 04.07.2008 at about 11.30 p.m. the respondent was arrested by IO Akhilesh Mishra in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served i.e.whether at Mumbai or Delhi. No witness to arrest of the accused at Mumbai has been produced. The police officials from Mumbai who had allegedly intercepted the respondent pursuant to the opening of LOC have not been examined. Issuance of the summons under Section 67 NDPS Act on 04.07.2008 itself on the day the respondent was intercepted at Mumbai seems suspect. 13. The Trial Court has further noted various discrepancies regarding the case property recovered at Delhi and Udaipur. It is alleged that the case property along with the packing materials i.e. tables etc. recovered from the DHL office, Delhi was handed over to Israel authorities as controlled delivery. None of the prosecution witness was able to apprise the Court as to where, by whom and to whom the controlled delivery was effected after taking it from the concerned malkhana. At the time of production of the case property before the Court, it transpired that the packing materials i.e. tables recovered at Udaipur from the residence of Anshul Dwivedi were delivered along with the case property recovered at DHL office to the Israel authorities. Impugned order records that it was the case of the prosecution tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Hashish sent to Israel through controlled delivery was recovered from some other source. He was not even able to depose consistently that the contraband sent to Israel was one that was recovered from DHL office. 15. Scrutinising the testimonies of the various witnesses on record it is unclear as to who had delivered the contraband to the Israel authorities. According to PW-1 (Ajay Kumar), the contraband was sent to Israel through PW-19 (Avnish Kumar). Admittedly, panchnama (Ex.PW-10/A) with respect to the taking out of the contraband from the malkhana does not contain signatures of PW-19 (Avnish Kumar). The prosecution did not reveal the name of the Israel police officer to whom the contraband was delivered. As per Ex.PW-3/1 the sealed packet was handed over to Israel officer at Mumbai Airport on 09.08.2006. Another document (Ex.PW-19/1), however, records that it was handed over to him on 10.08.2006. PW-1 (Ajay Kumar), in the cross-examination, admitted that he had not seen any authorization letter of the Israel officer authorizing him to undertake the controlled delivery of NCB. PW-3 (A.Shankar Rao) the then Zonal Director deposed that he had received intimation from h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 had come to their office on 09.08.2006 in Delhi. He did not meet any such Israel police official in their Delhi office on 09.08.2006. He admitted that he did not handover the controlled delivery parcel to Zonal Director, Mumbai. He did not obtain the photocopy of the identification document of Israel police officer at the time of handing over. He did not remember the name of Israel police official to whom the controlled delivery was handed over. 17. The prosecution was also unable to establish beyond reasonable doubt the recovery of contraband from the residence of PW-21 (Anshul Dwivedi) on 1.8.2006. Admittedly no independent public witness was associated at the time of recovery at the residence of PW-21 (Anshul Dwivedi). No plausible explanation has been offered for not associating any independent public witness despite its availability. Prior to that, PW-21 (Anshul Dwivedi) had visited the NCB office and purportedly statement under Section 67 NDPS Act (Ex.PW5/1) was recorded on 31.07.2006. The Trial Court noted that PW-21 (Anshul Dwivedi) in his cross-examination had disclosed that the recovery was effected before he went to the office of NCB Delhi i.e. before 31.07.2006. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf it was being sent i.e. the accused. The consignment i.e. chowkies in question was consigned on behalf of Sanskriti Export. PW-21 (Anshul Dwivedi) was confronted in his cross-examination with the consignment note (Ex.PW-4/3). He initially denied that it was booked by him. Subsequently, he came up with the plea that he did not remember whether he had sent. He, however, categorically stated that he had not given the name of Sanksriti Export; he had told the courier official that consigner s name has to be Rama Arts and Export. He further categorically stated that his signatures did not appear either on Ex.PW-4/3 or the invoice (Ex.PW-4/4). He did not remember whether he had mentioned the name of David Cohen on the consignment note but according to him he had orally stated that the consignment was on behalf of the accused. The Trial Court further noted that the deposition of the PW-15 (Savyasachi Bhatnagar) owner of the courier office was to the contrary. In his cross- examination, he stated that the name of David Cohan was provided by PW- 21 (Anshul Dwivedi) and the invoice (Ex.PW-4/4) was also signed by him (Anshul Dwivedi). The witness reiterated his version (Ex.PW10/6) when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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