By TIOL News Service

NEW DELHI, APR 03, 2016: THIS is a Customs appeal challenging the judgment of Addl. Sessions Judge by which the respondent was acquitted of the charge made under the NDPS Act.

On 01.12.2006 the respondent was going to London (U.K.) in flight No.VS 301 carrying two handbags. On suspicion, he was intercepted and questioned. Foreign and Indian currency of Rs.16,63,867/- was recovered from his possession.

During investigation, two bunches of keys, one visiting card of luggage room T-302, Paharganj along with some other documents were recovered. It was found that the respondent had booked an iron trunk with M/s. Ajay Luggage Room, T-302, Main Bazar, Paharganj. In the presence of panch witnesses, the proceedings regarding seizure of the iron trunk were conducted and it was brought at IGI Airport. Lock of the trunk was opened and it was found to contain two zipper bags having 12 small pouches and 4 small pouches respectively. The recovered substance was weighed and it was found to be 600 grams of Hashish.

Statement of the respondent was recorded under Section 67 NDPS Act. Upon completion of investigation, a complaint case was filed against the respondent for committing offence punishable under Section 20 of the NDPS Act before the Trial Court.

After hearing the rival contentions of the parties and on appreciation of the evidence, the Trial Court, acquitted the respondent of the charge.

Aggrieved, the Department has preferred the instant appeal before the Delhi High Court.

Upon hearing the counsel for the parties and examination of the case file, the High Court, at the outset, observed that it found no valid reasons to deviate from the findings recorded by the Trial Court whereby the respondent was given benefit of doubt and was acquitted.

The High Court after culling out the details of the findings recorded by the Trial Court further observed –

"8. In the light of above referred discrepancies, inconsistencies and discrepancies, the statement of the Investigating Officer and the evidence produced by the prosecution can't be believed to base conviction for stringent provisions of the Act. The law on this aspect is that "stringent the punishment stricter the proof". In such like cases, the prosecution evidence has to be examined very zealously so as to exclusive very chance of false implication. The prosecution has failed to establish the commission of offence by the respondent and beyond reasonable doubt. It cannot be allowed to take benefit of the respondent's inability to establish his defence in 313 Cr.P.C. statement. Mere apprehension of the respondent is not enough. The evidence is scanty and lacking to establish that the contraband was recovered from the possession of the respondent in the manner alleged by the prosecution on the said date and time. The respondent rightly deserved the benefit of doubt and the impugned judgment on that score cannot be faulted."

Citing the principles which govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the Trial Court as laid down by the Apex Court in State of Goa vs. Sanjay Thakran & Anr., (2007) 3 SCC 75, State of Uttar Pradesh vs. Ram Veer Singh and Ors., AIR 2007 SCW 5553 and in Girja Prasad (Dead) by LRs vs. State of M.P., AIR 2007 SCW 5589, and wherein it was further emphasized that - "It is also a settled legal position that in acquittal appeal, the appellate court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper.", the High Court held that the Customs appeal lacks merit.

The appeal was dismissed.

(See 2016-TIOL-647-HC-DEL-NDPS)