Delhi District Court
State vs . on 24 December, 2011
1
IN THE COURT OF MS RAVINDER KAUR
SPECIAL JUDGE (NDPS)/ASJ
DWARKA COURTS, NEW DELHI
SC No. 03/2/11
FIR No. 59/11
P.S: Delhi Cantt.
U/s. : 21 (c) NDPS Act &
14 Foreigner Act
State
Vs.
Bartholomew Oluchukwu
S/o Late Semon Chukwuk a
R/o H.No.7,
Bayo Akintunde Street,
Coker Orile, Lagos,
Nigeria.
Date of Institution : 29082011
Date of Decision : 24122011
JUDGMENT
FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 1
2
1 Accused Bartholomew Oluchukwu has faced trial under Section 21 (c) of NDPS Act and under Section 14 Foreigners Act.
2 The prosecution case is that on 14.04.2011 at about 7 p.m, Ct. Mahavir Singh along with the secret informer had reached the office of the SHO and the secret informer gave an information that one African would be reaching in front of Coffee Cafe Day at Gopinath Bazar, Delhi Cantt., while proceedings to a courier company to send abroad some readymade clothes concealing 'Heroin' therein. The said information was verified by the SHO and then passed on to the ACP and he directed for immediate action. The said information was reduced into writing vide DD No. 25 A. A raiding party was organized comprising of ASI Suresh Chand, Ct. Mahavir Singh, Ct. Vikram Singh and the secret informer. The raiding party in an official gypsy reached the spot as mentioned in the secret FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 2 3 information where the SHO had requested some passersby to join the raiding party, but expressing their inability they left. The members of the raiding party took their respective position and at about 7.40 p.m, the accused was pointed out by the secret informer who was holding a white colour polythene and was apprehended. Accused was informed about the secret information and that his search was to be conducted. He was also informed of his right of getting his search to be conducted in the presence of a Magistrate or a Gazetted officer. ACP Delhi Cantt. was summoned to the spot.
3 ASI Suresh Chand then served notice u/s 50 NDPS Act upon the accused but he refused to avail his right thereunder. The search of white polythene which he was holding was conducted which was containing 3 lehangas, 3 chunris and 3 blouses of different colour and on all the lehangas, there were white fancy strips stitched FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 3 4 which were appearing to be fluffy, same were unstitched and it revealed that below them, small polythenes were concealed therein containing white powder substance and in all there were 270 polythenes which were weighed and found to be 566 gms and then the mouth of each polythene was cut and white colour powder was taken out which was found to be 518 gms. Two samples of 5 gms each were taken out and were sealed separately and were given Mark A and B. The remaining heroine of 508 gms was also sealed separately and was given Mark C. The empty polythenes were sealed in separate pulandas and were given Mark D and the clothes were sealed in separate pulanda and were given Mark E. 4 The FSL Form was filled in. All the pulandas and the FSL form were sealed with the seal of SC. The case property was seized vide seizure memo and thereafter rukka was prepared and was sent to P.S for FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 4 5 registration of the case through Ct. Akhil and the case u/s 21 NDPS Act was got registered. The accused was arrested and was got medically examined. The information was sent to the Embassy of Nigeria as well as DCP, FRRO regarding arrest of the accused.
5 During investigation, the accused could not produce his valid passport and Visa and hence, Section 14 of the Foreigners Act was also added in the chargesheet. 6 During investigation, the case property was deposited in the malkhana and then sent to FSL, Rohini for examination. As per the report of FSL, both the samples were found to be containing diacetylmorphine, Caffeine, Acetylcodeine and Monoacetylmorphine. 7 After completion of the investigation, chargesheet u/s 21 NDPS Act and u/s 14 Foreigners Act was filed in the Court through SHO concerned. 8 On the basis of material on record, the FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 5 6 charge u/s 21 (c) NDPS Act and u/s 14 Foreigners Act was framed against the accused to which he pleaded not guilty and claimed trial.
9 The prosecution in support of its case had examined 9 prosecution witnesses in all. 10 PW1 Dr. Kanak Lata Verma, Sr. Scientific Officer (Chemistry) from FSL, Rohini, had examined the sample parcels Mark A and B respectively and proved her report in this regard as Ex.PW1/A and testified that on chemical examination of both the exhibits A and B through chromatography and instrumental methods and found that Ex.A and B were containing diactylmorphine Caffeine, Acetylcodeine and Monoacetylmorphine and the percentage of diactylmorphine was found to be 31.96% and 35.70 % in Exhibits A and B respectively.
11 PW2 Ct. Vikram was the member of the raiding party and deposed on the lines of the case of FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 6 7 prosecution and proved the seizure memo of the case property i.e. readymade clothes recovered from the possession of the accused and empty powders from which substance was recovered as Ex.PW2/A, the site plan of the spot as Ex.PW2/B, the arrest memo of the accused as Ex.PW2/C, the personal search of the accused was conducted vide memo Ex.PW2/D, the disclosure statement of the accused was Ex.PW2/E. He also identified the sample Mark A and B as Ex.P1 and Ex.P2 respectively and the remaining substance as Ex.P3. He also identified the empty pouches 270 in number as Ex.P4 (1 to 270) and the readymade clothes 9 in number as Ex.P5 (1 to 9) and the cloth strips under which the substance was found as Ex.P6 (1 to 29). During the course of his testimony, he also identified the accused correctly.
12 PW3 ASI Suraj Bhan was the Duty Officer on 14.04.2011 and had recorded the information vide DD FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 7 8 No.25 A under the directions of SHO Inspector Pratap Singh and he proved the photocopy of the same from original as Ex.PW3/A. He further proved the computerized copy of FIR recorded by him as Ex.PW3/B and his endorsement on the rukka as Ex.PW3/C. He proved the certificate u/s 65 B of the Indian Evidence Act as Ex.PW3/D. He further testified that he had recorded DD No. 29 A regarding the recording of FIR and from the original register, he proved the photocopy of the same as Ex.PW3/E. 13 PW4 Ct. Mahavir had received the secret information and had passed on the same to the SHO Inspector Pratap Singh, P.S Delhi Cantt. who had further conveyed the same to ACP Sh. J.L Meena and consequently a raiding party was organized.
14 PW4 was the member of the raiding party and he deposed on the lines of the case of the prosecution. FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 8 9 He proved the notice u/s 50 NDPS Act served upon the accused as Ex.PW4/A. During the course of his testimony, he identified the case property and the accused correctly. 15 PW5 SI Shakti Singh is the 2nd IO of the case who had prepared the site plan and had arrested the accused. He proved the special report u/s 57 NDPS Act regarding arrest of the accused forwarded to the SHO as Mark PW5/A. He also wrote letters to the embassy of Nigeria and DCP FRRO regarding arrest of the accused in the present case and proved these letters as Ex.PW5/A and Ex.PW5/B respectively.
16 PW5 had also deposited the samples Mark A and B along with FSL form at FSL, Rohini vide R/C No. 78/21/2011 and he proved the copy of the R/C as Ex.PW5/C. He testified that later on he had collected the FSL result along with the two sealed pulandas from FSL, Rohini and he deposited the same in the malkhana and the FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 9 10 FSL result was filed on the judicial record. He proved the carbon copy of the notice u/s 50 NDPS Act recovered from jamatalashi of the accused as Ex.P8 and two mobile phones as Ex.P9 and Ex.P10 respectively.
17 PW6 Sh. Jaldhari Lal Meena, ACP, had also joined the investigation of this case and is a witness to the recovery of 'Heroin' from the possession of the accused concealed under the strips stitched on the readymade clothes. He deposed about receipt of two reports u/s 57 NDPS Act regarding seizure of contraband and arrest of the accused and proved the same as Ex.PW6/A and Ex.PW6/B respectively.
18 PW 7 was the then SHO PS Delhi Cantt.
He testified that on 14.4.2011 at about 7pm Ct Mahavir alongwith the secret informer came to his office and informed him that one African would be reaching Gopi Nath Bazar in 1 1½ hour alongwith Heroin concealed in FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 10 11 readymade clothes. After verifying the information from the secret informer and being satisfied, passed it on to the ACP Delhi Cantt who was present in the room of Inspt Investigation at PS Delhi Cantt. Thereafter he got the secret information recorded vide DD No 25A EX. PW 3/A. ACP directed him to organise raiding party consisting of him( PW 7Inspt Pratap Singh), ASI Suresh Chand, PW 4 Ct Mahavir and Ct Vikram was formed. He further deposed about reaching of the raiding party near Gopi Nath Bazar round about and parking of the official vehicle inside Sham Nath Street at a distance of about 70/80yards from the roundabout, about briefing of the raiding party and their taking respective positions at the spot. He stated that the secret informer was also briefed that the moment he spots the African person he should point out by his hand.
19 PW 7 further testified that at about 7:45pm FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 11 12 the secret informer pointed out towards one person i e the accused coming on foot on road from the side of base hospital and the moment he took turn towards Gopi Nath Bazar, he was apprehended. The accused was holding one white polythene bag in his right hand. PW 7 communicated with him in English language and disclosed to him about secret information. He stated that accused had difficulty in understanding the English language. PW 7 informed him about his legal right U/s 50 NDPS Act that his search could be conducted in the presence of a Magistrate or a Gazetted Officer and he was also told to conduct the search of the police officials. Initially the accused objected to his search being conducted and submitted that the information with the police was wrong and they could not conduct his search. He stated that in the meantime he sent PW4 Ct Mahavir to PS Delhi Cantt to bring ACP to the spot. At about 8:15/8:30pm ACP FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 12 13 arrived at the spot alongwith Ct Mahavir. 20 PW 7 further stated that he had convinced the accused to get his search conducted by the police officials. Notice U/s 50 NDPS Act was served by PW 9 ASI Suresh Chand and that the accused made an endorsement on the notice that initially he was not admitting that he was carrying drug but thereafter he admitted that he was possessing Heroin. He stated that notice was served upon the accused after 15/20 minutes of the arrival of ACP at the spot, after ACP had given his introduction to the accused and had told him about the secret information. 21 PW 7 further testified that after service of notice, PW 9 ASI Suresh Chand checked the polythene bag in possession of the accused which was found containing three ghagras, three chunries and three blouses. He deposed that under the embroidered gota on the ghagras, 270 small pouches of the length of 4/5 inches and width of FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 13 14 half inch were found concealed containing off white colour material like Heroin and the mouth of each polythene was found closed with heat press. He stated that one of the pouches was opened by ASI Suresh and it smelled like Heroin and its texture was also like Heroin. Thereafter ASI Suresh checked some of the substance on the Field Drug Test Kit by putting it on his palm and mixing a drop of chemical A1 and three drops of chemical A2 and it converted into violet colour which confirmed that it was Heroin.
22 PW 7 further testified that thereafter the substance was removed from all the polythenes and its weight was found to be 566grams. He again corrected himself and stated that all the polythenes pouches containing substance were weighed and found to be 566grams and thereafter the contents of the same were taken out in one polythene which weighed to be 518grams FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 14 15 and the weight of the empty polythene pouches was 48grams. He further testified that two samples of 5grams each were drawn from the recovered substance and were given Mark A and Mark B,the remaining substance was given Mark C, the empty pouches were given Mark D, the readymade clothes and unstitched strips were given Mark E and all the articles were sealed in separate cloth pulandas with the seal of SC by ASI Suresh Chand and thereafter he ( PW 7) counter sealed all the pulandas with his seal of PS. He has also deposed that form FSL was filled in at the spot by ASI Suresh who had affixed his seal of SC on the same thereafter he ( PW 7) had affixed his seal of PS and form FSL was also handed over to him by ASI Suresh. He deposed that after giving necessary directions to the members of the raiding party he left the spot alongwith the pulandas Mark A to E and FSL Form and deposited the same in the custody of MHC(M) vide FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 15 16 entry Ex PW 7/A in register No. 19. He further testified that on the next day SI Shakti Singh had given him information regarding the arrest and seizure of the drugs from the accused in writing which he forwarded to the office of ACP. He stated that SI Shakti Singh had given him two separate reports which were prepared by him regarding the arrest and seizure of contraband from the accused. It was observed during the course of his testimony that there was only one report Mark PW 5/A, the original of which is Ex. PW 6/B under the signature of SI Shakti Singh, the second IO of the case. PW 7 lateron corrected himself and stated that Mark PW 7/A, the original of which is Ex.PW6/A was handed over to him by ASI Suresh Chand.
23 PW 7 further deposed that both he and ASI Suresh Chand had handed over their respective seals after use to Ct Vikram and he had taken the seal from Ct FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 16 17 Vikram after 3/ 3 ½ months i e after filing of the charge sheet. During the course of his testimony PW7 correctly identified the accused and the case property. 24 PW 7 was partly declared hostile by the prosecution as he did not testify in terms of the prosecution case that the seizure memo of all the five pulandas Mark A to E was prepared by ASI Suresh Chand and alongwith the pulandas Mark A to E and form FSL he was also handed over the copy of the seizure memo. During cross examination by Ld. Addl PP for State he admitted that the seizure memo Ex. PW 2/A of all the pulandas was prepared and it was bearing his signature at point C and he had carried the carbon copy of the same alongwith the pulandas and form FSL and had handed over to the MHC(M).
25 PW8 H.Ct. Kailash Chand is a formal witness being the MHC(M) who proved the relevant entry FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 17 18 regarding deposit of the FSL result along with the sealed parcel as Ex.PW8/A. 26 PW 9 ASI Suresh Chand is the IO of the case. He deposed on the lines of the testimony of PW 7 Inspt Pratap Singh, the then SHO PS Delhi Cantt. Besides, he also proved rukka sent for registration of the case under NDPS Act through PW 4 Ct Mahavir as Ex PW 9/A. He deposed that further investigation of this case was carried out by SI Shakti Singh who at his instance had prepared site plan Ex PW 2/B at the spot. During the course of his testimony he identified the accused and the case property correctly.
27 After closure of the prosecution evidence, statement of the accused was recorded wherein he denied all the incriminating evidence put to him and pleaded his innocence. He did not lead any defence evidence. 28 I have heard arguments addressed by FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 18 19 advocate Sh. Raj Pal Singh amicus curiae and Ms. Satwinder Kaur, Addl. PP for State.
29 The counsel for the accused has submitted that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt, as there are material contradictions in the testimony of the official witnesses and without independent corroboration their testimony cannot be relied upon. It is further submitted that despite opportunity available no public witness was joined in the raiding party for which adverse inference is liable to be drawn against the prosecution. It is submitted that the prosecution has failed to prove on record that mandatory safeguards provided under NDPS Act for the protection of the accused against the false implication of the accused were complied with. It is submitted that there are discrepancies in the testimony of official witnesses regarding the manner and the time of service of notice U/s. FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 19 20 50 NDPS Act upon the accused. The defence counsel has submitted that the prosecution has failed to prove the compliance of provisions of Sec 57 NDPS Act as there are contradictions in the testimony of the official witnesses in this regard and PW 9 has not even testified that he had sent any such report regarding seizure of contraband from the possession of the accused. It is further submitted that there are material contradictions in the testimony of the prosecution witnesses with regard to the manner of testing of some of the substance at the spot, regarding the surroundings of the spot, regarding use of electronic weighing scale, arrival of the ACP at the spot, service of notice, colour of the recovered substance, place of writing work carried out at the spot etc. It is submitted that in view of such discrepancies in the evidence led by the prosecution it has failed to prove its case beyond reasonable doubt, hence the accused is liable to be FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 20 21 acquitted.
30 On the other hand, Ld. Addl. PP for State has submitted that the contradictions pointed out by the defence counsel are minor in nature and do not effect the case of the prosecution in any manner. It is submitted that vide the testimony of PW 4 Ct Mahavir, PW 7 Inspt Pratap Singh, SHO PS Delhi Cantt and PW 6 Jaldhari Lal Meena, ACP, it is proved on record that there was secret information regarding the arrival of accused alongwith contraband in the readymade clothes. That the provisions of Sec. 42 NDPS Act have been complied with as the secret information was reduced in writing vide DD No 25A Ex PW 3/A. That vide the testimony of PW 2 Ct Vikram, PW4 Ct Mahavir, PW 6 Jaldhari Lal Meena ACP, PW 7 Inspt Pratap Singh and PW 9 ASI Suresh Chand, it has been proved on record by the prosecution that Heroin weighing 518grams in two 270 small pouches concealed in the FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 21 22 readymade clothes was recovered from the possession of the accused. Vide the FSL report Ex. PW1/A both the samples drawn from the recovered substance were examined through chromatography and instrumental method and were found to be of Heroin. It is submitted that the accused is thus liable to be convicted for possessing commercial quantity of Heroin illegally. 31 After hearing the submissions of both the parties, I have gone through the material on record carefully with the assistance of both the defence counsel as well as Ld. Addl PP for State and find that there are material contradictions in the testimony of the official witnesses almost on all the scores.
32 Regarding notice U/s 50 NDPS Act PW2 Ct Vikram testified that after the accused was apprehended SHO and ASI Suresh Chand informed him about the secret information that he was concealing Heroin in his FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 22 23 clothes and SHO informed him that if he wanted to search the police officials he could do so as they had to search him but accused refused to take the search of the police officials. When SHO was about to take the search of the accused, he started evading the same and thereafter notice U/s 50 NDPS Act was served upon him by the SHO and informed him that vide said notice he could conduct the search of the accused. He testified that accused had refused to receive and sign the notice and at this SHO had told him that if he wanted to get his search conducted in the presence of the Gazetted officer then accused told him that he wanted to get his search conducted in the presence of a Gazetted Officer and consequently SHO sent PW 4 Ct Mahavir Singh to PS Delhi Cantt to bring ACP to the spot as he was a Gazetted Officer. His said testimony is not corroborated by any other witness. PW 7 Inspt Pratap Singh did not testify that he had served notice U/s 50 FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 23 24 NDPS Act upon the accused but to the contrary he testified that notice was served upon the accused by ASI Suresh Chand. PW 7 also did not testify that after the apprehension of accused he alongwith ASI had informed the accused that they had secret information and he was concealing Heroin in his clothes. To the contrary he testified that it is he ( PW7) who had conversed with the accused in English language about the secret information. He did not testify that ASI Suresh Chand had also spoken to the accused in this regard. PW 2 Vikram had testified that the accused was only informed on his refusal to sign the notice u/s 50 NDPS Act that if he wanted his search could be conducted in the presence of a Gazetted Officer, whereas PW 7 testified that before service of notice U/s 50 NDPS Act the accused was informed of his legal right to get his search conducted in the presence of a Gazetted Officer or a Magistrate. PW 2 testified that accused had FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 24 25 told the SHO that he wanted to get his search conducted in the presence of a Gazetted Officer and for this reason SHO had sent PW 4 Ct Mahavir to PS Delhi Cantt to bring ACP Jaldhari Lal Meena to the spot, whereas on the other hand PW 7 testified that after the accused was informed of his legal right as referred above he objected to his search being conducted and argued that they had wrong information and they could not search him, then in the meantime he had sent PW 4 Ct Mahavir to call for the ACP at the spot. PW 7 nowhere testified that the accused had expressed his desire to be searched in the presence of a Gazetted Officer and for this reason ACP was called to the spot as he was a Gazetted Officer. Rather as per the testimony of PW 7 contrary to the provisions of Sec.50 NDPS Act he had convinced the accused to get his search conducted by the police officials. Nodoubt, I am conscious of the fact that the provisions of Sec. 50 NDPS Act are applicable only in cases FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 25 26 where the recovery is effected from the person of the accused and not from the bag carried by the accused but the contradictions in the testimony of the official witnesses are only to be appreciated to elicit the truth in the case of the prosecution.
33 PW 2 testified that it is the ACP who had explained the contents of the notice to the accused and accused had only signed on the notice after the ACP had reached the spot. However, it was observed that there was no such notice U/s 50 NDPS Act on record bearing only the signature of the accused. Whereas PW 4 testified that accused had written his refusal in English on the said notice.
34 PW 2 testified that notice had already been served upon the accused before the arrival of ACP. To the contrary ACP examined as PW 6 testified that when he reached there the accused was making some endorsement FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 26 27 on the notice U/s 50 NDPS Act and thereafter he gave his introduction to him. He testified in his cross examination that the notice had already been served upon the accused before he reached the spot. He also testified that when he reached the spot the accused was holding a polythene in his right hand and thereafter ASI had checked the said polythene. It is not believable that the accused who was holding the polythene bag in his right hand, was also writing endorsement on the notice with his right hand. 35 The presence of ACP in view of his inconsistent testimony is doubtful at the spot or even in the PS Delhi Cantt on the day of the incident as despite his testimony to the effect that the contraband was recovered from the possession of accused in his presence, no document prepared at the spot is bearing his signature to corroborate his testimony that he was present at the spot. No documentary evidence has been led to show presence of FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 27 28 ACP in PS except bald testimony of the official witnesses. Besides, it has not been explained by the SHO as to why PW 4 Ct Mahavir was sent to the PS to bring ACP to the spot, whereas SHO had wireless set and his mobile phone and could send this request to the ACP on mobile phone or through wireless set. PW 6 ACP has been confronted on all material particulars with his statement U/s 161 Cr PC and his testimony in chief examination thus amounts to full of improvements creating doubt about his presence at the spot, particularly,when he admitted that he had not signed any document prepared at the spot nor could give any specific reason for not signing any such document including notice U/s 50 NDPS Act though he admitted that he was called to the spot being a Gazetted Officer that the search of the accused could be conducted in his presence he was avoiding the same.
36 PW 2 testified in cross examination that FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 28 29 ACP had left the spot in half an hour ie after the search of accused was conducted in his presence by the first IO and during said search one polythene containing some clothes, one purse, notice U/s 50 NDPS Act and two mobile phones, few dollars and some Italian currency were recovered. On the other hand PW 4 testified that ACP remained at the spot till 10 pm. 37 Presence of PW 4 is also doubtful at the spot as he testified that the IO had recorded his statement and he had signed the same but no such statement was found on record. Besides, though he claimed that he was Beat Officer of the area of Gopi Nath Market on 14.4.2011 but no evidence to this effect has been produced on record. At the same time, he admitted that when he received the secret information he was possessing the mobile phone and had the mobile number of SHO PS Delhi Cantt but he did not pass on the secret information to the SHO on FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 29 30 telephone. PW 4 also could not tell as to what proceedings were going on at the spot when he reached there alongwith the ACP. He also could not tell the colour of bag in possession of accused or of IO kit. As per the prosecution from the spot the accused was taken to the hospital by the IO alongwith Ct Mahavir, and Ct Vikram however, PW 4 could not tell if from the spot they had gone to the hospital or to the PS nor could he tell the time of their reaching PS at night. Besides, there are contradictions in his testimony and other official witnesses which raises doubt about the presence at the spot.
38 PW 2 testified in his cross examination that before they left for the spot all the members of the raiding party were called by the SHO in his office and he ( PW 2), PW 4 Ct Mahavir and IO of the case were in civil dress. He again stated that when they had gone to the office of SHO they were in uniform but thereafter under the FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 30 31 directions of SHO they changed to civil dress. Whereas PW 4 Ct Mahavir testified that after he reached the room of SHO, ASI Suresh Chand and Ct Vikram were called there where they remained for 5 to 7 minutes and then they all alongwith the SHO and secret informer reached Gopi Nath Bazar. He stated that SHO was in uniform and other police officials were in civil dress but he did not state that the other police officials were initially in uniform and at the instance of SHO had changed to civil dress. PW 7 testified that he had given directions to PW 4 Ct Mahavir to change his civil dress and till he returned after changing his dress PW 7 interacted with the secret informer, whereas PW 4 is silent to this effect. 39 PW 4 and PW 9 testified that accused was pointed out by the secret informer by patting his hand on his head which was a pre decided signal, whereas PW 7 testified that the secret informer had given signal by his FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 31 32 hand regarding the arrival of the accused. 40 PW 2 testified that SHO left the spot before the arrival of second IO. PW 7 stated that he remained at the spot till 11/11:15pm.
41 PW 4 testified that he returned to the spot alongwith IO SI Shakti Singh by taking lift from someone, whereas PW 5 SI Shakti Singh testified that they had reached there in a TSR.
42 PW 4 testified that after he passed on the secret information to the SHO, the same was passed on to the ACP by the SHO. PW 7 the SHO testified that he had gone alone to the SHO to deliver the information, whereas PW 6 ACP testified that SHO had produced the secret informer and Ct Mahavir before him at that time. 43 PW 2 testified that SHO had spoken to the accused in mixed language i e Hindi and English. He deposed that accused was speaking Hindi, English and FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 32 33 African language. He denied the suggest that accused did not know Hindi language. PW 4 also deposed that accused was speaking English as well as Hindi language and denied that he did not know Hindi language or could not speak Hindi language. Whereas PW 7 SHO testified that he had communicated with the accused in English language and he had difficulty even in understanding the said language.
44 PW 4 testified that 10 to 15 persons had collected at the spot after the accused was apprehended. Whereas PW 9 testified that no public persons collected at the spot.
45 PW 4 testified that the electronic weighing scale was not in the IO kit but he was holding it separately. He testified that the wire of the electronic weighing scale was plugged in the socket outside a shop near the spot which was at a distance of 14 to 15 feet from FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 33 34 the spot but could not tell who had fixed the plug in the socket. He stated that it was an eating joint and samosas were being sold. PW 7 has deposed about use of extension cord for plugging the electronic weighing scale, whereas as per PW 6 the wire of the electronic weighing scale was taken to the socket affixed outside some shop. As per PW 7 the extension cord was available with the IO but he could not tell whether it was in the IO kit or he had arranged it from someone nor he could say that IO had sent any police official to arrange the same. On the other hand PW 9 ASI Suresh Chand, IO did not depose about use of any such extension cord and stated that the wire of the weighing scale was of the length of about 12 to 13 feet. Admittedly, the owner of the shop or any employee of the shop from where the electronic connection was taken was not joined in the proceedings.
46 PW 4 testified that all the proceedings were FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 34 35 carried out at the spot while sitting on the ground and even SHO sat on the ground for 5 to 10 minutes and due to physical problem he kept standing for the rest of the time. PW 6 ACP testified that for some time SHO sat on a chair near the spot and the SHO had no such physical problem that he was not capable of standing. PW 9 testified that SHO sat on the chair which he had pulled from some shop. Even PW 7 testified that some plastic chairs were lying outside the shop from where electric connection was taken and the proceedings were conducted while sitting on these chairs by the side of the shop.
47 PW 2 testified that the white colour bag was taken from the possession of accused by the IO after he was explained about the secret information against him and about his right to get his search conducted in the presence of a Magistrate or a Gazetted Officer. PW 7 testified that ASI Suresh was in the process of checking FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 35 36 the bag of accused when ACP arrived there,whereas ACP ie PW 6 testified that when he reached the spot accused was making endorsement on notice U/s 50 NDPS Act and thereafter ASI Suresh Chand checked the bag of accused which he was holding in his right hand.
48 PW 2 testified that IO had tested the contents recovered from the polythene by mixing some powder in some recovered substance on a piece of newspaper. Whereas PW 4 testified that IO had mixed some liquid in some quantity of recovered substance on his palm and then he told that it was Heroin. To the similar effect is the statement of PW 6 and PW 7. However, PW 9 ASI Suresh Chand has not testified that he had carried out any such test on the recovered substance with the Field Drug Test Kit. To the contrary he testified that on smelling the same he guessed that it was Heroin and thereafter he weighed the same.
FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 36 37 49 PW 2 testified that the colour of the recovered substance was white. PW 6 testified that the recovered substance was of brown colour. PW 7 testified that the colour of the recovered substance was off white. 50 In view of the above contradictions in the testimony of the official witnesses in the absence of independent corroboration in their testimony, no reliance can be placed upon them. There is ample evidence on record that the alleged place of apprehension of the accused was a market and there are several shops including Coffee Cafe Day and other eating joints but no public witness was joined from there for the reasons best known to the investigating officer as well as the SHO. The explanation given by the SHO that he could not join any public witness from the spot as the Market Welfare Association would have protested against the police, in my opinion, has no force, as it is not beyond the power of the police to join the FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 37 38 public witnesses in the investigation and on their refusal to take action against them. In such circumstances, the apprehension of the accused and recovery of contraband from his possession has become doubtful. 51 Moreover, the provisions of Sec. 57 NDPS Act have also not been complied with in the present case. The prosecution has failed to prove that there was due compliance of the provisions of Sec. 57 NDPS Act, as PW 7 the then SHO PS Delhi Cantt testified in his examination in chief that both the reports U/s 57 NDPS Act were handed over to him regarding the arrest and seizure of the contraband from the possession of the accused on the next day of the incident but lateron when only one report U/s 57 NDPS Act was found bearing the signature of SI Shakti Singh. PW 7 was directed to point out from the judicial record the other report U/s 57 NDPS Act under the signature of SI Shakti Singh then he came FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 38 39 across the report Mark PW 7/A ( the original of which is proved on record by PW 6 as Ex. PW 6/A dated: 14.4.11) bearing the signature of SI Suresh Chand and then he corrected himself and stated that due to confusion he had testified that both the reports U/s 57 NDPS Act were under the signature of SI Shakti Singh. PW 5 SI Shakti Singh has proved the photocopy of the report U/s 57 NDPS Act dated :15.4.2011 as Mark PW 5/A and the original of the same was proved vide the testimony of PW 6 Sh. Jaldhari Lal Meena ACO, Delhi Cantt. As Ex PW 6/B. PW 5 SI Shakti Singh did not testify about any other report submitted by him with the SHO regarding the seizure of the contraband from the possession of the accused. Admittedly, SI Shakti Singh was not a witness to the seizure of the contraband as it is PW 9 who had seized the same from his possession and he was required to submit report U/s 57 NDPS Act to his superior officer. FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 39 40 However, PW 9 has nowhere testified that he had prepared any such report and submitted with the SHO or in the office of ACP concerned. The report U/s 57 NDPS Act regarding the seizure of the contraband from the possession of the accused, the original of which is Ex PW 6/A and the photocopy of the same is Mark PW 7/A has not been proved on record vide the testimony of PW 9 that the said report was submitted by him with superior officer. Nodoubt, PW 6 Sh Jaldhari Lal Meena, ACP has testified that on the next day of the incident i e 15.4.2011 he had received two reports U/s 57 NDPS Act regarding seizure of contraband and arrest of accused from ASI Suresh and SI Shakti Singh through his SO in the office but PW 9 did not testify that he had sent any report to the superior officer. Hence, the prosecution has failed to prove the due compliance of the provisions of Sec. 57 NDPS Act which are mandatory in nature.
FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 40 41 52 In view of the above discussions, since there are material contradictions in the testimony of the official witnesses, no reliance can be placed on their testimony without independent corroboration. Hence, in my opinion, the prosecution has failed to bring home the guilt of accused beyond reasonable doubt U/s 21(c) NDPS Act. Hence, he is acquitted of the charge.
53 The accused has also faces trial U/s. 14 of Foreigners Act. Since during the investigation he could not produce any document relating to his stay in India legally. PW 5 SI Shakti Singh has categorically testified that he had made enquiry from the accused and directed him to produce the documents i e passport, visa etc but he could not produce any such document. During cross examination PW 5 categorically testified that he had personally visited Nigeria Embassy to establish the identity of the accused on the basis of his Nigerian address but he was informed FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 41 42 that such address does not exist. It is observed that the accused even during the trial has not produced any document to show that he could remain in India legally. Neither he has produced his passport or visa nor any other document to justify his stay legally in India. Hence, he is convicted for the offence punishable U/s. 14 Foreigners Act.
Announced in Open Court Ravinder Kaur
Dated: 24.12.2011 Special Judge/ ASJ
Dwarka/N. D
FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 42
43
IN THE COURT OF Ms. RAVINDER KAUR
ADDL. SESSIONS JUDGE/ SPECIAL JUDGE (NDPS) DWARKA COURTS, NEW DELHI SC No. 03/2/11 FIR No. 59/11 P.S: Delhi Cantt.
U/s. 14 Foreigners Act State Vs. Bartholomew Oluchukwu S/o Late Semon Chukwuka R/o H.No.7, Bayo Akintunde Street, Coker Orile, Lagos,Nigeria.
ORDER ON POINT OF SENTENCE 1 The convict Bartholomew Oluchukwu has been convicted for the offence punishable U/s.14 Foreigners Act 1946.
2 The counsel for the convict has submitted that lenient view be taken while awarding sentence as the FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 43 44 convict is already in custody since the day of his apprehension i e 14.4.2011 and has prayed that he be deported back to his country.
Keeping in view the facts and circumstances of the case, the convict is sentenced U/s. 14 Foreigners Act 1946 to the imprisonment already undergone by him during investigation and trial of the present case and to pay fine of Rs. 5,000/ in default to undergo SI for 10 days.
Benefit U/s 428Cr PC be given.
The Jail Superintendent is directed to send necessary intimation to the FRRO to make the arrangements for deporting the convict to his country after the execution of the sentence.
File be consigned to the Record Room.
Announced in Open Court Ravinder Kaur
Dated: 24.12.2011 Special Judge/ ASJ
Dwarka/N. D
FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 44
45
State Vs Bartholomew Oluchukwu
FIR No. 59/11 PS Delhi Cantt
23. 12.2011
Present: Ms Satwinder Kaur, Ld. Addl. PP for State.
Accused from J/C alongwith Sh Raj Pal Singh, adv. Order partly dictated. No time left.
Put up for order on 24.12.2011.
Ravinder Kaur ASJ/ Dwarka/ND 23.12.2011
24. 12.2011 Present: None for State.
Accused from J/C alongwith Sh Raj Pal Singh, adv. Vide separate judgment, the accused Bartholomew Oluchukwu is acquitted for the offence punishable U/s. 21 (c) NDPS Act. Accused is convicted for the offence punishable U/s 14 Foreigner Act 1946.
Arguments heard on the point of sentence on behalf of the convict.
Vide separate order, the order on point of sentence is announced.
File be consigned to the Record Room.
Ravinder Kaur ASJ/Dwarka/ND 24.12.2011 FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 45 46 FIR No. 59/11 State V/s Bartholomew Oluchukwu Page No. 46