Special Judge, NDPS ASJ, Saket Courts: A case was registered on receiving specific information regarding some contraband goods, being concealed in four containers, declared to contain rock salt, being imported into India and were lying at ICD Tughlakabad, New Delhi after being seized. Gaurav Gupta, J., discharged an accused (accused 5) for the lack of evidence against him. The Court further held that a prima facie offence u/s 29 and 28 r/w 21/23 Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS) was made out against accused 1 and offence u/s 29 and 23 r/w 29 NDPS Act was made out against accused 2, 3 and 4.
Background: After receiving intel, a team was formed and the DRI officers reached ICD Tughalkabad with independent witnesses. The four suspected containers were physically examined and a total of 982 bags were found containing a total of 34.7 Kgs of Heroin.
Accused 2: The Court noted that during the course of the investigation, as per the documents recovered from the premises of accused 2 and a WhatsApp conversation pointed to the fact that accused 2 had knowledge about the said consignment. Thus, the same gives rise to grave suspicion regarding the involvement of the accused 2 in the conspiracy to import contraband into India.
Accused 3: The Court further noted that accused 2 had also actively pursued the clearance of the consignment at the customs desk by meeting a customs agent, who later even identified accused 3, from a photograph and confirmed that he had also visited him regarding clearance of the consignment in question. Thus, prima facie, accused 3 appears to be involved in the conspiracy to bring the contraband into India.
Accused 4: The Court observed that regarding accused 4, there is evidence that the consignment was initially booked in the name of his company Abetar Healthcare Pvt. Ltd. There is also a statement from a witness, the other director of the company, that he had enquired about the consignment from accused 4, however, he failed to provide any satisfactory reply. As the witness refused to confirm the consignment, the same could not be imported by accused 4 by using his company. Thus, prima facie, he also appears to be involved in the conspiracy to bring the contraband into India.
Accused 1: The Court further noted that there is evidence on record that accused 1 had actively pursued the matter with the customs agent for clearance of the consignment and had also submitted documents to get the clearance. The customs agent in his statement had duly identified accused 1 as the person who had approached him along with accused 3 to get the consignment cleared. Thus, prima facie, accused 1 also appears to be involved in the said conspiracy of attempting to bring a commercial quantity of Heroin into India.
Accused 5: The Court observed that so far as allegations against accused 5, an Afghan national who had fled to India after the Taliban came to power in Afghanistan are concerned, he was alleged to have entered MOU with Goodlife Global Pvt. Ltd. (consignee) through its proprietor accused 1 for the purpose of importing salt from Iran. As per the statement u/s 67 of NDPS Act of accused 5, which even though inadmissible, however, reflects upon the case of the prosecution against the accused. As per the statement recorded, he signed the MOU on the assurance of someone who assured to help him sending him to some safe country like Canada, Germany, Australia, etc.
The Court remarked that as per the serial of events regarding the accused 5, it is clear that he was made a scapegoat in case things did not work out as planned. Even otherwise, to prove the execution of the MOU, the prosecution should have got the signatures on the MOU and the handwriting on the same examined by an expert, however, the same was not done. In the absence thereof it cannot be presumed that the MOU was executed by accused 5.
The Court concluded that other than the MOU, there is no iota of evidence against accused 5 wherefrom an inference can be drawn regarding his involvement in the conspiracy to bring the contraband into India. Thus, no offence is made out against accused 5.
Decision: Thus, the Court discharged accused 5 and further held that from the material available on record, offences under Section 29 and 28 read with Sections 21 and 23 NDPS Act was made out against accused 1 and offences under Section 29 and 23 read with Section 29 NDPS Act was made out against accused 2, 3 and 4.
[Directorate of Revenue Intelligence v Nitish Kumar, 2023 SCC OnLine Dis Crt (Del) 11, decided on 29-05-2023]
Advocates who appeared in this case :
Ms. Mala Sharma, Counsel for DRI
Accused Nitish Kumar and Shafiullah produced from JC
Remaining Accused on bail
Sh. Tausif Alam, Counsel for accused Nitish
Sh. Kapil Madan, LAC alongwith Sh. Rajat Tanwar,
Advocate for accused Shafiullah
