Delhi District Court
Sc No.63/12 Fir No.212/12 State vs . John Onwudiwe & Anr. Dtd: 21.07.2014 ... on 21 July, 2014
1
In the Court of Dig Vinay Singh : Additional Sessions Judge
Spl. Judge : NDPS (NW) : Rohini Courts : Delhi
In the matter of:
SC No. : 63/12
FIR No. : 212/12
PS : Crime Branch
U/s. : 21(b) NDPS Act, 1985
& 14 Foreigner's Act, 1946
State
Versus
1) John Onwudiwe
S/o Amaechi
R/o No.1, Abayomi Street,
Ikotu, Lagos, Nigeria.
2) Felex Chinedu
S/o Sunday
R/o Onicha, Lagos, Nigeria.
Date of receipt : 16.10.2012
Date of arguments : 04.07.2014
Date of announcement : 21.07.2014
JUDGMENT
1. The above named two accused were sent for trial with the case of prosecution that on 22.08.2012 at about 9.15 PM, based on prior secret information, the two accused were apprehended at T-Point, Banda Bahadur Marg Road, near MIG Flats, Mukherjee Nagar, Delhi. At the time of their apprehension, accused John was found in possession of 45 grams of „cocaine‟, and accused Felex was found in possession of 20 grams of „cocaine‟. During investigation, it was also revealed that accused Felex was staying in India without any valid document of his stay. Investigating SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 1 of 31 2 agency claims to have complied with Sections 42, 50 and 57 of NDPS Act. From the recovered contraband, samples were drawn and were sent to FSL. The FSL authorities also confirmed the substance to be „cocaine‟. On completion of investigation, charge sheet was filed.
2. Accordingly, both the accused were charged U/s. 21(b) of NDPS Act, 1985. In addition, accused Felex was charged for offence U/s.14 of the Foreigner's Act, 1946 also. Both the accused pleaded not guilty and claimed trial.
3. In support of its case, prosecution examined total 10 witnesses. Out of the 10 witnesses examined by the prosecution, PW7 HC Kanwar Pal, PW8 ASI Ajmer Singh and PW9 Ct. Atul are the recovery witnesses qua recovery of contraband from the two accused. Out of them, ASI Ajmer Singh was the initial Investigating Officer. PW10 SI Sunil Kumar is the subsequent Investigating Officer who reached the spot after registration of the FIR. Other witnesses are more or less formal in nature. 3.1 PW1 HC Jag Narain was the Malkhana Moharrar who deposed regarding deposition of the case property in the Malkhana in sealed condition with FSL forms on the night intervening 22 and 23 August, 2012. The witness also deposed about sending of the sample parcels to the FSL on 27.08.2012, through Ct. Neeraj, along with the FSL form. The witness proved the entries in the Malkhana register Ex. PW1/A, PW1/B, PW1/C, PW1/D and he also proved the road certificate Ex. PW1/C1 and the acknowledgment receipt Ex. PW1/C2.
3.2 PW2 HC Neeraj was the carrier of the sample, from the Malkhana to the FSL authorities, along with the FSL form.
3.3 PW3 Inspt. Palvinder Singh Chahal was the SHO of PS Crime Branch, Malviya Nagar, before whom the case property contraband, sealed inside SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 2 of 31 3 six parcels with the seal of AS was produced by Ct. Atul along with FSL forms and carbon copies of seizure memos. The witness applied his seal of PS on the parcels and the FSL forms and then deposited them in the Malkhana. The witness also proved DD No.3 regarding deposition of case property, as Ex. PW3/A. 3.4 PW4 HC Jaipal Singh was the Duty Officer who registered the FIR Ex.
PW4/A and also made endorsement on rukka Ex. PW4/B. This witness proved DD No.2 & 4 regarding commencement and conclusion of FIR as Ex. PW4/C & D. 3.5 PW5 Inspt. Rajesh proved that on the date of incident secret informer was produced before him by ASI Ajmer at 7.15 PM and on being satisfied with the information he informed the Addl. DCP and then on the instructions of Addl. DCP, raiding party was constituted for apprehension of the two accused. The witness also proved that in compliance of Section 42 of NDPS Act, a copy of DD No.30, in which secret information was reduced into writing, was furnished before him by ASI Ajmer Singh within the stipulated period, which he signed and forwarded to the Addl. DCP. The witness also proved similar receipt and forwarding of the two reports U/s.57 of NDPS Act by ASI Ajmer Singh and ASI Sunil Kumar respectively. Those reports are proved as Ex. PW5/A, B & C. The two accused were also produced before this witness after their apprehension. 3.6 PW6 ASI Subhash Chand is an official from the concerned office of Addl.
DCP, who proved receipt of reports U/s.42 of NDPS Act Ex. PW5/A, and receipt of the two reports U/s.57 of NDPS Act Ex. PW5/B & C, in the office of Addl. DCP, within the stipulated period, vide entries Ex. PW6/A & B. He also deposed that the reports were produced before the Addl. DCP who saw and signed the reports in his presence.
SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 3 of 31 4 3.7 The recovery witnesses, PW7, 8 & 9, deposed that on the date of incident, after receipt of secret information by ASI Ajmer, they reached the spot under DD No.31 in two different private vehicles along with other members of the raiding team vis. SI Shiv Darshan, ASI Hari Charan Singh, HC Ajay Singh, Ct. Suresh and the secret informer. They took along IO bag, field testing kit and the electronic weighing machine. Before reaching the spot, certain public persons were requested to become witness but none agreed. At the spot also, certain public persons were requested but they also did not agree. At 9 PM, after the raiding team took position, accused Felex was noticed when he came to the spot and stood there while waiting for somebody. After 10 minutes, second accused John also came there, and he was carrying one bag. Both accused spoke to each other and then accused John handed over some article from inside his bag to accused Felex. Accused Felex kept that article inside his right side pocket of pants. Both accused were then apprehended. They were informed about their legal right U/s.50 of NDPS Act and, written notices were served upon both of them vis. Ex. PW7/C & D. The two accused refused to exercise their legal rights. Thereafter, they were searched. On the search of accused John, inside his bag, besides his clothes, one white colour polythene containing „cocaine‟ was found, which on measurement turned out to be 45 grams in weight. From search of Felex, 20 grams of „cocaine‟ was recovered from his right side pocket of pants, inside a polythene. From both the contrabands, 2-2 samples each of 2-2 grams each were separated. The sample parcels and the main parcels were separately sealed with the seal of AS. FSL forms were separately filled up qua the two recoveries, and the contraband was seized vide memo Ex. PW7/A and B. Thereafter, rukka SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 4 of 31 5 was prepared and it was handed over to Ct. Atul for being taken to PS Crime Branch for registration of FIR. Besides the rukka, the sealed parcels, both the FSL forms and carbon copies of both the seizure memos were also given to the Ct. Atul to be taken to the Police Station and to be given to the SHO.
3.8 It is deposed by Ct. Atul that he took those documents and articles and handed them over to the SHO of the Police Station.
3.9 ASI Ajmer also deposed that prior to it, the secret informer had come to his office at 7 PM and informed him about the accused and then he produced the secret informer before Inspt. Rajesh and then the secret information was reduced to writing under DD No.30 Ex. PW5/A & PW8/A and a copy of DD was sent to senior police officials in compliance of Section 42 of NDPS Act.
3.10 It is deposed by PW7, 8 & 10 that when the subsequent IO PW10 SI Sunil reached the spot, he interrogated both the accused and arrested them formally. Personal search of both the accused was conducted in which the notices U/s.50 NDPS Act were recovered besides other articles. Thereafter, the two accused were taken to the PS Crime Branch Malviya Nagar and thereafter to the SIT, Crime Branch, Rohini. 3.11 ASI Ajmer and SI Sunil also proved their respective reports U/s.57 of NDPS Act.
3.12 The FSL result is proved in the matter as Ex. PW10/D. 4 On completion of the prosecution evidence, the statement of the two accused were recorded U/s.313 Cr.P.C., in which all the incriminating evidence were put to the two accused. The two accused generally denied the evidence against them.
4.1 Accused John claimed that he did not even know accused Felex prior to SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 5 of 31 6 his implication in this case. He claimed that his signatures were obtained by the police officers on blank papers and he was compelled to write something in his own handwriting by the police. He denied having received any notice U/s.50 of NDPS Act from the police. He denied that any contraband was recovered from him. He claimed that he was apprehended from outside McDonald Restaurant, Nehru Place, Delhi and despite the fact that he had all valid documents of his stay, he was implicated in this case and the case property was planted upon him. 4.2 Similarly, accused Felex also generally denied the evidence against him and claimed that nothing was recovered from his possession. He also claimed that he has been implicated falsely in this case after having been picked up from South City Mall, Saket on 21.08.2012. Even he claimed that he did not know accused John prior to his implication in the present case.
4.3 Accused John opted to not lead any defence evidence, whereas, accused Felex initially opted to lead evidence, but subsequently without examining any witness on his behalf, he closed his defence evidence on 18.01.2014. 5 I have heard Ld. Amicus Curiae for accused John and I have perused the written submissions filed on behalf of accused Felex, which are also relied upon by the counsel for accused John. I have also heard Ld. Prosecutor for the State.
6 On behalf of the two accused, the first contention raised is that there is non-compliance of Section 42 of NDPS Act. It is argued that ASI Ajmer, on receipt of the secret information, did not reduce it to writing immediately, but he spoke to his senior officer and only thereafter he claims to have lodged the DD entry no.30.
6.1 Reliance is placed by the accused on the case of Peeraswami Vs. State SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 6 of 31 7 NCT of Delhi : 2007 (2) JCC (Narcotics) 80. The said case is distinguishable and is not applicable to the facts of the present case. In that case, admittedly, copy of information was not sent to the senior officers in compliance of Section 42 of NDPS Act and only oral information was given and subsequently report Section 57 of NDPS Act was only given.
6.2 Whereas in the present case, it has come on record that a copy of DD No.30 was given to Inspt. Rajesh PW5 who signed and forwarded it to the Addl. DCP. PW6 from the office of Addl. DCP also proved that a copy of DD No.30 was received in the office of Addl. DCP on 22.08.2012 i.e. within 72 hours of the secret information being reduced to writing. The said copy of DD No.30 was put up before the Addl. DCP who saw and signed the same. Law does not require that a person who receives secret information must first note down that information even before taking next breath or that then only he can take any further proceedings. Law nowhere requires that ASI Ajmer ought to have first noted down the secret information and then only should have told Inspt. Rajesh about it. What law require is that such information should be reduced to writing and if reduced to writing then copy of it must be sent to the senior police officers within 72 hours. In the present case after receiving the secret information and after apprising about that secret information to senior officers orally, ASI Ajmer noted it down. The said act of reducing the information into writing was done within half an hour of receipt of information and well before the time when the raiding team went to the spot. Its copy was sent to Addl. DCP within the stipulated period. It is sufficient compliance of Section 42 of NDPS Act. The first contention of the two accused is, thus, rejected.
SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 7 of 31 8 7 It is next argued on behalf of the accused that there is non-compliance of Section 50 of NDPS Act in the present matter, and reliance in this regard is placed upon the cases of Vinod Vs. State of Maharashtra : 2003 (3) RCR (Crl.) 243; Vijaysinh Chandubha Jadeja Vs. State of Gujarat :
(2011) 1 SCC (Cri) 497; Geeta Vs. State (Delhi Admn.) : 38 (1989) DLT 76 and, the case of Maher Mohd. Rafiq Vs. State : 1995 JCC 506.
7.1 In the present matter, alleged recovery of contraband from accused John is from inside a bag which he was carrying and the recovery of contraband from Felex is claimed to have been effected from inside packet of his pants. Thus, so far as accused Felex is concerned, there is no doubt that Section 50 of NDPS Act clearly applied and should have been strictly followed. So far as the accused John is concerned, although recovery of contraband was effected from a bag carried by him, yet the investigating agency chose to serve notice U/s.50 of NDPS Act upon him also.
7.2 Recently, in the case of Rakesh @ Shankar Vs. State, decided by Hon'ble High Court on 8.1.2014, in Criminal Appeal no. 663/2010, the facts were that the accused of that case got down from a bus and he was carrying a box on his shoulder. From the said box, allegedly 21 Kg of Ganja was recovered after compliance of Sec. 50 of NDPS Act. The accused of that case was convicted by the Ld. Trial Court. In the Hon'ble High Court, the only contention raised by the accused was non- compliance of Sec. 50 of NDPS Act. Accepting the said contention, the conviction of the accused was set aside, and Hon'ble Delhi High Court relying upon the cases of State of Delhi Vs. Ramavtar @ Rama 2011 (7) SCALE 428; the case of State of Punjab Vs. Baldev Singh (1994) 3 SCC 299; the case of Mantoon Kumar Vs. State Criminal Appeal no.
SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 8 of 31 9 174 of 2005 and decided on 3.12.2013 and; the case of Gurjant Singh @ Janta Vs. State of Punjab 2013 (13) SCALE 295, held that non- compliance of Sec. 50 of NDPS Act even in a case where recovery is affected from a trunk, after the investigating agency chooses to give such notice, would be fatal. The contention of prosecution that Sec. 50 NDPS Act was not required to be given before searching the trunk of that case was rejected by Hon'ble High Court and following observations were made in para no. 8, 9, 10 & 11 of the judgment :-
8. It is contended by the learned APP for the State that since no notice under Section 50 of the Act was required to be given before searching the trunk being carried by the appellant, the defect in the notice given to him would not render the recovery illegal. His contention in other words is that if the recovery, without giving notice under Section 50 of the Act is legal, any defect in the notice cannot render the recovery to be illegal. In Gurjant Singh @ Janta versus State of Punjab [2013 (13) Scale 295], the case of the prosecution was that some police officers were present at T-
Point in the area of Village Ugrahan in connection with Nakabandi when a tractor trolley was got stopped and was checked. Three gunny bags were found lying inside the trolley. The police officer informed the appellant before the Apex Court that he intended to search the gunny bags as he suspected some incriminating article in the said gunny bags. He further informed that if he so desired the search could be conducted in the presence of a Gazetted Officer or a Magistrate. This was also the case of the prosecution that the appellant before the Apex Court expressed his consent that the search could be conducted in the presence of some Gazetted officer or a Magistrate. After recording statement of the appellant and getting it signed from him, one DSP was SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 9 of 31 10 called to the spot. The gunny bags were then searched and poppy husk was found in them. It was urged before the Trial Court that there was violation of Section 42 and 50 of the Act in as many as search was not conducted in presence of a Gazetted Officer or a Magistrate since the DSP, who came to the spot was not a regularly promoted DSP, but was only an Inspector in the category of Own Rank Pay (ORP) and, therefore, could not be a Gazetted Officer. The Trial Court took the view that there was no necessity to comply with Section 50 of the Act and, therefore, did not go into the question as to whether PW-3 was competent in terms of Section 50 of the Act or not. The High Court having agreed with the Trial Court, the appellant approached the Apex Court. It was held by the Apex Court that reliance upon Baldev Singh (supra) was wholly misplaced since the principle laid down in the said case postulates a situation where a police officer in the normal course of investigation of an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and in the course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substance, the question of invoking Section 50 would not arise. It was observed that in the absence of any prior information as to possession of any narcotic drug and psychotropic substance, a police officer might have held a search in the course of discharge of his duties as contemplated under the provisions of Code of Criminal Procedure and, therefore, it would be impossible to state that even under such a situation, the application of Section 50 would get attracted. The Apex Court noted that PW-6 having noticed that the three gunny bags lying in the tractor of the appellant took the view that before effecting search of gunny bags the necessity of affording SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 10 of 31 11 an opportunity to the appellant to conduct the search in the presence of the Gazetted Officer or a Magistrate was imperative and, therefore, such search had to be necessarily conducted in accordance with the provisions of Section 50 of the Act. It was held that in these circumstances, the conclusion of the Trial Court holding that Section 42 and 50 were not applicable was a total misunderstanding of the legal provisions and in light of the notice placed before it and consequently the conclusion arrived at for convicting the appellant was wholly unjustified.
During the course of judgment, the Apex Court highlighted the importance of notice under Section 50 of the Act and held as under:-
"It will have to be stated that such compliance of the requirement under Section50 of holding of a search and seizure in the presence of Gazetted officer or a Magistrate, cannot be an empty formality. In other words, the offer to the person to be searched in the presence of a Gazetted officer or a Magistrate, should really serve the purpose of ensuring that there was every bona fide effort taken by the prosecution to bring forth the grave offence of possession of narcotic substance and proceed against the person by way of prosecution and thereby establish the truth before the appropriate judicial forum. In the same breath such a course of compliance of Section 50 would also enable the person accused of such a grave offence to be convinced that the presence of such an independent Gazetted officer or a Magistrate would also enable the person proceeded against to demonstrate that there was no necessity for holding any search on him and thereby persuade the concerned Gazetted officer or Magistrate to protect his fundamental right of freedom, from being unlawfully proceeded against. In other words, the purpose of Section 50 SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 11 of 31 12 was to ensure that on the one hand, the holding of a search and seizure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police authorities, while on the other hand to prevent an accused from committing an offence of a serious nature against the society, warranting appropriate criminal proceedings to be launched and in the event of establishing such offence, conviction and sentence to be imposed in accordance with law. Therefore, such a dual requirement of law prescribed under Section 50cannot be dealt with lightly by the Courts dealing with the trial of such offences brought before it."
..................
10 The facts of this case are identical to the facts in Gurjant Singh @ Janta (supra). In Gurjant Singh @ Janta (supra) the police officers were present at the „T‟ Point in connection with nakabandi, whereas in the case before this Court the police officers were present at the bus stand for the purpose of checking the buses passing from there. In Gurjant Singh @ Janta (supra), the case of the prosecution was that poppy was found in gunny bags lying in the tractor being driven by the appellant. In the case before this Court, the case of the prosecution is that he was carrying the bag containing ganja on his shoulders. In view of the binding decision of the Apex Court in Gurjant Singh @ Janta (supra) it must necessarily be held that since the Investigating Officer of the case before this Court chose to give a notice under Section 50 of the Act to the appellant before searching the bag being carried by him on his shoulder, the said notice should have conformed to the requirement of Section 50 of the Act and if the notice did not conform to the said requirement, the recovery of ganja from him would be per se illegal.
SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 12 of 31 13
11. It is quite clear from a perusal of the notice Ex.PW1/A that the appellant was not informed that he had a legal right to the effect that the bag being carried by him could be searched in the presence of a Magistrate or a Gazetted Officer. The appellant was only informed that if he so desired he and the bag being carried by him could be searched in the presence of a Magistrate or a Gazetted Officer. This intimation would not amount to conveying to the appellant that he had a legal right to be searched in the presence of a Magistrate or a Gazetted Officer. It is quite possible that had the appellant been informed of such a legal right being available to him he would have chosen to exercise that right instead of allowing the police officers to search him. Since the aforesaid notice Ex.PW1/A does not meet the strict requirement of Section 50 of the Act, the recovery pursuant to the said notice cannot be said to be legal." 7.3 Since, the notice of that case did not meet the strict requirements of Sec.
50 of NDPS Act, the recovery was held to be illegal and the accused of that case was acquitted by Hon'ble Delhi High Court. 7.4 Thus, Section 50 of NDPS Act ought to have been complied with in the present matter in its true sense. The three recovery witnesses PW7, PW8 & PW9 have faltered on the point of compliance of Section 50 of NDPS Act. PW9 Ct. Atul, in his cross-examination, admitted that notice U/s.50 of NDPS Act was prepared after recovery of bag and the Theli containing contraband from the two accused. He also deposed that investigating officer took cursory search of accused Felex immediately after he was brought near them and that Theli was found from his bag. It may be reminded that accused Felex tried to flee from the spot but was apprehended by HC Kanwar Pal and was brought to the place where other raiding team members were standing. Deposition of PW9 Ct. Atul SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 13 of 31 14 reveals that the claim of compliance of Section 50 of NDPS Act by the prosecution is farce in this case. Even otherwise in their examination in chief, PW7 HC Kanwar Pal, PW8 ASI Ajmer (who was the investigating officer) and PW9 Ct. Atul, did not specifically depose that the two accused were specifically informed, that they had legal right to be searched in presence of a Gazetted officer or a Magistrate.
7.5 HC Kanwar Pal in this regard deposed that the accused were informed about the secret information received against them and then they were told that they can take search of police team members and their vehicle before their search was taken, and thereafter the two notices were prepared and delivered to the two accused and the two accused refused to exercise their rights. It is only in the leading question put by the prosecutor, this witness admitted that ASI Ajmer told the two accused that they have legal rights to be searched in presence of those officers. 7.6 Similarly, PW8 ASI Ajmer, who is none other than the investigating officer, in his examination in chief deposed that he told the two accused about the information and that the contraband was likely to be recovered from them, thereafter, he prepared notices and then he told the two accused that they can get themselves searched in presence of Gazetted officer or Magistrate and regarding it mention was made in the notice. This witness did not depose that the accused were informed specifically that those were their legal rights. Though this witness deposed that the accused were also told that they can take search of the police team members and their vehicles which was their legal right, but the witnesses did not depose that the accused were also told that they can offer their search before those officers and it was their legal right.
7.7 Similarly, PW9 Ct. Atul deposed that after introduction of the raiding team SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 14 of 31 15 members, the accused were told about the information and likelihood of recovery of contraband and that their search could be conducted before Gazetted officer or Magistrate. Even this witness did not depose that accused persons were categorically informed that getting themselves searched in presence of Gazetted officer or Magistrate was legal right of the two accused and that the two accused were specifically informed that it was their legal right.
7.8 These facts create more than reasonable doubt about true compliance of Section 50 of NDPS Act.
7.9 Compliance of Section 50 of NDPS Act is also doubtful from another important circumstance. After the two accused were allegedly given notices, they allegedly refused to get themselves searched in presence of Gazetted officer or Magistrate, which refusal was written on the legal notices and signed by the two accused. It is deposed by PW7 & PW8 that the refusal was not dictated to the two accused. Thereby meaning that both the accused noted their separate refusals. Strangely, both the refusals of the two accused on their separate notices, are verbatim same. If the refusal was not dictated or copied, the five line refusal of the two accused could not have been word by word same. The fact that both the refusals are word by word same, leads to inference that either it was copied by the two accused from one another or it was dictated by someone. PW9 Ct. Atul in his cross-examination admitted that the refusal was dictated by the IO to the two accused. In both the circumstances, the existence of word by word same refusal creates a reasonable suspicion about the free volition of the two accused in giving the above refusal. 7.10 Even otherwise, giving the notices after recovery of contraband, as admitted by Ct. Atul, renders the entire recovery as illegal and vitiates the SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 15 of 31 16 entire trial.
7.11 Recently, in the case of Kishan Chand v. State of Haryana, (2013) 2 SCC 502 , Supreme Court held as follows;
"19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in Karnail Singh [(2009)
8 SCC 539 : (2009) 3 SCC (Cri) 887] carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds.
20. While dealing with the requirement of complying with the provisions of Section 50 of the Act and keeping in mind its mandatory nature, a Bench of this Court held that there is need for exact compliance without any attribute to the element of prejudice where there is an admitted or apparent non-compliance. The Court in State of Delhi v.Ram Avtar [(2011) 12 SCC 207 : (2012) 1 SCC (Cri) 385] held as under: (SCC pp. 216-17, paras 26-27) "26. The High Court while relying upon the judgment of this Court in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and rejecting the theory of substantial compliance, which had been suggested in Joseph Fernandez [Joseph Fernandez v. State of Goa, (2000) 1 SCC 707 : 2000 SCC (Cri) 300] , found that the intimation did not satisfy the provisions of Section 50 of the Act. The Court reasoned that the expression „duly‟ used in Section 50 of the Act connotes not „substantial‟ but „exact and definite compliance‟. Vide Ext. PW 6-A, the appellant was informed that a Gazetted officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 16 of 31 17 that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside.
27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] , the theory of „substantial compliance‟ would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non- compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial."
7.12 Also recently, in the case of Ashok Kumar Sharma v. State of SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 17 of 31 18 Rajasthan, (2013) 2 SCC 67, Supreme Court held as follows;
"7. We are in this case concerned only with the question whether PW 1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under Section 50 of the NDPS Act. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a five-Judge Bench. This Court in Vijaysinh Chandubha Jadeja [(2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a gazetted officer or a Magistrate. This Court also held that it is mandatory on the part of the authorised officer to make the accused aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. .............................
The above statement of PW 1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a gazetted officer if he so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a gazetted officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a gazetted officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person.
SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 18 of 31 19
9. We are of the view that non-compliance with this mandatory procedure has vitiated the entire proceedings initiated against the appellant-accused. ...................... Consequently, the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside.................."
7.13 It would also be pertinent to mention that the prosecution witnesses also admitted that the meaning of gazetted officer was not explained to the accused. The two accused are foreign nationals and therefore meaning of the word gazetted officer ought to have been explained to the two accused, otherwise the compliance of Section 50 of NDPS Act becomes meaningless. In this regard in the case of Maher Mohd. Rafiq (Supra), Hon'ble Delhi High Court held that Section 50 of NDPS Act was only partially applied when meaning of gazetted officer was not explained to a foreigner and also when option of being searched before Magistrate was not given.
7.14 In the case of Vinod (Supra), it was held by Hon'ble Supreme Court that offer of search before Magistrate or gazetted officer though given to the accused but accused was not informed that he had a right in that behalf would render non-compliance of Section 50 of NDPS Act. 7.15 Thus so far as the NDPS charge is concerned, noncompliance of section 50 of the Act alone entitles both the accused to be given benefit of doubt and acquitted.
8 Besides the above facts, there are other circumstances which create a reasonable suspicion about the truthfulness of the version of prosecution. 8.1 PW7 HC Kanwar Pal in his cross-examination claimed that both the notices U/s.50 of NDPS Act were prepared by ASI Ajmer in his own handwriting but when the two notices filed on judicial record Ex. PW7/D & SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 19 of 31 20 C were shown to the witness, he admitted that only one notice Ex. PW7/D was in the handwriting of ASI Ajmer but the second notice Ex. PW7/C was not in his handwriting. On being questioned, this witness even could not reply as to in whose handwriting Ex. PW7/C was. He however admitted that handwriting and ink used in both the notices were different. If this witness witnessed that ASI Ajmer had prepared both the notices at the spot, under what circumstances, the two notices are in different handwriting is not explained and creates suspicion. ASI Ajmer replied that the second notice was in the handwriting of SI Shiv Darshan. But SI Shiv Darshan is not a witness in the present case. Though SI Shiv Darshan is claimed to have been a part of the raiding team and was the senior most member, but he has not been cited as a witness. He even did not witness any of the documents prepared at the spot. Similarly, ASI Harcharan is also not made a witness in this case also, although that witness also prepared few documents.
8.2 Ex. PW7/K & L i.e. seizure memo of the bag and seizure memo of passport and ticket of John are both prepared in Hindi. It is not mentioned in these two documents that before obtaining signatures of John on these two documents, he was explained the contents of the documents in his language. Ex. PW7/L would show tampering with the document and subsequent addition made in the document. Last three lines of these documents just above the signatures of the accused and witnesses, between Point X to X, are unusually cramped and appears to have been forced into the limited space available. Reading of this document would reveal that the document ended prior to the Point X, where it is written that the passport has been taken into possession. It is thereafter that the three lines, about the internet ticket, are added and it is again written that the SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 20 of 31 21 ticket is also taken into possession. This fact would also suggest - that tampering with the documents have been done at will. 8.3 Though Ct. Atul claimed that replies were dictated by IO to the two accused, HC Kanwar Pal and SI Ajmer denied that fact, creating suspicion.
8.4 Ct. Atul deposed that seizure memo of the bag was in the handwriting of ASI Ajmer whereas it was prepared by SI Sunil. Ct. Atul even deposed that the seizure memos of the contraband were prepared in Hindi language in his presence whereas the two seizure memos of contraband are in English language and not in Hindi.
8.5 PW8 ASI Ajmer, who received the secret information, in his cross-
examination admitted that he had not met the secret informer prior to that day. He even deposed that he was not previously known to the informer and met him for the first time and per chance the informer came there and met him. He did not even ask the informer as to whom the informer wanted to meet in the office. If the informer had gone to the office for delivery of this information, he must have gone there to deliver it specifically to some police official. ASI Ajmer was certainly not that police officer. Then in what circumstances, the information was given to ASI Ajmer and not to the police officer for whom it was meant, is not explained. The said fact raises eye brow and creates a reasonable suspicion.
8.6 In the case of Peeraswami (Supra), Hon'ble Delhi High Court observed in para 7 that the secret informers are not brought face to face before the accused and their identity is also not disclosed to the Courts. But in that case, secret informer was taken to the spot who pointed out to the accused of that case and then the accused was arrested. It was held that SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 21 of 31 22 if identity of the secret informer was not so secret and he could accompany police party to the house of accused and come face to face with the accused then, there is no reason why he could not have been produced in the Court for deposition.
8.7 Admittedly, in the present matter accused John came to Delhi from Mumbai on the day of incident itself and his time of arrival is around 4.20 PM, whereas, he was apprehended from the spot at about 9.10 - 9.15 PM. No investigation has been done as to where that accused John remained during that period and as to how he reached Mukherjee Nagar from Airport. There is no investigation either as to by which mode of transport John and Felex reached Mukherjee Nagar. Admittedly, accused Felex was a resident of Saket at the relevant time. Thus, none of the two accused was a resident of the nearby area or of Mukherjee Nagar. One was a resident of Saket and another came from Mumbai and landed at South Delhi. The most convenient place for them to meet would have been somewhere in South Delhi only and why would they choose to go all the way to Mukherjee Nagar in North Delhi for exchanging the contraband. The said fact also creates suspicion about the genuineness of the case of prosecution.
8.8 PW8 ASI Ajmer claimed that when he signed the arrest memos of the two accused, those documents were complete with all the columns filled in and that he signed them at the spot at 3.45 AM and 4.30 AM, respectively. DD No.7 dtd. 23.08.2012 Ex. PW10/B1 reveals that the information delivered to the friend of accused was at 8.45 AM on 23.08.2012. If DD No.7 reveals that information was given at 8.45 AM then the claim of ASI Ajmer that he had signed the two arrest memos at the spot is falsified. This fact also creates suspicion about the case of prosecution.
SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 22 of 31 23 8.9 PW7 HC Kanwar Pal deposed that the case property was measured while sitting inside the Wagon-R car and the machine was kept on the dash board of the Wagon-R car for measurement. Even ASI Ajmer claimed that measurement was done inside the vehicle on the dash board. But Ct. Atul (PW9) deposed that measurement was done on the footpath. HC Kanwar Pal deposed that after initial cursory search of the two accused and search of their bag, both accused were made to sit inside the Wagon-R car, whereas, Ct. Atul claims that the accused were outside at the time of measurement.
8.10 Though mobile phones of the accused were allegedly recovered at the time of their personal search from the spot but their call details record have not been filed to support the case of prosecution that the two accused were in contact with each other before the time of arrest. Even their mobile phone locations have not been collected and filed on record to strengthen the case of prosecution that mobiles of both the accused were located at Mukherjee Nagar at the time of incident. 9 Despite availability, no local responsible inhabitant from the nearby residences or shops or commercial complex was even attempted to be joined. Officials from DTC Depot located nearby were also not requested to become witness. All that is claimed is that few passersby and rickshaw pullers were requested, who refused. Their names and addresses were not recorded.
9.1 In the case of Mohd. Raffique vs. State 2000 CRI. L. J. 2401, Hon'ble Delhi High Court , observed as follows;
"6. In State of Punjab v. Baldev Singh (1999) 4 JT (SC) 595 : (1999 Cri LJ 3672), it was held that the provisions of the Code of Criminal SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 23 of 31 24 Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the Act also to the extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Act, the safeguards provided under the Code of Criminal Procedure are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 of the Code of Criminal Procedure per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguards would be violative of the reasonable, fair and just procedure. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597), it was held that when a statute itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, an accused has the right to a reasonable, fair and just procedure. The statutory provisions embodied in Sections 41 to 55 and Section 57 of the Act and Sections 100, 102, 103 and 165 of the Code of Criminal Procedure provide for a reasonable, fair and just procedure.
7. Section 50 of the Act read along with sub-section (4) of Section 100, Cr.P.C. contemplates that search should, as far as practicable be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so the onus would be on the prosecution to establish that the association of such witness was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 24 of 31 25 imperative. Thus, the statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against authorised officers. In other words, the Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of statutory safeguards committed by the authorized officer during search and seizure operations and may also undermine respect of law. That cannot be permitted.
8. It is undisputed that no public witness was associated during the course of search and seizure proceedings and the prosecution case hinges solely on the testimony of police officials. As per prosecution case the secret information was received at 9.35 a.m. and the appellant was apprehended at about 10 A.M. Thus, there was sufficient time to procure attendance of public witnesses to witness the search and seizure. This is not a case where due to urgency of the matter or for any other reason, it was not possible to comply with the provisions of sub-section (4) of Section 100 for associating public witness during the course of search and SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 25 of 31 26 seizure. It is also undisputed that the appellant was apprehended in Gali Masjid Wali, which is a thickly populated area. Prosecution witnesses SHO P. L. Puri (P. W. 2) Constable Sukhram Pal (P.W. 3) Constable Jamil Ahmad (P. W./4) and SI Satpal (P.W. 6) want us to believe that at the relevant time public witnesses were approached but they declined to join the raiding party.
9. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons, who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may, in this context, be made to the provision of sub- section (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187, IPC. In the instant case, there is nothing to indicate that the authorized officer had served or even attempted to serve an order in writing upon any public witness as envisaged by sub-section (8) of Section 100, Cr.P.C. In this connection, I may usefully excerpt the following observations of Malik Sharief-u Din, J. in Rattan Lal v. State, (1987) 2 Crimes 29 (Delhi) :-
". . . . . . . .In the case in hand the seizure and the arrest have been made under Section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 26 of 31 27 envisaged by sub-section (4) of Section 100, Cr.P.C. The explanation offered is that public witnesses were requested but they declined to co-operate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to co-operate without reasonable cause in spite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187, I.P.C. and this has been clearly spelt out in sub-section (8) of Section 100, Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards."
10. It has come in the evidence of Sub-Inspector Satpal (P.W.
6), Constable Jamil Ahmad (P.W. 4) and Constable Sukhram Pal (P.W. 3) that Gali Masjid Wali is a thickly populated area. It seems inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation. Having regard to the area and the place of search and seizure, it appears that public witnesses were available but no serious attempt was made by Sub-Inspector Satpal (P.W. 6) to associate them before searching the appellant. I am unable to find any reason as to why he did not even make any attempt to SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 27 of 31 28 associate any independent witness or witnesses during the course of search and seizure operation.
11. As stated earlier, the compliance with the procedural safeguards contained in the Code of Criminal Procedure and the Act are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the authorized officer. It has to borne in mind that where the error, irregularity or illegality touching the procedure committed by the authorized officer is so patent and loudly obtrusive that it leaves on his evidence an indelible stamp of infirmity or vice, which cannot be obliterated or cured, then it would be hazardous to place implicit reliance on it. The aforesaid circumstances make the court to be circumspect and look for corroboration of the testimony of the said police officials from independent sources. No such corroboration is coming forth in this case."
10 The recovery and seizure has not been made in accordance with the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi, and in this regard reliance is placed by the accused upon the case of Union of India Vs. Bal Mukund &Ors., 2009 Crl. L. J. 2407.
Clause 1.9 & 1.10 of the Instructions reads as under:-
"1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 28 of 31 29 recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples.
1.10 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret-Drug sample/Test Memo" to be sent to the chemical laboratory."
11 The present case is under NDPS Act. It involves severe punishment, which in the present case may extend up to ten years. It is now accepted principle of criminal jurisprudence that severer or harsher the punishment is, stricter has to be the degree of proof and higher degree of assurance would be required.
12 In Mousam Singha Roy and Others v. State of West Bengal 2003 (3) JCC 1385 : [(2003) 12 SCC 377], Hon'ble Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since the higher degree of assurance is required to convict the accused."
13 It is indeed true that mere non-joining of independent witnesses cannot be fatal. Indeed it may not be in a given case. But then the testimony of police witnesses must be inspiring and believable. In a serious case of NDPS Act, inviting stringent punishment, the above mentioned serious discrepancies cannot be ignored. An accused cannot be convicted on SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 29 of 31 30 such tentative evidence. It is in the light of these discrepancies that non- joining of witnesses assumes significance.
14 In view of the facts & circumstances, there are reasonable doubt about the genuineness and truthfulness of the case of prosecution, the benefit of which goes to the accused and all these facts entitle both the accused to be acquitted of the charges U/s.21 of the NDPS Act and both the accused namely John Onwudiwe and Felex Chinedu are accordingly given benefit of doubt and acquitted of the said charges.
15 However, accused Felex was additionally charged for offence U/s.14 of the Foreigner's Act also. He was found in India without any valid documents of his stay. Neither during investigation nor during trial till date, the accused has proved a single document about his valid stay in India on the date of offence. In a charge U/s.14 of the Foreigner's Act, the burden is actually on an accused to show that he had valid documents of his stay. Those facts being in exclusive and personal knowledge of accused, has to be proved by an accused. In a charge U/s.14 of the Foreigner's Act, the burden on the prosecution is only limited to the point to prove that the accused was found present in India on the date and time. The second part of the allegations that there was no valid documents of stay cannot be proved by prosecution and it has to be proved by an accused that he had valid documents of his stay. In the present matter, accused Felex did not prove the said fact that he had any valid document of stay. He did not lead any evidence on that aspect of the matter. Admittedly accused is a foreign national. Being a foreigner present in India, the onus was on him to have proved that he was present in India with valid document of his stay. It is the case of prosecution that the accused did not produce any such document of his valid stay in India. In SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 30 of 31 31 a Charge U/s.14 of the Foreigner's Act, the onus is upon an accused to prove valid documents of stay in his favour. The accused failed to discharge that burden. In view of the said fact, the accused Felex Chinedu is found guilty and convicted for offence U/s.14 of Foreigner's Act.
Announced in open Court on 21st July, 2014.
Dig Vinay Singh ASJ/Spl. Judge:NDPS(NW) Rohini/Delhi SC No.63/12 FIR No.212/12 State Vs. John Onwudiwe & Anr. Dtd: 21.07.2014 Pg. 31 of 31