Delhi District Court
S.C. No. 655/17 State vs . Obiora Ikenna Sunday 1/14 on 31 January, 2018
IN THE COURT OF SHRI RAJESH KUMAR SINGH
SPECIAL JUDGE-NDPS/ASJ (SOUTH)
SAKET COURTS, NEW DELHI
S.C. No. 655/17
(Old S.C. No. 34A/12)
FIR No. 70/12
PS-Fateh Pur Beri
U/s. 21 NDPS Act &
14 Foriegners Act
State
VERSUS
Obiora Ikenna Sunday
S/o Late Mr. Emmanuel
R/o 18, MBANEFO Street,
Town IGBO UKWU State
ANAMBRA, NIGERIA
Present Address :- 192-F,
Arjun Nagar, New Delhi.
Computer ID No. : DLST01-009574-2017
Date of institution : 15.05.12 (07.12.17)
Date of reserving judgment : 05.01.2018
Date of pronouncement : 31.01.2018
Decision : Conviction.
JUDGMENT
1.1 Case of the prosecution is that on 12.03.2012, SI Jaivir Singh, Inspector Suredner Rana, Ct. Sanjeev, Ct. Sandeep and Ct. Dhara Singh were present at Gurjar Chowk, Aya Nagar for conducting surprise checking from 10 pm to 12 Night. At about 10:15 pm, the accused was seen coming from S.C. No. 655/17 State vs. Obiora Ikenna Sunday 1/14 the Arjungarh Metro Station side. On seeing the police party, he became nervous. He turned back and started going towards Arjungarh Metro Station at fast pace. On the instruction of Inspector Surender Rana, he was apprehended by SI Jaivir Singh with the help of Ct. Sandeep and Ct. Sanjeev. 1.2 He disclosed his name as Obiora Ikenna Sunday. He produced his passport no. A01407849 issued by Federal Republic of Nigeria. The passport was found to be valid but the visa for India was for the period 7.1.2010 to 7.2.2010 and as such the visa had already expired. In the passport, the date of entry of the accused in India was mentioned as 14.01.2010.
1.3 He was asked as to why he was coming from Arjungarh Metro side. He could not give satisfactory answer. On suspicion, Inspector Surender Rana directed SI Jaivir Singh to conduct personal search of the accused. From the right side front pocket of his jeans trouser, one white polythene was found. On opening, it was found to contain powder like substance. On being asked the accused disclosed that it was Cocaine and he had to deliver it to a person called Odapam S.C. No. 655/17 State vs. Obiora Ikenna Sunday 2/14 near Arjungarh Metro Station.
1.4 Inspector Surender Rana informed the Duty Officer from his mobile phone no. 8750870886 and the information was recorded vide DD No. 31A. At about 11:25 pm, the SHO Anil Sharma arrived at the spot with field Testing Kit. 1.5 On weighment, the substance recovered from the accused, weighed 8 grams and it tested positive for Cocaine. Two samples of 1 gram each were drawn and kept in transparent white polythene. The remaining contraband was kept in the polythene. The sample and the remaining contraband were converted into pulanda with the help of white cloth and they were sealed with the seal of JS. The sample pulandas were given Mark A and B. The pulanda containing the remaining contraband, was given Mark C. FSL form was filled and the seal was handed over to Ct. Sanjeev. The samples and case property (remaining contraband) were seized by preparing a memo. They were handed over to SHO with the FSL form. The SHO affixed his seal of AK on the case property, sample pulandas and the FSL form. In the police station, FIR number was mentioned on the seizure memo and S.C. No. 655/17 State vs. Obiora Ikenna Sunday 3/14 the case property was deposited in the police station. SI Jaivir Singh prepared a rukka which was sent to the police station through Ct. Sandeep. On the rukka, the FIR was registered under Section 21 NDPS Act read with section 14 Foreigner Act. 1.6 As per direction of the SHO, further investigation was handed over to SI Karamvir. He reached the spot, prepared the site plan, arrested the accused, conducted his personal search and recorded his disclosure statement. The accused disclosed that he used to get the Cocaine from an acquaintance called Ifeoma. The supplier as well as the proposed receiver of the contraband could not be found despite efforts. Both sample having Mark A and B were sent to FSL, Rohini for examination. FSL result was received after filing of the charge sheet and it was filed on 26.05.2012. As per the FSL report, both samples tested positive for Cocaine. The percentage of Cocaine in the sample pulanda Mark A was 20.4% and the percentage of Cocaine in the sample pulanda Mark B was 23.7%.
2.1 Accused was admitted to bail vide order dated 29.05.2012. Vide order dated 11.07.2012, charge was framed S.C. No. 655/17 State vs. Obiora Ikenna Sunday 4/14 against him under Section 21 (b) NDPS Act and Section 14 of The Foreigners Act, 1946. He pleaded not guilty and claimed trial. Despite being admitted to bail, the accused could not come out of the jail for want of surety and he moved an application under Section 445 Cr.P.C. praying that cash surety be accepted. His application was allowed vide order dated 23.07.2012. He moved another application under Section 440 Cr.P.C. for reduction of the cash surety amount, but the application was dismissed. He was released from custody on bail after 21.02.2014. He absented himself 08.09.2014 and he was declared Proclaimed Offender (P.O.) vide order dated 10.09.2015. He was arrested and produced on 07.07.2017. Prosecution evidence was completed on 21.11.17. Statement of the accused was recorded under section 313 Cr.P.C. on 07.12.2017. He did not opt for leading evidence in his defence.
2.2 Prosecution has examined 12 witnesses. PW1 HC Vinay Kumar is the Duty Officer. PW2 is Inspector Surender Rana, who was heading the police party, which apprehended the accused. PW3 is Ct. Raj Kumar, who took the samples to S.C. No. 655/17 State vs. Obiora Ikenna Sunday 5/14 FSL, Rohini, PW4 is Ct. Sanjeev, who was member of police party which apprehended the accused, PW5 Inspector Anil Sharma is the SHO, PW6 SI Jaivir Singh was a member of the police party which apprehended the accused and he is the first IO of the case, PW7 Ct. Sandeep, was also member of the police party, which apprehended the accused, PW8 HC Rajesh was the Reader to ACP, Mehrauli and he received the information sent by the SHO to the ACP, PW9 Inspector Karamvir Singh (SI at the relevant time), is the second IO of the present case, PW10 Sh. Rajender Singh (Retired ACP), was the ACP at the relevant time, to whom the report under Section 57 NDPS Act was submitted, PW11 Sh. Bhopal Dutt, Sr. Superintendent, PV, II, CPV Division, Ministry of External Affairs, has been examined in relation to the charge under the Foreigners Act and PW12 HC Vinay Kumar was the MHC(M) (Malkhana Moharrar) of PS-Fatehpur Beri during the relevant time.
2.3 Initially the accused was represented by private counsel engaged by him. On 28.04.2014, the accused submitted before my Ld. Predecessor that he could not pay S.C. No. 655/17 State vs. Obiora Ikenna Sunday 6/14 the fee of his Ld. Counsel and he requested for appointment of counsel at the State expenses. Sh. S.K. Saxena, Ld. Advocate was appointed as Amicus Curiae for him and he has represented the accused since then. I have heard the arguments of Sh. F.M. Ansari, Ld. Addl. PP for State and the arguments of Sh. S.K. Saxena, Ld. Amicus Curiae. 3.1 Learned counsel for the accused submitted that there are contradictions in the statement of the PWs. PW-2 Inspector Surender Rana has stated in his cross-examination that he does not remember the registration number of the vehicle by which he went to the spot at about 10:00pm. He has further stated that he did not remember whether the registration number of the vehicle was mentioned in the departure entry made by the police party before leaving the police station. PW-4 Ct. Sanjeev has stated that he cannot tell by what mode the other members of the police team arrived at the picket. He could also not tell whether all of them arrived together or separately. PW-7 Ct. Sandeep has stated that he did not see the IO kit and the weighment process. He has also stated that he cannot tell the colour, size or description of the S.C. No. 655/17 State vs. Obiora Ikenna Sunday 7/14 IO kit. PW-2 Inspector Surender Rana could not explain the process by which the substance seized from the accused was tested and he could not tell the colour which was produced when Cocaine was tested with the Field Testing Kit. Learned counsel also submitted that there is non-compliance of Section 50 of NDPS Act.
3.2 Learned Addl. PP for State submitted that the contradictions mentioned by Learned counsel for the accused do not go to the root of the matter. Prosecution has proved the case beyond reasonable doubt and all statutory compliances have been made.
4.1 PW-2 Inspector Surender Rana has stated that on 11.03.2012 he along with other police officers left PS-Fatehpur Beri at about 09:30pm and reached Gurjar Chowk, Aaya Nagar for surprise checking. At about 10:50pm he noticed one person of African origin coming from the side of Arjun Garh Metro Station. On seeing the police officials, he turned and started going back. PW-4 Ct. Sanjiv, PW-6 SI Jaivir Singh and PW-7 Ct. Sandeep have supported him. There is minor variation as PW-7 has stated that the accused was sighted at S.C. No. 655/17 State vs. Obiora Ikenna Sunday 8/14 about 10:45pm. All the witnesses are consistent regarding the accused being apprehended at the spot and the recovery of the contraband from him. There are some minor discrepancies and deficiencies in their statements. Some of them have been pointed out by Learned counsel for the accused. There are some other discrepancies also such as, PW-4 Ct. Sanjeev has stated that the second IO arrived at the spot at about 03:00am whereas the second IO Inspector Karam Vir Singh PW-9 has stated that he received the information at about 02:00-02:10am and he reached the spot in about ten minutes. According to PW-9 he arrived at the spot at about 02:10- 02:20am. These contradictions or deficiencies do not go to the root of the matter. All proceedings have been done after making the DD entries. In his statement u/s 313 Cr. PC the accused has stated that he was passing through the Arjun Nagar red light near his residence and he was stopped by some persons in plain clothes. They asked him about his passport and he told that the passport was lying at his residence. He has further stated that he was detained and someone was sent to his rented accommodation. They S.C. No. 655/17 State vs. Obiora Ikenna Sunday 9/14 brought the passport, Rs. 80,000/- and US Dollar 550 from his residence. Thereafter, he was taken to PS and instead of being allowed to go, he was produced in the Court and sent to jail. 4.2 Accused also does not dispute that he was stopped but he disputes the other facts such as his conduct on seeing the police as alleged by the police and the recovery of the contraband. The accused was apprehended at late hours in the night and public persons might not have been readily available at that time. Police had no prior information that the accused was carrying contraband and they searched him due to the suspicion created his conduct after seeing the police party. It was a chance recovery and under such circumstances Section 50 of NDPS Act would not apply. Prosecution is fully covered by the judgement by Hon'ble Supreme Court in the matter of State of Himachal Pradesh vs Sunil Kumar (2014) 4 SCC 780.
4.3 Immediately after the accused was apprehended and Cocaine was recovered, PW-2 Inspector Surender Rana informed the DO by his mobile phone and the information was recorded vide DD no. 31-A dated 11.03.2012 at 11:00pm. S.C. No. 655/17 State vs. Obiora Ikenna Sunday 10/14 Copy of the DD entry is Ex. PW5/A. The information was conveyed to the SHO, Inspector Anil Sharma and he left for the spot vide same DD entry. SHO Inspector Anil Sharma has been examined as PW-5. He has stated that he took the Field Testing Kit with him and tested the recovered substance at the spot. He has also stated that he informed the ACP on phone. The recovered substance was tested by PW-5 and therefore, failure of PW-2 to tell the colour which was produced on testing the contraband with the Field Testing Kit is not material as PW2 had not tested the contraband on the spot. PW-6 SI Jaivir Singh prepared the rukka Ex. PW6/A on which the FIR Ex.PW1/A was registered. The kayami DD entry no. 6-A dated 12.03.2012 regarding registration of FIR is Ex.PW1/C and the bandi kayami of the FIR is DD no. 7-A dated 12.03.2012 Ex. PW1/D. 4.4 It is mentioned in Ex. PW1/C that the information was conveyed to SI Karamvir (Inspector at the time of examination in the Court) and that he left for the spot. The timing mentioned in Ex. PW1/C corresponds truly with the time mentioned by PW-9 Inspector Karamvir regarding his S.C. No. 655/17 State vs. Obiora Ikenna Sunday 11/14 arrival at the spot. The samples and the case property were sealed on the spot by the first IO SI Jaivir and the SHO Inspector Anil Sharma. On his return to the PS, the SHO registered DD no. 8-A Ex. PW5/B wherein it is mentioned that he returned to the PS at 03:00am with three pulandas sealed with the seal of JS and AK as well as one FSL form which was also having the impression of the seals. The seizure memo of the case property and the samples is Ex. PW2/A. They were deposited in the malkhana vide Ex. PW12/A. The samples were sent to the FSL on 20.03.2012. DD entry no. 9-A dated 12.03.2012 Ex. PA was recorded after arrest of the accused. It is mentioned in the DD entry that he was produced before the SHO. Prosecution has established that compliance of Section 52 and 55 of NDPS Act was made. The report u/s 57 of NDPS Act is Ex. PW5/C which was received in the office of the ACP vide entry Ex. PW8/B. Therefore, Section 57 of NDPS Act was also complied with.
4.5 The report is Ex. PW9/C. It is mentioned in the report that parcel A and B were received through Ct. Raj Kumar on 20.03.2012. The seals were intact and tallied with S.C. No. 655/17 State vs. Obiora Ikenna Sunday 12/14 the specimen seals. The report confirms that parcel A contained Cocaine with purity 20.4% and parcel B contained Cocaine with purity 23.7%. The remnant samples were exhibited as Ex. P-1 and Ex. P-2. The case property was exhibited as Ex. P-3. The case property and the samples remained intact and there is no tampering.
4.6 There is no major contradiction which can go to the root of the matter. Prosecution has proved the allegations related to the charge u/s 21 (b) of NDPS Act beyond reasonable doubt. Prosecution has established beyond reasonable doubt that the contraband was recovered from the accused on the date, time and place as mentioned in the charge. Now, I shall examine the evidence in respect of the charge u/s 14 of Foreigners Act 1946.
4.7 PW-11 Sh. Bhopal Dutt has deposed that the passport of the accused was found to be genuine as per letter Ex. PB. He has also deposed that the verification report of the visa along with covering letter no. VII/407/6/2003 dated 19.03.2012 was sent to the IO/ SI Karam Vir Singh by Ms. Deepa Jain. The letter is Ex. PW11/B and the e-mail report of S.C. No. 655/17 State vs. Obiora Ikenna Sunday 13/14 the visa is Ex. PB. Learned counsel for the accused also did not dispute that visa of the accused had expired when he was apprehended by the police. Visa of the accused was valid for the period 7.1.2010 to 7.2.2010 but he did not leave the country or get the visa get extended after 07.02.2010. On the date of his arrest, he had no valid and subsisting visa and thereby he committed offence punishable u/s 14 of the Foreigners Act,1946. Prosecution has proved the charge u/s.14 of the Foreigners Act, 1946 also beyond reasonable doubt.
5. In view of above discussion, the accused Obiora Ikenna Sunday is convicted under section 21 (b) of NDPS Act and Section 14 of Foreigners Act 1946. The contraband is confiscated to the State and it be destroyed after expiry of period of appeal.
Announced in Open Court on 31.01.2018 (Rajesh Kumar Singh) Spl. Judge-NDPS/ASJ (South) Saket Courts, New Delhi S.C. No. 655/17 State vs. Obiora Ikenna Sunday 14/14