Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Del) 672

IN THE HIGH COURT OF DELHI AT NEW DELHI
SURESH KUMAR KAIT, J.
Harish Joshi - Appellant
Versus
Directorate Of Revenue Of Intelligence - Respondent
CRL.A. 1005 of 2018 & Crl.M.As.10244-10245 of 2021
Decided on : 15-11-2021

Advocates:
Advocate Appeared:
For the Appellant :Mr.Vikas, Advocate
For the Respondent:Mr.Satish Aggarwala, Senior Standing Counsel with Mr.Jasneet Jolly, Advocate

Point of Law: an accused is presumed to be innocent unless proven guilty and to prove the guilt, the prosecution is required to substantiate its case by showing that the due procedures prescribed under the NDPS Act have been followed, coupled with the assistance of material witnesses

Headnote:
Criminal Procedure Code, 1973 - Section 428 and 313 - NDPS Act - Section 21(c ) - Narcotic drugs - Suitcase contained about 5 Kg of heroin - Person would come in a Tata Indica car bearing registration No. carrying narcotic drugs concealed in a suit case to handover it to another person opposite DLF Golf Course, team of DRI and two independent witnesses, mounted a surveillance near designated place in an official vehicle - Vehicle number i.e. an Indica car was spotted near designated place of delivery, which did not stop and kept moving and was followed by officials of DRI in same direction - Said Indica car stopped near an elderly person, who seemed to be waiting for it - One person alighted from car and started speaking to elderly person - When DRI officials tried to apprehend them, person who had alighted from car, escaped into a nearby lane and elderly man got into car, which sped away towards Delhi at a high speed - Driver of car introduced himself, 40 years; elderly person introduced himself, aged about 65 years and third person introduced himself as aged about 26 years - Whether provisions of law were followed by prosecution or not, have to be governed on basis of evidence led before trial court –
Finding of the Court:
Panchnama prepared at spot did not bear signatures of any of panch witnesses - In addition, manner in which offending vehicle was traced, apprehended and recovery was made, also casts a doubt upon credibility of prosecution case - Further, (PW-14), Security Officer at DLF Exclusive Apartments, has not also supported prosecution case - Also, prosecution has failed to substantiate as to how two reports obtained from CRCL had different analysis and as to why opinion of PW-19 with regard to two different reports, one of “Diactyl Morphin” (Heroin) and other for “Opium” being drawn from two different samples, be not accepted. - Court finds that prosecution has immensely failed to prove its case beyond reasonable doubt, therefore, it is a fit case to grant benefit of doubt to appellant/accused - impugned judgment dated and order on sentence (corrected) dated are hereby set aside - Accordingly, appellant is acquitted of offences alleged in present case - Since appellant is on bail, surety‘- bonds, stand accordingly discharged –
Result: Appeal is allowed

JUDGMENT :

1. The present appeal has been preferred against the judgment dated 01.09.2018 passed by the learned Special Judge, Delhi vide which appellant – Harish Joshi, a Canadian national, has been held guilty for the offences under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and order on sentence (corrected) dated 06.09.2018, vide which he has been directed to undergo rigorous imprisonment for 10 years with fine of Rs.1,00,000/-each for both the Sections. In default of payment of fine, appellant has been directed to undergo rigorous imprisonment for further three months and also both the sentences have been directed to run concurrently. Besides, appellant has been given benefit of Section 428 Cr.P.C.

2. The brief facts giving rise to the impugned judgment and order on sentence, as noted in the impugned judgment dated 01.09.2018 are as under:-

(i) On receipt of intelligence information on 08.09.2008 that a person would come in a Tata Indica car bearing registration No. UP-14-AK-0505 carrying narcotic drugs concealed in a suit case to handover it to another person opposite DLF Golf Course, Gurgaon at about 06.00 P.M., the team of DRI and two independent witnesses, mounted a surveillance near the designated place in an official vehicle. At about 06:30 P.M., vehicle number UP-14-AK-0505 i.e. an Indica car was spotted near the designated place of delivery, which did not stop and kept moving and was followed by the officials of the DRI in the same direction. The said Indica car stopped near an elderly person, who seemed to be waiting for it. One person alighted from the car and started speaking to the elderly person. When DRI officials tried to apprehend them, the person who had alighted from the car, escaped into a nearby lane and the elderly man got into the car, which sped away towards Delhi at a high speed. The car could be finally intercepted and forced to stop opposite Shiv Murti, near Mahipalpur, New Delhi.

(ii) The driver of the car introduced himself as Manoj Kumar Sharma, 40 years; the elderly person introduced himself as Harish Joshi, aged about 65 years and the third person introduced himself as Anil Mohan aged about 26 years. On being asked, the driver of the car opened the dickey and a black colour zipper stroll suitcase was found therein. On persistent questioning, the appellant admitted that the suitcase contained about 5 Kg of heroin and it was to be delivered to him. The person who had fled away from the spot was disclosed as Sanjay.

(iii) According to DRI, notice under Section 50 of NDPS Act was served upon them, who denied requirement of presence of the Gazetted officer or Magistrate at the time of their personal search. These persons along with their vehicle were brought to the office of the DRI along with those two witnesses for the search. One black colour zipper trolley suitcase make Royal was recovered during the search. Besides, insurance and RC papers of the Indica car were also recovered from the glove box of the car. However, nothing was recovered from the person of the three apprehended persons.

(iv) During search of the recovered brief case, it was found containing old clothes. However, since bottom of the suitcase seemed heavy, the base fabric of the suitcase was removed and a sunmica sheet was found affixed. Upon removal of sunmica sheet, five packets wrapped in transparent tape were found placed on another sunmica sheet attached to the base of the suitcase. The five packets were marked as A, B, C, D and E and were weighed with electronic weighing scale and the gross weight was found to be 1.070 kg; 1.070 kg; 1.075 kg; 1.074 kg and 1.078 kg respectively. On opening, the packets were found to be containing yellowish granules/powder. The powder from each packet was tested with the help of UN Field Testing Kit and tested positive for the presence of Opium Alkaloids. The net weight of contents of each packet was found to be 0.964 kg; 0.970 kg; 0.974 kg; 0.976 kg. and 0.