Delhi District Court
Ncb vs . Jude Chidiebere & Ors. on 26 March, 2013
NCB Vs. Jude Chidiebere & Ors.
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS: PATIALA HOUSE COURTS: NEW DELHI
SC No. 20/09
ID No. 02403R0256742009
Narcotics Control Bureau
Through: Shri Akhilesh Kumar Mishra,
Intelligence Officer,
Narcotics Control Bureau,New Delhi
Versus
1. Jude Chidiebere
S/o Sh. Okonkwo
R/o Agbor, Asaba, Nigeria
2. Solomon
S/o Sh. Irene
R/o Agbor, Port Harcourt, Nigeria
3. Godson Augustine
S/o Sh. Onyarin
R/o n125, Obi IXE Chukwu
Delta State, Nigeria
4. Ebei Godfrey
S/o Sh. Ebie
R/o Agbor, Obi Asaba, Nigeria
5. Vincent
S/o Sh. Aleh
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NCB Vs. Jude Chidiebere & Ors.
R/o Agbor, Delhi State, Nigeria
6. Maria Lucia
D/o Sh. Machava
R/o Xai Xai Gaja, Mocambique
7. Isabel Bonifacio
D/o Sh. Nuvanaa
R/o Raruto, Mocambique
8. Supattra
D/o Sh. Banthittathai
R/o Nakhonpathom, Bankok,
Thailand
Date of Institution : 21.08.2009
Judgment reserved on : 12.02.2013
Date of pronouncement : 26.03.2013
JUDGMENT
1. The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer (IO) Sh. Akhilesh Kumar Mishra has filed the present complaint against the aforementioned accused persons u/s 21 r/w section 29 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act).
2. Briefly stated the allegations against the accused persons as asserted in the complaint are as follows:
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(a) On 13.04.2009, IO Akhilesh Kumar Mishra received a secret information that some foreign nationals who are residing at WZ40/2, Second Floor, Sant Garh, Delhi are indulging in supply of Narcotic Drugs by concealing them in various goods like suitcases, shoes, etc and that if a raid is conducted at the said premises, they can be apprehended alongwith huge quantity of narcotic drugs.
(b) The information was reduced into writing and put up before Sh.
Ajay Kumar, Superintendent, NCB. Further on his direction, a raiding team consisting of himself, IO Jai Bhagwan, IO Vikas Kumar, IO Akhilesh Kumar Mishra, Hawaldar Shiv Ratan, OTC Suresh Kumar, Sepoy Rajendar Ram, UDC Rishipal, Driver Swaroop Yadav and Ms. Rajni Karki was constituted. The said team proceeded from NCB office in three official vehicles and reached the aforementioned premises. On the way, IO Akhilesh Kumar Sharma introduced himself and the team members to a few passersby and requested them to join the raiding party and on his request, two persons namely Raman Singh and Paramjeet Singh voluntarily agreed to join as independent witnesses to the proceedings.
(c) Thereafter all the members of the raiding team alongwith the two independent witnesses reached the second floor and knocked the door on which one lady whose name was later on revealed as Supattra SC No. 20/09 Page No. 3 of 60 NCB Vs. Jude Chidiebere & Ors.
Barthittahhai, a Thailand national, opened the door. On entering the room, seven more foreign nationals including two ladies were found were doing some packing in suitcases and shoes, etc. On enquiry, their names were revealed as Jude Chidiebere, Solomon, Godson Augustine, Godfrey, Vincent, Ms. Maria Lucia and Ms. Isabel Bonifacio.
(d) All the aforementioned persons were then served with notices u/s 50 NDPS Act and were made to understand that they have a legal right to be searched before a Magistrate or a Gazetted Officer but all the accused persons refused to exercise the said right and informed that any NCB officer could conduct their search. Thereafter IO Akhilesh Mishra alongwith the other team members conducted the search of a black colour suitcase marked as CAGGIGNI held by accused Maria Lucia and one red suitcase make VIP held by accused Isabel Bonificio and both the said suitcases were found to contain some off white colour substance. Similar type of substance was also found kept in transparent polythene in one corner of the room. On further checking, some new shoes (sandal shaped) with high heels make Coolers and Senorita were found kept in a cardboard and on cutting open the heels of sandals make Coolers, they were found to contain similar off white powdery substance. On testing the said powder with Field Testing Kit it gave positive result for heroin. As the texture and physical nature of the powder in all the packets was SC No. 20/09 Page No. 4 of 60 NCB Vs. Jude Chidiebere & Ors.
appearing to be same, all the recovered substance was transferred to a transparent polythene bag. The total weight of the powder was found to be 7 Kg. Two samples of 5 grams each were drawn out from the recovered heroin and were put separately in pouches and were then placed inside paper envelopes. The samples were given marks A1 and A2 and the remaining substance was converted into a parcel and given mark A. Packing material of the red bag and black bag was kept inside the said respective bags and were given mark B and C respectively. The parcels and the samples were duly sealed and paper slips having dated signature of the IO, both witnesses and the accused persons were pasted on the parcels and the samples. A test memo in triplicate was also prepared at the spot. All the parcels alongwith one laptop make Sony were taken into possession through panchnama.
(e) Summons were then issued to all the accused persons u/s 67 NDPS Act and in pursuance of the same, all of them accompanied the NCB officials to their office and tendered their statements admitting their complicity in the present case. All the accused persons were thereafter arrested and their personal search was conducted.
(f) Seizure report u/s 57 NDPS Act regarding the search and seizure of contraband was submitted by the IO to his immediate superior officers.
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(g) Summons were also issued to both the independent witnesses and one Ms. Sunita, landlady of the premises in question. In pursuance of the summons all of them appeared in the NCB office and tendered their voluntary statements.
(h) The case property along with samples and test memo was deposited with the Malkhana Incharge. Reports under Section 57 of the NDPS Act were submitted by the arresting officers to the Superintendent, NCB. The information of arrest of all the accused persons was sent to Ministry of External Affairs.
(i) During the course of investigation, a request was made to FRRO, New Delhi to open All India LOC of suspects Ms. Lalrampari and Kester Iduh (the name of the said persons had been revealed by some of the accused persons).
(j) During further investigation, the sample of recovered substance was sent to CRCL for analysis and after receiving the report of the Chemical Examiner that the sample has tested positively for diacetylmorphine, the present complaint was filed.
3. On the basis of the material on record vide order dated 22/12/2009 charges were framed against the accused persons that they were found in possession of 7 kg. of heroin and were party to a criminal conspiracy in acquiring, possessing 7 kg. Of heroin and had concealed the same in SC No. 20/09 Page No. 6 of 60 NCB Vs. Jude Chidiebere & Ors.
suitcases and sandals and hence had committed offences punishable under sections 21(c) r/w section 29 of the NDPS Act. All the accused persons had pleaded not guilty to the said charges and had claimed trial.
4. The prosecution in order to prove its case has examined 12 witnesses.
5. PW1 Dr. S.C. Mathur, Chemical Examiner, FSL has inter alia deposed that he had received sample of contraband mark A1 for testing on 15/4/2009 for which PW11 Dr. Raj Kumar had issued receipt Ex.PW1/B. He has further deposed that the samples were examined by PW11 Dr. Raj Kumar, Assistant Chemical Examiner under his supervision. As per his deposition, the sample in question was received by him in intact condition and had tested positive for diacetylmorphine. He has proved the chemical analysis report with respect to the sample deposited with the C.R.C.L. and the same has been exhibited as Ex.PW1/B.
6. PW2 Sh. Akhilesh Kumar Mishra, PW4 Sh. Vikas Kumar, PW12 Sh. Jai Bhagwan have deposed about the search and seizure proceedings conducted by them on the second floor of premises WZ 40/2, Sant Garh, New Delhi on 13/4/2009. The secret information deposed to have been received by PW2 has been exhibited as Ex.PW2/A. PW2 has also inter alia deposed that the secret information received by him was reduced SC No. 20/09 Page No. 7 of 60 NCB Vs. Jude Chidiebere & Ors.
into writing by him and was also produced before PW5 Sh. Ajay Kumar, Superintendent, NCB. PW2 has also proved the panchnama and test memo prepared by him and the same have exhibited as Ex.PW2/J and Ex.PW2/Z respectively. The legal notices under Section 50 of the NDPS Act stated to have been issued to the accused Jude Chidiebere, Godson Augustine, Solomon, Ebei Godfrey, Vincent, Isabel Bonifacio, Maria Lucia and Supattra by PW2 have been exhibited as Ex.PW2/B, Ex.PW2/C, Ex.PW2/D, Ex.PW2/E, Ex.PW2/F, Ex.PW2/G, Ex.PW2/H, Ex.PW2/I respectively. PW2 has also specifically deposed that the accused persons had refused to get themselves searched before a Magistrate or a Gazetted Officer. The report tendered by PW2 u/s 57 of the NPDS Act has been exhibited as Ex.PW2/R. The arrest memos and arrest reports of accused Maria Lucia, Supattra, Jude Chidiebere, Godson Augustine, Solomon, Vincent, Ebei Godfrey, Isabel have been exhibited as Ex.PW2/S, Ex.PW2/U, Ex.PW4/E, Ex.PW4/G and Ex.PW2/W, Ex.PW2/X, Ex.PW4/J, Ex.PW4/K, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C and Ex.PW5/D respectively. Various summons issued by the IOs to the panch witnesses and other witnesses called for enquiry and who tendered their statements u/s 67 of NDPS Act have also been duly exhibited. Photocopy of malkhana register and seal movement register containing the entries with respect to the deposit of case property and SC No. 20/09 Page No. 8 of 60 NCB Vs. Jude Chidiebere & Ors.
issuance of seal have also been exhibited as Ex.PW2/O and Ex.PW2/N respectively. The case property and the samples were also duly produced before the court and were duly exhibited during the depositions of the aforementioned witnesses.
7. PW3 Sh. Raman Singh is one of the panch witnesses, who as per the prosecution had witnessed the search and seizure proceedings. After his examination in chief was recorded on 2/7/2010 he did not thereafter appear for his cross examination that was fixed for 7/7/2010. Summons subsequently sent to his address were returned back with the report that he had left his previous known address and his present whereabouts are not known.
8. PW5 Sh. Ajay Kumar has inter alia deposed that he was posted as Superintendent, NCB DZU and on 13/4/2009, IO Akhilesh Mishra had put up before him secret information and after going through the information he had directed him to take necessary action and had issued departmental seal of NARCOTIC CONTROL BUREAU DZU4, to him. As per this witness, he had signed on the seal movement register with respect to the handing over and return of the seals to and from the IO. He has then further deposed that IO had put before him reports u/s 57 NDPS Act regarding seizure and arrest of accused persons. As per this SC No. 20/09 Page No. 9 of 60 NCB Vs. Jude Chidiebere & Ors.
witness, on 15/4/2009 he had forwarded the sample alongwith test memo to CRCL vide forwarding letters Ex.PW1/C. As per this witness he had also sent a letter to Ministry of External Affairs, Ex.PW5/E regarding the arrest of all the accused persons along with details of accused persons which have been exhibited as Ex.PW5/F to Ex.PW5/M.
9. PW6 Ms. Sunita has inter alia deposed that premises WZ40/2, Sant Garh belongs to her husband and that the second floor of the said premises was given on rent to one Ms. Lovunge Ngulli. She has also stated that her husband suffered from a brain hemorrhage after the rent agreement was executed and is not keeping well and therefore she is presently looking after all the work of the property. The agreement assertedly entered between Ms. Lovunge Ngulli and the landlord of the property has been executed as Ex.PW6/A. This witness has also further deposed that the entry of the second floor premises was separate than the entry to the ground floor and the first floor and therefore she had only seen Ms. Lovunge Ngulli casually on various occasions. She has further deposed that some Nigerians and foreigner females used to also visit the house occasionally and they used to have suitcases in their hands while visiting the house and leaving the house. She then also pointed out to accused Supattra, Maria and Isabel and has deposed that she had seen the said three female accused persons visiting the tenanted premises of Ms. SC No. 20/09 Page No. 10 of 60 NCB Vs. Jude Chidiebere & Ors.
Lovunge Ngulli and according to her accused Supattra had visited the premises in question three times and accused Maria and Isabel had visited the said premises on 11/4/2009. She has further deposed that accused Vincent and Jude Chidiebere used to reside nearby at C6, Sant Garh and that they had also been visiting the premises in question. This witness then further went on to depose that on 13/4/2009 some NCB officers had come to the premises in question and had called her to the second floor after the door of the said premises was not being opened despite knocking. According to her deposition, she and the landlady of the premises C6, Sant Garh then went to the second floor and knocked the door of the said premises but when it was not still opened, the NCB officers broke the glass where the air conditioner was fitted and then told her that she should return to her premises on ground floor as there was a possibility of a shoot out. She has further deposed that after a while the NCB officers brought the accused persons downstairs and asked her whether she and the landlady of C6, Sant Garh, identified them or not and response thereto she had informed the NCB offices that she had seen accused Jude and Vincent talking to the female accused persons and also going to the premises in question. This witness has further deposed that NCB officials did not give the details of the goods/articles recovered from the second floor but had merely informed her that they had SC No. 20/09 Page No. 11 of 60 NCB Vs. Jude Chidiebere & Ors.
recovered something from the second floor but they had packed it. She has further deposed that she was issued a summon by NCB officer, Ex.PW6/B pursuant to which she went to the NCB office and tendered her statement Ex.PW6/C.
10.PW7 Sh. Suresh Sharma has merely deposed that on 13/4/2009 he was instructed by Superintendent Sh. Ajay Kumar to join the raiding party. According to this witness he was deputed at one of the back side corner of the house so that someone may not run away. This witness has further deposed that after the completion of the investigation he was called back and asked to sit in a car in which three ladies accused were already sitting with Rajni Karki.
11. PW8 Driver Rajbir Singh has merely deposed that on 13/4/2009, he had taken Ajay Kumar, Superintendent, Vikas and Jai Bhagwan, IOs, Sepoy Rajender Singh to Sant Garh at about 11:00 PM and after completion of the case formalities, they had left the place of occurrence at 02:30 AM on 14/4/2009 and had reached the NCB office.
12.PW9 Sepoy Babu Lal has inter alia deposed that on 15/4/2009, he had carried the sample packet mark A1 to the CRCL on the instructions of Sh. Ajay Kumar, Superintendent, NCB and had deposited the same in CRCL and the acknowledgment issued in his name by CRCL has been SC No. 20/09 Page No. 12 of 60 NCB Vs. Jude Chidiebere & Ors.
exhibited as Ex.PW1/B. He has also deposed that he had gone to Sant Garh on 13/4/2009 alongwith the other NCB officers as a driver.
13.PW10 Ms. Rajni Karki has inter alia deposed that she had accompanied the raiding party on the instructions of IO Akhilesh Kumar. According to this witness she had recorded the statement of accused Isabel before Sh. Vikash Kumar which has been exhibited as Ex.PW4/I. As per her deposition she has also conducted personal search of Isabel, Maria Lucia, Supattra which have been exhibited as Ex.PW10/A, Ex.PW2/T and Ex.PW2/E respectively.
14. All the incriminating evidence was put to all the accused persons and their statements were recorded u/s 313 Cr.PC. The male accused persons have all inter alia taken a stand that they were not present at WZ40/2 2nd floor, Sant Garh on the date of their apprehension and were infact having dinner at C6, Sant Garh, Gali no. 14, Tilak Nagar, New Delhi when they were picked up forcibly by the NCB officials. According to the statements given by the male accused persons, accused Vincent, Godson and accused Jude were staying on rent in the aforementioned premises namely C6, Sant Garh and that on the date of incident they had invited three of their friends namely coaccused Solomon, Godfrey and one Kestero for Easter dinner at their premises and that while they were having dinner the landlady of the premises knocked on their door and SC No. 20/09 Page No. 13 of 60 NCB Vs. Jude Chidiebere & Ors.
informed them that some persons wanted to verify their passport and visa. According to the statements of these accused persons they then showed their passports and visa but they were still taken away by some officials on the pretext that further verification of the said documents is required. Accused Godson has also additionally stated that his friend Kestero managed to run away when they were being forced by the NCB officials to accompany them. According to all the male accused persons they did not know the female accused persons before their apprehension in this case and that they saw them only at the NCB office for the first time.
15.The female accused persons Maria, Isabel and Supattra in their statements tendered u/s 313 Cr.PC have also similarly stated that they did not know the male accused persons in this case prior to their apprehension. They however admit that they were apprehended by the NCB officials from the premises WZ40/2 IInd floor, Sant Garh. According to the statement tendered by accused Supattra, it is her boy friend one Peterson who was staying in the said premises and on his invitation she had come to his house to celebrate Easter and that she had come to India only 7 days prior to the present incident and was otherwise staying in a hotel. She has further stated that when on 13/4/2009 she reached the aforementioned premises at night and SC No. 20/09 Page No. 14 of 60 NCB Vs. Jude Chidiebere & Ors.
knocked the door another male answered the door and told her that Peterson was not at home and she may wait for him. Accused Maria and Isabel have also stated that on 13/4/2009 they had come with their male friends Chakaya to WZ40/2, Sant Garh to celebrate Easter and the tenant of said premises was a friend of Chakaya and that on reaching the said premises they had also found Supattra there. According to Isabel and Maria the two male persons namely Chakaya and the tenant of the premises in question at about 10:40 PM left the said premises to purchase beer from the market and 1015 minutes thereafter 78 persons came to the premises, broke open the window and forcibly entered the premises and searched the house and when nothing was recovered from the said house, asked these girls to accompany them. The female accused persons have all stepped into witness box and have deposed on oath that nothing was recovered from the premises WZ40/2, second floor, Sant Garh and that they had been forcibly picked up by the NCB officials and made to sign many blank and written documents.
16.On behalf of male accused persons one Chemical Examiner, Custom Nevaseva Distt. Raigarh, Maharashtra was summoned and this witness has inter alia stated that an RTI application dated 24/11/2011, was received in their department and that a reply, Ex.DW4/A was given to the said RTI application. Further though the male accused persons had stated SC No. 20/09 Page No. 15 of 60 NCB Vs. Jude Chidiebere & Ors.
that the landlady of the premises namely C6, Sant Garh will be summoned by them to appear in the witness box, their Counsel Sh. Peter submitted that the accused persons do not wish to summon any other witness in support of their defence.
17. After conclusion of the entire evidence on behalf of all the parties, Ld. Defence Counsels Sh. Peter, Sh. Jitender Sethi and Sh. T.K. Mahapatra have advanced oral arguments and have also filed written submissions on record. Though on behalf of the NCB no oral arguments were advanced, detailed written submissions have been filed. It is a matter of record that during the trial after the conclusion of PE, Ld. SPP Sh. Narender Singh had suffered a paralytic attack and was thereafter not in a position to appear in the court and therefore detailed written submissions have been filed on record by the NCB along with the copy of the judgments on which the prosecution seeks reliance.
18. In the written submissions filed on behalf of the NCB it has been inter alia contended that the deposition of 12 prosecution witnesses along with the documentary evidence placed on record completely proves that the accused persons were caught red handed while they were packing heroin in suitcases and in sandals at the premises WZ40/2, Sant Garh and that 7 kg. of heroin was recovered from them. It has also been pointed out that all the accused persons have admitted their complicity in the present SC No. 20/09 Page No. 16 of 60 NCB Vs. Jude Chidiebere & Ors.
case in their statements tendered u/s 67 NDPS Act.
19.On the other hand, Ld. Defence counsels have inter alia contended that the cross examination of the prosecution witnesses completely belies the version put forward by the prosecution and that the answers given by the prosecution witnesses in cross examination proves that infact no secret information was received by the NCB and that the whole version of receiving of a secret information and then proceeding to the spot is completely concocted. It has also been pointed out by the defence that the two panch witnesses shown to be independent public witnesses to the recovery of the contraband are infact not independent witnesses but are stock witnesses of the NCB and the fact that one of the said witnesses has not been produced at all and the other has not been produced in the witness box for his cross examination show that they were infact tutored by the NCB and that they did not want to stand the test the cross examination. It has also been inter alia stated on behalf of the defence that the deposition of PW6 proves that the raid did not take place in the manner alleged by the NCB officials and that in fact no contraband was recovered from the premises and the accused persons were forcibly picked up by the NCB officials. Ld. Defence Counsels have also inter alia contended that there has been a complete non compliance of Section 42 of the NDPS Act in as much as no search authorisation warrant for SC No. 20/09 Page No. 17 of 60 NCB Vs. Jude Chidiebere & Ors.
search of the house in question was obtained by the NCB officer A.K. Mishra and according to them this in itself vitiates the entire recovery proceedings. They have also pointed out that the notices purportedly issued by the IO Akhilesh Mishra upon the accused persons u/s 50 NDPS Act were manipulated later on and that is the reason the prosecution had been unable to explain about the disappearance of the carbon copies of the said notices, though according to the IO the same were handed over to the accused persons. As regards the statements tendered by the accused persons u/s 67 NDPS Act the Defence Counsels have pointed out that the said statements were forcibly taken from the accused persons while they were in the custody of the NCB officials and the said statements were retracted by the accused persons at the first opportunity available to them and that therefore no reliance can be placed upon the same whatsoever. It is also the contention of the defence that the prosecution has miserably filed to prove as to who was the actual tenant in the premises in question and according to them the evidence on record does not at all show that the accused persons facing trial were in conscious possession of the contraband allegedly recovered from the premises and that therefore the accused persons cannot at all be held guilty of the offence that they had been charged with. In support of their contentions, the Ld. Defence Counsels have relied upon the following SC No. 20/09 Page No. 18 of 60 NCB Vs. Jude Chidiebere & Ors.
judgments:
● State of Punjab Vs. Balbir Singh 1994 SCC Crl 634 ● A. K Mehaboob Vs. NCB VII 2000 SLT 761 ● Noor Aga Vs. State of Punjab and & Ors 2008 (3) JCC Narcotics 135 ● Bhola Singh Vs. State of Punjab 2005(2) CCC (HC) 280 ● Eze Val Okeke @ Val Eze Vs. NCB 2005 (1) CCC (HC) 72 ● Mohinder Kumar Vs. State AIR 1995 SC 1157 ● Patrick Bruno Wafula Vs. Customs 2001 VI AD Delhi 558 ● Karan Singh Vs. State of Haryana 2011(2) Crime 329 (P&H) ● Bhola Ram Kushwaha Vs State of M.P 2001 SC (Cri.) 1 ● G.B.Patel Vs. State of Maharashtra AIR 1979 SC 135 ● Noor Aga Vs. State of Punjab 2008(3) RCR (Criminal) ● Basant Rai vs. State 2012 (3) JCC (Narcotics) 138 ● Surendra Singh & Chintu vs. Union of India 2005 (1) JCC (Narcotics) 69 ● Ramon Services Pvt. Ltd. vs. Subhash Kapoor and others 2001 SCC (Cri.) 3 ● Kailash Gour and Ors Vs. State of Assam Crl. Appeal no.1068 of 2006 (SC) ● State of Punjab Vs. Balbir Singh AIR 1994 SC 1872
20.In rebuttal it has been submitted on behalf of the NCB that there was no requirement of compliance of section 42 NDPS Act or that of section 50 of the NDPS Act in as much as the Superintendent NCB was also a part of the raiding team and that therefore there was no requirement for the IO to have obtained the search authorisation warrant and further since the recovery was not made from the body of the accused persons, there was no requirement of strict compliance of section 50 of the NDPS Act.
As regards the contradictions in the answers given by the prosecution witnesses in their cross examination, it has been submitted on behalf of SC No. 20/09 Page No. 19 of 60 NCB Vs. Jude Chidiebere & Ors.
the NCB that minor contradictions are bound to appear when a huge number of prosecution witnesses are examined and that such minor contradictions must not be given undue importance by the court. In support of their contention, the prosecution has relied upon the following judgments:
● State of Punjab Vs. Lakhwinder Singh and Ors 2010(3) JCC (Narcotics) 142. ● Madanlal and Anr. Vs. State of H.P 2003(3) JCC 1330 ● Megh Singh Vs State of Punjab 2003 VII AD (SC)27 ● M. Prabhulal Vs. Assistant Director DRI 2003 (3) JCC 1631 ● State of UP Vs. Anil Singh AIR 1988 SC 1998 ● Kalema Tumba Vs. State of Maharashtra and Anr. (1998) 8SCC 257 ● Union of India Vs. Satrohan (2008) 8 SCC 313 ● Namdi Francis Nwazor Vs. NCB 53 (1994) DLT 562 ● Hegedus Lahel Csaba Vs. Union of India 120 (005) DLT 341 ● Shankariya Vs. State of Rajasthan AIR 1978 SC 1248 ● Mohd. Hussain Farah Vs. UOI & Anr. AIR 1999 SC 3343.
21. I have given careful consideration to the submissions made by Ld. Counsels and have carefully perused the entire record and have gone through the judgments relied upon by the Ld. Counsels. I will first deal with the contentions made by the Ld. Defence Counsels with respect to the non compliance of section 41 and 42 of the NDPS Act. As narrated hereinabove it has been contended on behalf of the defence that despite the search of the premises in question having been conducted during the night hours i.e. after sun set, no search authorisation was obtained by the SC No. 20/09 Page No. 20 of 60 NCB Vs. Jude Chidiebere & Ors.
investigating official, Akhilesh Kumar Mishra and the said investigating officer also failed to record the reasons for his belief that a search warrant could not have been obtained without affording an opportunity for the concealment of evidence or facility for the escape of an offender and that the said omission on part of the investigating official clearly proves the non compliance of Section 42 of the NDPS Act and this itself vitiates the entire search and seizure proceedings. After going through the judicial dicta relied upon by all the Ld. Counsels, this court is of the considered opinion that it cannot be held that the non issuance of the search authorisation warrant, in the facts of the present case, leads to an inference that there has been a non compliance of Section 42 of the NDPS Act. It will be necessary at this stage to refer in brief, to the provisions of section 41 and 42 of the NDPS Act. Subsection (1) of section 42 of the NDPS Act makes it mandatory for an officer (being an officer superior in rank to a peon, Sepoy or constable interalia of the departments of central excise, narcotics, customs, revenue intelligence, who is empowered in this behalf by the Central or the State Government) who has received an information with respect to an offence having been committed in contravention of the provisions of the NDPS Act, to reduce the said information into writing, before conducting any search and seizure proceedings and subsection (2) of section 42 of NDPS Act lays SC No. 20/09 Page No. 21 of 60 NCB Vs. Jude Chidiebere & Ors.
down that copy of such information is to be sent by him to his immediate superior official. It further lays down that such an officer can conduct the search proceedings by entering into any building, conveyance or place only between sunrise and sunset. The proviso to subsection (1) of section 42 NDPS Act further lays down that if such an officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunrise and sunset after recording the grounds of his belief. In other words, the said proviso enables any officer mentioned to in section 42 of the NDPS Act to conduct search and seizure proceedings even during night hours without any search authorization in case he has any reasons to believe that obtaining a search warrant would afford an opportunity for the concealment of evidence or for the escape of an offender. On the other hand, as per subsection (2) of section 41 NDPS Act, any officer of Gazetted rank, inter alia of the departments of Central Excise narcotics, customs, revenue intelligence, who is empowered in this behalf by the Central or the State Government, who has reason to believe from personal knowledge or information received and taken in writing that any SC No. 20/09 Page No. 22 of 60 NCB Vs. Jude Chidiebere & Ors.
person has committed an offence punishable under this Act or any contraband in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence etc is kept or concealed in any building, conveyance or place, may authorize any officer subordinate to him but superior in rank to a peon, Sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search such a building, conveyance or place. Sub section (3) of section 41 NDPS Act further makes it clear that the officer to whom a warrant under sub section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorized under subsection (2) shall have all the powers of an officer acting under section 42 NDPS Act. In other words, the powers of search and seizure of a Gazetted officer and that of an officer authorized by the Gazetted officer under subsection (2) of section 41 NDPS Act are the same. However, in view of the distinct provisions of the two sections namely 41 and 42 NDPS Act, the Hon'ble Supreme Court in two of its judgments pronounced in the cases reported as Union of India Vs. Satrohan 2008(8) SCC 313 and M Prabhu Lal Vs. The Assistant Director, DRI JT 2003 Suppl. (2) SC SC No. 20/09 Page No. 23 of 60 NCB Vs. Jude Chidiebere & Ors.
459 has held that where a Gazetted Officer himself receives some information and thereafter himself conducts the search and seizure proceedings, the provisions of section 42 NDPS Act, with respect to the reduction of information into writing, are not required to be complied with.
22.In both the judgments, Hon'ble Supreme Court has observed that it is clear from the language of subSection (2) of Section 42 NDPS Act that it applies to an officer contemplated by subsection (1) thereof and not to a Gazetted officer contemplated by subsection (2) of section 41 NDPS Act. The Hon'ble Supreme Court has also observed that a Gazetted officer has been differently dealt with, under the provisions of NDPS Act and more trust has been reposed in him by the legislature and therefore where a Gazetted officer himself receives the secret information and conducts the search, seizure and arrest proceedings, pursuant thereto, in him and therefore, he is not required to reduce the secret information into writing and then inform his superior. In the considered opinion of this court, the said observation of the Hon'ble Supreme Court can also be interpreted to understand that if a Gazetted Officer in exercise of his powers u/s 41 NDPS Act himself supervises the search and seizure proceedings, there is no mandatory requirement that he must issue a written search authorization warrant in favour of the subordinate officer, SC No. 20/09 Page No. 24 of 60 NCB Vs. Jude Chidiebere & Ors.
who actually conducts the search and seizure proceedings. Even otherwise, the plain language of section 41 and section 42 NDPS Act makes it clear that though an officer who is not a Gazetted Officer but is authorized under the provisions of section 42 NDPS Act, is required to obtain a search authorization warrant, an officer of the rank of a Gazetted Officer does not require any search authorization warrant but that he can himself search any premises either by day or night or authorize any officer superior in rank to a Peon, Sepoy or Constable to conduct the said search and seizure proceedings.
23.Admittedly in the present case, as per the depositions of PW5 Ajay Kumar, Superintendent NCB and PW2 Akhilesh Kumar Mishra, the search and seizing officer in this case, the secret information was received by Akhilesh Kumar who then reduced it into writing and put it up before PW5 Ajay Kumar, the Superintendent who then authorized him to take necessary action as per law. The evidence led by the prosecution also makes it clear that PW5 Ajay Kumar, the Superintendent, a Gazetted Officer, was a part of the raiding team which had gone to the premises in question and he had supervised the entire search and seizure proceedings this witness PW5 Ajay Kumar has categorically deposed in his crossexamination that though he himself had not carried out the said search and seizure proceedings as he was a SC No. 20/09 Page No. 25 of 60 NCB Vs. Jude Chidiebere & Ors.
senior officer, he had supervised the whole of the search, seizure and sealing procedure. In other words, as per the evidence on record, a gazetted officer himself had supervised the entire search and seizure proceedings and had also authorized his subordinate Akhilesh Kumar Mishra to actually carry out the search and seizure proceedings. In the considered opinion of this Court, Ajay Kumar, a Gazetted officer had therefore acted in terms of the provisions of Section 41 of the NDPS Act and therefore there was no requirement for him to have a written authorisation in his favour or to have issued a written authorisation warrant in favour of his subordinate, Akhilesh Kumar Mishra. Thus there has been no violation of section 41 or section 42 of the NDPS Act in this respect. Further as regards the contention made by Ld. Defence counsel Sh. Peter that since the IO Akhilesh Kumar Mishra had not reduced into writing, the reasons for his believing the secret information received by him, there has been a non compliance of section 42 of the NDPS Act, in the considered opinion of this court, neither the provisions of section 42 NDPS Act lay down any such requirement nor has the Hon'ble Supreme Court, in Balbir Singh's case (supra a judgment relied upon by the Defence) laid any such proposition. On the contrary, in paragraph 22 of the said judgment, the Hon'ble Supreme Court has held that there is no such requirement and all that the section 42 NDPS Act requires is that SC No. 20/09 Page No. 26 of 60 NCB Vs. Jude Chidiebere & Ors.
the secret information should be reduced into writing and it is only the proviso to sub section (1) thereof which requires the reducing of the belief of the empowered officer who is proceeding to search a premises without obtaining a search warrant.
24.In view of the discussion hereinabove therefore this court is of the considered opinion that the search and seizure proceedings cannot be stated to have been vitiated for want of compliance of section 42 of the NDPS Act. However, having held so, this court does agree with the Defence that the prosecution has not put forward a true and correct version of the events that took place on 13.04.2009.
25.The first and foremost reason for holding so is that though according to the entire version of the prosecution the team of the NCB officials had gone to the second floor WZ/40 and had knocked the door and that accused Supattra had opened the same, the said version of the prosecution is completely belied by their own witness PW6 Sunita, the landlady of the said premises in question. This lady, in her examination in chief itself, has deposed that on 13/4/2009 after the team of the NCB officials had gone to the second floor of the house, they called her since nobody from inside was opening the door of the premises. She has further deposed that she and the lady who lives at C6, Sant Garh, New Delhi then went to the second floor and knocked the door but again SC No. 20/09 Page No. 27 of 60 NCB Vs. Jude Chidiebere & Ors.
nobody opened the door and thereafter the NCB officials broke the glass where the air conditioner was fitted and then told these ladies to go back to their respective places as there was possibility of a shoot out. She has then further stated that thereafter the NCB officials brought down the accused persons from second floor and told her that they had recovered something from the second floor and gave her summons to appear in the NCB office. Now this witness despite giving a version that was contrary to the version of the prosecution was not re examined on behalf of the prosecution or given a suggestion by them that the version given by her is not correct. In other words, the prosecution has itself not disputed the version given by this witness in her examination in chief and therefore it is being rightly contended by the defence that if the door was not opened by any of the accused person as alleged by the prosecution and infact the NCB officials had made a forced entry into the premises in question, then it is unimaginable that all the accused persons continued to conceal heroin in the suitcases and the sandals as alleged by the prosecution.
26.Secondly, the fact that none of the members of the raiding team including the main investigating officer Akhilesh Kumar Mishra have been able to explain as to how much contraband was recovered from the suitcases and how much of it was recovered from the sandals and how much was lying separately in a bag also raises a question mark about the SC No. 20/09 Page No. 28 of 60 NCB Vs. Jude Chidiebere & Ors.
version of the prosecution with respect to the manner of apprehension of the accused persons and the manner of recovery of the contraband. It is also to be noted that neither from the assertions made in the complaint nor from the deposition of the IO can it be gathered as to in what manner was the contraband concealed in the suitcases purportedly recovered from the premises in question. Both in the complaint and in the deposition of the members of the raiding team it is merely asserted that both the suitcases which the accused Maria and Isabel were found handling, were found to conceal within them an off white colour substance. In fact even in his examination in chief, IO Akhilesh Kumar Mishra merely repeats the assertion of the complaint and the panchnama to state that on checking of the suitcases, it was found to conceal within them white powdery substance. It is only when the suitcases were produced for their exhibition did the witness point out that the contraband was concealed near the stroller of the trolley under the stroller rod and the main bottom of the suitcases. Even if the said statement made during the exhibition of the suitcases is taken into consideration, there is no mention by any of the prosecution witnesses as to in what container i.e what kind of packets/pouches was the white colour substance/contraband concealed in the said suitcases. None of the members of the raiding team including the main investigating official SC No. 20/09 Page No. 29 of 60 NCB Vs. Jude Chidiebere & Ors.
have been able to state as to how many pouches/packets were recovered from the suitcases and what was the weight of the contraband in the said packets or pouches. Even on specific questions put to the IO Akhilesh Kumar in his cross examination, he has been unable to state as to how many packets of contraband were recovered from the suitcase or from the shoes or the sandals. There is also absolutely no consistency between the depositions of the members of the raiding team with respect to as to what the five male accused persons were doing when the raiding team entered the premises in question and the condition of the suitcases/sandals, shoes, etc (whether the suitcases were opened or closed, what all articles were kept in the suitcase). As per the averments made in the complaint, there were five members in the raiding team Ajay Kumar, the Superintendent, the search and seizure officer, Akhilesh Kumar Mishra, Jai Bhagwan and Vikas Kumar, two Intelligence Officers and one female officer Rajni Karki and the said five members assertedly witnessed the entire raid, search and seizure proceedings and therefore the least that was expected was that they would have deposed consistently with respect to the material aspects of the raid, search and seizure proceedings. PW Vikas Kumar in his crossexamination has stated that he cannot say whether the suitcases were opened or closed, whether they were lying on the floor of the hall or in the hands of the accused persons or whether the SC No. 20/09 Page No. 30 of 60 NCB Vs. Jude Chidiebere & Ors.
keys of the said suitcases were recovered during the search of the premises, he does not remember the number of pouches recovered from the suitcases and he does not remember whether any other article was recovered in the two suitcases. He does not remember the make and the size of the said suitcases. He could not even remember whether the contraband was found concealed in pouches inside the sandals/shoes or was found lying in open condition. PW5 Ajay Kumar, the Superintendent and the main supervising officer is also not able to tell the size of the room or the number of rooms in the raided premises. He also is unable to tell how many pouches/packets were recovered from the suitcases or from the shoes or the sandals. Jai Bhagwan, another member of the raiding team does not even remember the number of sandals that were recovered from the premises. As regards as to what the five male accused persons were doing when the raiding team entered the premises in question, though in para 3 of the complaint, it has been asserted that on entering the premises in question all the foreign nationals/accused persons were found carrying out some packing in suitcases and shoes etc, in para 4 it is asserted that the suitcases from which the contraband had been recovered were taken from the possession of the female accused persons namely Maria and Isabel and that the shoes from which the contraband was recovered were found kept in a cardboard in the room SC No. 20/09 Page No. 31 of 60 NCB Vs. Jude Chidiebere & Ors.
similar assertions are recorded in the panchnama Ex.PW2/J. PW2 Akhilesh Kumar Mishra in his examination in chief also states similar facts however in his crossexamination, he has gone on to state that some shoes and sandals were held by five male accused when the NCB had entered the house a deposition contrary to the contents of the panchnama. Further, if indeed the accused persons were carrying out the packing in shoes, sandals, etc, there would have been some adhesive solution, cutter, scissors, etc recovered from the house but it is the own supervising officer of the investigating agency, PW5 Ajay Kumar who has admitted in his crossexamination admitted that no adhesive or scissor or cutter was found in the room and neither he nor the IO even bothered to ask from the accused persons as to how the suitcases, sandals and shoes had been cut opened to conceal the contraband.
27. Thirdly, the assertion of the prosecution that one female NCB official namely Ms. Rajni Karki was one of the members of the raiding team also cannot be believed. Apart from the testimony of PW6 who has clearly stated that on 13.04.2009 only male NCB officers had come to the premises and no female officer had come, the testimony of PW10 Rajni Karki itself creates a grave doubt about her presence at the spot. This witness in her crossexamination has stated that her duty hours used to begin at 09.30 AM and used to end by 06.00 PM in the year 2009 and SC No. 20/09 Page No. 32 of 60 NCB Vs. Jude Chidiebere & Ors.
that the information regarding the raid was given to her by Akhilesh Kumar before 06.00 PM and further states that Akhilesh Mishra had asked her to stay in the office as there was possibility of ladies in the raid. Now according to the prosecution version, the secret information was only received at 08.30 PM on 13.04.2009 (and not before 06.00 PM as asserted by this witness) and a perusal of Ex.PW2/A, the secret information reduced into writing also shows that there was no mention that there were any lady foreign nationals who could be the possible offenders. This court does not at all agree with the contention of the prosecution that this is a minor discrepancy in the statement of PW10, for this witness is categorical that her duty hours were only till 06.00 PM and that therefore she was informed by Akhilesh Mishra before 06.00 PM about the raid. Now either this witness has deposed incorrectly or else or the remaining members of the raiding team have deposed incorrectly about the time of receipt of the secret information and the document Ex.PW2/A is a manipulated document, as asserted by the Defence. It does appear from the statement given by this witness PW10 in her crossexamination that it is she who has deposed incorrectly and that is for the reason that she was never a part of the raiding team and therefore is not aware of any of the material facts about the search and seizure proceedings or the correct time of the receipt of secret SC No. 20/09 Page No. 33 of 60 NCB Vs. Jude Chidiebere & Ors.
information. Though for the sake of brevity, the statement given by this witness in her crossexamination is not being reproduced, it will be relevant herein to mention that in answer to at least 35 questions, she has either stated that she does not know or does not remember the facts being asked from her she does not remember the route taken to the spot, the name of the driver, location of the house raided, the names of the two panch witnesses, the existence of a bell on the door of the premises in question, the number of NCB officials who had entered the premises and whether they were carrying any arms or not, the relevant facts with respect to the serving of notice u/s 50 NDPS Act, the description of the premises that were raided, the number of rooms therein, the make of the suitcases allegedly recovered from the flat and their condition (whether open or closed), the description of the bag from which the contraband was recovered (whether it was of polythene, rexene or of cloth), the number of incriminating articles i.e. sandals (in which the contraband was allegedly concealed) were recovered from the premises in question, the weight of the contraband allegedly recovered, the markings given to the samples and to the seized contraband, the time the raiding team left the premises in question.
28.The statements made by this witness in her crossexamination show that she has tried to wriggle out from answering any of the pertinent SC No. 20/09 Page No. 34 of 60 NCB Vs. Jude Chidiebere & Ors.
questions by taking a stand that she was not paying attention to the details of the search and seizure proceedings. Even if one does believe that she was not expected to remember all the details, it is unacceptable that she does not even know how many rooms were there in the premises in which she assertedly stayed for 23 hours and that she could not even tell the weight of the contraband recovered and further she could not even correctly depose from where exactly the contraband was recovered. Further, contrary to the contents of the panchnama, she has deposed that the sandals in which the contraband was allegedly concealed were in the suitcases itself, though as per the main investigating officer this was not so and the sandals were infact recovered from a cardboard kept in the room. Thus, the answers given by this witness in her crossexamination do clearly show that she has no clue whatsoever about the search and seizure proceedings that assertedly took place in her presence and therefore the only inference that can be drawn is that she was not present during the raid.
29.Another attendant fact which has come on record and which creates a doubt on the credibility of the main investigating officer himself, is with respect to the assertion made by him that he had served notices u/s 50 of the NDPS Act to the accused persons before conducting the search and seizure proceedings. Though this court agrees with the submissions of SC No. 20/09 Page No. 35 of 60 NCB Vs. Jude Chidiebere & Ors.
the NCB that it was not necessary that the notices u/s 50 NDPS Act were to be served upon the accused persons as admittedly the contraband had not been recovered from the person of the accused persons, however it is own deposition of the IO that he had served the notices u/s 50 of the NDPS Act on each of the accused person and therefore it is open for the Defence to contend that this deposition of the IO is incorrect. Now as per the deposition of this IO Akhilesh Kumar, he had prepared the said notices in duplicate and that the accused persons had retained the carbon copy of the same and if the same is to be accepted then obviously the carbon copy of the said notices should have been recovered from the jamatalashi of the accused persons, but that is not the case. Though a copy of the summons issued to the accused persons u/s 67 NDPS Act has been shown to be recovered from them during their jamatalashi, no copy of any notice u/s 50 NDPS Act is shown to have been recovered during their jamatalashi. The contention made by the Ld. SPP in its written submissions namely the accused persons might have destroyed the said carbon copies cannot at all be accepted for none of the prosecution witnesses have stated anything in this regard. The aforementioned circumstances on record does support the contention of the defence that no such documents were prepared at the spot and the same were prepared later on in the NCB office and the accused persons were made to sign SC No. 20/09 Page No. 36 of 60 NCB Vs. Jude Chidiebere & Ors.
them and that this fact itself raises a grave doubt on the credibility of the testimony of the prosecution witnesses.
30.The version of the prosecution that the investigating officials had included two independent public persons in the raiding team is also not free from doubt. The categorical assertion of the defence was that both the witnesses shown as panch witnesses were known to the NCB officials and that one of them, namely Raman Singh used to work with K.L. Tour and Travels having its office at shop no. 19, Sector V, R.K. Puram, New Delhi and that NCB used to hire vehicles from the said firm and therefore was a stock witness used by the NCB in this case and the other panch witness Paramjeet Singh was a friend of Raman Singh only. To prove the said contention of the defence various questions were put both to the IO Akhilesh Kumar Mishra and PW5 Ajay Kumar, Superintendent. Though the Superintendent Ajay Kumar admitted that NCB had on more than one occasion hired vehicles from K.L. Tour and Travels and that he knew the owner of the said firm namely one Daler Singh, both these witnesses gave evasive replies to the persistent questions put on behalf of the defence namely that the address of Raman Singh shown in the records by the NCB itself was shop no. 19, Sector V, R.K. Puram, New Delhi, is infact the address of K.L. Tour and Travels. The defence would have probably succeeded in proving their contentions SC No. 20/09 Page No. 37 of 60 NCB Vs. Jude Chidiebere & Ors.
had they been given an opportunity to cross examine the said panch witness themselves but it is a matter of record that the prosecution has failed to produce one of the panch witness Paramjeet in the witness box and though they had produced another panch witness Raman Singh in the witness box, the said witness thereafter did not appear for tendering himself for cross examination. As such the defence never got an opportunity to cross examine Raman Singh to elicit from him whether he worked for the K.L. Tour and Travels. This witness however in his examination in chief itself has deposed that Paramjeet is his friend . Further though as per the deposition of the IO Akhilesh Kumar Mishra he had issued a summon u/s 67 NDPS Act to this witness directing him to appear in the NCB office on 15/4/2009, the said witness did not appear on the said date before the NCB officials and as per the deposition of the IO Akhilesh Kumar Mishra it was only on 28/7/2009 that Raman Singh had come to the NCB office to tender his statement. On a specific question as to how the said witness appeared on his own, the IO Akhilesh Mishra had merely deposed that he had come on his own and had not been called by the NCB it is indeed questionable that when the said witness was not issued any summons by the NCB to appear before them on 28/7/2009, how did he on his own appear in the NCB office on the said date. Such kind of attendant circumstances on record SC No. 20/09 Page No. 38 of 60 NCB Vs. Jude Chidiebere & Ors.
do support the contention of the defence that the prosecution witnesses have deposed incorrectly even with respect to the so called independent witnesses to the recovery of contraband.
31. In these facts and circumstances that have come to the fore, this court is constraint to note that the prosecution has not been able to prove at all that the contraband was recovered from the premises and the accused persons were apprehended in the manner asserted by them. In a judgment pronounced by the Hon'ble Delhi High Court in a case titled as Gurcharan Singh Vs. State 1993 (2) Crimes 229, it has been clearly held by the Hon'ble High Court that a condition precedent for the prosecution to prove the guilt of the accused is to first prove that its case is plausible and probable and is a true narration of facts and that it did happen in the way and manner as it is asserted to have taken place. The Hon'ble Delhi High Court has categorically held that in case the prosecution fails in this primary duty, the courts need not go any further and need not make any more enquiry in as much as the said case is liable to be dismissed on this short ground alone. The Hon'ble Supreme Court also, in its judgment pronounced in case titled as Premchand Vs. Union of India reported in 1981 SCC (Crl.) 239, has insisted that in the administration of criminal law, the means that the prosecution agency SC No. 20/09 Page No. 39 of 60 NCB Vs. Jude Chidiebere & Ors.
adopts to secure the conviction of a criminal must also be as good as the ends. In the present case, this court is constrained to hold, for the reasons given hereinabove, that the prosecution has not come forward with the true narration of facts and the evidence brought on record makes it clear that the case of the prosecution is not at all probable and the apprehension of the accused persons and the recovery of contraband could not have taken place in the way and manner as it is alleged to have taken place.
32.Despite the aforementioned judicial dicta, it has been contended on behalf of the prosecution that even if minor discrepancies have crept in the depositions of the various prosecution witnesses with respect to the manner in which the premises were raided and the accused persons were apprehended, the prosecution has been able to prove that contraband was recovered from the premises in question and that accused persons were also apprehended from the said premises and the contention therefore is that then it was upon the accused persons to explain as to what they were doing in a premises from which contraband had been recovered. The said contention made on behalf of the prosecution is not acceptable for a presumption of the nature, as contended by the NCB, can be drawn against the accused persons u/s 54 of the NDPS Act only once the prosecution has been able to prove that it was the accused who had been SC No. 20/09 Page No. 40 of 60 NCB Vs. Jude Chidiebere & Ors.
found in possession of the contraband. The Hon'ble Supreme Court in Noor Aga's case has held has follows:
"Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused and also place burden of proof in this behalf on the accused; but a bare perusal the said provisions would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt "
but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
33.It is also well settled law that the word "possession" must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. In its judgment pronounced in a case titled as Om SC No. 20/09 Page No. 41 of 60 NCB Vs. Jude Chidiebere & Ors.
Prakash @ Baba Vs. State of Rajasthan (2009) 10SCC 632, the facts before the Hon'ble Supreme Court were that the prosecution had been unable to prove that the accused was the owner and in possession of the house from where the contraband was recovered. The Hon'ble Supreme Court in such facts held that :
"Even assuming for a moment that the house did belong to the appellant and was in his possession, the prosecution was further required to show that the appellant had exclusive possession of the contraband as a very large number of persons including the appellant and five of his brothers, their children and their parents were living therein."
34.Now in the present case it is the own case of the prosecution that none of the accused persons were tenants in the said premises and the prosecution itself has admitted that as per the copy of the rent agreement supplied by the landlady, PW6 Sunita, one Ms. Lovunge Ngulli was the tenant in the said premises. Thus, the prosecution has also not been able to prove that the accused persons were in exclusive possession of the premises from which the contraband has been allegedly recovered. Further, very surprisingly no efforts have been made by the investigation agency to trace out and make an enquiry from the said tenant and on the contrary a report has been filed merely that the Kolkata office of NCB SC No. 20/09 Page No. 42 of 60 NCB Vs. Jude Chidiebere & Ors.
had verified the antecedents and address of Ms. Lovunge Ngulli and had informed the NCB Delhi that she was a permanent resident of Dimapur, Nagaland and that in July, 2009 was residing at H.No. 14/16, 3rd floor, Indira Vikas, Mukherjee Nagar and that no adverse record was found against her either politically or criminally. The investigating official of this case, Akhilesh Kumar Mishra in his crossexamination has admitted that he had not carried out any investigation with respect to the said lady after the said report was obtained. It is indeed questionable that when the NCB had accepted the version of PW6 Sunita, the landlady of the raided premises that it was Ms. Lovunge Ngulli who was the tenant in the raided premises and that she was the one who was frequently visited by foreign nationals carrying suitcases, why did the investigating agency not bother to conduct any enquiry with respect to the said lady. The said lapse on behalf of the investigating agency cannot be brushed aside lightly, for the defence taken on behalf of the 5 male accused persons is that they have been apprehended in this case only because the male Nigerians who were the actual tenants in the raided premises, had managed to escape and the NCB arrested the accused persons only because they also happened to be Nigerians residing nearby the raided premises.
SC No. 20/09 Page No. 43 of 60 NCB Vs. Jude Chidiebere & Ors.
35.As narrated hereinabove in the preceding paragraphs, the defence taken by the five male accused persons is that they were not apprehended by the NCB officials from the second floor of WZ40/2, Sant Garh but that they were forcibly picked up by the NCB officials from the premises C6, Gali No.14, Sant Garh, Tilak Nagar on the pretext that their passports were to be verified. According to the statements tendered by the five male accused persons u/s 313 Cr.PC, the premises C6, Sant Garh had been taken on rent by accused Godson and that accused Vincent and accused Jude were also staying alongwith him in the said premises since 01.04.2009 and that on the date of incident i.e. on 13.04.2009, the accused Godson had invited his friends i.e the other two coaccused persons Solomon and Godfrey for Easter dinner at his house. Accused Godson has also additionally stated that he had invited another friend of his namely Kestero for dinner to his house on the said date and that this person was also initially apprehended by NCB but he managed to escape from their custody while he was being forced by the NCB officials to accompany them. Accused Vincent in his statement has also narrated that his visa had expired on the date of his apprehension and after noting the same, the NCB officers had told him that they will let him go if he pays them an amount of Rs.5 lacs. Ld. Defence counsel Sh. Peter has pointed out that initially when this case was at the stage of framing of SC No. 20/09 Page No. 44 of 60 NCB Vs. Jude Chidiebere & Ors.
charge the accused persons had been willing to undergo a Narco Analysis test to prove that they have never been apprehended by the NCB officials from WZ 40/2 second floor, Sant Garh but that they were forcibly picked up from C6, Sant Garh and that they were not speaking a lie in this regard. He has further pointed out that the affidavit of the landlady of the premises C6, Sant Garh, Ms. Lakhwinder Kaur was also filed on record before the framing of charge and that it was prayed on behalf of the accused persons that the court must grant them bail keeping in view that they are willing to undergo a Narco Analysis Test and also the affidavit of the landlady Ms. Lakhwinder Kaur filed on record. Ld. Defence counsel has further pointed out that the Ld. Predecessor of this court however rejected this plea on the ground that the Narco Analysis Test can only be done by the investigating agency in aid of the investigation and the accused persons have no right to ask for the same and further that the accused persons will be at liberty to call their landlady during trial and her affidavit cannot be deemed sufficient for granting bail or discharging the accused persons. Ld. Defence counsel Sh. Peter has further submitted that though all the accused persons in their statements u/s 313 Cr.PC had submitted that the landlady of C6, Sant Garh will come in the witness box and will support their version, he (i.e. Ld. Defence Counsel) was unable to bring the said lady in the SC No. 20/09 Page No. 45 of 60 NCB Vs. Jude Chidiebere & Ors.
witness box as on enquiry she was informed to be out of station and her family members were reluctant to part with the information as to when she will return to Delhi. Ld. Defence counsel Sh. Peter has submitted that in the affidavit filed by this landlady Lakhwinder Kaur, which is on record, it is clearly mentioned by her that she and Ms. Sunita, the landlady of the raided premises in question were taking a walk when some NCB officials had come and raided the second floor of WZ 40/2, Sant Garh and that there had been a shoot out also but two male Nigerians had managed to flee from the raided premises. It is further narrated in the affidavit that thereafter the NCB officials approached her and asked her whether she knew any Nigerian residing nearby and when she informed them that some Nigerians are also residing at her premises, six Nigerians were apprehended by them and were taken by them on the pretext that some enquiry had to be done from the said boys. Ld. Counsel Sh. Peter has submitted that for reasons beyond the control of accused persons, they have not been able to produce Ms. Lakhwinder Kaur but his argument is that her affidavit filed on record clearly proves the defence of the accused persons. He has also submitted that the accused persons have been able to prove by crossexamining the prosecution witnesses that they were in fact not apprehended by the NCB officials in the manner alleged by them. He has pointed out that PW6 SC No. 20/09 Page No. 46 of 60 NCB Vs. Jude Chidiebere & Ors.
Ms. Sunita in her crossexamination has admitted that she was told by Ms. Lakhwinder that the five male accused persons been taken away by the NCB officials were infact arrested from her house. Thus, according to Ld. Defence counsel, the said statement of PW6 alongwith the other discrepancies and contradictions that have come to the fore during trial are sufficient to hold that the accused persons have succeeded in proving their defence by 'preponderance of probability' and that their failure to produce the landlady in the witness box cannot lead to an inference that they have stated false facts in their statements u/s 313 Cr.PC.
36.In the considered opinion of this court, the affidavit referred to by the Ld. Defence counsel cannot at all be considered for the lady Ms. Lakhwinder Kaur who has purportedly signed the said affidavit has not been produced in the witness box by the accused persons. No doubt it is acceptable that the accused persons being in custody for the last three years are now not in a position to convince the said lady that she must step into the witness box to speak the truth on their behalf however the contention of the Ld. Defence counsel that the affidavit tendered by the said lady be read into evidence is definitely not acceptable. However having said so, this court does agree with the Ld. Defence counsel that the statement of PW6 in her crossexamination that she had not actually seen the five male accused persons being apprehended from the second SC No. 20/09 Page No. 47 of 60 NCB Vs. Jude Chidiebere & Ors.
floor of her premises but that she had seen five male persons sitting in the NCB vehicle and though she was informed by the NCB officials that they had been apprehended from her premises, she was also informed by Ms. Lakhwinder Kaur that these five males had infact been apprehended from her premises does make the defence taken by the five male accused persons probable. It is also to be noted that when the IO PW2 Akhilesh Kumar Mishra was asked in his crossexamination about the residence of the accused persons, he has admitted that the five male accused persons were living near the place of raid. However when he is specifically asked about their addresses and the reason as to why the said house was not raided, all that he has stated is that the addresses of the five male accused persons are mentioned in the arrest memo and that since he was not heading the investigation, he cannot give the reason why the said residential premises of the accused persons were not raided for search of more narcotic drugs. Now admittedly, none of the arrest memos of the five male accused persons mentions their residential premises in Delhi and it is only their permanent addresses of Nigeria which find mention in the arrest memos. Further a perusal of the statements tendered by the five male accused persons shows that none of them purportedly informed the NCB officials about their residing at a place nearby the raided premises. In fact none of the documents purportedly prepared by the SC No. 20/09 Page No. 48 of 60 NCB Vs. Jude Chidiebere & Ors.
investigating agency on the date of apprehension and the arrest of accused persons mention the residential addresses of the said accused persons, on the date of their apprehension, in India as per the version of the investigating agency, PW6 had not identified the accused persons on the date of their apprehension and it was only on 14.04.2009 when PW6 Sunita had appeared before the NCB officials and had tendered her statement Ex.PW6/C, that she was shown the accused persons and then she had identified the five male accused persons as the ones who had been staying in her neighbourhood at C6, Sant Garh, New Delhi. Thus as per the evidence on record in fact the NCB raiding team did not get to know, on the date of apprehension of the accused persons that they resided at a place nearby the raided premises and there is no explanation forthcoming from the prosecution as to how then on the date of apprehension of the accused persons itself, Akhilesh Kumar Mishra became aware of their residences being near the raided premises. The Defence may perhaps be right in therefore contending that the said investigating officer came to know of this detail only because the five male accused persons were in fact picked up from C6, Sant Garh where they were actually residing. Apart from the inconsistencies and the discrepancies discussed in the version put forward by the prosecution, it has also to be taken note of that the statement of accused Godson u/s 313 SC No. 20/09 Page No. 49 of 60 NCB Vs. Jude Chidiebere & Ors.
Cr.PC that one of his friend namely Kestero who had also been invited for the Easter dinner at C6, Sant Garh managed to escape from the spot does draw some credence from the fact that the passport of this person Kestero has been shown by the investigating agency to have been seized from the spot of the incident. Thus, the attendant circumstances and facts that have emerged during the trial and which have been discussed in detail hereinabove do throw a grave doubt on the credibility of the NCB officials and in such circumstances, it will not be safe to conclude that the prosecution has been even able to prove that the accused persons were in any kind of possession of the raided premises.
37. Coming now to the contention of the NCB that the statements tendered by the accused persons u/s 67 of the NDPS Act are sufficient to prove their guilt, this court finds that the said statements can also not be made the basis for convicting the accused persons of the offences that they have been charged with. No doubt the Hon'ble Supreme Court in its various judgments pronounced in NDPS cases, that have been relied upon by the Ld. SPP, has held that a statement given by an accused u/s 67 NDPS Act is admissible in evidence and can be used for determining the guilt of an accused however at the same time the Hon'ble Supreme Court has also cautioned that a court must be satisfied that the said statement was given voluntarily and that before acting solely on it, as a rule of SC No. 20/09 Page No. 50 of 60 NCB Vs. Jude Chidiebere & Ors.
prudence, a court must look for some corroboration. The Hon'ble Supreme Court in its judgments pronounced in cases titled as Union of India Vs. Bal Mukund (supra) and Noor Aga Vs. State of Punjab and Anr. (supra) respectively has clearly held that the purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement. In Bal Mukund's case, the Hon'ble Supreme Court observed that the authorities under the NDPS Act can always show that the accused had not been formally arrested when his statement was recorded u/s 67 of the NDPS Act and that therefore a court while weighing the evidentiary value of such a statement should not lose sight of the ground realities. Further in para 28 of the said judgment the Hon'ble Supreme Court has reiterated that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. The Hon'ble Supreme Court in the said case also made it clear that the observations made by it in Kanhaiya Lal Vs. Union of India (2008) 4SCC 668, (a judgment often relied by the NCB to contend that it is under no obligation to prove that the statement tendered by an accused was voluntary) was passed in view of the peculiar facts in the said case namely that no crossexamination of a material witness was conducted with respect to statement tendered by the SC No. 20/09 Page No. 51 of 60 NCB Vs. Jude Chidiebere & Ors.
accused. In Noor Aga's case, the Hon'ble Supreme Court has clearly held that whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. In another case titled as Francis Stanly Vs. NCB reported in (2006) 13 SCC 2010 the Hon'ble Supreme Court has cautioned that a confession asserted to have been recorded under the NDPS Act must be made subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act.
38.In the present case admittedly all the accused persons have retracted the statements tendered by them u/s 67 NDPS Act. Further admittedly as per the deposition of PW6, Sunita she had seen all the accused person handcuffed while they were being taken away by the NCB officials from the spot. In her cross examination she has specifically deposed that she had seen the accused persons tied in chains while they were taken away from the premises in question. Even PW10 Rajni Karki in her cross examination has admitted that none of the female accused persons were at liberty to leave the NCB office. In view of the said depositions of the prosecution witnesses, it is to be held that all the accused persons were therefore in the custody of NCB officials when they were made to tender SC No. 20/09 Page No. 52 of 60 NCB Vs. Jude Chidiebere & Ors.
their statements u/s 67 NDPS Act and therefore as per the judicial dicta laid down by the Hon'ble Supreme Court such statements even if tendered by the accused persons cannot be stated to have been given voluntarily. Further a perusal of the statements purportedly tendered by the accused persons clearly show that they were not informed of their right to remain silent. Infact a perusal of the statements of the male accused persons show that they were recorded in a very hurried manner. It is very interesting to note that infact accused Solomon refused to narrate any facts to the investigating officer Jai Bhagwan and has merely stated in his statement that he was born in Nigeria and that he has four brothers and four sisters and that he had come to India on 1/2/2009 to study computers. He has further stated that he was with his friend and that he does not wish to give any further statement. Thus this accused has no where admitted that he has anything to do with the recovered contraband. A perusal of the statement given by accused Supattra, Ex.PW2/Q also shows that she has nowhere admitted that she was involved in dealing with drugs. Infact this accused has interalia written in the said statement that she had come to India on a tourist visa on 6/4/2009 and that her friend Mariana who was staying at WZ40/2, 2nd floor, Sant Garh had asked her if she will help her in drug exporting but that she refused to join them. The accused Godson has also not admitted SC No. 20/09 Page No. 53 of 60 NCB Vs. Jude Chidiebere & Ors.
that he had anything to do with the contraband recovered. He has merely stated that on the date of his arrest he was present in house no. WZ/40, IInd floor, Sant Garh and at that time NCB officers had come to the said house, searched it and recovered some white powder. When asked about the seized heroin he had stated that the three ladies present in the house were flying to South Africa with the suitcases and the shoes having heroin. Similarly Vincent had not admitted that he was found packing any contraband. His statement is only to the effect that he was present when the NCB officials had searched the house in question but that no drugs were recovered from his possession. This accused and the accused Jude and Godfrey however admit that they were paid to pack heroin but very interestingly no question was put to them as to who used to pay them for packing the said heroin. PW4 Vikas Kumar, who had recorded the statements of accused Jude and Godson, on being questioned as to why no enquiry in this regard was made from the said accused persons has merely evaded the same by stating that he does not remember whether he had put any such questions or not. Similarly PW12 Jai Bhagwan who had recorded the statements of remaining three accused persons has not given any reason whatsoever as to why he had not questioned the accused persons in this regard. The entire purpose of section 67 NDPS Act as is apparent from its provisions is that the SC No. 20/09 Page No. 54 of 60 NCB Vs. Jude Chidiebere & Ors.
investigating officials have been given the powers, in aid of investigation, to call for information from any person. The purpose of the said section is not to record the admission of the recovery of contraband from an accused in the present case however, the said section has been resorted to for recording the admission of guilt by the accused persons, after the recovery of the contraband was allegedly made and in the statements of the five male accused persons there appears to have been no question whatsoever put to the accused persons as to at whose instance were they packing the heroin and who were to pay them.
39.In view of the discussion hereinabove it is clear that the statements purportedly tendered by the accused persons u/s 67 of the NDPS Act cannot be made the basis for holding the accused persons guilty of the offence that they have been charged with.
40.At this stage, it will also be relevant to point out that the investigating agency has also not followed the proper procedure for drawing out samples. Admittedly no separate samples were drawn from the substance allegedly recovered from the suitcases, sandals or the bag lying in the corner of the room and as per the own assertions of the prosecution, the powder allegedly recovered from the suitcases, sandals and the bag were first mixed together and only thereafter the samples were drawn. Clearly the said manner of drawing out sample cannot be stated to be proper. In SC No. 20/09 Page No. 55 of 60 NCB Vs. Jude Chidiebere & Ors.
a very recent judgment dated 02.07.2012 pronounced in a case titled Basant Rai Vs. State Crl. Appeal No. 909/2005, the Hon'ble Delhi High Court has held that where proper procedure for drawing out the samples has not been followed by the investigating agency, the benefit of doubt will have to be given to the accused. The Hon'ble High Court, in the said judgment, in para 27, took an example that if out of 8 packets that are allegedly recovered from an accused, only two packets were having contraband and the rest six packets do not have any any contraband, the action of the IO of mixing the substance of all the 8 packets and then drawing out the samples will lead to an incorrect result.
41. It is also to be taken note of that there is some missing link evidence with respect to the deposit of the contraband recovered with the malkhana. Though PW2 Akhilesh Kumar has deposed in his examination in chief that he had deposited the case property as well as samples with the malkhana incharge, he does not specify who was the malkhana incharge at the relevant time. Even if the contention of the NCB that at the relevant time, the Superintendent NCB used to be the malkhana Incharge and that is why his signatures appear in the malkhana register, is accepted, PW5 Ajay Kumar has nowhere deposed that the case property had been deposited with him by Akhilesh Kumar on the same day immediately after the raid.
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42.Another relevant fact pointed out by the Defence with respect to the evidence on record which needs a mention is the document Ex.PW2/N, a copy of the relevant page of the seal movement register placed on record by the prosecution. The said document has been placed on record by the prosecution to show that on 13.04.2009, at about 2135 hours, the seal DZU4 of NCB was issued to Akhilesh Kumar Mishra by Ajay Kumar, Superintendent NCB. Now, a perusal of the said page shows that just before the entry pertaining to the issuance of seal to Akhilesh Kumar Mishra is mentioned, there is another entry of 13.04.2009, which shows that at about 1000 hours on the same day, the seal of DZU 5 was handed over to Jai Bhagwan by the Superintendent Ajay Kumar. Now when Ajay Kumar is questioned with respect to the procedure of issuance of seal, he has categorically stated that seals are issued to an investigating officer only at the time of raid. In other words, according to him, the seal would have been issued to Jai Bhagwan only if he was going to proceed on a raid however, this IO Jai Bhagwan when crossexamined in this regard has categorically stated that he had not been issued any seal on 13.04.2009 and that he had not participated in any raid on 13.04.2009, apart from the raid conducted in the present case. He was even confronted with the document Ex.PW2/N but he did not give any explanation with regard to the said entry. Though the Defence may not SC No. 20/09 Page No. 57 of 60 NCB Vs. Jude Chidiebere & Ors.
be completely right in contending that the said entry infact proves that the NCB had made a recovery of contraband in some other case and had then planted it on the accused persons, the said circumstance does raise a grave doubt on the authenticity of the documents namely the seal movement register maintained by the NCB.
43.To sum up now therefore, the inconsistencies and contradictions, discussed herein above are sufficient, in the considered opinion of this court to hold that the prosecution has not been able to prove its case against the accused persons beyond all reasonable doubt. This court does not agree at all with the prosecution that the aforesaid contradictions are not relevant and are not fatal to the case of the prosecution. In a criminal case an accused has no other way to show that a false case has been foisted on him except to show that the witnesses examined by the prosecution are not telling the truth when they are making discrepant statements on material aspects of the case. The Apex Court in the case of State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 has held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed". In Noor Aga vs. State of Punjab and Anrs. 2008 (3) JCC (Narcotics) 135 it was held that in cases SC No. 20/09 Page No. 58 of 60 NCB Vs. Jude Chidiebere & Ors.
arising out of the provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. It has also been observed by the Hon'ble Supreme Court in the said case that though the standard of proof required to prove the guilt of the accused on the prosecution is 'beyond all reasonable doubt' but the standard of proving required for the accused to prove his or her innocence is 'preponderance of probability'.
44.The aforementioned discussion in the preceding paragraphs shows that neither can it be held that the accused persons were apprehended in the manner alleged by the prosecution and contraband was recovered from them nor can it be held that the accused persons were in the exclusive possession of the raided premises nor can the statements of accused persons be relied upon as the sole basis for determining their guilt in the present case. In the considered opinion of this court, the prosecution cannot be allowed to plead that the secret information received by them, the recovery of the contraband and the statements tendered by the accused persons raise a grave suspicion that they only were involved in packing of the contraband at the raided premises, for it is well settled law SC No. 20/09 Page No. 59 of 60 NCB Vs. Jude Chidiebere & Ors.
that however grave a suspicion be, it cannot take the place of legal proof. Specific reference in this regard has been made to the judgment of Hon'ble Supreme Court in the case titled as Sharad Birdichand Sarda Vs. State of Maharashtra reported in (1984)4 SCC 116.
45.In view of the discussion hereinabove, this court is of the considered opinion that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt and therefore the accused persons are entitled to be acquitted of the charges for which they have faced trial. The accused persons therefore stand acquitted.
Announced in the open court
on 26th day of March, 2013 (Anu Grover Baliga)
Special Judge, NDPS
New Delhi
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