Compliance with legal procedures, admissibility of evidence, and scrutiny of police witnesses' testimonies are crucial in determining the outcome of a case.

JUDGMENT

1. Aggrieved by the judgment dated 10th August 2017 whereby the appellant was convicted for offences punishable under Section 21(c) of the NDPS Act and Section 14 of the Foreigners Act and the order on sentence dated 23rd August, 2017 whereby he was directed to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1 lakh, in default whereof to undergo simple imprisonment for 3 months for offence punishable under Section 21(c) of the NDPS Act and to pay a fine of Rs.5000/- in default whereof to undergo simple imprisonment for 1 month under Section 14 of the Foreigners Act, the appellant prefers the present appeal. Along with the appellant, one Abdul Khaliq was also tried, however, he was convicted only for offence punishable under Section 14 of the Foreigners Act and acquitted for offence punishable under Sections 21(c) read with 29 of the NDPS Act.

2. Learned counsel for the appellant contends that on the same evidence, the co-accused of the appellant namely Abdul Khaliq who was charged for offences punishable under Section 21(c) read with 29 of the NDPS Act has been acquitted with the specific finding that since no recovery was made from him, the conspiracy was not established. The said finding itself demolishes the entire case of the prosecution. However, by the same impugned judgment, the appellant against whom the same evidence was placed on record by the prosecution has been convicted for offences punishable under Section 21(c) NDPS Act and Section of 14 Foreigners Act. Despite specific finding that there was no evidence of any previous nexus between the appellant and the co-accused, Abdul Khaliq such as by mobile details etc., merely on the evidence of the Police officer that the contraband was handed-over to the appellant by Abdul Khaliq, the appellant has been convicted. Version of the members of the raiding team cannot be relied as the investigation was carried out by an officer who was subordinate to the members of the raiding team from the same police station, contrary to the decision of the Constitution Bench of Hon'ble Supreme Court reported as (2020)10 SCC 120, Mukesh Singh Vs. State. There is no independent corroboration to the version of the Police officers and thus, the Court has to be very circumspect while solely relying upon the said version of the police officers. Reliance is placed on the decision reported as (2018)17 SCC 627, Mohan Lal Vs. State of Punjab. From the two accused, no mobile phone, no watch etc. were recovered, however, still, according to the prosecution case, the two accused reached the spot at the exact time for which information was received. No investigation was carried out to find out from whom Abdul Khaliq allegedly procured the Heroin and to whom, the appellant was to allegedly supply the Heroin. Except the alleged recovery, there is no incriminating evidence against the appellant. The police officers made no efforts to join independent witnesses at the time of raid. No passerby was asked to join the alleged raid and no residents or shop owners from the locality were joined in the investigation despite the fact that the alleged recovery was made on a busy road with houses and shops in close vicinity. Admittedly, the raid was conducted on a secret information and thus, the police could have easily covered the incident by videography or the incident must have been corroborated in any CCTV footage, however, none was produced. Reliance is placed on the decisions reported as (2014)143 DRJ 349, Om Prakash Vs. State; (2017)242 DLT 311, Mohd. Javed Vs. State; (2017)242 DLT 342, Mohd. Firoz Vs. State and (2014)146 DRJ 629, Ram Prakash Vs. State. Section 50 of the NDPS Act has not been complied as directed by the Hon'ble Supreme Court in the decision reported as AIR 2018 SC 2123, Arif Khan Vs. State of Uttarakhand and the appellant was not produced before any Gazetted Officer or a Magistrate and none of the members of the raiding party was a Gazetted Officer