MOHD. IRFAN Vs. DIRECTORATE OF REVENUE INTELLIGENCE

JUDGEMENT

(1.) MOHD . Irfan questions the legality and correctness of a judgment dated 26.03.2012 of learned Addl. Sessions Judge / Spl. Judge, NDPS in Sessions Case No. 126/04 by which he was held guilty for committing offence punishable under Section 21 (c) of the NDPS Act. By an order dated 27.03.2012, he was awarded RI for ten years with fine Rs. 1 lac. In nutshell, the prosecution case is as under :

(2.) ON 07.04.2004, Sh.Raman Mishra, Intelligence Officer received intelligence report at 03.00 P.M. to the effect that Mohd. Irfan aged around 27 years and of wheatish complexion would be carrying around 20 kg narcotics / drugs in a red and black colour 'Polo World' zipper bag on platform No. 8/9, New Delhi railway station at about 07.15 P.M. The intelligence was reduced into writing as Ex.PW -2/A and put up before PW -24 (Sh.Samanjasa Das, Addl. Director). It is alleged that a raiding party was organised and two public witnesses ­ Raju and Vijay were associated. At about 07.15 P.M., Mohd. Irfan was found standing near the stairs of platform No. 8/9 carrying a bag. On interception, he revealed his identity as Mohd. Irfan R/o Distt. Mandsur, M.P. Since the place was not conducive to conduct search and other proceedings, Mohd. Irfan was taken to the office of DRI at Lodhi Road. On search of the bag, 13 packets containing heroin weighing 16.760 kg was recovered. Necessary legal proceedings were conducted. On 08.04.2004, Mohd. Irfan tendered his voluntary statement (Ex.PW -1/G) under Section 67 of the Act. During investigation, it revealed that the appellant used to stay in Bombay Orient Hotel, 926 Jama Masjid and Hotel Sun Rise, Paharganj under the assumed name of Mohd. Almas. On 08.04.2004, room No. 410 in Hotel Bombay Orient, 926 Jama Masjid, where the accused had stayed under the fictitious name of Mohd. Almas was searched and cash Rs. 30,000/ - and receipt No. 5646 dated 07.04.2004 regarding the booking of the room was recovered from a trolley bag lying therein and seized vide panchnama (Ex.PW -4/A). During the course of investigation, statements of the witnesses conversant with the facts were recorded and after completion of investigation, a complaint case was filed by Directorate of Revenue Intelligence (hereinafter referred as 'DRI') through Sh.Ashwani Kumar Sharma, Intelligence Officer. The prosecution examined twenty seven witnesses to establish the guilt. In 313 statement, the appellant pleaded false implication. He examined Mohd. Irshad, his brother, in defence. On appreciating the evidence and after considering the rival contentions of the parties, the Trial Court, by the impugned judgment, convicted the appellant under Section 21 (c) of the Act. Being aggrieved, the appellant has preferred the appeal.

(3.) THE complainant was evasive to inform as to who were the other members in the raiding team. No such member of the raiding team was examined by the prosecution to corroborate the complainant's version. The secret informer was not a member in the raiding team. The driver of the vehicle in which the raiding team had gone to New Delhi Railway Station was also not joined. The extracts of the log book of the vehicle were not placed on record to find out the movement of the vehicle used in the raid. PW -1 admitted in the cross -examination that after raid at the New Delhi Railway Station, no information was given to the security guards / RPF personnel present there. No railway official available there was requested to join the investigation or the proceedings. The vendors / stall owners on the platform No. 8/9 were also not associated in any proceedings. The complainant during investigation did not investigate as to how and when the complainant had reached at platform No. 8/9. He was not found in possession of any railway ticket or platform ticket. After apprehension of the suspect, no intimation was given to the Station Master, GRP / RPF staff or the security incharge. Admittedly, no proceedings whatsoever were conducted at the spot of apprehension and the appellant was brought directly to the office of DRI, CGO Complex. He was not served with notice under Section 50 of the Act at the place of apprehension. Nothing material has come out on record to infer that the place of apprehension was not conducive to conduct the proceedings. Except the bald statement of the complainant, there is no evidence worth the name to infer that the appellant ­ Mohd. Irfan was apprehended in the manner and at the place described by him. Adverse inference is to be drawn against the prosecution for not examining the independent public witnesses whose existence itself was in doubt.