MUHAMMAD JAVED Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) By the present appeal the Appellant challenges the judgment dated 27th May, 2008 whereby the Appellant has been convicted for offence under Section 21(c) NDPS Act and the order on sentence dated 27th May, 2008 whereby he has been directed to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs. 2 lakhs and in default of payment of fine to undergo further rigorous imprisonment for a period of two years.

(2.) Learned counsel for the Appellant contends that though the panchnamas and documents were signed by two independent witnesses, however they were not examined before the Trial Court. The apprehension was allegedly at the railway station, however no witness of either the railway department or railway Police has been associated. The co-traveller has neither been made an accused nor cited as a witness. Thus, the statement of the co-traveller under Section 67 NDPS Act cannot be read in evidence. Form CFSL was not deposited in the malkhana. The case property was seized on 5th June, 1998, however the case property and the samples were deposited in the malkhana on 8th June, 1998 after a gap of 4 days. Thus, the chances of tampering cannot be ruled out. When the contraband was produced before the Trial Court it was found to be tampered with. Though it is alleged that from the personal search Rs. 792 and two railway tickets were recovered, however the railway tickets have not been made a part of the record. As per PW5 Dr. Y.K.S. Rathore, Senior Analyst, Department of Revenue Intelligence, Ministry of Finance, the samples were sealed with the seal of DRI No. 8, however as per PW1 and other witnesses the same were sealed with DRI seal No. 9. Thus, there is discrepancy in the seal. Further, there is discrepancy in the colour of the contraband recovered, as some of the witnesses stated that brown colour contraband was recovered whereas the others stated that light brown colour contraband was recovered. No proper receipt of goods were taken when the same were deposited with the malkhana. The version of prosecution is highly improbable. According to the prosecution the secret information was not noted down due to urgency, however they were in possession of the photograph. It is not known from where photograph of the Appellant was available with the investigating agency. The photograph has not been exhibited during trial. PW14 did not even know which vehicles were used to conduct the raids. She states that no notice under Section 50 was served in her presence. As per PW2 the statements and the entire writings were done at the DRI office. The Appellant had in fact been apprehended from the house of his relatives at Jama Masjid where he was staying after coming to India for medical treatment and falsely implicated in this case. Hence, the Appellant be acquitted of the charges. In the alternative it is prayed that the Appellant had already suffered incarceration of around 11 years and 10 months, thus he be released on the period already undergone as already directed in the other case of the Appellant in CRL.A. 85/2005.

(3.) Learned counsel for the DRI on the other hand contends that PW5 has inadvertently stated that the samples were sealed with DRI seal No. 8, which fact is clarified as all other witnesses have stated that they were sealed with DRI seal No.9. Further all the documents on record fortify the case of the prosecution that the samples of the case property were sealed with the DRI seal No. 9. Thus, the Appellant cannot take advantage of a bonafide typographical error of number. In the testimony of PW5, the tickets from Ludhiana to Delhi which were recovered from the Appellant have been exhibited as Ex.P-1 and P-2. The co-traveller Ms. Hina was searched by PW14 and as nothing was recovered from her search, she was not made an accused. Since it was a secret operation, thus officers of the railways or the railway Police were not associated. There is no difference in the colour of the contraband recovered, as a few witnesses have stated the same to be brown and the others light brown which does not make a material difference. The learned Trial Court has clearly discussed the reason for non-examination of the panch witnesses as Inderpal had died before he could be examined before the Trial Court and witness Umesh Chander had left the given address and his present whereabouts were not known. No doubt, the seizure was effected on 5th June, 1998 and the case property and samples was deposited with the Moharar malkhana on 8th June, 1998 but this was on account of the holidays in between. The link evidence has been duly proved by the prosecution. PW1 in his testimony before the Trial Court has clearly stated that the case property and the samples remained in his custody till they were deposited with the Moharar malkhana on the 8th June, 1998 and no one tampered the same. PW1 has not been cross-examined on this aspect and thus there is no challenge to this part of his testimony. Further, PW12 has clearly stated that when the case properties and samples were received the seal tallied with the fascimle DRI seal No. 9 and the seals were intact. There is no merit in the appeal and the same be dismissed.