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2015 Supreme(Del) 496
High Court of Delhi
S.P. GARG, J.
Mohd. Masoom & Another – Appellant
Vs.
State of NCT of Delhi & Another – Respondent
CRL.A.Nos. 1404 of 2011 & 1086 of 2011
Decided On : 09-04-2015
For the Appellants:Rajni Singh, M.L. Yadav, Advocates.
For the Respondents: M.N. Dudeja, APP for Lovkesh Sawhney, APP.
The main legal point established in the judgment is the requirement for stringent scrutiny of evidence in cases with severe punishments, emphasizing the need for corroboration from independent sources and the establishment of the offence beyond reasonable doubt.
Headnote:
NDPS Act - Conviction based on testimonies of police officers only - Failure to associate independent witnesses - Inconsistencies and discrepancies in evidence - Benefit of doubt given to appellants
Fact of the Case:
The appellants were convicted under Section 29 & 21 read with Section 23 of NDPS Act based on the recovery of contraband from their possession at IGI Airport. The prosecution's case relied solely on the testimonies of police officers, with no independent witnesses involved. The appellants denied their involvement and pleaded false implication.
Finding of the Court:
The Court found that the prosecution failed to establish the commission of the offence beyond reasonable doubt. It noted inconsistencies, discrepancies, and lack of corroboration from independent sources in the evidence. As a result, the appellants were given the benefit of doubt, and their conviction and sentence were set aside.
Issues: The issues revolved around the reliability of the evidence, failure to associate independent witnesses, inconsistencies in witness testimonies, and lack of corroboration for the prosecution's case.
Ratio Decidendi: The Court emphasized that in cases with stringent punishments, the prosecution evidence must be examined zealously to exclude any chance of false implication. It highlighted the need for corroboration from independent sources and the requirement to establish the commission of the offence beyond reasonable doubt.
Final Decision: The appeals filed by the appellants were accepted, and their conviction and sentence were set aside. The appellants were ordered to be released forthwith if not required to be detained in any other criminal case.
1. Mohd.Masoom (A-1) and Raju Dawar (A-2) impugn a judgment dated 30.06.2011 of learned Addl.Sessions Judge / Special Judge (NDPS) Dwarka Courts, New Delhi, in Sessions Case No. 02/2/10 arising out of FIR No.199/09 PS Crime Branch, by which they were held guilty under Section 29 & 21 read with Section 23 of NDPS Act. By an order dated 30.07.2011, they were sentenced to undergo RI for ten years each with fine Rs.One lac each, under Section 29 of NDPS Act; RI for ten years each with fine Rs.One lac each, under Section 21 read with Section 23 of NDPS Act. The substantive sentences were to operate concurrently.
2. The prosecution case as reflected in the charge-sheet was that on 26.11.2009 at 09.30 a.m., Insp.Sunil Kumar received a secret information in his office at Inter State Cell, Crime Branch, to the effect that A-2 who was in contact with drug smugglers / peddlers from Afghanistan would receive a huge consignment of drugs from Afghan Nationals, who would arrive at IGI Airport at 01.00 p.m. by Ariana Airlines. Insp. Sunil Kumar shared the secret information with senior officers and produced the secret informer before ACP, who after verification of the information directed Insp. Sunil Kumar to initiate necessary action. A raiding team comprising of Insp. Sunil Kumar, SI Sharat Chandra, SI Naresh Solanki, ASI Brahm Prakash, ASI Balbir, HC Om Prakash, HC Dhanvir and two constables was constituted immediately. They along with the secret informer left for House No.B-6, Old Double Storey, Lajpat Nagar-IV, in two vehicles; one government vehicle No.DL-6CJ-0517 and the other a private and reached there at around 11.30 a.m. Some public persons were requested to join the raiding party there but none agreed to join citing one or the other reason. At that moment, an individual identified by the secret informer as A-2 was noticed sitting in a white colour Matiz car bearing No.DL-2C Q7070. Raiding team followed the Matiz car till it reached in front of IGI Terminal-II, Arrival / Exit Gate No.2. A-2 parked his car near the place where construction for metro project was in progress. The raiding team also parked their vehicles at a distance of about 50 – 60 meters from A-2’s car. Again, request was made there to some public persons to join the investigation but to no effect.
3. Further case of the prosecution is that Ariana Afghan Flight running late from scheduled time when finally landed at the airport at 07.30 p.m., A-2 proceeded towards Arrival Gate No.2 and was chased by them. At around 07.40 p.m., A-2 was seen coming along with A-1 with a large brief-case of silver colour in his hand. When they were about to sit in A-2’s car, they were intercepted. After introducing themselves, the appellants were apprised about the secret information regarding the possibility of recovery of contraband substance from them. They were informed about their legal right to be produced before a Gazetted Officer or a Magistrate for search. Insp. Sunil Kumar gave notices under Section 50 of NDPS Act. Both A-1 and A-2 declined to be searched before a Gazetted Officer or a Magistrate and also declined to search the police party and their vehicles. Contents of the notice under Section 50 of NDPS Act were read over and explained to A-1 as he did not know how to write Hindi though he understood it. SI Sharat Chandra recorded his refusal in Hindi; A-2 recorded it in his own handwriting.
4. On checking the bag / briefcase, held by A-2, in the presence of ACP Rajender Bakshi, three pairs of clothes were found in it. When Insp.Sunil Kumar cut open the lower portion of the briefcase, it was found containing brown colour powder. It was 7.100 kg. smack / heroin. Out of the recovered substance, two samples of 50 grams each were drawn and sealed in cloth pullandas with the seal of SK III S. On search of A-1, 510 grams smack was recovered from the left side pocket of his black colour jacket. Two samples of 50 grams each were drawn and were sealed in cloth pullandas wi
