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TMI Blog2021 (11) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... of any of the panch witnesses. In addition, the manner in which the offending vehicle was traced, apprehended and recovery was made, also casts a doubt upon the credibility of prosecution case. Also, prosecution has failed to substantiate as to how two reports obtained from CRCL had different analysis and as to why opinion of PW-19 with regard to two different reports, one of Diactyl Morphin (Heroin) and the other for Opium being drawn from two different samples, be not accepted. This Court finds that prosecution has immensely failed to prove its case beyond reasonable doubt, therefore, it is a fit case to grant benefit of doubt to appellant/accused - Petition allowed. - CRL.A. 1005/2018 & Crl.M.As.10244-10245/2021 - - - Dated:- 15-11-2021 - HON'BLE MR. JUSTICE SURESH KUMAR KAIT Appellant: Mr.Vikas, Advocate Respondent: Mr.Satish Aggarwala, Senior Standing Counsel with Mr.Jasneet Jolly, Advocate JUDGMENT 1. The present appeal has been preferred against the judgment dated 01.09.2018 passed by the learned Special Judge, Delhi vide which appellant Harish Joshi, a Canadian national, has been held guilty for the offences under Sections 21(c) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of presence of the Gazetted officer or Magistrate at the time of their personal search. These persons along with their vehicle were brought to the office of the DRI along with those two witnesses for the search. One black colour zipper trolley suitcase make Royal was recovered during the search. Besides, insurance and RC papers of the Indica car were also recovered from the glove box of the car. However, nothing was recovered from the person of the three apprehended persons. (iv) During search of the recovered brief case, it was found containing old clothes. However, since bottom of the suitcase seemed heavy, the base fabric of the suitcase was removed and a sunmica sheet was found affixed. Upon removal of sunmica sheet, five packets wrapped in transparent tape were found placed on another sunmica sheet attached to the base of the suitcase. The five packets were marked as A, B, C, D and E and were weighed with electronic weighing scale and the gross weight was found to be 1.070 kg; 1.070 kg; 1.075 kg; 1.074 kg and 1.078 kg respectively. On opening, the packets were found to be containing yellowish granules/powder. The powder from each packet was tested with the help of UN Fie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be traced and were not examined before the trial court. 7. Attention of this Court was drawn by learned counsel for appellant to the cross-examination of Devender Singh, Intelligence Officer (PW-9), to submit that prosecution had even failed to gather basic information about driver- Manoj Sharma, such like his address particulars at the time of apprehension and therefore, failed to trace him. Further attention of this Court was drawn by learned counsel to examination-in-chief of Shiv Pal (PW-13), who has not supported the story of prosecution. In his examination in chief, PW-13 has stated that the driver Sh. Manoj Sharma told him that when he stopped the car at DLF, Gurgaon, the police officials encircled the car and they were brought to an office at Lodhi Road, whereas the case of prosecution is that Car fled from the spot with the appellant Harish Joshi on board and that it was intercepted at Shiv Murti near Mahipalpur, Delhi. 8. Attention of this Court was further drawn to the statement of Investigating Officer (PW-4) wherein he has submitted that substance recovered from all packets gave positive results for Opium Alkaloids whereas according to the report of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Gautam, Superintendent (PW-6) stated that he does not remember the number of the vehicle in which they were travelling and DRI was not written on the vehicle; the person who fled away from the spot did not know that they were officials of DRI; that nothing incriminating was found from the appellant (Harish Joshi) and that personal search of the accused was not done at the point of interception nor the bag was opened at the spot, which brings the case of prosecution under clouds and thereby, failed to consider that in case two views are possible, then the benefit of doubt ought to be exercised in favour of the accused. In support of aforesaid submissions, learned counsel placed reliance upon decisions of Hon ble Supreme Court dated 21.04.2015 in Criminal Appeal No. 682/2015, titled as Makhan Singh Vs. State of Haryana Tofan Singh Vs. State of Tamil Nadu 2020 SCC OnLine SC 882 as well as various decisions of this Court dated 02.11.2011 in Crl.L.P. 441/2011, titled as UOI Vs. Farid; dated 21.07.2016 in Crl.A. 1150/2014, titled as Jagroop Singh @ Ceeta Vs. Directorate of Revenue Intelligence; dated 04.09.2014 in Crl.A.1416/2010, titled as Nnadi K. Iheanyi Vs. Naro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of appellant that Shri Man Singh Yadav, Appraiser, DRI (PW-17) having admitted that at the time of alleged incident, Sanjay was lodged in Dasna Jail, Ghaziabad, is again without any basis as when this witness wrote to the Jail Superintendent asking whereabouts of Sanjay, the Jail Superintendent had replied that further details of Sanjay were required only then any information could be provided and thereby appellant has failed to establish that accused Sanjay who fled from the spot and the one behind Dasna Jail were one and the same persons and for this lapse, prosecution cannot be said to have failed in proving its case. 17. Next submitted that driver of the vehicle- Manoj Sharma could not be produced before the court due to lack of details of his house number and also could not be contacted on telephone number which too was provided by PW-13 before the Court during evidence. Further submitted that, PW-13 had resiled from his statement recorded under Section 67 of the NDPS Act though he has admitted that he had put his statement under his handwriting and signatures. 18. With regard to substance recovered, learned Senior Standing Counsel submitted that the difference b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the offending vehicle fled from Gurgaon to Delhi and had to cross the toll plaza, but despite having details of the vehicle i.e car number brand Indica, neither Gurgaon police nor Delhi police was informed so that the offending vehicle could be intercepted. The above noted facts create strong doubt about the story of prosecution. 22. In all, three persons were apprehended from the offending vehicle. One is appellant- Harish Joshi, second is driver- Manoj Kumar Sharma and third is co-accused Anil Mohan. During trial accused Anil Mohan expired and proceedings against him were abated on 23.12.2014 and the other person, namely, Manoj Kumar Sharma, driver of the offending vehicle, remained untraceable and therefore, could not be examined as a witness. In addition, third accused Sanjay also could not be traced and was therefore, not charge sheeted. 23. According to appellant, to prevent himself from physical violence at the hands of DRI officials, he had written his confessional statement under Section 67 of the NDPS Act due to force and coercion, from which he had retracted at the first available opportunity. Even during recording of his statement under Section 313 Cr.P.C., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anama prepared at the spot bore signatures of Investigating Officer only and did not bear signatures of any of the panch witnesses. On this aspect, a Coordinate Bench of this Court in Jagroop Singh @ Ceeta Vs. Directorate of Revenue Intelligence 2016 SCC OnLine Del 4075 has observed as under:- 10. The most glaring feature of the instant case is that the raiding party comprised of PW-3 (R. Roy); Kamal Sharma, Intelligence Officer, Yogesh Chaudhary, Intelligence Officer, Ajay Bhasin (SDA) and one or two other staff members. Various documents including Panchnama (Ex.PW-3/D) prepared at the spot, however, do not bear signatures of any other member of the raiding team. None of them was cited as a witness. The complainant did not deem it fit to examine any other member of the raiding team to corroborate his version. Adverse inference is to be drawn against the investigating agency for withholding material witnesses. No plausible explanation has been offered as to why signatures of the other members of the raiding team were not taken on various documents purportedly executed in their presence. 27. Moreover, during the course of trial, prosecution has not been able to bring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence being drawn. 28. The prosecution has also failed to bring driver of the offending vehicle-Manoj Kumar, to the witness box. Further, another prosecution witness PW-9, who had recorded statement under Section 67 of driver Manoj Kumar, also suffers from procedural lapse on the part of prosecution, as the address and the other particulars details, which were purportedly penned by driver Manoj Kumar, were not verified. 29. Even prosecution witness Satish Kumar (PW-14), Security Officer at DLF, Phase-5, DLF exclusive floors, Gurgaon in his cross examination has stated that Mr. Mohinder Lal who was the Police Commissioner of Gurgaon, had visited DLF Exclusive Floors on 08.09.2008 at about 6:30 PM and at that point of time, supervisor at the main gate had informed him that those officials (DRI) had taken away the resident of Flat no.7/1, Ground Floor, DLF Exclusive floors. 30. On the aspect of relevance of testimony of independent witnesses, the Hon ble Supreme Court in Makhan Singh Vs. State of Haryana (2015) 12 SCC 247 , while allowing an appeal against the judgment and conviction of accused (under the NDPS Act) upheld by the High Court of Punjab and Haryana, has obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused Sanjay before the learned trial court. 32. With regard to the discoveries made, the Investigating Officer (PW-4) in his examination-in-chief has stated that the substance recovered is Opium Alkaloids , however, as per the report of the CRCL (Ex.PW-8/A) the substance recovered is Diactyl Morphin (Heroin). The contradictory stand of prosecution was challenged by the appellant by filing an application for retesting, which was allowed and fresh samples were drawn and sent for retesting for determination of Diactyl Morphin (Heroin). Pertinently the relevant portion of report dated 22.10.2008 reads as under:- REPORT: (Report is admissible under Section .293Cr.P.C.) Each of the five samples is in the form of off white coarse and lumps. On the basis of chemical and chromatographic examinations, it is concluded that each of the five samples under reference answers positive test for Diacetyl morphine (Heroin). The content of Diacetylmorphine (Heroin) and Gross weight of remnant samples, returned herewith as under- LAB No. CLD Marked as % of DAM (Heroin) Gross weight of remnant samples along with auto pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent samples. This witness has further stated that a sample cannot give two different results of the Diactyl Morphin (Heroin) and Opium at the same time and it can be safely assumed, it is drawn from the different samples. 35. In a somewhat similar case, a Bench of this Court in State Vs. Patrick Ors. 2014 SCC OnLine Del 4446 in an appeal preferred by the State against acquittal of the accused, while upholding the order of acquittal by the trial court, had observed and held as under: - 10. The learned trial Court acquitted the Respondents by the impugned judgment dated 6th July 2013. The trial Court noted that there were variations in the test reports of the Forensic Science Laboratory (FSL) of the testing of the samples. In the first instance, when the samples were tested on 23rd June 2009, the samples recovered from A-1, A-2 and A-3, namely, the parcels S-1, S-2 and S-3 were found to contain four substances, i.e., caffeine, monoacetylmorphine (MAM), acetylcodeine and diacetylmorphine (DAM). The percentages of DAM in the three samples were found to be 76.2%, 79.5% and 86% respectively. 11. During the trial, pursuant to the applications made by the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court in the preceding paragraphs. The Hon ble Supreme Court in Noor Aga Vs. State of Punjab (2008) 16 SCC 417 has observed as under:- 58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is beyond all reasonable doubt but it is preponderance of probability on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 37. It is a settl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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