Ncb vs Mahesh Kumar
2012 Latest Caselaw 4838 Del

$~14
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL. L.P. 319/2010

%                                  Decided on: 17th August, 2012

       NCB                                             ..... Petitioner
                              Through:     Mr. Satish Aggarwala, Adv.
                     versus

       MAHESH KUMAR                                   ..... Respondent
                  Through:                 Mr. Sunit Mehta, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK


A.K. PATHAK, J. (Oral)

1. Respondent has been acquitted by the Trial Court of the

charges under Section 25A read with Section 28 and 29 of the

Narcotics Drugs & Psychotropic Substances Act, 1985 (NDPS Act),

by extending benefit of doubt. By this petition under Section

378(IV) of the Code of Criminal Code, 1973 (for short "Cr.P.C."),

petitioner seeks leave to appeal against the judgment dated 31st

May, 2010 passed by the Trial Court thereby acquitting the

respondent.

2. In brief, case of petitioner before the Trial Court, was that

one Karan Singh, Officer of Narcotics Control Bureau (NCB),

received a secret information that on 14th March, 2000 one Pawan

along with another person would bring few bottles of Acetic

Anhydride from Ghaziabad in a blue colour Ceilo car bearing

registration no. DL-1CE-4960 for manufacturing of heroin and they

might pass through Wazirabad bridge between 11:30 hours to 14:00

hrs. This information was placed before the Superintendent, NCB

who authorized Sh. Jyotimon for conducting the search by forming

a team. The team so formed took position near Wazirabad bridge

when they spotted the car at about 12:15 pm; upon signal given to

stop the car it sped away. Subsequently car was found lying

abandoned near Wazirabad bridge at about 12.30 pm. Two persons,

namely, Satish and Mam Raj were joined as punch witnesses.

Local people informed that the two occupants had fled away after

leaving the car. The door of the said car was lying open. Some

loose papers/documents were found in the dash board of the car;

whereas four plastic bottles of 2.5 liters capacity each and filled

with transparent liquid with pungent smell were found in a

polythene cloth bag from the dickey of the car. On testing, the

liquid gave positive result for Acetic Anhydride, a controlled

substance. Loose papers/documents comprised of photocopy of

invoice cum delivery challan in the name of M/s Evergreen Exports,

insurance cover in respect of the car was in the name of Mahesh

Kumar, cash receipt of `1,40,000/- issued by Rakesh Kumar in

favour of Mahesh Kumar, form of certificate of registration of the

car in the name of M/s Evergreen Exports.

3. Address of the respondent, that is, E-6/141. Sultan Puri as

appearing on the insurance papers, was raided but nothing

incriminating was found there. Manjit Singh partner of M/s

Evergreen Exports informed that the car was sold on 2 nd March,

2000 to Rakesh Kumar, partner of M/s Fair-Deal Motors, for

`1,70,000/-. On enquiry from Rakesh Kumar, it was revealed that

he had sold the car to respondent on 7th March, 2000 for `1,94,000/-

through one Praveen of M/s Sagar Motors. Statement of Praveen

was also recorded who stated that two persons had come to his

office out of which one person disclosed his name as Ravi Kumar

Gupta and the other as Mahesh Kumar (Respondent). He further

stated that initially Ravi Kumar Gupta had come alone and finalized

the deal but later on Mahesh Kumar also came there and Ravi

Kumar Gupta asked him to get the vehicle registered in the name of

Mahesh Kumar, who had brought a ration card with him. On 8th

March, 2000 he got the vehicle insured in the name of Mahesh

Kumar through an agent Raju Sethi.

4. During the Trial, punch witnesses did not support the

prosecution version. PW10 Mam Raj denied of having seen the

bottles in the car and stated that nothing had happened in his

presence. He also denied that his statement was recorded by the

Investigating Officer. PW14 Satish, another punch witness, also

did not support the prosecution case. He stated that nothing

happened in his presence. He also denied recovery of bottles from

the car in his presence. As per the petitioner, car was sold by M/s

Evergreen Exports to Rakesh Kumar who, in turn, sold it to the

respondent through Praveen of M/s Sagar Motors. Respondent has

denied the ownership of car. PW17 Rakesh Kumar deposed that he

had purchased the car from M/s Evergreen Exports and further sold

it to Mahesh Kumar through PW2 Praveen Kumar. PW2 Praveen

Kumar has deposed that on 3rd March, 2000 Ravi Kumar Gupta had

come to purchase a car and was shown the car bearing registration

no. DL-1CE-4960, which was in the name of M/s Evergreen

Exports. Deal was finalized with Ravi Kumar Gupta. After some

time, on the same day, Ravi Kumar Gupta came with a person and

gave full payment and asked him to get the vehicle registered in the

name of Mahesh Kumar. PW2 Praveen Kumar could not identify

the respondent as the same person who was accompanying Ravi

Kumar Gupta and had disclosed his name as Mahesh Kumar. As

regards, PW17 Rakesh Kumar, he has deposed that he did not

participate in the sale transaction done by PW2. He also deposed

that he had sold the car through PW2 and obtained its delivery

receipt. He further stated that none of the documents relating to

purchase/sale of the car were executed in his presence. He also

stated that he was not aware as to what kind of documents were

submitted for registration. Only photocopy of ration card appears to

have been used for transfer purposes. Neither original ration card

was produced nor it was proved that the same belonged to

respondent. In view of the above, Trial Court has concluded that the

prosecution has failed to prove that respondent was involved in

manufacturing of heroin or he had procured acetic anhydride for

manufacturing the heroin as no incriminating article was recovered

from his house search connecting him with the alleged recovery of

acetic anhydride from the car, inasmuch as, prosecution has failed

to prove that the car was owned by Mahesh Kumar.

5. In my view, from the evidence adduced by the petitioner

during the trial and as discussed above, the view taken by the Trial

Court appears to be possible and same cannot be said to be perverse

nor contrary to the evidence on record. In my opinion, Trial Court

has rightly held that the prosecution has failed to prove its case

against the respondent beyond the shadow of reasonable doubt.

6. For the foregoing reasons, I do not find any justifiable reason

to grant leave to appeal to the petitioner.

7. Petition is dismissed.

A.K. PATHAK, J.

AUGUST 17, 2012 ga