Mohd. Irfan vs Directorate Of Revenue ...
2013 Latest Caselaw 5116 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 16th SEPTEMBER, 2013
                             DECIDED ON : 08th NOVEMBER, 2013

+             CRL.A. 783/2012 & CRL.M.A. 17117/2012

       MOHD. IRFAN                                       ..... Appellant
                           Through :    Mr.C.Mohan Rao, Advocate with
                                        Mr.Trivender Chauhan, Advocate.

                           VERSUS

       DIRECTORATE OF REVENUE INTELLIGENCE..... Respondent
                    Through : Mr.Satish Aggarwala, Spl. P.P.

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

S.P.GARG, J.

1. Mohd. Irfan questions the legality and correctness of a

judgment dated 26.03.2012 of learned Addl. Sessions Judge / Spl. Judge,

NDPS in Sessions Case No. 126/04 by which he was held guilty for

committing offence punishable under Section 21 (c) of the NDPS Act. By

an order dated 27.03.2012, he was awarded RI for ten years with fine ` 1

lac. In nutshell, the prosecution case is as under :

2. On 07.04.2004, Sh.Raman Mishra, Intelligence Officer

received intelligence report at 03.00 P.M. to the effect that Mohd. Irfan

aged around 27 years and of wheatish complexion would be carrying

around 20 kg narcotics / drugs in a red and black colour 'Polo World'

zipper bag on platform No. 8/9, New Delhi railway station at about 07.15

P.M. The intelligence was reduced into writing as Ex.PW-2/A and put up

before PW-24 (Sh.Samanjasa Das, Addl. Director). It is alleged that a

raiding party was organised and two public witnesses - Raju and Vijay

were associated. At about 07.15 P.M., Mohd. Irfan was found standing

near the stairs of platform No. 8/9 carrying a bag. On interception, he

revealed his identity as Mohd. Irfan R/o Distt. Mandsur, M.P. Since the

place was not conducive to conduct search and other proceedings, Mohd.

Irfan was taken to the office of DRI at Lodhi Road. On search of the bag,

13 packets containing heroin weighing 16.760 kg was recovered.

Necessary legal proceedings were conducted. On 08.04.2004, Mohd. Irfan

tendered his voluntary statement (Ex.PW-1/G) under Section 67 of the

Act. During investigation, it revealed that the appellant used to stay in

Bombay Orient Hotel, 926 Jama Masjid and Hotel Sun Rise, Paharganj

under the assumed name of Mohd. Almas. On 08.04.2004, room No. 410

in Hotel Bombay Orient, 926 Jama Masjid, where the accused had stayed

under the fictitious name of Mohd. Almas was searched and cash `

30,000/- and receipt No. 5646 dated 07.04.2004 regarding the booking of

the room was recovered from a trolley bag lying therein and seized vide

panchnama (Ex.PW-4/A). During the course of investigation, statements

of the witnesses conversant with the facts were recorded and after

completion of investigation, a complaint case was filed by Directorate of

Revenue Intelligence (hereinafter referred as 'DRI') through Sh.Ashwani

Kumar Sharma, Intelligence Officer. The prosecution examined twenty

seven witnesses to establish the guilt. In 313 statement, the appellant

pleaded false implication. He examined Mohd. Irshad, his brother, in

defence. On appreciating the evidence and after considering the rival

contentions of the parties, the Trial Court, by the impugned judgment,

convicted the appellant under Section 21 (c) of the Act. Being aggrieved,

the appellant has preferred the appeal.

3. I have heard the learned counsel for the parties and have

examined the record. Appellant's conviction is based primarily on the

statement of complainant - PW-1 (Sh.Ashwani Kumar Sharma,

Intelligence Officer) and confessional statement under Section 67 of the

Act allegedly tendered voluntarily by the appellant. The prosecution was

bound to establish beyond reasonable doubt about the apprehension and

arrest of the appellant at platform No. 8/9 of New Delhi Railway Station

on 07.04.2004 at about 07.15 P.M. PW-1 (Sh.Ashwani Kumar Sharma,

Intelligence Officer) deposed that he was briefed about the intelligence

report by Addl. Director, DRI, DZU at 1530 hours. He joined two

witnesses at about 1600 hours to witness the interception of the suspect. A

team was formed and at 1730 hours, they left for platform No. 8/9 and

reached there at about 1900 hours. A surveillance was mounted and at

about 1915 hours a person of wheatish complexion aged about 27 years

carrying red and black colour 'Polo World' brand bag near the stairs at

platform No. 8/9, New Delhi Railway Station was spotted and intercepted.

Since the place of interception was not safe and proper for search and

other proceedings, Mohd. Irfan along with the bag was brought to DRI

office, CGO Complex, New Delhi. The proceedings regarding search and

preparation of 'panchnama' were conducted there on 08.04.2004 till 05.00

A.M. Intelligence report (Ex.PW-2/A) contained the name of the suspect

as Mohd. Irfan, aged about 27 years, wheatish complexion, who would be

carrying narcotics of about 20 kg in red and black colour 'Polo World'

zipper bag. PW-1 (Sh.Ashwani Kumar Sharma, Intelligence Officer) did

not state as to how much quantity of the narcotics would be in possession

of the suspect. He also did not state that name of the suspect was disclosed

to him at the time of briefing. No other description / features of the

suspect were known to him. Immediately after getting briefing from PW-2

(Raman Mishra), two public witnesses were associated from Paryavaran

Bhawan, CGO Complex, New Delhi. The complainant did not elaborate

the full and complete names of the two public witnesses associated in the

raid, with their parentage, designation, place of work and place of

residence. In the cross-examination, he admitted that he had not verified

the identity of the public witnesses and was not aware if they were

working in a department or office. He was unable to disclose as to in what

connection both the public witnesses were present on the 6 th floor of CGO

Complex and how and under what circumstances, they were called to join

the investigation. He did not verify the qualification of public witnesses to

ascertain whether they were conversant with Hindi and English. In his

deposition before the Court, he did not give reason as to why both these

witnesses were dropped and were not examined. Counsel for the

prosecution emphasized that the witnesses had given incorrect addresses

and were not traceable. The prosecution was under no obligation to verify

the addresses given by them before associating in the raiding team. In the

instant case, however, in my view, the prosecution had ample time to

ascertain the addresses of the public witnesses. The secret information

was received at about 03.30 P.M. and the suspect was apprehended at

07.15 P.M. The public witnesses allegedly remained with the complainant

till 05.00 A.M. the next day. The panchnama (Ex.PW-1/C) merely reflects

name of the public witnesses as Raju and Vijay without any further details

about their addresses and parentage. No sincere attempts were made to get

the summons served at specific addresses on these witnesses and

conveniently on 02.06.2010, the prosecution opted to drop them without

giving any valid reasons. Apparently, the complainant's version remained

uncorroborated from independent sources / witnesses. Joining of

independent public witnesses is not a formality to be performed and

sincere attempts were required to be made by the prosecution before

apprehension of the accused to procure the public witnesses whose

identity / particulars were not doubtful.

4. The complainant was evasive to inform as to who were the

other members in the raiding team. No such member of the raiding team

was examined by the prosecution to corroborate the complainant's

version. The secret informer was not a member in the raiding team. The

driver of the vehicle in which the raiding team had gone to New Delhi

Railway Station was also not joined. The extracts of the log book of the

vehicle were not placed on record to find out the movement of the vehicle

used in the raid. PW-1 admitted in the cross-examination that after raid at

the New Delhi Railway Station, no information was given to the security

guards / RPF personnel present there. No railway official available there

was requested to join the investigation or the proceedings. The vendors /

stall owners on the platform No. 8/9 were also not associated in any

proceedings. The complainant during investigation did not investigate as

to how and when the complainant had reached at platform No. 8/9. He

was not found in possession of any railway ticket or platform ticket. After

apprehension of the suspect, no intimation was given to the Station

Master, GRP / RPF staff or the security incharge. Admittedly, no

proceedings whatsoever were conducted at the spot of apprehension and

the appellant was brought directly to the office of DRI, CGO Complex.

He was not served with notice under Section 50 of the Act at the place of

apprehension. Nothing material has come out on record to infer that the

place of apprehension was not conducive to conduct the proceedings.

Except the bald statement of the complainant, there is no evidence worth

the name to infer that the appellant - Mohd. Irfan was apprehended in the

manner and at the place described by him. Adverse inference is to be

drawn against the prosecution for not examining the independent public

witnesses whose existence itself was in doubt.

5. The prosecution examined PW-3 (N.D.Azad), PW-4 (Arvind

Kumar Sharma), PW-10 (Asifuddin), PW-11 (Syed Abid Hussain), PW-

13 (Mohd.Sarvar) and PW-17 (Tarun Tuli) in an endeavour to establish

that Mohd. Irfan stayed at Bombay Orient Hotel, 926 Jama Masjid and

Hotel Sun Rise, Paharganj under the assumed name of Mohd. Almas. The

photocopies of the guest register of relevant dates were procured and

proved. However, the prosecution was unable to establish that Mohd.

Irfan was the person who stayed under the assumed name of Mohd. Almas

in the said hotels. Neither of these witnesses identified him in the Court to

be the visitor to the hotels. When room No. 410 in Hotel Bombay Orient,

926 Jama Masjid was searched, the official witness was unable to find out

any material to connect that the bag containing ` 30,000/- belonging to

the appellant. The handwriting on the visitors' register where he made

entries in his own handwriting were not sent for comparison with admitted

handwriting of the accused for comparison to handwriting experts. The

recovery was not affected pursuant to the disclosure by the appellant and

he was not taken to the said hotel at the time of its search. No call details

were proved to show as to with whom the appellant had remained in

contact prior to his apprehension. It is unclear as to whom the appellant

was to deliver the consignment and if so, at what place and for what

consideration. The appellant categorically denied to have made statement

under Section 67 of the NDPS Act voluntarily. The contents of the

statement (Ex.PW-1/G) were found incorrect during investigation. It was

alleged that Man Mohan Sharma was kin pin for whom the appellant was

working. Accordingly, during investigation, as a follow up, residential

premises of the appellant and Man Mohan Sharma were searched.

However, no incriminating / objectionable material was recovered from

there. The prosecution rather examined Man Mohan Sharma as PW-16

and he disclosed that he was working as a teacher in a government school

and was President of Teachers' Association for the last ten years. Nothing

emerged that he had any association with Mohd. Irfan.

6. It was alleged that in the confessional statement, the

appellant had disclosed that he had come to Delhi by Intercity Express and

had reached Nizamuddin Railway Station at about 06.30 A.M. on

07.04.2004; had checked in room No. 410 in Hotel Bombay Orient, 926

Jama Masjid and went to Keberia Sarai after leaving his bag containing

his personal belongings; contacted one African on his mobile No.

9811463504 and collected ` 30,000/- from him and came back to the

hotel. He was informed by Man Mohan Sharma that 16.5 kg of heroin was

being sent by him through a person wearing a yellow shirt by Golden

Temple Express and the said person would travel by AC Ist class and

would be waiting for him in front of the above coach. Accordingly, he

reached platform No.9 at 07.00 P.M. and collected the bag from that

person and when he was going back to his hotel he was apprehended by

DRI Officers. The contents of disclosure statement remained unproved.

The Investigating Officer did not collect any document to show if any

such person had travelled in Golden Temple Express or the said train had

reached that day at New Delhi Railway Station at 07.00 P.M. After

collecting the bag from the said person, there was no occasion for the

appellant to wait for about fifteen minutes for his apprehension there. The

secret information / intelligence with the DRI Officers was not that the

bag with contraband would be delivered to him by a person travelling in

Golden Temple Express. The alleged secret information was that a person

by the name of Mohd. Irfan would be carrying a bag at platform No. 8/9

with contraband. There was no certainty that the bag in question in every

eventuality was to be delivered to him at 07.00 P.M. Moreover, Man

Mohan Sharma who appeared as a witness in the Court did not

substantiate the alleged version narrated in the confessional statement.

The prosecution was unable to unearth the source from where the alleged

heroin originated. Apparently, the confessional statement purported to

have been made can't be relied. It is now well settled that the Court must

seek corroboration of the purported confession from independent sources

which is lacking in the instant case.

7. The appellant was apprehended on 07.04.2004 at about 07.15

P.M. However, his arrest was shown the next date at 1900 hours and he

was not produced soon after his arrest before the Magistrate. He was kept

in a lock up though-out the night and was produced before the Court on

09.04.2004. The complainant did not explain the inordinate delay in

effecting the appellant's arrest after his apprehension on 07.04.2004 at

07.15 P.M. The MLC (Ex.PW-1/J) does not record the time when Mohd.

Irfan was produced for medical examination.

8. PW-2 (Raman Mishra) received the intelligence and

conveyed the information (Ex.PW-2/A) to Sh. S.Das. He admitted in the

cross-examination that in the present case secret information was not

submitted before the immediate Superior Officer. He explained that it was

not done so due to non-availability of the Superior Officer in the

department. This fact did not find mention in any document on the judicial

file. PWs have given inconsistent version as to when the complainant was

briefed about the intelligence / secret information. The complainant

admitted that intelligence report was not shown to him when he was

briefed about secret information and was not given any written

authorization to take over the further investigation.

9. Taking into consideration the discrepancies, contradictions,

omissions and inconsistencies in the prosecution case and other

surrounding circumstances, in my view, the prosecution was unable to

establish its case beyond reasonable doubt. It must be borne in mind that

severer the punishment, greater has to be the case taken to base

conviction. The impugned judgment cannot be sustained and is set aside.

The appeal is allowed and conviction and sentence are set aside. The

appellant be set at liberty forthwith, if not required in any other case.

Trial Court record be sent back forthwith. Copy of the order be sent to the

appellant - Mohd. Irfan through Superintendent Jail.

CRL.M.A. 17117/2012

The application has been moved by the respondent for destruction

of the case property i.e. 16.760 kg heroin. Since the appeal has been

allowed, the respondent is granted permission to destroy the case property

i.e. 16.760 kg heroin including the representatives samples as per rules.

The application stands disposed of.

(S.P.GARG) JUDGE NOVEMBER 08, 2013/tr