Delhi District Court
State vs . Okwy on 6 December, 2022
IN THE COURT OF SH. DEEPAK WASON:
SPL. JUDGE (NDPS): DWARKA COURTS: NEW DELHI
SC No. 700/2019
FIR No. 298/2019
U/s. 21 (b) NDPS Act & 14 Foreigners Act
PS: Mohan Garden
State vs. Okwy
Date of Institution of case:-18.09.2019
Date of arguments:-06.12.2022
Date on which Judgment pronounced:-06.12.2022
JUDGMENT
CNR No. :DLSW01-010774-2019
Date of commission of offence :24.07.2019
Name of complainant :HC Dharambir
No. 479/DW (PIS No.28980357)
PS Mohan Garden, District Dwarka,
New Delhi
Name and address of accused :Okwy, S/o Sh. Obi
Permanent Address:
Village Kalaba, State Imo, Nigeria
Present Address:
R/o B-3, Upper Ground Floor,
Udai Vihar, near Chander Vihar,
Delhi
Offence complained of :21 (b) of the NDPS Act &
14 Foreigners Act
Plea of accused :Pleaded not guilty
Date of order :06.12.2022
Final order :Convicted U/s. 21 (b) NDPS Act &
Acquitted U/s. 14 Foreigners Act
SC No. 700/2019 State Vs. Okwy Page 1 of 32
BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 24.07.2019, HC Dharambir along with Ct. Dinesh were performing vehicle checking duty at Kakrola Picket vide DD No. 44B and at about 9:45pm, one scooty bearing registration No. DL-4SBY-8842 white colour came from Nala side towards Picket and one foreigner was driving the said scooty and on suspicion, he was stopped and asked for document for the scooty but he did not produce any document and on checking the said scooty, one white colour polythene was recovered from the dikky of the said scooty and after further checking, the same was found brownish colour drug substance. It is further the case of the prosecution that on inquiry, name of that person was revealed as Okwy and in the meantime, accused Okwy tried to run away from the spot but accused was apprehended by HC Dharambir with the help of police staff and on inquiry, accused disclosed that the recovered substance was heroin and he was going for delivery of heroin, upon which HC Dharambir informed the Duty Officer and requested for sending field testing kit and after that, SI Jagbir reached at the spot along with field testing kit and thereafter, HC Dharambir produced accused and recovered substance before SI Jagbir. It is further the case of prosecution that thereafter, SI Jagbir interrogated the accused and requested some passersby to join the investigation but all of them left the spot without disclosing their names and addresses. It is further the case of the prosecution that thereafter, SI Jagbir apprised the legal rights SC No. 700/2019 State Vs. Okwy Page 2 of 32 to the accused, however, the accused refused the search of a police party or to be searched before the Gazetted Officer. Thereafter, SI Jagbir prepared a Notice under Section 50 of the NDPS and served upon the accused and took the reply of accused on the same. It is further the case of prosecution that in his reply, accused replied that "the drug which was in my possession has already been recovered, hence, I do not want to get my search by any Magistrate or Gazette Officer and also not want to search police party and police vehicle". It is further the case of the prosecution that thereafter, SI Jagbir checked the recovered substance and on weighing the same, it was found to be 30 grams of heroine, out of which SI Jagbir took two samples of 5 grams each and separately kept in transparent polythene duly tied with the white cloth and marked the same and converted into pulandas and remaining Heroine was kept in the same white colour polythene and converted into another pullanda with the help of white cloth and same was also marked. It is further the case of prosecution that thereafter, all the three pulandas were sealed with the seal of 'JK' and filled FSL form having the seal impression of 'JK' and seized the case property and scooty and after use, seal was handed over to ASI Ajeet. It is further the case of the prosecution that thereafter, SI Jagbir prepared the tehrir under Section 21 of the NDPS Act, and handed over the same to Ct. Dinesh along with all three sealed pulandas, FSL Form, a carbon copy of seizure memo for the registration of the FIR and proceedings under Section 55 of the NDPS Act. It is further the case of SC No. 700/2019 State Vs. Okwy Page 3 of 32 prosecution that on 25.07.2019 at about 1:30 a.m, Ct. Dinesh produced three sealed case property along with copy of seizure memo and FSL form before the concerned SHO and all 3 sealed parcels and FSL form were counter sealed by the SHO and concerned SHO handed over all the sealed parcel, FSL form and carbon copy of seizure memo to MHC(M) for depositing the same in the malkhana and in this regard entry was also made in register No. 19 and lodged DD entry regarding depositing of case property in malkhana under compliance of Section 55 of NDPS Act.
2. After the registration of FIR, Ct. Dinesh returned to the spot and handed over the copy of the FIR and original tehrir to SI Jagbir. Thereafter, SI Jagbir prepared the site plan at the instance of HC Dharambir and after the interrogation, arrested the accused, recorded his disclosure statement, and conducted his personal search. Thereafter, SI Jagbir got conducted the medical examination of the accused and after the medical examination, accused was sent to lock up and thereafter, SI Jagbir recorded the statement of witnesses and sent intimation under Section 57 of NDPS Act to ACP Najafgarh by SHO.
3. It is further the case of prosecution that on 05.08.2019, SI Jagbir sent a letter to High Commissioner of Nigeria regarding arrest of accused and also sent a letter to DCP/Director to FRRO, R.K. Puram, New Delhi regarding arrest of accused and collected certified copy of SC No. 700/2019 State Vs. Okwy Page 4 of 32 scooty bearing registration No. DL-4SBY-8842 from the Transport Authority, Janak Puri. It is further the case of prosecution that on 01.08.2011, samples were sent to FSL Rohini through Ct. Hardev and after depositing the same, Ct. Hardev handed over the received copy of RC and acknowledgement to MHC(M). After that, SI Jagbir prepared the charge-sheet and sent to the Court. It is further the case of prosecution that on 02.10.2019, on receiving the result from FSL, same was filed before the Court through supplementary charge-sheet.
4. Vide order dated 04.10.2019, the charge for the offences under Section 21 (b) of the NDPS Act and 14 of the Foreigners Act, 1946 was framed against the accused on the allegations that accused was found in possession of 30 gms of Heroin and being a Nigerian national, he was found without any valid visa or authority for stay in India to which he pleaded not guilty and claimed trial.
5. The prosecution examined 14 witnesses in support of its case who are as follows:-
6. PW-1 is Head Constable Mahesh. He was the Duty Officer and has proved the FIR as Ex.PW1/A and endorsement on the rukka as Ex.PW1/B and his certificate under Section 65B of Indian Evidence Act regarding the computerized copy of FIR as Ex.PW1/C. This witness was SC No. 700/2019 State Vs. Okwy Page 5 of 32 not cross-examined by the Ld. Defence counsel.
7. PW-2 is ASI Dharambir. He was posted as a Head Constable at PS Mohan Garden and on that day, he along with ASI Ajit and Ct. Dinesh were present at Ganda Nala, Kakrola Mode on Picket duty vide DD No. 4 B (Mark X) and they started checking the vehicles after putting barricade, at about 9:45pm, one foreigner came on scooty bearing No. DL 4SBY-8842 and on suspicion, he was stopped and asked for document for the scooty, but he did not produce any document of scooty. He has further deposed that thereafter, they checked the scooty and during checking, one white colour polythene was recovered from the dikky of the scooty and found brownish colour drug substance. He has further deposed that on inquiry, the name of accused was revealed as Okwy and accused was apprehended by him with the help of police staff. He has further deposed that thereafter, accused disclosed that the recovered substance was heroin and he was going for delivery of heroin and thereafter, he informed the duty officer and requested for field test kit. He has further deposed that thereafter, SI Jagbir reached at the spot along with field testing kit and thereafter, he produced the accused and recovered substance before SI Jagbir. He has further deposed on the lines of PW-11 SI Jagbir. This witness was cross-examined by Ld. defence counsel.
SC No. 700/2019 State Vs. Okwy Page 6 of 328. PW-3 is HC Narender. He is the MHC(M) and has proved the entry made at serial no. 266 in register no.19 as Ex. PW3/A, copy of RC No. 177/21/19 as Ex.PW3/B and copy of the receipt as Ex.PW3/C. This witness was not cross-examined by Ld. defence counsel.
9. PW-4 is HC Jitender. He was the Duty Officer at PS Palam Village and has deposed that on that day, he recorded departure entry vide DD No.44B dated 24.07.2019 and has proved DD No.22A as Ex.PW4/A. He has further deposed that he was informed by HC Dharambir that one foreigner national was apprehended with drugs and said information was recorded by him vide DD No.48B dated 24.07.2019 as Ex.PW4/B. This witness was also not cross-examined by the Ld. defence counsel.
10. PW-5 is HC Dinesh. He is one of the members of raiding team and has deposed on the lines of IO/SI Jagbir and PW-2 ASI Dharambir. This witness was also cross-examined by Ld. Defence counsel.
11. PW-6 is Sh. Manish, Jr. Assistant from the office of Transport Department, Janakpuri. He has proved the original record of scooty bearing No. DL-4SBY-8842 which was registered in the name of Lalhminghlui as Ex.PW6/1. This witness was not cross-examined by Ld. defence counsel.
SC No. 700/2019 State Vs. Okwy Page 7 of 3212. PW-7 is Head Constable Naresh. He has deposed that on 29.07.2019, he collected the samples from MHC(M) vide RC No. 111/21/2019 for depositing the same in FSL Rohini. He has further deposed that however, on that day, samples were not depositing in FSL Rohini due to objection. This witness was also cross-examined by Ld. defence counsel.
13. PW-8 is Constable Hardev Singh. He has deposited the samples as well as FSL form of the present case on 01.08.2019 at FSL Rohini vide RC No. 117/21/2019 as Ex.PW3/B and after depositing the same, handed over the acknowledgement of case acceptance as Ex.PW3/C to MHC(M). He has deposed that till the case property and FSL form remained in his custody, the same was not tampered with. This witness was also cross-examined by the Ld. defence counsel.
14. PW-9 is Inspector Baljit Singh. He has deposed that on 25.07.2019, he was posted as SHO PS Mohan Garden, and on that day, at about 1:30am, Ct. Dinesh and Duty Officer came to his office and informed him that on the basis of rukka which was brought by Ct. Dinesh, duty officer made kayami on the rukka and got registered the case FIR No. 298/2019 and produced 3 sealed pulandas and FSL form duly sealed with the seal of 'JK' as well as copies of seizure memo before him and on checking, he counter-sealed the same with the seal of BS. He SC No. 700/2019 State Vs. Okwy Page 8 of 32 has further deposed that thereafter, he called MHC(M) CP to his office along with register No. 19 and handed over the case property and seizure memo to him and got entered the detail of seizure memo in register no. 19 and also signed the same as Ex.PW3/A. This witness was also cross- examined by the Ld. defence counsel.
15. PW-10 is Sh. Rajan Jasuja. He has deposed that his wife namely Monika Jasuja is the owner of H.No. 1077, Akshar Dham Apartments, Pocket-3, Sector-19, Dwarka and he used to look after the above said flat. He has further deposed that he does not know the lady Lalhminghlui and even he and his wife gave the above said flat on rent to the said lady namely Lalhminghlui. He has further deposed that he also did not know how the vehicle no. DL-4SBY-8842 was registered on his address. He has further deposed after seeing the document Ex. P-6/1 that it is a forged document and he did not know how his address has been shown in Ex. P-6/1. This witness was also not cross-examined by the Ld. defence counsel.
16. PW-11 is SI Jagbir. He has deposed that on 24.07.2019, he was posted at PS Mohan Garden as Sub-Inspector and on that day, on receiving DD No.48-B as Ex. PW4/B, he reached at the spot i.e Kakrola Picket, Mohan Garden along with IO kit and field test kit, where he met ASI Dharamvir along with ASI Ajit, Ct. Dinesh and accused namely SC No. 700/2019 State Vs. Okwy Page 9 of 32 Okwy and ASI Dharambir produced the accused before him. He has further deposed that thereafter, on inquiry accused disclosed that the recovered substance was heroin and he was going for delivery of heroin and interrogated the accused and requested 4-5 public persons to join the investigation but all refused to same and left the spot without disclosing their names and addresses. He has further deposed that he informed the accused about his legal rights that his search can be taken in the presence of any Magistrate or Gazetted officer and also apprised the accused that before his search, the accused can take the search of the police party and police vehicle. He has further deposed that thereafter, he prepared and served notice under Section 50 of NDPS Act to the accused and took his reply on the carbon copy of notice of under Section 50 of NDPS Act on which he replied that "the drug which was in my possession has already been recovered, hence I do not want to get my search by any Magistrate or Gazette officer and also not want to search police party and police vehicle" and carbon copy of notice under Section 50 of NDPS Act is Ex.PW2/A and reply of notice under Section 50 of NDPS Act of accused is Ex.PW2/B. He has further deposed that thereafter, he checked the recovered substance through Field Test Kit and same was found Heroin and weighed the recovered heroine with the help of Electronic Weighing Machine and the weight of heroin was found 30 grams and thereafter, he took two samples of 5 grams each and separately kept in a transparent polythene duly tied with white cloth and marked as Mark S1 and S2 and SC No. 700/2019 State Vs. Okwy Page 10 of 32 converted the same into pullandas. He has further deposed that thereafter, remaining 20 grams heroin was kept in the same white colour polythene and converted the same into pullanda with the help of white cloth and marked as Mark A. He has further deposed that thereafter, all 3 pullandas sealed with the seal of 'JK' and thereafter, FSL form was filled and same was having the seal impression of 'JK and thereafter, he seized the case property vide seizure memo already Ex.PW2/C and also seized the scooty bearing registration no. DL4SBY8842 vide seizure memo already Ex.PW2/D and seal after use was handed over to ASI Ajit. He has further deposed that thereafter, he prepared a rukka under Section 21 of NDPS Act as Ex. PW-11/A and handed over the same to Ct. Dinesh along with FSL Form, carbon copy of seizure memo and all 3 sealed pullandas for registration of FIR and proceedings under Section 55 of NDPS Act. He has further deposed that after registration of the FIR, Ct. Dinesh returned back at the spot and handed over the copy of FIR and original rukka to him and thereafter, he prepared site plan at the instance of ASI Dharambir as Ex.PW-2/E. He has further deposed that thereafter, he arrested the accused as Ex.PW2/F and recorded the disclosure statement of the accused vide memo as Ex.PW-2/G and Personal search of accused was conducted as Ex.PW-2/H. He has further deposed that during the personal search of accused, one mobile phone (make Nokia) of black colour and original notice under Section 50 NDPS Act were recovered. He has further deposed that thereafter, he got conducted the medical examination SC No. 700/2019 State Vs. Okwy Page 11 of 32 of accused and thereafter, accused was sent to lock-up and thereafter, he recorded the statement of all the witnesses. He has further deposed that thereafter, Intimation under Section 57 NDPS Act regarding recovery of heroin and arrest of accused was sent to ACP Najafgarh by SHO as Mark X. He has further deposed that on 05.08.2019, he sent a letter to High Commission of Nigeria regarding the arrest of accused in the present case as Ex. PW-11/B and also sent a letter to DCP/Director to FRRO, R.K. Puram, New Delhi regarding arrest of accused as Ex.PW-11/C. He has further deposed that thereafter, he collected the certified copy of scooty bearing registration no. DL-4SBY-8842 from the transport authority, Janakpuri Delhi as Ex.PW-6/1. He has further deposed that on 01.08.2011, Ct. Hardev collected the exhibits from MHC(M) for depositing the same in FSL Rohini on his instructions and after depositing the same, he handed over the received copy of RC no. 117/19/21 and acknowledgment to the MHC(M) and thereafter, he prepared the charge sheet and sent to the Court. He has further deposed that on 02.10.2019, after receiving FSL result, same was filed before the Court through supplementary charge sheet as Ex. PW-11/D. This witness was cross- examined by the accused on the same day i.e 04.04.2022. Ld. defence counsel has not moved any application for cross-examining this witness.
17. PW-12 is ASI Ajeet Singh. He is one of the members of raiding team and has deposed on the same lines of PW-11 SI Jagbir and SC No. 700/2019 State Vs. Okwy Page 12 of 32 PW-2 ASI Dharambir. This witness was also cross-examined by the Ld. defence counsel.
18. PW-13 is SI Kailash Chand. He was posted as Reader to ACP and has proved the intimation under Section 57 of the NDPS Act as Ex.PW-13/A and receipt of report vide entry at Srl. No. 3068 as Ex.PW13/B. This witness was cross-examined by the Ld. defence counsel.
19. PW-14 is Dr. Kavita Goyal, Assistant Director (Chemistry), FSL Rohini, New Delhi. She has proved the FSL result as Ex. PW-14/A. She has deposed that she prepared a detailed report of examination and during chemical examination, exhibit was found to contain Diacetylmorphine along with other salts. This witness was also cross-examined by the Ld. defence counsel.
20. It is a matter of record that during the trial, prosecution evidence was closed vide order dated 17.10.2022 and on 01.11.2022, statement of accused under Section 313 Cr.P.C was recorded whereby all the incriminating evidence was put to the accused to which he stated that he is innocent and has been falsely implicated in the present case. During the recording of the statement, the accused did not wish to lead defence evidence and matter was posted for final arguments.
SC No. 700/2019 State Vs. Okwy Page 13 of 32ARGUMENTS OF DEFENCE:
21. 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. It 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. Ld. counsel has further argued that non-joinder 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
22. 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 cross- examination of PWs to dis-credit them and their deposition is believe- worthy. It is further submitted by Ld. Addl. PP for the State that testimony of police official cannot be treated with suspicion merely SC No. 700/2019 State Vs. Okwy Page 14 of 32 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 Court should rely upon the same. Ld. Addl. PP for the State has further argued that all the compliance have been made.
23. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
FINDINGS:
24. The records of the present case reveals that the accused stands charged for the conscious possession of an intermediate quantity of contraband i.e. 30 grams of Heroin kept in a dickey & 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 SC No. 700/2019 State Vs. Okwy Page 15 of 32 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 30 gms of heroin kept in a dickey of his scooty bearing no. DL-4SBY-8842.
25. 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 PW-2 ASI Dharambir & PW-11 SI Jagbir. PW-2 ASI Dharambir is the complainant and has deposed that on 24.07.2019, he was posted at PS Mohan Garden as a Head Constable and on that day, he along with ASI Ajit and Ct. Dinesh were present at Ganda Nala, Kakrola Mode on Picket duty vide DD No. 4 B (Mark X) and they started checking the vehicles after putting barricade, at about 9:45pm, one foreigner came on scooty bearing No. DL 4SBY- 8842 and on suspicion, he was stopped and asked for document for the scooty, but he did not produce any document of scooty. He has further deposed that thereafter, they checked the scooty and during checking, one white colour polythene was recovered from the dikky of the scooty and found brownish colour drug substance. He has further deposed that on inquiry, the name of accused was revealed as Okwy and accused was apprehended by him with the help of police staff. He has further deposed SC No. 700/2019 State Vs. Okwy Page 16 of 32 that thereafter, accused disclosed that the recovered substance was heroin and he was going for delivery of heroin and thereafter, he informed the duty officer and requested for field test kit. He has further deposed that thereafter, SI Jagbir reached at the spot along with field testing kit and thereafter, he produced the accused and recovered substance before SI Jagbir. He has further deposed on the lines of PW-11 SI Jagbir. This witness was cross-examined by Ld. defence counsel.
26. Now, I would discuss the testimony of PW-11 SI Jagbir who is the IO of the case and has deposed that 24.07.2019, he was posted at PS Mohan Garden as Sub-Inspector and on that day, on receiving DD No.48-B as Ex. PW4/B, he reached at the spot i.e Kakrola Picket, Mohan Garden along with IO kit and field test kit, where he met ASI Dharamvir along with ASI Ajit, Ct. Dinesh and accused namely Okwy and ASI Dharambir produced the accused before him. He has further deposed that thereafter, on inquiry accused disclosed that the recovered substance was heroin and he was going for delivery of heroin and interrogated the accused and requested 4-5 public persons to join the investigation but all refused to same and left the spot without disclosing their names and addresses. He has further deposed that he informed the accused about his legal rights that his search can be taken in the presence of any Magistrate or Gazetted officer and also apprised the accused that before his search, the accused can take the search of the police party and police vehicle. He SC No. 700/2019 State Vs. Okwy Page 17 of 32 has further deposed that thereafter, he prepared and served notice under Section 50 of NDPS Act to the accused and took his reply on the carbon copy of notice of under Section 50 of NDPS Act on which he replied that "the drug which was in my possession has already been recovered, hence I do not want to get my search by any Magistrate or Gazette officer and also not want to search police party and police vehicle" and carbon copy of notice under Section 50 of NDPS Act is Ex.PW2/A and reply of notice under Section 50 of NDPS Act of accused is Ex.PW2/B. He has further deposed that thereafter, he checked the recovered substance through Field Test Kit and same was found Heroin and weighed the recovered heroine with the help of Electronic Weighing Machine and the weight of heroin was found 30 grams and thereafter, he took two samples of 5 grams each and separately kept in a transparent polythene duly tied with white cloth and marked as Mark S1 and S2 and converted the same into pullandas. He has further deposed that thereafter, remaining 20 grams heroin was kept in the same white colour polythene and converted the same into pullanda with the help of white cloth and marked as Mark A. He has further deposed that thereafter, all 3 pullandas sealed with the seal of 'JK' and thereafter, FSL form was filled and same was having the seal impression of 'JK and thereafter, he seized the case property vide seizure memo already Ex.PW2/C and also seized the scooty bearing registration no. DL4SBY8842 vide seizure memo already Ex.PW2/D and seal after use was handed over to ASI Ajit. He has further deposed that thereafter, SC No. 700/2019 State Vs. Okwy Page 18 of 32 he prepared a rukka under Section 21 of NDPS Act as Ex. PW-11/A and handed over the same to Ct. Dinesh along with FSL Form, carbon copy of seizure memo and all 3 sealed pullandas for registration of FIR and proceedings under Section 55 of NDPS Act. He has further deposed that after registration of the FIR, Ct. Dinesh returned back at the spot and handed over the copy of FIR and original rukka to him and thereafter, he prepared site plan at the instance of ASI Dharambir as Ex.PW-2/E. He has further deposed that thereafter, he arrested the accused as Ex.PW2/F and recorded the disclosure statement of the accused vide memo as Ex.PW-2/G and Personal search of accused was conducted as Ex.PW- 2/H. He has further deposed that during the personal search of accused, one mobile phone (make Nokia) of black colour and original notice under Section 50 NDPS Act were recovered. He has further deposed that thereafter, he got conducted the medical examination of accused and thereafter, accused was sent to lock-up and thereafter, he recorded the statement of all the witnesses. He has further deposed that thereafter, Intimation under Section 57 NDPS Act regarding recovery of heroin and arrest of accused was sent to ACP Najafgarh by SHO as Mark X. He has further deposed that on 05.08.2019, he sent a letter to High Commission of Nigeria regarding the arrest of accused in the present case as Ex. PW- 11/B and also sent a letter to DCP/Director to FRRO, R.K. Puram, New Delhi regarding arrest of accused as Ex.PW-11/C. He has further deposed that thereafter, he collected the certified copy of scooty bearing SC No. 700/2019 State Vs. Okwy Page 19 of 32 registration no. DL-4SBY-8842 from the transport authority, Janakpuri Delhi as Ex.PW-6/1. He has further deposed that on 01.08.2011, Ct. Hardev collected the exhibits from MHC(M) for depositing the same in FSL Rohini on his instructions and after depositing the same, he handed over the received copy of RC no. 117/19/21 and acknowledgment to the MHC(M) and thereafter, he prepared the charge sheet and sent to the Court. He has further deposed that on 02.10.2019, after receiving FSL result, same was filed before the Court through supplementary charge sheet as Ex. PW-11/D. This witness was cross-examined by the accused on the same day i.e 04.04.2022. Ld. defence counsel has not moved any application for cross-examining this witness. These witnesses were cross- examined by the Ld. defence counsel/accused. Nothing contrary has come in their cross-examination also. Several suggestions were put to these witnesses which they denied.
27. To support the version of PW-11 IO/SI Jagbir, the prosecution also examined PW-2 ASI Dharambir, PW-5 HC Dinesh and PW-12 ASI Ajit, who were on picket duty and have deposed on the same lines as that of PW-11 IO/SI Jagbir.
28. As far as other witnesses are concerned, PW-1 HC Mahesh is the formal witness as he is the Duty Officer who got the FIR registered in the present case as Ex.PW-1/B. PW-3 HC Narender is the MHC(M) SC No. 700/2019 State Vs. Okwy Page 20 of 32 and has proved the entry made at serial no. 266 in register no. 19 as Ex. PW-3/A and copy of road certificate as Ex. PW-3/B and receipt/acknowledgment of case acceptance as Ex. PW-3/C. PW-4 HC Jitender is also the Duty Officer who has proved the DD No.44B dated 24.07.2019 with regard to the departure entry made by ASI Ajit, HC Dharambir and Ct. Dinesh as Ex. PW-4/A and DD No.48B dated 24.07.2019 as Ex. PW-4/B. PW6 Sh. Manish is the Jr. Assistant from the office of Transport Department, Janakpuri, Delhi and has proved the certified copy belonging to the scooty bearing no. DL4SBY 8842 as Ex. PW-6/1. PW-7 is HC Naresh and on the directions of the IO, he collected the samples from MHC(M) vide RC no.111/21/2019 for depositing the same in FSL Rohini, however, the same were not deposited due to objection. PW-8 is Constable Hardev Singh and on the directions of the IO, he collected the samples from MHC(M) vide RC no. 117/21/2019 as Ex.PW-3/B and deposited the same in FSL Rohini and handed over the receipt to MHC(M) as Ex. PW-3/C. PW-9 Inspector Baljit Singh is SHO PS Mohan Garden and he has deposed about the compliance of 55 of the NDPS Act. PW-10 Sh. Rajan Jasuja is the owner of the vehicle no. DL-4SBY-8842. PW-14 Ms. Kavita Goyal, Assistant Director, FSL and she has proved her report as Ex. PW-14/A which shows that Ex. S-1 was found containing Diacetylmorphine, Caffeine, Acetaminophen, Dextromethorphan, Acetylcodeine & 6- Monoacetylmorphine.
SC No. 700/2019 State Vs. Okwy Page 21 of 3229. All the witnesses were cross-examined by the Ld. defence counsel/accused but Ld. defence counsel/accused 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 cross-examination to discredit them as nothing contrary has come in their cross-examination conducted by counsel for the accused and the contradictions in the testimony of material witnesses are minor and natural and it does not affect the case of the prosecution and nothing has come in the cross-examination of witnesses to dis-credit them and their deposition is believe-worthy. 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 chaff-when chaff can be separated from the grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove the guilt of other accused persons-falsehood 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".
SC No. 700/2019 State Vs. Okwy Page 22 of 3230. 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.
31. The present case is a case of recovery of an intermediate quantity i.e 30 grams of heroin. No reason has been shown by the accused to falsely implicate him in the present case.
32. 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 30 grams of Heroin in a dickey of his scooty bearing no. DL-4SBY-8842. On considering the facts available on record, the document, testimony of witnesses after detailed scrutiny, no doubt remain that accused was in conscious possession of Heroin.
33. The Ld. counsel for accused has argued that the notice under Section 50 NDPS Act, Ex. PW-2/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. PW-2/A i.e SC No. 700/2019 State Vs. Okwy Page 23 of 32 notice under Section 50 of NDPS Act was served upon the accused whereby he was apprised about his legal rights.
34. 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.
35. 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 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 SC No. 700/2019 State Vs. Okwy Page 24 of 32 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 non-compliance with 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 SC No. 700/2019 State Vs. Okwy Page 25 of 32 specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made.
36. 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.
37. 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 NDPS Act Ex. PW-2/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 SC No. 700/2019 State Vs. Okwy Page 26 of 32 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.
38. 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.
39. The prosecution has completed the link evidence in this case by examining all the material witnesses namely HC Dinesh (PW-5), who took the case property along with the rukka from the spot to the police station; Inspector Baljit Singh (PW-9) to whom the case property was handed over by Ct. Dinesh and same was deposited by PW-9 in the malkhana after counter-sealing the same and in this regard, entry was also made in register no. 19 i.e Ex. PW-3/A and PW-8 Ct. Hardev Singh who took the sample parcel with FSL form to the Laboratory from the malkhana. In this respect, the testimony of PW-8 Ct. Hardev is very important who has deposed that on the instructions of IO, he collected the SC No. 700/2019 State Vs. Okwy Page 27 of 32 samples i.e Mark S-1 & S-2 and Mark A (sealed with the seal of JK) from Malkhana PS Mohan Garden for depositing the same in FSL Rohini, Delhi vide RC no. 117/21/2019 as Ex. PW-3/B 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/case property 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 the case property. The sequence of deposit of case property with an official is duly proved and does not point regarding tampering.
40. 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.
41. 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 SC No. 700/2019 State Vs. Okwy Page 28 of 32 examining himself on oath or by leading any cogent evidence in their defence.
42. 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.
43. It is trite that non-joining 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 non-examination 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 shown to be unreliable. It is for the accused, through SC No. 700/2019 State Vs. Okwy Page 29 of 32 cross-examination 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".
44. 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".
45. It is evident from the testimony of prosecution witnesses specially PW-11 SI Jagbir that sincere efforts were made to join the public witnesses (despite the fact that proceedings were conducted in the night) 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 non-joining of public witnesses is not fatal to the 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 SC No. 700/2019 State Vs. Okwy Page 30 of 32 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."
46. Considering the material on record, the non-joinder of independent public witnesses does not cast any doubt on the case of the prosecution and it has succeeded in proving the apprehension of the accused from the spot as well as the seizure of the narcotic drug from him.
47. 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 Okwy is convicted for the commission of an offence punishable under Section 21 (b) of the NDPS Act.
SC No. 700/2019 State Vs. Okwy Page 31 of 3248. The accused is also facing trial for the offence under Section 14 of the Foreigners Act. It is a matter of record that none of the witnesses have deposed that the accused was not having any valid visa or passport or any other document. Even, one letter Ex. PW-11/B was sent to the Nigerian Embassy regarding arrest of the accused. In the said letter, it was written that accused has failed to produce his passport and visa. But, IO has not filed reply of the Embassy on record. Hence, in these circumstances, there is no evidence before this Court by which it can be said that accused was found staying in India without any valid visa and authority. Hence, accused Okwy is acquitted for the offence under Section 14 of Foreigners Act.
49. 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 convict, free of cost. Be put up for arguments on the point of sentence for the offence punishable under Section 21 (b) of the NDPS Act on 09.12.2022.
DEEPAK Digitally signed by DEEPAK WASON Pronounced in the open court today i.e 06th December, 2022 WASON Date: 2022.12.06 12:29:11 +0530 (Deepak Wason) Spl. Judge (NDPS): SW District:
Dwarka Courts:New Delhi SC No. 700/2019 State Vs. Okwy Page 32 of 32