"Fictitious Witnesses" In NDPS Cases: Delhi High Court Seeks Records From NCB, Customs & DRI

The order has been passed by a Division Bench comprising of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla, in view of serous allegations raised by an Advocate of the Court with respect to citing of "fictitious witnesses" by the prosecution in NDPS cases.

Advocate Manish Khanna claimed that he had an elaborate practice in the subject-matter and during its course, he noticed certain witnesses who are always produced by the prosecution in these cases as independent witnesses, they are named in the statements and subsequently dropped.

The allegations were levelled by way of a public interest litigation, filed way back in 2012, inter alia flagging the issue of prosecution citing so-called independent witnesses in the charge sheets, owing to which the trial proceedings are derailed.

It was alleged in the petition that in fact, the persons cited as independent witnesses are non-existent and incomplete addresses of such persons are reflected in the statements so as to enable the officials to later state that witnesses were not traceable at the stage of trial. Thereafter, taking shield of such submissions, the statements are brought on record as substantive pieces of evidence and used to procure convictions of innocent persons, it was further alleged.

In this regard, the Petitioner cited instances of the officials of the respondent authorities giving contradictory addresses / particulars of the so-called independent witnesses.

The predecessor Bench hearing the matter had expressed concern over the grievances raised and had expressed the need for a larger consultation.

It was observed that orders are required to be made for the manner in which statements under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 108 of the Customs Act are to be recorded to establish their credibility.

It was also of the opinion that it is essential to examine the possibility of making effective directions so that such practice is curtailed.

Thus, keeping in view the submissions made by the petitioner supported by "overwhelming documents", the predecessor Bench had required the Respondent-authorities to file previous 5 years' records.

The Bench had also taken note of the observations made by the Supreme Court in the case of Union of India v. Bal Mukund, (2009) Cr.L.R. (SC) 590 and in the case of RK Anand v. Registrar, Delhi High Court, (2010) 2 SCC (Crl.) 563, with regard to the role and duty of the High Court in monitoring and taking a pro-active role in the matter of criminal trials being conducted.

When the matter was taken up on Tuesday, the Court noted that the status report has not come on record.

Accordingly, it directed the Respondents to take steps in that regard.

Senior Advocates Dayan Krishnan and Rebecca M. John, assisted by Advocates Manvi Priya and Harsh Bora are Amicus Curiae in the matter.

Case Title: Manish Kumar Khanna v. DRI & Ors.