Delhi District Court
Sc No:27A/09 Dri vs . Annabelle Analista Malibago on 19 March, 2014
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
Directorate of Revenue Intelligence
Delhi Zonal Unit, New Delhi
Through Ms Anju Singh, Intelligence Officer
V E R S U S
Ms. Annabelle Analista Malibago
D/o Mr. Pythias Analista
R/o Linek Kiamba Sarangani Province,
Mindanso, Philippines
Presently lodged in Central Jail
Tihar, New Delhi.
SC No.: 27A/09
U/S : 21 NDPS Act
Computer ID No: 02403R0117532009
Date of institution : 09.04.2009
Date of reserving judgment : 11.03.2014
Date of pronouncement : 19.03.2014
Decision : Convicted
J U D G M E N T
The facts of the case, in brief, are that on 15.10.2008 the IO/PW1 Ms. Anju Singh had received a secret intelligence from some reliable source that a Philippian National named Annabelle Analista Malibago SC No:27A/09 DRI Vs. Annabelle Analista Malibago 2 having fair complexion, would be travelling from Delhi to Hyderabad by the Spice Jet Flight No. SG-237, which was scheduled to depart at 05:20 PM on that day from the Terminal 1-B of the Domestic Airport of New Delhi and she will be carrying some narcotic drugs concealed in her baggage. The IO/PW1 had immediately reduced the above information in writing as Ex. PW1/A and had put up the same before her senior officer/PW4 Sh Ramesh Kumar, who, in-turn, had further placed it before PW2 Sh Nilank Kumar, who had directed for the immediate constitution of a raiding team for interception of the above passenger and seizure of the contraband substance.
2. It is alleged in the complaint that while acting upon the above information and directions, a team of the DRI officers had reached at the check-in counter of the above airlines at around 02:45 PM on that day and the officers of DRI had joined two public witnesses from there, while informing them about the above secret intelligence. Thereafter, the members of the DRI team, alongwith the public witnesses, had started waiting for the above said lady passenger at the check-in counters of the above airlines and at about 03:00 PM, a lady matching with the description given in the secret intelligence was seen going towards one of the check-in counters of the above airlines. When the above lady passenger had handed over her strolley bag and tickets for check-in at the counter of the above airlines, she was intercepted by the DRI officers and on inquiry her identity was revealed as SC No:27A/09 DRI Vs. Annabelle Analista Malibago 3 the accused Annabelle Analista Malibago and the accused had also produced her Philippian passport bearing no. WW0377972 Ex. PW1/J as a proof of her identification.
3. It is alleged that the accused was then asked by the DRI officers as to whether she was carrying any narcotic drugs or other contraband in her baggage, to which she replied in negative and thereafter, a written notice U/s 50 of the NDPS Act Ex. PW1/B was served upon the accused apprising her that the search of her 'person' and baggage was required to be conducted, in view of the above information, and if she desires the same can be conducted in the presence of a Gazetted Officer or a Magistrate. The accused vide her written reply given on the above notice itself, in her own handwriting, is alleged to have refused for conduction of the search before the aforesaid officers and rather offered the search of her person and baggage to be conducted by any lady officer of DRI.
4. Thereafter, the accused, alongwith her above black colour strolley zipper bag and the two panch witnesses was escorted to a room of the office of the above airlines located at the above terminal and on being asked, she had also provided the key of the above strolley bag, which was bearing the logo as "American Tourister" and also having the security check sticker no. 829923 affixed on the lock of the said bag. On opening the above bag with the help of the above key provided by SC No:27A/09 DRI Vs. Annabelle Analista Malibago 4 the accused and on taking out the clothes and other belongings of the accused contained in the said bag, and also one black coloured back pack bag found therein and containing some old and used clothes, it was observed that the bottom of the above strolley bag was abnormally thick and then the rivets inside the above bag were removed and upon breaking open the bottom of the said bag, one packet secured with brown adhesive tapes was found concealed in it. The gross weight of the said packet was found 1.345 kgs and the said packet was cut opened and found to be containing some yellowish colour powder giving a pungent smell. On testing a pinch of the above powdery substance with the help of the drug testing kit, the same had given positive results for heroin and the contents of the above packet were weighed and the net weight of the above powder/heroin was found to be 1.240 kgs. The above heroin, alongwith its packing material, as well as the above strolley bag, back pack bag and the clothes and other articles found in the said bag were all seized for violation of the provisions of the NDPS Act.
5. It is further alleged in the complaint that thereafter, the IO/PW1 had taken out three representative samples of 5 gms each out of the above heroin and these samples were kept in separate press seal polythene pouches and the same were given markings as A1, A2 and A3 and were further kept in separate paper envelopes and the same were sealed with the DRI seals, over a paper slip pasted thereon, which were bearing the dated signatures SC No:27A/09 DRI Vs. Annabelle Analista Malibago 5 of the accused, the IO/PW1 and the two panch witnesses. The remaining heroin was also put in a transparent polythene, which was stapled and Marked as A and it was further put in a paper envelope and sealed with the DRI seal and similar paper slip was also pasted thereon. The above sealed parcel of the remaining heroin was then further kept in a metal box and the same was converted into a cloth parcel sealed in the same manner. The seized clothes and other personal effects of the accused, as well as the above back pack bag and the clothes found therein, alongwith the above lock and key of the strolley bag, were kept in the same strolley bag and it was also converted into a cloth parcel and sealed in the same manner. In the personal search of the accused conducted by the IO/PW1, some air tickets for the above flight from Delhi to Hyderabad and of the further journey of the accused from Hyderabad to Ho Chi Minh city (Vietnam), via Bangkok, were also recovered and seized. The above checked-in baggage tag no. 829923 of Spice Jet was also resumed for the purposes of investigation. The IO/PW1 had also drawn a detailed panchnama Ex. PW1/C regarding the above proceedings and the contents thereof were explained to the accused as well to the two panch witnesses and they all had signed the same, besides the IO/PW1 herself, and facsimile of the above seal of DRI was also affixed on the said panchnama. Test memos in triplicate were also prepared and a facsimile of the above seal affixed thereon.
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6. It is further alleged that thereafter, in response to the summons U/s 67 of NDPS Act Ex. PW1/G given to the accused, the accused had tendered her voluntary statement dated 15-16.10.2008 Ex. PW1/H before the IO/PW1 and besides disclosing her various personal and family details therein, she had admitted her apprehension from the above place on the above date and time, the recovery of the above packet of heroin from her above strolley bag and all the subsequent proceedings conducted with regard to the same. She had also disclosed therein, inter-alia, that she was a graduate in Education and a Philippian National and she had earlier remained in China till 2008 and had been working as a tutor there for kids and then she had gone to Thailand and resided there for almost a month. During the above period, she got friendly with one Mr. Dan Singh, who was from Pakistan, and at his instance, she had even gone to Pakistan in June 2008, but she was denied entry by the immigration authorities at Karachi for want of a valid visa as the above Mr. Dan Singh had arranged a fake visa for her and she returned back to Philippines. She also disclosed in her above statement that the above passport found in her possession on the day of her interception in this case was her second passport and she was having another passport before 24.05.2008 and she had only visited China on the first passport. She also disclosed that Mr. Dan Singh had sent her 1000$ US and then she had gone to Malaysia at his instance, in the month of June 2008, where she had stayed with Mr. Dan Singh for about three SC No:27A/09 DRI Vs. Annabelle Analista Malibago 7 days and then Mr. Dan Singh had left for Thailand and she also returned to Thailand after about 30 days and stayed with Mr. Dan Singh in Thailand. From there, she was again sent back to Malaysia and she had brought some garments from there for Mr. Dan Singh and her expenses were also borne by him. She claims to have broken up with Mr. Dan Singh in the first week of September 2008.
7. It was further disclosed by her in her above statement that during the above period, she also became friendly with one Mr. George and at his instance she had come on India on 26.09.2008 and before coming here she had also visited Vietnam and had stayed in Hotel Van Quanh at Ho Chi Minh city for about a week and all the expenses of her above visit and stay were funded by Mr. George and her tickets for her further journey to India were also arranged by him and handed over to her on 25.09.2008 by one lady named Dianne, who had met her in Vietnam, on the directions of Mr. George. After landing at Hyderabad on 26.09.2008 by a Thai Airways flight from Vietnam, she had reached Delhi in the morning of 27.09.2008 and had checked-in Anmol Hotel first, as per the instructions of Mr. George, but since the above hotel was not found good, she had checked-in another hotel in the same vicinity, the name of which she could not recollect. It was further disclosed by the accused in her above statement that Mr. George had also told her that one lady looking like an African would hand over a bag to her and she will have to deliver the said bag to a SC No:27A/09 DRI Vs. Annabelle Analista Malibago 8 person in Vietnam in the above hotel in Ho Chi Minh city. She had further disclosed that one lady named Lucky had delivered to her the above strolley bag in the night of 14.10.2008 in her hotel and the above lady had also helped her in packing her clothes in the said bag and then she had checked out of her hotel at around 02:00 PM on 15.10.2008 and had reached at the above airport at around 02:30 PM and had got her bag cleared from the x- ray machine and had handed over the same at the check-in counter of the above airlines, when she was intercepted by the DRI officers. She had further admitted the contents of the above panchnama and also her mistake for carrying the above bag containing heroin from Delhi to Vietnam.
8. It is further alleged in the complaint that since the accused appeared to have committed an offence punishable U/s 21 of the NDPS Act, she was arrested in this case vide memo Ex. PW1/K and was also got medically examined from RML hospital vide MLC Ex. PW15/A, produced in the court and remanded to judicial custody. The intimations regarding the arrest of the accused were also given to the office of the High Commission concerned, the family members of the accused and the office of the FRRO vide letters Ex. PW4/B, PW4/C and PW4/F respectively. The investigation regarding issuance of the above ticket of the domestic flight of the accused from Delhi to Hyderabad and her further international tickets from Hyderabad-Bangkok-Vietnam was also conducted and it was SC No:27A/09 DRI Vs. Annabelle Analista Malibago 9 revealed that her domestic ticket was got issued by M/s India Travel Bureau through M/s High Tours (India) Pvt. Ltd. and M/s Pearl International Tours and Travels Ltd, New Delhi and the said ticket was issued to one person looking like an African, against cash payment. The above international tickets of the accused of Thai Airways for her journey to Vietnam from India, and also the journey already performed by the accused from Vietnam to India, via Bangkok, were found to have been issued by the office of the Thai Airways at Vietnam against cash payment, but it was not clear as to who had got issued the said tickets as the same were not available with their Indian office.
9. The sealed parcels of the case property of this case were deposited by the IO/PW1 with the Valuable Godown of the New Customs House on 16.10.2008 in intact condition vide inventory/deposit memo Ex. PW1/N and one sealed sample parcel, alongwith the duplicate test memos, was also got deposited with the CRCL, New Delhi on the same day vide forwarding letter Ex. PW4/C and against acknowledgment Ex. PW5/A, in intact condition. Vide the test report Ex. PW7/A of the CRCL, the above sample had also subsequently tested positive for the presence of diacetylmorphine (heroin) and the purity percentage thereof was opined to be 35.6%. After compliance of the provisions of Section 57 of the NDPS Act, the recording of the statements of witnesses and completing some other formalities of investigation, a complaint for commission SC No:27A/09 DRI Vs. Annabelle Analista Malibago 10 of the offence punishable U/s 21 of the NDPS Act was ultimately filed against the accused.
10. The complaint was filed against the accused in this court on 09.04.2009 and cognizance of the above offence was taken on the same day. A prima facie case for commission of the offence punishable U/s 21 of the NDPS Act was also found to be made out against the accused vide order dated 29.09.2009 and a charge for the above said offence was also framed against her on the same day. However, on the very next date, i.e. on 04.11.2009, it was observed that there was some mistake in the charge framed against the accused as instead of Section 21(c) of the NDPS Act, which was attracted in the case, Section 21(b)(ii)(C) of the NDPS Act was inadvertently mentioned in the above charge dated 29.09.2009 and hence a fresh charge was framed against the accused on 04.11.2009, to which also she did not plead guilty and claimed trial.
11. The prosecution in support of its case had examined total 16 witnesses on record. (It is necessary to mention here that due to some mistake or inadvertence, two witnesses Sh Devender Singh of DRI and Dr. Meenakshi Kamal of RML Hospital, have both been examined at the same serial number 15 and hence, to avoid confusion, Dr. Meenakshi Kamal will be referred to as PW15-A and the documents proved by her shall also be referred accordingly).
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12. The names and the purpose of examination of the above witnesses is stated herein below:-
13. PW1 Ms. Anju Singh is an Intelligence Officer of DRI and she is the person who had received the above secret intelligence, reduced the same into writing as Ex. PW1/A and had further put up the same before her official superior/PW4 Sh Ramesh Kumar. She was also heading the raiding team of DRI officials who had apprehended the accused from the airport, recovered the above contraband substance from her baggage and had conducted the entire search and seizure proceedings regarding the above substance. She had also subsequently recorded the above statement U/s 67 of NDPS Act Ex. PW1/H of the accused. She has deposed in detail almost on the above lines of the prosecution story and has identified the accused as well as the entire case property.
14. PW2 Sh Nilank Kumar is the then Assistant Director of DRI and the above secret intelligence Ex. PW1/A was put up before him by PW4 Sh Ramesh Kumar and he, in-turn, had directed PW4 for the constitution of a raiding team to act upon the said intelligence, vide his written directions given on the said information itself.
15. PW3 Sh Sanjay Kumar is a Tax Assistant of DRI, who had issued the above seal of DRI, used in the sealing of the above parcels, to the IO/PW1 on 15.10.2008 and has stated that the same was returned back to him on SC No:27A/09 DRI Vs. Annabelle Analista Malibago 12 16.10.2008 and he has also proved on record the relevant entry of the seal movement register in this regard as Ex. PW1/B.
16. PW4 Sh Ramesh Kumar was working as a Senior Intelligence Officer of DRI at the relevant time and he is the person to whom the above intelligence Ex. PW1/A was put up by the IO/PW1 and he had further put up the same before PW2 Sh Nilank Kumar. He has also subsequently participated in the above raid and is a witness of apprehension of the accused and recovery of the above contraband substance. After the panchnama proceedings, he was also entrusted the sealed parcels of the case property and sample for safe custody. He had further sent the intimations Ex. PW4/B to PW4/D to different persons/authorities regarding the arrest of the accused, issued one letter Ex. PW4/A for medical examination of the accused and also got deposited the sample parcel and test memos with CRCL, vide forwarding letter Ex. PW4/E and the parcels of the case property with Valuable Godown and had countersigned the deposit memo Ex. PW1/M thereof. He is also the person to whom the report U/s 57 of NDPS Act Ex. PW1/O was submitted by the IO/PW1. He has also identified the accused.
17. PW5 Sh K.P. Singh, the Head Hawaldar of DRI, had taken the one sealed sample parcel of this case and the test memos from the office of the DRI to CRCL on 16.10.2008, vide forwarding letter Ex. PW4/E issued by SC No:27A/09 DRI Vs. Annabelle Analista Malibago 13 PW4 and had deposited the same there against acknowledgment Ex. PW5/A of the CRCL.
18. PW6 Sh D.B. Sharma was working as In-charge of the Valuable Godown of the New Customs House on 16.10.2008, when the sealed parcels of the case property of this case were deposited with him in intact condition and he had also made his endorsement in this regard on the deposit memo Ex. PW1/N and had further made one entry Ex. PW6/A in the concerned register of the above Godown.
19. PW7 Sh S.C. Mathur and PW9 Sh Bhuvan Ram are the Chemical Examiner and Assistant Chemical Examiner respectively of the CRCL and they had proved on record the test report of the above sample as Ex. PW7/A and the short analysis report thereof given in the test memo Ex. PW1/M. It is brought on record in their statements that the sample was tested by PW9 Sh Bhuvan Ram, under the supervision, guidance and in the presence of PW7 Sh S.C. Mathur. Even the acknowledgment receipt thereof Ex. PW5/A was also given/issued by PW9.
20. PW8 Ms. Kanika Kapoor and PW12 Sh Atma Singh are the Security Executive and Shift In-charge respectively of the Spice Jet Airlines posted at the above terminal at the relevant time and they both are the two panch witnesses who were joined during the raid of this case and they both have also deposed regarding the apprehension of the accused, the recovery of the above SC No:27A/09 DRI Vs. Annabelle Analista Malibago 14 contraband substance from the baggage of the accused and the proceedings conducted with regard to the same. They both have also identified the accused as well as the case property. Their depositions will be discussed and appreciated in the later part of this judgment.
21. PW10 Sh H.K. Midha, PW11 Sh Tarun Raj and PW13 Sh Trilok Chand are the officials of the travel companies/firms M/s Pearl International Tour and Travel Ltd., Hi Tours (India) Pvt. Ltd and India Travel Bureau respectively and they all have deposed regarding the above travel ticket of the accused issued for the above said Spice Jet flight from Delhi to Hyderabad. As per these witnesses, the above ticket of the accused was got issued by Ms. India Travel Bureau through the sub-agent M/s Hi Tours (India) Pvt. Ltd of the main travel agent Pearl International Tour and Travel Ltd. They all have deposed regarding their respective statements made in this regard during the investigation.
22. PW14 Sh Nand Kishore Pandey is an official of the Thai Airways and he has deposed regarding the above tickets of their airways found to be in possession of the accused for her journey from Vietnam to India and back from India to Vietnam, via Bangkok, and also regarding his previous statement tendered in this regard during the investigation.
23. PW15 Sh Devender Singh, an Intelligence Officer SC No:27A/09 DRI Vs. Annabelle Analista Malibago 15 of DRI, has also claimed himself to be a part of the raiding team which had apprehended the accused from the above airport and recovery of the above contraband substance. He has also subsequently recorded the statements of PW10 Sh H.K. Midha of M/s Pearl International Ltd. and PW11 Sh Tarun Raj of M/s Hi Tours (India) Pvt. Ltd.
24. PW15-A Dr. Meenakshi Kamal of RML Hospital had medically examined the accused vide MLC Ex. PW15-A/A dated 16.10.2008, vide which she did not find any fresh external injuries present on the person of the accused at that time.
25. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record by the prosecution was put to the accused in her statement recorded U/s 313 Cr.P.C and the same was denied by her to be incorrect. Though, the accused has admitted that she was apprehended from the above airport, but it is her case that she was not apprehended from the check- in counter of the above airlines and rather she was apprehended from one big hall and at that time, she was carrying only one back pack bag and one hand bag and the above strolley bag, from which the above contraband substance is being alleged to have been recovered, does not belong to her. She has also claimed that no proceedings of search and seizure or sealing etc. of this case were conducted in her presence and even no air SC No:27A/09 DRI Vs. Annabelle Analista Malibago 16 tickets were recovered from her possession as she had yet to buy tickets for her travelling to her native country Philippines via Hyderabad. She has claimed herself to be innocent by saying that the above heroin or any other contraband substance was never recovered from her possession. However, no defence evidence was led by the accused on record.
26. I have heard the arguments advanced by Ms. Mala Sharma, Ld SPP for DRI and Sh R.K. Thakur, Ld defence counsel representing the accused. I have also gone through the evidence led and the other record of the case, including the written arguments filed on behalf of the prosecution/DRI.
27. The first contention of Ld defence counsel is that the mandatory provisions of Section 50 of the NDPS Act have not been complied with in this case. It has been argued by him that though a notice U/s 50 of the NDPS Act Ex. PW1/B was allegedly given to the accused prior to the search of her 'person' and baggage by the IO/PW1, but the above notice is a typed notice and the person who had typed the same has not been produced in the witness-box nor his statement was admittedly recorded by the IO/PW1 during the investigation and hence, the said notice cannot be said to have been legally proved. It has also been argued that no copy of the above notice was allegedly given to the accused in compliance of the provisions of the above Section and hence, the accused is SC No:27A/09 DRI Vs. Annabelle Analista Malibago 17 entitled to be acquitted simply for the non compliance of the above mandatory provisions.
28. In this context, it is now well settled that the provisions of Section 50 of the NDPS Act are required to be complied with only in cases where the recovery of a contraband substance has been effected from the 'person' of an accused and this Section has got no applicability in cases where the contraband substance is recovered not from the 'person' of an accused, but from any bag, briefcase or thaila etc being carried by him or found to be in his possession. Since in the present case, the seizure of the above heroin was effected from the above baggage being carried by the accused at the time of her apprehension, the mandatory provisions of Section 50 of the NDPS Act were not required to be complied with in this case. Reference in this regard can be made to some of the judgments in cases State of H.P. Vs Pawan Kumar 2005 (4) SCC 350, Madan Lal Vs State of H.P. 2003 Crl.L.J 3868 and Ajmer Singh Vs State of Haryana-2010 (2) SCR 785 (Crl. Appeal No. 436/09): 2010 (1) JCC (Narcotics) 28 (SC), Jarnail Singh Vs State of Punjab, AIR 2011 SC 964 etc.
29. Even otherwise, Section 50 of the NDPS Act only prescribes that when such a person is about to be searched by any authorized officer under the provisions of Section 41, Section 42 or Section 43 of the above Act, the above officer shall take such person, if such SC No:27A/09 DRI Vs. Annabelle Analista Malibago 18 person so requires, without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate and this Section nowhere even says that any notice in writing is required to be given to such person in terms of the above provisions, what to say of giving a copy of such notice to the said person. It is only to show the compliance of the above said provisions that a notice in such a case is generally given by the IO to such an accused in writing, so that, subsequently a plea for non compliance of the said provisions is not raised by the accused during the trial. Since no written notice is even prescribed to be given by the said Section, even no format of any such notice to be given is prescribed, either under the NDPS Act or the Rules framed thereunder. Hence, there is not found to be any mandatory requirement for serving a copy of the above notice to the accused as per the provisions contained in the above Section, even if such a notice is required to be served in any case where the contraband substance is recovered from the person of an accused and the accused has to be apprised about his above legal rights. Moreover, the evidence led on record clearly establishes that the above notice Ex. PW1/B was duly served upon the accused by the IO/PW1, prior to the conduction of her search and even the search of her above baggage and this document stands duly proved on record from the statement of the IO/PW1 herself and there was no requirement of producing the person who had typed the said notice.
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30. One other contention of Ld defence counsel is that no public persons or independent witnesses were joined by the IO/PW1 prior to leaving of the office by them or on the way to airport as the secret intelligence was allegedly received at about 12:15 PM and the above flight of the accused was scheduled to depart from the above airport at around 5:20 PM. He has also challenged the reliability of the two public witnesses joined in this case, i.e. PW8 Ms. Kanika Kapoor and PW12 Sh Atma Singh, on the ground that since they both were the employees of the above Spice Jet Airlines, they cannot called to be independent witnesses and rather they were the witnesses interested in the prosecution and conviction of the accused.
31. In this regard, this court fails to accept the above argument of Ld defence counsel that the above two public witnesses joined in this case were not independent witnesses or were interested witnesses as even if they were the officials or employees of the above airlines, by which the accused was to fly from Delhi to Hyderabad, they do not, in any way, become interested witnesses merely by reason of their above employment and they have to be treated and considered as independent witnesses because they have nothing personal in the prosecution or conviction of the accused and they were even not known to the accused. Rather, the above two public witnesses being the officials of the above airlines are the two natural witnesses which could have SC No:27A/09 DRI Vs. Annabelle Analista Malibago 20 been joined in this case and their depositions can always be believed by this court as they have nothing personal to depose against the accused. Again, when the IO/PW1 had joined the above two witnesses from the premises of the airport itself, prior to the search of the person and the above baggage of the accused, there is no force in the argument of Ld defence counsel that the independent or public witnesses should not have been joined from the airport premises and rather the same should have been joined either from near the office of the DRI or on their way to the airport.
32. With regard to the joining of the public witnesses, it is now well settled that there is no hard and fast rule that public witnesses have to be joined in each and every case and all that is required is that the Investigating Officer should make his sincere attempts and efforts to join such witnesses to strengthen his case, but even if he fails to join any witnesses and his efforts are found to be satisfactory, then the case of the prosecution cannot be disbelieved or discarded simply by reason of non joining of the public witnesses in such a case. Moreover, in this case not only the above two public witnesses have been joined prior to the recovery of the above contraband substance, but they both have also been examined during the trial.
33. As stated above, besides the above two public witnesses, there are three official witnesses of DRI on SC No:27A/09 DRI Vs. Annabelle Analista Malibago 21 record regarding the recovery of the above heroin from the possession of the accused and besides the IO/PW1 Ms. Anju Singh, PW4 Sh Ramesh Kumar and PW15 Sh Devender Singh have also claimed themselves to be a part of the above raiding team of DRI officials, which had apprehended the accused and recovered the above contraband substance. The IO/PW1 as well as PW4 have both deposed in detail regarding the constitution of the above raiding team and their arrival at the above airport premises. As per the IO/PW1 at around 2:45 PM, after she had already joined the above two public witnesses, she had noticed the said lady matching with the description given in the secret intelligence and the above lady had come at one of the check-in counters of the Spice Jet Airlines and handed over her strolley bag for check-in, alongwith her tickets, and she had intercepted the above lady and asked about the identity etc of the above lady. The IO/PW1 has also stated that after the compliance of the provisions of Section 50 of the NDPS Act, the accused was escorted, alongwith her black colour strolley hag and the panch witnesses, to the security manager's room and she has also stated that the above strolley hag of the accused was locked at that time and was also having one sticker of the security check and the lock of the same was opened with the key which was provided by the accused. She has also deposed that after all the personal effects and articles of the accused lying therein were taken out, it was found that the bottom of the above strolley zipper bag was SC No:27A/09 DRI Vs. Annabelle Analista Malibago 22 abnormally thick and after breaking the rivets of the said bag, one packet secured with brown colour adhesive tapes was found concealed therein and the weight of the said packet was found to be 1.345 kgs and the net weight of the substance, which was identified on testing as heroin, to be 1.240 kgs. She has also deposed in detail regarding the process of drawing of samples and the sealing of the parcels of the samples and case property etc. She has also stated specifically that she had drawn the panchnama Ex. PW1/C regarding the above proceedings, prepared the test memos in triplicate and had seized the air tickets of accused from Delhi to Hyderabad Ex. PW1/D, from Hyderabad to Bangkok Ex. PW1/E and the above baggage tag Ex. PW1/F.
34. Even, PW4 Sh Ramesh Kumar duly corroborates the above depositions made by the IO/PW1 on all the above material aspects as he has also stated specifically that at about 3:00 PM on that day, one lady matching with the description given in the intelligence had reached at one of the check-in counters of the Spice Jet airlines and handed over her strolley bag at the counter, alongwith the tickets. He has also stated that at the same time, the IO/PW1 Ms. Anju Singh had approached the above lady and after deposing about the enquiry session and the compliance of the provisions of Section 50 of the NDPS Act, he has further stated that the accused was then escorted to the office of the above airlines, alongwith her baggage, for further search and the search of her SC No:27A/09 DRI Vs. Annabelle Analista Malibago 23 above baggage was conducted there by the IO/PW1, after lock thereof was opened with the key provided by the accused, and the IO/PW1 had recovered and seized 1.240 kgs of heroin (net weight) from the false bottom of the above baggage, i.e. the zipper strolley bag. He has also deposed regarding the process of the testing, drawing of samples and sealing thereof and has further stated that a panchnama regarding the above proceedings was also drawn and the above baggage tag and the air tickets of the accused were seized by the IO/PW1.
35. The third official member of the raiding team of DRI is being claimed as PW15 Sh Devender Singh, who is also an officer of a rank of Intelligence Officer, but on perusal of his testimony as a whole, his claim regarding participation in the raid does not appear to be convincing enough and he does not appear to be a reliable witness. He has briefly stated that he joined the investigation on the directions of PW4 Sh Ramesh Kumar and had accompanied the IO/PW1 and other members of the team to the airport and during the investigation, the IO/PW1 had recovered 1.240 kgs (net weight) contraband substance suspected to be heroin, from the black colour strolley bag checked-in by the accused and on the lock of the above bag, the security check sticker was found affixed and the lock was opened by the IO/PW1 Ms. Anju Singh with the help of the key provided by the accused. He has also stated further that the proceedings of the recovery and seizure of the above SC No:27A/09 DRI Vs. Annabelle Analista Malibago 24 substance were conducted by Ms. Anju Singh in the presence of two witnesses and she also recovered some documents, i.e. e-tickets, from the personal search of the accused.
36. However, during his cross examination, he was not able to recollect most of the things connected with the above investigation like the time when he was asked to join the investigation, the time when they had left their office for the airport, the number of officers participating in the raiding team and their names, the exact time when they had reached at the spot, the time and the place when he had come to know about the above secret information, the size of the office/room of Spice Jet, where the proceedings were conducted and the availability of the furniture articles and number of computers in the said cabin, the number of documents prepared in the said office and even whether the notice U/s 50 of the NDPS Act given to the accused was a written notice or a typed one and how many copies thereof were prepared and further when they had left the spot. Even, in his chief examination, he was entirely silent regarding the service of any notice U/s 50 of the NDPS Act. From the above depositions made by this witness, who is a responsible officer of the rank of Intelligence Officer of DRI, his claim of participation in the raid proceedings appears to be highly doubtful and this court has serious doubts regarding his participation in the raid and hence, no reliance can be SC No:27A/09 DRI Vs. Annabelle Analista Malibago 25 placed upon the depositions of this witness as made in this court.
37. However, the two public witnesses Ms. Kanika Kapoor/PW8 and Sh Atma Singh/PW12 also corroborate the case of the prosecution and the depositions of the above two official witnesses, i.e., the IO/PW1 and PW4, on almost all the particulars. As stated above, they both are the officials of the Spice Jet airlines and were the natural witnesses, who could have been joined in the proceedings conducted at the airport. As discussed above, the both have been found to be independent witnesses and not connected with the prosecuting agency or interested witnesses in any manner. PW8 in her examination in chief has stated that on the above date, the officers from the narcotic section had already intimated the manager of their airlines that they were suspecting some lady passenger, who would be travelling from the Spice Jet airlines with some narcotic drugs, and the officers had also informed their manager for giving the said information to the officers posted at the X-ray counter. She has also stated that when the above officers had apprehended the lady passenger, alongwith her baggage, whom she has identified as the accused, they were taken to the security office of the airlines and there the accused was questioned regarding the contents of the above checked-in baggage and on opening the same with the key produced by the accused, the above officers had recovered some powder from the SC No:27A/09 DRI Vs. Annabelle Analista Malibago 26 false bottom of the above zipper strolley bag, which was concealed therein and recovered after removing the rivets of the bag, and the weight of the above powder was stated to be 1.5 kgs approximately by this witness and she has also stated further that the above officers had informed her that the above powder was some drug. She has also deposed in detail regarding the search of the above bag, recovery of the above heroin and also the process of sealing of the parcels etc and has further identified the case property and her signatures on different documents like the panchnama Ex. PW1/C, the tickets and baggage tags Ex. PW1/D to Ex. PW1/F recovered from the accused, the test memos Ex. PW1/L and PW1/M and the paper slips.
38. One leading question was also allowed to be put to this witness on request on behalf of the prosecution and in reply to the said question, she has admitted that the accused was intercepted in her presence from the counter of the above airlines. However, during her cross examination, though she has successfully stood the test of cross examination on the aspect of the recovery of the above contraband substance from the above checked-in baggage of the accused in her presence, but she has also deposed on record that she remained present in the office/cabin of their airlines when the accused was brought there after being intercepted and she was not present at the time of actual interception of the accused. Even, during her re-examination conducted on SC No:27A/09 DRI Vs. Annabelle Analista Malibago 27 behalf of DRI on this aspect, subsequent to her cross examination, she has stated that she had just come out of her cabin when she noticed the accused with the DRI officers and she had not actually seen them intercepting the accused and the distance between her cabin and the place of interception was stated by her to be hardly 20-25 meters and hence, her both depositions are correct. However, when her above depositions are read in entirety, it appears to this court that though she might not have been physically present, alongwith the IO/PW1, at the time when the accused was actually intercepted, but the accused was certainly intercepted in her view and she had also participated in all the subsequent proceedings of search and seizure etc of the above contraband substance recovered from the possession of the accused and hence, her testimony inspires confidence and the same can be acted upon to corroborate the case of the prosecution and the depositions of the above two witnesses of the DRI on other material aspects.
39. Even, PW12 Sh Atma Singh has stated specifically on record that on the above date, some persons from the narcotic department had come to him and told him about the above information received by them regarding a lady passenger travelling from a flight of their airlines and his joining of the members of the raiding team as a witness on their request. He has stated specifically that when the above passenger had SC No:27A/09 DRI Vs. Annabelle Analista Malibago 28 cleared the X-ray and was in queue of the check-in counter and the bag of the accused was on the weighing machine, she was intercepted and after some enquiries conducted from her, she was taken, alongwith her above strolley bag, to his room where the above bag was opened with the key provided by the accused and the above packet of heroin, containing about 1.3 kgs of heroin as per this witness, was recovered from the said bag, which was found concealed in the bottom of the said bag. He has also deposed in detail regarding the process of testing, drawing of samples and sealing etc and has also identified the accused as well as his signatures on all the relevant documents like the above panchnama, ticket and baggage etc recovered from the accused and the paper slips affixed on the above parcels, though, initially he has stated the name of the accused as 'Nalabala' and then as 'Annabala'. However, he is also found to be corroborating the above two official witnesses of DRI on all the material particulars and further establishes the presence and participation of PW8 Ms Kanika Kapoor of their airlines in the said proceedings.
40. Thus, it is clear from the above depositions made by the above four material witnesses of prosecution story, i.e. the IO/PW1, PW4, PW8 and PW12, that the accused was apprehended from the check-in counter of the above airlines when she had already handed over her ticket and the above strolley bag for check-in to the officials of the above airlines. They have also made SC No:27A/09 DRI Vs. Annabelle Analista Malibago 29 consistent and corroborative depositions on record regarding the manner in which the above heroin packet was recovered from the false cavity of the above strolley bag. They all further corroborate each other on the aspect that one security check sticker was found affixed on the lock of the above strolley bag and the said lock was opened with the key provided by the accused herself. The sealed parcel of the above strolley bag, as well as the other personal articles and effects of the accused put in the said parcel, was also produced for identification during the examination of the IO/PW1 and the above two public witnesses and they all had identified the above bag having a false cavity and the same, alongwith its lock and key and the other articles and cloths etc, is Ex. P12 on record.
41. The oral depositions made by the above witnesses also stand duly corroborated by the contents of the panchnama Ex. PW1/C drawn at the spot, which though is not signed as a witness by PW4, but is found to be signed by the above two public witnesses, besides the IO/PW1 and the accused herself. Even the copies of the e-tickets of journey of the accused Ex. PW1/D and PW1/E recovered from the possession of the accused and the security check sticker number 829923 found affixed on the lock of the above strolley bag of the accused are also found to be bearing the signatures of all the above persons. Though, there are some contradictions in the testimonies of the above witnesses as to whether the SC No:27A/09 DRI Vs. Annabelle Analista Malibago 30 lock of the above bag was opened by the accused herself or by the IO, but the same is not found to be material as they all corroborate each other that it was opened with the key provided by the accused and the same also belonged to the accused. Though, Ld defence counsel has argued that the above security check sticker could not have been affixed upon the above strolley bag till the time the boarding pass was issued to the accused, but this submission of Ld defence counsel is not found to be tenable as the above security check sticker was affixed on the lock of the said baggage as a proof of the clearance of the above baggage for security purposes, as it has been specifically brought on record in the evidence that the accused had already cleared the X-ray machine and had handed over the above baggage for check- in and the same was lying on the weighing machine when it was intercepted by the IO/PW1, and the evidence nowhere suggests that the boarding pass of the accused was also issued to her. Since, the accused was intercepted prior to the issuance of the boarding pass to her, the non availability of a boarding pass cannot be made a ground to disbelieve the consistent and corroborative depositions of the above witnesses regarding the check-in of the above luggage of the accused and the recovery of the above seized heroin therefrom.
42. During her statement recorded in this court U/s 313 Cr.P.C., though the accused has specifically SC No:27A/09 DRI Vs. Annabelle Analista Malibago 31 admitted her apprehension by the DRI officers from the above airport, but she has claimed that she was not apprehended from the check-in counter and was actually apprehended from a big hall and further that the above checked-in baggage Ex. P12, from which the above heroin was allegedly recovered, did not belong to her. However, the above submission and defence of the accused in disowning the above bag is a very vague defence and the same has also remained unsubstantiated and it cannot over ride the consistent and corroborative depositions of the above two official witnesses of DRI as well as the two panch witnesses to the effect that the same belonged to the accused and was seized just after the accused had handed over the said bag to the official at a check-in counter of the above airlines. The IO/PW1 has specifically denied the suggestions given during her cross examination that the above baggage Ex. P12 did not belong to the accused and no other witness of recovery was given any such suggestion by the Ld defence counsel. Though, the accused has vaguely claimed that the above air tickets were not recovered from her possession and she was yet to buy her tickets for her journey to Hyderabad at the time when she was picked up from the airport, but the above claim of the accused could not be substantiated during the trial and rather, the evidence led on record is found to be sufficient to establish the factum of recovery of the above tickets from her possession. No defence evidence has also been led on record by the accused to substantiate her above defence SC No:27A/09 DRI Vs. Annabelle Analista Malibago 32 and simply by disowning of the above bag or denying the recovery of the above contraband substance from her above bag, the accused cannot nullify the effect of the oral as well as documentary evidence led by the prosecution on record against her on the above aspects.
43. Though, some other contradictions and discrepancies have also come on the record during the cross examination of the above witnesses on certain aspects, but none of them is found to be material in nature or going to the root of the prosecution case, so as to make it unworthy of acceptance or doubtful. The oral evidence led on record in the form of the testimonies of the official witnesses is duly supported by the documentary evidence on record and the same is thus found to be sufficient to prove on record the recovery of the above contraband substance from the possession or the above baggage of the accused.
44. Further, apart from the above evidence led on record regarding the recovery of the above contraband substance from the possession of the accused, there is also her statement Ex. PW1/H, which was tendered by her U/s 67 of the NDPS Act and in response to the summons Ex. PW1/G given to her by the IO/PW1, which can be considered by this court for arriving at a conclusion about her guilt. It is now well settled that such a statement made by an accused is very much admissible in evidence and the same can also be made the sole basis of SC No:27A/09 DRI Vs. Annabelle Analista Malibago 33 the conviction of an accused, if the same is found to be made voluntary. Further, it cannot be equated with the statement of an accused made in custody, even if it is confessional in nature, as the same is made by an accused prior to his arrest in the case and hence, the bar of Sections 24 to 27 of the Evidence Act and even Article 20(3) of the Constitution would not be attracted to such a statement. However, if such a statement is found to be made by an accused under some pressure, coercion or influence etc. and is not made by him voluntarily, then it cannot be believed and acted upon.
45. Again, if the accused subsequently retracts from such a statement, then the court has to look into the entirety of the facts and circumstances leading to the making of the above statement and its subsequent retraction, so as to form an opinion regarding the voluntariness of such a statement and the effect which has to be given to his subsequent retraction thereof. However, it is also well settled that such a retracted statement is a weak piece of evidence and the court should not proceed to base a finding of conviction on the basis of such a retracted statement, unless there is some other independent evidence to corroborate the same. Reference with regard to the above can be made to some of the judgments in cases Raj Kumar Karwal Vs. Union of India & Ors. (1990) 2 SCC 409; Kanhaiya Lal Vs. Union of India 2008 (1) AD (Crl.) (SC) 277 : 2008 (1) JCC (Narcotics) 23; Francis Stanly @ Stalin Vs. Intelligence SC No:27A/09 DRI Vs. Annabelle Analista Malibago 34 Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124; Noor Aga Vs. State of Punjab & Anr. 2008(9) Scale 681; Union of India Vs. Bal Mukund and Ors. 2009 (2) Crimes 171 (SC); Ram Singh Vs. Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 and DRI Vs. Raj Kumar Mehta & Ors.2011 (3) JCC (Narcotics) 156.
46. Since the above statement Ex. PW1/H of the accused was recorded prior to her formal arrest in this case, the same is admissible and can be considered in evidence and the same can even be made the basis of conviction of an accused, if it is found to be made voluntarily. In the above statement, the accused has disclosed many of her personal and family details and also as to how she was induced into the business of delivery of narcotic drugs by one George and her all expenses of travelling and stay to Vietnam, prior to coming India on 26.09.2008, and even the expenses of her present trip to India were borne by the above Mr. George. She has also stated specifically that the above zipper strolley bag, containing the above concealed packet of heroin, was handed over to her by one lady named Lucky in her hotel in New Delhi and the same was to be taken by her to Vietnam and delivered to some person there, as per the instructions of the above George. She has further admitted therein her interception by the DRI officers at the airport, the entire proceedings of search and seizure etc of the above bag and contraband substance conducted at the SC No:27A/09 DRI Vs. Annabelle Analista Malibago 35 airport premises and has further stated that she admits her mistake of carrying the said bag containing heroin from Delhi to Vietnam.
47. The above statement of the accused was partly recorded on 15.10.2008 and then after taking some rest, she had resumed and concluded it on 16.10.2008 and the same is also found to be recorded in her own handwriting. No argument is raised on behalf of the accused that the personal and family details of the accused recorded therein are false and the above details could never have been known to the DRI officers, though it has been claimed by her that she did not know the above persons like George, Lucky etc named in her above statement. She has also specifically admitted in her statement U/s 313 Cr.P.C. that prior to the above passport Ex. PW1/J seized in this case, she was possessing one other passport, as also stated by her in her above statement Ex. PW1/H, and she had earlier visited China on her old passport and also to Vietnam on her new passport, as stated in her above statement. She has also not even whispered a single word as to in what connection and for what purposes she had visited the above countries and had also visited India and there is also no specific denial by her of the facts that all the expenses of her travelling and stay etc were being borne by the above George. Even no defence evidence was sought to be led by her on record as to for what purpose the accused had visited India or as to how and who had SC No:27A/09 DRI Vs. Annabelle Analista Malibago 36 funded her above visit. Rather, the depositions made by the three witnesses of the above travel companies/firms, i.e. PW10 Sh H. K. Midha, PW11 Sh Tarun Raj and PW13 Sh Trilok Chand, and especially the depositions made by PW13, establish on record that the above travel ticket of the accused from Delhi to Hyderabad was not purchased by the accused herself and the same was booked by some black/South African person. The accused in her above statement U/s 313 Cr.P.C. has even not cleared as to who had booked her above flight ticket or tickets of her journey from Vietnam to India and India to Vietnam, Via Hyderabad and Bangkok, as is clear from the oral testimony and the records produced by PW14 Sh Nand Kishore Pandey of the Thai Airways.
48. Though, one retraction application of the accused dated 18.11.2008 giving the next date of hearing of the case as 20.11.2008 is a part of the judicial record, but it is not clear as to whether the same was filed by the accused in the court on 20.11.2008 or not, which was one of the dates of appearance of the accused in this court during the remand proceedings, as there is no mentioned thereof in the order of the court of that date passed on the application of the prosecution seeking the extension of the judicial remand of the accused. However, one reply of the prosecution dated 01.04.2009 of the above retraction application is also a part of the judicial record.
SC No:27A/09 DRI Vs. Annabelle Analista Malibago 37
49. In the above retraction application, the accused had claimed that she had come to India as a tourist and was caught by the DRI officers from the Domestic Airport on 15.10.2008 when she was on her way to Hyderabad. She has claimed that she was taken to the DRI office where she was forced to write a statement and since she was confused and scared, she had written whatever they wanted to write and she could not understand the same as her mind was disturbed and she was not in a good state of mind and her above statement was taken under threats. She has also claimed that she had given one statement on her own and as to how her arrest was made, but the above statement was torn and thrown away and she was forced to write another dictated statement.
50. A bare perusal of her above statement and the manner in which the same has been written is a clear indication of the fact that the same was written by the accused on some legal advice subsequently tendered to her by her advocate or some senior inmate of the jail. She is even not sure as to whether she had written her previous statement Ex. PW1/H on the dictation of the DRI officers and under threats extended to her or the same was written by her as she was confused, scared and of uncertain mind. She even does not appear to be serious or was either ignorant regarding the presence of her above retraction application/statement as she had not even referred to the same while recording of her SC No:27A/09 DRI Vs. Annabelle Analista Malibago 38 statement U/s 313 Cr.P.C. by this court, though she had claimed that her statement Ex. PW1/H was not a voluntary statement and she was made to write the above dictated statement, after one other statement written by her was torn by the DRI officers. The above retraction application/statement, even from the date given on the said statement, was filed/made by the accused after more than one month from the date of tendering of her previous statement Ex. PW1/H and the same was not made or tendered by her in this court at the earliest possible opportunity as even prior to 20.11.2008, the accused was produced before this court on few occasions. The vague claims and allegations made by the accused in her above retraction application regarding forcing her to write the above dictated statement were duly denied by the DRI in their above reply and the totality of the facts and circumstances brought on record during the trial nowhere suggest that the above statement Ex. PW1/H of the accused was not a voluntary statement of her or was a statement she was forced to write by the DRI officers. The absence of any fresh external injuries on her person at the time of her examination vide MLC Ex. PW15-A/A proved on record by PW15 Dr. Meenakshi Kamal also rules out the extension of any physical torture to her for extracting any confessional statement from her.
51. Therefore, the above statement Ex. PW1/H made by the accused U/s 67 of the NDPS Act is held to be her voluntary statement and the same duly corroborates the SC No:27A/09 DRI Vs. Annabelle Analista Malibago 39 case of the prosecution not only on the aspect of recovery of the above contraband substance from the possession of the accused, but also on the aspect that the possession of the above substance by the accused was a conscious possession. Moreover, the above statement of the accused is not the only evidence available to this court to establish the guilt of the accused and the same is only a corroborative evidence of the other oral and documentary evidence led on record by the prosecution for establishing its case against the accused for possessing the above contraband substance and being conscious of its possession.
52. Again, besides the above, there are also the legal presumptions U/s 35 and 54 of the NDPS Act which operate against the accused. Section 35 of the NDPS Act deals with the culpable mental state of an accused in a prosecution under the NDPS Act and it prescribes that in any offence under this Act which requires such a culpable mental state of the accused, the court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Section 54 of the NDPS Act also lays down that in trials under this Act, it may be presumed, until and unless the contrary is proved, that the accused has committed an offence under this Act in respect of any narcotic drug or psychotropic substance etc, for the possession of which he fails to SC No:27A/09 DRI Vs. Annabelle Analista Malibago 40 account satisfactorily.
53. A combined effect of the above two provisions is that if an accused is found to be in possession of any contraband substance, then the court shall presume that he has committed an offence under the above said Act pertaining to the said substance, unless and until the contrary is proved, if he fails to account satisfactorily for the said possession. Further, if a criminal mental state of the accused is required to be established for the said offence, then the court shall also presume that the accused had that criminal mental state and it shall only be a defence of the accused to prove that he had no such mental state.
54. In the instant case, since the accused has been held to have been found in physical possession of the above contraband substance, she is presumed to be having the criminal mental state to possess the above contraband substance and to have committed an offence regarding the same and the burden lies upon the accused to prove the absence of the above criminal mental state or to account for her possession of the above contraband substance. However, the accused is found to have failed to discharge the above burden as nothing has been brought on record to establish that she was not aware regarding the presence of the above contraband substance in her above bag.
55. While, dealing with the concept of 'conscious SC No:27A/09 DRI Vs. Annabelle Analista Malibago 41 possession' the Hon'ble Supreme Court in the case of Madan Lal & Another Vs State of H.P. : (2003) 7 SCC 465 has held as under:-
"26. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
56. Further, the Hon'ble the Apex Court in case of Dharampal Singh Vs State of Punjab : 2010 (10) SCALE has also held as under:-
"From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act given statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to account for satisfactorily the possession of opium. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence."
57. One other vehement contention of Ld defence counsel is that the sealed parcels of the case property SC No:27A/09 DRI Vs. Annabelle Analista Malibago 42 and sample parcels of this case had not remained safe and intact throughout and the same were tampered with and the possibility of such tampering thereof cannot be ruled out from the evidence led on record. It is also argued that though according to the depositions made by the IO/PW1 and PW4, the above parcels of case property and samples, alongwith the test memos, were handed over for safe custody to PW4 by the IO/PW1 after the seizure, but there is no documentary evidence to substantiate this fact as neither any memo in this regard had been prepared nor this fact is found to be recorded in the panchnama Ex. PW1/C or any other document on record.
58. In this regard, it is observed that there are consistent and corroborative depositions made by both the above witnesses that after the conclusion of the panchnama proceedings and the arrival of the raiding team of DRI back in their office, the above sealed parcels of case property and samples, alongwith the test memos, were handed over by the IO/PW1 to PW4 for safe custody and PW4 has also stated specifically that he had kept the same in lock and key and all this had happened on the day of seizure itself, i.e. 15.10.2008. PW4 has also stated specifically that on 16.10.2008, he had handed over one sealed sample parcel of this case, alongwith the duplicate test memo, to Sh K. P. Singh/PW5 for depositing the same with the CRCL, vide forwarding letter Ex. PW4/E, and after deposit, PW5 had handed over back the acknowledgement thereof to him, which he SC No:27A/09 DRI Vs. Annabelle Analista Malibago 43 further handed over to the IO/PW1. He has further stated specifically that on the same day, i.e. 16.10.2008, he had also handed over the sealed parcels of the case property to the IO/PW1 Ms. Anju Singh herself for depositing the same in the Valuable Godown and he had also countersigned the deposit memo Ex. PW1/N (wrongly typed as Ex. PW1/M in the statement of PW4) in this regard.
59. The depositions of PW4 regarding the deposit of the case property in the Valuable Godown on that day are also duly corroborated by the depositions of the IO/PW1 as well as PW6 Sh D. B. Sharma, who was working as In- charge of the above Valuable Godown. PW6 has also duly proved on record the relevant entry of the Valuable Godown register as Ex. PW6/A and his endorsement made on the above deposit memo regarding the safe receiving of the case property and has further stated specifically that the seals affixed on the parcels of the case property were found to be in intact condition. Even, PW5 Sh K. P. Singh corroborates the safe deposit of the above sample parcel and test memos with the CRCL on the same day and the acknowledgement of the CRCL in this regard is also Ex. PW5/A, which further stands proved on record from the depositions made by PW9 Sh Bhuvan Ram, who had received the above parcels and had issued the above acknowledgement receipt. He has also stated specifically that at the time of receiving of the above sample parcel, he had checked the seals thereof and had SC No:27A/09 DRI Vs. Annabelle Analista Malibago 44 found the same in intact condition.
60. Further, all the parcels of the case property, remnant sample as well as of the other sample were also found to be in intact condition and even the paper slips pasted on the said parcels were found to be intact and not tampered with when the same were produced in the court for the first time for identification during the testimony of the IO/PW1 and no discrepancy in any parcel of the case property or samples was pointed out by Ld defence counsel or noted down by the court. The oral testimony of the above witnesses is duly corroborated by the documents prepared or proved by them and the same clearly rule out the tampering of any of the parcels or the possibility thereof at any stage of the investigation or subsequently. Hence, simply because no document was prepared for placing the case property under the safe custody of PW4, it cannot be made a ground to draw any such inference of tampering of the case property, as argued, as no such inference is to be gathered or warranted from the record. Similarly, the non handing over of the above seal of DRI to any of the independent witnesses is also not a ground to draw any such inference of tampering. Reference can also be made to the judgment in case Siddiqua Vs NCB :2007 (1) JCC (Narcotics) 22 on the above aspects.
61. The accused is a foreign National and hence, there was no question of any enmity between her or any SC No:27A/09 DRI Vs. Annabelle Analista Malibago 45 of the DRI officers so as to falsely implicate her in this case. There is also no claim made on behalf of the accused that she was having any inimical terms with any of the DRI officers or was even acquainted with to any of them. In the absence of that, there was no question of the false implication of the accused by the DRI officers in this case, after picking her up from the premises of the above airport in full public view. The seizure of the above heroin of this case was effected on 15.10.2008, i.e. prior to the issuance of notification No. S.O.2941(E) dated 18.11.2009 of the Government of India, Ministry of Finance, which requires that the whole quantity of the mixture of the substance is to be considered and not just its purity or pure contents. As per the test report Ex. PW7/A of the CRCL, the percentage of diacetylmorphine found in one of the two samples drawn out of the above heroin was given as 35.6% and even going by the above purity/percentage, the weight of the above recovered heroin weighing 1.240 kgs comes to around 440 gms and the same is still a commercial quantity as under the NDPS Act as only 250 gms of heroin is prescribed as a commercial quantity of the said substance under the above said Act.
62. Therefore, in view of the above discussion, it is held that the evidence led by the prosecution on record is sufficient to prove the charge for the offence punishable U/s 21(c) of the NDPS Act as framed against the accused, with regard to the possession of the above SC No:27A/09 DRI Vs. Annabelle Analista Malibago 46 heroin, and the accused is held guilty and convicted for the above said offence. Let she be now heard on the quantum of sentence.
Announced in the open
court on 19.03.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No:27A/09 DRI Vs. Annabelle Analista Malibago
47
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT SAKET COURT COMPLEX, NEW DELHI Directorate of Revenue Intelligence Delhi Zonal Unit, New Delhi Through Ms Anju Singh, Intelligence Officer V E R S U S Ms. Annabelle Analista Malibago D/o Mr. Pythias Analista R/o Linek Kiamba Sarangani Province, Mindanso, Philippines Presently lodged in Central Jail Tihar, New Delhi.
SC No.: 27A/09 U/S : 21 NDPS Act Computer ID No:02403R0117532009 ORDER ON SENTENCE Present: Ms. Mala Sharma, SPP for DRI.
Convict in JC with Sh. B. Mishra, Advocate on behalf of Sh. R. K. Thakur, Advocate.
After having convicted the accused for the offence punishable U/S 21(c) of the NDPS Act vide my judgment dated 19.03.2014, arguments have been heard today as advanced from both the sides on the point of sentence to be awarded to the convict. The submissions SC No:27A/09 DRI Vs. Annabelle Analista Malibago 48 made by the convict herself have also been heard and considered.
2. The offence punishable U/S 21(c) of the NDPS Act carries a minimum term of rigorous imprisonment for a period of 10 years extending up to 20 years and also a fine of not less than Rs. 1 Lac and extending up to Rs. 2 Lac.
3. It has been submitted on behalf of the prosecution that the maximum terms of imprisonment and fine be awarded to the convict and she does not deserve any leniency from this court as she has been found guilty of possessing a commercial quantity of heroin.
4. On the other hand, it has been submitted on behalf of the convict that a lenient view be taken in the matter and the minimum sentence of imprisonment and fine be awarded to her. It is submitted by the convict that she is aged about 40 years and is having the responsibility of two daughters aged around 21 and 16 years and one son aged around 15 years, who all are residing with her parents in her native country Philippines as she had already separated from her husband. It is also submitted that she is a female and is not having any other involvement in any criminal matter and she has already undergone a custody of around 5 years and 5 months in this case.
SC No:27A/09 DRI Vs. Annabelle Analista Malibago 49
5. I have thoughtfully considered the above submissions being advanced on the point of sentence. As per the case of the prosecution and the evidence led on record, the convict was being used only as a carrier of the contraband substance and she herself is not alleged to be running any drug racket and was only working for some other persons to deliver the drugs, as per their instructions and for some petty monetary considerations.
6. Therefore, keeping in view the totality of the facts and circumstance, the convict is being awarded the minimum sentence of rigorous imprisonment for a period of 10 years and a fine of Rs. 1 lac for the above said offence. In case of non payment of fine, she shall further undergo simple imprisonment for a period of one month only. The period of custody already undergone by her is allowed to be set off in terms of the provisions of Section 428 Cr.P.C. Fine has not been paid. Let her to undergo the above sentence as per law and since she is a National of Philippines, after completing the sentence, the convict be deported back to her native country as per law.
7. A copy of the judgment and the order on sentence be supplied to the convict free of costs.
8. The case property be also confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the SC No:27A/09 DRI Vs. Annabelle Analista Malibago 50 outcome of any appeal to be filed against this judgment and the order on sentence and the orders of the appellate court, as the case may be.
Announced in the open
court on 26.03.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No:27A/09 DRI Vs. Annabelle Analista Malibago