$
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : APRIL 30, 2015
DECIDED ON : AUGUST 24, 2015
+ CRL.A. 1360/2014
RAKESH KUMAR MEHRA ..... Appellant
Through : Ms.Sunita Arora, Advocate.
versus
STATE ..... Respondent
Through : Mr.Satish Aggarwala, Advocate.
AND
+ CRL.A. 1605/2014
RAVINDER KUMAR ..... Appellant
Through : Ms.Nandita Rao with Ms.Srilina Roy,
Advocates.
versus
DIRECTORATE OF REVENUE INTELLLIGENCE..... Respondent
Through : Mr.Satish Aggarwala, Advocate.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Aggrieved by a judgment dated 25.04.2014 of learned ASJ/Special Judge-NDPS (South District) in Sessions Case No.33A/08, Crl.A.Nos.1360/14 & 1605/14 Page 1 of 21 whereby the appellants Ravinder Kumar and Rakesh Kumar Mehra were held guilty for committing offences under Sections 29 and 21(c) read with Section 29 NDPS Act, they have filed the instant appeals. By an order dated 30.04.2014, they were sentenced to undergo RI for ten years with fine `1 lac each under the aforesaid sections.
2. Briefly stated, in the complaint case instituted by Directorate of Revenue Intelligence (in short DRI) allegations against the appellants were that on or before 25.11.2007, they hatched a criminal conspiracy to deal in narcotic drugs (contraband substance i.e. heroin) by way of transporting and supplying it. Pursuant to that conspiracy, on 25.11.2007 at about 10.15 a.m., they were intercepted by DRI officers while travelling in a Maruti 800 car bearing Registration No.JK-02G-4126 at Singhu Border on G.T.Karnal Road and were found carrying and possessing 20 packets of heroin having net weight 20.073 kg with purity of 45.2% to 69.5%, a commercial quantity.
3. On 25.11.2007 at about 7.00 a.m., Yogesh Kumar Choudhary (PW-2) received a secret information from reliable source that a white colour Maruti 800 car bearing Registration No.JK 02G 4126 occupied by two male persons would cross Singhu Border on GT Karnal Road to enter Delhi between 9.30 a.m. to 10.30 a.m. and some narcotic drugs were Crl.A.Nos.1360/14 & 1605/14 Page 2 of 21 concealed therein. The information after being reduced into writing (Ex.PW-2/A) was placed before senior officer (PW-5 Pankaj K.Singh) who after having consultations and discussions with his senior officers directed PW-8 (Jyothimon), the Investigating Officer, to take appropriate action in the matter immediately.
4. Further case of the DRI is that acting upon the said secret information, a raiding party was organized. Two public witnesses, Sandeep Singh and Akshit @ Sonu were associated and they were apprised about the secret information. The raiding team went to the spot and laid a vigil on the vehicles entering Delhi. At around 10.15 a.m. a white colour Maruti Car 800 bearing Registration No. JK 02G 4126 entering Delhi was signaled to stop. It was occupied by two male individuals and a female. After introducing themselves to the three occupants of the car, DRI officers inquired whether they were carrying any narcotic drugs on their person or in the car. They replied in the negative. The spot being a busy highway was not found suitable to conduct search. The raiding team along with occupants of the car came to the parking area of the DRI office. Ms.Poonam Aggarwal (PW-6) was associated in the investigation at the parking area. Notices under Section 50 of the NDPS (Ex.PW-8P; Ex.PW-8/Q and Ex.PW-6/A) were served Crl.A.Nos.1360/14 & 1605/14 Page 3 of 21 upon the occupants of the car. During search of the car, 11 cloth packets stuffed inside a speaker box lying in the dickey of the car and nine cloth packets kept in white HDPE bag, concealed in the bonnet of the car were recovered. Documents numbering eight were found from the dash board of the car. The total weight of the recovered contraband i.e. heroin out of twenty bax was found to be 20.474 kg. The recovered heroin along with its packings, speaker box, HDPE bag, car and the documents were seized. Two representative samples of 5 gms each from each of the recovered packets were taken and kept in separate zip lock small polythene packets. The occupants of the car were searched. Nothing incriminating was recovered from Mr.Ravinder Kumar and Ms.Sharifa Bibi. A mobile make nokia was recovered on Rakesh Kumar‟s personal search. Punchnama (Ex.PW6/B) was prepared.
5. Further case of the prosecution (DRI) is that statements Ex.PW-8/B (Ravinder Kumar) Ex.PW-8/C (Rakesh Kumar Mehra) and Ex.PW-3/A(Sharifa Bibi) were reduced into writing under Section 67 of the NDPS Act. The appellants tendered the statements voluntarily inculpating themselves in the recovery and trafficking of the contraband. Both the appellants were arrested on 26.11.2007 vide arrest memos (Ex.PW8E and Ex.PW-8/F) respectively and medically examined. On Crl.A.Nos.1360/14 & 1605/14 Page 4 of 21 26.11.2007 compliance under Section 57 NDPS Act was made. During investigation exhibits were sent to Central Revenue Control Laboratory (CRCL) and its reports were collected. Statements of witnesses conversant with the facts were recorded. Upon completion of investigation, a complaint case was filed against the appellants for commission of various offences under NDPS Act.
6. On 22.5.2008, the learned Trial Court took cognizance. Vide order dated 7.3.2009 the appellants were charged for commission of offences under Sections 29 and 21(c) read with Section 29 of the NDPS Act to which they pleaded not guilty and claimed trial. DRI examined twelve witnesses to substantiate its case. In 313 statements, the appellants denied their complicity in the crime and pleaded false implication without examining any evidence in defence. The trial resulted in their conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeals have been preferred by them.
7. I have heard the learned counsel for the parties and have examined the written submissions. Learned counsel for the appellants urged that the Trial Court did not appreciate the evidence in its proper perspective and vital discrepancies and infirmities emerging in the statements of prosecution witnesses were overlooked without any valid Crl.A.Nos.1360/14 & 1605/14 Page 5 of 21 reasons. The prosecution was unable to examine independent public witnesses during trial. There was not proper compliance of the mandatory provisions of Sections 42, 50 and 57 of the NDPS Act. The appellants had never confessed the crime and their voluntary statements under Section 67 of the NDPS Act were fabricated or manipulated.
8. Learned counsel for the DRI urged that huge recovery has been effected from the appellants‟ possession and no sound reasons prevail to disbelieve it. Two independent public witnesses Sandeep Singh and Akshit @ Sonu were associated during investigation. However, they could not be located despite best efforts by the prosecution. The appellants were at liberty to produce them in defence. PW-8 (Jyothimon) did not nurture any enmity or ill-will against the appellants to falsely implicate them in this case. There was least possibility of the huge quantity to have been planted upon the appellants. The appellant Ravinder Kumar has owned the vehicle in question (Ex.PW-6/B-5) and it was released on superdari to his real brother Balwinder Kumar (Ex.PW- 6/B-8). Minor contradictions emerging in the statements of PW-1 and PW-8 are inconsequential and show that they were not tutored. The appellants have not assailed the voluntary character and truthfulness of statements recorded under Section 67 NDPS Act. Reliance has been Crl.A.Nos.1360/14 & 1605/14 Page 6 of 21 placed on Sumit Tomar vs.State of Punjab 2012 (10) SCALE; Siddiqua vs. Narcotics Control Bureau 2007 (1) JCC (Narcotics) 22; Namdi Francis Nwazor vs.Narcotics Control Bureau Crl.A.No.122 of 1991; Kanhiya Lal vs.Union of India AIR 2008 (SC) 1044; Amrita @ Amritlal vs.State of M.P.2004(1) CC Cases (SC) 220; CBI vs.Ashiq Hussain Faktoo & Ors. 2003 (2) JCC 316; Mohd.Hussain Fara vs.UOI & Anr.1999 (3) CC Cazse (SC); Krishna Mochi & Ors.vs.State of Bihar & Ors.2002(2) CC Cases (SC); Chaudhari Ramjibhai Narasangbhai vs.State of Gujarat & Ors (2004) 1SCC 184; State of Punjab vs.Ramdev Singh 2004 (1) CC Cases (SC); State of Punjab vs.Balwant Rai 2005 (1) JCC (Narcotics); P.P.Beeran vs.State of Kerala 11(2001) SLT 779-II (2001) CCR 38 (SC); K.R.Vengadeswar vs.NCB Crl.A.830/2010 DHC; Arif Butt vs.State 2005 (1) CC Cases (High Court); Amjad Shahid vs.State 2005 (1) Cases (HC) 68; M.Prabhulal vs.The Assistant Director, DRI 2003 (3) CC Cases (SC) 67; UOI vs.Satrohan 2008 (3) JCC (Narcotics) 182 SC; Akabuogu Godwinn Ojimba & two Ors. vs.Customs Crl.A.999/2010, DHC; K.R.Vengadeswar vs.NCB Crl.A.830/2010 DHC; and K.I.Pavunny vs.Assistant Collector (HQ,Central Excise Collectorate, Cochin Crl.A.543/1998- (1997) 3 SCC 721.
Crl.A.Nos.1360/14 & 1605/14 Page 7 of 21
9. At the outset, it may be noted that appellants‟ conviction is primarily based upon the sole testimony of PW-8 (Jyothimon), the Investigating Officer. Two independent public witnesses, Sandeep Singh and Akshit @ Sonu were allegedly joined during investigation. The prosecution, however, failed to produce them before the Trial Court for examination. No sincere efforts seem to have been made to secure their appearance before the Court. Summons were got issued to secure their presence on one date of hearing. After the process was received back unexecuted with the report that none of these witnesses was available/existing at the given addresses, the learned counsel for the respondent opted to drop them without asking issuance of coercive process to compel their presence or to find out their whereabouts. The Investigating Officer was unable to offer reasonable explanation as to why these two material independent prosecution witnesses could not be located. It is pertinent to note that both these witnesses were available to the Investigation Officer during investigation. PW-8 (Jyothimon) deposed that both these witnesses were called at DRI office on 10.12.2007 and their statements Ex.PW8/M (Akshit) and Ex.PW8/O (Sandeep Singh) were recorded. Akshit had appeared in response to summons acknowledged copy of which is Ex.PW-8/L and Sandeep Singh appeared Crl.A.Nos.1360/14 & 1605/14 Page 8 of 21 in response to summons acknowledged copy of which is Ex.PW-8/N. It is mystery as to how these two witnesses were not available at the said addresses when called to appear before the court. Nothing was disclosed if on any particular date, both these witnesses had left the given addresses to shift to some other unknown place. Adverse inference is to be drawn against the prosecution for not examining these witnesses.
It has come on record that these two witnesses were associated during investigation when they were allegedly present in the parking area near DRI office on the road on 25.11.2007. It is unclear if they were gainfully employed or had their own occupation/business and if so at what place. No documents were collected from them to verify their permanent/temporary address of their residence or place of work to ensure that they would be available at the given addresses in case of need. The Investigating Officer did not furnish any believable reasons as to why no independent public witness was associated from any office, shop or residence and why those two witnesses were picked while roaming on the road. If no such public witness was available at the time of proceeding for raid due to offices being closed that time, there was no obstruction for the Investigating Officer to join them at the time of recovery which had Crl.A.Nos.1360/14 & 1605/14 Page 9 of 21 allegedly taken place at DRI premises where number of other offices were located/situated.
The Investigating Officer did not deem it fit to take into confidence the police officials available at the spot where the occupants of the car were signalled to stop. No barricades were used to intercept the car. It is curious that the accused persons having possession of huge quantity of contraband would stop just on getting signal of the Investigating Officer and would not attempt to flee. It appears that deliberately no independent witness from a „known‟/certain place was joined. Observation of this Court in Nnadi K.Iheangi vs.Narcotics Control Bureau in Crl.A.No.1416/2010 decided on 4th September, 2014 are relevant in similar circumstances:-
"25. The above submission conveniently ignores the position that it is the duty of the prosecution to ensure the presence of its witnesses. It was the responsibility of the NCB to provide the correct address of the witness and ensure that the process was served at the said address. Once it was known from the report on the reverse of the summons for the hearing on 15th July 2009 that the address furnished by the NCB was incomplete, there was no justification in getting summons prepared for the two subsequent dates for the address at E-15/12 G.T.K Road. The process server had noted that one Mr. Jain was residing in E-15, G.T.K. Road, Delhi and that there was no E-15/12. In the circumstances, it was incumbent on the NCB to ascertain the correct address of Rajiv Chauhan. Further, on two occasions, the trial Court Crl.A.Nos.1360/14 & 1605/14 Page 10 of 21 directed the service of summons to the said witness through the IO, since he was the only public witness. On the first occasion, when such an order was passed on 13th January 2010, the trial Court was informed that the direction could not be complied with since the IO was unwell. On the second occasion, when such an order was passed, on 24th May 2010, the Director, NCB was called upon "to monitor the service and submit action taken report on separate letter addressed to the Court." The said order was not complied with. If only NCB had taken effort of finding out what was written on the reverse of the summons, it would have been obvious that the summons was being sent repeatedly to an address, which was incomplete and not correct. This points to an abject failure on the part of NCB to produce the panch witness for examination in the Court. The responsibility for producing the said witness cannot be shifted to the accused. The prosecution was given at least six opportunities and deliberately failed to take steps to find out the correct address and serve the summons on such correct address.
26. The lapse of the NCB points to another difficulty. The summons issued to the panch witness in the very first instance by the NCB during investigation, gave the address as E-15/12, G.T.K. Road, Delhi. The summons was dated 15th December 2007. Rajiv Chauhan was asked to appear before the NCB on 4th January 2008. He is stated to have appeared pursuant to the said summons. The NCB failed to explain how it managed to get the summons in the first instance served on Rajiv Chauhan at an address that was either incomplete or false.
28. Nevertheless, the inescapable conclusion is that the NCB having failed to produce the named panch witness who was shown as being present at the time of arrest and seizure, there remains a serious unexplained doubt whether such a witness in fact existed. The trial Court appears to have overlooked the above features of the prosecution case and easily accepted the explanation that the witness was perhaps not served with the summons in the first instance by post. That was a surmise which was not warranted. In the process, Crl.A.Nos.1360/14 & 1605/14 Page 11 of 21 the trial Court overlooked its own orders requiring service of summons upon Rajiv Chauhan through the IO and calling for a report from the Director, NCB.
29. The evidence of PWs 4 and 5, both NCB officers, stating that Rajiv Chauhan was associated in the arrest and search of the Appellant was at best self-serving and not re-assuring when summons were repeatedly received back unserved stating that the address given for Rajiv Chauhan was either incomplete or false. The first line of Rajiv Chauhan's statement under Section 67 NDPS Act recorded that he appeared pursuant to the summons issued to him. If the address given on the summons was false or incomplete, then the onus of proving how Rajiv Chauhan appeared on his own before the NCB on 4th January 2008 was squarely on the prosecution and that burden was not discharged by it.
30. In a large number of cases involving the NCB, there is a failure to produce the panch witness named. There are cases where panch witnesses are not associated at all and it is sought to be explained by the prosecution that despite its request no person from the public came forward to join in the raid. The latter explanation has been accepted by some Courts by taking judicial notice of the fact that the members of the public are generally reluctant to be involved in criminal cases as witnesses. However, in a case where the NCB specifically names a public witness as being associated in the arrest and seizure, its failure to produce such person for cross-examination must be specifically explained by it.
31. In the present case the failure to produce the public witness was attributable to a false address given for the witness. This raises serious doubts as to whether such a witness existed at all. It will amount to falsification of the trial Court record if the thumb impression on the arrest and seizure memo is attributed to a witness who is not able to be produced and it is shown that the address given for him, even in the first instance in the summons issued by NCB, was false. This casts serious doubts on the trustworthiness of the prosecution version and in that circumstance the benefit of Crl.A.Nos.1360/14 & 1605/14 Page 12 of 21 doubt should certainly go to the accused. Retracted statement of the Appellant under Section 67 NDPS Act."
(Emphasis given)
10. Another glaring and unusual feature of this case is that the prosecution did not examine any other member of the raiding team to corroborate PW-8 (Jyothimon)‟s version. PW-8 claimed that besides Sandeep Singh and Akshit @ Sonu, the raiding team consisted of he himself, S.K.Sharma, SIO, D.P.Saxena, IO, Sujeet Kumar, IO, Kamal Kumar IO, and R.Roy, IO. None of them was examined in evidence during trial. Panchnama (Ex.PW-6/B-1 to Ex.PW-6/B-12) drawn by I.O.does not contain name and signature of other members of the raiding team. It is a mystery as to why the prosecution opted to withhold all these material witnesses. Again, adverse inference is to be drawn. It appears that they were not examined to avoid discrepancies and contradictions in their testimonies.
PW-1 (S.K.Sharma) in his Court deposition did not claim if he was one of the members of the raiding team or that the vehicle driven by the appellants was intercepted or any recovery was effected from their possession in his presence. In the cross-examination, he was fair enough to admit that he did not join the investigation in the present case and was not so requested by the Investigating Officer. It contradicts PW-8‟s claim Crl.A.Nos.1360/14 & 1605/14 Page 13 of 21 that S.K.Sharma was one of the members of the raiding party. This major discrepancy has remained unreconciled.
11. Confidential information allegedly received by PW-2 (Yogesh Kumar Choudhary) was reduced into writing on a loose paper (Ex.PW-2/A). It was not recorded in any document duly maintained in the office. Allegedly, PW-2 (Yogesh Kumar Chaudhary) placed this secret information before PW-5 (Pankaj K.Singh, Deputy Director, DRI Headquarter) at 7.00 a.m. who in turn, after discussing it with senior officers directed PW-8 to conduct raid. Normal office duty hours of these witnesses were from 9.30 a.m. to 6.00 p.m. Strange enough, on that day they both had arrived at the office at 6.00 a.m. as if they were anticipating the receipt of secret information. PW-2 has admitted in the cross- examination that an official remains deputed to attend phone calls in Control Room. The secret informer did not convey any such information to control room and directly contacted PW-2 (Yogesh Kumar Chaudhary) to disclose it at 6.00 a.m.. It casts doubt. PW-5 (Pankaj K.Singh) in the cross-examination reasoned his early arrival in the office as secret information of sensitive nature was expected to be received by Yogesh Kumar Chaudhary one day before as informed to him. Despite expectation of receipt of secret information a day before, no Crl.A.Nos.1360/14 & 1605/14 Page 14 of 21 sincere/genuine efforts were made to join independent public witnesses from reliable sources. Document (Ex.PW-2/A) does not inspire confidence as such a loose paper can be prepared at any time particularly when all the signatories to it were from the same department/office. The documents/papers prepared during investigation did not reveal as to how many vehicles were used while proceeding towards Singhu Border. PW-8 (Jyothimon) in the examination-in-chief omitted to reveal registration number of these vehicles and also from where and when these were arranged. In the cross-examination, PW-8 disclosed that they had gone to the spot in two government gypsies but was unable to disclose their registration numbers. He went to the extent of saying that S.K.Sharma and D.P.Saxena, other members of the raiding team had accompanied him to the spot in his vehicle. No log book of any of the vehicles was produced.
12. Member of the raiding team and those who joined the investigation subsequently i.e. PW-6 (Poonam Aggarwal) had their respective mobiles. Allegedly, the Investigating Officer contacted Poonam Aggarwal to arrive in the parking area to be associated at the time of recovery on her mobile. No call detail records of the mobile were filed. PW-6 (Poonam Aggawal) in the cross-examination was evasive to answer Crl.A.Nos.1360/14 & 1605/14 Page 15 of 21 questions put to her and feigned ignorance. She was unable to remember the number or make of the vehicles used; name of punch witnesses; their ages; brand name of the speaker, whether it was in working order; name of the officer who had weighed the substance; the number of DRI seal; name of the individual who brought the trunk. Her presence at the spot is highly suspect.
13. Secret informer (Ex.PW-2/A) did not convey if any female would be present in the vehicle bearing registration number JK-02G-4126. When the vehicle was allegedly intercepted at Singhu Border, it was found occupied by the appellants and a female Sharifa Bibi. All the occupants were served with notices under Section 50 NDPS Act after they were brought in the parking area of DRI office. The contraband was subsequently recovered from the dickey and bonnet of the car and seized by punchnama (Ex.PW-6/B-1 to Ex.PW-6/B-12). Sharifa Bibi was resident of Jammu and Kashmir and had accompanied the appellants in the said car. She had no specific purpose to visit Delhi along with the appellants. Her presence along with the appellants in the car was sufficient to raise an accusing finger for her involvement in the crime. It appears that the Investigating Officer did not wish to implicate her. He of his own gave her clean chit by recording various statements. It appears Crl.A.Nos.1360/14 & 1605/14 Page 16 of 21 that change of mind occurred after serving notices under Section 50 of NDPS Act (Ex.PW-6/A). While giving response to notice under Section 50 NDPS Act, she did not claim herself to be innocent and like the appellants permitted the Investigating Officer to search the vehicle without taking her to any gezetted officer or Magistrate. In his statement (Ex.PW-8/C) recorded under Section 67, the appellant Rakesh Kumar allegedly disclosed that Sharifa Bibi lived in a rented accommodation in his neighbourhood. He had asked her to accompany him to Delhi in consideration of some cash and she would be able to purchase cloths for her children. He added that Sharifa Bibi was not aware of the contraband. This statement does not inspire confidence as why a woman would accompany the appellants to Delhi to get meager cash when she had no purpose/work. It was not explained as to why cash would be given to her and why she would agree for it. Case of the appellants was not different than that of Sharifa Bibi. However, the Investigating Officer for the reasons best known to him opted to exonerate her during investigation stage itself without even seeking judicial verdict. It shows as to how the accused persons were picked to be implicated by the Investigating Officer. On the contrary, she was cited as a prosecution witness. As usual, the prosecution was unable even to produce and examine her. As expected, Crl.A.Nos.1360/14 & 1605/14 Page 17 of 21 her whereabouts could not be found and she was dropped to be examined as a witness. What sanctity can be attached to such an investigation?
14. Serious doubts have arisen about compliance of provisions of Section 57 NDPS Act. PW-8 (Jyothimon) deposed that on 26.11.2007, he submitted report (Ex.PW-1/B) under Section 57 through S.K.Sharma, the then SIO, DRI. He omitted, perhaps, intentionally to state as to who was his senior officer to whom the report under Section 57 was submitted. He did not disclose the name of senior officer. PW-1 (S.K.Sharma) contradicting him claimed that the Investigating Officer, Jyothimon had submitted the report (Ex.PW-1/B) to him. He identified PW-8‟s signatures being his junior officer. PW-1 (S.K.Sharma) allegedly a member of raiding team is not expected to receive compliance report under Section 57 of NDPS Act. Perusal of report (Ex.PW-1/B) demonstrates that it bears signatures of both PW-8 Jyothimon, IO DRI and PW-1 S.K.Sharma SIO(GI). It is not addressed to any specific senior officer. It was also not clarified as to by what mode this report (Ex.PW- 1/B) was sent to the senior officer. There was no occasion for the Investigating Officer to send this report thorough S.K.Sharma (PW-1).
15. PW-8 is conspicuously silent as to when and where, he came into possession of the „seal‟ used during investigation. PW-1 Crl.A.Nos.1360/14 & 1605/14 Page 18 of 21 (S.K.Sharma) stated that the Investigating Officer Jyothimon came to him at around 7.40 a.m. and the seal was issued to him vide entry (Ex.PW- 1/A). The seal was returned at 5.00 p.m. that day. The entry does not contain signatures of the Investigating Officer at the time of return of the seal. PW-8 was obviously reluctant to clarify about „seal‟ used on the recovered case property as he was emphatic to claim that PW-1 (S.K.Sharma) was member of the raiding team.
16. During investigation, the investigating agency was unable to find out the alleged king-pin who was instrumental in the transportation of the contraband. Despite premises of the appellants being raided in J&K, no incriminating material was recovered. The individuals namely Tarsem and Bodhraj referred by the appellants in their statements under Section 67 of the Act could not be located and implicated. The investigating agency was unable to unearth the conspiracy and find out the origin of the contraband. The source from where the appellants had procured the contraband could not be ascertained. The prosecution was further unable to find out as to for whom the contraband was meant and where it was to be delivered or handed over and if so for what consideration. Nothing has come on record to show if any of the appellants was in constant touch during their journey to Delhi with the prospective purchaser. Crl.A.Nos.1360/14 & 1605/14 Page 19 of 21
17. The appellants were allegedly apprehended along with the contraband at Singhu Border. However, no proceedings whatsoever were conducted at the spot. The appellants were brought at DRI office and all the proceedings regarding recovery of the contrabands and service of notices under Section 50 NDPS Act were done there. The Investigating Officer did not verify as to who was the registered owner of the car in question. Mobile phone recovered from appellant- Rakesh Kumar Mehra was shown to have been seized by preparing a seizure memo. No call details record of mobile phone was produced. Nothing was explained how this mobile was in operation till 26.11.2007, even after appellants‟ apprehension.
18. In the light of the above referred deficiencies, inconsistencies and discrepancies, statement of the Investigating Officer without corroboration from six other members of the raiding team and independent witnesses cannot be believed to base conviction for stringent provisions of the Act. The law on this aspect is that "stringent the punishment stricter the proof." In such like cases, the prosecution evidence has to be examined very zealously so as to exclude every chance of false implication. The prosecution has failed to establish the commission of offence by the appellants beyond reasonable doubt. It Crl.A.Nos.1360/14 & 1605/14 Page 20 of 21 cannot take benefit of appellants‟ inability to establish their defence pleaded in 313 statements beyond reasonable doubt. Mere apprehension of the appellants is not enough. The evidence is scanty and lacking to establish that the contraband was recovered from the possession of the appellants in the manner alleged by the prosecution on the said date and time. They deserve benefit of doubt.
19. Resultantly, the appeals filed by the appellants are accepted. The conviction and sentence are set aside. The appellants shall be released forthwith if not required to be detained in any other case.
20. Trial Court record be sent back immediately with the copy of the order. A copy of the order be sent to the Superintendent jail for information.
(S.P.GARG) JUDGE AUGUST 24, 2015 sa Crl.A.Nos.1360/14 & 1605/14 Page 21 of 21