Sh.Akhilesh Kumar Mishra, ... vs Benjamin David Billington & Anr.
2013 Latest Caselaw 1244 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON: 23rd January, 2013
                               DECIDED ON : 13th March, 2013

+ CRL.L.P.98/2007, CRL.M.A.Nos.6277/2007 & 10173/2007

       SH.AKHILESH KUMAR MISHRA, INTELLIGENCE OFFICER,
       NARCOTICS CONTROL BUREAU
                                                   ....Petitioner
                Through : Mr.Rajesh Manchanda, Spl.PP with
                          Mr.Rajat Manchanda, Advocate.

                               VERSUS

       BENJAMIN DAVID BILLINGTON & ANR.          ....Respondents
               Through : Mr.S.S.Das, Advocate with Mr.Sumit
                         Sharma, Advocate for R-2.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Criminal Leave Petition No.98/2007 has been preferred by

Akhilesh Kumar Mishra, Intelligence Officer, NCB, Delhi Zonal Unit,

New Delhi (hereinafter referred to as 'petitioner') against judgment dated

12.05.2007 of learned Special Judge, NDPS by which the respondents

were acquitted of the charges. Notice of Petition was issued to the

respondents. Respondent No.1 could not be served as he went abroad after

acquittal. Mr.S.S.Das, Advocate put appearance on behalf of the

respondent No.2.

2. I have heard the learned Spl.P.P. for the petitioner and

Mr.S.S.Das, learned counsel for the respondent No.2. Counsel for the

petitioner urged that the impugned judgment of acquittal cannot be

sustained on facts and law. 9.540 kgs and 75 grams Hashish was

recovered from respondent No.1 and respondent No.2 respectively. The

petitioner examined material witnesses to prove recovery from both the

respondents. PW-Sarabjeet Singh independent witness supported the

official witnesses in entirety. Trivial contradictions in the testimony of the

prosecution witnesses were not fatal to throw away the whole case of the

prosecution. The Trial Court gave undue weightage to the fact that, the

bag containing 9.540 kgs Hashish, was not retrieved after seeking

permission from the airlines officials. The bag in question was retrieved

by the respondent No.1 in the presence of officer of NCB who had given

his identity. The officials of NCB were not acquainted with the

respondents to falsely implicate them. They had no animosity with them.

Confessional statements of the respondents under Section 67 NDPS Act

were ignored by the Trial Court without valid reasons. The cogent and

reliable testimony of the witnesses examined before the Trial Court was

not appreciated in its proper perspective. Non-examination of landlord of

the respondent No.2 was immaterial as he did not deny in 313 Cr.P.C.

statement his residence in the said house. Counsel also urged to consider

grounds (A) to (Z) in the petition to reverse acquittal of the respondents.

Learned counsel for the respondent No.2 argued that the petitioner

miserably failed to prove recovery of contraband from the respondents.

There were vital discrepancies and contradictions. The independent

witnesses were either not examined or they did not support the

prosecution case. Confessional statements recorded under duress were

retracted by the respondents at the earliest opportunity. There was no

irregularity or illegality in the findings of the Trial Court.

3. I have considered the submissions of the parties and have

marshalled the evidence. The prosecution was required to establish

beyond reasonable doubt recovery of Hashish, 9.540 kgs from the

conscious possession of respondent No.1. The prosecution examined

official witnesses as well as independent panch witness. They testified

that the suit case containing the contraband was retrieved from the

conveyer belt and Hashish was recovered in it. However, Trial Court

highlighted major discrepancies and contradictions in the statements of

the witnesses to doubt recovery in the manner alleged by the prosecution.

Admittedly, the prosecution witnesses did not know respondent No.1

before and did not have his photograph. Many foreigners were present at

IGI Airport. Respondent No.1 was not apprehended at the pointing out of

the secret informer. His presence was not ascertained by making enquiries

from the concerned airline officials. It was highly difficult to identify and

recognise respondent No.1 on the basis of alleged description with the

Enforcement officials. It has come on record that after secret information

was received, the raiding team reached IGI Airport at 11.00 P.M.

Respondent No.1 was apprehended at around 01.00 A.M. It is unclear at

what time respondent No.1 reached the airport; when he got his baggage

checked and x-rayed; when baggage tag was affixed and stub was affixed

on the air ticket. Respondent No.1 was allegedly apprehended when his

baggage had already been cleared after security checks and was put on

conveyer belt. The witnesses did not explain why respondent No.1 was

not arrested soon after he arrived with the suitcase in question and why he

was allowed to put the bag on the conveyer belt. It is not clear as to why

the officials waited for two hours to apprehend respondent No.1 when

they had specific secret information about him.

4. It is admitted that once a baggage is checked after security

checks, the same cannot be retrieved without the permission of the

Custom officials or the airline staff. The prosecution did not adduce

cogent evidence to ascertain as to how the baggage was retrieved without

oral or written permission of the Custom/airline officials. It was not

elaborated as to who and under what circumstances, had retrieved the

baggage or any written proceedings were conducted by the airline officials

in that regard. Admittedly, the officials did not record statement of any

such official from the airline staff or Custom to corroborate that the

baggage was retrieved by the accused after it was put on conveyer belt.

The baggage was thoroughly checked manually as well as with the use of

X-ray machines. The prosecution did not examine any such official who

conducted X-ray of the baggage or who manually checked it. Before

clearance false cavity in the baggage was not detected and no contraband

in the baggage was noticed during X-ray.

5. The prosecution associated two panch witnesses Sanjay

Sharma and Sarabjeet Singh. Only PW-Sarabjeet Singh was examined.

The prosecution did not produce other panch witness Sanjay Sharma as he

was untraceable. PW-Sarabjeet Singh gave inconsistent version and did

not corroborate the official version in its entirety. When he was examined

on 19.05.2005 before lunch, he introduced a new story that both

respondent No.1 and respondent No.2 were taken by NCB Officers near

the conveyer belt and they took away blue colour bag from the belt. When he

was further examined on 25.05.2005, learned Spl.PP put a leading question to

prove that the recovery was made only from one accused. PW-8 changed

his version and stated that the contraband was recovered from respondent

No.1. He explained that other person (respondent No.2) was also sitting

nearby. He did not clarify as to who else was present with respondent

No.1 at the time of recovery. PW-8 could not produce his employment

with the Courier Company. He also did not produce any document to

establish his presence at the spot. The address given by him was of his

maternal grandmother. Adverse inference is to be drawn against the

prosecution for withholding another independent witness Sanjay Sharma.

The Trial Court did not believe confessional statement recorded under

Section 67 of the Act as it was made under duress and was retracted at the

earliest opportunity. The prosecution further could not establish that both

respondent No.1 and respondent No.2 hatched conspiracy to export the

contraband out of India.

6. Recovery of 75 grams Hashish from the residence of

respondent No.2 is also doubtful and suspicious. The prosecution did not

associate the landlord despite his availability. No rent note or rent receipt

was collected to prove his residence at the said place. Two panch

witnesses Nathu Ram and Ram Parshad were associated at the time of

recovery from the residential premises I-51, 3rd Floor, Lajpat Nagar.

However, they were not examined in the Court. Again adverse inference

is to be drawn for withholding the material witnesses. No evidence was

collected that the baggage in question was collected by respondent No.1

from the residence of respondent No.2. Rather in the confessional

statement recorded under Section 67 of the Act, it is mentioned that

respondent No.1 collected the packet containing Hashish from Hari Rama

Hotel reception counter which was lying unattended. There was no

evidence to prove that at any time respondent No.1 and respondent No.2

were ever seen together.

7. The evidence has been analyzed by the Trial Court minutely

and recovery of the contraband from respondent No.1 and respondent

No.2 and has been found discrepant. The prosecution could not establish

conspiracy. In the absence of unimpeachable evidence and due to inherent

and major contradictions, the Trial Court was justified to give benefit of

doubt to the accused. It was obligatory on the part of the prosecution to

establish by cogent and reliable evidence that the respondents were found

in possession of contraband articles. It is well settled that if two views are

possible, the view favourable to the accused is to be preferred.

8. Law dealing with appeals against the order of acquittal has

been laid in 'Jaswant Singh vs. State of Haryana', (2000) 4 SCC 484 as :

XXX XXX XXX

"(v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.

(vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed."

9. In the light of above discussion, I find no compelling and

substantial reasons to interfere in the impugned judgment of acquittal.

There is no merit in the Criminal Leave Petition filed by the petitioner and

is dismissed. Pending applications also disposed of.

(S.P.GARG) JUDGE MARCH 13, 2013 tr