Delhi District Court
State vs . Anayo Daniel on 29 September, 2021
IN THE COURT OF SH. DEEPAK WASON:
SPL. JUDGE (NDPS): DWARKA COURTS: NEW DELHI
SC No. 95/2020
FIR No. 990/2019
U/s. 21 (b) NDPS Act & 14 Foreigners Act
PS: Bindapur
State vs. Anayo Daniel
Date of Institution of case:14.02.2020
Date of arguments: 24.09.2021
Date on which Judgment pronounced: 29.09.2021
JUDGMENT
CNR No. :DLSW010018362020
Date of commission of offence :17.12.2019
Name of complainant :ASI Sanjay
No. 222/DW (PIS No. 28893241)
AATS / DWD
Name and address of accused :Anayo Daniel, S/o Sh. Anyaninl Permanent Address:
Benin City, Nigeria Present Address:
R/o H.No. 187, UG Floor, Left side, Block B, Janak Puri, Uttam Nagar, New Delhi Offence complained of :21 (b) of the NDPS Act & 14 Foreigners Act Plea of accused :Pleaded not guilty Date of order :29.09.2021 Final order :Convicted U/s. 21 (b) of the NDPS Act & 14 Foreigners Act SC No. 95/2020 State Vs. Anayo Daniel Page 1 of 36 BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 17.12.2019, ASI Sanjay Kumar along with SI Roshan Lal, ASI Randhir, HC Jitender, Ct. Manish, Ct. Arjun and Ct. Manoj were on morning patrolling checking duty vide DD no. 3 and at about 7:05 a.m, they proceeded from the office of AATS, Sector16 in two private cars. In one car, ASI Sanjay Kumar along with ASI Randhir, Ct. Arjun and Ct. Manoj were sitting and in another car, which was driven by SI Roshan Lal accompanied by HC Jitender and Ct. Manish. At about 7:35 a.m, they reached near Metro Pillar no. 781, Dwarka Najafgarh Road and put barricades and started checking the vehicles coming from the side of Uttam Nagar to Najafgarh and at about 8:05 a.m, one person look like African origin was coming from the side of Uttam Nagar on foot and after seeing the police party, he returned back and tried to escape from the spot. On suspicion, ASI Sanjay Kumar apprehended the said person with the help of Ct. Manoj and his cursory search was taken and one transparent polythene which was found containing brown (matmella) powder was recovered from the front right pocket of his pant and on enquiry, the accused revealed his name as Anayo Daniel and also disclosed that he is a resident of Nigeria and temporarily residing at UG Floor, Left side, Janki Puri, Uttam Nagar, New Delhi.
On further inquiry, the accused further disclosed that the material which was found in the polythene was heroin upon which ASI Sanjay telephonically informed Inspector I C AATS, Dwarka for sending Gazetted Officer to the spot. Thereafter, on the directions of ASI Sanjay, Ct. Arjun went to the office of AATS for an electronic weighing SC No. 95/2020 State Vs. Anayo Daniel Page 2 of 36 machine and field testing kit. ASI Sanjay while serving notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the NDPS Act) apprised the accused about the secret information and his legal rights. During the aforesaid proceedings, 45 public persons had gathered at the spot and they were requested to join the proceedings by ASI Sanjay but all refused the same and left the spot without disclosing their names and addresses and as such no legal notice was served to them. At about 8:50 a.m, Ct. Arjun returned back at the spot with an electronic weighing machine and fieldtesting kit and handed it over to ASI Sanjay and during this period, ACP Bijender Singh, Dabri also reached the spot and ASI Sanjay produced the transparent polythene which was recovered from the accused before the ACP and thereafter, accused was inquired by the ACP Bijender Singh. Thereafter, ASI Sanjay checked the material which was found in the transparent polythene through a field testing kit, and the same was found to be heroin weighing 130 gms. It is further the case of the prosecution that thereafter, further proceedings were conducted while seizing the case property. It is further the case of the prosecution that thereafter, ASI Sanjay inquired from the accused regarding his passport upon which, he produced his passport no. A00333787 before him. The passport was in the name of Anayo Daniel, Nationality Nigerian, date of birth 14.12.1985, date of issue 21.02.2014, and date of expiry 20.02.2019 and no visa was lying on the passport. ACP Bijender put his signatures on the seizure memo of the case property at point B and left the spot. Thereafter, ASI Sanjay prepared a tehrir and handed over the same to Ct. Manoj for SC No. 95/2020 State Vs. Anayo Daniel Page 3 of 36 registration of FIR along with sealed case property and seizure memo of case property.
2. After registration of FIR, the investigation of the present case was marked to ASI Vinod. ASI Sanjay also made the DD entry (telephonically) at about 11:35 a.m regarding the arrest of the accused, recovery of case property and registration of the FIR vide DD no. 8 and after some time, ASI Vinod reached the spot to whom he handed over the accused and all documents. Thereafter, IO/ASI Vinod conducted the further investigation of the case and arrested the accused, conducted his personal search and recorded the disclosure statement. Thereafter, IO/ASI Vinod along with police staff and accused reached PS Bindapur and made DD No. 39A Mark XA regarding depositing case property at Malkhana PS Bindapur and arrest of accused. Thereafter, ASI Vinod went to the SHO PS Bindapur and recorded his statement who handed over to him DD No. 25A (Mark XB) about the information under Section 55 NDPS Act. ASI Vinod recorded the statement of MHC(M) PS Bindapur in the Police Station. Thereafter, ASI Vinod along with staff and accused Anayo Daniel reached the office of ACP Dabri and recorded his statement. ASI Vinod got conducted the medical examination of the accused at DDU Hospital and returned back to AATS Dwarka and recorded the statement of AATS Inspector Ram Kishan. Thereafter, IO/ASI Vinod prepared the report of arrest and seizure and sent it to ACP Operations. ASI Vinod recorded the statement of witnesses. During the investigation, one day PC remand of the accused was taken. ASI SC No. 95/2020 State Vs. Anayo Daniel Page 4 of 36 Vinod also moved an application under Section 52 A of the NDPS Act before the Ld. MM for taking the samples and after withdrawing the samples, on 09.01.2020, case property and both samples were sent to FSL.
3. ASI Vinod also sent information regarding the arrest of Anayo Daniel to the Nigerian Embassy along with original passport, MEA and FRRO on different dates for seeking information and verification report and received the information from the High Commission of Nigerian, New Delhi that the Nigerian Standard Passport No. A00333787 belonging to Mr. Anayo D Anyanwu is genuine but the said passport was found without a visa. After completion of the investigation, the chargesheet was filed under Section 21 NDPS Act & 14 Foreigners Act. Since the accused being Nigerian National was found in India without any valid Visa or authority for his stay.
4. Vide order dated 19.02.2020, the charge for the offences under Sections 21 (b) of the NDPS Act and 14 Foreigners Act was framed against the accused on the allegations that the accused was found in possession of 130 gm of heroin which is an intermediate quantity and charge under Section 14 Foreigners Act was also framed against the accused as being a Nigerian National, accused was found staying in India without any valid visa or authority. The accused pleaded not guilty and claimed trial.
SC No. 95/2020 State Vs. Anayo Daniel Page 5 of 365. The prosecution has examined 14 witnesses in support of its case who are as follows:
6. PW1 SI Ramesh Chand is the Duty Officer. He has proved the copy of DD no. 23 A regarding endorsement of rukka as Ex. PW1/A and the FIR as Ex. PW1/B and certificate under Section 65B of Indian Evidence Act as Ex. PW1/C. This witness was cross examined by Ld. defence counsel.
7. PW2 HC Arvind is the MHC(M)/CP. He has deposed that on 17.12.2019, SHO handed over to him a carbon copy of seizure memo and a pullanda (case property Mark A) duly sealed with the seal of RLY & counter sealed with AB and he made an entry in Register No. 19 at serial no. 3073 as Ex. PW2/A and also deposited the personal search memo of the accused in malkhana to which he made entry at serial no. 3074 in Register No. 19 as Ex. PW2/B. He has further deposed that on 06.01.2020, he issued an RC no. 4/21/20 as Ex. PW 2/C to Constable Rajesh for taking samples from the exhibits before Ld. Court and exhibits were handed over to Constable Rajesh and after drawing two samples from the Court, Ct. Rajesh deposited the case property duly sealed with the seal of 'PG' and made an entry in Register No. 19 at serial no. 3073 already Ex. PW2/A from point Y to Y. He has further deposed that on 09.01.2020, he handed over two pullandas, marked S1 & S2 along with form FSL having the seal impression of PG vide RC no. 6/21/20 Ex. PW2/D to Ct. Rajesh to deposit the same to the FSL and after depositing the same, Ct. Rajesh SC No. 95/2020 State Vs. Anayo Daniel Page 6 of 36 handed over the copy of RC to him and he made entry in Register No. 19 on the Ex. PW2/A from point X to X. He has further deposed that case property was not tampered with as long as it remained in his custody. He has further deposed that on 17.01.2020, IO/ASI Vinod moved an application duly forwarded by SHO for taking original notice under Section 50 NDPS Act which was recovered from the personal search of the accused upon which he handed over the same to the IO after taking permission from the SHO and IO seized the original notice U/s. 50 NDPS Act vide seizure memo as Ex. PW2/E upon which he made entry in Register No. 19 at serial no. 3074 from point B to B. He has further deposed that IO recorded his statements. This witness was also crossexamined by Ld. defence counsel.
8. PW3 is ASI Dharmender. He has deposed that on 17.12.2019, ASI Sanjay telephonically informed him that he apprehended a Nigerian person with illicit heroin and sent a tehrir through Ct. Manoj and got registered the FIR at PS Bindapur and further investigation was marked to ASI Vinod Kumar upon which he reduced the said information into writing in Register No. 19 vide DD no. 8 as Ex. PW3/A and a copy of the same was handed over to ASI Vinod Kumar for further proceedings. This witness was also cross examined by Ld. defence counsel.
9. PW4 ASI Sanjay is the first Investigating Officer of the case. In addition to the documents already proved on record, he proved the copy of DD No. 3 regarding morning patrolling checking as SC No. 95/2020 State Vs. Anayo Daniel Page 7 of 36 Mark X; notice under Section 50 NDPS Act as Ex. PW4/A; Seizure memo of case property as Ex. PW4/B; the seizure memo in respect of passport as Ex. PW4/C; the rukka prepared by him as Ex. PW4/E; the DD no. 8 regarding the arrest of the accused, recovery of case property and registration of the FIR as Ex. PW3/A; the site plan prepared by ASI Vinod at his instance as Ex. PW4/F and the report under Section 57 NDPS Act prepared by him regarding the seizure of 130 gm of heroin as Ex. PW4/G. He identified the accused and the case property produced in the Court. His further testimony would be considered at a later stage. This witness was also crossexamined by Ld. defence counsel.
10. PW5 is Constable Manoj Kumar.This witness was on patrolling duty with PW4 ASI Sanjay. He has deposed that on 17.12.2019, he was posted at AATS, Dwarka as a Constable and on that day, he joined the investigation along with IO ASI Sanjay, SI Roshan Lal, ASI Randhir, HC Jatinder, Ct. Manish and Ct. Arjun and they were on patrolling duty in Dwarka District in two vehicles. He has further deposed that one car was driven by ASI Sanjay and another car was driven by SI Roshan Lal and at about 07.35 a.m, they reached at Dwarka More, Near Metro Pillar No.781, on road between Uttam Nagar to Najafgarh and put barricades and started checking of vehicles. He has further deposed that at about 08.05 a.m, one person who looks like African origin was coming from the side of Uttam Nagar on foot and after seeing the police party he turned back and tried to flee away from there. He has further deposed that on suspicion ASI SC No. 95/2020 State Vs. Anayo Daniel Page 8 of 36 Sanjay, apprehended him with the help of other staff members and inquired him, however, the said person did not cooperate with the police party and thereafter, ASI Sanjay took the search of accused with his help and during his search one transparent polythene containing matmelacolour powder, was recovered from the right pocket of his pant. He has further deposed that on enquiry, accused revealed his name as Anayo Daniel and on further inquiry, accused told that the recovered substance is heroin upon which ASI Sanjay telephonically informed Inspector I/C AATS, Dwarka and requested him to send Gazetted Officer at the spot. Thereafter, at about 08.20 a.m, ASI Sanjay sent Ct. Arjun for a field test kit and electronic weighing machine at AATS Office. He has further deposed that thereafter, ASI Sanjay prepared notice under Section 50 NDPS Act in two sets and apprised the accused about his legal rights and the said notice is Ex. PW4/A. He has further deposed that IO requested 45 passersby to join the investigation but all refused the same and left the spot without disclosing their names and addresses. He has further deposed that at about 08.50 a.m, Ct. Arjun returned back at the spot and handed over Field Testing Kit and electronic weighing machine to the IO. He has further deposed that in the meantime, ACP Bijender Singh, also reached the spot and inquired the accused. He has further deposed that in the presence of ACP Bijender Singh, ASI Sanjay checked the recovered contraband with the help of Field Test Kit and same was found Heroin and on weighing, it was found 130 Gram. He has further deposed that thereafter, IO kept the said polythene with heroin in a transparent plastic box and the lid of the box closed with SC No. 95/2020 State Vs. Anayo Daniel Page 9 of 36 the help of doctor's tape and prepared pulanda, Mark 'A' and sealed the same with the seal of 'RLY' vide memo ExPW4/B. He has further deposed that IO also seized his passport number A00333787, which was produced by the accused at the spot itself vide memo already Ex, PW4/C and he correctly identified the same and same is already Ex. P1. He has further deposed that seal after use was handed over to Ct. Arjun. He has further deposed that thereafter, IO prepared a tehrir and handed over to him for the registration of FIR along with sealed case property and copy of seizure memo for proceedings upon which he handed over the case property and seizure memo to the SHO and rukka to the IO and after registration of FIR, he returned back at the spot and handed over the copy of FIR and original tehrir to the second IO ASI Vinod. He has further deposed that IO ASI Vinod, prepared a site plan at the instance of ASI Sanjay and also recorded his statement. He has further deposed that thereafter, accused Anayo Daniel was arrested vide arrest memo Ex. PW5/A and his personal search was conducted vide memo Ex. PW5/B and recorded his disclosure statement Ex. PW5/C and thereafter, they returned to the police station Bindapur. He has further deposed that IO carried out an investigation from SHO and MHC(M) and collected the copy of proceedings under Section 55 NDPS Act. He has further deposed that thereafter, he along with IO and all raiding team with accused reached at ACP Office, where IO carried out the investigation from the ACP and recorded his statement. Thereafter, they reached AATS Dwarka and took the accused to DDU hospital for medical examination and after collecting the medical examination report, they returned back to AATS SC No. 95/2020 State Vs. Anayo Daniel Page 10 of 36 Office, Dwarka and IO recorded his statement. This witness was also crossexamined by Ld. defence counsel.
11. PW6 is Constable Arjun Bariya. This witness has almost deposed on the same lines as that of PW5 Ct. Manoj Kumar. This witness was also crossexamined by Ld. Defence counsel.
12. PW7 is SI Krishan Kumar. He has proved the Rojnamcha dated 17.12.2019 vide which ASI Sanjay made departure entry in register no.19 at serial no. 3 as Ex. PW7/A. This witness was not crossexamined by the accused.
13. PW8 is HC Daya Ram. He has proved the entry made at serial no. 1266 in Register No. 19 with regard to the report of seizure of Narcotics Drugs under Section 57 NDPS Act as Ex. PW8/A and also the entry made at serial no. 1267 in Register No. 19 with regard to the report of arrest and seizure of Narcotics Drugs under Section 57 NDPS Act as Ex. PW8/B.This witness was not crossexamined by the accused.
14. PW9 is SI Ram Niwas (Retd.). He has proved the 12 photographs with regard to the procedure of sampling as Ex. PW9/A1 to PW9/A12 and certificate under Section 65B as Ex. PW9/B. This witness was crossexamined by Ld. defence counsel.
15. PW10 is Constable Rajesh. He has deposed that on SC No. 95/2020 State Vs. Anayo Daniel Page 11 of 36 06.01.2020, he was posted at AATS, Dwarka as a Constable and on that day, on the instructions of IO, he had received case property i.e sealed pullanda (with the seal of RLY and AB) of heroin from the malkhana vide RC no. 4/21/20, already Ex. PW2/C for sample withdrawn and same was produced before the Ms. Paridhi Gupta, Ld. MM, Room No. 11, Dwarka Courts, New Delhi. He has further deposed that ASI Vinod Kumar met him in the court and the sealed pullanda of the case property was handed over to the IO before Ld. MM and thereafter, Ld. MM had taken two samples from the case property and photographs of the sample withdrawn procedure were taken. He has further deposed that after taking samples from the case property, two sample pullandas mark as S1 & S2 and case property pullanda (sealed with the seal of PG) were handed over to him. He has further deposed that he reached PS Bindapur and all three pullandas i.e Mark S1 & S2 and case property were deposited in the malkhana PS and thereafter, he returned back to AATS Office, where IO recorded his statement. He has further deposed that on 09.01.2020, on the instructions of the IO, he collected the samples i.e Mark S1 & S2 (sealed with the seal of PG) from Malkhana PS Bindapur for depositing the same in FSL Rohini, Delhi vide RC no. 6/21/20 as Ex. PW2/D along with form FSL and after depositing the same, he obtained the receipt of FSL and handed it over to MHC(M). He has further deposed that till the pullandas and FSL form remained in his custody, the same were not tampered with. This witness was also crossexamined by Ld. defence counsel.
SC No. 95/2020 State Vs. Anayo Daniel Page 12 of 3616. PW11 is ASI Vinod Kumar.He is the second IO of the case and he has deposed that on 17.12.2019, he was posted as an ASI at AATS, Dwarka and on that day, after registration of FIR, the investigation of the present case was marked to him and he deposed regarding the further investigation conducted by him. His further testimony would be discussed at a later stage. This witness was also crossexamined by Ld. defence counsel.
17. PW12 is Inspector Ram Kishan. He has deposed that on 17.12.2019, he was posted as IC Narcotics and AATS Dwarka District and on that day, at about 8:15 a.m, ASI Sanjay informed him telephonically about the apprehension of African National carrying some drugs and requested him for sending Gazetted Officer at the spot which information was shared with Sh. Vijender Singh, ACP Dabri. He has further deposed that IO recorded his statement. This witness was not crossexamined by the accused.
18. PW13 is ACP Bijender Singh, ACP Operations. He has deposed that on 17.12.2019, he was posted as ACP Dabri, Dwarka District and on that day, Inspector Ram Kishan informed him telephonically that one African National namely Anayo Daniel was apprehended by ASI Sanjay Kumar along with his team near Metro Pillar No. 781, Uttam Nagar to Najafgarh Main Road, Delhi and brown colour powder was recovered from him which might be heroin. He has further deposed that after receiving the information, he reached the spot and inquired from the accused Anayo Daniel and thereafter, ASI SC No. 95/2020 State Vs. Anayo Daniel Page 13 of 36 Sanjay took personal search and one transparent polythene containing brown powder (matmaila colour) was recovered from his right side pocket of pant, which was tested by the IO with the help of Field Testing Kit and same was found heroin and it was weighed along with polythene with the help of Electronic Weighing Machine and found 130 grams. He has further deposed that thereafter, the recovered heroin was kept in a transparent plastic box and sealed with the seal of doctor tape and marked as Mark 'A' and converted into pulanda sealed with the seal of 'RLY' and same was seized vide seizure memo already exhibited as Ex.PW4/B. He has further deposed that IO recorded his statement in his office. This witness was cross examined by the Ld. Defence counsel.
19. PW14 is Inspector Anil Kumar Berwal. He has deposed that on 17.12.2019, he was posted as SHO Bindapur and on that day at about 11.45 am, Ct. Manoj of AATS came to his office at PS Bindapur along with Duty Officer SI Ramesh Chand and informed him about the registration of kayami of the case on the rukka produced by Ct. Manoj and Ct. Manoj produced the case property i.e exhibits sealed with the seal of 'RLY' having mark as Mark 'A' and also produced the copy of seizure memo vide which the above exhibits were taken into possession by the IO and he entered the FIR number on seizure memo of carbon copy as well as exhibits and also counter sealed the same with his seal 'AB'. He has further deposed that thereafter, he called HC Arvind i.e MHC(M) CP to his office alongwith register No. 19 and handed over the case property and seizure memo SC No. 95/2020 State Vs. Anayo Daniel Page 14 of 36 to HC Arvind vide which entry was made in register no. 19, copy of which is Ex.PW2/A. He has further deposed that thereafter, information was got lodged into daily diary vide DD No. 25A by the CCTN operates (GD No. 25A is already exhibited as P/D/3). He has further deposed that he inspected Duty Officer, MHC(M) and Ct. Manoj and later on, IO recorded his statement. This witness was also crossexamined by Ld. Defence counsel.
20. It is a matter of record that during the trial, the statement of the accused was recorded on 09.09.2021 wherein the accused has admitted the genuineness of certain documents i.e FSL report dated 06.02.2020 as Ex. P/D/1, proceedings of sampling dated 06.01.2020 along with 12 photographs conducted by Ms. Paridhi Gupta, the then Ld. MM, Dwarka Courts, New Delhi as Ex. P/D/2, DD No. 25A as Ex. P/D/3, DD No. 39A as Ex. P/D/4 and passport verification dated 10.01.2020 is DD No. 25 A as Ex. P/D/5. Thereafter, prosecution evidence was closed on the request of Ld. Addl. PP vide order dated 15.09.2021 by this Court and matter was posted for the recording of statement of accused under Section 313 Cr.P.C.
21. Statement of accused under Section 313 Cr.P.C was recorded on 20.09.2021 whereby all the incriminating evidence was put to him to which he stated that he is innocent and he has been falsely implicated in the present case. During the recording of the statement, the accused did not wish to lead defence evidence and final arguments were heard.
SC No. 95/2020 State Vs. Anayo Daniel Page 15 of 36ARGUMENTS OF DEFENCE:
22. Ld. counsel for the accused vehemently argued that the accused is innocent and there is tampering in the case property as there is a delay in sending the samples. Ld. counsel for accused has further argued that there is no compliance of Section 50 of NDPS Act. sIt is argued by him that the statement of prosecution witnesses is full of omissions and improvements. It is also argued that the present accused has been falsely implicated and that no recovery was effected from the accused and the contraband had been planted upon him. He has argued that nonjoinder of public witnesses at the time of alleged recovery casts serious doubt on the version of the prosecution. The counsel for the accused has further argued that there are material contradictions in the testimony of the witnesses which goes to the root of the case and falsify the case of the prosecution.
Arguments of prosecution
23. On the other hand, Sh. Brijesh Kumar, Ld. Addl. PP for the state in rebuttal submitted that the contradictions in the testimony of material witnesses are minor and natural and it does not affect the case of the prosecution. He further argued that nothing has come in the crossexamination of PWs to discredit them and their deposition is believeworthy. It is further submitted by Ld. Addl. PP for the State that testimony of police official cannot be treated with suspicion merely because no public witnesses were joined in the investigation. It is further submitted by Ld. Addl. PP for the State that in case deposition of police officials are found to be trustworthy, the SC No. 95/2020 State Vs. Anayo Daniel Page 16 of 36 Court should rely upon the same. Ld. Addl. PP for the State has further argued that all the compliance have been made.
24. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
FINDINGS:
25. The records of the present case reveals that the accused stands charged for the conscious possession of an intermediate quantity of contraband i.e. 130 gm of heroin & being a Nigerian National, he was found without any valid visa or authority for his stay in India. The stringent provisions are provided under the law qua the punishment especially in the NDPS cases. The scheme of the NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguards ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, the balance must be struck between the need of the law and the enforcement of such law on one hand and the protection of the citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on the exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband. In the present case, the accused was apprehended and was found in possession of an intermediate quantity of 130 gm of heroin in transparent polythene from the front right pocket of his pant.
SC No. 95/2020 State Vs. Anayo Daniel Page 17 of 3626. To support the case of the prosecution, the role of each police witness is also important as they were the part of investigation and acted according to the work assigned to them. The instant case hinges on the testimonies of the police witnesses. At this stage, it would be relevant to go through the testimony of material witness i.e PW4 ASI Sanjay. He is the first IO of the case and has deposed that on 17.12.2019, he was posted at AATS, Dwarka Sector16 as an ASI and on that day, he along with SI Roshan Lal, ASI Randhir, HC Jitender, Ct. Manish, Ct. Arjun and Ct. Manoj were on morning patrolling checking vide DD no. 3, Mark X and at about 7:05 a.m, they proceeded from the office of AATS, Sector16 in two private cars out of which, in one car, he along with ASI Randhir, Ct. Arjun and Ct. Manoj and another car which was driven by SI Roshan Lal accompanied with HC Jitender and Ct. Manish and at about 7:35 a.m, they reached near Metro Pillar no. 781, Dwarka Najafgarh Road and put barricades and started checking the vehicles coming from the side of Uttam Nagar to Najafgarh. He has further deposed that at about 8:05 a.m, one person looks like African origin was coming from the side of Uttam Nagar on foot and after seeing the police party, he returned back and tried to escape from the spot whom he apprehended him with the help of Ct. Manoj and in the meantime, other staff members also reached there. He has further deposed that the said person was inquired upon which he started shouting and on suspicion, the cursory search of accused was taken with the help of Ct. Manoj and one transparent polythene was recovered from the front right pocket of his pant which was found containing brown (matmella) powder and on enquiry, he revealed his SC No. 95/2020 State Vs. Anayo Daniel Page 18 of 36 name as Anayo Daniel, permanent resident of Nigeria and temporarily residing at UG Floor, Left side, Janki Puri, Uttam Nagar, New Delhi and also disclosed that the recovered material is heroin. He has further deposed that thereafter, he informed Inspector I C AATS, Dwarka through telephone for sending Gazetted Officer at the spot. He has further deposed that thereafter, Ct. Arjun went to the office of AATS on his directions for an electronic weighing machine and field testing kit. He has further deposed that thereafter, he informed the accused regarding his rights and prepared notice under Section 50 NDPS Act and original copy of the notice under Section 50 NDPS Act, Ex. PW4/A was served to the accused and also read the notice to the accused. He has further deposed that he requested 4/5 passersby to join the investigation but all refused the same and left the spot without disclosing their names and addresses and therefore, no legal notice was served to them. He has further deposed that at about 8:50 a.m, Ct. Arjun returned back to the spot with an electronic weighing machine and fieldtesting kit and handed over the same to him. He has further deposed that ACP Bijender Singh/Dabri i.e PW13 also reached the spot to whom he produced the transparent polythene recovered from the accused and thereafter, accused was inquired by the ACP Bijender Singh and checked the material through field testing kit and same was found to be heroin and on weighing the same with transparent polythene, it was found containing 130 gms and thereafter, the case property i.e transparent polythene containing 130 gms of heroin kept in a transparent plastic box which was sealed with doctor's tape and marked A and sealed with the seal of RLY and same SC No. 95/2020 State Vs. Anayo Daniel Page 19 of 36 was seized vide memo Ex. PW4/B and seal after use was handed over to Ct. Arjun. He has further deposed that on inquiry, the accused produced his passport no. A00333787 which was in the name of Anayo Daniel, Nationality Nigerian, date of birth 14.12.1985, date of issue 21.02.2014 and date of expiry 20.02.2019 and no visa was lying on the passport and same was seized vide seizure memo Ex. PW4/C. He has further deposed that ACP Bijender put his signatures on the seizure memo of the case property at point B and left the spot. He has further deposed that he prepared a tehrir Ex. PW4/E and same was handed over to Ct. Manoj for registration of FIR along with sealed case property and seizure memo of case property and after registration of FIR, the investigation of the present case was marked to ASI Vinod. He has further deposed that at about 11:35 a.m, he also made the DD entry (telephonically) regarding the arrest of the accused, recovery of case property and registration of the FIR vide DD no. 8 which is already Ex. PW3/A and after some time, ASI Vinod reached the spot to whom he handed over the accused and all the documents. He has further deposed that ASI Vinod prepared site plan Ex. PW4/F at his instance and recorded his statement and thereafter, he returned back to AATS Office and sent a written information/report under Section 57 NDPS Act to ACP Operation Ex. PW4/G. This witness was cross examined by Ld. defence counsel.
27. Now, I would discuss the testimony of PW11 ASI Vinod Kumar who is the second IO of the case and he has deposed that on 17.12.2019, he was posted as an ASI at AATS, Dwarka and on that SC No. 95/2020 State Vs. Anayo Daniel Page 20 of 36 day, after registration of FIR, the investigation of the present case was marked to him vide DD No.8, Ex. PW3/A upon which he reached the spot where he met ASI Sanjay, SI Roshan Lal, ASI Randhir, HC Jitender, Ct. Manish, Ct. Arjun along with accused Anayo Daniel. He has further deposed that ASI Sanjay handed over to him seizure memo of passport, already Ex. PW4/C with original passport and original seizure memo of case property and a carbon copy of Notice under Section 50 NDPS Act. He has further deposed that in the meantime, Ct. Manoj reached the spot with the original tehrir and copy of FIR and the same were handed over to him. He has further deposed that he prepared site plan Ex. PW4/F at the instance of ASI Sanjay and recorded his statement, arrested the accused vide arrest memo Ex. PW5/A, conducted his personal search vide memo Ex. PW 5/B, recorded the disclosure statement of the accused Ex. PW5/C. He has further deposed that thereafter, he along with police staff and accused reached at PS Bindapur where he made DD No. 39A, Mark XA regarding depositing the case property at Malkhana PS Bindapur and arrest of accused and thereafter, he went to the SHO PS Bindapur and recorded his statement who handed over to him DD No. 25A (Mark XB) with regard to the information of under Section 55 NDPS Act. He has further deposed that he recorded the statement of MHC(M) PS Bindapur in the Police Station. He has further deposed that thereafter, he along with staff and accused Anayo Daniel reached the office of ACP Dabri, where he recorded the statement of ACP and got conducted the medical examination of accused at DDU Hospital and returned to AATS Dwarka and recorded the statement of AATS SC No. 95/2020 State Vs. Anayo Daniel Page 21 of 36 Inspector Ram Kishan. He has further deposed that he prepared the report of arrest and seizure and the said report was sent to ACP Operations and same is Ex. PW11/A and thereafter, he recorded the statement of witnesses. He has further deposed that on 18.12.2019, the accused was produced before the Court and he moved an application Ex. PW1/B for one day PC remand, which was granted and after PC remand of the accused Anayo, he was sent to JC. He has further deposed that on the same day, he moved an application for sample withdrawn before Ld. MM Ex. PW11/C which was fixed for 06.01.2020 and on 06.01.2020, Ld. MM had taken two samples from the case property which was produced by Ct. Rajesh and both samples were sealed with the seal of PG and gave serial no. S1 & S2 and SI Ram Niwas, (photographer) had taken 12 photographs of the sample withdrawn procedure. He has further deposed that on 09.01.2020, case property and both samples were sent to FSL through Ct. Rajesh and he recorded his statement. He has further deposed that he sent the information regarding the arrest of Anayo Daniel to the Nigerian Embassy along with original passport, MEA and FRRO on different dates for seeking information and verification report and on 10.01.2020, he received the information from the High Commission of Nigerian, New Delhi that the Nigerian Standard Passport No. A00333787 belonging to Mr. Anayo D Anyanwu is genuine and same is already Ex. P1. He has further deposed that the said passport was found without a visa. He has further deposed that on 16.01.2020, SI Ram Niwas brought two sets of photographs before Ms. Paridhi Gupta, Ld. MM, Dwarka Courts, New Delhi which was attested by Ld. MM, SC No. 95/2020 State Vs. Anayo Daniel Page 22 of 36 out of which one set was kept in the Court. He has further deposed that on 15.01.2020, he moved an application to SHO PS Bindapur for giving direction to MHC(M) to provide the original copy of the notice under Section 50 NDPS Act deposited in malkhana alongwith personal search memo of accused which is Ex. PW11/D and thereafter, he seized the original notice under Section 50 NDPS Act vide seizure memo Ex. PW2/E. He has further deposed that after receiving the FSL result, he prepared a charge sheet and sent to the Court. Nothing contrary has come in his crossexamination also. Several suggestions were put to this witness which he denied.
28. To support the version of PW4 IO / ASI Sanjay & PW11 ASI Vinod Kumar, the prosecution also examined PW5 Ct. Manoj Kumar and PW6 Ct. Arjun, who were on morning patrolling checking duty along with PW4 ASI Sanjay and have deposed on the same lines as that of PW4 IO/ASI Sanjay.
29. As far as other witnesses are concerned, PW1 SI Ramesh Chand is the formal witness as he is the Duty Officer who got the FIR registered in the present case as Ex. PW1/B. PW2 is HC Arvind and he has proved the entry made at serial no. 3073 & 3074 in Register No. 19 as Ex. PW2/A & PW2/B with regard to a carbon copy of the seizure memo and a pullanda and the personal search memo of the accused in malkhana. He also proved the RC no. 4/21/20 as Ex. PW 2/C vide which Constable Rajesh took samples from the exhibits before Ld. Court and after drawing two samples from the Court, he SC No. 95/2020 State Vs. Anayo Daniel Page 23 of 36 deposited the case property duly sealed with the seal of 'PG' and made entry at serial no. 3073 in Register No. 19 already Ex. PW2/A from point Y to Y and on 09.01.2020, he handed over the two pulandas, Mark S1 & S2 along with form FSL vide RC no. 6/21/20 Ex. PW 2/D to Ct. Rajesh for depositing the same to the FSL and after depositing the same, Ct. Rajesh handed over the copy of RC to him upon which he made an entry in Register No. 19 on the Ex. PW2/A from point X to X. He has further deposed that case property was not tampered with as long as it remained in his custody. He has further deposed that on 17.01.2020, IO/ASI Vinod has moved an application duly forwarded by SHO for taking original notice under Section 50 NDPS Act which was recovered from the personal search of the accused upon which he handed over the same to the IO after taking permission from the SHO and IO seized the original notice U/s. 50 NDPS Act vide seizure memo as Ex. PW2/E upon which he made an entry in Register No. 19 at serial no. 3074 from point B to B. PW3 ASI Dharmender has proved the entry made vide DD No. 8 in Register No. 19 as Ex. PW3/A with regard to telephonic information for apprehending a Nigerian national with illicit heroin through ASI Sanjay and registration of FIR at PS Bindapur through Ct. Manoj and further investigation was marked to ASI Vinod Kumar. PW7 is SI Krishan Kumar who has proved the Rojnamcha dated 17.12.2019 at serial no. 3 with regard to departure entry made by ASI Sanjay in register no.19 as Ex. PW7/A. PW8 is HC Daya Ram and he has proved Diary No. 1266 & 1267 as Ex. PW8/A & Ex PW8/B respectively with regard to the report of seizure and arrest of Narcotics SC No. 95/2020 State Vs. Anayo Daniel Page 24 of 36 Drugs under Section 57 NDPS Act. PW9 is SI Ram Niwas (Retd.) and he has proved the 12 photographs Ex. PW9/A1 to PW9/A12 and certificate under Section 65B as Ex. PW9/B. PW10 is Constable Rajesh who on 06.01.2020 on the instructions of IO/ASI Vinod Kumar received case property.
30. The FSL report Ex. P/D/1 shows that Ex. S1 & S2 were found containing Diacetylmorphine and the same was admitted by the accused.
31. All the witnesses were crossexamined by Ld. Defence counsel but Ld. Defence counsel could not dent their testimonies and elicit anything material from them. The witnesses produced by the prosecution are wholly reliable and trustworthy and nothing could be brought out in their crossexamination to discredit them as nothing contrary has come in their crossexamination conducted by counsel for the accused. Documentary and circumstantial evidence on record corroborate their statements. The counsel for the accused has argued that the accused has been falsely implicated and has no connection with the crime. It is observed that witnesses produced in court have no motive or reason to falsely implicate the accused in this case. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate the grain from chaffwhen chaff can be separated from the grain, it could be open to the Court to convict the accused SC No. 95/2020 State Vs. Anayo Daniel Page 25 of 36 notwithstanding that evidence is found difficult to prove the guilt of other accused personsfalsehood of the particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as a liar".
32. Even otherwise, it has been held in the case of Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783 that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC 147.
33. The present case is a case of recovery of an intermediate quantity of heroin. It is not possible to plant such a quantity upon the accused person. Moreover, there is no reason to falsely implicate the accused.
34. Further, it has to be seen that accused has failed to bring on record anything showing that he was not in conscious possession of a contraband item. He was found in possession of 130 gm of heroin in one transparent polythene from the front right pocket of his pant. On considering the facts available on record, the document, testimony of witnesses after detailed scrutiny, no doubt remain that accused was SC No. 95/2020 State Vs. Anayo Daniel Page 26 of 36 in conscious possession of heroin.
35. The Ld. counsel for accused has argued that the notice under Section 50 NDPS Act, Ex. PW4/A was defective as the accused was not explained about his legal right to be searched before a Gazetted Officer or Magistrate. But Ld. Addl. PP for the State has argued that Ex. PW4/A i.e notice under Section 50 of NDPS Act was served upon the accused whereby he was apprised about his legal rights.
36. Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
37. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by the State of Punjab SC No. 95/2020 State Vs. Anayo Daniel Page 27 of 36 Vs. Baldev Singh (1999) 3 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazetted Officer or a Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was substantial compliance with the requirement of Section 50 of the NDPS Act. The Court did not agree with the contention that there was noncompliance with SC No. 95/2020 State Vs. Anayo Daniel Page 28 of 36 the mandatory provisions, contained in Section 50 of the NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are necessary to be used to convey the existence of the right.
The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made.
38. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimize the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
39. The prosecution witnesses are clear and consistent in their deposition about the service of notice under Section 50 of NDPS Act before taking search of accused. The notice under Section 50 of SC No. 95/2020 State Vs. Anayo Daniel Page 29 of 36 NDPS Act Ex. PW4/A is proved on record and perusal of same, it is clear that statutory rights of accused in this regard was clearly explained to him. Same have been perused. By virtue of this notice, the accused was apprised of his legal rights qua his search in the presence of a Gazetted Officer or a Magistrate. The word mentioned in the notice is "Legal right". Even otherwise, it was a chance recovery. So there is no lacuna in the notice under Section 50 of the NDPS Act.
40. The counsel for the accused has argued regarding tampering of case property till the same remained in the custody of officials. It is a settled law that to safeguard the possible tampering, the samples should be sent to the laboratory at the earliest, preferably within 72 hours, and in case of delay, the onus is on the prosecution to show that there was no tampering with the case property and samples. In the event of doubt, benefit has to be given to the accused, however, if the prosecution satisfies that there was no tampering, the delay is to be ignored.
41. The prosecution has completed the link evidence in this case by examining all the material witnesses namely Ct. Manoj, who took the case property alongwith rukka from the spot to the police station ; Inspector Anil Kumar Berwal (PW14) to whom the case property was handed over by Ct. Manoj in the police station ; PW2 HC Arvind, MHC(M) to whom the case property was handed over by PW14 while depositing it in the malkhana and PW10 Ct. Rajesh who took the sample parcel with FSL form to the Laboratory from the SC No. 95/2020 State Vs. Anayo Daniel Page 30 of 36 malkhana. In this respect, the testimony of PW10 Ct. Rajesh is very important who has deposed that on the instructions of IO, he collected the samples i.e Mark S1 & S2 (sealed with the seal of PG) from Malkhana PS Bindapur for depositing the same in FSL Rohini, Delhi vide RC no. 6/21/20 as Ex. PW2/D along with form FSL and after depositing the same, he obtained the receipt of FSL and handed it over to MHC(M). He has further deposed that till the pullandas and FSL form remained in his custody, the same were not tampered with. So from the deposition of the above witnesses, it is clear that there was no question of tampering with case property. The sequence of deposit of case property with an official is duly proved and does not point regarding tampering.
42. The counsel for the accused could not find any flaw in the usage of the seal while sealing the case property. The movement of the contraband items to the Malkhana is also duly proved. The drawing of the samples and deposition of the same with the FSL is also duly proved. The filling of the FSL form is also duly proved and a dent could not be created in the statement of the witnesses. So, nothing doubtful has been brought on record by the accused against the testimonies of the witnesses produced by the prosecution.
43. In the light of consistent and reliable testimony of prosecution witnesses, the defence taken by the accused is found to be improbable which otherwise has not been substantiated by him either by examining himself on oath or by leading any cogent evidence SC No. 95/2020 State Vs. Anayo Daniel Page 31 of 36 in their defence.
44. In the instant case, all the procedural safeguards provided under a statute have been strictly complied with. The prosecution has discharged its burden of proving its case against the accused beyond all reasonable doubt. There is no question of conviction of the accused on a misguided, suspicion. This case is not based on conjectures or surmises.
45. It is trite that nonjoining of public witnesses itself cannot become a ground for acquittal, if the case of the prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution cannot be held to be vulnerable for nonexamination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution cannot be disbelieved. This position was reaffirmed by the Apex Court in State, Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652, wherein it was held that :
".... Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise SC No. 95/2020 State Vs. Anayo Daniel Page 32 of 36 shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
46. It is further held in judgment supra Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution".
47. It is evident from the testimony of prosecution witnesses specially PW4 ASI Sanjay Kumar that sincere efforts were made to join the public witnesses but all refused the same and left the spot without disclosing their names and addresses. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court proceedings. The nonjoining of public witnesses is not fatal to the SC No. 95/2020 State Vs. Anayo Daniel Page 33 of 36 case as otherwise the case is proved by way of consistent and cogent evidence. On examination of the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the view that there is no reason to discredit the convincing testimony of prosecution witnesses. This is also fortified by the judgment of the Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under: "6....... 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 more careful scrutiny of the 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."
48. Considering the material on record, the nonjoinder of independent public witnesses does not cast any doubt on the case of the prosecution and it has succeeded in proving the apprehension of SC No. 95/2020 State Vs. Anayo Daniel Page 34 of 36 the accused from the spot as well as the seizure of the narcotic drug from him.
49. Thus from the above, it is clear that prosecution witnesses have duly supported their case and sufficient material has been proved on record to prove the guilt of the accused. Thus on all counts, the guilt of the accused has been duly proved beyond a reasonable doubt. Accused Anayo Daniel is convicted for the commission of an offence punishable under Section 21 (b) of the NDPS Act.
50. The accused is also facing trial for the offence under Section 14 of Foreigners Act. PW11 ASI Vinod Kumar has specifically deposed that the passport of the accused was found without visa. No suggestion was given by Ld. Defence counsel on this point. The onus was upon the accused to show that he was residing in India on a valid Visa and the same has not been produced by him. Since the accused being Nigerian National was found without any valid visa or authority for his stay in India and even during the trial of the present case, he could not produce any document to show that he was having any valid visa or authority on 17.12.2019 for his stay in India, hence, accused Anayo Daniel is also convicted for commission of an offence punishable under Section 14 of Foreigners Act.
51. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. Copy of this judgment is given dasti to SC No. 95/2020 State Vs. Anayo Daniel Page 35 of 36 convict, free of cost. Be put up for arguments on the point of sentence on 01.10.2021.
Digitally signedDEEPAK by DEEPAK WASON WASON Date: 2021.09.29 15:48:32 +0530 Pronounced in the open court. (Deepak Wason) Dated: 29th September, 2021 Spl. Judge (NDPS): SouthWest District: Dwarka Courts:New Delhi SC No. 95/2020 State Vs. Anayo Daniel Page 36 of 36