Delhi District Court
State vs . Uchenne on 6 January, 2023
IN THE COURT OF SH. DEEPAK WASON:
SPL. JUDGE (NDPS): DWARKA COURTS: NEW DELHI
SC No. 386/2017
FIR No. 16/2017
U/s. 21 (c) NDPS Act & 14 Foreigners Act
PS: Crime Branch
State vs. Uchenne
Date of Institution of case:-04.07.2017
Date of arguments:-06.01.2023
Date on which Judgment pronounced:-06.01.2023
JUDGMENT
CNR No. :DLSW01-007075-2017
Date of commission of offence :09.02.2017
Name of complainant :SI Ombir Dabas
No. D-4504
Name and address of accused :Uchenne, S/o Sh. Okwereome Present Address:
R/o H.no.17, Sethi Enclave, Phase-I, Mohan Garden, Uttam Nagar, New Delhi Offence complained of :21 (c) of the NDPS Act & 14 Foreigners Act Plea of accused :Pleaded not guilty Date of order :06.01.2023 Final order :Convicted U/s. 21 (c) NDPS Act & U/s. 14 Foreigners Act BRIEF REASONS FOR DECISION:
1. The case of the prosecution is that on 09.02.2017, SI Omvir SC No. 386/2017 State Vs. Uchenne Page 1 of 47 Dabas was posted in Narcotics Cell, Kotwali, Dariyanaganj, Delhi and on that day, HC Rupesh received one secret information that one Nigerian National namely Uchenne, who used to supply Heroin and Cocaine in Delhi after bringing from Punjab would come in between 2:00-3:00 p.m, near Tempo Stand, Dwarka Mor for supplying Cocaine and Heroin and HC Rupesh produced the secret informer before SI Omvir Dabas at about 11.35 a.m. It is further the case of the prosecution that thereafter, SI Omvir Dabas verified the secret information and at about 11:45 a.m, the secret informer was produced before Inspector Jai Bhagwan by SI Omvir Dabas and after having satisfied with the secret information, Inspector Jai Bhagwan informed ACP Sh. Sanjeev Tyagi in his office and ACP Sh.
Sanjeev Tyagi directed to take action. It is further the case of the prosecution that SI Omvir Dabas recorded DD No.11 regarding the secret information at about 12:05 pm and copy of the same was produced before Inspector Jai Bhagwan. It is further the case of the prosecution that thereafter, a raiding party was constituted by SI Omvir Dabas consisting of himself, ASI Jagdish and HC Rupesh and briefed the raiding team. It is further the case of the prosecution that they started from the office of Narcotic Cell at about 12:15 p.m. in Official Zypsy No. DL-ICM-1344 along with the secret informer after making departure entry, SI Omvir Dabas carried the IO bag, field testing kit and electronic weighing machine with him and Ct. Vijay was driving the Zypsy and they reached near tempo stand on service road near Dwarka Mor at about 01:45 p.m SC No. 386/2017 State Vs. Uchenne Page 2 of 47 and they took the route via Shantiwan Red Light, ISBT Kashmiri Gate, Karnal Bypass, Mukarba Chowk, Madhuban Chowk, Peragarhi Flyover, Vikaspuri elevated road, Janakpuri, Uttam Nagar and Dwarka Mor and on the way, 4/5 public persons were requested to join the raiding party at Shantiwan and 4/5 persons at Janakpuri Bus Stand but none of the public person inclined to join the raiding party. It is further the case of the prosecution that after reaching the spot, SI Omvir Dabas again briefed the members of the raiding party and the official Zypsy was parked at some distance on the service road and the members of the raiding party took position at different points within the radius of 15-20 yards and at about 02:20 p.m, accused Uchenne was seen coming from the side of Dwarka Mor on foot and was carrying a bag of grey colour on his right shoulder and the secret informer pointed out towards the accused and thereafter, left the spot and towards Dwarka. It is further the case of the prosecution that after coming at the spot, at tempo stand, accused started waiting for someone by standing there and after waiting for 8-10 minutes, the said person started going back towards Dwarka Mor and in the meantime, the accused was apprehended by SI Omvir Dabas with the help of raiding team at about 02:30 p.m. It is further the case of the prosecution that some public persons had gathered and they were requested to join the proceedings by SI Omvir Dabas but they did not incline to join and went away without disclosing their name and addresses. It is further the case of the prosecution that thereafter, SI Omvir Dabas made enquiries from the SC No. 386/2017 State Vs. Uchenne Page 3 of 47 accused about his name etc. and also gave his introduction and the introduction of the police party and thereafter, informed the accused about the secret information and that his search was to be taken. It is further the case of the prosecution that SI Omvir Dabas further apprised the accused about his legal right that his search can be taken in the presence of any Magistrate or Gazetted Officer and if he desires they can be called at the spot. It is further the case of the prosecution that the accused has also been apprised that before his search, he could take search of the police party and official Zypsy. It is further the case of the prosecution that thereafter, SI Omvir Dabas prepared the notice under Section 50 of the NDPS Act in English language, in duplicate with the help of a carbon and the notice under Section 50 NDPS Act was given to the accused in original and after going through the contents of the same, the accused has given his reply in his handwriting on the carbon copy of the notice stating therein that he did not want himself to be searched in front of the Gazetted Officer and Magistrate and also did not want to take the search of the police party and Zypsy. It is further the case of the prosecution that thereafter, the search of the accused was taken by SI Omvir Dabas in which nothing incriminating was recovered and a memo of none recovery was prepared. It is further the case of the prosecution that thereafter, the search of the bag of the accused which SI Omvir Dabas was carrying on his right shoulder was taken by SI Omvir Dabas and on search, three pockets having chains were found on the bag and SC No. 386/2017 State Vs. Uchenne Page 4 of 47 from the middle pocket of the bag, one black colour momi thaili was recovered and on checking, it was further found containing two momi thailies, tied with the rubber band and the said thailies were taken out and one of the thaili was found containing mixed substance of light white colour and the said thaili was given mark A by SI Omvir Dabas and the other thaili was found containing matmaila colour powder and the same was given mark B. It is further the case of the prosecution that SI Omvir Dabas tested the substance of both the thailies with the help of field testing kit and weighed both the thailies with substance and the substance in thaili Mark A was found mixture of Cocaine and Heroin on testing with the help of field testing kit and the substance in thaili Mark B was found Heroin on testing with the help of field testing kit. It is further the case of the prosecution that thereafter, on weighing the mixture of Cocaine and Heroin in thaili Mark A was found 170 gm and two samples of 5 gram each were taken and the same were converted into pullandas and were given Mark Al and A2 and the remaining substance was converted into pullanda in the recovered momi thaili. It is further the case of the prosecution that on weighing the Heroin in thaili Mark B was found 330 gms and two samples of 5 gram each were taken and the same were converted into pullandas and given Mark B1 and B2 and the remaining substance was converted into in the recovered momi thaili. It is further the case of the prosecution that the bag recovered from the accused and the black colour momi thaili were also sealed and seized and was SC No. 386/2017 State Vs. Uchenne Page 5 of 47 converted into pullanda which was given Mark C. It is further the case of the prosecution that thereafter, all the pullandas were sealed by SI Omvir Dabas with the seal of 8APS NB DELHI and FSL Form was also filled at the spot and affixed the seal of 8APS NB DELHI on the same and seal after use was given to HC Rupesh. It is further the case of the prosecution that SI Omvir Dabas inquired from the accused regarding his valid documents for his stay in India, however, the accused did not produce his passport and visa. It is further the case of the prosecution that thereafter, SI Omvir Dabas seized all the pullandas and FSL Form vide a common seizure memo. It is further the case of the prosecution that thereafter, SI Omvir Dabas prepared the rukka and same was handed over to ASI Jagdish along with all the pullandas, FSL Form and carbon copy of seizure memo and sent him to PS Crime Branch Malviya Nagar for the registration of the FIR and for the compliance under Section 55 of the NDPS Act.
2. After the registration of FIR, ASI Jagdish handed over the copy of FIR and original rukka to ASI Krishan as the further investigation of the present case was marked to ASI Krishan upon which ASI Krishan went to the spot in a government vehicle along with the driver Ct. Vijay. It is further the case of the prosecution that thereafter, ASI Krishan reached the spot where ASI Krishan met SI Ombir Dabas, HC Rupesh and accused Uchenne. It is further the case of the prosecution that SC No. 386/2017 State Vs. Uchenne Page 6 of 47 thereafter, SI Ombir Dabas handed over the custody of the accused and all documents to ASI Krishan and thereafter, ASI Krishan prepared site plan at the instance of SI Ombir Dabas. It is further the case of the prosecution that thereafter, ASI Krishan recorded the statement of HC Rupesh and carried out interrogation from accused Uchenne and after interrogation, the accused was arrested, his personal search was conducted and recorded his disclosure statement. It is further the case of the prosecution that thereafter, they left the spot at about 04:40 a.m. and reached at the office of PS Crime Branch and handed over the personal search articles to MHCR(M) ASI Jagnarayan and recorded the statement of SHO Virender Singh and ASI Jagnarayan. It is further the case of the prosecution that thereafter, they left the office of PS Crime Branch to N&CP office Kotwali. It is further the case of the prosecution that SI Omvir Dabas sent the intimation under Section 57 of the NDPS Act regarding the seizure of 170 grams of Cocaine and Heroin (mixture) and 330 grams of Heroin to ACP N & CP through Inspector Jai Bhagwan. It is further the case of the prosecution that at the Narcotics office, accused Uchenne was produced before Inspector Jai Bhagwan and recorded the statement of Inspector Jai Bhagwan. ASI Krishan also sent report under Section 57 of the NDPS Act to ACP through Inspector Jai Bhagwan and carbon Copy of report under Section 57 of the NDPS Act. It is further the case of the prosecution that thereafter, ASI Krishan recorded the statement of SI Ombir, ASI Jagdish and supplementary statement of HC SC No. 386/2017 State Vs. Uchenne Page 7 of 47 Rupesh and got conducted the medical examination of the accused and after medical examination, the accused was produced before the Court and took four days PC remand of the accused. It is further the case of the prosecution that on 11.02.2017, ASI Krishan took the accused to Najafgarh during PC remand along with police staff for the search of co- accused Ajay, however, he could not be traced out and thereafter, they returned to the Narcotics Office, Kotwali. It is further the case of the prosecution that on the same day, after taking permission from the senior officers, ASI Krishan took the accused along with police staff to Jirakpur, Punjab for the search of co-accused Rakesh, however, co-accused Rakesh could not be traced out. It is further the case of the prosecution that on the next day, i.e., 13.02.2017, they again trapped at the Bus Adda of Jirakpur, Punjab to trace out the co-accused Rakesh but he could not be traced out and thereafter, they returned to Delhi and after reaching Delhi, ASI Krishan again interrogated accused Uchenne and during interrogation, the accused disclosed that one person namely Mantab is also involved in the business of Narcotics Drugs who used to meet him at Khirki Extension, Saket Bus Stand upon which ASI Krishan recorded his supplementary disclosure statement. It is further the case of the prosecution that thereafter, the accused was produced before the Court and again took one more day PC remand of the accused and thereafter, ASI Krishan along with the police team reached at Saket Bus Stand, Khirki Extension for the search of co-accused Mantab, however, he also could not be traced out. It SC No. 386/2017 State Vs. Uchenne Page 8 of 47 is further the case of the prosecution that thereafter, the accused was produced before the court and was sent to JC. It is further the case of the prosecution that during the PC remand on 15.02.2017, ASI Krishan interrogated the accused regarding his passport, bank account, however, he had not produced any document and thereafter, Section 14 Foreigners Act was added. It is further the case of the prosecution that thereafter, ASI Krishan investigated regarding the address i.e., H.no 17, Sethi Enclave, Phase-I, Mohan Garden as same was disclosed by the accused and he visited at the above said address but the said premises was found locked and ASI Krishan enquired from the neighbourer and came to know that the owner of the above said premises is Satyawan who used to reside at S-100, Uttam Nagar, Mohan Garden and thereafter, ASI Krishan met Satyawan, the landlord of the accused who assured ASI Krishan that he would submit the document in the office of Narcotics. It is further the case of the prosecution that on the next day i.e., 14.03.2017, Satyawan came at PS Narcotics Office Kotwali, and handed over the copy of the passport of the accused to ASI Krishan, copy of tenant verification and form C regarding the arrival report of foreigner in hotel of accused and all these documents were seized by ASI Krishan. It is further the case of the prosecution that on the directions of ASI Krishan, Ct. Pankaj deposited exhibits/samples in FSL Rohini on 13.02.2017 and thereafter, ASI Krishan recorded the statement of Ct. Pankaj and MHC(M) Jagnarayan. It is further the case of the prosecution that thereafter, ASI Krishan sent a SC No. 386/2017 State Vs. Uchenne Page 9 of 47 letter to FRRO and Nigerian Embassy and on the letter, they replied accordingly. It is further the case of the prosecution that the report received from Ministry of External Affairs regarding Visa and Passport verification of accused Uchenne. It is further the case of the prosecution that according to the report of Ministry of External Affairs, passport of the accused had already expired on 06.09.2016 and entry Visa no. VJ5876746 was valid upto 08.08.2015. It is further the case of the prosecution that thereafter, on receiving the FSL result, ASI Krishan prepared the charge sheet and sent to the Court.
3. Vide order dated 01.08.2017, the charge for the offences under Section 21 (c) 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 170 grams mixture of Cocaine and Heroin in a transparent polythene packet and 330 grams of Heroin in another transparent polythene packet, carrying the same in a bag and being a Nigerian National, he was found without any valid visa or authority for his stay in India to which he pleaded not guilty and claimed trial.
4. The prosecution examined 16 witnesses in support of its case who are as follows:-
5. PW-1 is ASI Jagdish. He is one of the members of raiding SC No. 386/2017 State Vs. Uchenne Page 10 of 47 team and has deposed on the lines of SI Ombir Dabas and ASI Krishan Kumar. This witness was cross-examined by Ld. Defence counsel.
6. PW-2 is ACP Virender. He has deposed that on 09.02.2017, he was posted as an Inspector SHO PS Crime Branch, Malviya Nagar, New Delhi and on that day, ASI Jagdish had come to his office at about 08.25 p.m and produced 7 sealed pullandas Mark A, A1, A2, B, B1, B2 and C, all were sealed with the seal of 8APSNB DELHI, FSL Form and carbon copy of seizure memo. He has further deposed that after making enquiries from the Duty Officer, filled the particulars of the FIR on all the pullandas, FSL Form, carbon copy of seizure memo and affixed the seal of VSS on all the pullandas and FSL Form. He has further deposed that he also signed the pullanda and documents. He has further deposed that he called MHC(M) Jag Narain in his office with register No.19 and deposited the aforesaid pullandas, FSL Form and carbon copy of the seizure memo with MHC(M) Jag Narain who made entries in register No.19. He has further deposed that he also signed in the register No. 19 against the relevant entry. He has further deposed that he made DD No. 17 as Ex. PW-2/A at 09:15 p.m. with regard to the aforesaid proceedings conducted by him. He has further deposed that his statement was recorded by the IO. This witness was cross-examined by the Ld. defence counsel and only some suggestions were given.
SC No. 386/2017 State Vs. Uchenne Page 11 of 477. PW-3 is ASI Jag Narain. He is the MHC(M) and has proved the entries made at serial no.2391 & 2391 in register no. 19 as Ex. PW-3/A & PW-3/B and copy of RC No.31/21 as Ex.PW3/C and copy of the receipt as Ex.PW3/D. This witness was also cross-examined by Ld. defence counsel and only one suggestion was given.
8. PW-4 is Head Constable Devender. He was posted as a Reader to ACP and has proved the report under Section 42 NDPS Act (DD No. 11) as Ex.PW-4/A and entry made at serial no. 404 in the diary register as Ex.PW-4/B. He has also proved the intimations under Section 57 of the NDPS Act regarding seizure of case property and arrest of the accused as Ex.PW-4/C and PW-4/D respectively and entries in this regard were made at serial no. 406 & 407 respectively in diary registers as Ex.PW-4/E and Ex. PW-4/F. This witness was also cross-examined by the Ld. defence counsel.
9. PW-5 is ACP Sanjeev Tyagi. He was posted as ACP Narcotics and has made endorsement on DD No. 11 as Ex. PW-4/A. He has also proved the report under Section 57 NDPS Act as Ex. PW-4/C and regarding recovery and seizure of 170 grams of Cocaine and Heroin (mixture) and 330 grams of Heroin and report under Section 57 of the NDPS Act regarding arrest of accused Uchenne by ASI Krishan Kumar as Ex. PW-4/D. This witness was also cross-examined by the Ld. defence SC No. 386/2017 State Vs. Uchenne Page 12 of 47 counsel and only some suggestions were given.
10. PW-6 is Ct. Pankaj. He has deposed that on 13.02.2017, he collected the two sealed pullandas and FSL form from MHC(M) vide RC No. 31/21 for depositing the same in FSL Rohini. He has further deposed that after depositing the same in FSL Rohini, obtained the receipt and deposited the same in MHC(M). He has further deposed that till the pullandas and FSL form remained in his custody, the same were not tampered with. This witness was also cross-examined by the Ld. defence counsel and only one suggestion was given.
11. PW-7 is Head Constable Raj Kumar. He was the Duty Officer and has proved the FIR as Ex.PW-7/A and endorsement on the rukka as Ex.PW-7/B, attested copy of DD No. 16 and DD No. 18 as Ex. PW-7/C and PW-7/D respectively and the certificate under Section 65B of Indian Evidence Act regarding the computerized copy of FIR as Ex.PW-7/E. This witness was also cross-examined by the Ld. defence counsel and only some suggestions were given.
12. PW-8 is Inspector Jai Bhagwan. He has deposed that on 09.02.2017, he was posted as Inspector in Narcotic Cell Crime Branch, Kotwali Daryaganj Delhi and on that day, SI Omvir produced a secret informer in his office at about 11:45 am who informed that one Nigerian SC No. 386/2017 State Vs. Uchenne Page 13 of 47 named Uchenne residing in Mohan Garden, Uttam Nagar and used to supply Heroin and Cocaine from Punjab to Delhi and would come near Dwarka Mor at Tempo Stand between 2:00-3:00 pm for supplying the same. He has further deposed that after having satisfied with the secret information, he informed ACP Sanjeev Tyagi about the said information and he directed to conduct a raid. He has further deposed that the secret information was recorded vide DD No. 11 Ex. PW-4/A and copy of the same was sent to ACP Narcotics Cell under Section 42 of the NDPS Act. He has further deposed that vide DD No. 12, SI Omvir along with the raiding team proceeded for raid and recovery. He has further deposed that on 10.02.2017, at about 8:30 a.m, accused Uchenne was produced by IO/ASI Krishan and SI Omvir in his office and he made inquiries from the accused and after satisfying about the arrest and recovery, report under Section 57 of the NDPS Act Ex. PW-4/C regarding seizure of 170 gms of Cocaine and Heroin (mix) and 330 gms of Heroin was prepared by SI Omvir and he forwarded the same to Narcotics Cell. He has further deposed that the another report under Section 57 of the NDPS Act Ex. PW-4/D regarding arrest of accused was prepared by ASI Krishan Kumar and he forwarded the same to Narcotics Cell. He has further deposed that ASI Krishan Kumar recorded his statement from 8:55 am to 9:15 am. This witness was also cross-examined by the Ld. defence counsel and only some suggestions were given.
SC No. 386/2017 State Vs. Uchenne Page 14 of 4713. PW-9 is Head Constable Rupesh. He has deposed that on 09.02.2017, he was posted in Narcotics Cell, Kotwali, Dariyanaganj, Delhi and on that day, one secret informer came to him and informed him that one Nigerian National namely Uchenne who used to supply Heroin and Cocaine in Delhi after bringing the same from Punjab and that he would come in between 2:00-3:00 p.m near Tempo Stand Dwarka Mor for supplying Cocaine and Heroin upon which he produced the secret informer before SI Ombir Dabas. This witness has further deposed on the lines of SI Ombir Dabas and ASI Krishan Kumar. This witness was cross- examined by Ld. Defence counsel.
14. PW-10 is Sh. Satyen Roy, Section Officer, Ministry of External Affairs. He had brought the record pertaining to the visa on passport no A03369891 belonged to Uchenne and as per record, on 01.05.2017, a letter of ACP Crime Branch received in their office, copy of the same is marked as Mark X wherein he sought information regarding passport verification regarding genuineness and visa details. He has further deposed that on which, their office i.e MEA issued a letter on 27.06.2017 with a report that "Office of High Commission of India, Lagos has informed that the Business Visa No. VJ7862087 was not issued to Mr. Uchenne by the O/o HCI, Lagos, however, Entry Visa No. VJ5876746 dated 09.02.2015 valid upto 08.08.2015 was issued to Mr. Uchenna Kizito Okwereome on his passport No. A03369891 dated SC No. 386/2017 State Vs. Uchenne Page 15 of 47 07.09.2011 to 06.09.2016" and the letter dated 27.06.2017 is Ex. PW- 10/A, bearing signature of Ms. Abhilasha at point A and he could identify her handwriting and signatures as she had signed as a Desk Officer and he had seen her signing and writing during her official duties. This witness was not cross-examined by the Ld. defence counsel.
15. PW-11 is Head Constable Satish Kumar. He had brought the summoned record i.e Arrival Departure record of accused Uchenne and as per their record, on 21.03.2017, O/o The DCP, FRRO received a letter from ACP Crime Branch regarding the entry and exit in India by the passport and visa details of accused Uchenne having passport No. A03369891, same is Ex. PW-11/A upon which their office sought information from CFB regarding the Arrival Departure record of passport no. A03369891, the copy of the letter is Ex. PW-11/B and thereafter, CFB provided the information regarding the passenger (Uchenne) arrived from 01.01.2010 to 28.03.2017 and thereafter, CFB gave information regarding arrival of the departure record of passport No. A03369891 and the copy of the letter dated 31.03.2017 of CFB is marked as Mark X1 and Arrival Departure record is Ex. PW-11/C. He has further deposed that thereafter, on the basis of information received from the CFB, their office sent a letter to DCP Crime Branch with regard to Arrival Departure record from the period 01.01.2014 to 20.03.2017 of accused Okwereome Uchene Kizito having passport No. A03369891 and same is Ex. PW-11/D. This SC No. 386/2017 State Vs. Uchenne Page 16 of 47 witness was also not cross-examined by the Ld. defence counsel.
16. PW-12 is Sh. Satyawan, S/o Lt. Sh. Sardar Singh, R/o S- 100, Mohan Garden, Uttam Nagar, New Delhi. He has deposed that he was running a business of supplying building material and was the owner of the H.No.17, Sethi Enclave, Phase-I, Mohan Garden. Uttam Nagar, New Delhi and in the year 2016, he rented out the above said property to the accused Uchenne and at that time, accused Uchenne provided him a copy of passport. He has further deposed that on 19.01.2016, he got done the police verification of accused Uchenne from PS Uttam Nagar and same is Ex. PW-12/A. He has further deposed that on 11.02.2017, he came to know that Uchenne was arrested in case FIR No.16/2017 and he handed over the copy of passport Mark X and police verification report to the IO which was provided to him by the accused and same were seized by the IO vide seizure memo Ex. PW-9/I. This witness was also cross- examined by the Ld. defence counsel.
17. PW-13 is Sh. Jitender, Sr. Scientific Officer (Chemistry) FSL Rohini, Delhi. He has deposed that on 13.02.2017, the two sealed cloth parcels pertaining to this case was received in the FSL Rohini along with the FSL Form / forwarding authorities specimen seal and the same were marked to him for examination. He has further deposed that the seals on the parcel were found intact and tallied as per forwarding SC No. 386/2017 State Vs. Uchenne Page 17 of 47 authorities specimen seals. He has further deposed that on physical, microscopic, chemical, TLC, GC and GC-MS examination, (i) exhibit A- 1 was found to contain Diacetymorphin', 6-Monoacetlymorphine'. 'Caffeine', 'Acetylcodeine' & 'Dextromethorphan' (ii) Exhibit 'A-1' was found to contain 'Diacetylmorphine' & 'Caffiene' 3.6% & 13.8% respectively (iii) Exhibit 'B-1' was found to contain 'Diacetylmorphine', '6- Monoacetlymorphine' & 'Acetylcodein' (iv) Exhibit 'B- 1' was found to contain 'Diacetylmorphine' 8.4%. He has further deposed that after the examination, the remnants of the exhibits were sealed with the seal JK FSL DELHI. He has further deposed that he prepared a detailed report of examination and the same is Ex.PW13/A. This witness was also cross-examined by the Ld. defence counsel and only two suggestions were given.
18. PW-14 is ASI Krishan Kumar. He is the second IO of the case and his testimony would be discussed at a later stage.
19. PW-15 is Inspector Omvir Dabas. He is the first IO of the case and his testimony would also be discussed at a later stage.
20. PW-16 is ASI Mahesh Chand. He has deposed that on 02.01.2017, he was posted as MHC(M) at Narcotic Cell, Kotwali, Dariya Ganj, Delhi and on that day, officer seal having seal impression 8A SC No. 386/2017 State Vs. Uchenne Page 18 of 47 PS/NB Delhi' has been issued to SI Ombir Dabas and in this regard entry was made in register N & CP 2017, copy of the same is Ex. PW-16/A. He has further deposed that on 09.02.20217, the electronic weighing machine was issued to SI Ombir Dabas and in this regard entry was made in register, copy of the register is Ex. PW-16/B and thereafter, the same was deposited in the malkhana by SI Ombir Dabas on 10.02.20217. This witness was cross-examined by the Ld. defence counsel and only some suggestions were given.
21. It is a matter of record that on 08.06.2022, statement of accused was recorded under Section 294 Code of Criminal Procedure (in short 'Cr.P.C') wherein accused admitted the genuineness of certain documents i.e. DD No.11 dated 09.02.2017 as Ex.P/D/1, DD No.24 dated 09.02.2017 as Ex.P/D/2 and DD No.6 dated 10.02.2017 as Ex.P/D/3. It is a matter of record that during the trial, prosecution evidence was closed vide order dated 30.11.2022 and on 14.12.2022, statement of accused under Section 313 Cr.P.C was recorded whereby all the incriminating evidence was put to him 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. 386/2017 State Vs. Uchenne Page 19 of 47ARGUMENTS OF DEFENCE:
22. Ld. counsel for the accused vehemently argued that the accused is innocent and there is tampering in the case property as there is a delay in sending the samples. Ld. counsel for accused has further argued that there is no compliance of Section 50 of NDPS Act. 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
23. On the other hand, Sh. Brijesh Kumar, Ld. Addl. PP for the State in rebuttal submitted that the contradictions in the testimony of material witnesses are minor and natural and it does not affect the case of the prosecution. He further argued that nothing has come in the 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. 386/2017 State Vs. Uchenne Page 20 of 47 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.
24. I have considered the rival submissions and gone through the voluminous documents and evidence available on record.
FINDINGS:
25. The records of the present case reveals that the accused stands charged for the possession of commercial quantity of contraband i.e. 170 grams mixture Cocaine and Heroin and 330 grams of Heroin & being a Nigerian National, the accused 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 SC No. 386/2017 State Vs. Uchenne Page 21 of 47 concerned to rule out any possibility of false implication or tampering with the record or the contraband. In the present case, the accused was apprehended and was found in possession of commercial quantity of 170 grams mixture Cocaine and Heroin and 330 grams of Heroin kept in two separate transparent polythene packet & being a Nigerian National, the accused was found without any valid visa or authority for his stay in India.
26. 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 witnesses i.e PW-14 & PW-15, the IOs of the case.
27. First of all, I would discuss the testimony of PW-15 Inspector Omvir Dabas who is the first IO of the case and has deposed that on 09.02.2017, he was posted in Narcotics Cell, Kotwali, Dariyanaganj, Delhi and on that day, HC Rupesh received one secret information that one Nigerian National namely Uchenne, who used to supply Heroin and Cocaine in Delhi after bringing from Punjab would come in between 2:00-3:00 p.m, near Tempo Stand Dwarka Mor for supplying cocaine and heroin and HC Rupesh produced the secret SC No. 386/2017 State Vs. Uchenne Page 22 of 47 informer before him at about 11.35 a.m. He has further deposed that thereafter, he verified the secret information and at about 11.45 a.m, the secret informer was produced before Inspector Jai Bhagwan by him and after having satisfied with the secret information, Inspector Jai Bhagwan informed ACP Sh. Sanjeev Tyagi in his office who directed to take action. He has further deposed that he recorded DD No. 11 Ex.PW4/A regarding the secret information at about 12:05 pm and copy of the same was produced before Inspector Jai Bhagwan. He has further deposed that thereafter, a raiding party was constituted by him consisting of himself, ASI Jagdish and HC Rupesh and he briefed the raiding team about the secret information. He has further deposed that they started from the office of Narcotic Cell at about 12:15 p.m. in Official Zypsy No. DL- ICM- 1344 along with the secret informer after making departure entry vide DD no. 12 and he was carrying IO bag, field testing kit and electronic weighing machine with him and Ct. Vijay was driving the Zypsy and they reached near tempo stands on service road near Dwarka Mor at about 01:45 p.m and they took the route via Shantiwan Red Light, ISBT Kashmiri Gate, Karnal Bypass, Mukarba Chowk, Madhuban Chowk, Peragarhi Flyover, Vikaspuri elevated road, Janakpuri, Uttam Nagar and Dwarka Mor and on the way, 4/5 public persons were requested to join the raiding party at Shantiwan and 4/5 persons at Janakpuri Bus Stand but none of the public person inclined to join the raiding party. He has further deposed that after reaching the spot, he again SC No. 386/2017 State Vs. Uchenne Page 23 of 47 briefed the members of the raiding party. The official Zipsy parked at some distance on the service road and the members of the raiding party took position at different points within the radius of 15-20 yards at about 01.55 p.m. At about 02.20 p.m, accused Uchenne present in court today (correctly identified by witness) was seen coming from the side of Dwarka Mor on foot carrying a bag of grey colour on his right shoulder and the secret informer pointed out towards the accused and thereafter, left the spot and towards Dwarka. He has further deposed that after coming at the spot, at tempo stand, accused started waiting for someone by standing there and after waiting for 8-10 minutes, he started going back towards Dwarka Mor and in the meantime, accused was apprehended by him with the help of raiding team at about 02:30 p.m. He has further deposed that some public persons had gathered and they were requested to join the proceedings by him but they did not incline to join and went away without disclosing their name and addresses. He has further deposed that thereafter, he made inquiries from the accused about his name etc. and also gave his introduction and police party and thereafter, he informed the accused about the secret information and that his search was to be taken. He has further deposed that he further apprised him about his legal right that his search can be taken in the presence of any Magistrate or Gazetted Officer and if he desires they can be called at the spot. He has further deposed that the accused has also been apprised that before his search, he could take search of the police SC No. 386/2017 State Vs. Uchenne Page 24 of 47 party and official Zypsy. He has further deposed that thereafter, he prepared the notice under Section 50 of the NDPS Act in English language, in duplicate with the help of a carbon and the notice under Section 50 NDPS Act was given to the accused in original and after going through the contents of the same, the accused has given his reply in his handwriting on the carbon copy of the notice Ex. PW1/A stating therein that he did not want himself to be searched in front of the Gazetted Officer and Magistrate and also did not want to take the search of the police party and Zypsy, the reply of the accused is Ex.PW1/B. He has further deposed that thereafter, the search of the accused was taken by him in which nothing incriminating was recovered and a memo of none recovery was prepared and the same is Ex.PW1/C. He has further deposed that thereafter, the search of the bag of the accused which he was carrying on his right shoulder was taken by him and on search, three pockets having chains were found on the bag and from the middle pocket of the bag, one black colour momi thaili was recovered and on checking, it was further found containing two momi thailies, tied with the rubber band and the said thailies were taken out and one of the thaili was found containing mixed substance of light white colour and the said thaili was given mark A by him and the other thaili was found containing matmela colour powder and the same was given mark B. He has further deposed that he tested the substance of both the thailies with the help of field testing kit and weighed both the thailies with substance and the substance SC No. 386/2017 State Vs. Uchenne Page 25 of 47 in thaili Mark A was found mixture of Cocaine and Heroin on testing with the help of field testing kit and the substance in thaili Mark B was found Heroin on testing with the help of field testing kit. He has further deposed that thereafter, on weighing the mixture of Cocaine and Heroin in thaili Mark A was found 170 gm and two samples of 5 gram each were taken and the same were converted into pullandas and were given Mark Al and A2 and the remaining substance was converted into pullanda in the recovered momi thaili. He has further deposed that on weighing the Heroin in thaili Mark B was found 330 gm and two samples of 5 gram each were taken and the same were converted into pullandas and given Mark B1 and B2 and the remaining substance was converted into in the recovered momi thaili. He has further deposed that the bag recovered from the accused and the black colour momi thaili were also sealed and seized and was converted into pullanda which was given Mark C. He has further deposed that thereafter, all the pullandas were sealed by him with the seal of 8APS NB DELHI and FSL Form was also filled at the spot and affixed the seal of 8APS NB DELHI on the same and seal after use was given to HC Rupesh. He has further deposed that he inquired from the accused regarding his valid documents for his stay in India, however, the accused did not produce his passport and visa. He has further deposed that thereafter, he seized all the pullandas and FSL Form vide a common seizure memo and the same is Ex.PWI/D. He has further deposed that thereafter, he prepared the rukka as Ex.PW15/A and same was handed SC No. 386/2017 State Vs. Uchenne Page 26 of 47 over to ASI Jagdish along with all the pullandas, FSL Form and carbon copy of seizure memo and sent him to PS Crime Branch Malviya Nagar for the registration of the FIR and for the compliance under Section 55 of the NDPS Act. He has further deposed that after the registration of the FIR, ASI Krishan Kumar came to the spot for further investigation and he produced the accused before him along with the documents. He has further deposed that ASI Krishan Kumar prepared the site plan at his instance as Ex.PW14/A and ASI Krishan Kumar recorded the statement of HC Rupesh. He has further deposed that thereafter, ASI Krishan Kumar interrogated the accused and after interrogation, the accused was arrested vide arrest memo already Ex.PW-9/A, conducted his personal search in which cash Rs.1280/-, one wrist watch, two rings and original notice under Section 50 of the NDPS Act were recovered vide personal search memo Ex.PW-9/B. He has further deposed that accused was interrogated by ASI Krishan Kumar and his disclosure statement was recorded vide memo Ex.PW-9/C. He has further deposed that after the completion of the proceedings at the spot, they reached at PS Crime Branch where ASI Krishan Kumar recorded the statement of Inspector Virender and thereafter, ASI Krishan Kumar handed over the personal search articles to HC Jag Narayan MHC(M) and recorded his statement. He has further deposed that thereafter, they came to the office of Narcodic Cell, Dariyaganj Kotwali along with the accused. He has further deposed that the accused was produced before Inspector Jai Bhagwan. He SC No. 386/2017 State Vs. Uchenne Page 27 of 47 has further deposed that thereafter, he sent intimation under Section 57 of the NDPS Act regarding seizure of 170 grams of Cocaine and Heroin (mixture) and 330 grams of Heroin to ACP N & CP through Inspector Jai Bhagwan. He has further deposed that the intimation under Section 57 of NDPS Act is Ex.PW4/C. He has further deposed that thereafter, his statement was recorded by the IO/ASI Krishan Kumar.
28. Now, I would discuss the testimony of PW-14 ASI Krishan Kumar who is the second IO of the case and has deposed that on 09.02.2017, he was posted at PS Crime Branch/N&CP Office Kotwali and on that day, at about 10:50 pm, he was present at the office and ASI Jagdish came there and handed over to him the copy of FIR and original rukka as the further investigation of the present case was marked to him upon which he went to the spot in a government vehicle along with the driver Ct. Vijay. He has further deposed that at about 12:30 a.m., he reached the spot i.e. Dwarka Mor where he met SI Ombir Dabas, HC Rupesh and accused Uchenne. He has further deposed that thereafter, SI Ombir Dabas handed over to him the custody of the accused and all documents and thereafter, he prepared site plan at the instance of SI Ombir Dabas as Ex. PW14/A. He has further deposed that thereafter, he recorded the statement of HC Rupesh and carried out interrogation from accused Uchenne and after interrogation, the accused was arrested vide memo Ex.PW9/A, conducted his personal search vide memo Ex.PW9/B and during his personal search, original copy of notice under Section 50 SC No. 386/2017 State Vs. Uchenne Page 28 of 47 NDPS Act, Rs. 1280 cash, one wrist watch (make G- Shock) and two metal finger ring golden in colour were recovered. He has further deposed that thereafter, he recorded the disclosure statement of accused as Ex. PW9/C. He has further deposed that thereafter, they left the spot at about 04:40 a.m. and reached at the office of PS Crime Branch and handed over the personal search articles to MHCR(M) ASI Jagnarayan and recorded the statement of SHO Virender Singh and ASI Jagnarayan. He has further deposed that thereafter, they left the office of PS Crime Branch to N&CP office Kotwali. He has further deposed that at Narcotics office, accused Uchenne was produced before Inspector Jai Bhagwan and recorded the statement of Inspector Jai Bhagwan. He has further deposed that thereafter, he sent report under Section 57 of the NDPS Act to ACP through Inspector Jai Bhagwan which is Ex.PW4/D and carbon copy of report under Section 57 of the NDPS Act is Ex. PW14/B. He has further deposed that thereafter, he recorded the statement of SI Ombir, ASI Jagdish and supplementary statement of HC Rupesh and got conducted the medical examination of the accused and after medical examination, the accused was produced before the Court and he took four days PC remand of the accused. He has further deposed that on 11.02.2017, he took the accused to Najafgarh during PC remand along with police staff for the search of co-accused Ajay, however, he could not be traced out and thereafter, they returned to the Narcotics Office, Kotwali. He has further deposed that on the same day, after taking permission from the SC No. 386/2017 State Vs. Uchenne Page 29 of 47 senior officers, he took the accused along with police staff to Jirakpur, Punjab for the search of co-accused Rakesh, however, co-accused Rakesh could not be traced out. He has further deposed that on the next day, i.e., 13.02.2017, they again trapped at the Bus Adda of Jirakpur, Punjab to trace out the co-accused Rakesh but he could not be traced out and thereafter, they returned to Delhi and after reaching Delhi, he again interrogated accused Uchenne and during interrogation, the accused disclosed that one person namely Mantab is also involved in the business of Narcotics Drugs who used to meet him at Khirki Extension, Saket Bus Stand upon which he recorded his supplementary disclosure statement which is Ex.PW9/D. He has further deposed that thereafter, the accused was produced before the Court and again took one more day PC remand of the accused and thereafter, he along with the police team reached at Saket Bus Stand, Khirki Extension for the search of co-accused Mantab, however, he also could not be traced out. He has further deposed that thereafter, the accused was produced before the court and was sent to JC. He has further deposed that during the PC remand on 15.02.2017, he interrogated the accused regarding his passport, bank account, however, he had not produced any document and thereafter, Section 14 Foreigners Act was added. He has further deposed that thereafter, he investigated regarding the address i.e H.no.17, Sethi Enclave, Phase-I, Mohan Garden as same was disclosed by the accused and he visited at the above said address but the said premises was found locked and he inquired from the SC No. 386/2017 State Vs. Uchenne Page 30 of 47 neighbour and came to know that the owner of the above said premises is Satyawan who used to reside at S-100, Uttam Nagar, Mohan Garden and thereafter, he met Satyawan, the landlord of the accused who assured him that he would submit the document in the office of Narcotics. He has further deposed that on the next day i.e 14.03.2017, Satyawan came at PS Narcotics Office Kotwali, and handed over to him the copy of the passport of the accused Mark X, copy of tenant verification as Ex.PW12/A and form C regarding the arrival report of foreigner in hotel of accused and same is Mark Y and all these documents were seized by him vide memo Ex. PW9/E. He has further deposed that on his directions, Ct. Pankaj deposited exhibits/samples in FSL Rohini on 13.02.2017 and thereafter, he recorded the statement of Ct. Pankaj and MHC(M) Jagnarayan. He has further deposed that thereafter, he sent a letter to FRRO and Nigerian Embassy and upon his letter, they replied accordingly. Report of FRRO is already Ex.PW11/D, report of verification of passport of accused Uchenne sent by Nigerian Embassy is Mark Z, report received from Ministry of External Affairs regarding Visa and Passport verification of accused Uchenne and the same is Ex.PW10/A. He has further deposed that according to the report of Ministry of External Affairs, passport of the accused had already expired on 06.09.2016 and entry Visa no. VJ5876746 was valid upto 08.08.2015. He has further deposed that thereafter, on receiving the FSL result, he prepared the charge sheet and sent to the Court. This witness has brought SC No. 386/2017 State Vs. Uchenne Page 31 of 47 the original record pertaining to the Govt. Vehicle no. DL1CM1344 dated 09/10.02.2017 and copy of Log book record as Ex.PW14/C. He had also brought the original rojnamcha with regard to DD no.12, departure of SI Ombir and raiding team and the DD number is Ex.PW14/D. These witnesses were cross-examined by the Ld. defence counsel. Nothing contrary has come in their cross-examination also. Several suggestions were put to these witnesses which they denied.
29. To support the recovery from the accused, the prosecution also examined PW-1 ASI Jagdish and PW-9 HC Rupesh, who were also the members of the raiding party with PW-15 IO/Inspector Omvir Dabas and also joined the investigation with PW-14 ASI Krishan Kumar and have corroborated the statements made by PW-14 & PW-15. They were also cross-examined by the Ld. defence counsel but nothing has come on record which could help the accused and only bald suggestions were made by the Ld. defence counsel.
30. As far as other witnesses are concerned, PW-2 ACP Virender Singh is the SHO PS Crime Branch and he has deposed about the compliance of Section 55 of the NDPS Act. PW-3 ASI Jag Narain is the MHC(M) and has proved the entries made at serial no.2931 & 2932 in register no. 19 as Ex. PW-3/A & PW-3/B respectively and copy of road certificate no. 31/21 as Ex. PW-3/C and receipt/acknowledgment of case SC No. 386/2017 State Vs. Uchenne Page 32 of 47 acceptance as Ex. PW-3/D. PW-4 HC Devender is Reader to ACP and has also deposed about the compliance of Sections 42 & 57 of the NDPS Act. PW-5 is ACP Sanjeev Tyagi and he has proved the DD No. 11 dated 09.02.2017 as Ex. PW-4/A regarding secret information and reports under Section 57 NDPS Ac as Ex. PW-4/C and PW-4/D. PW-6 is Constable Pankaj and on the directions of the IO, he collected the samples from MHC(M) vide RC no.31/21 and deposited the same in FSL Rohini and handed over the receipt to MHC(M). PW-7 HC Raj Kumar is the formal witness as he is the Duty Officer who got the FIR registered in the present case as Ex. PW-7/A and endorsement on the rukka as Ex. PW-7/B. He has also proved the DD nos.16 and 18 regarding starting and closure of the FIR as Ex. PW-7/C and PW-7/D respectively and certificate under Section 65-B of the Indian Evidence Act as Ex. PW-7/E. PW-8 Inspector Jai Bhagwan is the Inspector in Narcotic Cell who has proved the DD No.11 dated 09.02.2017 (regarding secret information) as Ex. PW-4/A. He has also proved the reports under Section 57 of the NDPS Act sent by SI Omvir and ASI Krishan Kumar as Ex. PW-4/C & Ex. PW-4/D respectively. PW-10 Sh. Satyen Roy, Section Officer from the Ministry of External Affairs and has brought the record of the accused pertaining to visa on passport no. A03369891 and has proved the letter of ACP Crime Branch dated 01.05.2017, same is marked as Mark X and letter dated 27.06.2017 as Ex. PW-10A. PW-11 HC Satish Kumar is the witness from FRRO Office and has and has proved the letter dated 21.03.2017 received SC No. 386/2017 State Vs. Uchenne Page 33 of 47 from ACP Crime Branch as Ex. PW-11/A and sought information for the same from CFB through one letter Ex. PW-11/B and information received from CFB through one letter dated 31.03.2017 marked as Mark X-1 and Arrival Departure record as Ex. PW-11/C. He has also proved the passport of accused Okwereome Uchene Kizito as Ex. PW-11/D. PW-12 Sh. Satyawan is the owner of the H.no.17, Sethi Enclave, Phase-I, Mohan Garden, Uttam Nagar, New Delhi who has rented out the said property to accused Uchenne and has proved the verification report of the accused as Ex. PW-12/A which was seized by the IO as Ex. PW-9/I and copy of passport as Mark X.
31. All the witnesses were cross-examined by the Ld. Defence counsel but Ld. Defence counsel could not dent their testimonies and elicit anything material from them. The witnesses produced by the prosecution are wholly reliable and trustworthy and nothing could be brought out in their 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 SC No. 386/2017 State Vs. Uchenne Page 34 of 47 implicated and has no connection with the crime. It is observed that witnesses produced in the 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".
32. Even otherwise, it has been held in the case of Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783 that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC 147.
33. The present case is a case of recovery of commercial quantity i.e 170 grams mixture Cocaine and Heroin and 330 grams of Heroin kept in two separate transparent polythene packet & being a Nigerian National, the accused was found without any valid visa or authority for his stay in SC No. 386/2017 State Vs. Uchenne Page 35 of 47 India. No reason has been shown by the accused to falsely implicate him in the present case.
34. Further, it has to be seen that accused has failed to bring on record anything showing that he was not in possession of a contraband item. On considering the facts available on record, the document, testimony of witnesses after detailed scrutiny, no doubt remain that accused was found in possession of illegal contraband.
35. The Ld. counsel for accused has argued that the notice under Section 50 NDPS Act, Ex. P-11 (original copy of notice) & Ex. PW1/A (carbon copy of notice) 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 notice under Section 50 of NDPS Act as Ex. P-11 (original copy of notice) & Ex. PW1/A (carbon copy of notice) was served upon the accused whereby he was apprised about his legal rights.
36. Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to SC No. 386/2017 State Vs. Uchenne Page 36 of 47 protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
37. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by the State of Punjab Vs. Baldev Singh (1999) 3 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or SC No. 386/2017 State Vs. Uchenne Page 37 of 47 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 specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made.
38. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimize SC No. 386/2017 State Vs. Uchenne Page 38 of 47 the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
39. The prosecution witnesses are clear and consistent in their deposition about the service of notice under Section 50 of NDPS Act before taking search of accused. The notice under Section 50 of NDPS Act Ex.PW1/A is proved on record and perusal of the same, it is clear that statutory rights of accused in this regard was clearly explained to him. Same have been perused. By virtue of this notice, the accused was apprised of his legal rights qua his search in the presence of a Gazetted Officer or a Magistrate. The word mentioned in the notice is "Legal right". Even otherwise, the recovery was from the bag. So there is no lacuna in the notice under Section 50 of the NDPS Act.
40. Ld. counsel for the accused has also argued that the colour of the contraband i.e Mark B has been changed to light brown and there appears to be a doubt with regard to the case property. In this regard, PW- 13 Sh. Jitender, Sr. Scientific Officer (Chemistry) FSL Rohini, has supported the case of the prosecution and has specifically deposed that on SC No. 386/2017 State Vs. Uchenne Page 39 of 47 physical, microscopic, chemical, TLC, GC and GC-MS examination, (i) exhibit A-1 was found to contain Diacetymorphin', 6- Monoacetlymorphine'. 'Caffeine', 'Acetylcodeine' & 'Dextromethorphan'
(ii) Exhibit 'A-1' was found to contain 'Diacetylmorphine' & 'Caffiene' 3.6% & 13.8% respectively (iii) Exhibit 'B-1' was found to contain 'Diacetylmorphine', '6- Monoacetlymorphine' & 'Acetylcodein' (iv) Exhibit 'B- 1' was found to contain 'Diacetylmorphine' 8.4%. Hence, from the report of FSL, it is clear that the recovered substance was Heroin in both the pullandas i.e Ex. A-1 & B-1. Although, it is the case of the prosecution that in one polythene, it was a mixture of 170 grams of Cocaine and Heroin (as it was tested with Field Test Kit at the spot) and in another polythene, it was 330 grams of Heroin. So, the total Heroin recovered from the accused is 500 grams which is a commercial quantity. No relevant question was asked by Ld. defence counsel in the cross- examination of this witness and only bald suggestion was given by the Ld. defence counsel. At this stage, it would be relevant to go through the para no. 18 of the judgment titled as 'Sheikh Anwar vs. State, passed by Hon'ble High Court of Delhi in Crl. A 1111/2016.
18. As already observed herein above the factum that over a period of time Diacetyle Morphine converts into Monoacetyle Morphine and Monoacetyle Morphine converts into Morphine, and that, depending on the environmental conditions like moisture in the environment and in the sample, the Diacetyle Morphine can convert into Monoacetyle Morphine and Morphine by the process of hydrolysis and that Diacetyle Morphine and Monoacetyle Morphine are synthesized products of Morphine, which Morphine is also listed at Serial No.77 of the table to Section 2 of the NDPS Act, 1985 in SC No. 386/2017 State Vs. Uchenne Page 40 of 47 which the commercial quantity is stipulated as being 250 Gms., coupled with the factum that even qua heroin with its chemical name of Diacetyle Morphine, the quantity amounting to 250 Gms. is a commercial quantity with there being chemical changes which take place in the Diacetyle Morphine or conversion thereof into Monoacetyle Morphine and vice versa, coupled with the factum that the prosecution version is categorical as per the Special Report under Section 57 of the NDPS Act, 1985 dated 20.08.2011 that on checking of the transparent polythene tied with rubber band and containing Matiyala coloured powder in it which had been recovered from the appellant, it was found on checking with the field testing kit to be heroin (i.e. Diacetyle Morphine), with the aspect of challenge to recovery of the date of the offence from the appellant not sought to be urged during the course of the arguments in the instant appeal, the conviction of the appellant for possession of 1.5 Kgs. of heroin, a commercial quantity, to which the provisions of Section 21(c) of the NDPS Act, 1985 apply,- has to be sustained and is sustained, even though vide the impugned order on sentence dated 15.09.2016, there appears to be a typographical error sentencing the convict under Section 20(c) of the said enactment which provision relates to possession of cannabis and not a manufactured drug and its preparations.
41. 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.
42. The prosecution has completed the link evidence in this case SC No. 386/2017 State Vs. Uchenne Page 41 of 47 by examining all the material witnesses namely ASI Jagdish (PW-1), who took the case property along with rukka from the spot to the police station; ACP Virender Singh (PW-2) to whom the case property was handed over by ASI Jagdish in the police station; PW-3 ASI Jag Narain, MHC(M) to whom the case property was handed over by PW-2 ACP Virender Singh while depositing it in the malkhana and PW-6 Ct. Pankaj who took the sealed pullandas with FSL form to the Laboratory from the malkhana. In this respect, the testimony of PW-6 Ct. Pankaj is very important who has deposed that on 13.02.2017, on the instructions of IO, he collected the sealed pullandas i.e Mark A-1 & B-1 sealed with the seal of 8APSNBDELHI & VSS from MHC(M) PS Crime Branch for depositing the same in FSL Rohini, Delhi vide RC no.31/21 along with form FSL and after depositing the same, he obtained the receipt of FSL and handed it over the same to MHC(M). He has further deposed that till the pullandas and FSL form remained in his custody, the same were not tampered with. So from the deposition of the above witnesses, it is clear that there was no question of tampering with the case property. The sequence of depositing of case property with an official is duly proved and does not point regarding tampering.
43. 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 SC No. 386/2017 State Vs. Uchenne Page 42 of 47 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.
44. In the light of consistent and reliable testimony of prosecution witnesses, the defence taken by the accused is found to be improbable which otherwise has not been substantiated by him either by examining himself on oath or by leading any cogent evidence in their defence.
45. 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.
46. 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 SC No. 386/2017 State Vs. Uchenne Page 43 of 47 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 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".
47. 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".
48. It is evident from the testimony of prosecution witnesses specially PW-15 Inspector Omvir Dabas that sincere efforts were made to SC No. 386/2017 State Vs. Uchenne Page 44 of 47 join the public witnesses but all refused the same and left the spot without disclosing their names and addresses. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court proceedings. The 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 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."
49. 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 SC No. 386/2017 State Vs. Uchenne Page 45 of 47 accused from the spot as well as the seizure of the narcotic drug from him.
50. 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 Uchenne is convicted for the commission of an offence punishable under Section 21 (c) of the NDPS Act.
51. The accused is also facing trial for the offence under Section 14 of Foreigners Act. PW-14 ASI Krishan Kumar has specifically deposed that during the PC remand, he interrogated the accused regarding his passport, bank account, however, he had not produced any document and thereafter, Section 14 Foreigners Act was added. In this regard, PW- 14 has sent a letter to FRRO and Nigerian Embassy and upon his letter, they replied accordingly. Report of FRRO is Ex.PW11/D, report of verification of passport of accused Uchenne sent by Nigerian Embassy is Mark Z, report received from Ministry of External Affairs regarding Visa and Passport verification of accused Uchenne is Ex.PW10/A. Prosecution has also examined Sh. Satyen Roy, Section Officer from Ministry of External Affairs as PW-10. According to the report of Ministry of External Affairs, passport of the accused had already expired on SC No. 386/2017 State Vs. Uchenne Page 46 of 47 06.09.2016 and entry Visa no. VJ5876746 was valid upto 08.08.2015. The present accused was arrested in this case on 09.02.2017. No suggestion was given by Ld. Defence counsel on this point. The onus was upon the accused to show that he was residing in India on a valid Visa and the same has not been produced by him. Since the accused being Nigerian National was found without any valid visa or authority for his stay in India and even during the trial of the present case, he could not produce any document to show that he was having any valid visa or authority on 09.02.2017 for his stay in India, hence, accused Uchenne is also convicted for commission of an offence punishable under Section 14 of Foreigners Act.
52. 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 (c) of the NDPS Act & 14 of the Foreigners Act on 07.01.2023. DEEPAK Digitally signed by DEEPAK WASON WASON Date: 2023.01.06 15:46:59 +0530 Pronounced in the open court. (Deepak Wason) Dated: 6th January, 2023 Spl. Judge (NDPS): SW District Dwarka Courts:New Delhi SC No. 386/2017 State Vs. Uchenne Page 47 of 47