Delhi District Court
(Iv)Eze Val Okeke @ Val Eze V. Ncb 116 ... vs Page 30/36 on 24 August, 2022
IN THE COURT OF SPECIAL JUDGE (NDPS), NORTH DISTRICT, ROHINI
COURTS, DELHI.
SC No. 57698/2016 ( DLNT010004402014)
FIR No. 05/2014
U/s. 21/29 of NDPS Act
P.S. Crime Branch
STATE
Vs
1. IFESNEYE ( Nigerian National)
S/o OGBE
R/o Temporary: H. No. 5 Alke Nigeria Temporary,
Gali No. 10 Krishana Park, Tilak Nagar, Delhi
(Passport No. A2915122)
2. PROGRESS ( Nigerian National)
S/o OJERAHI
Temporary: H. No. 5 Alke Nigeria Temporary,
Gali No. 10 Krishana Park, Tilak Nagar, Delhi
(Declared P.O Vide order dated 30.09.2019)
Date of Institution : 03042014
Arguments Heard on : 18072022
Judgment Passed on : 24082022
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JUDGMENT :
1 The accused persons namely Ifesneye and Progress have been sent to face trial for the offences punishable under Section 21/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as 'NDPS Act').
2. The facts of the case in brief as per the chargesheet filed by the prosecution are that First Investigating Officer (IO)/ASI (Assistant Sub Inspector), Crime Branch, (Northern Range) Harcharan Singh received secret information on 11.01.2014 regarding one Nigerian national who is in the business of supplying heroin would come for delivery behind Crown Plaza Hotel Near Metro Walk entry between 1:30 to 2:30 p.m and if the police officers are sent, the said persons and the receiver can be apprehended. Accordingly, ASI Harcharan Singh shared the said information with his senior Inspector Rajbir Singh who further informed ACP K.P.S Malhotra in this regard. The ACP concerned directed them to take action as per law. Accordingly, DD No.6 dated 11.01.2014 was lodged by ASI Harcharan Singh and raiding party was constituted comprising of ASI Harcharan Singh, Head Constable (HC) Kanwar Pal, H.C Sant Ram, Constable (Ct) Atul, Ct. Anil, Ct. Harvinder a Ct. Jagdeep, Ct. Sandeep and they left alongwith secret informer in two separate private vehicles. I.O also took with him field testing kit and electronic weighing machine. On the way, the I.O ASI Harcharan tried to join the public persons in the proceedings, but none Page 2/36 agreed and left the spot. The police party reached at the spot i.e backside of Hotel Crown Plaza at around 1:30 p.m and took positions waiting for the said Nigerian National. At about 1:50 p.m, one Nigerian national having one Pittu Bag (Sling bag) came and stood near Metro Walk and stood near the gate. Secret informer identified the said Nigerian national. In the meantime, one another Nigerian National came from T Point of the Crown Plaza Hotel side and they both started walking towards Crown Plaza Hotel. They were apprehended at about 2:00 p.m. Their names were disclosed as Iffensye and Progress, both of them were Nigerian nationals. The raiding party members introduced themselves and they were informed about their legal rights under Section 50 of the NDPS Act, but they refused to get themselves searched in the presence of Gazetted Officer/Magistrate after which ASI Harcharan conducted the search of black colour sling bag recovered from possession of accused Ifesneye. It was having one polythene bag which found containing 2.05 KG of heroin. The said heroin was checked with the help of Field Testing Kit. Two samples of 5 gram each were separated and given Mark A and B. The remaining heroin was also seized and was given Mark C. Form FSL was filled and all the said contraband was seized. Nothing was recovered from the possession of second accused namely Progress. The FIR thereafter was got registered and both the accused persons were arrested. The FIR was got registered and case property was deposited in the Malkhana . Accused Progress was also found to be residing in India after expiry of his Visa. Accordingly, Section 14 of Foreigners Act was invoked against Page 3/36 accused Progress. FSL report was received. After conclusion of the investigation, both the accused persons were chargesheeted.
3. Cognizance of the offence was taken by Ld. Predecessor vide order dated 03.04.2014.
4. Accused Ifesneye was charged for the offence punishable under Section 21(C) of NDPS Act vide order dated 06.08.2014 and u/s 29 against both the accused and accused Progress was separately charged for the offence punishable under Section 14 of the Foreigners Act . The charge was amended vide order dated 01.12.2014 as there was clerical mistake in the quantity of the recovered contraband .
5. During the course of trial, the accused Progress absconded and has been declared Proclaimed Offender (P.O) vide order dated 30.09.2019.
6. The prosecution, in order to prove, its case against the accused has examined 15 witnesses in all.
7. ASI Balvinder Singh (PW1) is the duty officer who proved the registration of the FIR done on 11.01.2014 at about 8:45 p.m vide Ex.PW1/A. PW 1 also proved the certificate under Section 65B of the Evidence Act as Ex. PW1/C. Page 4/36
8. Ct. Vikram (PW2) deposed that on 14.1.2014 on the instructions of the I.O, he took one sealed pullanda Mark A with the seal of HSS and VSS alongwith Form FSL from the MHC(M) and deposited the same at FSL Rohini. Its receipt was deposited back with the MHC(M).
9. SI Sukram Pal (PW3) , the third Investigating Officer who deposed that on 29.01.2014, the investigation was marked to him. PW3 collected the FSL result and recorded statement of HC Kanwar Pal. PW3 added Section 14 of Foreigners Act qua accused Progress and after completion of the investigation, filed the chargesheet.
10. Inspector Virender Singh (PW4) deposed that he was SHO Crime Branch on 11.01.2014. HC Sant Ram came to his office and produced three sealed pullandas with the seal of HSS, Form FSL and carbon copy of seizure memo. After checking the same, he put his seal VSS on all the pullandas and Form FSL. He called the MHC(M) alongwith register 19 and handed over all the pullandas and documents to MHC(M) for depositing the same in Malkhana. PW4 lodged DD No.28 Ex.PW 4/A in this regard.
11. HC Jag Narayan (PW5) is the MHC (M) of Crime Branch who deposed that on 11.01.2014, SHO deposited with him three sealed pullandas, one Page 5/36 Form FSL, one carbon copy of seizure memo He deposited the same in malkhana vide entry No. 1862 in the Register No.19 vide Ex.PW5/A. On the same day, IO SI Sunil Kumar deposited passport of accused Iffensye but the same was returned to him for attaching with file . I.O also deposited two mobile phones Make Nokia, cash amount and original notice under Section 50 NDPS Act recovered from personal search of accused Progress. He also deposited personal search articles of accused Iffensye. Mobile phones were kept by the IO with himself for further investigation. Remaining articles were deposited in the Malkhana and entry in this regard was made in Register No.19 vide Ex.PW5/A. On 16.01.2014, PW5 handed over sealed parcel mark A containing 5 gram of heroin alongwith form FSL for depositing the same to FSL Rohini through constable Vikram. On 14.02.2014 FSL result was received and entry in this regard was made in register No.19 vide Ex.PW5/A.
12. HC Sant Ram (PW6) is the member of raiding party who deposed that on 11.01.2014, ASI Harcharan Singh received one secret information regarding one Nigerian national who is in the business of supplying heroin would come for delivery behind Crown Plaza Hotel Near Metro Walk entry between 1:30 to 2:30 p.m and if the police officers are sent, the said persons and the receiver can be apprehended. Accordingly, ASI Harcharan Singh shared the said information with senior officials who directed him to take action as per law. Accordingly, entry DD No.7A was made and raiding party by ASI Harcharan Singh was constituted comprising of ASI Page 6/36 Harcharan Singh, Head Constable (HC) Kanwar Pal, H.C Sant Ram (PW6 himself), Constable (Ct) Atul, Ct. Anil, Ct. Harvinder a Ct. Jagdeep, Ct. Sandeep . They left alongwith secret informer in two separate private vehicles. I.O also took with him field testing kit and electronic weighing machine. On the way, the I.O stopped the private vehicle and tried to join the public persons in the proceedings, but none agreed and left the spot. The police party reached at the spot i.e backside of Hotel Crown Plaza at around 1:30 p.m and took positions waiting for the said Nigerian National. PW6 further deposed that he alongwith secret informer took position around 50 metres near the gate. At about 1:50 p.m, one Nigerian national having one Pittu Bag (Sling bag) came and stood near Metro Walk T point . Secret informer identified the said Nigerian national and left the spot. In the meantime, one another Nigerian National came from section 11 side and they both started whispering and walking towards Crown Plaza Hotel. ASI Harcharan made signal to the members of raiding party and accused persons were apprehended at about 2:00 p.m. Their names were disclosed as Iffensye and Progress, both of them were Nigerian nationals. ASI Harcharan Singh and members of raiding party introduced themselves and the accused persons were informed about their legal rights under Section 50 of the NDPS Act. They were served with notices under Section 50 of the NDPS Act which were prepared in English by ASI Harcharan and were read over and explained both the accused persons. The accused persons told that they can speak and understand English, but they were not able to write the same. The accused persons refused to get Page 7/36 themselves searched in the presence of Gazetted Officer/Magistrate after which ASI Harcharan conducted the search of black colour sling bag recovered from possession of accused Ifesneye. ASI Harcharan Singh again asked 45 passersby to join the proceedings, but none agreed and left the spot. On search, the Sling Bag was having one polythene bag which found containing 2 KG 50 Gram of heroin. The said heroin was checked with Field Testing Kit. Two samples of 5 gram each were separated and given Mark A and B. PW6 further deposed that the remaining heroin was also seized and was given Mark C. Form FSL was filled and all the said contraband was seized vide seizure memo Ex.PW6/A having his signatures at point A. Accused Progress too was searched by ASI Harcharan Singh but nothing was recovered from his possession and nonrecovery memo was prepared and the same is Ex.PW6/B having his signature at point A. PW6 also deposed that at about 8:40 p.m he reached PS Crime Branch and handed over the rukka to SHO. After registration of the FIR, he collected the original rukka and copy of FIR from D.O. IO Sunil Kumar recorded his statement between 9:00 P.M. to 10:30 P.M. 12.1 PW6 identified the accused persons and also identified the case property Ex.P1, P2, bag Ex.P3 and polythene containing powder substance Ex.P4. Notice under Section 50 of the NDPS Act given to accused persons were identified by PW6 as P5 ( Ifesneye) and P6 ( accused Progress).
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13. Inspector Rajbir Singh (PW7 ) deposed that on 11.01.2014, he was posted with Crime Branch Rohini and on that day ASI Harcharan came at its office at about 12:45 p.m alongwith an informer and told that the informer had given an information regarding supply of bulk heroin and can be apprehended if the raid was conducted. He took the informer to the room of ACP K.P.S Malhotra and the ACP accordingly directed to take necessary action in this regard. He directed ASI Harcharan to constitute a raiding party. ASI Harcharan prepared DD No.6 and produced the same to him which he forwarded to ACP. At around 6:45 p.m, he was informed by the D.O that ASI Harcharan has apprehended two persons alongwith heroin and accordingly, he directed SI Sunil to proceed as Second I.O. At around 1:15 a.m on 12.01.2014 SI Sunil produced two accused persons who were arrested and he found the arrest to be justified. At around 11:30 a.m., ASI Harcharan produced report under Section 57 of NDPS Act regarding seizure of heroin and SI Sunil produced before him the report regarding arrest of the accused persons which he forwarded to the ACP concerned. He proved the said reports under Section 57 of the NDPS Act.
14. Sh. Vishal Gaurav (PW8), Nodal Officer, Bharti Airtel Ltd. had not brought the CDR and hence he was discharged unexamined.
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15. Dr.Lingaraj Sahoo (PW9), Senior Scientific Officer, FSL Rohini, who proved the FSL report qua the sample sent for chemicl examination Ex.PW9/1.
16. Israr Babu (PW10) is the Nodal Officer, Vodafone who proved the Customer Information Form in respect of mobile No 9582792943 as Ex.PW10/1, CDR of the said mobile during the period 01.01.2014 to 11.01.2014 as Ex.PW10/2 and Certificate under Section 65 B of the Evidence Act as Ex.PW10/3.
17. SI Sunil Kumar (PW11) is the Second I.O who deposed that on 11.1.2014, the investigation of the case was marked to him at around 6:45 pm and he was directed to reach the spot near Hotel Crown Plaza. He met ASI Harcharan who was present alongwith his staff and two accused persons. The custody of the accused persons alongwith documents were handed over to him. He prepared the site plan Ex.PW11/A and recorded the statement of ASI Harcharan. Both the accused persons were arrested vide arrest memo Ex.PW11/2 and Ex.PW11/3 respectively. Their personal search was conducted vide Ex.PW11/2A and Ex.PW11/3A. Their disclosure statements were also recorded. They left the spot at around 10 p.m. The personal search articles were deposited with the Malkhana. He recorded the statement of MHC(M) and SHO concerned. On 12.01.2014, he recorded the statements of witnesses and prepared the report under Section 57 of NDPS Act Ex. PW11/6 regarding arrest and the same was put up before Inspector Rajbir .The samples were Page 10/36 sent for FSL examination through constable Vikram. Further investigation was not carried out by him as he was transferred.
18. HC Kanwarpal (PW12) is also a member of raiding party who deposed that on 11.01.2014, he was called by ASI Harcharan and told him about secret information regarding one Nigerian national who is in the business of supplying heroin would come for delivery behind Crown Plaza Hotel Near Metro Walk entry between 1:30 to 2:30 p.m. ASI Harcharan Singh constituted one raiding party comprising of ASI Harcharan Singh himself, Head Constable (HC) Kanwar Pal (PW12 himself), H.C Sant Ram Constable (Ct) Atul), Ct. Anil, Ct. Harvinder a Ct. Jagdeep, Ct. Sandeep and they left alongwith secret informer in two separate private vehicles, one of which was Swift Dzire No. DL2FFC0057 and other car was Swift Dzire No.DL8CR 6489. I.O also took with him field testing kit and electronic weighing machine. The departure entry DD No.7 was made in this regard at about 1:15 p.m. On the way, the I.O stopped the private vehicle and tried to join the public persons in the proceedings, but none agreed and left the spot. The police party reached at the spot i.e backside of Hotel Crown Plaza at around 1:30 p.m and took positions waiting for the said Nigerian National. PW5 further deposed that he alongwith secret informer took position around 50 metres near the gate. At about 1:50 p.m, one Nigerian national having one Pittu Bag (Sling bag) came and stood near Metro Walk and stood near the gate. Secret informer identified the said Page 11/36 Nigerian national and left the spot. In the meantime, one another Nigerian National came from T Point of the Crown Plaza Hotel side at about 2:00 p.m. and they both started whispering and walking towards Ground Plaza Hotel. ASI Harcharan made signal to the members of raiding party and accused persons were apprehended at about 2:00 p.m. Their names were disclosed as Iffensye and Progress, both of them were Nigerian nationals. ASI Harcharan Singh and members of raiding party introduced themselves and the accused persons were informed about their legal rights under Section 50 of the NDPS Act. They were served with notices under Section 50 of the NDPS Act which were prepared in English by ASI Harcharan and were read over and explained both the accused persons. The accused persons told that they can speak and understand English, but they were not able to write the same. PW12 has proved the reply to the notices under Section 50 NDPS Act as Ex.PW 12/1 and Ex.PW12/2 The accused persons refused to get themselves searched in the presence of Gazetted Officer/Magistrate after which ASI Harcharan conducted the search of black colour sling bag recovered from possession of accused Ifesneye. ASI Harcharan Singh again asked 45 passersby to join the proceedings, but none agreed and left the spot. On search, the Sling Bag was having one polythene bag which found containing 2KG 500 Gram of heroin. The said heroin was checked with Field Testing Kit. Two samples of 5 gram each were separated and given Mark A and B. PW6 further deposed that the remaining heroin was also seized and was given Mark C. Frm FSL was filled. The contraband was seized vide seizure memo Ex.PW6/A. Page 12/36 18.1 PW12 identified the accused persons and also identified the case property Ex.P1, P2, bag Ex.P3 and polythene containing powder substance as heroin as Ex.P4.
19. ACP K.P.S Malhotra (PW13) deposed that on 11.01.2014, DD No.6 was put up before him and he made the endorsement on the same Ex.PW13/1. On the next day, two reports under Section 57 of NDPS Act regarding seizure and arrest were also put up before him and he verified the same with endorsement vide Ex.PW13/2 and Ex.PW13/3. PW13 also produced the correspondence in this regard and copies of the same are Ex.PW13/4, Ex.PW13/5 and Ex.PW13/6 respectively.
20. ASI Harcharan Singh (PW14) is the First Investigating Officer (I.O)/Complainant of the case who deposed that on 11.01.2014, he received one secret information regarding one Nigerian national who is in the business of supplying heroin would come for delivery behind Crown Plaza Hotel Near Metro Walk entry between 1:30 to 2:30 p.m and if the police officers are sent, the said person and the receiver can be apprehended. Accordingly, he shared the said information with senior inspector Rajbir Singh (PW7) who further informed their ACP K.P.S Luthura (PW13) in this regard. The ACP concerned (PW13) directed them to take action as per law. Accordingly, DD No.6 dated 11.01.2014 was lodged Page 13/36 by PW14 and PW14 also constituted a raiding party comprising of himself, Head Constable (HC) Kanwar Pal, H.C Sant Ram, Constable (Ct) Atul, Ct. Anil, Ct. Harvinder a Ct. Jagdeep, Ct. Sandeep and they left alongwith secret informer in two separate private vehicles. PW14 further deposed that he also took with him Field Testing Kit and Electronic Weighing Machine. On the way, PW14 tried to join the public persons in the proceedings, but none agreed and left the spot. The police party reached at the spot i.e backside of Hotel Crown Plaza at around 1:30 p.m and stopped their vehicles i.e Swift Dzire Car No. DL 2FFC0057 and other Swift car about 100 metres away from the spot. PW14 positioned/deployed the staff and started waiting for the said Nigerian nationals. At about 1:50 p.m, one Nigerian national having one Pittu Bag (Sling bag) came and stood near Metro Walk and stood near the gate. Secret informer identified the said Nigerian national. In the meantime, one another Nigerian National came from 'T' Point of the Crown Plaza Hotel side at about 2:00 p.m. and they both started walking towards Ground Plaza Hotel gate. They were apprehended at about 2:00 p.m. Their names were disclosed as Iffensye and Progress, both of them were Nigerian nationals. PW14 introduced himself as well as the raiding party members to the accused persons and the accused persons were informed about their legal rights under Section 50 of the NDPS Act, but they refused to get themselves searched in the presence of Gazetted Officer/Magistrate after which PW14 ( ASI Harcharan Singh) conducted the search of black colour sling bag recovered from possession of accused Ifesneye. It was having one polythene bag Page 14/36 which found containing 2 KG.5 Gram of heroin. The said heroin was checked with Field Testing Kit. Two samples of 5 Gram each were separated and given Mark A and B. The remaining heroin was also seized and was given Mark C. Form FSL was filled and all the said contraband (heroin) was seized. Nothing was recovered from the possession of second accused namely Progress. Thereafter, PW14 prepared Rukka Ex.PW14/1 and handed over the same to HC Sant Ram (PW6) for getting the FIR (Ex.PW1/A) registered.
20.1 PW14 further deposed that he had already informed the Duty Officer telephonically for sending the I.O on the spot. At about 7:30 p.m, Second SI Sunil (PW11) reached the spot and PW14 handed over the custody of accused persons to IO SI Sunil (PW11). Second IO SI Sunil (PW11) prepared the Rukka at his instance which is already Ex.PW11/1. PW3 further deposed that on 12.01.2014, he prepared the report under Section 57 of NDPS Act regarding seizure of contraband which is Ex.PW14/2. PW14 produced the same before Inspector Rajbir Singh and subsequently his statement was recorded by I.O. On 17.01.2014, his seal was handed back to him by HC Kanwar Pal (PW12) in the presence of IO SI Sunil (PW11). 20.2 PW14 also identified the case property, bag Ex.P3 and polythene containing contraband as Ex.P4.
21 Sh. Chander Shekher (PW15), Nodal Officer of Bharti Airtel proved the CDR and CAF of mobile No 9650553217 vide Ex.PW15/1 and Ex.PW15/2 Page 15/36 respectively. PW15 also proved the Cell I.D site address sheet as Ex.PW15/3 and the certificate under Section 65 of the Evidence Act as Ex.PW15/4
22. After conclusion of the prosecution, the statement of accused Iffensye was recorded under Section 313 Cr.P.C in which the accused claimed that he has been falsely implicated in the present case. He claimed that he was lifted from his house situated at Vikas Puri on 10.01.2014 and was taken to police station where he was forced to sign blank papers. He has been implicated due to his race . No evidence in defence was produced by the accused Ifesneye despite availing the opportunity in this regard.
23. I have heard Learned Additional Public Prosecutor (Addl.PP) for the State as well as Shri S.S. Das, Ld. Counsel for accused Ifesneye and also considered the material placed on record.
24. It is argued on behalf of the accused that the inspector Rajbir Singh (PW7) who directed the first IO Harcharan Singh (PW14) was not authorized to for conducting the raid by ACP and hence there is complete noncompliance of procedure under Section 42 of NDPS Act. On the said account alone, the case of the prosecution is liable to discarded.
Page 16/36 24.1 It is further argued that as far as the recovery of the alleged contraband is concerned, ASI Harcharan Singh (PW14) and PW12 admitted the fact that they are facing extortion charges and in the said backdrop, not much reliance can be placed on the tainted versions of said PWs.
24.2 It is further argued that the story of the prosecution is also doubtful qua the manner in which the information was received by ASI Harcharan Singh (PW14) from the secret informer. PW14 claimed that the information received while he was standing outside the police station that too in civil dress. The informer was not known to the said police officials, then what prompted the secret informer to disclose said information to PW14.
24.3 It is further argued that no independent witness was joined in the proceedings by the Investigating authority right from the conducting of the raid till arrest despite it being a crowded commercial area. Therefore not much reliance can be placed upon the version of recovery witnesses.
24.4 It is further argued on behalf of the accused that mandatory procedure under Section 50 of NDPS Act has also not been strictly complied as reply was got written by Constable Atul that too in verbatim for both accused . Ct Atul never entered in the witness box . It is further argued that there are various other contradictions in the version given by other PW7, PW12 and PW14 also reflects the story to be doubtful.
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25. In support of his arguments, Ld. Counsel for the accused has relied upon the following judgments:
(I) Nnadi K. Iheanyi V. NCB, 2014 (4) JCC ( Narcotices) 182 (II)Gunesh Kumar V. State 2016 VII AD (Delhi) 249 (III) Darshan Singh V. State of Haryana Criminal Appeal No.216 with 217 of 2009 (IV)Eze Val Okeke @ Val Eze V. NCB 116 (2005) DLT 399 (V) Ritesh Chakarvati V. State of M.P JT 2006 (12) SC 416 (VI) Bahadur Singh V. State of M.P & Anr. 2002 (1) JCC 12 (VII) State of Rajasthan V. Gurmail Singh 2005 I AD SC 554 (VIII) Ram Swarup V. Mohd. Javed Razack 2005 I AD (Cr.) SC 555 (IX) DRI V. Raj Kumar Mehta & Ors. 2011 (3) JCC (Narcotics) 156
26. Per contra, Ld. Addl.P.P for the State argued that the testimony of material witnesses i.e PW6, PW12, and PW14 all prove their case beyond reasonable doubt qua accused Ifesneye. Their testimonies show that the accused Ifesneye alongwith accused Progress (now P.O) were apprehended with contraband during the raid. It is further argued that all the mandatory provisions of the NDPS Act were duly complied with while constituting the raiding team under Section 42 of the Act as well as searching of accused persons under Section 50 of the Act. Thus, the prosecution has succeeded in proving its case beyond reasonable doubt. Compliance of Section 41 & 42 NDPS Act Page 18/36
27. It is the case of the prosecution that the first IO ASI Harcharan Singh (PW14) received the secret information while he was in office on 11.01.2014 about accused Ifesneye who is a Nigerian national residing at Vikas Puri, Delhi, will come at Crown Plaza Hotel behind Metro Walk on the said day (11.01.2014) between 2:00 p.m and 2:30 p.m for supply of heroin. It is further the case of the prosecution that the said informer thereafter was produced before Inspector Rajbir Singh (PW7), superior officer of ASI Harcharan Singh (PW14) who interrogated him and got satisfied with the said information. Thereupon Inspector Rajbir (PW7) shared the said information with ACP K.P.S Malhotra (PW13) who directed them to take action as per law. Thereupon DD No.6 (Ex.PW13/1) was recorded by ASI Harcharan Singh (PW14) and a raiding party was constituted. They left for the spot at about 1:40 p.m and apprehended the accused Ifesneye and his accomplice Progress (since P.O) while they were proceeding towards the gate of Crown Plaza Hotel. The recovery of 2 KG 500 Gram was effected from the search of sling bag being carried by accused Ifesneye who is facing trial in the present matter.
27.1 As far as compliance under Section 42 of the NDPS Act is concerned , it is the case of the accused as argued that ASI Harcharan Singh (PW14) was not the empowered officer and the Gazetted Officer i.e ACP K.P.S Malhotra (PW13) remained silent with respect to authorization for the raid . In the said backdrop, first of all allegations as levelled in the FIR as well as in the first information DD No.6 ( Ex.PW13/1) are required to be seen as to find out as to whether it is a case covered Page 19/36 under Section 42 or 43 of NDPS Act. The contents of DD No.6 (Ex.PW13/1) recorded by ASI Harcharan Singh (PW14) show that the information was that the supply of heroin was to be done somewhere near the entry gate of Metro Walk on the backside of Crown Plaza hotel. Thus, admittedly, the arrest as well as seizure if any was to be effected in a public place and not in any enclosed building, conveyance or enclosed place as prescribed under Section 42 of the NDPS Act. The compliance was to be made as per Section 43 of the NDPS Act which envisages seizure and arrest in a public place which is the case herein. So, any empowered officer under the Act had the authority to arrest and seize the narcotics and the procedure was to be adopted under Section 43 of the NDPS Act. As far as the compliance under Section 41 of NDPS Act is concerned, the ACP K.P.S Malhotra (PW13) has proved on record the sharing of first information with him recorded vide DD No.6 ( Ex.PW13/1) which he endorsed and proved the same as Ex.PW13/1 though he remained silent as to the factum of authorisation while deposing in court .The omission to depose is immaterial .The contents of the documents proved by him ,cannot be ignored and said contents prove the fact that after the secret informer came to their office on that day at around 12:30 p.m and shared the information.The same was conveyed to Inspector Rajbir Singh (PW7) who verified the said information and further conveyed to ACP K.P.S Malhotra (PW13). Further, as per the said DD entry, ASI Harcharan Singh (PW14) was directed to proceed and take action as Page 20/36 per law. The contents of the said DD entry proved having the endorsement of ACP K.P.S Malhotra (PW13) was never challenged on behalf of the accused in the cross examination of the said witness. Therefore, the argument on behalf of accused that ASI Harcharan Singh (PW14) being not authorized to conduct the raid is without any substance. Even otherwise, ASI Harcharan Singh (PW14) was also authorised by Inspector Rajbir Singh (PW7) who was his immediate senior and they all the empowered officer's of State Police to conduct the investigation under the NDPS Act as the per the Notification of Delhi Police bearing No. F.10(76)/85Fin.(G), Dated 8th November,1985 issued by Ministry of Home Affairs. The similar view has been taken by Hon'ble High Court of Delhi in case titled Vinod Sharma V. State (NCT of Delhi), Crl. Appeal No. 457/2012, Dated 04 th March,2016. Therefore, the first argument advanced on behalf of the accused regarding noncompliance of Section 41 and Section 42 of NDPS Act is liable to be rejected. Compliance of Section 50 of NDPS Act
28. The second most material aspect in the present case is the compliance of mandatory provisions of NDPS Act as it is the case of the prosecution, the recovery of illicit heroin weighing 2 KG 500 gram was effected from the bag being carried by accused Ifesneye. As it is a case of prior information based upon secret information, first I.O ASI Harcharan Singh (PW14) was dutybound to appraise the accused Page 21/36 about his legal rights to be personally searched in the presence of Gazetted Officer/Magistrate. As far as the said compliance is concerned, it is argument on behalf of accused Ifesneye that the reply given to the said notices by accused Ifesneye and Progress ( since P.O) are identical being written by the same person. Further, it has also come on record that both the accused persons not conversant nor were able to write English language and hence, they could not have been appraised about their legal rights as envisaged under Section 50 of NDPS Act. Inspector Rajbir (PW7) and ASI Harcharan Singh (PW14) in their crossexamination had admitted to the fact that both the said accused persons were having little knowledge of English language and in the said backdrop, the alleged fabricated reply given to the notices is non compliance of Section 50 of NDPS Act.
28.1 ASI Harcharan Singh (PW14) in his testimony recorded in the court deposed that he after apprehending the accused persons at around 2:00 p.m, appraised them in English about their legal rights to get their search conducted in the presence of Gazetted Officer/Magistrate. Further, in the crossexamination, he claimed that both of them (accused persons) claimed that they could understand English, but could not write the same. On their request only, their replies of refusal were got written through Constable Atul. He further claimed that he has working knowledge of English language and can understand the same. He can also understand a bit of accent of English language spoken by a foreigner. Pertinently, he also admitted to the suggestion on behalf of accused Ifesneye, it takes time and effort to understand what Page 22/36 is being spoken by accused Ifesneye. Thus, the said answer to a suggestion given on behalf of the accused rather proves the fact that both the accused persons were having working knowledge of English language though they were unable to write their replies in the said language. As far as the aspect of said accused Ifesneye having working knowledge of English language and being able to communicate his side of version, judicial notice of the said fact is also taken from the trial conducted in the present case. The statement of the accused Ifesneye has been recorded under Section 313 Cr.P.C wherein it is apparent that he was able to understand the contents of question put and explained to him. He further gave his defence of being falsely implicated by the police officials and signatures being obtained on blank papers, therefore, the argument advanced on behalf of accused person that he had no knowledge of English language and was never explained about the legal rights under Section 50 of NDPS Act in the language known to them rendering the entire proceedings to be illegal is liable to be rejected.
28.2 As far as the second limb of the argument on behalf of accused Ifesneye regarding noncompliance of Section 50 of NDPS Act as verbatim replies of both accused were obtained on the notices Ex.PW12/1 and Ex.PW12/2 respectively also have to be seen in the light of versions given by ASI Harcharan Singh (PW14) and other recovery witnesses.
28.3 ASI Harcharan Singh (PW14) in the crossexamination categorically stated that first of all accused Ifesneye was informed about his legal right to be searched Page 23/36 in the presence of Gazetted Officer/Magistrate .As the accused was unable to write himself in English,on his dictation, the reply to the said notice was written by Constable Atul. Thereafter, the proceedings were conducted with respect to second accused Progress (since P.O) who too was able to speak in English, but was unable to write it and again on his dictation, answer to the said notice was written by Constable Atul. Therefore, in the said backdrop, when both the accused persons were having limited knowledge of English and were unable to write, First I.O ASI Harcharan Singh (PW14) was forced to write reply to the notices on the versions given by them in his own words. Thus, in the said backdrop, the replies of the notices under Section 50 of the NDPS Act Ex.PW12/1 and Ex.PW12/2 are appearing to in verbatim. It is the case of the accused only that he has no knowledge of English and therefore the ASI Haracharan was well within his right to dictate the reply given by accused . 28.4. Now, coming to the last limb of the said argument advanced on behalf of accused that keeping aside the said fact of refusal by accused to get himself searched in the presence of Gazetted Officer/Magistrate, still the first I.O ASI Harcharan Singh (PW14) was dutybound to call the nearest Gazetted Officer/Magistrate as has been held by Hon'ble Supreme Court in Arif Khan V. State of Uttrakhand, AIR 2018 SC 123 which has been relied upon by Hon'ble Delhi High Court in Sumit Rai @ Subhodh Rai (supra) case. The context of the said judgment and the manner of compliance of Section 50 of NDPS Act and whether despite the refusal of the accused to be searched in the presence of Gazetted Officer/Magistrate has been explained by the Hon'ble Delhi High Court Page 24/36 (DB) in Criminal Reference in Bail Appl No. 2641/2018 Nabi Alam v. State dated 04/06/2021. The relevant extract is reproduced hereunder :
"For the sake of clarity it is held that, axiomatically, there is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate categorically waives such right by electing to be searched by the empowered officer. The words "if such person so requires", as used in Section 50(1) of the NDPS Act would be rendered otiose, if the person proposed to be searched would still be required to be searched only before a Gazetted Officer or Magistrate, despite having expressly waived "such requisition", as mentioned in the opening sentence of subSection (2) of Section 50 of the NDPS Act. In other words, the person to be searched is mandatorily required to be taken by the empowered officer, for the conduct of the proposed search before a Gazetted Officer or Magistrate, only "if he so requires", upon being informed of the existence of his right to be searched before a Gazetted Officer or Magistrate and not if he waives his right to be so searched voluntarily, and chooses not to exercise the right provided to him under Section 50 of the NDPS Act."Page 25/36
29. In the said backdrop, once there was a refusal on the part of both the accused person herein to be searched in the presence of Gazetted Officer/Magistrate, there was no obligation on the part of the first IO ASI Harcharan Singh (PW14) to call Gazetted Officer/Magistrate. Hence, the said argument regarding noncompliance of mandatory Section 50 of NDPS Act advanced on behalf of the accused is without any substance and hence, stands rejected.
Recovery of Contraband
30. The prosecution in order to prove the factum of recovery of 2 KG 500 Gram of heroin from the personal search of accused Ifesneye has primarily placed reliance on the versions given by recovery witnesses i.e HC Sant Ram (PW6), HC Kanwar Pal (PW12) and ASI Harcharan Singh (PW14) as well as Inspector Rajbir (PW7) and ACP K.P.S Malhotra (PW13). All of them have deposed as per the contents of the FIR regarding the manner in which the information was received and shared, constitution of the raiding party, they having left for the spot i.e behind Crown Plaza Hotel Near Metro Walk and the arrival of the accused persons and lastly the manner of seizure. The testimonies of said recovery witnesses have been put into dock on behalf of the accused primarily on the ground of various contradictions in the replies given by them in the crossexamination and most importantly, first IO ASI Harcharan Singh (PW14) having admitted to the fact that they were facing extortion charges in some other similar case of recovery of contraband. Thus, it was argued Page 26/36 that when the recovery witnesses were itself officials of doubtful character, the alleged recovery in the present case cannot be believed.
31 Now, firstly coming to the fact of allegations against first IO ASI Harcharan Singh (PW14), HC Kanwar Pal (PW12) and second IO SI Sunil (PW
11) facing some inquiry in an extortion case has to be seen in the light of the responses given by ASI Harcharan Singh (PW14) in the crossexamination. PW14 admitted to the fact that there is one complaint against him with the allegations of extortion wherein his voice samples have been taken . Some of his team members including SI Sunil (PW11) and HC Kanwar Pal (PW12) are facing same set of allegations. Apart from the said sketchy details with respect to the allegations of extortion in one solitary case by ASI Harcharan Singh (PW14), no further evidence or detail has come on record. No explanation has been offered on behalf of accused as to how the said case in conncted to the present matter .The fate of the said allegations is also not clear .Therefore merely because few members of the raiding party are facing one complaint of extortion which is having no connection at all with the present case cannot be the sole ground for discarding their version or alleged recovery of 200 KG 500 Gram of Heroin.
31.1 As far as the issue of contradictions in the crossexamination of said recovery witnesses are concerned, no material contradiction except minor inconsistencies have been pointed out on behalf of the accused Ifesneye. Their Page 27/36 version with respect to the manner in which raid was conducted, apprehension of the accused persons and the recovery is concerned, all of them have deposed consistently as per the case of the prosecution. Therefore, in the said backdrop, it has to be observed that the versions given by recovery witnesses i.e HC Kanwar Pal (PW6), HC Sant Ram (PW12) and ASI Harcharan Singh (PW14) are reliable and trustworthy. The use of private vehicles by police officials is also not the ground to discard their version unless it was shown that there was availability of official vehicle and they having not used it . The issue of identity of secret informer or informer being not produced in the court is liable to be rejected in view of Section 125 Evidence Act .
Independent Witnesses
32. It has been vehemently argued on behalf of Ifesneye that the entire case of the prosecution is based on versions given by the police officials and no public witness was joined in the entire proceedings right from the beginning of the conduct of the raid, the alleged recovery and the arrest of the accused persons. In this regard, the reliance has been placed upon judgment of Hon'ble High Court of Delhi in Nnadi K. Iheanyi (supra) case. The said judgment has to be read in the context it was delivered. In that case, the prosecution had named the public witnesses who were the witnesses to the recovery, but during the trial prosecution was unable to produce them as addresses of the said witnesses found to be not traceable. Apart from that, Page 28/36 Hon'ble High Court also looked into the fact of purity of sample and retracted statement of the accused under Section 57 of NDPS Act.
32.1 Similarly, in Gunesh Kumar (supra) case too, it is not the case wherein Hon'ble Delhi High Court acquitted the accused merely on the ground of nonjoining of the public witnesses number of other factors including the issue of custody of case property, FSL Form etc. were considered which led to the acquittal. 32.2 In the present, the first IO ASI Harcharan Singh (PW14) having received the secret information which was recorded vide DD No.6 ( Ex PW 13/1), he left the spot alongwith HC Kanwar Pal (PW12), H.C Sant Ram (PW6), Ct Atul, Ct. Anil, Ct. Harvinder, Ct. Jagdeep and Ct. Sandeep in two private cars. On the way, near Transport Authority, Sector15 Rohini, ASI Harcharan Singh (PW14) 45 persons to join the proceedings, but none agreed. Thereafter, the second attempt was made by ASI Harcharan Singh (PW14) after reaching the spot i.e gate of Metro Walk, by again requesting 45 persons to join the proceedings, but none agreed. Third time again, effort was made by ASI Harcharan Singh (PW14) after the notices under Section 50 of NDPS Act were already served upon the accused persons and personal search of the accused persons was to be conducted, requesting public persons to join the proceedings, but none agreed. Thus, thrice efforts were made by ASI Harcharan Singh (PW14) by requesting the public persons to join the proceedings, but none agreed. It is also apparent from the crossexamination of PW14 that though he did not make any effort to join public persons from the nearby shops, offices or Page 29/36 residential areas which should have been done, but this reason alone can be the ground for discarding the consistent version given by said recovery witnesses regarding the apprehension and factum of recovery. This issue of public witnesses has been dealt with in number of cases by Hon'ble Surpeme Court and Hon'ble High Court of Delhi. The recent judgment of Hon'ble High Court of Delhi titled Sonu @ Hemraj V. State (NCT of Delhi) , Crl. Appeal No. 351/2020 & Crl. M ( Bail) No. 7644/2020 dated 24.12.2020 addresses the very same issue and whether the said ground alone can be the reason for discarding the version given by prosecution. The relevant para40 of the said judgment is reproduced hereunder for the sake of convenience:
"40. It was next argued by the Ld. defence counsel that IO has not joined public witnesses during the investigation and also at the time when the appellants pointed out the place of occurrence. As far as the question of non joining of public witnesses is concerned, no doubt, the IO has not joined the public witnesses but that by itself does not falsify the entire case of the prosecution. The testimony of the official witnesses cannot be thrown away simply on the ground that IO failed to join public witnesses. Experience has shown that public witnesses are reluctant to join the investigation. Even otherwise, the non joining of public witness by the IO can only be said to be a fault on the part of the IO which cannot be the sole basis for disbelieving the entire case of the prosecution and the testimony of the believable official witnesses. Conviction can be recorded on the sole testimony of police officials without corroboration from a public witness, if it inspires confidence. In this regard reliance can be placed upon Tahir Vs. Page 30/36 State (1996) 3 SCC 338, in which the Hon'ble Supreme Court has held as follows:
"no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
Sampling, Compliance u/s 55 , Custody of Samples and FSL Report
33. It is the case of the prosecution that having effected the recovery from the personal search of accused Ifesneye of heroin kept in his bag which on weigh was found to be 2KG 500 Gram, two samples of 5 gram each were taken out and were converted into two separate small polythene pouches, they were given identification numbers as Mark A and Mark B. Both of them were sealed by ASI Harcharan Singh (PW14) with his seal HSS. The remaining contraband was also converted into Page 31/36 pullanda by putting into the same black bag and by putting the seal HSS. Form FSL was filled at the spot and the seal after use was handed over to HC Kanwar Pal (PW12).
34. As far as the compliance under Section 55 of NDPS Act is concerned, Inspector Virender/SHO P.S Crime Branch (PW4) deposed that the said three sealed pullandas were produced before him alongwith FSL Form and copy of seizure memo by HC Sant Ram (PW6) on 11.01.2014, PW4 after checking the same put his seal VSS on all the said sealed pullandas and deposited the same with Malkhana. In the crossexamination, PW4 denied the bald suggestions made by accused that no such case property was put before him by HC Sant Ram (PW6) nor he affixed any seal on it.
34.1 Further, the said chain of custody of the case property is proved by HC Jag Narayan, MHC (M) (PW5) who in a similar fashion deposed that regarding deposit of case property on 11.01.2014 by SHO PS Crime Branch which was duly sealed with the seals HSS and VSS. PW5 made the entry qua the same in register No.19 Ex.PW5/A. On the same day, second IO SI Sunil Kumar (PW11) deposited the personal search articles of the accused persons except the mobile phones which were kept by the IO SI Sunil (PW11) with him for investigation purposes. He further handed over the said sealed samples Mark A to constable Vikram (PW2) on 15.01.2014 vide RC No. 13/21 for depositing the same at the FSL. Page 32/36 34.2 Prosecution has also examined Ct. Vikram (PW2) who deposited the said samples which was duly sealed with the seal of HSS and VSS with FSL Lab on 16.01.2014. In the crossexamination of PW2, there is no worthwhile contradiction which puts any question mark with respect to tampering or alteration of the case property during the period of its custody. The case property was also produced in the court in duly sealed condition for first time during the testimony of H.C Sant Ram (PW6). Thus, the versions given by all the said witnesses i.e Inspector Virender Singh (PW4), HC Jag Narayan (PW5) and Ct. Vikram (PW2) prove the chain of custody during the period it remained in the Malkhana and being not interfered or tampered with in any manner. As far as the issue of handing of the seal or its return to the first IO ASI Harcharan Singh (PW14) is concerned , the same was returned to him by HC Kanwar Pal (PW12) on 17.01.2014 when the sample had already been deposited with FSL. So, at that point of time, there was no question of any tampering with the case property. The contemporaneous document Ex.PW5/A ( register no. 19) which records the entry regarding deposit of case property, the movement of the sample and subsequent result proves the said chain of custody and rules out the possibility of any tampering etc. FSL report Ex.PW9/1 got proved by Dr. Lingaraj Sahoo, Sr. Scientific Officer (Chemistry) (PW9) proves the said fact of sample Mark A sent for FSL examination to be Diacetylmorphine & Page 33/36 Phenobarbital 21.4% and 13.6% respectively. Thus, the recovered alleged contraband has been proved to be Heroin.
Defence of the Accused.
35. It is the defence of the accused since beginning of trial that he has been falsely implicated in the present case being a foreign national and was forcibly picked up by the police officials from his residence at Vikas Puri on 10.01.2014. The accused Ifesneye in his statement recorded under Section 313 Cr.P.C specifically claimed that he was forcibly picked up from his residence i.e 188, First Floor, Gali No.10, Krishana Puri, Vikas Puri, Delhi on 10.01.2014 and was taken to police station. He was tortured and forced to sign many blank papers and documents. He has been falsely implicated due to his race. The said defence was also put to first IO ASI Harcharan Singh (PW14) in the crossexamination in the form of suggestion who denied the same. Interestingly, the said suggestion was never put to second IO SI Sunil (PW11) who conducted the material part of the investigation after the alleged recovery of contraband from accused Ifesneye. If indeed the accused was forcibly picked up by the first IO ASI Harcharan Singh (PW14) and his team, second IO SI Sunil Kumar (PW11) should have questioned with the said aspect which has not been done for the reasons best known to the accused. It is also not clear whether the said facct was ever brought to the notice of the second IO or not . Page 34/36 35.1 Interestingly, a completely new defence was pleaded to the another material witness i.e Inspector Rajbir Singh (PW7), the immediate senior officer to first IO ASI Harcharan Singh (PW14) to whom first the secret information was shared and the informer was introduced. In the crossexamination conducted on behalf of the accused, it was claimed that the accused persons have been falsely implicated in the present case in order to solve a blind case. It is not clear as to how this case was a blind case and how the said recovery of 2 KG 50 Gram Heroin came into existence. 35.2. The said defence of the accused regarding he having been picked up on 10.01.2014 and being taken to police station i.e one day prior to the alleged apprehension and recovery also stand rebutted through CDRs Ex.PW10/2 (got exhibited in the testimony of Sh. Israr Babu (PW10) of mobile phones seized of coaccused Progress (since P.O). Though the mobile phone of the accused Ifesneye was also seized, but its CDRs could not be obtained. The coaccused Progress (since P.O) who too was apprehended at the very same spot alongwith accused Ifesneye who was carrying Airtel mobile no. 96505 53217 whose CDRs Ex. PW15/2 has been proved on record. The recovery of mobile phone of accused and having number Airtel mobile no. 96505 53217 is not in dispute as the same was never denied on behalf of the accused. The perusal of the said CDR again corroborates the case of prosecution and apprehension of the accused Ifesneye from the area near Crown Plaza Hotel. The CDR of his number shows the presence of the accused Ifesneye on that day right from 13.39.44 hours till 14.22.03 hours in the area around Sector10 Page 35/36 Rohini i.e the place of apprehension. Thus, the said CDR Ex.PW15/2 (got exhibited in the testimony of Sh. Chander Shakher (PW15) ) also rebuts the entire defence of the accused Ifesneye regarding he being apprehended one day prior to the alleged apprehension and recovery.
The other judgments relied upon by Ld. Counsel for the accused are not applicable to the present case being distinguishable on facts.
36. In light of the abovesaid findings, observations and reasoning, I am of the considered opinion that the prosecution has succeeded in proving its case qua accused Ifesneye beyond reasonable doubts and I hereby hold accused Ifesneye S/o Ogbe guilty for the offence punishable under Section 21 r/w 29 of NDPS Act being found in possession of Heroin for purposes of trafficking .
Announced in the open court (Gagandeep Singh)
on 24.08.2022 ASJ / Special Judge (NDPS)
North:Rohini:Delhi
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