By TIOL News Service

NEW DELHI, AUGUST 28, 2017: CHALLENGE in this appeal is a judgment dated 22.09.2012 of the Addl. Sessions Judge by which the appellant was held guilty for committing offences punishable under Sections 21(c) and 29 of NDPS Act, 1985.

By this order, the appellant was sentenced to undergo RI for ten years with fine.

To establish its case, the prosecution examined total fourteen witnesses. In 313 Cr.P.C. statement, the appellant denied involvement in the crime and pleaded false implication.

Being aggrieved and dissatisfied, the instant appeal has been preferred by the appellant.

The counsel for the appellant urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error to base conviction on the sole testimony of PW-10 (Jyothimon Dethan); that no independent public witness was produced for examination to corroborate his version; that the appellant was falsely implicated in this case and nothing was recovered from his possession.

The counsel for DRI urged that there are no valid reasons to disbelieve the testimonies of the police officials who had no prior animosity with the appellant to falsely implicate him in the crime.

After perusal of the evidence on record, the High Court inter alia observed -

+ It transpires that appellant's conviction is primarily based upon the sole testimony of PW-10 (Jyothimon Dethan), the Investigating Officer. His testimony has not been corroborated by any other member of the raiding team.

+ However, none of the members of the raiding team in whose presence the contraband was recovered from the appellant's possession was examined. No plausible explanation has been offered by the investigating agency as to why all these material prosecution witnesses were not produced for examination. Seemingly, a trend has emerged not to examine the other members of the raiding team, apparently, to avoid inconsistencies or contradictions emerging in their cross-examination.

+ The prosecution has claimed that at the spot two independent public witnesses Manoj and Suresh were associated and the recovery was effected in their presence. However, both these witnesses were not examined during trial. The addresses allegedly given by them were found incorrect.

+ This Court has noticed in various cases investigated by DRI officials including the present one that names of certain individuals are recorded in the proceedings to have joined the investigation. However, these so called independent public witnesses are not produced during trial. A general excuse is given that the addresses given by such individuals were incorrect and the investigating agency was not in a position at that time to verify it. This explanation does not inspire confidence.

+ Joining of independent public witness is not a mere formality; it is a vital safeguard to avoid false implication of the individual. In number of cases either no independent public witnesses are associated on the pretext that none of them is available; in some cases only passersby are requested to join the investigation.

+ Recent trend has emerged to just put the names of certain individuals in the proceedings and subsequently during trial to claim that independent public witnesses were associated during investigation but could not be examined during trial due to their non-availability.

+ It cannot happen in most of the cases. Non-examination of the independent public witnesses, in the instant case, is a serious flaw and adverse inference is to be drawn against the prosecution for withholding them.

+ The prosecution has not been able to establish as to from where the appellant and his associate - Arif Butt had originated their journey and when they both came into contact with each other.

+ The investigation is silent as to from where the contraband was procured; by whom it was procured; for what consideration it was purchased. It is also not ascertained as to whom the contraband was to be delivered. The Investigating Officer did not wait to find out as to, to whom the appellant and his associate were to deliver the contraband.

+ The Investigating Officer was unable to disclose the number of the vehicles used to reach the spot. For no plausible reasons, log books pertaining to the vehicles used for apprehension of the appellant were not produced or proved.

+ The sole testimony of the Investigating Officer - PW-10 (Jyothimon Dethan) is not enough to prove the case of the prosecution beyond reasonable doubt. The offences under the NDPS Act are punishable with stringent sentence and the prosecution is required to establish its case beyond reasonable doubt irrespective of the weakness of the appellant's case.

+ All the proceedings were conducted at the DRI office so much so the panchnama dated 17.08.2007 is computer typed. Notices under Section 50 NDPS Act appear to be a mere formality; they seem to have been prepared in advance.

+ PW-10 (Jyothimon Dethan) disclosed in the cross-examination that he had not recorded the statement of any other official of the DRI who had participated in this case; their statements under Section 67 of NDPS Act were not recorded. All the witnesses of the prosecution are located at same office premises. The Court notices in various cases that the officials merely change their roles while carrying out different investigations.

+ The investigation conducted by the investigating agency is not up-to-the-mark and suffers from apparent defects and material irregularities. Appellant's conviction on the solitary statement of the Investigating Officer who is interested in the success of his case cannot be sustained in the absence of any independent corroboration.

The appeal was allowed.

(See 2017-TIOL-1671-HC-DEL-NDPS)