Delhi District Court
Ncb vs . Leonard Ofodum on 19 April, 2014
NCB Vs. Leonard Ofodum
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS : PATIALA HOUSE COURTS:NEW DELHI
SC No. 32/09
ID No. 02403R0398602009
Narcotics Control Bureau
Through: Shri Akhilesh Kumar Mishra,
Intelligence Officer,
Narcotics Control Bureau, New Delhi
Versus
Leonard Ofodum
S/o Henry
R/o 51, Ikoyi, Lagos,
Nigeria
Date of Institution : 11.11.2009
Judgment reserved on : 25.03.2014
Date of pronouncement : 19.04.2014
JUDGMENT
11 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 accused u/s 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act).
SC No. 32/2009 Page No. 1 of 43 NCB Vs. Leonard Ofodum 11 Briefly stated, the facts that can be culled out from the assertions made in the complaint and the documents filed therewith are as follows :
(a) On 08.07.2009 at about 1800 hours Sh. Akhilesh Kumar Mishra, IO, NCB received a secret information that one black Negro, Foreign national (it is indeed unfortunate that the said demeaning term has been used in the complaint and in the depositions of many prosecution witnesses and this Court also has to use it so as to reproduce the contents of the complaint and depositions correctly) who was departing from IGI Airport for Mumbai by Spicejet flight no. SG119 is suspected to be carrying huge quantity narcotic drugs in his baggage.
(b) The information was reduced into writing and put up before Sh.
Ajay Kumar, Superintendent, NCB and on his instructions and under his supervision a raiding team consisting of Intelligence officers of NCB namely A.K. Mishra, M.M.S. Bhandari and Sh. Sudhir Nayak proceeded for the airport from NCB office and reached the domestic terminal of IGI airport at about 2035 hours. On reaching the airport, the information was shared with the CISF staff and the NCB team was escorted to the office of Assistant Commandant room where Sh. Sanjeev Sirohi, Inspector CISF, Sh. Avinash Dhawan, Inspector Customs, Sh. R.K. Digvijay, DC Preventive and HC K.G. Arivalagam, CISF were already present with one Black foreign national whose name was revealed as Leonard SC No. 32/2009 Page No. 2 of 43 NCB Vs. Leonard Ofodum Ofodum. On the request of Sh. Akhilesh Mishra, Sh. Sanjiv Sirohi, Sh. Avnish Dhawan and HC Arivalgam agreed to witness the proceedings that were to be conducted by the NCB team.
(c) The accused was then served a notice under Section 50 of the NDPS Act and was explained his legal rights that if he wants his personal search and the search of his baggage can be taken before a Gazetted Officer or a Magistrate. On the accused declining to exercise the said rights, the search of the baggage of the accused was then conducted and it was found comprising of one big brown colour cardboard box and one black colour stroller bag make 'Samsonite'. On inspecting the big brown colour cardboard box, it was found containing five CD players make Samsung along with other miscellaneous computer accessories like keyboards, mouse etc. On minute search of the CD players, they were found concealing within them, 5 packets of some suspicious substance wrapped in brown tape. On opening the packets each of them were found to contain some brownish colour powdery substance. The said powder on being tested with the help of field testing kit gave positive result for heroin. As the substance in all the packets was having the same colour, texture and contents it was mixed and weighed. The weight of the recovered substance came out to be 1.860 Kg. Two samples of 5 grams each were then drawn out of the said substance in transparent polythene SC No. 32/2009 Page No. 3 of 43 NCB Vs. Leonard Ofodum and further put in white paper envelopes and given Mark A1 and A2. The remaining brownish colour powdery substance in polythene was wrapped with the help of cloth and given Mark A. The test memo was then prepared in triplicate.
(d) The other contents of the brown cardboard box namely 13 stereos Head Phone make Techno Tech, 10 Keyboard slim block, 10 optical mouse, 64 craft fan along with 5 CD players make Samsung were also sealed separately and given mark B. The black colour stroller bag which was found to contain some clothes was also sealed separately and given mark C.
(e) Panchnama was thereafter prepared and accused was thereafter served with summons u/s 67 NDPS Act and directed to appear in the NCB office to tender his statement. On being served with the said summons the accused voluntarily agreed to accompany the NCB officials. He then assertedly on reaching the NCB office voluntarily tendered a written statement in which he admitted the possession of the contraband. The statement of panch witnesses, airlines and GMR officials u/s 67 of the NDPS Act were also later on recorded during investigation. The said statements revealed that infact it was the GMR official, one Rahul Thenua who had, during screening of the baggages/luggage at the Xray baggage interception system, for the first SC No. 32/2009 Page No. 4 of 43 NCB Vs. Leonard Ofodum time detected on the basis of colour codex on the screen of Xray machine that the baggage was containing something suspicious and had thereafter informed the airline officials and the CISF officials.
(f) Since the accused appeared to have committed offences punishable under Section 21 r/w section 22 of the NDPS Act, he was arrested on 09.07.2009 and was thereafter got medically examined.
(g) Reports of arrest and seizure under Section 57 of the NDPS Act were submitted by the seizing officer Sh. Akhilesh Kumar Mishra and arresting officer Sh. G.S. Bhinder to Sh. Ajay Kumar, Superintendent and the intimation of the arrest of the accused was also conveyed to the Ministry of External Affairs.
(h) The case property along with samples and test memo was deposited with the Malkhana Incharge and on 09.07.2009 the samples along with test memos were sent to the CRCL, New Delhi for testing and after receiving the report from CRCL, the present complaint was filed. 11 Based on the material on record, the Ld. Predecessor of this court vide order dated 07.12.2009 had framed charges against the accused for having been found in possession of 1.860 kg of heroin and thereby for having committed an offence punishable under section 21(c) of the NDPS Act to which the accused pleaded not guilty and claimed trial. 11 The prosecution in order to prove its case has examined 11 witnesses. SC No. 32/2009 Page No. 5 of 43
NCB Vs. Leonard Ofodum 11 PW11 Sh. Akhilesh Kumar Mishra and PW9 Sh. M.M.S. Bhandari, the Intelligence Officers of the NCB, both being members of the raiding team have more or less, in their examination in chief, deposed on similar lines. The secret information deposed to have been received by PW11 Sh. Akhilesh Mishra has been exhibited as Ex.PW11/A. The relevant pages of the Seal Movement Register vide which the departmental seal is deposed to have been issued by Superintendent in favour of PW11 has been exhibited as Ex.PW11/B. The legal notice under Section 50 of the NDPS Act stated to have been issued to the accused by PW11 has been exhibited as Ex.PW11/C. The panchnama deposed to have been prepared by PW11 has been exhibited as Ex.PW11/D. The Spicejet Boarding pass, ticket, baggage tags have been exhibited as Ex.PW11/E, ExPW11/F, ExPW11/G and H respectively. PW11 has also inter alia deposed that on the same day he was also working as Intelligence Officer Malkhana Incharge in NCB, DZU, R.K. Puram and the entire case property was deposited with him in the Malkhana and he had made an entry to this effect in the Malkhana register. The said entry has been exhibited as Ex.PW11/J. Test memo has been exhibited as ExPW11/L. Various summons issued by IO PW9 M.M.S. Bhandari and PW11 Sh. Akhilesh Mishra to the persons called for inquiry and who tendered their statements u/s 67 of NDPS Act have also been duly exhibited. The SC No. 32/2009 Page No. 6 of 43 NCB Vs. Leonard Ofodum statement deposed to have been tendered by the accused in the presence of PW9 Sh. M.M.S. Bhandari has been exhibited as Ex.PW2/A. The case property and the samples were also duly produced before the court and were duly exhibited.
11 PW1 Sh. Sanjeev Sirohi, PW6 Avnish Dhawan and PW10 K.G. Arivalagan, all panch witnesses have in their depositions inter alia described the recovery proceedings conducted by the NCB officials and witnessed by them. They have also identified their signatures on the notice, panchnama and on the annexures. They have also deposed that in pursuance of the summons served upon them they had appeared in the office of the NCB and had tendered their statements Ex.PW1/B, ExPW6/B and ExPW10/B respectively.
11 PW2 Sh. G.S. Bhinder has interalia deposed that the accused was produced before him to tender his voluntary statement under Section 67 of the NDPS Act and the said statement has been exhibited as Ex.PW2/A. Arrest memo and arrest report submitted to the Superintendent have also been exhibited as ExPW2/B and ExPW2/D respectively.
11 PW3 Ms. Achin Huang is an employee of Spicejet Airlines and she has inter alia deposed that on 08.07.2009 it was her duty at the checkin counter of the Spicejet Airlines at the IGI Domestic Airport and that the SC No. 32/2009 Page No. 7 of 43 NCB Vs. Leonard Ofodum accused on the said date had approached her counter for the purpose of checkin. She has also deposed that it was in her presence that the accused had placed his baggage on the conveyor belt and that he had two pieces of baggages one stroller bag and one big cardboard box and that the weight of his baggage was was excess at that time by 16 Kg and he had paid the excess amount and thereafter she had issued him boarding pass and baggage tags. She has also deposed that she had herself put the baggage tag on the cardboard box with a noting of 'fragile' on the said box. She has also deposed that the cardboard box being oversized was sent through OOG and the black stroller bag was sent through the conveyor belt itself. According to her deposition after receiving the summons u/s 67 NDPS Act she had appeared before the NCB officials and had tendered her statement Ex.PW3/A in her own handwriting. 11 PW4 Sh. Rajender Ram, Sepoy has interalia deposed that on 09.07.2009 he had carried the sample packets to the CRCL on the instructions of Sh. Ajay Kumar, Superintendent, NCB. The forwarding letter vide which the sample packets and the test memo were deposited in CRCL has been exhibited during the deposition of this witness as Ex.PW4/A and the acknowledgment issued in his name by CRCL has been exhibited as Ex.PW4/B. SC No. 32/2009 Page No. 8 of 43 NCB Vs. Leonard Ofodum 111 PW5 Sh. Ajay Kumar has inter alia deposed that he was posted as Superintendent, NCB DZU and on 08/07/2009, Akhilesh Mishra had put up before him the 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 DZU3 to him. As per this witness, he had signed on the seal movement register with respect to the handing over and return of the seal to and from the IO. The said entries have been exhibited as Ex.PW5/A and Ex.PW5/B. He has then further deposed that IO had put before him report u/s 57 NDPS Act regarding seizure and arrest of accused. As per this witness, on 09/07/2009 he forwarded the sample alongwith test memo to CRCL and on 2/9/2009 received the report and remnant sample from CRCL, Pusa Road.
111 PW7 Rahul Thenua is an employee of the GMR Group at IGI Airport and he has inter alia deposed that on 08.07.2009 he was allocated the duty at OOG Xray machine at IGI Airport Terminal ID and that on this date, during screening of the baggages he had come across a cardboard box which during screening reflected certain suspicious articles in it. He has further deposed that after screening of the said baggage he had immediately informed his senior officials, CISF officials and the Airlines staff and that after the said information was relayed by him one Inspector SC No. 32/2009 Page No. 9 of 43 NCB Vs. Leonard Ofodum CISF Sanjeev Sirohi alongwith the accused had come to the OOG area alongwith one Airlines staff and that he had handed over the cardboard box to the Airlines staff.
111 PW8 Sh. R.P. Singh, Chemical Examiner has proved the chemical analysis report with respect to the sample deposited with the CRCL and the same has been exhibited as Ex.PW7/A. As per his deposition, the samples in question was examined by them had tested positive for diacetylmorphine.
111 The entire aforementioned incriminating evidence was put to the accused and his statement was recorded u/s 313 Cr.PC. In the said statement the accused has inter alia stated that the cardboard box in question was not a part of his baggage and the same has been planted upon him. According to him on the date of his apprehension he was travelling with one travellers bag and one small cardboard box and that the big cardboard box from which the contraband has been allegedly recovered by the NCB officials was planted upon him only because he is a Nigerian. No evidence was led by the accused in support of his defence. 111 After the conclusion of evidence, Ld. Counsel Ms. Renu Bansal, Proxy for SPP for NCB and Ld. Defence counsel Sh. A.K. Sahoo had advanced final arguments and had also filed written submissions on record. Subsequently during the course of final arguments, the accused SC No. 32/2009 Page No. 10 of 43 NCB Vs. Leonard Ofodum appointed another Advocate on his behalf namely Sh. Y.K. Saxena and the said Ld. Counsel has also filed additional written submissions on record and has also advanced final arguments on behalf of the accused. 111 On behalf of the prosecution, it has been submitted that the documentary and the oral evidence produced on record sufficiently prove that commercial quantity of heroin was recovered from the baggage of the accused and that therefore he is to be held guilty of the offences that he has been charged with. Ld. Counsel Ms. Renu Bansal has further submitted that the statement tendered by the accused u/s 67 NDPS Act, in view of the settled judicial dicta, is an admissible piece of evidence and in the said statement the accused has admitted that he was attempting to export heroin and that this court can, also on the sole basis of the said statement, convict the accused in the present case. 111 On the other hand, on behalf of the defence, it has been contended that the prosecution has failed to prove that the cardboard box in question from which the contraband was assertedly recovered belonged to the accused only and that it was in his conscious possession. Ld. Defence counsel Sh. Y.K. Saxena has pointed out that the panchnama proved on record does not at all record that there was a baggage tag found affixed on the big cardboard box and that the same was got tallied with the baggage stubs affixed on the boarding pass of the accused. He has also SC No. 32/2009 Page No. 11 of 43 NCB Vs. Leonard Ofodum pointed out that the panchnama also does not record that the accused at any time of the search and seizure proceedings admitted and claimed the baggage present in the office room of Assistant Commandant, CISF as belonging to him. It is also the contention of Ld. Counsel Sh. Y.K. Saxena that though the prosecution has produced the Airlines official and the official who had screened the baggage in question, the prosecution did not get the baggage in question i.e. the cardboard box identified by them and that this lacunae on the part of the prosecution is fatal to its case. He has also pointed out that similarly though the panch witnesses have been examined by the prosecution the cardboard box in question, the baggage tag and the baggage stubs have not been put to them and that they have not identified the same. He has further submitted that the statement purportedly tendered by the accused u/s 67 NDPS Act was retracted by the accused at the first available opportunity. Thus according to Ld. Defence counsel Sh. Y.K. Saxena the prosecution has failed to prove beyond reasonable doubt that the cardboard box was the baggage of the accused only. Ld. Counsel Sh. Sahoo in the written submissions filed by him had also inter alia contended that there has been a total non compliance of section 42 NDPS Act in the present case and that on this ground itself the accused is entitled to be acquitted. In the written submissions various contradictions in the depositions of the NCB SC No. 32/2009 Page No. 12 of 43 NCB Vs. Leonard Ofodum officials and the CISF officials have been pointed out to contend that the same create serious doubt on the receipt of any secret information in the present case. It has also been contended in the said written submissions that though one of the witnesses has deposed that the accused had paid an excess amount, on account of weight of the cardboard box being beyond the permitted limit, no such receipt has been proved on record. According to the contentions raised by Ld. Counsel Sh. Sahoo the possibility that the baggage in question was tampered with by the Airlines staff officials or the officials who had carried out the screening of the baggage cannot be ruled out and that therefore the accused should be granted the benefit of doubt more so when the investigating officer in the present case, apart from conducting the search and seizure proceedings was also assertedly the malkhana incharge of the NCB and that therefore it cannot be held that the provisions of section 52 NDPS Act have been complied with. In support of their contentions, Ld. Defence counsels have relied upon the following judgments:
Noor Aga vs. State of Punjab and Anr. 2008 (3) JCC (Narcotics) 135. Union of India Vs. Bal Mukund 2009(2) Crimes 171.
K.I. Pavunny Vs. Assistant Collector, Cochin 1997(2) Recent CR. 48. Richard Thomas Wringley Vs. Custom & Ors. 1997 (Crl. L.J.) 2741. Valsala Vs. State of Kerala 1993 SCC Cr. 1028.
Kashmiri Lal @ Kala vs. State of Punjab 1996(1) RCR 244. SC No. 32/2009 Page No. 13 of 43
NCB Vs. Leonard Ofodum 111 In rebuttal, it has been submitted on behalf of the prosecution that the provisions of section 42 NDPS Act have no applicability in the present case in as much as the search and seizure proceedings were conducted at a public place. It has also been submitted by Ms. Renu Bansal that the minor contradictions in the depositions of the prosecution witnesses is not fatal to the case of the prosecution and as per her contention the accused has miserably failed to prove the defence taken by him in his statement u/s 313 Cr.PC. According to Ld. Counsel Ms. Bansal, the stand taken by the accused that he was forced to give his statement u/s 67 NDPS Act is a mere afterthought and the retraction application filed by him is only on the basis of legal advice given to him. In support of her contentions, Ms. Renu Bansal has relied upon the following judgments:
Narayana Swamy Ravishankar Vs. Assistant Director, DRI (2002) 8 SCC 7.
Kalema Tumba Vs. State of Maharashtra & Anr. (1999) 8 SCC 257. Kanhaiyalal Vs. Union of India AIR 2008 SC 1044. State of Punjab Vs. Blawant Rai AIR 2005 SC 1576. Gurminder Singh Vs. Directorate of Revenue Intelligence 2007(1) JCC (Narcotics) 11.
Vimal Kumar Bahl Vs. DRI 167 (2010) Delhi Law Times 775.
111 I have given careful consideration to the submissions made by all the Ld. Counsels and have considered the entire judicial record and have also gone through the judicial dicta referred to by them.SC No. 32/2009 Page No. 14 of 43
NCB Vs. Leonard Ofodum 111 Both the Ld. Defence counsels have firstly contended that section 42 of the NDPS Act has not been complied with by the investigating agency and the secret information purportedly received by the investigating official and reduced into writing vide Ex.PW11/A appears to be a manipulated document. It is the submission of the defence that in the complaint filed, the NCB has not at all taken a stand that present is a case of chance recovery of drugs consequent to the screening of the luggage of the accused at the Xray screening machine at the airport, but have merely put forward a version that the IO Akhilesh Mishra had received a secret information. According to the Ld. Defence counsels if the version put forward by the prosecution in the complaint filed is to be accepted namely that the NCB officials had not been informed by the airport authorities about the suspicious baggage of the accused and that infact the NCB officials had received an independent secret information then according to them the said version is not at all believable. It has been pointed out by Ld. Defence counsel Sh. Y.K. Saxena that as per the contents of Ex.PW11/A and the deposition of PW11 Akhilesh Mishra, the secret information had been received at the NCB office at 06.00 PM and that the NCB officials could reach the airport only at 08.35 PM. He has further pointed out that as per the airline ticket proved on record the departure time of the flight which the accused was to board was 06.35 SC No. 32/2009 Page No. 15 of 43 NCB Vs. Leonard Ofodum PM and that if the NCB officials had no prior information about the detention of the accused at the airport, there is no explanation forthcoming from the prosecution as to how the NCB officials were sure that they would be able to intercept the accused even after reaching the airport at 08.30 PM. The contention therefore is that the secret information Ex.PW11/A is a manipulated document and that therefore there had been no compliance of the said mandatory section. 111 I am afraid that the aforementioned contention of the defence has no merit in view of the judicial dicta laid down by the Hon'ble Supreme Court in Narainswami Ravishankar's case (supra the judgment relied upon by the Ld. Counsel Ms. Renu Bansal). In the said judgment the Hon'ble Supreme Court had made it clear that where the search and seizure proceedings are conducted at a public place namely an airport, the question of non compliance, if any of the provisions of section 42 of the NDPS Act, is wholly irrelevant. In the present case also since the search and seizure proceedings have taken place at an airport, the submissions made by the Ld. Defence counsel are to be held irrelevant. Further the deposition of PW7 Rahul Thenua, an employee with GMR Group (which is primarily responsible for the security of the airport), narrated in para 11 hereinabove, makes it clear that present is a case of chance recovery. In the considered opinion of the court the fact that the SC No. 32/2009 Page No. 16 of 43 NCB Vs. Leonard Ofodum prosecution did not reveal the said fact in its complaint hardly makes a difference as the said fact is also apparent from the statements tendered by the aforementioned witnesses in their statements tendered u/s 67 NDPS Act, which were filed alongwith the complaint itself. 111 Coming now to the next contention of the Defence namely that the evidence on record does not conclusively prove beyond doubt that the cardboard box from which heroin was recovered, belonged to the accused only, it will be relevant to take note of the depositions of PW1 Sanjiv Sirohi, Inspector CISF, PW3 Ms. Achin Huang, an employee of the Spicejet Airlines and that of PW7 Rahul Thenua, an employee with GMR Group (which is primarily responsible for the security of the Airport). Now Ms. Achin in her deposition before the court has stated that on 08.07.2009 she was working as Customer Service Executive at the checkin counter of Spicejet Airlines and she has identified the accused as one of the passengers whose checkin formalities had been completed by her. She has categorically deposed that on the aforementioned date the accused had come to her counter and had a ticket to fly from Delhi to Mumbai on the flight no. SG119 of Spicejet Airlines and that she had checked his ticket, had verified his ID, had issued him the boarding pass and had then asked him for his baggage and that the accused had given her two pieces of baggage to be checked in SC No. 32/2009 Page No. 17 of 43 NCB Vs. Leonard Ofodum one black stroller bag and one big cardboard box and that it is she who had issued the baggage tags to him and had then affixed one of the baggage tags on the cardboard box. She has also categorically deposed that the weight of the baggage of the accused was found to be excess by 16 Kg and that he had paid the excess amount and further that since the cardboard box checked in by the accused was oversized, it was sent through OOG (Out of Gauge) and the black stroller bag was sent from the conveyor belt itself. In her crossexamination she has confirmed that baggage tag on the checked in baggage of the accused were affixed at the checkin counter itself and that two stubs of the said baggage tags were also affixed by her on the boarding pass of the accused and that after the checkin the cardboard box was taken by the loader through OG immediately and the accused had left after he was issued the boarding pass.
111 PW7 Rahul Thenua is the official as per whose deposition on 08.07.2009, it was his duty to screen the baggages that were sent to the OOG, Xray machine for screening. He has deposed that on 08.07.2009 one cardboard box had come for screening and that since the Xray machine had reflected some suspicious articles in the said box, he had immediately informed his seniors, the Airlines staff and the CISF staff about the same and that after a little while, the airline staff alongwith the SC No. 32/2009 Page No. 18 of 43 NCB Vs. Leonard Ofodum accused and CISF Inspector Sanjiv Sirohi had come to the OOG area and that he had handed over the cardboard box in question to the airlines staff.
111 PW1 Sh. Sanjiv Sirohi, is the Inspector CISF IGI Airport, who as per his deposition had escorted the accused from the airline counter to the OOG XBIS (Xray Baggage Inspection System), after receiving instructions from the control room officer in this regard. As per the statements given by him in his examination in chief and cross examination on 08.07.2009, at about 1650 hours he was asked to report to the checkin counter of Spicejet Airlines by the control room officer and escort a passenger present there to the OOG room where a suspicious baggage had been intercepted. He has identified the accused to be passenger that had been so escorted by him. He has also clarified that though he was not given any description of the passenger, he was told that the passenger is present at the Spicejet checkin counter and that the staff therein will identify the passenger for him and that the dealing officer at the said checkin counter had infact identified the accused for him. He has also categorically deposed that after accompanying the passenger to the OOG room he had then brought him back alongwith his suspicious baggage i.e. one cardboard box to the Assistant Commandant's room, CISF.
SC No. 32/2009 Page No. 19 of 43 NCB Vs. Leonard Ofodum 111 Thus all the three aforementioned witnesses have identified the accused as the passenger, whose luggage they had dealt with on 08.07.2009. No doubt the prosecution should have made both PW3 and PW7 identify the cardboard box produced as the case property, as the one that had been booked and screened by them respectively, but in the considered opinion of this court the said lapse on behalf of the Ld. SPP for the prosecution, cannot be stated to be fatal to the case of the prosecution in view of the other evidence produced on record. As per the deposition of the main investigating official Akhilesh Mishra and the panchnama prepared by him at the spot, he had seized the boarding pass and the baggage tags issued to the accused and the same have been exhibited as Ex.PW11/E, Ex.PW11/G and Ex.PW11/H respectively. Now though PW7 Rahul Thenua was not shown the cardboard box which was screened by him, it is to be taken note of that this witness in his deposition before the court has categorically deposed that he had tendered a statement Ex.PW7/B before the NCB officials and he has confirmed the contents of the said statement as correct. Now in the said statement, the said witness had categorically written that the baggage that was screened by him was pertaining to flight no. SG119 and it was having the baggage tag no. 378059 and that the passenger to whom the said baggage belonged as per the baggage tag namely Leonard Ofodum (i.e. the accused) had come SC No. 32/2009 Page No. 20 of 43 NCB Vs. Leonard Ofodum alongwith the CISF official and a staff of the concerned airline, to the OOG machine area, after he (PW7) had informed about the baggage to his senior and the concerned airline staff. Thus the said statement which has been affirmed by the witness PW7 in his deposition before the court to have been given by him makes it clear that it was the baggage tag bearing no. 378059 (i.e. the baggage tag proved as Ex.PW11/H), that was affixed on the cardboard box screened by him. Further it is the stub of the same baggage tag that is found affixed on the back side of the boarding pass Ex.PW11/E, issued to the accused and seized from him at the time of his apprehension. It is also to be taken note of that this witness in his crossexamination has also categorically deposed that there was a tag affixed on the cardboard box which he had screened and that on the tag, the flight number and the name of the passenger was mentioned. The said statement of this witness read with his examination in chief wherein he has categorically stated that the passenger Leonord Ofodum alongwith Sanjiv Sirohi had come to the OOG machine area makes it clear that the tag affixed on the cardboard box, screened by this witness had the name of the accused only. Thus the fact that all the three witnesses namely PW3, PW7 and PW1 have identified the accused as the same passenger, whose luggage they had dealt with on the date of the incident and the fact that PW7 has confirmed that the baggage tag no. SC No. 32/2009 Page No. 21 of 43 NCB Vs. Leonard Ofodum 378059 bearing the name of the accused was found affixed on the cardboard box that he had screened and that the stub of the same baggage tag number was found on the back side of the boarding pass of the accused, all taken together cumulatively prove that the cardboard box produced by the prosecution as the box from which the contraband was recovered belonged to the accused only. There is no fact that has emerged during the crossexamination of PW1, PW3 and PW7 on the basis of which their credibility or the veracity of the statements tendered by them can be doubted. At this stage it will be relevant to take note of another argument of Ld. Defence counsel namely that though PW3 has deposed that the weight of the baggage of the accused consisting of one huge cardboard box and stroller bag was found in excess of the prescribed limit and the accused had made the payment for the same, the payment receipt of the same has not been filed on record and that this itself proves that no such payment was made by the accused and that therefore the possibility that either PW3 or PW7 could have tampered with the cardboard box and concealed drugs therein cannot be ruled out. I am afraid that the said contention has absolutely no merit. It is a matter of record that when both PW3 and PW7 were in the witness box, no such suggestions were put to them. Further it does not at all appeal to common sense that PW7 will first of all put contraband in the luggage of the SC No. 32/2009 Page No. 22 of 43 NCB Vs. Leonard Ofodum accused and then inform the airline officials and the CISF officials about the same. As regards PW3, though she was questioned at length and she explained in detail about the payment made by the accused for the excess weight of his luggage, she was never at all asked to produce the payment proof. In the considered opinion of this court when the defence itself has chosen not to ask PW3 about the availability of the payment receipt, it cannot now at this stage impute intentions to the prosecution for not producing the payment receipt on record. In a judgment delivered by Hon'ble Delhi High Court in a case titled as Bilal Ahmed Vs. State 2011(1) JCC (Narcotics) 27 it has been observed that it is a settled legal principle that if the testimony of a witness has to be discredited, the relevant fact should be put to him so that he gets the chance to offer an explanation. It was affirmed by the Hon'ble Delhi High Court that it is absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in crossexamination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, to argue that he is a witness unworthy of credit.
SC No. 32/2009 Page No. 23 of 43
NCB Vs. Leonard Ofodum 111 However having held that the prosecution has been able to prove that the cardboard box which was searched by the NCB officials, belonged to the accused only, this Court is unable to hold that the investigating agency has been able to prove that the case property and the samples had been kept in proper custody and that what was sent to the Chemical Examiner for analysis was the same that was recovered from the cardboard box belonging to the accused. In this regard, one of the main contentions taken by the defence is that there has been total non compliance of Section 52 and 55 of the NDPS Act in as much as the contraband allegedly recovered from the accused was never produced by the seizing officer Akhilesh Mishra before the Superintendent, NCB and that he on his own, being the Malkhana Incharge had deposited the contraband recovered with himself. The submission of Ld. Defence Counsel is that in doing so the procedural safeguards provided in Section 52 and 55 of the NDPS Act have not been followed and the same infact has caused a grave prejudice to the accused in the present case, in as much as the main investigating and seizing officer Akhilesh Mishra was also the Malkhana Incharge of the NCB, on the date of the seizure and that he in this dual capacity, not only seized the contraband in the present case but also deposited the same with himself and therefore had every opportunity to tamper with the same. It has been pointed out by the Ld. Defence SC No. 32/2009 Page No. 24 of 43 NCB Vs. Leonard Ofodum Counsel that the Ld. Predecessor of this Court during trial had himself taken note that there was a variation of colour between the substance produced by the prosecution as the one that was allegedly recovered from the cardboard box in question and the colour of the substance that was sent as samples to the CRCL and had directed for retesting of the samples of the case property. Ld. Defence counsel has also pointed out that on retesting of the case property, its sample was found containing only 24% diacetylmorphine and that the prosecution has miserably failed to explain the reduction in the percentage of diacetylmorphine from 50.3% (the percentage reflected in the first CRCL report) to 24%. According to the Ld. Defence Counsel, the fact of a huge variation in the colour and the percentage of diacetylmorphine of the aforementioned substances itself is sufficient to draw an inference by this Court that the case property was tampered with by the Malkhana Incharge Akhilesh Mishra and that therefore the accused cannot be convicted in the present case. It has also been pointed out on behalf of the defence that the same investigating official in the capacity of the malkhana incharge has been found by this very court of having tampered with the case property in another case titled as NCB Vs. Priscilla, SC No. 20/10. 111 On the other hand, on behalf of NCB by Ms. Renu Bansal has submitted that since Akhilesh Mishra was himself an empowered officer u/s 53 of SC No. 32/2009 Page No. 25 of 43 NCB Vs. Leonard Ofodum the NDPS Act, there was no necessity for him to have produced the seized property before the Officer Incharge and that therefore there has been no non compliance of section 52 or 55 of the NDPS Act. She has also vehemently contended that it is not within her knowledge whether it has been held conclusively by this court in SC No. 20/10 that the case property had been tampered with by Akhilesh Mishra and according to her even otherwise, the said previous conduct of Akhilesh Mishra is not at all relevant in the proceedings of the present case. As regards the variation in percentage of diacetylmorphine in the two CRCL reports, the contention of Ld. SPP is that the CRCL expert PW8 R.P. Singh has clearly deposed that the purity percentage of diacetylmorphine deteriorates over a passage of time, on it being exposed to sunlight, heat, moisture and other environmental conditions. She has further submitted that the variation in the colour of the samples and the case property cannot be the sole ground to reach at the conclusion that the sample and the case property had been tampered with.
111 In order to appreciate the aforementioned contentions of the Ld. Counsels, it will be relevant herein to briefly take note of the provisions of Sections 52 and 55 of the NDPS Act. The provisions of Section 52 of the NDPS Act inter alia provide that every person arrested and article seized by an Investigating Officer shall be forwarded without SC No. 32/2009 Page No. 26 of 43 NCB Vs. Leonard Ofodum unnecessary delay to the Officer Incharge of the nearest police station, or to an officer empowered u/s 53 of the NDPS Act. Section 55 of the NDPS Act inter alia provides that an Officer Incharge of a Police Station shall take charge of and keep in safe custody, articles seized under this Act within the local area of that police station which may be delivered to him. The said procedural safeguard have been provided under the NDPS Act so as to make sure that the substances recovered by Investigating Officer is immediately put in the custody of an officer Incharge so that the same cannot be tampered with and there is not provided any occasion to suspect fair and impartial investigation. No doubt the said provisions are not mandatory in nature, but the same also cannot be reduced to a mere formality. In a case titled as Gurbaksh Singh Vs. State of Haryana reported in 2001(3) SCC 28, the Hon'ble Supreme Court has held that though the provisions of section 52 and 57 are directory and the violation of these provisions do not ifso facto violate the trial or conviction, the investigating agency cannot totally ignore these provisions and such failure will have a bearing on the appreciation of the evidence regarding arrest of accused and seizure of articles. The Hon'ble Punjab and Haryana High Court also in Kashmiri Lal's case (supra a judgment relied upon by the Ld. Defence counsel) has held that the provisions of section 52 and 55 are not an idle formality but the SC No. 32/2009 Page No. 27 of 43 NCB Vs. Leonard Ofodum provisions have been enacted to ensure that the case property remained in safe custody to avoid any tampering of the same. Now in the present case as pointed out by the Ld. Defence Counsel, admittedly the investigating officer Akhilesh Mishra was himself the Malkhana Incharge of the NCB as on the date of the incident and after seizing the substance from the cardboard in question he deposited the same in the Malkhana on his own. Admittedly, neither the sample envelopes nor the main case pullanda was produced by Akhilesh Mishra before the Superintendent, NCB the Officer Incharge of the NCB as on the date of the incident. No doubt Akhilesh Mishra is an empowered officer u/s 53 of the NDPS Act, however the underlying spirit of the provisions of Section 52 and 55 of the NDPS Act is that the articles seized in an investigation under provisions of NDPS Act are to be handed over by the Investigating Officer for its safe custody to the Officer Incharge so that the same cannot be tampered with and there is no opportunity or occasion to suspect fair and impartial investigation. In the present case the act of Akhilesh Mishra in acting in dual capacity namely that of the Investigating Official and the official incharge of the malkhana cannot be brushed aside for infact the evidence on record does show that the samples were tampered with. A perusal of record shows that as per the deposition of PW11 Akhilesh Kumar Mishra, he had drawn out two SC No. 32/2009 Page No. 28 of 43 NCB Vs. Leonard Ofodum samples of 5 gm each from the powder recovered from the cardboard box and that he had given marks A1 and A2 to the two envelopes in which the samples were kept and sealed and mark A to the parcel in which the remaining recovered substance was kept and sealed. He has further deposed that he had sent the envelope mark A1 containing the first sample to CRCL for examination. Now at the time of deposition of this witness during trial, both the parcel mark A and the envelope A2 were produced before the Ld. Predecessor of this court and the powder contained in both the said parcel and the envelope were found to be brown in colour. The envelope mark A1 was opened before the Ld. Predecessor of this court during the deposition of the CRCL expert PW8 R.P. Singh and the said envelope was found containing the powder of off white colour. As per the report of this expert, Ex.PW8/A at the time of opening the envelope A1 in the CRCL laboratory, it was found containing off white coarse powder only. On being categorically asked during crossexamination, the said expert stated that he is aware of the difference between brown and off white and that the two said shades are different. The aforementioned record thus reveals that though the sample mark A2 and the parcel mark A were found containing the same coloured powder, the sample mark A1 was found containing powder of a different shade. Though Ld. Counsel Ms. Bansal has chosen to argue that people SC No. 32/2009 Page No. 29 of 43 NCB Vs. Leonard Ofodum perceive shades of colour differently and that therefore though the test memo sent alongwith the sample mark A1 to CRCL laboratory mentioned the envelope containing brown colour powder, the CRCL expert at the time of analysing the said sample referred to its colour as off white, I am afraid that the said contention of Ms. Bansal is not addressing the issue at all for present is not a case where the same colour has been perceived differently by different persons. The Ld. Predecessor of this court in his order dated 05.05.2011 has categorically observed that there is difference in colour and texture between the substance that had been found in the mark A parcel and the envelope A2 and the substance that had been found in envelope A1. In other words, as per the said observation of the Ld. Predecessor the sample sent to CRCL, containing in envelope A1 could not have been drawn out from the substance mark A parcel. In the considered opinion of this court the observations of Ld. Predecessor, the deposition and the report of the CRCL expert make it clear that it cannot be at all held in the present case that what was sent to the Chemical Examiner for analysis was the same that was recovered from the accused and that therefore the accused will have to be given the benefit of doubt in terms of the judicial dicta laid down by the Hon'ble Supreme Court in Valsala's case (supra) and the dicta laid down by the Hon'ble Delhi High Court in a case titled and reported as James Eazy SC No. 32/2009 Page No. 30 of 43 NCB Vs. Leonard Ofodum Franky Vs. DRI 2012(3) JCC (Narcotics) 81. In Valsala's case, the Hon'ble Supreme Court held that when a court cannot be sure that what was seized from an accused was what was sent to the Chemical Examiner, the accused cannot be convicted for an offence under the NDPS Act. In James Franky's case, the facts with respect to the difference in colour of the sample sent to CRCL and that of the case property were somewhat similar to the facts of the present case and taking note of the said variation in colour, the Hon'ble Delhi High Court held that the accused will have to be granted the benefit of doubt. In the said case also, the Chemical Examiner who had analysed the case property had described it as off white colour granule powder whereas the prosecution case was that the substance recovered from the accused was of brown colour. Taking note of the said variation, the Hon'ble High Court held that in such circumstances it cannot at all be held that the case property and the samples had been kept in proper custody and that what was sent to the Chemical Examiner for analysis was the same that was recovered from the accused and that therefore the accused could not be convicted. In another judgment pronounced in the case titled and reported as Eze Val Okeke Vs. NCB 2005(1) JCC (Narcotics) 57, the Hon'ble Delhi High Court has held that where the prosecution has been unable to prove satisfactorily that what was recovered from the accused SC No. 32/2009 Page No. 31 of 43 NCB Vs. Leonard Ofodum was the same substance that was actually chemically tested, the accused is entitled to be acquitted. In the said case also the Chemical Examiner had deposed that what was analysed was of white colour whereas the prosecution's case was that the powder recovered from the accused was of brown colour and taking note of the said contradiction, the Hon'ble Delhi High Court acquitted the accused. In yet another recent judgment pronounced by the Hon'ble Delhi High Court in a case titled and reported as Hannan Vs. State of NCT of Delhi 2013(3) JCC (Narcotics) 94, the Hon'ble Delhi High Court after taking note of the contradiction in the deposition of the prosecution witnesses with respect to the colour of the contraband recovered and the fact that the witness in whose custody the case property remained, did not categorically depose that the case property was not tampered with, held that the prosecution had failed to prove the link evidence and acquitted the accused. The aforementioned judicial dicta clearly shows the importance that the Hon'ble higher courts have attached to the procedures relating to search, seizure and proper custody of contraband in the cases being tried under the NDPS Act. 111 It is also to be taken note of that admittedly till date no experiments have been conducted in India in any lab whatsoever to prove that the percentage of diacetylmorphine in a given sample deteriorates over a passage of time and the Hon'ble Delhi High Court in two of its judgments SC No. 32/2009 Page No. 32 of 43 NCB Vs. Leonard Ofodum pronounced in the cases titled as Rajni Devi Vs. State 2006 Cri.L.J 891 and Union of India Vs. Farid 2011(4) JCC (Narcotics) 213 has held that a huge variation in the percentage of diacetylmorphine on a sample being retested cannot be accepted solely on the ground of the lapse of time between the two tests. Further in the considered opinion of this court even if it is assumed that the variation in the percentage of diacetylmorphine in the two CRCL reports in the present case is only due to the lapse of time between the two tests, as discussed hereinabove, there is absolutely no satisfactory explanation forthcoming from the prosecution to explain the variation in the colour of the sample mark A1 and the parcel A and the sample mark A2.
111 The argument of the Ld. Counsel Ms. Renu Bansal that since even the fresh sample drawn out from case property parcel mark A on being sent for analysis by the orders of Ld. Predecessor dated 05.05.2011 was found containing diacetylmorphine to the extent of 24%, the accused can be held guilty of having been found in possession of heroin, having that said purity, cannot be upheld for once the evidence on record has revealed that the investigating official Akhilesh Kumar Mishra may have tampered with the samples while sending the same for analysis, it cannot at all be held that the prosecution has been able to prove beyond doubt that there was no possibility that the IO Akhilesh Mishra in his dual SC No. 32/2009 Page No. 33 of 43 NCB Vs. Leonard Ofodum capacity as the investigating official would have tampered with the case property.
111 This court is also constrained to mention that despite the categorical observations of the Hon'ble Supreme Court and the Hon'ble Delhi High Court the investigating officials of the NCB are not drawing out samples from a recovered substance in a proper and representative manner. In Bal Mukund's case (supra the judgment relied upon by the Ld. Defence counsel), the facts before the Hon'ble Supreme Court were that as per the version of the prosecution, 20 Kg of Opium had been recovered from the accused persons but the Hon'ble Supreme Court did not accept the contention of the State that representative samples from the recovered substance had been drawn out. In para 10 of its judgment, the Apex Court took note of the standing instructions no.1/88 issued by the NCB and observed that the said instructions (clause 1.7 (e)) clearly laid down that while drawing out the sample from a particular lot, it must be ensured that representative drug in equal quantity is taken from each packet/container of that lot and mixed together to make a composite whole from which the samples should then be drawn for that lot. In para 39 of its judgment, the Hon'ble Supreme court took note that the seizing officer had taken only 25 gm each from all the 5 bags and then mixed them and sent them to the laboratory and had thereafter held that the said SC No. 32/2009 Page No. 34 of 43 NCB Vs. Leonard Ofodum quantity was not an adequate quantity and that the requirement of law as laid down in the standing instructions had not been met. Similarly in another case titled as Gaunter Edwin Kircher Vs. State of Goa 1993(3) SCC 145, the Hon'ble Supreme Court emphasised the importance of sending representative samples of the recovered cannabis substance by laying down that from each of the packets of pieces recovered, sufficient quantity by way of samples must be sent for chemical examination. The aforementioned judgments have been followed by the Hon'ble Delhi High Court in its recent judgment dated 02.07.2012 pronounced in the case titled as Basant Rai Vs. State in criminal appeal no.909/2005 to hold that drawing out of samples of mere 25 gm each from each of eight of the polythene bags allegedly containing cannabis substance, is not at all sufficient. In the said case, 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 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, the benefit of which will have to SC No. 32/2009 Page No. 35 of 43 NCB Vs. Leonard Ofodum be given to the accused. Now in the present case also though as per the deposition of the investigating official Akhilesh Kumar Mishra, there were 5 CD players in the cardboard box and from each of the said CD players one packet containing brown colour powder was recovered, he did not separately weigh the packets nor did he draw out separate samples from each of the packets and on the contrary mixed the powder from all the packets together and then drew out two samples therefrom. The said procedure is completely improper as held by the Hon'ble Delhi High Court in the aforementioned case and would have led to an incorrect result.
111 At this stage, it will be relevant to take note of another contention of Ld. Counsel Ms. Bansal namely that since the accused in his statement tendered u/s 67 NDPS Act, Ex. PW2/A has himself admitted that the cardboard box that he was carrying had heroin concealed therein, this court can on the basis of the said statement itself hold the accused guilty of the offence that he has been charged with. With respect to the said contention it is to be firstly noted that in the said statement the accused has not admitted that he had the knowledge that the cardboard box had heroin concealed therein. According to the said statement the cardboard box had been given to the accused by his friend and he was told that there is 'a substance' contained therein and that he was to deliver the SC No. 32/2009 Page No. 36 of 43 NCB Vs. Leonard Ofodum same to a person who would receive him at the Mumbai airport and that the accused was to be paid 900$ for the said delivery. The only admission made by the accused in the said statement with respect to the nature of the substance contained in the cardboard box is that he admits that after the NCB team recovered the powder from the cardboard box, he was told that the same on being tested with the Field Testing Kit had tested positive for heroin. The said admission cannot be stretched to hold that the accused admitted that he was carrying heroin. In a bail application no. 1777/2008 in a case titled as Dilbag Singh Vs. DRI, the Hon'ble Delhi High Court held that merely because an accused in his statement tendered u/s 67 NDPS Act admits that he was carrying a drug at the time of his apprehension, the same cannot lead to the conclusion that he had the knowledge that the drug was certainly a contraband item. Similarly in the present case merely because an accused in his statement purportedly tendered u/s 67 NDPS Act admitted that he was aware that there was some substance concealed in his luggage cannot lead to the conclusion that he admitted that he was carrying heroin. Further in the considered opinion of this court the said statement cannot be at all made the sole basis for convicting the accused in the present case. No doubt the Hon'ble Supreme Court in its various judgments pronounced in NDPS cases that have been relied upon by the Ld. Proxy SPP has held that a SC No. 32/2009 Page No. 37 of 43 NCB Vs. Leonard Ofodum 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 confession, as a rule of 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 SC No. 32/2009 Page No. 38 of 43 NCB Vs. Leonard Ofodum Vs. Union of India (2008) 4SCC 668, (a judgment relied by the prosecution 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 accused. In the same judgment, the Apex Court has also observed that in case an accused retracts the purported confession made by him u/s 67 NDPS Act, the court is bound to take into consideration the said factum of retraction in determining voluntariness of the said purported confession. 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.
111 Now in the present case, the first and the foremost fact to be noted is that as per record the accused was produced for his first remand on SC No. 32/2009 Page No. 39 of 43 NCB Vs. Leonard Ofodum 09.07.2009 and a retraction application dated 13.07.2009 forwarded by the jail authorities was filed by the accused before the court on 23.07.2009 i.e. on the very next date that he was produced after his first remand. In the said application it was inter alia stated that the NCB officials had forced the accused to sign many documents and that he had not given any voluntary statement in their office. It was also mentioned therein that though the accused knew how to read and write English language his signatures were taken on blank documents. It is also a matter of record that at this stage the accused was not being represented by any Advocate whosoever and therefore the contention of Ld. Counsel Ms. Bansal that the said retraction application was based on legal advice cannot be accepted. It is also to be noted that PW2 G.S. Bhinder, the NCB official who purportedly wrote the statement of the accused on his dictation, in his crossexamination has categorically stated that during the recording of the statement of the accused u/s 67 NDPS Act, the NCB official M.M.S. Bhandari was putting questions to the accused. In other words the accused was being interrogated by the NCB officials and admittedly the statement Ex.PW2/A does not record anywhere that the accused was informed of his right to remain silent. It is also the case of the prosecution itself that the accused was in their custody the entire night of 08.07.2009 and half of the day of 09.07.2009 before he was SC No. 32/2009 Page No. 40 of 43 NCB Vs. Leonard Ofodum finally produced before the court. Merely because the NCB officials did not choose to show him arrested at the time of recording his statement u/s 67 NDPS Act and prepared his arrest memo only after the said statement was recorded cannot at all be a ground to hold that the accused was not in the custody of the NCB officials at the time of recording his statement u/s 67 NDPS Act. It is for this reason that the Hon'ble Supreme Court in Bal Mukund's case 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 NDPS Act and that the court should not lose sight of the ground realities. 111 It is also to be borne in mind that in the present case though the accused admittedly was knowing how to write English, his statement was written by PW2 G.S. Bhinder. When the said witness was asked in his cross examination the reason for not allowing the accused to write his statement in his own handwriting, all that this witness could state was that the handwriting of the accused was not good a statement which is not at all supported by Ex.PW2/A which contains a few lines in the handwriting of the accused and the said lines appear to be in perfectly good and legible handwriting. It will be relevant herein to refer to an order pronounced in Criminal L.P. 192/2009 (the copy of which has been placed before the court by the Ld. Defence Counsel) by the Hon'ble SC No. 32/2009 Page No. 41 of 43 NCB Vs. Leonard Ofodum Delhi High Court wherein it has been observed that if the statement of an accused is written by the NCB officials despite the fact that the accused was in a position to write, the said statement cannot be stated to be beyond suspicion.
111 Thus in the present case, the aforementioned attendant circumstances reveal that at the stage of enquiry u/s 67 NDPS Act, the accused was in the custody of the NCB officials, he was subjected to interrogation, he was not informed of his right to remain silent and further he was also not allowed to write his statement in his own handwriting and that at the first available opportunity the accused informed the court about the said fact in his retraction application. Keeping in view the entire judicial dicta referred to in the preceding paragraphs and the aforementioned attendant circumstances of the present case, this court is of the considered opinion that the statement u/s 67 NDPS Act purportedly tendered by the accused and being relied by the prosecution cannot be held to be his voluntary statement and therefore cannot be read in evidence against him. In such view of the matter the said statement cannot be made the sole basis for holding the accused guilty of having committed the offence that he has been charged with. Thus keeping in view the discrepancy that has come to the fore with respect to the samples sent to CRCL, the accused has to SC No. 32/2009 Page No. 42 of 43 NCB Vs. Leonard Ofodum be granted the benefit of doubt in the present case. He therefore hereby stands acquitted of the offences that he has been charged with.
Announced in the open court
on this 19th day of April, 2014 (Anu Grover Baliga)
Special Judge, NDPS
New Delhi
SC No. 32/2009 Page No. 43 of 43