Delhi District Court
State vs Emmanuel on 11 August, 2014
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
State Versus Emmanuel
S/o Sh Udubore
R/o H.No. 25, Power Line,
Delta State, Nigeria.
Local Address: C-102
1st Floor, Plot No. 157/9
Gaushala Road, Kishan Garh
Delhi.
SC No. 07A/13
FIR No. 58/13
U/S: 21/25/29 NDPS Act & 14 Foreigners Act
PS: Crime Branch
Date of institution : 27.05.2013
Date of reserving judgment : 11.08.2014
Date of pronouncement : 11.08.2014
Decision : Held Guilty
Computer ID No. : 02406R0134672013
J U D G M E N T (PART)
The accused Emmanuel as well as his co-accused Tasleem were both sent to face trial by the SHO PS Crime Branch on allegations that on 30.03.2013 a secret informer had visited the office of SOS Crime Branch, Kotwali, Daryaganj, Delhi and informed the IO SI Paramjeet Singh that one Nigerian namely Emmanuel, who was residing in the area of Kishangarh, New Delhi and was indulged in the supply of cocaine with one Tasleem, a taxi driver, was to come in front of Haldiram Restaurant, SC No. 07A/13 State Vs Emmanuel & Anr 2 South Extension, Part-1 on that day, in one taxi no. DL 1YC 3676 make Hyundai Accent being driven by above Tasleem, to supply cocaine to someone. Acting upon the above information, SI Paramjeet Singh constituted a raiding party consisting of himself, PW1 HC Sanjeev Kumar, PW3 Ct. Rashid Khan, Ct. Amar Pal and Ct. Manoj, who all were apprised about the above information, and thereafter they all left their office for the spot in the official gypsy bearing registration no. DL 1CJ 5474 being driven by Ct. Lalit, alongwith informer. One DD No. 20 Mark A was also made in their office regarding their above departure and while leaving their office the IO SI Paramjeet Singh had also taken alongwith him his IO bag, Field Testing Kit and an electronic weighing scale.
2. The members of the raiding team had reached at the above spot at around 10.30 PM via Vikas Marg, ITO, Tilak Marg, INA and Ring Road and on the way at the bus stand of ITO and also at INA Metro Station, the IO SI Paramjeet Singh requested 5-6 persons standing at each of the above places to join the raiding team, but none agreed to join. After reaching at the spot, the IO SI Paramjeet Singh had again briefed the members of the raiding team and deployed them at different places and the official vehicle was also made to be parked at some distance. At about 10.55 PM one white colour Hyundai Accent taxi car bearing the above registration number was seen coming from the side of AIIMS Hospital and it had stopped outside the above restaurant and the secret SC No. 07A/13 State Vs Emmanuel & Anr 3 informer pointed out the person sitting on the driving seat of the above taxi as the co-accused Tasleem and the person sitting on the other front seat as accused Emmanuel and then the informer left the spot. Both the accused had come out of the said vehicle and stood on the road by the side of their above vehicle for sometime and started talking with each other. After having some talks and waiting there for about five minutes, they both had just opened the respective doors of their vehicle and were about to sit in the vehicle when they both were intercepted by the police party and on enquiry they had disclosed their above identities to the police party.
3. The IO SI Paramjeet Singh had then told both of them about the above secret information in detail and also about their legal rights to get themselves searched in the presence of a Gazetted Officer or a Magistrate and further that they could also take the search of the police party before giving their search. The IO SI Paramjeet Singh also gave written notices U/S 50 of the NDPS Act Ex. PW1/A to accused Emmanuel and Ex. PW1/B to his co-accused Tasleem with regard to their above legal rights, but vide their replies Ex. PW1/C and PW1/D respectively given on the above notices, they both had refused to exercise their above legal rights. Then the IO SI Paramjeet Singh had first conducted the cursory search of accused Emmanuel and from the right pocket of his wearing nicker/half pant, one semi transparent polythene containing some powdery substance was recovered SC No. 07A/13 State Vs Emmanuel & Anr 4 and the mouth of the said polythene was found to be tied with a rubber band. After removing the above rubber band, the IO SI Paramjeet Singh tested the above powdery substance with the help of a Field Testing Kit and the same gave positive result for cocaine. The IO had then weighed the above cocaine on an electronic weighing scale and the weight of the above cocaine, alongwith polythene, came to be 20 Grams and the IO had taken out two samples of 2 Grams each from the above recovered cocaine and the samples were kept in separate small polythene pouches, which were tied with rubber bands and then converted into cloth parcels and were given marking as A and B, and the remaining cocaine was kept in the same transparent polythene, which was also tied with a rubber band and then converted into a cloth parcel and given marking as C. All the above parcels were then sealed by the IO with the seals of PS, Form FSL was filled up and the same seal affixed thereon and seal after use was handed over to PW1 HC Sanjeev Kumar and thereafter, all the above sealed parcels and FSL Form were taken into possession vide seizure memo Ex. PW1/E. The IO had then prepared the rukka Ex. PW1/F and handed over the same to PW3 Ct. Rashid for registration of the case and he had also handed over the above sealed parcels of the samples and remaining cocaine, alongwith the FSL Form and carbon copy of the seizure memo, to PW3 and sent him to PS Crime Branch with directions to hand over the rukka to the Duty Officer and the parcels and other documents to the SHO of PS. SC No. 07A/13 State Vs Emmanuel & Anr 5
4. On the basis of the above rukka, the FIR of this case was registered and a copy of the FIR and the original rukka were handed over by the DO to PW3, which PW3 had handed over further to SI Jai Kishan to whom the further investigation of this case was assigned. PW3 had handed over all the above parcels and FSL Form and copy of the seizure memo to the SHO and SHO also affixed his seals of KS on the above parcels as well as on FSL Form and had then called the MHC(M) with register no. 19 and had handed over the above articles to him for depositing the same in the malkhana. After sometime PW3 reached back at the spot with SI Jai Kishan and at the spot he was handed over the custody of both the accused as well as the original documents by the IO. SI Jai Kishan prepared the site plan Ex. PW1/G at the spot, on the pointing out of IO SI Paramjeet Singh, interrogated both the accused and effected their arrests vide memos Ex. PW1/H and PW1/L respectively, conducted their personal search vide memos Ex. PW1/J and PW1/M respectively, in which the carbon copies of the above notices Ex. P6 and P7 respectively, some cash amount, mobile phones and other articles/documents were recovered. The second IO SI Jai Kishan had also recorded the disclosure statements of the accused persons Ex. PW1/K and Ex. PW1/N respectively, seized their above car vide memo Ex. PW1/P and thereafter, deposited their personal search articles as well as the above car in the malkhana. On 02.04.2013 the accused Emmanuel had guided the police team led by SI Jai Kishan to his rented accommodation on ground floor being SC No. 07A/13 State Vs Emmanuel & Anr 6 Flat No. C-102, in property no. 157/9, Kishan Garh, Vasant Kunj and the same was searched by the police team in the presence of his landlord/PW4 Sh Mohit Chaudhary vide Fard Khanatalashi Ex. PW3/B and PW4 had also handed over a copy of his lease agreement and report of the FRRO Mark PW4/1 and PW4/2 to the police, besides identifying the accused as his tenant. On 03.04.2013 one of the above sealed sample parcels of this case was taken from the malkhana of the PS by PW2 HC Vikram Singh, alongwith FSL Form, vide RC No. 104/21 Mark PW2/1 and deposited with FSL Rohini and the same was received there vide acknowledgment receipt Mark PW2/2 issued by the FSL. The accused had also disclosed the names of some other persons from whom he used to procure cocaine and to whom he supplied it, but they could not be apprehended for want of their complete particulars. SI Jai Kishan had also obtained the details of the mobile phones of the two accused and the same showed that they were in continuous touch with each other. However, the passport and visa of the accused Emmanuel were not produced before the IO by him nor the same could be recovered.
5. After recording the statements of the witnesses and completing the other formalities of investigation, a charge sheet for commission of the offences punishable U/S 21/25/29 of the NDPS Act was prepared and filed against both the accused in the court, pending the receipt of the FSL report. The FSL report dated 01.06.2013 (which is per-se admissible in evidence U/S SC No. 07A/13 State Vs Emmanuel & Anr 7 293 Cr.P.C.), alongwith some other documents, was also subsequently filed in the court in the form of a supplementary charge sheet and the above sample was reported to have tested positive for cocaine.
6. The charge sheet was filed against the accused persons in this court on 27.05.2013 and cognizance of the above offences was taken on the same day. A prime facie case for commission of the offences punishable U/S 29 and 21(b) read with Section 29 of the NDPS Act was found to be made out against both the accused persons and besides the above, a prime facie case for commission of the offence punishable U/S 14 of the Foreigners Act against the accused Emmanuel and the offence punishable U/S 25 r/w Section 29 of the NDPS Act against the accused Tasleem was also found to be made out vide order dated 28.11.2013 and charges for the said offences were framed against them, to which they both had pleaded not guilty and claimed trial.
7. The prosecution in support of its case had just examined on record total 4 witnesses (it is observed that out of the four witnesses, PW3 Ct. Rashid Khan is yet to be cross examined) before the accused Emmanuel had intervened in the judicial proceedings by moving of an application seeking to plead guilty in the case, through his counsel. The accused was questioned at length regarding his above plea of guilt and the court was satisfied that he had made the same voluntarily and SC No. 07A/13 State Vs Emmanuel & Anr 8 without his being under any kind of coercion, pressure or undue influence etc. The accused was also explained the consequences of his pleading guilty, but even then he wanted to plead his guilt in the matter. Perhaps, he was afraid of the evidence which the prosecution has already led on record and also of the evidence which was yet to be led against him. Hence, the prosecution evidence qua the accused Emmanuel was closed by order of the court as recording of the remaining evidence against him would have been an exercise in futility.
8. The names and the purpose of examination etc. of the above witnesses examined on record is being stated herein below :-
9. PW1 HC Sanjeev Kumar and PW3 Ct. Rashid Khan were both the members of the above police team which had apprehended the accused persons on the above date and time and had recovered the above contraband substance from the accused Emmanuel. They both have broadly deposed on the above lines of the prosecution story and have also identified the accused persons as well as the entire case property. However, PW3 Ct. Rashid Khan was yet to be cross examined on behalf of the accused persons, as stated above. PW2 HC Vikram Singh had deposited the one sealed sample parcel of this case in the office of FSL Rohini on 03.04.2013, alongwith the FSL Form. PW4 Sh Mohit Chaudhary is the landlord of the above accused in whose presence the house of the accused was searched vide SC No. 07A/13 State Vs Emmanuel & Anr 9 Fard Khana Talashi Ex. PW3/B and he had also handed over a copy of his lease agreement and report of the FRRO Mark PW4/1 and PW4/2 to the police, besides identifying the accused as his tenant.
10. The statement of the accused U/S 313 Cr.P.C. was also recorded in which the accused has admitted the entire incriminating evidence brought against him on record to be correct and has also admitted his guilt specifically.
11. I have heard the submissions made by Sh F.M.Ansari, Ld Additional PP for the State and Ms Sushma Sharma, Ld counsel for the accused and have further gone through the evidence led on record and the case file.
12. Since, by moving of the above application, the accused has not sought to challenge or confront the evidence which has already been brought on record by the prosecution, the same can be read in evidence and can be considered against the accused. Out of the four witnesses examined on record, two are the members of the above raiding party itself and they both corroborate each other on material particulars of the prosecution case and their depositions are further corroborated by the documents proved in their statements. The oral and documentary evidence led on record is sufficient to prove that the accused Emmanuel was intercepted from the above place and the above quantity of 20 Grams of cocaine was SC No. 07A/13 State Vs Emmanuel & Anr 10 recovered from his possession and further that he was possessing the above quantity in furtherance of a criminal conspiracy or was also a part of such a conspiracy to deal in drugs. Under the NDPS Act, 2 Grams of cocaine has been prescribed as small quantity and 100 Grams as a commercial quantity. Neither during the investigation nor during the trial conducted so far, the accused had produced on record any valid visa authorizing him to stay in India, though he has now filed on record one original passport number A00686936 issued by the Federal Republic of Nigeria while claiming to be his passport. One Indian visa affixed thereon was for the period w.e.f. 12.01.2009 to 12.05.2009, which stands expired long back.
13. Moreover, in his statement recorded U/S 313 Cr.P.C., the accused has not challenged or controverted the evidence led on record by the prosecution and he has specifically admitted all the incriminating facts and evidence brought on record against him and has also admitted his apprehension with the above cocaine, being a part or a member of a criminal conspiracy for dealing in drugs with some other persons and further that he was staying in India without a valid visa.
14. In view of the above, the accused Emmanuel is being held guilty and convicted for offences punishable U/S 29 and 21(b) r/w Section 29 of the NDPS Act and also U/S 14 of the Foreigners Act. Sections 21(b) and 29 of SC No. 07A/13 State Vs Emmanuel & Anr 11 the NDPS Act carry a punishment of RI for a period extending up-to 10 years each and a fine extending up-to Rs. 1 lac each and Section 14 of the Foreigners Act carry a punishment of imprisonment up-to 5 years and fine.
15. The submissions made from both the sides on the point of sentence have also been heard today. On perusal of the case file, it is found that the accused was arrested in this case on 30.03.2013 and is in custody since then and a period of 1 year and about 4½ months has already passed. The accused is aged about 27-28 years only and he is a foreign national. He has also stated that he was induced by someone to deal in drugs for some petty monetary consideration. He has further stated that though he is unmarried, but he is also liable to contribute and help his father in bringing up his three younger brothers and sisters as there are total eight members in his family consisting of the accused himself, his parents, two elder brothers, one younger brother and two younger sisters. He has also himself come forward to plead guilty in this case, though during the midst of the trial, and has further stated that he wants to return back to his native country and family.
16. Therefore, keeping in view the above discussion and the totality of the facts and circumstances of the case, the accused/convict Emmanuel is being sentenced to the period of imprisonment already undergone by him for all the above offences and he is also directed to pay a SC No. 07A/13 State Vs Emmanuel & Anr 12 fine of Rs. 10,000/-, 10,000/- and Rs. 5000/- respectively for the above three offences and in case of non payment of fine, to undergo simple imprisonment for a period of 2 months, 2 months and 1 month respectively for the said offences.
17. However, since the accused is a Nigerian National and is not having any visa or authority to stay or reside in India, it is directed that on completion of his above sentences, he shall not be set at liberty and shall be deported back to his native country as per law, after expiry of the period of filing an appeal against this judgment by the prosecution/State, if any, or the outcome of such appeal, as the case may be. It is further directed that the original passport of the accused lying on record, if required, may also be got released by the concerned authority/FRRO/Jail Authority for facilitating the deportation of the accused to his native country, but since some tampering of the said passport has been observed by this court and further since there is also a possibility of misuse thereof, the same shall not be released or returned back to the accused and will be filed again in this court after the needful is done in the matter.
18. Let a copy of this judgment be given to the accused/convict free of costs and a copy of the operative part of the judgment containing the sentence awarded to the accused be also sent to the Jail Superintendent for SC No. 07A/13 State Vs Emmanuel & Anr 13 his information and compliance.
19. From henceforth, the trial will continue against the accused Tasleem only.
Announced in the open
court on 11.08.2014 (M.K.NAGPAL)
ASJ/Special Judge, NDPS
South District
Saket Court Complex
New Delhi
SC No. 07A/13 State Vs Emmanuel & Anr