Delhi District Court
9.6. In The Case Of Jaganath vs . State Of Punjab 1997 Criminal Law on 22 October, 2013
1
In the Court of Dig Vinay Singh : Additional Sessions Judge
Spl. Judge: NDPS (NW): Rohini Courts: Delhi
In the matter of:
SC No. : 91/11
FIR No. : 95/11
PS : Crime Branch
U/s. : 21/61/85 NDPS Act
State
Versus
Simon Onome Umukoro
S/o Umukoro
R/o Abuja Federal Capital,
Nigeria
Date of receipt : 19.07.2011
Date of arguments : Based on Written arguments
Date of announcement : 22.10.2013
JUDGMENT
1. The above named sole accused was sent up for trial with the case of prosecution that on 07.04.2011, at about 5.05 PM, he was apprehended with 6 kg of 'heroin' inside a bag, at near Main Gate of Delhi Haat, Pitam ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 1 of 41 2 Pura, Delhi. The accused was apprehended pursuant to secret information against him. Out of the recovered 'heroin', samples were drawn. Since total 6 kgs of 'heroin' was recovered from inside 6 packets inside the bag, therefore, from each of the packets, two samples of 'heroin' each measuring 10 grams each were separated. The sample parcels and the main packets were all separately sealed by inspector Arvind Kumar, initial Investigating Officer, with his seal. One sample each from the 6 packets was sent to FSL which also confirmed the material to be 'heroin'. It is also the case of prosecution that the accused, being a foreign national, was required to furnish his passport and valid documents of stay in India. On 12.04.2011, during police custody of accused, his tenanted premises in Delhi was raided from where one passport of accused, bearing a forged Visa No. AF-622814, was allegedly recovered. It is the case of prosecution that the accused was staying in India based on forged Visa and he did not have any valid document of stay.
2. Accordingly, a charge U/s.21 of NDPS Act 1985, for possessing 'commercial quantity' of 'heroin' was framed against the accused by my Ld. Predecessor on 09.08.2011. Besides the said charge, accused was also charged U/s.420 of IPC for cheating the government agency, and for offence U/s.468 of IPC for forging the Visa. The accused was also charged U/s.14 of the Foreigners Act 1946. The accused pleaded not guilty to the above mentioned charges and claimed trial.
It may be mentioned here that on 09.09.2013 this Court amended ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 2 of 41 3 charge U/s.21 of NDPS Act framed against the accused by the Ld. Predecessor Court, as in the earlier charge framed, inadvertently, it was mentioned that 1 kg of 'heroin' was recovered from the accused, whereas, as per case of prosecution from each of the six packets one kg of 'heroin', totaling 6 kgs of 'heroin', was recovered.
3. In support of its case, prosecution examined total 13 witnesses.
3.1. Out of the 13 witnesses examined by the prosecution, PW-4 HC Dinesh Kumar, PW-8 HC Hanuman Singh and PW-9 Inspector Arvind Kumar are the witnesses of recovery of 'heroin'. PW-12 SI Sukhbir Malik was the subsequent investigating officer.PW-8 HC Hanuman Singh and PW-12 SI Sukhbir Malik are also witnesses regarding recovery of passport and visa of accused from his room on 12-04-2011. The remaining witnesses are more or less formal in nature.
3.2. PW-4, PW-8 & PW-9, the recovery witnesses, deposed that on 07.04.2011, at about 1pm, one secret informer came and informed Inspector Arvind that one Nigerian national namely Simon was indulged in supply of 'heroin' and that person would come near Delhi Haat, Pitam Pura, at about 5 PM, to supply 'heroin' to somebody. Inspector Arvind informed the Addl. DCP, Crime Branch about the information and also reduced the secret information into writing vide DD No.5, Ex. PW-9/A, at 1.30 PM. A true copy of DD No.5 was sent to the DCP in compliance of Section 42 of NDPS Act. Thereafter, a raiding party was constituted comprising of these three witnesses as well as SI Narender, HC Virender, Ct. Suresh and Ct. Sanjay. The raiding team left the office at 2 ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 3 of 41 4 PM under DD No.6, Ex. PW-9/B. On the way to the spot at ISBT Kashmere Gate and at Wazirpur bus depot, certain passersby were requested to become witness but none agreed. The raiding team reached the spot at 4 PM and at about 4.45 PM the accused came to the spot and stood there for about 20 minutes while waiting for somebody. Thereafter, he started going back and at that time he was apprehended. After completing the formalities U/s.50 of NDPS Act, the black colour bag on his shoulder was searched. The notice U/s.50 NDPS Act is proved as Ex. PW-9/C, and the refusal of accused to exercise his rights U/s.50 NDPS Act is proved as Ex. PW-9/D. Inside the bag, six packets were found which were wrapped with brown colour packing tape. Those packets were containing yellowish colour powder and on testing it on the field testing kit, it was found to be 'heroin'. The six bags were weighed and they turned out to contain 1 kg of 'heroin' each. Out of each packet, two samples each of 10 grams each were separated and were kept inside 12 small plastic containers. The sample containers were given Mark 1 to 12, respectively. The remaining 'heroin' in the packets was converted into parcels and those parcels were given Mark R1 to R6. All the 18 parcels were sealed by PW-9 with his seal of AKY. FSL Form was filled up, on which also specimen seals were applied. The case property was taken into possession vide the seizure memo Ex. PW-4/A. Thereafter, Rukka Ex. PW-9/E was prepared and the Rukka alongwith the 18 parcels, the FSL Form and carbon copy of seizure memo were handed over to PW-4 to be taken to the Police Station, Crime Branch, Nehru Place.
____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 4 of 41 5 3.3. It is deposed by HC Dinesh (PW-4) and inspector Kuldeep (PW-11) that HC Dinesh reached the Police Station, Crime Branch, Nehru Place at about 9.05 PM where he handed over the 18 sealed parcels, the FSL Form and carbon copy of seizure memo to PW-11, who was working as SHO of the police station Crime Branch Nehru Place on the date of incident. PW-11 applied his seal of KSY on each of the 18 parcels as well as a specimen seal on the FSL Form. Thereafter, MHC(M) was called and the case property was deposited in the Malkhana. PW-11 also lodged DD No.16 at 9.50 PM Ex. PW-11/A regarding deposition of case property in the Malkhana.
3.4. PW-3 HC Kewal Anand and PW-4 H. C. Dinesh deposed that after PW-4 handed over the Rukka to PW-3, FIR Ex. PW-3/A was registered and endorsement on original Rukka Ex. PW-3/B was made.
3.5. HC Dinesh deposed that after registration of FIR, he collected the copy of FIR and original Rukka and went to Special Operation Squad, Crime Branch at Sun Light Colony and handed over the documents to PW-12 SI Sukhbir Malik.
3.6. PW-9 inspector Arvind Kumar, PW-8 HC Hanuman Singh and PW-12 SI Sukhbir Malik deposed that SI Sukhbir Malik reached the spot and prepared site plan Ex. PW-9/F. Inspector Arvind left the spot after preparation of site plan. Thereafter, SI Sukhbir Malik interrogated the accused and arrested the accused vide Ex. PW-8/A and conducted personal search of the accused, vide Ex. PW-8/B, in which carbon copy of notice U/s.50 NDPS Act alongwith certain articles were recovered. ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 5 of 41 6 After completing the formalities at the spot, the team along with the accused went to Police Station Crime Branch, Nehru Place where personal search articles of the accused were deposited in the Malkhana, vide entry Ex. PW-10/B. Subsequently, the team reached the SOS Crime Branch, Sun Light Colony where disclosure statement of accused, Ex. PW-12/A, was recorded.
3.7. PW-9 inspector Arvind and PW-12 SI Sukhbir Malik proved that they prepared and submitted separate reports U/s.57 of NDPS Act, Ex. PW- 1/A & PW-1/B, respectively, to the senior police officers, within the stipulated period.
3.8. Subsequently, the accused was produced in the Court and his 5 days police custody was obtained. It is deposed by PW-8 HC Hanuman and PW-12 SI Sukhbir Malik that on 12.04.2011 they along with accused and certain other police officials went to the tenanted premises of accused at H.No.80/149, Gram Sabha, Pipal Thala, Mohan Garden, Delhi. The landlord Sh. Tilak Raj (PW-7) met them and from the house of accused, one passport Ex. PW-7/1 was recovered, which was taken into possession vide memo Ex. PW-7/C. It is also deposed that the tenant verification information, bearing photograph of accused, Ex. PW- 7/B was also taken into possession from the landlord vide memo Ex. PW-7/A. Along with the passport one mobile phone was also recovered from tenanted premises of accused which was seized vide memo Ex. PW-7/D. SI Sukhbir Malik also proved supplementary disclosure of accused Ex. PW-12/D. The FSL result is proved as Ex. PW-6/A with its ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 6 of 41 7 covering letter Ex. PW-6/B. 3.9. Amongst the formal witnesses, PW-1 HC Aas Mohammad from the office of ACP SOS Crime Branch deposed that on 7th and 8th April 2011, two separate reports U/s.57 NDPS Act Ex. PW-1/A & PW-1/B, respectively, were received in the office of ACP, which were given by inspector Arvind and SI Sukhbir Malik, respectively, and which were forwarded to the Addl. DCP, Crime Branch vide entry No.454 & 455, respectively. The entries are proved as Ex. PW-1/C. 3.10. PW-2 Ct. Ramesh proved DD No.9 as Ex. PW-2/A regarding information received from inspector Arvind Kumar at 6 PM from the spot about apprehension of accused with 'heroin'.
3.11. PW-5 Ct. Sanjay deposed that on 13.04.2011 he carried sample parcels S-1, S-3, S-5, S-7, S-9 and S-11, sealed with the seal of KSY and AKY, from Malkhana to FSL Rohini, alongwith the FSL Form bearing same specimen seal, vide Road Certificate No.157/21/2011.
3.12. PW-6 Dr. Lingaraj Sahoo, the Senior Scientific Officer from FSL Rohini proved that he tested the contents of six sample parcels which contained diacetylmorphine and he prepared a report Ex. PW-6/A. The percentage of diacetylmorphine found in the samples S-1, S-3, S-5, S-7, S-9 and S-11, respectively, were 48.13%, 54.26%, 59.27%, 45.58%, 35.47% and 51.49%.
3.13. PW-7 Tilak Raj was the landlord of accused who deposed that on 12.04.2011 some police officials came to his tenanted premises, which ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 7 of 41 8 was rented out to the accused, and some articles were taken away by the police. He, however, deposed that after two days police again came to his house and took away the passport of accused and some documents were prepared there on which his signatures were obtained. He identified seizure memo of passport Ex. PW-7/C and seizure memo of tenant verification form Ex. PW-7/A. He also identified the tenant verification form Ex. PW-7/B which bears photograph of accused; the passport Ex. PW-7/1;theletter of identification purportedly issued by High Commission of Nigeria as Ex. PW-7/2 and; scanned copy of passport as Ex. PW-7/3.
3.14. PW-10 HC Jag Narain was the Malkhana Moharrar of the Police Station Crime Branch, Nehru Place. He deposed that on 07.04.2011 inspector Kuldeep Singh deposited 18 sealed parcels which were sealed with the seal of AKY and KSY, along with FSL Form and carbon copy of seizure memo under entry Ex. PW-10/A in Register no.19. He also deposed that one bag was deposited with the articles though the bag is not mentioned in the entry Ex. PW-10/A. He also deposed that SI Sukhbir Malik deposited personal search articles of the accused in the Malkhana on that very night, vide entry Ex. PW-10/B. He also deposed that on 12.04.2011 SI Sukhbir Malik again deposited one mobile phone in the Malkhana vide entry Ex. PW-10/C. The witness deposed that on 13.04.2011, through Ct. Sanjay (PW-5), six sealed sample parcels were sent to the lab vide Road Certificate Ex. PW-10/D and endorsement in register no.19 Ex. PW-10/D1. This witness also proved that the acknowledgment receipt Ex. PW-10/D2 was obtained by PW-5 Ct. ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 8 of 41 9 Sanjay from lab after depositing the case property in the lab and the receipt was deposited in the lab.
3.15. PW-13 Smt. Suresh Rani was from Ministry of External Affairs. She proved the letter dated. 10.08.2011 Ex. PW-13/A vide which High Commission of India at Lagos was requested to verify genuineness of Visa No.AF-622814, which was found affixed in the passport of accused at the time of recovery on 12-04-2011. The witness deposed that pursuant to the said letter, an email dated 15.09.2011,Ex. PW-13/B, was received from High Commission of India at Lagos informing that the Visa was forged. The witness also proved certificate U/s.65B of Evidence Act as Ex.PW-13/C.
4. On conclusion of the prosecution evidence, all the incriminating evidence was put to the accused in his statement U/s.313 Cr.P.C. The accused claimed that he was picked up from his house in the morning between 10 to 11 AM on 07.04.2011, without any rhyme or reason, and was taken to Crime Branch Office in Sunshine Colony. He claimed that he never visited Delhi Haat and was not apprehended from there. He denied that any bag or contraband was recovered from him. He also claimed that when the police officials picked him up from his house; he was not told anything; he was not informed of rights under section 50 NDPS Act; no notice was prepared or delivered to him; his signatures were obtained on blank papers by the police officials in the Police Station where he was compelled to not only sign but also write on some papers; he never used contraband throughout his life; in the Police ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 9 of 41 10 Station he was forcibly made to right on a paper also which he later on came to know was converted into an application for permission to carry two pairs of clothes to the jail; no copy of notice was recovered from his personal search, as it was never delivered; he was not taken to his house on 12.04.2011 and; in fact he was never taken to his house after he was picked up on 07.04.2011. Accused also claimed that he had two passports, one of which had expired and another one was a renewed passport. Both the passports were taken by the police on 07.04.2011. He, however, claimed that his new passport had the valid business Visa when it was taken away by police on 07.04.2011 and the expired passport had no such forged Visa at that time. He claimed that his valid passport with valid Visa has not been filed by the police. Ex. PW-13/C is claimed to be a fabricated document.
4.1. He, however, admitted that the passport exhibited in this case bears his photograph, is his passport and was recovered from his house. He also admitted that he was tenant in the house of PW-7 Tilak Raj.
4.2. The accused examined himself as DW1, in which he deposed that his valid Visa on valid passport was valid till July 2011. He claimed that when he was picked up by the police on 07.04.2011 he had four guests in his house, namely, Mr. Friday, Mr. John, Mr. Victor and one more person. Mr. Friday went to bring soft drink for others. John wanted to smoke and he was asked to go downstairs and then smoke. After some time, 8-10 police officials came along with John in his room and the ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 10 of 41 11 accused was apprehended. He claimed that both inspector Arvind and SI Sukhbir Malik were there when he was apprehended. The police officials were not in uniform. They searched his house and took into possession both the passports and some money also. John and other two Nigerian nationals, except Mr. Friday, were also taken alongwith him to the police station. In the police station, contraband was planted upon him. Before it, bribe was demanded from him but when he refused he was implicated. He claimed that he was given beatings in the police station and he was made to sign blank papers and some written papers. He claimed that under fear he wrote and signed those documents. He also deposed that when charge sheet was supplied to him at that time he came to know that the application in which he was forcibly made to write that he was apprehended with 'heroin' was made part of charge sheet. In his evidence, the accused also claimed that along with the copy of charge sheet, he was supplied one copy containing brief facts of the case running into two pages along with hand written objections raised by the prosecution branch Ex. DW1/A1 & A2, and the said objections reflect that he was implicated falsely. He claimed that his genuine passport was concealed by the police and was not filed. He also claimed that his old passport was not containing any Indian Visa when it was recovered from him.
5. I have heard Ld. Prosecutor for the State and Ld. Counsel for the accused. I have also perused the written submissions filed by the accused.
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6. Ld. counsel for the accused has first of all argued that presence of accused at the spot is doubtful. In this regard, he has placed reliance on the testimony of none other than the prosecution witness Tilak Raj (PW-
7). It is argued that Tilak Raj admitted that accused was apprehended from his tenanted premises, therefore, the very foundation of the case of the prosecution is shaken.
6.1. PW-7 Tilak Raj was the landlord of accused. Fact of tenancy is not disputed. It is an admitted case of accused that Tilak Raj was his landlord. Tilak Raj deposed that on 12.4.2011, when he was not at home, some police officials came to his house and some articles of the accused were taken away by the police. He claimed that two days after 12.4.2011, police again came to his house and on that day, took passport of the accused from inside the room. He also deposed that the police officials took one letter of identification of accused issued by Federal Republic of Nigeria. He also deposed that on the first visit of police at his house, the accused was apprehended and taken away.
6.2. Though it is the case of prosecution that on 12.4.2011 the accused, while in police custody, led the police team to his house from where passport, letter of identification issued by Federal Republic of Nigeria and one mobile phone was recovered at his instance, but this witness deposed that at that time accused was not with the police and police had in fact apprehended the accused from his house two days ago. This witness was partially declared hostile and was cross examined by the prosecution. Subsequently, the witness was cross examined by the ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 12 of 41 13 accused also in which he reiterated that accused was apprehended by the police from his residence. However, he could not reply whether accused was apprehended on 7.4.2011 or any other day.
6.3. The witness was very specific in his deposition that accused was not apprehended in his presence from his house and that he was told about it by his wife and son. The witness at one place even denied a suggestion given by the accused to the effect that accused was apprehended from his residence.
6.4. Thus, from this testimony of Tilak Raj, no logical inference can be drawn that the accused was apprehended from his house on 7.4.2011 or on any other day. Admittedly, this witness was not present at the time when, as per him, the accused was picked up from his house. The testimony of this witness, therefore, qua this part, is barred by the principles of hearsay. Despite opportunity, the accused did not examine wife and son of Tilak Raj to prove that they saw the accused being taken away from the house. Although, during cross examination of prosecution witnesses, and as DW-1 the accused took a stand that he was taken away from his house on 7.4.2011, yet he did not even attempt to call wife and son of Tilak Raj to prove this fact. In his evidence as DW1, he even claimed that four other Nigerian Nationals were present in his house on the date of incident and at the time of his apprehension, three Nigerians were present yet none of them have been examined. In fact, no suggestion was given by the accused during cross examination of Tilak Raj about presence of any such Nigerian Nationals at his residence on the date of ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 13 of 41 14 his alleged apprehension from his house.
6.5. Thus, the testimony of Tilak on this aspect of the matter that he was told that the accused was apprehended from his house is hit by the principles of hearsay and cannot be read in favour of accused. Merely because Ld. Prosecutor for the State did not suggest PW-7 Tilak Raj that the accused was not apprehended from his house cannot be read against the prosecution. The prosecutor was not bound to give any such suggestion to the witness when the testimony of Tilak Raj to the effect that accused was apprehended from his house was hit by the principle of hearsay and was not admissible. There is no other material available on record which can suggest that accused was not apprehended from the spot. Thus, this contention has to be rejected against the accused.
7. The accused next challenged the genuineness of notice U/s 50 NDPS Act Ex.PW-9/C. It is argued that although PW-4 HC Dinesh, PW-8 HC Hanuman and PW-9 Inspector Arvind were present at the spot but the notice does not bear signatures of HC Hanuman or HC Dinesh. It is also argued that PW-4 and 9 contradicted themselves as to where this notice was prepared; whether it was prepared while standing at the gate of Dilli Haat as deposed by HC Dinesh, or it was prepared in the traffic police booth located nearby as deposed by PW-9. It is also argued that PW-4 deposed that when the accused wrote his refusal Ex.PW-9/D, the carbon copy was not attached under the original one and therefore, the carbon copy Ex.PX should not have contained the refusal's carbon impression, but it contains the carbon impression of refusal. It is also ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 14 of 41 15 argued that PW-8 HC Hanuman deposed that first of all receipt of copy of notice was obtained by the investigating officer from the accused by obtaining signatures of accused against receipt of copy, and thereafter, carbon copy was delivered to the accused and after the carbon copy was delivered the accused noted down the refusal. PW-8 also stated that the refusal of accused was noted down by the investigating officer. It is also argued that PW-9 Inspector Arvind deposed that he had delivered carbon copy of the notice to the accused and not the original and that he was not sure whether the accused gave his refusal before delivery of carbon copy or after it. Ld. Counsel also argued that the accused was not informed of his legal rights as envisaged in Section 50 of NDPS Act and that HC Hanuman and HC Dinesh were unable to understand conversation between the investigating officer and the accused 7.1. As mentioned above, recovery of contraband in this case was not effected from the person of accused instead the contraband was recovered from inside one bag which the accused was carrying. In that eventuality of the matter, compliance of Section 50 of NDPS Act was not necessary. It is no more res integra that Section 50 of NDPS Act would be applicable only where the contraband is recovered from the person of an accused. Where contraband is recovered from the bag carried by an accused, Section 50 NDPS Act has no application whatsoever. In such circumstances, the arguments of Ld. Counsel that the accused was not informed of his legal rights as envisaged in Section 50 of NDPS Act and that HC Hanuman and HC Dinesh were unable to understand conversation between the investigating officer and the accused, ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 15 of 41 16 because of language barrier, losses force.
7.2. The argument whether carbon copy was delivered or original was delivered; whether the receipt was obtained or not; whether the refusal was noted and signed before or after delivery of carbon copy, cannot be given any undue importance for the reason that the witnesses were examined in the court after quite a substantial time from the date of incident. Where witnesses are examined after many months, witnesses tend to forget such minute details about the manner of service of notice and as to its exact contents.
7.3. It would be worth mentioning that it is not a case where only signature of accused was obtained on the refusal against notice U/s 50 NDPS Act. Rather he himself, in his own hand writing noted down that the notice was received by him and that he does not want his search before any Judge or similar officer or Gazetted Officer. Accused has not offered any reasonable explanation that these words were got written from him under duress. Though, he claimed in his statement that he was made to write these words under duress but during cross examination of prosecution witnesses, this stand was not taken that his writing on Ex.PW-9/D was obtained under duress. This contention is therefore rejected.
8. It may be mentioned here that though the accused has claimed that he has been falsely implicated in the present case but no explanation whatsoever has been offered by him as to why he would be falsely implicated by anybody. Accused is a foreign national. He has no dispute ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 16 of 41 17 or enmity with the police officials who have appeared as witnesses in this case. At least, he has not suggested any such reason; howsoever remote, to suggest as to why he would be so implicated. Would he be implicated by the police without any rhyme or reason? Particularly when he has no concern or dispute with police of this country, being a foreign national? This plea of accused that he was implicated, does not appeal to common sense at all and does not inspire confidence of court.
8.1. The quantity of 'heroin' recovered from the accused is as huge as 6 Kg.
The value of such contraband must have been Crores of Rupees in international market, at the relevant time. I do not find it convincing that 'heroin' worth Crores of Rupees was planted upon accused just to implicate him falsely. Had the accused been required to be implicated, the object could have been achieved by planting far lesser quantity of 'heroin' also. For that matter, under the NDPS Act, 250 grams of 'heroin' is defined as 'commercial quantity', entailing equally severe punishment which the accused is now facing. Even if one has to assume that the accused was falsely implicated, the object could have been achieved by planting 250 grams of substance. Similarly the contention of accused that Rs.8 lakh bribe was demanded from him and which he refused and therefore, he was implicated does not inspire any kind of belief. Just to extort Rs.8 Lakh, nobody would plant contraband worth Crores of Rupees.
8.2. The accused though claimed that on the date of incident, four Nigerians namely Friday, John, Victor and one more, were present in the house, ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 17 of 41 18 and though he claimed that John, Victor and one another was also taken by the police along with him, but none of those Nigerian Nationals, known to the accused, have been examined in defence. No complaint was given by those friends of accused to the senior police officers or any other authority, if the accused was falsely implicated. No such complaint or intimation has been proved in this court. This fact also enforces the fact that the accused was not apprehended from his house. I do not see any material on record to suggest that accused was not apprehended from the spot.
9. The next ground on which the case of prosecution is attacked is that seal after use was handed over by Inspector Arvind to HC Dinesh, who was also handed over the case property to be taken to the police station Crime Branch, Nehru Place, from the spot. In this regard, the accused has primarily relied upon the testimony of HC Hanuman who deposed that seal remained with HC Dinesh and he was not aware as to when it was returned by him to the investigating officer. In this regard, accused has also relied upon a document Ex.DW1/A2, which is objection raised by the prosecution branch before the charge sheet was filed in the court. The accused claims that its copy came to the possession of accused along with the charge sheet and it was supplied along with the charge sheet.
9.1. In Ex.DW1/A2, one of the points for consideration mentioned by the concerned Prosecutor, at Serial no. 5, is that the seal after use was handed over to HC Dinesh who also took the case property from the ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 18 of 41 19 spot to the police station and it frustrated the purpose of sealing. This court now has no means to find out whether this document Ex.DW1/A2was supplied to the accused by mistake along with the charge sheet or it was obtained otherwise by the accused.
9.2. In this regard, prosecution's case is that the seal after use was initially handed over to HC Dinesh, but before he left the spot with the case property and rukka, he was asked to hand over the seal to HC Hanuman, which he handed over before he left the spot.
9.3. In the rukka and the report U/s 57 NDPS Act prepared by Inspector Arvind, it is mentioned that seal after use was handed over to HC Dinesh. Even in the seizure memo Ex.PW-4/A, it is so mentioned. The seizure memo and the rukka were prepared by the investigating officer before the seal was directed to be handed over to HC Hanuman, therefore, those documents could not have contained this fact. But then it is not mentioned in the report under section 57 of NDPS Act also. In first brush this fact may create suspicion as to whether the seal, after it was handed over to HC Dinesh was in fact subsequently handed over to HC Hanuman before HC Dinesh left the spot with the case property or not.
9.4. But then even if it is assumed that the seal remained with HC Dinesh, it does not entitle the accused to claim that the case property was necessarily tampered with. HC Dinesh had no reason to tamper with the case property. He took the case property from the spot and gave it to the SHO Inspector Kuldeep PW-11. PW-11 specifically deposed that when ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 19 of 41 20 he received the case property, it was duly sealed with the seal of AKY and then he applied his own seals on the parcels and the FSL form and thereafter deposited them in the Malkhana. The Malkhana register entry Ex.PW-10/A, specifically records that the case property was deposited duly sealed with the seal of AKY and KSY. There is no evidence to indicate that after the case property was given to HC Dinesh, it was tampered with by him. He had no reason to do it. There is no evidence that after the case property was deposited in the Malkhana and till it was received in Lab on 13.04.2011, anybody tampered with it.
9.5. Law does not require that seal after use must always be handed over to independent witnesses. Though as a rule of caution, it has been held that seal after use must be handed over to independent witnesses but mere failing to do it would not render the entire case of prosecution to be thrown out. This fact of not handing over the seal to HC Hanuman by HC Dinesh, in absence of any proof of tampering with the case property, cannot vitiate trial.
9.6. In the case of Jaganath Vs. State of Punjab 1997 Criminal Law Journal 606, on which reliance has been placed by the accused, the parcel which was sealed at the spot was found different from the one which was deposited in the Malkhana and it was found yet different from the one received in the lab. In such circumstances, it was observed that it was improper to hand over the seal to the same officer to whom the case property was also entrusted, particularly when independent public witness was present and available at the spot. The said case is ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 20 of 41 21 distinguishable on the facts. In the present case, I do not have any reason to observe that the parcels which were dispatched from the spot were different from those which were received in the Malkhana or in the lab. Therefore non handing over of seal to independent witness losses significance.
9.7. Reliance is also placed by the accused upon the case of State of Punjab Vs. Nachattar Singh 2007(3) RCR 1040 (Criminal), in which it was held that till the time the case property is dispatched to the lab, the seal should not be available to the prosecution agency and in absence of it, possibility of seal being tampered with and substance being changed and containers being resealed cannot be ruled out. It was held that it is a safeguard which is to be maintained for sanctity of search. This case is also distinguishable on facts. In that case also, there was an independent public witness joined during investigation but despite that the seal remained with sub ordinate police official and thus, it was found to be suspicious. Reliance has also been placed by the accused upon the case of Baldev Singh Vs. State of Punjab 2005 (1) RCR Criminal 823. This judgment is also on the same point as mentioned in Nachattar Singh.
9.8. In the present case, there was no independent witness who joined the proceedings despite request of the police officials and thus the police officials at the spot had no option but to keep the seals with themselves. The fact that seal was not handed over to independent witness and remained with HC Dinesh or HC Hanuman cannot be read in isolation to ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 21 of 41 22 give benefit of it to the accused particularly when this court has no reason as to why the case property would be tampered with. In absence of any logical reason that the prosecution witnesses had some reason to tamper with the case property, I am not prepared to buy the argument of the accused that it was tampered with just to implicate a person who had no enmity whatsoever with the prosecution witnesses.
9.9. Reliance is also placed by the accused in the case of Emma Charlotte Eve Vs. Narcotic Control Bureau 2000 V AD (Delhi) 65 in which the possibility of sample being not tampered was held to be not ruled out in absence of examination of Malkhana moharrar; in absence of production of Malkhana register and; due to non preparation of test memos on the date of seizure. In the present case, Malkhana moharrar has been examined; Malkhana register has been proved and even the FSL form was prepared at the spot, therefore, the judgment relied upon by the accused is distinguishable on the facts.
9.10. Reliance is also placed by the accused on the case of Chameli Devi Vs. State 50 (1993) DLT 439, in which public witness who was also a special police officer known to the sub inspector turned hostile and also the constable who took the sample parcels to CFSL was not certain whether those parcels had one seal impression or both the seal impressions. Also there was noncompliance of Section 50 of NDPS Act. The said case is again distinguishable on the facts and also it does not lay down that if the seal is not handed over to an independent witness in all cases it must result in acquittal. Instead that very judgment in para 7 ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 22 of 41 23 provides that the seal should at least be handed over to some other police officials in the raiding party when there is no public witness available.
9.11. In order to rule out the argument of accused that statement of witnesses U/s 161 Cr.P.C was changed by the investigating officer qua handing over of the seal by HC Dinesh to HC Hanuman, after objections were raised by the prosecution branch, the police file was perused by this court. I have perused the Case Diaries of this case. This court is conscious of the fact that the case diaries cannot be used as evidence in the trial. But Section 172 of Cr.P.C allows use of police diaries to aid the court during enquiry or trial. When some of the documents of prosecution says that the seal was handed over to HC Hanuman before HC Dinesh left the spot, and some of the document says that seal was handed over to HC Dinesh only, it was thought proper to take aid of police diaries, only to the extent of finding out whether any document was changed after the prosecution branch had raised the objections. The CD no.1, which is most material for this part of controversy along with the Inner Case Diaries were perused by this court. The pagination of inner case diaries does not indicate any kind of manipulation in this regard. Instead, the pagination of inner case diaries reveals that no pages of inner case diary were subsequently replaced. One of the inner case diaries contains supplementary statement U/s 161 Cr.P.C of Inspector Arvind Kumar. Thereby meaning that the supplementary statement U/s 161 Cr.P.C of Inspector Arvind Kumar was indeed recorded on 7.4.2011 itself. In the said supplementary statement dated ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 23 of 41 24 7.4.2011, it is specifically mentioned that seal was handed over to HC Hanuman by HC Dinesh before he left the spot with the case property. Thus, I do not find any substance in the contention of accused that the statement of witnesses U/s 161 Cr.P.C was changed by SI Sukhbir Malik after the objection was raised by the Prosecutor qua the seal. It might well be a case where the prosecutor did not go through the file in depth and from the rukka only the said observation about seal remaining with HC Dinesh was mentioned. Rukka was prepared first and then HC Dinesh was asked to handover the seal to HC Hanuman. Therefore this fact is absent in rukka. Anybody who would read the rukka can reach a conclusion that the seal was given to HC Dinesh only, whereas, it was subsequently given to HC Hanuman.
9.12. Not much importance can be given to the stray statement of HC Hanuman to the effect that seal remained with HC Dinesh only till he was at spot and he was not aware as to when the seal was returned to the investigating officer. HC Hanuman was examined in the court on 17.7.2012 i.e. more than one year after the date of occurrence, and his cross-examination could take place only 30.05.2013 i.e. more than two years after the date of incident. It cannot be lost sight of that police officials are witnesses in a large number of cases. Over a period of two years, the witnesses might have been involved and appeared in a large number of cases as witness and it is practically difficult to remember such small details of every case. It is deposed by Insp Arvind Kumar and HC Dinesh that the seal was handed over to HC Hanuman before HC Dinesh left the spot with the case property.
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10. Accused has emphasized a lot on the point that there was delay of six days in sending the sample parcels to the laboratory. Mere delay in sending sample parcels to the laboratory cannot be a ground to presume tampering with the case property. Delay would be material only where suspicion as to tampering with the case property is brought to, or otherwise comes to the notice of court. Where there is absolutely no plausible evidence to indicate tampering with the case property, more particularly in absence of any reason to tamper with the property, mere delay in sending samples to the Lab cannot be fatal to the case of prosecution.
10.1. The prosecution has completed the link evidence of this case by examining all the material witnesses viz., HC Dinesh who took the case property from the spot to the police station; Inspector Kuldeep (PW-11) to whom the case property was handed over by HC Dinesh in the police station; the MHCM HC Jag Narain PW-10 to whom the case property was handed over by Inspector Kuldeep while depositing it in the Malkhana; Ct. Sanjay PW-5, who took the sample parcels with FSL form to the lab from the Malkhana. All these witnesses have completed the link evidence. There is no evidence to suggest that during the time the case property remained in possession of the prosecution witnesses, it was tampered with by anybody. It has also been proved that the FSL form was prepared at the spot, was taken to the police station along with the case property by HC Dinesh, was deposited in the Malkhana by Inspector Kuldeep and was taken from the Malkhana to the lab along with sample parcels by Ct. Sanjay. Neither any of the prosecution ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 25 of 41 26 witnesses had any reason to tamper with the case property nor any such evidence has come on record. Thus, mere delay alone is not sufficient to give benefit to the accused. It is no more res integra that mere delay in sending samples to the laboratory does not vitiate trial.
11. Ld. Counsel for the accused next argued that there was a difference in weight of samples which were drawn at the spot and which were received in the laboratory, therefore, tampering cannot be ruled out. This contention is primarily based on the reply given by PW-4 HC Dinesh Kumar, who deposed that the 12 representative samples of 10 Gms each were weighed after keeping the substance in 12 different small plastic containers. It is argued that the FSL result indicates that the sample parcels were weighing more than 37 Gms each. Accused has also placed reliance upon the case of Anoop Joshi Vs. State 1992 (2) C.C.Cases 314 (High Court).
11.1. Precisely speaking, as per the FSL result, the weight of samples in container no. S1, S3, S5, S7, S9 & S11 were having weight of 38.11 gms, 38.79 gms, 37.57 gms, 39.05 gms, 39.86 gms and 37.15 gms, respectively, with containers. The weight measured by the FSL authorities was along with the jars. The weight of samples done at the spot was not with jars but without jars. Accordingly, when all other prosecution witnesses clearly deposed that the samples drawn were 10 gms each without jar and when there is no evidence to indicate any kind of tampering with the sample parcels, I do not find it justified to unnecessarily attach any importance to a stray statement of PW-4 to the ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 26 of 41 27 effect that samples measured at the spot were without jar or with jar. The document seizure memo and rukka clearly corroborates that the samples of 'heroine' taken were 10 gms each.
11.2. Reliance of accused on the case of Anoop Joshi (supra), does not help the accused. Though in that case it was held that where difference of sample weight was noticed, it would suggest that the sample was not kept untampered, but in that case the Malkhana register did not reflect that any FSL form was deposited with the parcels and also there were material discrepancies in the prosecution case. In that eventuality of the matter, benefit was given to the accused. But in the present case I do not see such material contradiction in the testimony of prosecution witnesses to render it doubtful.
11.3. The contention of accused that HC Dinesh also deposed that the 12 sample parcels were cloth parcels, whereas the case of other witnesses is that the samples were kept in small plastic containers and that the containers were affixed with doctor's tape, is also of no importance in absence of any tampering with the property. While appreciating evidence, it must be kept in mind that when witnesses are examined in the court after substantial period from the date of recovery, some small discrepancies and contradictions are bound to occur. Those small discrepancies and contradictions cannot be given any undue importance or weight.
12. Counsel for accused also argued that neither there is cogent evidence to show that the SHO applied his seal on the FSL form, nor there is any ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 27 of 41 28 evidence to show that the FSL form was sent to the FSL along with the samples.
12.1. There is no force in this contention either. Testimony of PW-10 HC Jag Narain, the Malkhana moharrar, clearly proves that when the FSL form was deposited in the Malkhana along with the case property on 7.4.2011, specimen seals of AKY and KSY were existing on the FSL form also and that when the FSL form was sent to the lab with the sample parcels, on 13.4.2011, through Ct. Sanjay, at that time also the FSL form was bearing same specimen seals of AKY and KSY. During cross examination of this witness, It is nowhere suggested by the accused that the FSL form did not accompany the sample parcels from the Malkhana to the lab.
12.2. PW-11 Inspector Kuldeep also deposed that when all the parcels were produced before him on 7.4.2011 by HC Dinesh, he affixed his seal of KSY on all the parcels as well as the FSL form and thereafter, he deposited the parcels and documents in the Malkhana.
12.3. PW-4 HC Dinesh also specifically deposed that when he handed over the parcels and FSL form to Inspector Kuldeep, Inspector affixed his seal of KSY on all the parcels as well as the FSL form. It is nowhere suggested by the accused in the cross examination of HC Dinesh that the SHO did not affix the seal on the FSL form.
12.4. The entries in Register no.19 proved as Ex.PW-10/A, are the best evidence on this aspect of the matter. It specifically records that the FSL ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 28 of 41 29 form, when deposited in the Malkhana, was indeed containing specimen seal of AKY as well as KSY. What better proof can come than the document itself.
12.5. The FSL result Ex.PW-6/A also specifically records that the FSL form was deposited along with the parcels in the lab and the FSL form was containing seal of KSY and AKY. It is specifically mentioned in the FSL result that the seals on the parcels and the FSL form were tallied and were found to be intact.
12.6. In such circumstances, merely because in the statement U/s 161 Cr.P.C of Inspector Kuldeep, it is not specifically mentioned that the specimen seal was applied on FSL form also, does not raise any reasonable doubt about the specimen seal on the FSL form. Thus, this contention has to be rejected.
13. The contention of accused that PW-4 HC Dinesh at one place in his cross examination deposed that besides the notice U/s 50 NDPS Act, the seizure memo and the rukka, no other document was prepared at the spot, is again without any force and does not go to prove that FSL form was not prepared at the spot.
13.1. In his examination in chief, this witness specifically deposed that FSL form was not only prepared at the spot but also he carried it from the spot to the police station where Inspector Kuldeep also affixed his seal on the FSL form. In the cross examination of this witness conducted on 13.9.2012, he again deposed that FSL form was prepared by the ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 29 of 41 30 investigating officer at the spot. Other witnesses have also categorically deposed that the FSL form was prepared at the spot. Entries in Register no. 19 also corroborate this fact. The rukka and the seizure memo prepared at the spot which were taken to the police station by HC Dinesh along with the FSL form also corroborates the fact that FSL form was prepared at the spot. Thus, this contention is also rejected.
14. The next contention of the accused is that the reports U/s 57 NDPS Act Ex.PW-1/A & B were never submitted. The foundation of this contention is that PW-1 HC Aas Mohammad from the office of ACP concerned deposed in his cross examination that both the reports were handed over to him by SI Sukhbir Malik, whereas,PW-9 Inspector Arvind and PW-12 SI Sukhbir Malik deposed that Ex.PW-1/A was handed over by Inspector Arvind and not by SI Sukhbir Malik.
14.1. U/s 57 of NDPS Act all that is required is that, a report as to all the particulars of arrest or seizure shall be made by the person arresting or seizing the case property to immediate superior official within 48 hours of arrest or seizure. The seizure and arrest of this case is of 7.04.2011. The report Ex.PW-1/A & B were received in the office of ACP on 8.4.2011, as deposed by PW-1 and as is reflected in Ex.PW-1/C. What is important U/s 57 NDPS Act is that such a report must be given to a senior police officer within the stipulated period and it really does not matter as to whether such report is given by hand or by dak or by any other mode. It is immaterial as to who physically hands over the report. It is proved that the report Ex. PW1/A was prepared by Inspector Arvind ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 30 of 41 31 and that the report Ex. PW1/B was prepared by SI Sukhbir Malik. Whether Inspector Arvind physically gave report Ex. PW1/A or it was given by was SI Sukhbir Malik is immaterial. Even otherwise PW-1 was examined in the court 08-09-2011 i.e. more than four months after the reports were received in his office. In absence of any mention in EX PW- 1/C as to who furnished the reports, not much importance can be attached to the version of PW-1 that both reports were given by SI Sukhbir Malik. Thus, this contention has to be rejected.
14.2. When after completion of police custody of accused, he was produced in the court on 13.4.2011, the accused gave an application to the court seeking permission to carry spare clothes in the jail. The said application is Ex.CX. This application is admittedly in the handwriting of accused and bears signature of accused. When this document was put to the accused in his supplementary statement U/s 313 Cr.P.C., the accused in his reply to the question as well as in his evidence as DW1 claimed that this application was got forcibly written and signed from him by the police officials on 12.4.2011. This application does not say that it was tendered by the investigating officer to the court. The order of court simply records that the accused is allowed to carry two sets of clothes with him. Usual practice on such applications are that on the original application itself, order is passed and the original application containing order is handed over to the accused to be taken to the jail authorities so that necessary permission can be given by the jail authorities. Had this application been not filed by the accused, this application ought to have found mention, in the order portion of the court, that it was submitted by ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 31 of 41 32 the investigating officer. The plea of accused that the application was got written from him during police custody and then subsequently the application was made part of charge sheet is belied from the fact that order of court on this very application is of 13.4.2011, whereas, charge sheet of this case was filed on 19.7.2011. Had the accused been coerced to write and sign this application during police custody, the accused should have mentioned about it when he was produced after police custody in the court on 13.4.2011. The accused never apprised the court of any such thing on that day. His subsequent letter of retraction received in the court on 27.4.2011 is nothing but an afterthought. Even in this retraction letter, it is nowhere mentioned that the police officials forced the accused to write down the application in his handwriting and to submit the application in the court. Regarding documents, all that is contained in this retraction letter is that on some blank papers, signatures of accused were taken. But then, Ex.CX is an application which is in the handwriting of the accused. Accused never informed the court that he was made to write any such application. Thus, one thing is clear that this application Ex.CX was written by the accused himself willingly and without any force, and in this application Ex.CX, the accused specifically mentioned that he was apprehended with 'heroin'. This fact also rules out false implication of the accused in possessing 'heroin'.
15. Next contention of the Ld. Counsel for the accused is that no sincere effort was made to join independent witnesses and in this regard, he has taken me through the testimonies of the recovery witnesses as well as ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 32 of 41 33 the investigating officer. He has also placed reliance upon the case of Anoop Joshi (supra).
15.1. It is now fairly settled that merely because independent witnesses are not joined would not render the testimony of police officials as absolutely untrustworthy. If the testimony of police officials is found to be trustworthy, in such circumstances, it can be acted upon even in absence of independent witnesses.
16. The contention of the accused that there are contradictions in the testimony of witnesses in the present case viz.; where exactly the two cars were parked at the spot; the exact time of preparation of each of the documents; the exact time when the subsequent investigating officer reached the spot; the exact place where the documents were prepared, i.e. whether they were prepared on the bonnet of the car or somewhere else and; when did PW-4 HC Dinesh left the spot and reached the police station etc. are all minor and trivial contradictions. These small discrepancies are bound to occur and no two witnesses can virtually speak verbatim. In such circumstances, these contradictions cannot be attached any undue importance.
16.1. Similarly, no unnecessary weight can be given to minor contradictions in the testimony of witnesses to the effect whether the passport was recovered from drawer of table or from a dressing table or as to from where the keys of room of accused was taken to open the locks.
____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 33 of 41 34 16.2. Reliance is placed by the accused on the case of Bhupinder Singh Vs. State of Punjab 2012 (3) JCC (Narcotics) 145 which says that where there is contradiction in the testimony of official witnesses, in such circumstances the statement of such witnesses have to be accepted very cautiously. The said judgment does not help the accused for the reason that the testimony of the witnesses of this case were evaluated by this court minutely particularly in absence of independent witnesses and there is absolutely no reasonable ground for this court to disbelieve the testimony of prosecution witnesses.
17. Not much importance can be attached to a stray statement of PW-8 HC Hanuman Singh who stated that disclosure statement of accused was recorded at the spot. Other witnesses have deposed that disclosure statement of accused was recorded in the office of AATS. It is also argued that if the disclosure of the accused was recorded after 12 in the midnight intervening of 7 & 8 April, 2011, the disclosure should have contained the date of 8.4.2011. Disclosure of accused Ex.PW-12/A is the computer typed statement. Even if the disclosure statement of accused is ignored altogether, it does not affect the decision of this case.
18. It is thus proved beyond reasonable doubt that the accused was found in possession of six kilograms of 'heroin' on the above mentioned date, time and place and therefore he is liable to be convicted U/s 21 of NDPS Act. Under Article 56 of the Schedule appended to the NDPS Act, 1985, small quantity of 'heroin' is prescribed ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 34 of 41 35 as 5 Gms and commercial quantity is prescribed as 250 gms. Thus, accused was in possession of commercial quantity of 'heroin' as he was found in possession of 6 Kgs of 'heroin'. The conviction of the accused thus has to be U/s 21(c) of NDPS Act of 1985.
19. Turning to the charge under section 14 of Foreigner's Act 1946 and under section 420 and 468 of IPC, it is not denied by the accused that the passport Ex.PW-7/1belongs to him. Rather, he admitted that this passport was taken from his tenanted premises.
19.1. Tilak Raj admitted his signatures on the seizure memo of passport Ex.PW-7/C. He even admitted that he signed this document on the day when police came to his house and recovered some articles from room of accused. This document Ex.PW-7/C does not contain any over writing or cutting or manipulation at any place as to the date. Tilak Raj also admitted that on the seizure memo of mobile phone dated 12.4.2011 Ex.PW-7/D, his signatures exists which also he signed on the same day. He even admitted his signatures on the seizure memo Ex.PW-7/A regarding seizure of information of tenant. All these three documents Ex.PW-7/A, C & D bears the date of 12.4.2011 with no over writing, cutting or change of date. These documents indeed reflect that the passport in question was recovered not on 7.4.2011 but on 12.4.2011.
19.2. The claim of accused that the passport was taken on 7.4.2011 and not on 12.4.2011, is immaterial as it does not effect the decision that the passport belongs to the accused. For the sake of arguments, even if it is assumed that passport of accused was taken by the police on 7.4.2011 ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 35 of 41 36 and not on 12.4.2011, still the fact remains that the passport belongs to the accused.
19.3. The defence of the accused that when this passport was recovered, it was not bearing any forged visa no. AF622814, is again fallacious for the reason that in Ex.PW-7/C which Tilak Raj signed on 12.4.2011 clearly mentions that at the time of recovery of passport, it was containing this visa. Subsequently, this visa was found to be forged. Had the passport been not containing this visa, there was no occasion for the visa number with date of issue and expiry finding mention on the seizure memo Ex.PW-7/C. The very fact that the visa number and its detail was mentioned in the seizure memo at the time when the independent public witness Tilak Raj signed this document clearly supports the prosecution that this visa was already affixed in the passport of accused. It is not even suggested by the accused to Tilak Raj that he signed blank papers or that the visa was not there when the passport was recovered.
19.4. The claim of accused that there was one more passport recovered from his house which was misappropriated by the police, is false on the face of it. This fact is proved from the circumstances that the accused never came up with the copy of passport or the number of said passport throughout the trial of this case. He never summoned the concerned authorities to prove that he was holding any such passport other than Ex.PW-7/1. Had the accused really been in possession of any other passport other than Ex.PW-7/1, he could have summoned the concerned officials to prove that he had any such passport. The plea of ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 36 of 41 37 accused that his passport was misappropriated by the police does not inspire any confidence for the reason that not even in the seizure memo Ex.PW-7/C, there is no such mention of any other passport other than Ex.PW-7/1. Also police has no reason to conceal or misappropriate the passport of accused. Accused was not holding any other passport then the one recovered from his house is also clear from Ex. PW7/2. This document is admitted by the accused. It is a letter of identification of accused, bearing his photograph, issued by High Commission of Nigeria, New Delhi. This letter finds mention of only one passport no. A 2610858, which was containing Visa no. AF 622814. This document of accused is silent about any other passport of accused. It thus belies the version of accused.
19.5. Accused also contends that had the police visited house of accused on 12.4.2011, there was no occasion for the prosecution branch to have raised a point in Ex.DW1/A2 to the effect that as to why house of accused was not searched. Ex.DW1/A2 does not lead this court to believe that the police did not visit the house of accused on 12.4.2011. Particularly when independent witness Tilak Raj deposed that police visited house of accused.
19.6. In a charge U/s 14 of Foreigner's Act 1946, the onus is actually on the accused to show that he was staying in India with valid documents. If such plea, as is raised by the accused, were to hold water then virtually in no case U/s 14 of the Foreigner's Act, 1946 any conviction can take place, because it would be very easy for an accused to claim that the ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 37 of 41 38 police took his valid documents and did not produce them before the court. After all police needs to have some reasonable motive to do it, which is lacking in this case.
19.7. From the above discussion, one thing is very clear that passport Ex.
PW-7/1 was recovered from the house of accused and at that time, it was containing Visa No. AF622814. The said Visa was found to be forged Visa and the prosecution in this regard has proved an email received from High Commission of India, at Lagos as Ex. PW-13/B. Certificate U/s.65B of Indian Evidence Act in support of this email generated copy is proved as Ex. PW-13/C. 19.8. The accused has challenged the certificate under section 65B of Evidence Act. It is argued that the executor of the certificate did not come to the court to prove the certificate. PW-13 specifically deposed that the certificate is signed by Smt. Deepa Jain and she had taken the printout of the email. She deposed that she was conversant with signatures of Smt. Deepa Jain as she had seen her writing and signing during the course of official duties. She also deposed that though besides Smt. Deepa Jain one more person used to send and receive mails but both of them had different computers systems. Under section 65B it is not necessary that oral evidence can be accepted only when given by a person who is qualified to sign the certificate. Form the evidence of PW-13 it cannot be said that the computer in question had any malfunction or inaccuracy. No such suggestion has been given by the accused to the witness. Although the witness did not make a positive ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 38 of 41 39 statement that the computer was working properly during the relevant period but it is implicit in the testimony of PW-13.
19.9. However, one thing is very clear in the facts and circumstances discussed above, that there is no evidence whatsoever that the accused used this forged Visa on his passport in cheating anybody. It is not the case of prosecution that any of the prosecution witnesses were induced dishonestly by the accused while using the forged Visa. It is also not the case of the prosecution that the accused used the forged Visa in presence of any of the prosecution witnesses. The forged Visa inside the passport of accused was found in his house. There is however absolutely no evidence to suggest that the accused forged this Visa. In such circumstances, charge U/s.420 of IPC and Section 468 of IPC against the accused cannot sustain. In the given facts and circumstances, at the most, a charge U/s.474 of IPC could have been framed. But charge under that Section was not framed and instead the accused was charged U/s 420 & 468 of IPC.
19.10. U/s 222 of Criminal Procedure Code, when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a minor offence and such combination is proved but the remaining particulars are not proved, an accused can be convicted for the minor offence though he may not have been charged for such an offence. Sub-section 2 of this section clearly provides that where a person is charged for an offence and facts are proved which reduce it to a minor offence, such person can be convicted for a minor offence even ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 39 of 41 40 though he was not charged for the said minor offence. Section 474 of IPC prescribes punishment for possessing any document and intending to use that document as genuine, where the document is one described in Section 466 or 467 of IPC. In the present case, accused was charged for offence U/s 468 of IPC for forgery for the purposes of cheating. Visa is a 'valuable security' within the definition of Section 30 of Indian Penal Code and therefore, if at all charge of forgery was to be framed against the accused; it should have been under section 467 of IPC and not section 468 of IPC. Had the accused been charged for offence under section 467 of IPC, he could have been convicted under section 474 of IPC with the aid of section 222 of Code of Criminal procedure, being a lesser offence then section 467 IPC. But no charge was framed U/s 467 of IPC against the accused. In such circumstances, the accused cannot even be convicted for offence U/s 474 IPC.
19.11. Even if it is assumed that the prosecution did not prove the certificate under section 65B as per requirements of sub sec 2 of that section, but then the accused himself denied that the visa in question did not exist in his passport when it was recovered from his house. Thus even if it is assumed that the visa is not forged, the accused was without any valid document of stay in India. He has not proved that he had any other visa on that day, besides the visa in question. The accused has not discharged the onus that he had any valid document of his stay in India. Thus the facts discussed above clearly prove that the accused was found present in India without any valid document of his stay and ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 40 of 41 41 therefore, he is liable to be convicted U/s 14of the Foreigner's Act, 1946.
20. In the facts and circumstances the accused is acquitted for offence under section 420 & 468 of IPC, but is convicted under section 21(c) of NDPS Act of 1985 and also under section 14 of the Foreigner's Act 1946.
Announced in the open court on 22nd October, 2013.
Dig Vinay Singh Spl.Judge: NDPS/ASJ Rohini Courts/Delhi ____________________________________________________________________________________________________________________________________________________________ SC No. 91/11 FIR No. 95/11 Dtd: 22-10-2013 Pg. 41 of 41