Delhi District Court
State vs . Emmanuel Okafor Sc No. 13/11 on 27 April, 2013
State vs. Emmanuel Okafor SC No. 13/11
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL
JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 13/11
ID No. 02403R0038732011
FIR No. 58/11
PS Crime Branch
u/s 21 NDPS act and 14 Foreigner Act
State Vs. Emmanuel Okafor
S/o Sh. Okafor
R/o Village - Awka, Street no. 24,
Amabra State Nigeria
Date of Institution : 05.05.2011
Judgment reserved on : 22.04.2013
Date of pronouncement : 27.04.2013
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act").
2. Briefly stated the allegations against the accused as contained in the chargesheet are as follows:
(a) On 07.03.2011 at about 06.00 PM, one secret informer came to the office of Narcotics Cell, Delhi and informed SI Rajbir Singh that one FIR No. 58/11 PS Crime Branch Page 1 of 26 State vs. Emmanuel Okafor SC No. 13/11 Nigerian namely Emmanuel r/o Navada is indulging in supply of cocaine in Delhi and he would be coming on 7/3/2011 between 7:007:30 p.m. near gate no. 4 of Mandi House Metro Station to supply cocaine to some person.
(b) After satisfying himself about the information, SI Rajbir Singh produced the secret informer before Inspector Vivek Pathak who then telephonically informed ACP/N & CP Bir Singh about the information.
DD entry no. 29 was also lodged in this regard in the Narcotic Cell and as per the directions of the senior officials, a raiding team comprising of SI Rajbir Singh, HC Mukesh Kumar, Ct. Rakesh Kumar and secret informer left for Mandi House Metro Station.
(c) It is asserted that while departing, IO SI Rajbir Singh carried alongwith him the IO kit, field testing kit and electronic weighing machine and on the way to the spot from Shakarpur, he requested 45 persons at Ramesh Park bus stand and 810 passengers at ITO bus stand to join the raiding team but none of them agreed to do so.
(d) On reaching the spot at about 7.00 PM, the members of the raiding team positioned themselves near and about the gate no. 4, Mandi House, Metro Station and started waiting and at about 07.15 PM, one person wearing red colour Tshirt and light blue colour pant was seen coming from metro station Mandi House gate no. 1 side and was FIR No. 58/11 PS Crime Branch Page 2 of 26 State vs. Emmanuel Okafor SC No. 13/11 identified as Emmanuel, the suspect by the secret informer. The said person then came and stopped in front of Metro Station gate no. 4 and started waiting for someone and after waiting for 45 minutes he started moving back in the direction from which he had come.
(e) At this point of time, the raiding team members intercepted and apprehend him. The IO, SI Rajbir Singh introduced himself and the members of the raiding team to him and on enquiry, the accused confirmed that his name was Emmanuel Okafor. He was then informed about his legal rights and was issued a notice u/s 50 of NDPS Act and was made to understand in English that he has a legal right to be searched before a Magistrate or a Gazetted Officer. The accused refused to exercise the said right and signed on the said refusal. At that point of time also, 45 passersby were requested to join the investigations but, none agreed.
(f) Thereafter, SI Rajbir Singh then conducted the search of the accused and from the right side pocket of the pant worn by him, one transparent polythene, mouth of which was tied with a rubber band was recovered. On removing the rubber band it was found containing white colour powder, which on testing with field testing kit, gave positive result for cocaine. The recovered cocaine alongwith the polythene was weighed and its total weight came out to be 13 gm. Two samples of 2 gm, each were taken out from the recovered cocaine and converted into pullandas which were then FIR No. 58/11 PS Crime Branch Page 3 of 26 State vs. Emmanuel Okafor SC No. 13/11 given Mark 'A' & 'B'. The remaining cocaine was also converted into a cloth pullanda and given Mark 'C'. All the Pullandas were sealed by the IO with the seal of '2APS NB Delhi'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared. On inquiry accused failed to produce any valid documents for his stay in India.
(g) The Rukka was prepared and was sent through Ct. Rakesh along with the sealed pullandas A, B, C and form FSL for registration of FIR and for deposit of the pullandas with SHO Crime Branch. Further investigation was handed over to ASI Rajveer Singh who came to the spot and he was narrated the facts of the case by SI Rajbir Singh and the accused and the documents prepared were handed over to him. ASI Rajveer Singh then inspected the site and prepared the siteplan. After interrogating the accused he was then arrested and after completion of proceedings at the spot, the raiding team alongwith the accused went to PS Crime Branch, Nehru Place and deposited the personal search articles of the accused in the Malkhana. Thereafter, the accused was brought to Narcotics Cell, Shakkarpur and was produced before Insp. Vivek Pathak. Special Reports U/s 57 of NDPS Act were prepared. On 14/3/2011, the sample Pullanda of this case was sent to FSL, Rohini and after receiving the report from FSL, the present chargesheet was filed.
FIR No. 58/11 PS Crime Branch Page 4 of 26
State vs. Emmanuel Okafor SC No. 13/11
3. On the basis of the aforementioned allegations and the material placed on record by the investigating agency, charges were framed against the accused vide order dated 14.07.2011 for the offence punishable u/s 21 (b) NDPS Act and 14 Foreigner Act.
4. The Prosecution in order to prove its case against the accused has examined 12 witnesses in all.
5. PW8 SI Rajbir Singh, PW2 HC Mukesh Kumar and PW7 Ct. Rakesh, being all members of the raiding team have deposed on similar lines. They have more or less reiterated the allegations made in the charge sheet. PW8 SI Rajbir Singh was the main Investigating Officer and he has inter alia deposed that the secret information received by him was reduced into writing vide DD no. 29 and the departure of the raiding team from the PS was recorded vide DD no. 30. The said DDs have been exhibited as Ex.PW5/A and Ex.PW8/A respectively. He has also in particular deposed that it was he who had prepared the notice u/s 50 NDPS Act and had served it upon the accused. The said notice has been exhibited as Ex.PW2/A. He has also specifically deposed that accused Emmanuel Okafor had refused to get himself searched before a Magistrate or a Gazetted Officer and the refusal asserted to have been given by the accused to the said notice has been identified by this witness at point 'X' in Ex.PW2/A. This witness has also deposed that 13 grams of cocaine was FIR No. 58/11 PS Crime Branch Page 5 of 26 State vs. Emmanuel Okafor SC No. 13/11 found from the left pocket of the pant worn by accused, the seizure memo prepared in this regard has been exhibited as Ex.PW2/C. This witness has also proved the report prepared by him u/s 57 NDPS Act as Ex.PW5/C.
6. PW1 HC Ramesh Chander has interalia deposed that on 14/3/2011 on the directions of IO, he had gone to PS Crime Branch, Nehru Place and had taken pullanda mark A from MHC(M) vide RC no. 117/21 got the same deposited with FSL, Rohini, obtained receipt Ex.PW3/F and handed over the same to MHC(M). He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
7. PW3 HC Jag Narain Ram has deposed that he was posted as MHC(M) at PS Crime Branch on 7/3/2011 and that on this date, SHO of the said branch had deposited with him three pullandas sealed with the seal of APS NB Delhi and KSY with one FSL form and the said property was deposited by him in malkhana vide entry 871, Ex.PW3/A. He has also deposed that on 8/3/2011 ASI Rajveer Singh had also deposited the articles of personal search of accused with him and he has proved the said entry at Sl. no. 872 as Ex.PW3/B. According to his deposition, he had also sent the samples mark A to FSL Rohini through HC Ramesh Chand vide RC no. 117/21, Ex.PW3/E. He has also deposed that on 16/6/2011 the result was deposited along with the remnant sample in the malkhana vide entry Ex.PW3/D. FIR No. 58/11 PS Crime Branch Page 6 of 26 State vs. Emmanuel Okafor SC No. 13/11
8. PW4 Inspector Vivek Pathak has interalia deposed that on 7/3/2011, he was posted as SHO, Narcotic Cell and according to his deposition on this date, SI Rajbir Singh had come to his office alongwith the informer who had then told them about the activities of the accused. This witness has also deposed that pursuant to the secret information, he had informed the ACP, Nr.& CP and then on the direction of the ACP, he in turn had directed SI Rajbir Singh to organize a raiding party. According to this witness, SI Rajbir Singh and ASI Rajveer Singh had submitted before him reports u/s 57 NDPS Act and he had forwarded the said reports to ACP N & CP.
9. PW5 HC Om Prakash has deposed that he is posted as Reader ACP, Narcotic Cell. As per the record produced by this witness, on 7/3/2011 DD no. 29 was received in the office of ACP Narcotic Cell and the entry in this regard was mentioned in the concerned diary at Sl. no. 406 and the relevant page of the diary has been exhibited as Ex.PW5/B and the DD no. 29 has been exhibited as Ex.PW5/A. He has also deposed that on the same day, reports u/s 57 NDPS Act, prepared by SI Rajbir Singh and ASI Rajveer Singh were also received in the office of ACP regarding the recovery of cocaine and arrest of accused and that same reports were put before ACP. The reports and records produced by this witness have been duly exhibited during his testimony as Ex.PW5/C to Ex.PW5/F. FIR No. 58/11 PS Crime Branch Page 7 of 26 State vs. Emmanuel Okafor SC No. 13/11
10.PW6 Duty officer ASI Ashok Kumar has interalia deposed that he was the duty officer on 7/3/2011 and that on this date he had received the rukka of the present case through Ct. Rakesh Kumar and had registered the FIR, Ex.PW6/B and made endorsement on the rukka, Ex.PW6/C and had also recorded DD no. 23, Ex.PW6/A.
11.PW9 Insp. Kuldeep Singh has interalia deposed that on 7/3/2011, he was posted as SHO, PS Crime Branch and on that day, Ct. Rakesh Kumar produced before him, three pullandas, one FSL Form and a carbon copy of Seizure Memo. As per the deposition of this witness, he put the FIR number and his seal 'KSY' on all the pullandas, the FSL form and the seizure memo and then got the said property deposited in the Malkhana by HC Jag Narain, MHC(M) and lodged DD no. 24 in this regard which has been exhibited as Ex.PW9/A. He has further deposed that on 14/3/2011 the sample parcel Mark A along with FSL form and another relevant documents were sen to FSL through HC Ramesh.
12.PW10 ASI Rajveer Singh is second investigating officer of the present case who has deposed that he had reached the spot after receiving directions from ACP Sh. Bir Singh. According to him he left the Nr. Cell, Shakkarpur along with Harinder Singh at 12:05 AM and on reaching the spot SI Rajbir Singh produced before him the accused and documents prepared by him. As per this witness he thereafter prepared the site plan FIR No. 58/11 PS Crime Branch Page 8 of 26 State vs. Emmanuel Okafor SC No. 13/11 Ex.PW10/B, recorded the statement of HC Mukesh Kumar and then interrogated the accused and thereafter recorded the disclosure statement of accused Emmanuel Okafor, Ex.PW2/F and also arrested him vide arrest memo, Ex.PW2/D. The report prepared by him u/s 57 NDPS Act has also been proved by him as Ex.PW10/D. According to this witness on 14/3/2011 the exhibits of the case were sent to the FSL through HC Ramesh Chander for depositing the same in FSL Rohini.
13.PW11 Dr. Subhra Kumar Paul, Senior Scientific Officer, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the sample sent to FSL. The said report has been exhibited as Ex. PW11/A and as per the said report, the sample Mark 'A' was found to contain cocaine and the percentage of cocaine was found therein to be 65.19%.
14.The aforementioned incriminating evidence was put to the accused and his statement u/s 313 Cr.P.C was recorded. In the said statement, the accused has denied that cocaine was recovered from him. According to the accused, he was not apprehended by the police from Mandi House on 07.09.2011 but was forcibly picked up from his rented premises in Vipin Garden near Dwarka Mor. As per the accused, on 07.03.2011 at about 06.15 PM, four persons in plain clothes had come to his premises and had told him that they are from the police and that they arrested him without FIR No. 58/11 PS Crime Branch Page 9 of 26 State vs. Emmanuel Okafor SC No. 13/11 even intimating to him the grounds of his arrest. As per this accused, it was only after reaching the police station did the police officials tell him that he had been arrested for possession of cocaine. As per this accused, despite his telling the police officials that he was not in the business of supply of cocaine and that he did not possess any cocaine, they kept beating him and made him sign blank documents. The accused has also stated that he tried to inform the court before whom he was produced for remand about the aforementioned facts but that he was not allowed by the police officials to do so and he had thereafter written a retraction statement in his own handwriting from the jail. The accused has also stepped into witness box and has deposed the aforementioned facts on oath as well.
15.I have heard Ld. APP Sh. Gurjar for State and Ld. Defence counsel Sh. Kushwaha. Ld. APP for State, Sh. R.K. Gurjar has mainly contended that the deposition of the prosecution witnesses and the documentary evidence led on record sufficiently prove that the accused was apprehended in the manner as alleged by the prosecution and that 13 gm of cocaine was recovered from his possession. It has been submitted on behalf of the State that all the prosecution witnesses have withstood the test of cross examination and that therefore prosecution has been able to prove its case beyond reasonable doubt. Ld. APP Sh. Gurjar has also submitted that the FIR No. 58/11 PS Crime Branch Page 10 of 26 State vs. Emmanuel Okafor SC No. 13/11 defence taken by the accused in his statement tendered u/s 313 Cr.PC is merely an afterthought. He has also pointed out that no complaint whatsoever was made by the accused, before the Ld. Court at the time of his production for remand, that he has been falsely implicated in this case. His contention, therefore, is that no credence whatsoever can be given to the defence raised by the accused at the stage of section 313 Cr.PC.
16.On the other hand, Ld. Defence counsel has submitted that the entire version presented by the prosecution is concocted and false and that is the reason the investigating agency did not join any public witness during the apprehension proceedings of the accused. According to Ld. Defence counsel, it has become a regular practice for the investigating officials to casually depose before the court that they had made efforts to join public witnesses but that none of the public witness had agreed to accede to the request of police officials. He has submitted that in fact no efforts in the present case were made by the investigating officials to join any public witness and further that the accused was never informed that he has a legal right to be searched before a Gazetted Officer or a Magistrate. He has pointed out that in the crossexamination of PW8, the main investigating officer SI Rajbir, it has been admitted by him that he did not ask the officials of the metro station to join the raiding party nor did he even asked the public persons to join the raid after the apprehension of the FIR No. 58/11 PS Crime Branch Page 11 of 26 State vs. Emmanuel Okafor SC No. 13/11 accused. It is the submission of Ld. Defence counsel that the provisions of section 50 NDPS Act are not an empty formality but the investigating officials of Special Cell, Delhi do not give any importance whatsoever to this salutary protection granted to an accused. Ld. Defence counsel has submitted that the accused is a Nigerian who cannot be presumed to have the knowledge as to what a Gazetted Officer or a Magistrate means and in such circumstances, it was incumbent upon the investigating officials to have produced the accused before a Gazetted Officer or a Magistrate in terms of the judicial dicta laid down by Hon'ble Supreme Court in a recent case of NCB Vs. Sukhdev Raj Sodhi 2011 AIR (SCN) 3330. He has further pointed out that the prosecution witnesses have also not even been able to tell correctly from where exactly the cocaine weighing 13 gm was recovered from the clothes of the accused. He has pointed out that though in the chargesheet and rukka it is mentioned that 13 gm of cocaine was recovered from the right side pocket of the pant worn by the accused, all the prosecution witnesses have narrated before this court that the contraband was recovered from the left pocket of the pant worn by the accused. Ld. Counsel has also relied upon a judgment of Hon'ble Punjab and Haryana High Court pronounced in a case titled as Rupinder Singh Vs. State of Punjab 2012(3) JCC (Narcotics) 145 to contend that where FIR No. 58/11 PS Crime Branch Page 12 of 26 State vs. Emmanuel Okafor SC No. 13/11 the prosecution has failed to prove that an attempt was made by them to join public witnesses in the raid and recovery and contradictions have emerged in the statements of the prosecution witnesses regarding the particular place from which the contraband was recovered, the accused is entitled to be granted benefit of doubt. Defence counsel has also submitted that the accused has stepped into the witness box in the present case and has subjected himself to crossexamination and that therefore there should be no reason for this court to disbelieve him only because he is an accused in this case. Ld. Defence counsel has also pointed out that the accused had submitted a retraction application in the court at the first available opportunity and therefore it cannot be stated that the defence taken by him at the state of 313 Cr.PC is an afterthought. According to Ld. Counsel, it is the accused who has been able to prove by preponderance of probability that he was picked up forcibly from his residential premises and implicated in this case and it is the prosecution who has failed to prove beyond reasonable doubt that its allegations that the accused was picked up from metro station.
17.In rebuttal, Ld. APP has argued that since the accused had refused to get himself searched before a Gazetted Officer or a Magistrate, there was no requirement for the investigating officials to have produced him before a Gazetted Officer or a Magistrate. In support of this contention, he has FIR No. 58/11 PS Crime Branch Page 13 of 26 State vs. Emmanuel Okafor SC No. 13/11 relied upon a judgment of Hon'ble Bombay High Court titled as Fakir Ahmed Mohd. Shaikh Vs. State of Maharashtra reported in 2012(2) JCC(Narcotics) 70. Ld. APP has further pointed out that it is now well settled law that non joining of independent witnesses is not fatal to the case of the prosecution as the public persons are hesitant to join the police proceedings. It is also been submitted by Ld. APP that the contradictions pointed out by Ld. Defence counsel with respect to the place from which the contraband was assertedly recovered is not so material that it can be made the basis for the rejection of the case of prosecution. It is the submission of Ld. APP that even if all the police officials have deposed that the contraband was recovered from the left pocket of the pant worn by the accused and the chargesheet and the rukka mention that it was recovered from the right pocket of the accused, the same does not go to the root of the mater for it is a minor contradiction. He submits that had the police officials stated that the contraband was recovered from the pocket of shirt worn by the accused, it would have some relevance but just because the prosecution witnesses have not been able to correctly depose from which pocket of the pant worn by the accused was the contraband recovered, the court cannot reject the prosecution case for the prosecution witnesses cannot be expected to have a photographic memory of the entire facts of the case. He has also submitted that the following judgments FIR No. 58/11 PS Crime Branch Page 14 of 26 State vs. Emmanuel Okafor SC No. 13/11 support the contentions taken by him:
● Jarnail Singh Vs. State of Punjab 2011(2) JCC(Nr.) 86 ● John Bamideli Vs. State 1996 Cri. L.J. 3449 ● Mohd. Anwar @ Annu Vs. State 2011(Cri. L.J) 2386 ● Ram Singh Vs. Central Bureau of Narcotics 2011(Cri. L.J) 3579 ● State of Haryana Vs. Sandeep Kumar 2009 Cri. L.J. 3507 ● James Albert Vs. State of H.P. 2011 Cri. L.J. 4654
18.I have carefully considered the submissions made by Ld. APP for State and the Ld. Defence counsel Sh. Kushwaha. This court is of the considered opinion that in view of the evidence that has come on record, it cannot be held that the prosecution has been able to prove that the accused was apprehended in the manner alleged by it. In a case titled as Gurcharan Singh Vs. State reported in 1993 JCC, Hon'ble Delhi High Court has held that a condition precedent for the prosecution to prove the guilt of the accused is to first prove that its case is plausible and probable and is a true narration of facts and that it did happen in the way and manner as it is asserted to have taken place. The Hon'ble Delhi High Court has categorically held that in case the prosecution fails in this primary duty, the courts need not go any further and need not make any more enquiry in as much as the said case is liable to be dismissed on this short ground alone. The Hon'ble Supreme Court also in its judgment pronounced in a case titled as Premchand Vs. Union of India reported FIR No. 58/11 PS Crime Branch Page 15 of 26 State vs. Emmanuel Okafor SC No. 13/11 in 1981 SCC (Crl.) 239 has insisted that in the administration of criminal law, the means that the prosecution agency adopts to secure the conviction of a criminal must also be as good as the ends. In the present case, this court is constrained to hold that the prosecution has not come forward with a true narration of facts with respect to the apprehension of the accused. As narrated hereinabove, as per the version put forward by the prosecution, the secret information in question was received by PW8 SI Rajbir Singh at 06.00 PM. This witness in his examination in chief has categorically deposed that it was at 06.30 PM that he reduced the said secret information into writing and thereafter constituted a raiding team and then finally departed from Crime Branch, Shakkarpur at about 06.45 PM for the spot. He has further deposed that the route taken by the raiding team was via Pushta Road, Ramesh Park, Vikas Marg, ITO and finally Mandi House and that the raiding team reached Mandi House at about 07.00 PM. He has also categorically deposed that on the way, he had requested 45 public persons at Ramesh Park bus stand and 810 public persons at ITO bus stand to join the raiding team but that none of them agreed to his request. All the other members of the raiding team have also reiterated the aforementioned statements and thus all the police officials are consistent in deposing before the court that they had left the Crime Branch, Shakkarpur at about 06.45 PM and had reached the spot at FIR No. 58/11 PS Crime Branch Page 16 of 26 State vs. Emmanuel Okafor SC No. 13/11 about 07.00 PM. In other words, all the prosecution witnesses wish that this court must believe them that in 15 minutes, the raiding team was able to cover the distance between Shakkarpur to Mandi House while passing the much crowded Vikas Marg and ITO. According to the Ld. APP for State, this court should have no reason to disbelieve the said testimony of the police officials as all of them have been consistent in deposing the facts about the departure from the Crime Branch, Shakkarpur and reaching the spot. This court is unable to agree with this contention of Ld. APP for as per section 3 of the Indian Evidence Act, a fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under circumstances of a particular case, to act upon the supposition that it exists. Thus the standard to be applied in determining whether a fact stands proved or not, is whether a prudent man would consider its existence probable. Now if one applies the said standard to the facts of the present case, it shall have to be held that all the prosecution witnesses have falsely deposed before this court that they were able to reach the spot at 07.00 PM after starting from PS Crime Branch Shakkarpur at 06.45 PM, for no prudent person will believe that the said distance can be covered in 15 minutes in peak evening hours. In a case titled as Pira Swami Vs. State of NCT Crl. Appeal No. 382 of 2006, FIR No. 58/11 PS Crime Branch Page 17 of 26 State vs. Emmanuel Okafor SC No. 13/11 Hon'ble Delhi High Court has held that a court can take judicial notice of the distance between the police station and the spot of incident to determine whether the investigating officials have put a true and correct version before the court or not with respect to the apprehension of the accused. As per the the said judicial dicta, therefore this court can take judicial notice of the fact that during evening hours, the traffic is at its peak at Vikas Marg and ITO and it would not have been humanly possible for the raiding team to have covered the distance from Shakkarpur to Mandi House in 15 minutes as asserted by the prosecution more so when according to the prosecution, the raiding team on the way had stopped at Ramesh Park bus stand and at ITO bus stand to request public persons to join the proceedings. As narrated hereinabove, according to the deposition of the IO, he had requested 45 public persons at Ramesh Park and then again 810 public persons at ITO to join the raiding team. If this deposition of the IO is taken to be correct then this act of stopping at two bus stands and talking to about 1015 public persons would have itself taken more than 15 minutes. In such view of the matter, this court is of the considered opinion that all the prosecution witnesses have deposed falsely before the court about their asserted departure from PS Shakkarpur at 06.45 PM and reaching the spot at 07.00 PM. Not only this, it will have to be also inferred that the prosecution witnesses have also deposed FIR No. 58/11 PS Crime Branch Page 18 of 26 State vs. Emmanuel Okafor SC No. 13/11 incorrect facts with respect to the fact that the IO had requested on the way to the spot at least 15 public persons to join the raiding team. This is so because despite a specific query by his court to Ld. APP as to why the investigating agency only asked passersby at the bus stop and did not make an effort to join in the proceedings, the officials of metro station which is allegedly the spot of apprehension of the accused, so that both the investigating agency and the court could have been made aware of the addresses of such officials of the metro station who refused to accede to the request of a government public official, there is no explanation in this regard forthcoming from the prosecution. It will not be out of place to mention herein that in all of the Special Cell cases tried by this court, there is not a single case where the investigating officer has been able to join a public witness in the proceedings though in all NCB cases, the said investigating agency is able to make public witnesses join their investigation. No doubt, one cannot argue with the contention of Ld. APP that public persons are hesitant to join police proceedings, but the least that is expected is that the investigating agency must be able to satisfy the court that genuine and sincere efforts were made by the investigating officer to make public persons join the proceedings.
19.It has been repeatedly held by the higher courts that in such cases as the present one, the investigating agency must show that sincere efforts were FIR No. 58/11 PS Crime Branch Page 19 of 26 State vs. Emmanuel Okafor SC No. 13/11 made to join independent witnesses and that the investigating agency cannot merely take a stand that public witnesses refused to join the investigation. In this regard particular reference is made to the judgments reported as Ritesh Chakravarty Vs. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150, Anup Joshi Vs. State 1999(2) C.C. Cases 314, Roop Chand Vs. State of Haryana 1999(1) C.L.R 69. In Ritesh's case (supra), the Hon'ble Supreme Court has depreciated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on request of the police officials. In the other two judgments, it has been observed by the Hon'ble High Courts that the failure to proceed against the public persons who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence. Further, very recently, as pointed out by Ld. Defence counsel, the Hon'ble Punjab and Haryana High Court in the case titled as Bhupender Singh Vs. State of Punjab (supra) has held that where there is a contradiction between the testimony of two official witnesses with respect to the joining of public witnesses, their statements have to be scrutinized very cautiously.
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State vs. Emmanuel Okafor SC No. 13/11
20.Now if in the present case, in the absence of the independent persons witnessing the search proceedings and the conclusion of this court that the prosecution witnesses have deposed falsely with respect to the time of apprehension of the accused, the contradiction that has emerged with respect to the pocket of the pant worn by the accused from which the contraband was allegedly recovered is considered, the same cannot be brushed aside lightly as contended by Ld. APP. As narrated hereinabove, though it is clearly and categorically mentioned in the rukka allegedly prepared at the spot by the IO that 13 gm of cocaine was recovered from the right pocket of the pant worn by the accused, all the prosecution witnesses have deposed that the contraband was recovered from the left pocket of the pant worn by the accused. This court does not at all agree with Ld. APP that in the facts of the present case, the said contradiction is a minor contradiction. Keeping in view the defence taken by the accused that he was picked up from his residential premises and not from metro station and that nothing was recovered from his clothes and that he was never informed of his legal right to be searched before a Gazetted Officer or a Magistrate, the said contradiction with respect to the place from which the contraband was recovered from the clothes worn by the accused cannot be brushed aside lightly. In the considered opinion of this court, it was the duty of Ld. APP to have sought an explanation from the FIR No. 58/11 PS Crime Branch Page 21 of 26 State vs. Emmanuel Okafor SC No. 13/11 prosecution witness as to why they were deposing facts contrary to the rukka i.e. a documentary evidence assertedly prepared contemporaneously at the spot. It cannot lie in the mouth of the prosecution to contend that it is the defence who should have sought an explanation from the IO and the other members of the raiding team in their crossexamination. When the prosecution witnesses in their examination in chief are deposing facts contrary to the facts narrated in the chargesheet and the rukka, it was the Ld. APP who should have sought an explanation in this regard. In the considered opinion of this court if the Ld. Prosecutor has not done so, the benefit of doubt will have to go to the accused, particularly in the facts of the present case.
21.This court also finds it necessary to point out one other circumstance on record which has remained unexplained by the prosecution. According to the version of the prosecution, the accused had given a disclosure after his arrest Ex.PW2/F though the said disclosure cannot be read against the accused, this disclosure having been placed on record by the prosecution itself can be read to test the veracity of the case of the prosecution. According to the contents of the said disclosure, the accused had assertedly told the investigating officials that he used his mobile phone number 9899318734 for drug dealings and as per the personal search memo Ex.PW2/E, the said mobile phone isalso shown to have been FIR No. 58/11 PS Crime Branch Page 22 of 26 State vs. Emmanuel Okafor SC No. 13/11 recovered from the accused. As per the version of the prosecution, the secret information allegedly received by them was to the effect that the accused would be coming to the metro station to supply cocaine to some person. Now if the accused had indeed come to the spot to supply cocaine to an alleged customer of his and had disclosed to the police officials that he used his mobile phone for drug dealings, no explanation is forthcoming from the prosecution as to why no effort was made by the investigating agency to check the call detail records of the mobile being carried by the accused and why no effort was made to discover the alleged recipient who was to come to the spot to collect the cocaine recovered from the accused. In fact as per record, the police had sought one day police custody of the accused to locate the source of supply of cocaine and also to locate the residential premises of the accused, for the version of the prosecution was that the accused on interrogation was unable to give the address of his house and had merely informed them that he is a resident of Navada and that therefore they wanted his police custody to find out his residential premises and also to find out the source of supply. This court after hearing the final arguments, had summoned the second IO of this case ASI Rajveer to seek a clarification from him as to what investigation had been done by the police after taking police custody of the accused for one day. This police official had appeared before this court on 16.04.2013 and FIR No. 58/11 PS Crime Branch Page 23 of 26 State vs. Emmanuel Okafor SC No. 13/11 had stated that though the disclosure statement was given by the accused and was written by SI Rajbir, he being the second Investigating officer, did not think it necessary to find out the call detail records of the mobile used by the accused during police custody or thereafter. He also informed the court that the house of the accused could not be traced out even during the police custody for when the accused was taken to Navada, he was unable to point out his address. The aforementioned clarification given by the second investigating officer has brought startling fact to the attention of this court. This second Investigating officer is of the rank of ASI and the first investigating officer in this case is of the rank of SI and despite being junior to the first investigating officer, according to ASI Rajveer Singh, the disclosure of the accused was written on his instructions, by SI Rajbir Singh. A perusal of the disclosure also shows that in fact after writing the disclosure, SI Rajbir Singh first started writing his initials as the author of the said disclosure at point X and then after realising that he is not supposed to reduce the said disclosure and it is the second IO who is required to record the disclosure then again signed at point C and ASI Rajveer then overwrote his signature on the initials of SI Rajbir at point X. It is indeed strange that though on the one hand the investigating agency in order to show a fair investigation sent a second investigating officer at the spot so that the accused may not take a stand that the person who FIR No. 58/11 PS Crime Branch Page 24 of 26 State vs. Emmanuel Okafor SC No. 13/11 searched him and recovered the alleged contraband also investigated further facts against him, on the other hand the second investigating officer sent was a police official who was junior to the first investigating officer and who therefore did not even question the documents already prepared by his senior at the spot. It is to be noted that despite this fact having been brought to the notice of Ld. APP, there is no explanation forthcoming from the prosecution as to why the disclosure was written by first IO SI Rajbir. In such view of the matter, an inference is therefore required to be drawn that the contention of Ld. Defence counsel that investigation has not been fair is correct.
22.It is also relevant to mention that this court has gone through all the judgments filed on record by Ld. APP and though no doubt in all the said judgments, the Hon'ble Apex Court and the Hon'ble High Courts have held that that even in the absence of public witnesses, an accused can be convicted on the testimony of the police witnesses, the said judgments also make it clear that the same can be done only if the testimony of the police officials inspires confidence in the court. As discussed hereinabove, in the facts of the present case, the depositions of the police officials has not inspired much confidence in this court and therefore this court is of the considered opinion that the accused cannot be convicted for having been found in possession of 13 gm of cocaine for the prosecution has failed to FIR No. 58/11 PS Crime Branch Page 25 of 26 State vs. Emmanuel Okafor SC No. 13/11 prove beyond reasonable doubt its case against him in this regard. The accused therefore stands acquitted for the offences of possessing 13 gm of cocaine.
23.However having said so, it is still to be determined whether the accused has committed an offence punishable u/s 14A Foreigners Act. Admittedly the accused in his statement u/s 313 Cr.PC has himself admitted that when the police officials had asked him about his passport and visa, at the time of his apprehension, he could not show it to them as at that time his passport was deposited with the Nigerian Embassy. Further admittedly during trial, the said passport of this accused was placed before this court by his counsel and the same shows that the visa of this accused had expired in the year 2008. It is thus clear that the accused did not have any valid documents for his stay in India on the date of his apprehension. As such, he is convicted for the offence punishable u/s 14A of the Foreigners Act.
Announced in open Court on this 27th day of April, 2013 (Anu Grover Baliga ) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No. 58/11 PS Crime Branch Page 26 of 26