SH.AKHILESH KUMAR MISHRA Vs. BENJAMIN DAVID BILLINGTON

JUDGEMENT

(1.) CRIMINAL Leave Petition No.98/2007 has been preferred by Akhilesh Kumar Mishra, Intelligence Officer, NCB, Delhi Zonal Unit, New Delhi (hereinafter referred to as 'petitioner') against judgment dated 12.05.2007 of learned Special Judge, NDPS by which the respondents were acquitted of the charges. Notice of Petition was issued to the respondents. Respondent No.1 could not be served as he went abroad after acquittal. Mr.S.S.Das, Advocate put appearance on behalf of the respondent No.2.

(2.) I have heard the learned Spl.P.P. for the petitioner and Mr.S.S.Das, learned counsel for the respondent No.2. Counsel for the petitioner urged that the impugned judgment of acquittal cannot be sustained on facts and law. 9.540 kgs and 75 grams Hashish was recovered from respondent No.1 and respondent No.2 respectively. The petitioner examined material witnesses to prove recovery from both the respondents. PW-Sarabjeet Singh independent witness supported the official witnesses in entirety. Trivial contradictions in the testimony of the prosecution witnesses were not fatal to throw away the whole case of the prosecution. The Trial Court gave undue weightage to the fact that, the bag containing 9.540 kgs Hashish, was not retrieved after seeking permission from the airlines officials. The bag in question was retrieved by the respondent No.1 in the presence of officer of NCB who had given his identity. The officials of NCB were not acquainted with the respondents to falsely implicate them. They had no animosity with them. Confessional statements of the respondents under Section 67 NDPS Act were ignored by the Trial Court without valid reasons. The cogent and reliable testimony of the witnesses examined before the Trial Court was not appreciated in its proper perspective. Non-examination of landlord of the respondent No.2 was immaterial as he did not deny in 313 Cr.P.C. statement his residence in the said house. Counsel also urged to consider grounds (A) to (Z) in the petition to reverse acquittal of the respondents. Learned counsel for the respondent No.2 argued that the petitioner miserably failed to prove recovery of contraband from the respondents. There were vital discrepancies and contradictions. The independent witnesses were either not examined or they did not support the prosecution case. Confessional statements recorded under duress were retracted by the respondents at the earliest opportunity. There was no irregularity or illegality in the findings of the Trial Court.

(3.) IT is admitted that once a baggage is checked after security checks, the same cannot be retrieved without the permission of the Custom officials or the airline staff. The prosecution did not adduce cogent evidence to ascertain as to how the baggage was retrieved without oral or written permission of the Custom/airline officials. It was not elaborated as to who and under what circumstances, had retrieved the baggage or any written proceedings were conducted by the airline officials in that regard. Admittedly, the officials did not record statement of any such official from the airline staff or Custom to corroborate that the baggage was retrieved by the accused after it was put on conveyer belt. The baggage was thoroughly checked manually as well as with the use of X-ray machines. The prosecution did not examine any such official who conducted X-ray of the baggage or who manually checked it. Before clearance false cavity in the baggage was not detected and no contraband in the baggage was noticed during X-ray.