Rakesh Kumar Mehra vs State
2015 Latest Caselaw 6159 Del

$
*      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,

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

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

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

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

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

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.

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

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

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

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,

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

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

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

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

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

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,

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

(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.

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

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