Delhi District Court
Dri vs . Sampson Chukwudi & Anr. Page No. 1 Of 96 on 11 May, 2015
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IN THE COURT OF SHRI A.K.KUHAR
SPECIAL JUDGE (NDPS ACT), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
SC No. 47A/09
Unique ID No.: 02403R0296812009
Directorate of Revenue Intelligence
Vs.
1. Sampson Chukwudi
S/o Emmanuel
R/o 4A, Wedral Road,
Owerri Imo State, Nigeria.
Also At :
C-1/25, Vasant Vihar, New Delhi.
2. Lahia Junias @ Betty
D/o Junias
R/o OV 20/17, Katutura
Windnoek, Namibia.
Also At:
A-19, Humayun Pur,
New Delhi.
Date of filing of complaint : 17.09.2009
Arguments concluded on : 30.03.2015
Judgment announced on : 11.05.2015
JUDGMENT
11.05.2015 SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 1 of 96 :: 2 ::
PROSECUTION CASE:
1.0 Briefly stated, facts are that Gurjeet Singh,(PW-1) Intelligence Officer, Directorate of Revenue Intelligence (DRI), Headquarter received specific secret information on 29.03.2009 that two persons of African origin, a tall lady and a medium height man wearing spectacles and cap would be coming to G.T. Karnal Bypass Road Bus Stop on Ring Road between 06:00 am to 06:30 am on 30.03.2009 and they would be in possession of narcotics drug (Heroin) in their shoulder bag, which would be delivered by them to some person in Delhi. The said information was reduced to writing (Ex.PW1/A) and submitted to Pankaj K. Singh, Deputy Director, DRI Headquarters, New Delhi (PW-4), who in turn directed Sh. Rajpal Singh (PW-2), Investigating Officer (IO) for taking necessary action and for seizing the contraband goods and apprehend the persons involved in trafficking the narcotics drug.
1.1 Pursuant to the said direction a raiding team was SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 2 of 96 :: 3 ::
constituted by IO Rajpal Singh who also called two public witnesses at DRI office situated at 7th Floor of 'D' Block, I.P. Bhavan, I.P. Estate, New Delhi, at around 5 am, on 30.03.2009. The, panch witnesses were informed about the said information and they were asked to accompany the team of DRI officers. Thereafter, the officers of DRI and the panch witnesses reached at G.T. Karnal Bypass Road Bus Stop, on Ring Road Bus Stop. At around 06:10 am, the DRI officers and panch witnesses noticed two African nationals (one male and one female), who matched the description as was given in the information Ex.PW1/A. They were seen carrying red and black colour shoulder bags of 'HERO' brand. 1.1.1 As per the case of DRI/ complainant, the two African nationals were intercepted and the DRI officers introduced themselves to those Africans along with the panch witnesses. On inquiry, they disclosed their names.
The female introduced herself as Ms. Lahia Junias @ Betty and the male introduced himself as Sampson Chukwudi, both residing at Third Floor, A-19, Humayun Pur, New Delhi and at SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 3 of 96 :: 4 ::
C-1/25, Vasant Vihar, New Delhi, respectively. They were disclosed about the secret information and that the DRI officers would be conducting search of their bag as well as of their persons and since the place of interception was a busy public place and not conducive for conducting the detailed search, the DRI officers requested the said two intercepted persons to accompany them along with their two shoulder bags to DRI office.
1.2 After reaching the DRI office, the complainant Mr. Raj Pal Singh, Intelligence Officer, served each of the accused persons with a notice under Section 50 NDPS Act, 1985 (Ex.PW2/B and Ex.PW2/C), explaining them that they had a legal right to get their person and bags searched before a Gazetted officer or a Magistrate. Both the African nationals did not opt for their search in the presence of a Gazetted Officer or a Magistrate and replied in writing that the DRI Officers can take search of their person and the shoulder bags.
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1.3 During the search of Sampson Chukwudi by DRI officers and the search of Ms. Lahia Junias, in complete privacy by a lady officer of DRI, nothing incriminating or contraband substance was recovered. Thereafter, DRI officers searched the two black and red colour 'HERO' brand shoulder bags. The bag carried by accused no. 1 Sampson Chukwudi, was found to contain 19 heat sealed transparent polythene packets containing white cloth bags having similar type of rubber stamp markings on each of them, which further contained heat sealed plastic polythene packets containing off white colour granular substance from which a sharp pungent smell was emanating. These packets were marked as A-1 to A-19 for the purpose of identification. 1.4 The search of the second black and red colour 'HERO' brand shoulder bag carried by Ms. Lahia Junias (A-2) led to the recovery of 15 heat sealed transparent polythene packets containing white cloth bags having four different rubber stamp markings. Out of the above mentioned 15 packets, 8 packets carrying similar marking, were given SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 5 of 96 :: 6 ::
identification marks as B-1 to B-8, other 5 packets with similar markings were given identification marks as C-1 to C-5 and the remaining two packets with individual markings were marked as D-1 and E-1 for the purpose of identification. These packets contained heat sealed plastic polythene packets containing off white coloured granular substance, which was emanating a sharp pungent smell. 1.5 Small quantity of the substance from each of the 34 packets was taken and on testing with Narcotics Drug Detection Kit, it showed positive test for Heroin. The weighment of the packets were carried out. The details are as under :-
S. No. Packet Gross weight (in Net weight (in kgs.) No. Kgs.)
1. A-1 1.032 1.004
2. A-2 1.023 0.996
3. A-3 1.012 0.988
4. A-4 1.013 0.990
5. A-5 1.028 1.001
6. A-6 1.023 0.997
7. A-7 1.021 0.995 SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 6 of 96 :: 7 ::
8. A-8 1.020 0.995
9. A-9 1.019 0.992
10. A-10 1.020 0.995
11. A-11 1.015 0.990
12. A-12 1.017 0.992
13. A-13 1.015 0.989
14. A-14 1.021 0.994
15. A-15 1.030 1.007
16. A-16 1.014 0.990
17. A-17 1.030 1.006
18. A-18 1.013 0.989
19. A-19 1.027 1.002
20. B-1 1.027 1.003
21. B-2 1.020 0.996
22. B-3 1.031 1.008
23. B-4 1.031 1.009
24. B-5 1.039 1.017
25. B-6 1.024 1.001
26. B-7 1.041 1.020
27. B-8 1.027 1.002
28. C-1 1.022 0.998
29. C-2 1.025 1.003
30. C-3 1.026 1.003
31. C-4 1.028 1.005
32. C-5 0.994 0.972
33. D-1 0.954 0.934
34. E-1 1.010 0.990 Total 34.692 33.873 SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 7 of 96 :: 8 ::
1.6 Both the African national were informed that possession of narcotics Drug was punishable under the NDPS Act, 1985 and the recovered off white granular substance, which prima facie tested positive for Heroin being a narcotic drug was liable to confiscation u/s 60 NDPS Act, 1985.
Thereafter, all the 34 bags, which in total weighing 33.873 Kgs. (net weight) and both the black and red colour shoulder bags of 'HERO' brand were seized by PW-2, IO. Two representative samples from each of the seized 34 packets containing off white granular substance weighing 5 gms. each, were drawn and kept in zip locked small polythene packets, which were marked as A-1A, A-2A, A-3A, A-4A, A-5A, A-6A, A-7A, A-8A, A-9A, A-10A, A-11A, A-12A, A-13A, A-14A, A-15A, A-16A, A-17A, A-18A, A-19A, B-1A, B-2A, B-3A, B-4A, B-5A, B-6A, B-7A, B-8A, C-1A, C-2A, C-3A, C-4A, C-5A, D-1A, E-1A, and A-1B, A-2B, A-3B, A-4B, A-5B, A-6B, A-7B, A-8B, A-9B, A-10B, A-11B, A-12B, A-13B, A-14B, A-15B, A-16B, A-17B, A-18B, A-19B, B-1B, B-2B, B-3B, B-4B, B-5B, B-6B, B-7B, B-8B, C-1B, C-2B, C-3B, C-4B, C-5B, D-1B and E-1B. SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 8 of 96 :: 9 ::
1.7 A and B batch of samples were further individually packed in 68 numbers of separate yellow coloured papers envelopes, which were also given the same marking and the samples were kept in the zip locked small polythene packets. The envelopes were individually sealed over with a paper slips bearing dated signature of the panch witnesses, both the accused persons and the complainant with DRI Seal no. 10. This seal was obtained by the PW-2, IO from Sh. V.S. Pandey, Senior Intelligence Officer, DRI (Hqs.), New Delhi. After taking these 68 samples, the off white granular substance suspected to be Heroin was individually repacked in the original polythene packets and cloth bags from which they had been recovered. The packets were further kept in white cloth bags duly stitched and marked as A-1 to A-19, B-1 to B-8, C-1 to C-5, D-1 to D-1 corresponding to marking of respective polythene packets. The bags were also sealed with DRI seal no. 10 over a paper slip bearing dated signature of the panch witnesses, both the accused persons and the complainant.
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1.8 The 34 bags were then kept in a steel trunk alongwith two shoulder bags. The trunk was wrapped and stitched with a white cloth and sealed with DRI seal no. 10 over a paper slip bearing dated signature of panch witnesses, both the accused persons and the complainant.
The Test Memos (Ex.PW2/M and Ex.PW2/N) in triplicate were also prepared. Facsimile of DRI seal no. 10, was also affixed on the same. Panchnama (Ex.PW2/D) was also prepared by Sh. Raj pal Singh. IO/ PW-2 regarding these proceedings. The contents of panchnama were explained to both accused persons and both panch witnesses and they signed the same. The facsimile of DRI seal was also affixed on panchnama.
1.9 The accused no. 1 Sampson Chukwudi was given a summon dated 30.03.2009 (Ex.PW2/G), pursuant to which at 5.30 pm, on the same day, voluntary statement of accused Sampson Chukwudi was recorded running into 11 pages tendered u/s 67 NDPS Act (Ex.PW2/H). Similarly, pursuant to the summon (Ex.PW2/E) issued to accused no. 2 SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 10 of 96 :: 11 ::
Ms. Lahia Junias, she appeared at 2.15 pm on 30.03.2009 and tendered her voluntary statement running in 7 pages (Ex.PW2/F). This statement was given by accused no. 2 Ms. Lahia Junias in the presence of Ms. Poonam Aggarwal, Tax Assistant, DRI (Hqs.), New Delhi. In their statement u/s 67 NDPS Act, they have stated inter-alia that on 29.03.2009, they both met near Kamal Cinema at about 11.45 am and hired an auto for ISBT, from where they took bus for Ludhiana. At Ludhiana they were handed over two bags of black and red colour containing narcotics drug and they were informed that the two bags contained 19 and 15 packets of Heroin each and, thereafter, they boarded a bus for Delhi, which left Ludhiana at 11 pm. They got down near a bus stop on the Ring Road in Delhi at about 6 am on 30.03.2009, where they were apprehended. Both the accused thus admitted the possession and recovery of narcotic drug from their possession. A-1 Sampson Chukwudi stated in his statement that he used to collect drugs from Ludhiana and deliver same at INA Market, Delhi on the instructions of one Mr. Frank, who lived in Nigeria. He did not disclose any SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 11 of 96 :: 12 ::
further details about person delivering and collecting narcotics drugs from him except that Frank used to give directions to him on his mobile number 9971296790. 1.10 Since A-1 Sampson Chukwudi and A-2 Ms. Lahia Junias were found in possession of narcotic drug, and involved in dealing in narcotic drugs as per their statement under Section 67 NDPS Act earlier also, they were formally arrested on 30.03.2009 in accordance with law vide arrest memos Ex.PW2/J and Ex.PW2/K, respecitvely. They were got medically examined on 31.03.2009 vide MLC Ex.PW14/A and Ex.PW15/A, respectively and produced before the court on the same date. The intimation of their arrest was conveyed to their respective relatives.
1.11 On 31.03.2009, Sh. K.K. Sood (PW-7) Assistant Director (G.I.) handed over 34 representative samples packets to PW-6 Sh. Jagdish Rai, Stenographer, Gr.I, DRI, New Delhi, alongwith forwarding letter (Ex.PW5/A) of the even date as well as the test memos (Ex.PW2/M) in SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 12 of 96 :: 13 ::
duplicate, in intact condition, for onward transmission to Central Revenues Control Laboratory (CRCL), New Delhi, for chemical analysis and he handed over the same alongwith forwarding letter and test memos in duplicate, to Sh. V.P. Bahuguna (PW-3), Assistant Chemical Examiner, CRCL, New Delhi, on 31.03.2009.
1.12 The seized case property alongwith the packing material etc. was deposited by Mr. Jyothimon Dethan (PW-15), Intelligence Officer, DRI, New Delhi with Mr. Lakhi Ram, Inspector, Disposal, Valuable Godown, New Customs House on 31.03.2009 in intact sealed condition, vide receipt Ex.PW7/B and an entry of deposit was made in Valuable Godown Register vide Ex.PW9/A. 1.13 The report under Section 57 NDPS Act, 1985 (Ex.PW2/L) regarding seizure of narcotics drugs and arrest of the accused persons, was submitted by the complainant (PW-2) to his immediate superior officer, Sh. V.S. Pandey, SIO, DRI, New Delhi on 31.03.20009.
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1.14 In pursuance of summon dated 31.03.2009 (Ex.PW2/O), panch witness Mr. Ashok Kumar appeared before the IO/ PW-2 and tendered his statement under Section 67 NDPS Act (Ex.PW2/Q). Similarly, pursuant to summon dated 13.04.2009 (Ex.PW2/P), the panch witness Mr. Vinod Kumar appeared and tendered his statement under Section 67 NDPS Act (Ex.PW2/R).
1.15 On 28.04.09, Mr. S.C. Mathur, Chemical Examiner, CRCL submitted his report (Ex.PW3/B) and opined that on analyses, the samples were found to be containing diacetylmorphine (Heroin) having purity percentage varying from 62.8% to 86.3%.
1.16 The residential premises of accused no. 2 Lahia Junias at C-1/25, Vasant Vihar, New Delhi, was searched on 30.03.2009 by PW-13 Sh. D.P. Saxena in the presence of two witnesses on the basis of authorization (Ex.PW4/A) issued by PW-4 Sh. P.K. Singh, Dy. Director. Nothing incriminating was recovered. Panchnama was prepared vide Ex.PW13/A. SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 14 of 96 :: 15 ::
Similarly, the residential premises of accused no. 1 Sampson Chukwudi at Third Floor, A-19, Humayun Pur, New Delhi, was searched in the presence of two witnesses on the basis of authorization (Ex.PW7/A). Panchnama of search (Ex.PW15/A) was prepared by PW-15 Jyothi Dethan. Nothing incriminating was recovered. The Joint Secretary of Ministry of External Affairs was informed through Mr. K.K. Sood, Assistant Director, DRI, New Delhi on 01.04.2009 regarding the seizure of 33.873 Kgs of Heroin and also about the arrest of the accused persons.
1.16.1 Sh. K.K. Sood also wrote a letter to Mr. R.K. Singh, Nodal Officer of M/s. Bharat Cellular Ltd. for subscriber details of mobile no. 9971296790, on which A-1 used to receive instruction from one Mr. Frank. It was informed that it was a number of a prepaid connection in the name of Sh.
Kaushlesh Divedi. Summons (Ex.PW2/S-1 and Ex.PW2/S-2) were issued under Section 67 NDPS Act to Mr. Kaushlesh Divedi. However, same were returned unserved and it was found that Kushlesh Divedi had never stayed at the given SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 15 of 96 :: 16 ::
address i.e. 224, Village-Dera, New Delhi.
2.0 After completing the investigation, the present complaint Ex.PW2/A was filed by the complainant Sh. R.P. Singh, Intelligence Officer of DRI. 3.0 The complaint for the offence punishable under Section 21 and 29 of NDPS Act was filed on 17.09.2009 and the cognizance of the offence was taken on the same day. My learned Predecessor framed charges against both the accused persons for the offence punishable under Section 21(C) and 29 read with Section 21 NDPS Act. Both the accused persons had pleaded not guilty and claimed trial. 4.0 In order prove its case, the prosecution/ DRI had examined following witnesses.
PROSECUTION EVIDENCE:
4.1 PW-1 is Sh. Gurjeet Singh, Intelligence Officer, SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 16 of 96 :: 17 ::
DRI, who had received the specific information Ex.PW1/A that two African Nationals, one tall lady and a medium height man, wearing spectacles and a cap would be arriving at G.T. Karnal Road between 06:00 am - 06:30 am and would be carrying narcotics drugs in shoulder bags carried by them. He deposed that the said information was put in writing and was handed over to Sh. P.K. Singh, Dy. Director, DRI. 4.2 PW-2 is Sh. Rajpal Singh, Intelligence Officer. He is the complainant in this case, who filed the complaint Ex.PW2/A. He has deposed that the then Dy. Director, Sh.
P.K. Singh had conveyed the information received by him on 29.03.2009 and directed him to take necessary action on the said information. He has deposed that on 30.03.2009, he had called panch witnesses in DRI office at about 05:00 am and they were requested to join the DRI team in interception of the said two persons with drugs. This witness has narrated the entire prosecution case in his examination-in-chief and has proved the documents which were prepared by him during the proceedings. He has proved the notices under SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 17 of 96 :: 18 ::
Section 50 NDPS Act, which were served upon A-1 and A-2, as Ex.PW2/B and Ex.PW2/C, respectively. He has deposed that reply of both the accused persons to the notice appears at portion 'B to B' on their respective notices and both of them signed the same at points 'C'.
4.2.1 PW-2 proved the panchnama Ex.PW2/D showing the recovery and seizure. He has also proved the annexures to the panchnama as Ex.PW2/D-1 to Ex.PW2/D-6. He deposed about the issuance of summons to A-2 Ms. Lahia Junias as Ex.PW2/E and her statement given in the presence of Ms. Punam Aggarwal as Ex.PW2/F. He has further deposed that the summons Ex.PW2/G were issued to A-1 Sampson Chukwudi, on which he tendered his statement Ex.PW2/H. He has also proved the Arrest Memo of the accused persons Ex.PW2/J and Ex.PW2/K, respectively. He has also proved the report under Section 57 NDPS Act Ex.PW2/L. The test memos Ex.PW2/M; receipt of the test memos from CRCL Ex.PW2/N;
issuance of summons to panch witness Sh. Ashok Kumar as Ex.PW2/O; his statement under Section 67 NDPS Act as SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 18 of 96 :: 19 ::
Ex.PW2/Q. Summons to second panch witness as Ex.PW2/P and his statement recorded under Section 67 NDPS Act as Ex.PW2/R. He has also proved the summons issued to Sh. Kaushlesh Dwivedi as Ex.PW2/S-1 and Ex.PW2/S-2. He also proved the report on the summons as Ex.PW2/T. 4.2.3 PW-2 also referred to the entry made in the seal movement register and has also proved the case property, as produced in the Court. He has categorically deposed that the seal on all the packets was in intact condition when produced in the Court. He has also proved the complaint Ex.PW2/D. 4.3 PW-3 Sh. H.P. Bahuguna, Assistant Chemical Examiner, Central Revenue Control Laboratory, Delhi has deposed that on 31.03.2009, he received 34 sample packets along with forwarding letter and test memos in triplicate. He deposed that these sample packets were duly sealed with the seal of DRI-10 and seals were in intact condition and they tallied with the facsimile given on the test memos.
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4.3.1 PW-3 further deposed that he had issued a receipt Ex.PW3/A on receipt of 34 sample packets. He has also proved the Chemical Analysis Report Ex.PW3/B and deposed that each of the 34 samples gave positive report of diacetylmorphine and the percentage of diacetylmorphine varied from 62.8% to 86.3%.
4.4 PW4 is Sh. Pankaj K. Singh, Joint Director, Directorate of System, CBEC New Delhi, the then Dy.
Director, DRI (HQ), New Delhi. He deposed that on 29.03.2009, Mr. Gurjit Singh, Intelligence Officer, DRI, had placed a secret information in writing to him being his subordinate. After going through the intelligence placed before him and having discussion with Sh. Gurjeet Singh, he called Sh. Raj Pal Singh, Intelligence Officer and directed him to take necessary action for seizure and apprehension, if any. The directions were given to him in writing, which are endorsed from point Z to Z on Ex. PW1/A. 4.4.1 PW-4 further deposed that he was also the member of the team being Sr. Officer and the said team SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 20 of 96 :: 21 ::
was headed by Sh. Raj Pal Singh, Intelligence Officer. They reached at the spot and accused persons were identified and intercepted by Sh. Rajpal Singh and other DRI officers and the accused were accompanied to the office of DRI from the place of interception for further investigation. 4.4.2 PW-4 further deposed that apart from DRI officers, a team of other officers were also consist of two public persons at that time when the accused persons were apprehended. He further deposed that further investigation was conducted by Sh. Rajpal Singh, Intelligence officer. He issued search warrant in favour of Sh. D.P. Saxena for conducting the search of the premises of accused Sampson vide Ex. PW4/A. Execution report of the search warrant was also placed before him vide Ex. PW4/B. 4.5 PW-5 is Sh. Jagdish Rai. He was Stenographer, Grade-I, DRI HQ, New Delhi. He deposed that on 31.03.09, he was handed over 34 sealed samples by Sh. K.K. Sood, Assistant Director, DRI for taking the samples to CRCL SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 21 of 96 :: 22 ::
alongwith a forwarding letter and test memo in duplicate. He has proved the forwarding letter Ex. PW5/A, and testified that he deposited the samples with CRCL vide Ex. PW3/A with acknowledgement thereof.
4.5.1 PW-5 was examined by 18.08.2010, thereafter, the prosecution examined Sh. K.K. Sood on 08.10.10. In between no PW was examined. When PW Sh. K.K. Sood was examined on 08.10.2010, he was given the prosecution witness no. 7. Hence, there is no PW6 in the present case.) 4.6 PW-7 is Sh. K.K. Sood, Deputy Director, DRI HQs, New Delhi. He deposed that on 30.03.2009, he issued search authorisation in the name of Sh. Jyothimon, for conducting the search of the premises of accused Lahia Junias @ Batty at Humayun Pur, New Delhi, vide Ex. PW7/A. On the same date, he also received case property and duplicate set of 34 representative samples. These samples were sealed in separate envelopes and bor marking on the SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 22 of 96 :: 23 ::
same. The samples and the case property were sealed with the seal of DRI-10 and given to him. He further deposed that on 31.03.09, he handed over one set of the samples to Sh. Jagdish Rai (PW5), for depositing the same with CRCL along with duplicate set of Test Memo.
4.6.1 PW-7 further deposed that he handed over steel trunk duly sealed with the seal of DRI 10 containing, case property to Mr. Jyothimon, IO for depositing in the Valuable Godown in New Customs House, New Delhi. He further deposed that on 08.04.2009, he signed a letter addressed to M/s. Bharti Cellular Ltd. to provide the subscriber and call details of the telephone number reported to be used by accused Sampson Chukwudi. He further deposed that on 19.05.09, he received a report from CRCL alongwith the remnant samples and marked it to concerned officer for keeping those things on record/custody. He deposed that the remnant samples received alongwith the test memo were found to be sealed with the seal of CRCL.
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4.7 PW-8 Smt. Poonam Aggarwal was a member of the DRI team and had witnessed the interception of accused persons, recovery and seizure of narcotics drugs from possession of accused. She had also witnessed the tendering of the statement Ex. PW2/f by accused no. 2 under Section 67 NDPS Act, before PW2 Sh. Rajpal Singh. Her statement is on the same line as that of PW-2 (IO) 4.8 PW-9 is Sh. Lakhi Ram, Inspector, Valuable Godown, New Customs House. He had received the case property on 31.03.2009. He deposed that on checking the condition of the pulanda, he had found condition of seals of DRI-10 on pullandas intact. He has proved the receipt Ex.
PW7/B and also the entry in the valuable godown register Ex. PW9/A. He has deposed that the case property, kept in valuable godown remained in intact condition during his tenure.
4.9 PW-10 is Sh. V.S. Pandey. He had issued the seal of DRI-10 to PW2 Sh. Rajpal Singh, Intelligence Officer, DRI SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 24 of 96 :: 25 ::
and had also received it back. He had proved the relevant entry in the Seal Movement Register as Ex.PW2/U. He had also received the report under Section 57 NDPS Act Ex.PW2/L from PW2 Sh. Rajpal Singh, IO.
4.10 PW-11 Sh. R.K. Singh, Nodal Officer, M/s Bharti Airtel Limited had furnished call details through forwarding letter Ex.PW11/A. He had also proved the call details as Ex.PW11/B. He had also proved the certificate undre Section 65-B Evidence Act as Ex.PW11/C. 4.11 PW-12 Sh. Ravikesh had proved the report as Ex. PW2/T to establish that Kaushlesh Divedi never resided as tenant at 224, Village Dera, New Delhi-74. 4.12 PW-13 Sh. D.P. Saxena, Intelligence Officer, DRI was also a member of interception team and recovery of contraband on 30.03.2009. He deposed on same line as PW-2. He deposed that he remained with the team till examination of bags was going on and, thereafter, he left for SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 25 of 96 :: 26 ::
some other official duty. He had also conducted search at residential premises of A-1 Sampson Chukwudi at Vasant Vihar after search authorization Ex.PW4/A was issued by Sh. P.K. Singh, Dy. Director. He prepared panchnama of search Ex.PW13/A. He deposed that nothing incriminating was recovered from the house-search.
4.13 PW-14 Dr. D.S. Chauhan, RML Hospital had medically examined A-1 Sampson Chukwudi and had submitted the report Ex.PW14/A. 4.14 PW-15 Dr. Durgesh had medically examined A-2 Ms. Lahia Junias and had drawn the report Ex. PW15/A. No fresh external injury has been noticed in both the reports. 5.0 DRI/ complainant had examined Sh. Jyothimohan Dethan (PW-15) on 23.02.2012. As per serial numbers given to witnesses examined earlier, he should have been given serial no. "PW-16", but due to oversight he was also given serial no. "PW-15". PW-15 Sh. Jyothimon Dethan had SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 26 of 96 :: 27 ::
conducted search of premises of accused no. 2 and had drawn panchnama Ex.PW15/A. He had also carried the sealed case property in intact sealed condition and deposited in Valuable Godwon through PW Lakhi Ram, In-charge of Godown vide receipt Ex.PW7/B.
5.1 As per his deposition on 30.03.2009, Mr. K.K. Sood, Assistant Director (PW-7) had given him the search authorisation (Ex.PW17/A) to conduct the search on the house of Lahia Junias W Batty at A-90, Hymayun Pur, New Delhi. Thereafter, he conducted search in the presence of the landlord Mr. Girdhari Lal alongwith a team of DRI, which included a lady officer. The premises was opened in the presence of landlord and two panch witnesses namely Jitender and Vinor Kumar, who witnessed the raid.Except recovery of two passports nothing incriminating was found during the search. He prepared the panchnama Ex.PW15/A and seized the two passports Ex.PW15/B and PW15/B-1. On 31.08.09, he was handed over a sealed parcel along with deposit memo for depositing the same in Valuable Godown, SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 27 of 96 :: 28 ::
New Customs House and he deposited the sealed case property in intact sealed condition in the Valuable Godown at the New Customs House through Inspector Lakhi Ram, who was in charge of the godown.
6.0 The incriminating evidence in the statements of the witnesses examined by the prosecution/DRI, was stated to accused persons when they were examined under Section 313 Cr.P.C. A-1 Sampson Chukwudi had denied the evidence against him as false. In response to the question no. 4 that the DRI officials along with two public witnesses had searched the spot and after waiting for 20-40 minutes, had seen African Nationals at about 6.10 am, A-1 has stated that they were arrested at around 8 am on the above date from a bus stop. Though he does not know the name of the place where the bus stop was located.
6.1 A-1 stated that they both had come from Ludhiana, Punjab and the officials had just picked them up and they did not see any public witness with them. He SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 28 of 96 :: 29 ::
further stated that they were not told anything by the officials. Later on he was forced to write and sign as the officials deemed fit. He stated that he was not told by the officials of DRI that he alongwith his co-accused could be searched in the presence of a Gazetted Officer or a Magistrate and he also denied that he and his co-accused had told DRI officials that they could take their search. He also stated that nothing was recovered from them and there was no public witness and therefore, there was no possibility of his signing any paper alongwith the public witnesses. 6.2 As regards the statement under Section 67 NDPS Act, he stated that he had written whatever was told to him because the was threatened and the officials had pressed certain portion of his body, which was very painful and thus, to escape all this, he had done whatever was told to him.
After denying the recovery of any contraband from his possession and claiming false implication in this case, he preferred to lead defence evidence to prove that no public witness was present at the spot and no such public witness, SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 29 of 96 :: 30 ::
as mentioned by the prosecution/DRI ever existed. He claimed that DRI/ prosecution has fabricated the documents. 7.0 A-2 Lahia Junias also denied the evidence appearing against her as false. She denied that she was ever served any notice under Section 50 NDPS Act informing about her legal rights to be searched in the presence of a Gazetted Officer or a Magistrate. She stated that she was forced to write on the dictation of the officers of DRI. She further stated that she was forced to right certain papers on the dictation. However, she retracted her statement on the very first opportunity and she had not given any voluntary statement.
7.1 A-2 also stated that the report Ex.PW3/B was prepared by the CRCL officials with the connivance of DRI officials. She claimed to be innocent and being falsely implicated in the present case.
8.0 The accused had taken a defence that there was SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 30 of 96 :: 31 ::
no public witness when they were apprehended by the officials of DRI and documents have been fabricated. The accused summoned witnesses in defence to show that in number of cases investigated by the DRI, no public witness alleged to be member of the raiding team, has ever been examined in the court. Most of the time such witnesses are dropped by the prosecution/DRI on the pretext of their non- availability. The accused Sampson Chukwudi A-1 summoned two witnesses in support of his case, one is Sunil Kumar, Warden, Jail No. 4, Tihar Jail and other is Mr. Jyoti Kumar Kujur, Ahlmad in the court. They were examined as DW1 and DW2.
9.0 DW-1 Sh. Sunil Kumar brought the summoned record pertaining to the forwarding of an application (Retraction Application) moved by the accused Sampson Chukwudi, to member of Secretary, DALSA, Patiala House Courts, Delhi, on 06.04.09. The office copy of the same was placed on record as Ex.DW1/A (Retraction).
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9.1 DW-2 Sh. Jyoti Kumar Kujur, Ahlmad of the Court, deposed that he received an RTI application dated 20th April, 2012 from the office of Public Information officer (P.I.O.), Saket Courts, New Delhi. The copy of the same was placed on record as Ex.DW2/A. He deposed that he had given reply to the RTI query and forwarded the same to the Ld. P.I.O., Saket Courts, alongwith his covering letter dated 30.04.2012.
The information prepared by him was placed on record is Ex.DW2/D (This information contains details of cases in which public witnesses were cited, examined and dropped and why they were dropped). He further deposed that in response to an RTI application dated 10.07.2012 Ex.DW2/E, he had given reply/information vide Ex.DW2/H and sent the same alongwith his covering letter Ex.DW2/G. He has also stated that the reply dated 30.07.2012 Ex.PW2/I bearing his signature, which he had forwarded to the learned P.I.O. 9.1.1 DW-2 also submitted that the requisite information in response to the RTI application was submitted by him vide Ex.PW2/K alongwith its Annexure-A running from SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 32 of 96 :: 33 ::
page 1 to 30 (Ex.DW2/L).
10.0 The accused no. 1 Sampson Chukwudi had moved an application u/s 45 and 73 of the evidence Act dated 31.08.2012, whereby he had sought the comparison of the handwriting and signatures of some of the documents of the present case with the handwriting and signatures on documents in some other cases i.e. DRI vs Sampson Ongera SC No. 01A/11, DRI vs. Vimal Kumar Behl SC No. 59A/01 and DRI vs Hakim Mohd. SC No. 50A/05. It was the claim of the applicant/accused that two witnesses in the present case namely Ashok Kumar and Vinod Kumar are in fact fake witnesses and no such persons ever existed. The Ld. counsel for the accused no. 1 had pointed out that the person named Ashok Kumar was also cited as one of the witnesses in other cases of DRI i.e. DRI vs. Vimal Kumar Behl (SC No. 59A/01) and DRI vs. Hakim Mohd. (SC No. 50A/05) and in the case of DRI vs Sampson Ongera (SC No. 01A/11), the same person, who had written and signed as Ashok Kumar (as a public witness in their case), was examined as a public witness with SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 33 of 96 :: 34 ::
the name of Raju. Therefore, to unearth the truth about these allegations, the original documents containing the statement u/s 67 of the NDPS Act of public witnesses, the notice issued to them and other miscellaneous documents containing their handwritings and signatures in case SC no. 59/01 DRI vs. Vimal Kumar Behl, SC No. 50A/05 DRI vs. Hakim Mohd. and SC No. 01A/11 DRI vs Sampson Ongera, were sent to Director, FSL, Rohini for comparison of signature and writing on these documents with the signatures and writing of the public witnesses in the present case as appearing on Panchnama Ex.PW2/D, the statement Ex.PW2/Q and Ex.PW2/R as well as the signatures appearing on the notice Ex. PW2/D and Ex. PW2/P. Pursuant to those directions, documents were examined and the report was received. The witnesses relevant to those documents (CW-1 Sh. R. Roy) and the handwriting expert from the CFSL (CW-2 Dr. Virender Singh and CW-3 Dr. Jiju P.V.) were examined as court witnesses in this case. Accordingly, the following court witnesses have been examined :
SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 34 of 96 :: 35 ::
11.0 CW1 is Sh. R. Roy, SIO, DRI, Headquarters. He was the Investigating Officer in case "DRI vs. Samson Ongera SC No. 01A/11". He has deposed that in this case two public witnesses namely Raju and Rakesh were joined at the time of apprehension of accused and they remained with them during the raid. He also deposed that the statement u/s 67 of NDPS Act of these two witnesses were also recorded and summons were also issued to them. He deposed that these two witnesses namely Raju and Rakesh could not be examined during the trial as they could not be served at their given addresses.
11.1 This witness was shown the judicial file of the case "DRI vs. Samson Ongera" and after going through the judicial file, he admitted the particulars of public witnesses Raju and Rakesh. He also deposed that both these panch witnesses tendered their statement u/s 67 of NDPS Act in their own handwriting before him.
11.2 This witness had therefore proved the summons SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 35 of 96 :: 36 ::
issued to panch witnesses Raju and Rakesh (in case of DRI Vs. Samson Ongera) as CW1/A and CW1/B respectively. He has proved their statements u/s 67 of NDPS Act Ex. CW1/C and CW1/D respectively (the original file of SC No. 01A/11 was returned after exhibition of these documents). In his cross-examination, he also proved the report, which was received on the summons issued to public witnesses Raju and Rakesh in the case of DRI vs Samson Ongera. The reports were proved as Ex. CW1/E and Ex. CW1/F respectively.
12.0 CW2 Dr. Virender Singh was examined with regard to his report Ex. CW2/A. He had examined the documents Mark Q1 to Q114.
(i) Q-1 to Q-11 are the signatures of the panch witness Ashok Kumar on the panchnama Ex.PW2/D and the statement under Section 67 of NDPS Act Ex.PW2/Q.
(ii) The documents Q-12 to Q-21 are the signatures of the SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 36 of 96 :: 37 ::
public witness Vinod Kumar on the Panchnama Ex.PW2/D and the statement under Section 67 of NDPS Act Ex.PW2/R.
(iii) The documents Q-22 to Q-24 are the signatures of public witness Raju on the panchnama and other documents in the case of DRI vs. Samson Ongera.
(iv) Documents Q-43 to Q-63 are the signatures of the public witness Rakesh in the case of DRI vs. Samson Ongera.
These signatures have been proved by the CW2 as Ex.CW2/A-2 (collectively).
(v) The documents Q-64 to Q-78 are the signatures of a public witness Ashok Kumar in the case titled "DRI vs. Hakim Mohd". They have been proved on record as Ex.CW2/A-4 collectively.
(vi) Questioned documents Q-79 to Q-96 are the signatures of Rajesh Kumar, public witness in the case of "DRI vs. Vimal Kumar Behl".
SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 37 of 96 :: 38 ::
(vii) Documents Q-97 to Q-114 are the questioned signatures of public witness, namely, Ashok Kumar in the case "DRI vs Vimal Kumar Behl". These documents have been proved on record as Ex.CW2/A-3 (collectively).
12.1 As per the report Ex.CW2/A submitted by Dr. Virender Singh CW2, no common authorship of the writing/signatures which were stamped and marked Q1 to Q114 was found.
13.0 Thereafter, an application was again moved by the defence counsel for accused no. 1 under section 47and 73 read with Section 165 Evidence Act dated 05.03.2014 for the re-examination of these documents on the ground that CW2 had only given his opinion with regard to the signatures and not with regard to the handwriting of the public witnesses in the present case and three other cases. The documents, therefore, were again sent to FSL and after examination of these documents, the report was submitted by Dr. Jiju PV as Ex.PX.
SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 38 of 96 :: 39 ::
14.0 Dr. Jiju P.V., Senior Scientific Expert was examined as CW-3 in the present case. He placed his report Ex.PX dated 28.07.2014 on the record. As per his report, the author of signature and writing on Q-1 to Q-11, Q-11/1 to Q-11/6 (signatures of Ashok Kumar) and Q-115 to Q-119 (writing of Ashok Kumar) and author of Q-22 to Q-42 (that is, signature of public witness Raju in case of "DRI Vs. Samson Ongera) and Q-97 to Q-114 (that is, signatures of public witness Ashok Kumar in "DRI Vs. Vimal Kumar Behl) is one and the same person. The DRI/complainant challenged the report and sought permission to cross-examine the court witness CW 3.
15.0 I have heard the arguments by Sh. Satish Aggarwal, learned SPP for DRI, Sh. Manish Khanna, Advocate for A-1 Sampson Chukwudi and Sh. Kamal J.S. Maan, Advocate for A-2 Lahia Junias who have also filed written submissions I have also gone through the evidence on the record carefully.
SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 39 of 96 :: 40 ::
SUBMISSIONS OF LEARNED SPP FOR DRI:
16.0 It was argued by learned SPP for DRI that statements of prosecution witnesses are creditworthy and reliable. PW-1, PW-2, PW-8 and PW-13 prove the apprehension of accused with narcotics drugs (heroin). There is no inherent contradiction in their statements and discrepancies, if any, noted are minor and can be ignored.
He submitted that DRI officials had joined two public witnesses during the raid, who had witnessed the recovery and seizure of narcotics drugs from accused, although, they could not be examined during trial, as they could not be served. He submitted that even in the absence of statement of public witness, the statement of official witnesses can be relied. He argued that all statutory compliance have been made. He argued that apart from the evidence of recovery witnesses, there is statement of accused persons under Section 67 NDPS Act , which by itself is sufficient to establish guilt of accused. Accused have not been able to establish that statement was not voluntary or it was obtained under pressure and coercion. He argued that retraction of SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 40 of 96 :: 41 ::
statements is belated, after thought and guided and this can be ignored. He further argued that total recovery is of more than 30 kg of 'heroin'. He argued that once the prosecution proved the possession of narcotics drugs from accused, presumption of culpable state of mind under Sections 35 and 54 of NDPS Act arise against accused which they have failed to rebut. Such a huge quantity of narcotics drugs cannot be planted. Moreover, there is no reason or motive for false implication of accused.
17.0 Learned SPP relied upon number of judgments in support of his contentions. With regard to statement under Section 67 of NDPS Act, he relied upon Kanhiya Lal Vs. Union of India AIR 2008 (SC) 1044, Raj Kumar Karwal Vs. UOI & Ors.
1991 Cr.L.J. 97(SC), K.I. Pavunny Vs. Asstt. Collector (1997) 3 SCC 721, Triveni Prasad Vs. State of Maharashtra AIR 1976 SC 2156, A.K. Mahaboob Vs. I.O. NCB (2001) 10 SC 203 and UOI Vs. Satrohan 200 (3) JCC (Narcotics) 182-SC. 17.1 With regard to evidential value of testimony of SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 41 of 96 :: 42 ::
official witnesses, learned SPP relied upon Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, Kiran Mehlawat Vs. State 2010 (2) JCC 1212, M. Prabhulal Vs. The Assistant Director, DRI 2003 (3) CC (SC) 67, State of Punjab Vs. Surjit Singh & Anr. 2009 (3) JCC (Narcotics) 106, Takhaji Hiraji Vs. Thakore Kubersing Chamansing & Ors. 2001 IV AD (SC) 393, Dalbir Kaur & Ors. Vs. State of Punjab 1977 Crl.L.J. 273 (SC), Shanker Vs. State of U.P. (1975) 3 SCC 851, Sumit Tomar Vs. State of Punjab 2012 (10) Scale 507 and P.P. Beeran Vs. State of Kerala II (2001) SLT 779.
17.2 With regard to compliance of Section 55 of NDPS Act, learned SPP relied upon Siddiqua Vs. NCB 2007 (1) JCC (Narcotics) 22, Balbir Kaur Vs. State of Punjab 2009 (3) JCC ( Narcotics) 143, Ruiz Guerrero Dolore Vs. Customs 2000 (2) JCC (Delhi) 357, Babubhai Odhav Ji Patel & Ors. Vs. State of Gujarat (2005) 8 SCC 725, Nirmal Singh Pehlwan Vs. Inspector, Customs 2010 (1) JCC (Narcotics), Madan Lal Vs. State of H.P. 2003 Crl.L.J. 3868 SC, State of Haryana Vs. Vidyadhar 2002 (3) SCC 296, P.P. Fathima Vs. State of Kerala SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 42 of 96 :: 43 ::
2003 (3) CC Cases (SC) 299, Rangi Ram Vs. State of Haryana 2002 (2) JCC 1041 and Khet Singh Vs. UOI (2002) 3 SC Cases
380. 17.3 With regard to presumption under Section 35 NDPS Act, learned SPP relied upon Amjad Shahid Vs. State 2005 (1) CC cases (HC) 68, Arif Butt Vs. State 2005 (1) CC Cases (High Court) 64, Madan Lal & Anr. Vs. State of Himachal Pradesh 2003 (3) JCC 1330, Jagdish Budhroji Purohit Vs. State of Maharashtra (1998) 7 SCC 270, Megh Singh Vs. State of Punjab 2003 VIII AD (SC) 27, Devenchand Kalyan Tandel Vs. State of Gujarat & Anr. 1996 1 SVLR (Crl.) 245 SC, Pawan Mehta Vs. State 2002 Drugs cases 183 (Delhi High Court), UOI Vs. Munna & Anr. 2004 (3) JCC 1385 and Shah Guman Mal Vs. The State of Andhra Pradesh AIR 1980 SC 793.
17.4 With regard to minor discrepancies and contradictions in statements of witnesses, learned SPP relied upon Amrita @ Amrit Lal Vs. State of M.P. 2004 (1) CC Cases SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 43 of 96 :: 44 ::
(SC) 220, Brij Lal Vs. State of Haryana 2002 (1) CC cases (SC) 46, State of Himachal Pradesh Vs. Lekh Raj & Ors. 2000 (1) JCC SC 57, Sukhdev Yadav & Ors. Vs. State of Bihar (2001) 8 SCC 86, Rohtas @ Bunder Vs. State of Haryana, 2003 (2) CC cases (P&H) 238, Dharamvir & Anr. Vs. The State Govt. of N.C.T. Of Delhi 2002 (3) JCC 1834, Ezhil & Ors Vs. State of Tamilnadu 2002 (2) JCC 957 and Chander Bhan Ram Chand Vs. State 1971 Crl. L.J. 197 (P&H).
SUBMISSIONS OF LEARNED COUNSEL FOR A-1: 18.0 Learned counsel for A-1 Sampson Chukwudi has assailed the case of DRI/ complainant on many counts. He argued that the entire proceedings of raid allegedly conducted is nothing, but farce and the DRI officials have fabricated the documents. He submitted that perusal of statements of recovery witnesses, PW-2 Sh. Rajpal Singh, PW-4 Sh. Pankaj K. Singh, PW-8 Ms. Poonam Aggarwal and PW-13 Sh. D.P. Saxena would reveal that the story narrated by them is nothing, but false. He submitted that the information (Ex.PW1/A) was to the effect that accused would SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 44 of 96 :: 45 ::
be wearing a cap. This information was allegedly received on 29.03.2009 for 30.03.2009. He submitted that it is unbelievable, how a person could give an information, as to what the suspect would be wearing on the next day? This information by itself shows that it is concocted story, devoid of any truth. He submitted that none of the recovery witnesses could tell, as to from which side, the accused persons had come. The information Ex.PW1/A was silent as to whether the suspects would be going out of Delhi or would be coming to Delhi. But, still the raiding team chose to stand on the Bus Stop of in coming buses to Delhi. None of the members of raiding team could see the accused persons getting down from any bus or any other vehicle and they deposed that just after reaching the bus stop, they saw the accused persons after 10 - 15 minutes. He further argued that neither the names of DRI officials, who constituted the team is mentioned in the complaint or in the panchnama nor any log book of the official vehicle in which the raiding team had proceeded from the office of DRI nor their make or registration number have been submitted or mentioned any SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 45 of 96 :: 46 ::
where in the complaint or panchnama.
18.1 Learned counsel for A-1 argued that the complainant/ DRI allegedly joined two public witnesses, namely, Sh. Ashok Kumar and Vinod Kumar, but they were not brought into witness box. He submitted that statements of CW-1 Sh. R. Roy and CW-3 Dr. Jiju P.V. would establish that no public witness was joined in the alleged raid by DRI officials. He went to the extent of saying that in fact, no person with the names Ashok Kumar or Vinod Kumar existed.
He submitted that during the trial, they were summoned, but on the summons of the witnesses, the report was to the effect that the "addresses are not traceable". 18.1.1 PW-2 Sh. Rajpal Singh, IO of the case could not clarify about the addresses, which were mentioned on the summons of these public witnesses, that is, Ex.PW2/O and Ex.PW2/P, pursuant to which panch witnesses Ashok Kumar and Vinod Kumar appeared in DRI office and gave the statement under Section 67 NDPS Act. If they could be SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 46 of 96 :: 47 ::
served on the address mentioned in Ex.PW2/O and Ex.PW2/P during the investigation then they could have been served on the address during the trial also. He submitted that PW-2 was inconsistent in his statement. In his examination, he stated that he could not trace the addresses of independent witnesses, but later on when he was confronted with summons of these two witnesses, he said that he was able to locate the address, but not witness and thus, he changed his stand. If he was able to locate the addresses of the witnesses then there was no reason why the witnesses could not be produced.
19.0 He further submitted that statement of PW-8 Smt. Poonam Aggawal would show that the recording of statements of accused persons under Section 67 NDPS Act is also manipulated. PW-8 had said that the statements of A-2 was recorded from 02:30 pm to 05:00 pm, but PW-2 stated that during this time, he recorded the statement of A-1 and recorded the statement of A-2 subsequently, which would mean that statement of A-2 Ms. Lahia Junias was recorded SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 47 of 96 :: 48 ::
after 05:00 pm. 19.1 Learned counsel for A-1 submitted link evidence is also missing as that there is no evidence is led by DRI/ complainant as to who was the custodian of second set of samples in this case.
20.0 With regard to statement under Section 67 NDPS Act, learned counsel argued that it was retracted by accused persons at earliest. Moreover, he argued that this statement is not conclusive proof against either of the accused, as, it was not given voluntarily and it was dictated to the accused persons when they were in the custody of DRI officials. He further submitted that statement under Section 67 NDPS Act, which is not voluntary and which has been retracted cannot be made basis of conviction of accused. He submitted that retraction by itself would entail that statement under Section 67 NDPS Act was not voluntary and, therefore, it cannot be acted upon. He submitted that argument of learned SPP that statement of accused under Section 67 NDPS Act can be SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 48 of 96 :: 49 ::
made sole basis of conviction, not withstanding the retraction thereof, is no more valid. He submitted that judgments on which learned SPP has relied in support of his submissions, have been overruled.
20.0.1 Learned counsel had submitted that first of all, the entire story of conducting a raid is palpably false. Secondly, the only evidence on which the prosecution rely is the statement under Section 67 of NDPS Act given by accused persons, which in the present case is not admissible and cannot therefore, be relied upon, as it has been retracted. He submitted that law on confession is very clear that it can be used only as an aid to incriminating evidence, which comes on record against accused and the court use it only to reassure itself about the truthfulness of the evidence, which had come on record. Learned counsel for A-1 has not only orally adduced arguments, but had submitted written submissions number of times relying upon number of judgments in favour of his arguments. SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 49 of 96 :: 50 ::
21.0 In support of his contentions, learned counsel placed reliance upon State of Haryana Vs. Ram Singh, Crl. Appeal No. 78/99, Bharat Vs. State of Madhya Pradesh AIR 2003 (SC) 1433,. State of Uttar Pradesh Vs. Arun Kumar Gupta AIR (2003) SC 801, Sukhwinder Singh Vs. State (1994) 5 SCC 152, Noor Agha Vs. State of Punjab AIR (2009) SC 852, UOI Vs. Bal Mukund Crl. Appeal No. 1397/2007, Raj Kumar @ Sanjay Vs. State of N.C.T. Of Delhi 14(3) JCC (Narcotics) 156, Hanan Vs. State of N.C.T. of Delhi Crl. Appeal No. 773/ 10, NCB Vs. Ramesh Kumar Crl. Appeal No. 419/97 decided on 29.05.2013, Ambroze Vs. DRI Crl. Appeal No. 9/14 decided on 03.12.2014, Md. Irfan Vs. DRI Crl. Appeal No. 783/12 decided on 08.11.2013, Nnadi Vs. NCB Crl. Appeal No. 146/10 decided on 04.09.2014, NCB Vs. Anju Tiwari Crl. L.P. 353/12 date of decision 05.11.2014.
22.0 Learned counsel for A-2 had also assailed prosecution case on number of counts. He submitted that there is no compliance of Section 42 in the sense that PW-1 Sh. Gurjeet Singh, who received the secret information has SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 50 of 96 :: 51 ::
not been able to show or explain as to on what basis he believed the information so received and has not explained the "grounds or reason of his belief" about the information. 22.1 He submitted that there is no compliance of Section 50 of NDPS Act as the A-2 was not explained about her right to be searched in the presence of Magistrate or Gazetted Officer, as no where in the purported reply of A-2, she stated that she does not wish to get herself searched in the presence of Magistrate or Gazetted Officer. He also submitted that there is no compliance of Sections 55 and 57 of NDPS Act. So far as the statement under Section 67 of NDPS Act is concerned, he stated that it has been retracted by the accused at the earliest opportunity hence, it has lost its evidential value.
22.2 Learned counsel for A-2 further submitted that there are many contradictions in the statements of prosecution witnesses. He further submitted that non-
production of public witnesses and the report of the SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 51 of 96 :: 52 ::
handwriting expert with regard to their statements under Section 67 NDPS Act clearly shows manipulation done by DRI officials. He submitted that no public witnesses were in fact joined and the panchnama proceedings are false and fabricated. He has placed reliance upon judgments in Noor Aga Vs. State of Punjab & Anr. 2008(3) JCC (Narcotics) 135, State of Punjab Vs. Baldev Singh (1993)3 SCC 977, Mohd. Irfaan Vs. DRI Crl. Appeal No. 783/12, James Eazy Franky Vs. DRI Crl. Appeal No. 372/2009, Ritish Chakarvarti Vs. Stae of Madhya Pradesh 207(1) SCC (Crl.) 744, Nnadi K. Iheanyi Vs. Narcotics Control Bureau Crl. A. No. 1416/10, Sehdev Vs. Stae 2009(3) JCC (Narcotics) 128, Mousam Singha Roy & Ors. Vs. State of Bengal 2003 (13) SCC 377, Vijaysinh Chandubha Jadeja Vs. State of Gujarat (2007) 1 SCC (Crl.) 370, Nirmal Singh Pehlwan @ Nimma Vs. State of Gujarat Crl. Appeal No. 1857/10 and Eze Val Okeke @ Val Eze Vs. Narcotics Control Bureau 2005(1) CC Cases (HC) 72.
FINDINGS:
23.0 The case of the DRI/ complainant is that a secret SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 52 of 96 :: 53 ::
information was received with regard to two African nationals (male and female) that they would be coming on 30.03.2009 at GT Karnal Bypass Bus Stop, Ring Road around 06:00 am and would be carrying narcotics drugs (heroin) in shoulder bags, which they would be carrying. This secret information also gave description of those persons. As usual, the raiding party was constituted along with two public witnesses and both the accused were apprehended on the GT Karnal Bypass Road Bus Stop by raiding party.
Appearance of those two persons had matched with the description given in the information. 23.1 The accused persons were taken to DRI office and their bags were searched, which led to recovery of 'heroin' from their possession. The samples taken out were sent to CRCL, which confirmed that the samples were of "diacetylmorphine". Statements of accused persons were recorded under Section 67 NDPS Act, in which they admitted the recovery of narcotics drugs (heroin) from their possession, which they had carried in their shoulder bags. SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 53 of 96 :: 54 ::
Apart from this, they also admitted about their involvement in transacting narcotics drugs from Ludhiana to Delhi.
24.0 Learned SPP for DRI had argued that the prosecution witnesses have proved the recovery of narcotics drugs from accused and the accused persons have also admitted such recovery in their statements under Section 67 NDPS Act. Therefore, first of all, the evidence with regard to recovery of the narcotics drugs/ contraband from the possession of accused needs to be scanned. 25.0 PW-2 Sh. Rajpal Singh, IO of the case, PW-4 Sh. Pankaj K. Singh, Dy. Director, PW-8 Smt. Poonam Aggarwal, a female member in the team and PW-13 Sh. D.P. Saxena, SIO are the witnesses of apprehension of accused persons and subsequent recovery of narcotics drugs (heroin) from their possession. The prosecution had also listed two public witnesses, that is, Ashok Kumar and Vinod Kumar to prove the interception of accused and recovery of drugs from the possession of accused. However, these two witnesses were SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 54 of 96 :: 55 ::
not examined during the trial and they were dropped by the complainant on 10.05.2011 when the summons sent to them were returned back unserved.
26.0 At the very outset, it may be mentioned that it is a case, where recovery of contraband (heroin) of more than 30 kg has been effected. A huge recovery of narcotics drug is allegedly effected from the possession of accused persons, but such a huge recovery of narcotics drugs by itself cannot be taken to mean that statements of prosecution witnesses is to be accepted at their face-value, ignoring the basic principle of criminal jurisprudence. The prosecution has to prove its case against the accused beyond reasonable doubts. It is a settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. 26.1 The Honorable Supreme Court in the case of Noor Aga Vs. State of Punjab (supra) observed as under:
" It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shocking the conscious of SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 55 of 96 :: 56 ::
any Court, but it is well settled that suspicion, however high may be, can under no circumstances be held to be a substitute for legal evidence."
26.2 Thus, the evidence on record needs to be appreciated on the basis of basic principle of criminal jurisprudence without being swayed by the quantity of the narcotics drug allegedly recovered from the accused persons.
27.0 DRI/ complainant rely upon the statements of PW-2 Sh. Rajpal Singh, IO of the case, PW-4 Sh. Pankau Kumar Singh, Dy. Director, PW-8 Smt. Poonam Aggarwal, a female member of raiding and PW-13 Sh. D.P. Saxena, SIO to prove and recovery of contraband (heroin) from the possession of accused persons. All these witnesses have spoken about the apprehension of accused persons and the recovery of the contraband/ narcotics drugs from the bags, which they were carrying. However, after going through the evidence on record,it is observed that recovery of narcotics SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 56 of 96 :: 57 ::
drugs has not taken place in the manner as projected. The improbabilities in the statements of recovery witnesses makes the case of DRI doubtful. Apart from that, the entire story with regard to the joining of two independent witnesses during the raid seems to be very artificial and contrived and indicate concoction. Not only that, even the statements of accused persons, which have been recorded do not inspire much confidence in the manner they have been recorded and in view of discrepant statements of witnesses, in whose presence the statements of accused persons under Section 67 NDPS Act were recorded.
28.0 PW-2 Sh. Rajpal Singh has deposed that he along with raiding team, which included one lady officer, that is, PW-8 Smt. Poonam Aggarwal had reached the spot, that is, Bus Stop on the outer Ring Road, G.T. Karnal Road Bypass and they noticed accused persons at around 06:10 am. If, one goes through the statement of the witness in cross- examination, one would find that somehow it does not appeal to reason. He deposed that they were standing on the SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 57 of 96 :: 58 ::
bus stop, when they noticed accused persons at 06:10 am, however, he could not tell the Court as to how and from which side the accused persons reached the said bus stop. Although, he stated that there was no crowd on the bus stop and only 10 - 12 persons were standing there, still he was not able to tell as to from which side accused persons had come at the bus stop. He had stated that from the DRI office, they had started in two official vehicle, but he was unaware about the make and registration number of the same. No log book of any vehicle was placed on record to show that any official vehicle was used by DRI officials to reach the spot on 30.03.2009.
28.1 PW-2 deposed that accused persons had come to the bus stop, but he was not aware as to by which mode and from which side they came. During the cross-examination, PW-2 stated that when they conducted the search of accused persons no travelling tickets of any of the accused were recovered from their possession. It may be noted that in the statement under Section 67 NDPS Act, Ex.PW2/F and SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 58 of 96 :: 59 ::
Ex.PW2/H, the accused persons allegedly stated that they had come from Ludhiana in bus. If, they had come by bus, they must be having the bus tickets with them, but no such recovery was effected. PW-2 in cross-examination has categorically stated that when the accused persons were apprehended, they neither tried to run away nor they threw away anything. The best evidence with regard to arrival of accused persons from Ludhiana by bus and their getting down on G.T. Karnal Bypass could have been their bus tickets, but it appears that no effort was made to collect the said tickets. Even when the accused in their statements under section 67 of the Act stated that they came by bus the I.O. did not questioned them about the Bus tickets. This in other words would mean that the accused persons were not having any bus ticket with them and this makes the entire prosecution case doubtful that they had come from Ludhiana by bus and were apprehended at G.T. Karnal Bypass. 28.2 PW-4 Sh. Pankaj Kumar Singh was also a member of raiding team, which had apprehended the accused SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 59 of 96 :: 60 ::
persons. He deposed that he accompanied the team headed by Sh. Rajpal Singh (PW-2). He deposed that on reaching the spot, the accused persons were identified and intercepted by PW-2 Sh. Rajpal Singh and other DRI officers from where they were accompanied to the office of DRI for further investigation. Now, as per the case of the prosecution, this witness had accompanied the DRI team to the spot, but it becomes highly doubtful when he said that he had seen the public witnesses for the first time near the spot of interception of accused persons. While the case of the prosecution is that the public witnesses had accompanied the DRI officials from the office itself. If, PW-4 had also accompanied the DRI officials from the office then how he could not see the public witnesses in the office or on the way. He further deposed that he did not notice how the accused persons had reached the spot. It sounds very strange that neither PW-2 nor PW-4 could see as to how the accused persons surfaced on the bus stop suddenly. 28.3 To same effect is the statement of PW-8 Smt. SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 60 of 96 :: 61 ::
Poonam Aggarwal, who was also accompanying the raiding team. PW-8 deposed that after 15 minutes of their arrival at the spot, the accused persons were noticed, but again she also did not notice if they alighted from any bus. She stated that IO might have noticed them.
28.4 PW-13 Sh. D.P. Saxena deposed that at 06:10 am on 30.03.2009, they noticed two persons matching the description given in the specific information and they apprehended them when they started moving towards Burari on the outer Ring Road side. In the cross-examination, he deposed that he was standing near bus stop from where the accused persons were apprehended, but he could not tell where PW-8 and PW-2 were standing at that time. PW-8 had stated that she was standing just few steps away from the bus stop. PW-13 also stated that he was standing near bus stop. Since PW 8 and PW13 were standing so close to each other that in all probability they could notice the presence of each other. If in such circumstances, PW 13 says that he was not aware as to where PW-8 was standing, it raises serious SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 61 of 96 :: 62 ::
doubt about his presence at the spot and his being the member of the raiding team. Otherwise, he would have definitely noticed the presence of PW-8 near bus stop. He further deposed that did not remember as to from which direction and by what conveyance, the accused persons had come, but he had spotted them for the first time at the bus stop at around 06:10 am. The presence of PW 4 and PW 13 in the raiding team also becomes doubtful from the fact that their names do not figure in the pachnama or the complaint as member of the raiding team. They are also not signatory of any documents prepared by PW 2/I.O.
29.0 The statements of the recovery witnesses do not inspire confidence with regard to the manner in which they claimed to have apprehended accused persons. None of them could see how the accused came to spot .Whether they came by any mode of transport or walking no body knows. It is also surprising that the secret informer knew one day in advance that the suspect would be wearing a cap. Was he vested with some occult power?
SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 62 of 96 :: 63 ::
JOINING OF PUBLIC WITNESSES:
30.0 As per the case of DRI, two public witnesses, namely, Sh. Ashok Kumar and Vinod Kumar were joined in the team constituted for apprehension of accused persons. These public witnesses have not been examined during the trial and they were dropped by DRI on 10.05.2011. First of all, it is not clear from the statements of prosecution witnesses as to how these two witnesses came to join the DRI team. PW-2 had deposed that on 30.03.2009, two panch witnesses were called in the DRI office at 05:00 am and they later on joined the DRI team. But, it is not clear as to how they came to DRI office. Even, PW-2 is not aware how these two panch witnesses came to DRI office. He deposed that he had asked one officer of DRI at 04:45 am on 30.03.2009 to call public witnesses, but he did not remember the name of the said officer. He deposed that public witnesses came to him at 05:00 am.
30.1 PW-4 Sh. Pankaj Kumar Singh in cross- examination stated that the public witnesses were arranged SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 63 of 96 :: 64 ::
by IO Sh. Rajpal Singh. PW-13 Sh. D.P. Saxena stated that he did not know as to who called the public witnesses to DRI office. He stated that when he reached the office, public witnesses were already present. Thus, nobody knows how these two public witnesses came to DRI office and from where they were called.
31.0 Learned counsel for accused persons argued that the public witnesses are fictitious persons and in fact, no such person exist. The documents, that is, panchnama Ex.PW2/D, arrest memo of accused persons Ex.2/J and Ex.PW2/K, purported statements of public witnesses, namely, Ashok Kumar, (Ex.PW2/Q) and that of Sh. Vinod Kumar, (Ex.PW2/R), all smack off fabrication and the statements Ex.PW2/R and Ex.PW2/Q have been manufactured. 31.1 It was also argued by learned counsel that invariably in the cases investigated by DRI, the public witnesses are not produced and they are usually dropped from the list of witnesses during the trial. Learned counsel SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 64 of 96 :: 65 ::
referred to statement of DW-2 Sh. Jyoti Kumar Kujur, who had brought the record furnished in response to RTI applications. He submitted that the records produced by DW-2 would show that independent witnesses are not appearing the cases investigated by DRI. While referring to statements of CW-1 Sh. R. Roy and CW-3 Dr. Jiju P.V. , he submitted that the statement of public witness, namely Sh. Ashok Kumar recorded in the present case and statement of one Sh. Raju recorded in the case of "DRI Vs. Samson Ongera" and that of public witness, namely, Sh. Ashok Kumar in the case of "DRI Vs. Vimal Kumar Behl" are written by same person. Meaning thereby, some person is being used by DRI officials to write these statements under different names to show that DRI officials joined public witnesses during investigation.
32.0 The submissions made by learned Counsel is substantiated by the statements of CW-1 Sh. R. Roy and statement of CW-3 Dr. Jiju P.V. and also the statement of PW-2 Rajpal Singh.
SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 65 of 96 :: 66 ::
33.0 First of all, I would refer to statement of PW-2 Sh. Rajpal Singh with regard to service of public witnesses, namely, Sh. Ashok Kumar and Vinod Kumar. Summons to these witnesses were issued during the trial however, they could not be served. During investigation, their statements under Section 67 NDPS Act were recorded. In his statement Ex.PW2/Q and in his summons issued by DRI dated 31.03.2009 (Ex.PW2/O), the address of panch witness Ashok Kumar is shown as "Ashok Kumar, S/o Sh. Ram Kumar, R/o C-56A, Mandawli, Fazalpur, Delhi". He received the summons from IO on 31.03.2009 for recording of statement under Section 67 NDPS Act on 31.03.2009 itself at 04:00 pm. It means that panch witness Sh. Ashok Kumar received his summons from IO for recording of his statement at the address, which was mentioned on the summons. However, when the case came to trial, summons issued to said Ashok Kumar for appearance in the court for statement on 10.05.2011 on the same address, the report was received that "C-56A, Mandawli, Fazalpur, Delhi is a plot, which has nine shops and enquiry made from shopkeepers revealed SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 66 of 96 :: 67 ::
that no person with the name Ashok Kumar resided there". This report was given by Satyapal Singh, HC, duly endorsed by IO Rajpal Singh. The report has been proved on record as Ex.PW2/DB. Though, the report has been endorsed by PW-2 IO Rajpal Singh, but in his statement in the Court on 12.11.2013, he deposed that he had visited the given address to serve the witness, but "he could not locate the given address". He further deposed that he did not ask anybody, where C-56A, Mandawli, Fazalpur, Delhi was, as the enquiry was made by his Hawaldar. He could not even tell what was the landmark, where he kept on sitting in vehicle while his Hawaldar was making enquiry. The falsity of this witness was revealed when he was confronted with printouts, Mark PW2/A and PW2/B, which bear the address C-56A, Mandawli, Fazalpur, Delhi, which is fully constructed area and is having a Mandir and some shops. The witness when shown these printouts admitted that he was looking out for the same address, which is mentioned in printouts, but he did not notice these boards on the above address, as shown in these printouts. He admitted that as per his report on SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 67 of 96 :: 68 ::
summons issued by the Court, Ex.PW2/DB, he was able to trace the address C-56A, Mandawli, Fazalpur, Delhi. 33.1 The statement of this witness that he was not able to trace the address C-56A, Mandawli, Fazalpur, Delhi is contrary to his report Ex.PW2/DB, which said that C-56A, Mandawli, Fazalpur, Delhi is a plot, where nine shops were constructed. This witness till he was confronted with report Ex.PW2/DB stated to the Court that address was not traceable, but the moment the report Ex.PW2/DB was shown to him, he changed his stand and stated in the Court that the address was traceable and he never said that the address could not be traced. The witness therefore is not found to be truthful.
34.0 The arguments of learned defence counsel for accused was that the witness, namely, Raju in the case of "DRI Vs. Sampson Ongera" was also shown the resident of same address, that is, C-65A, Mandawli, Fazalpur, Delhi.
PW-2 was also a member of team in the case of "DRI Vs. SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 68 of 96 :: 69 ::
Samson Ongera (SC No. 01/A/11)". He has admitted that he was part of team in the case of DRI Vs. Samson Ongera and he had seen two independent witnesses, who had joined the investigation. This means that PW-2 had seen the independent witness in the case of DRI Vs. Samson Ongera, namely, Sh. Raju. PW-2 was shown the summons in the name of Sh. Raju, S/o Sh. Raj Kumar R/o C-56A, Mandawli, Fazalpur, Delhi-92 dated 30.07.2010 (Ex.CW1/A). He was also shown the statement recorded under Section 67 NDPS Act and Ex.CW1/C (of said Raju S/o Sh. Raj Kumar). He admitted that the address mentioned in Ex.CW1/A and Ex.CW1/C is the same as was of the panch witness Ashok Kumar in the present case.
34.1 CW-1 Sh. R. Roy, SIO, who was IO of the case of DRI Vs. Samson Ongera has deposed that he had recorded the statement of panch witness under Section 67 NDPS Act in the said case. He deposed that public witness Sh. Raju could not be examined during the trial of the case, as he could not be served at the given address. Meaning thereby that this SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 69 of 96 :: 70 ::
public witness Raju in the case of "DRI Vs. Samson Ongera" also could not be served at the address C-56A, Mandawli, Fazalpur, Delhi. Now the question of authenticity of the statement under Section 67 NDPS of Raju recorded in the case of DRI Vs. Samson Ongera arises. CW-1 has categorically deposed that the witness tendered the statement under Section 67 NDPS Act in his own handwriting before him. Thus, it stands established and proved that the statement of Sh. Raju under Section 67 NDPS Act Ex.CW1/C was written by the said Raju in his own handwriting before CW-1 Sh. R. Roy during the investigation of the case "DRI Vs. Samson Ongera". CW-1 however stated that he cannot say whether the address C-56A, Mandawli, Fazalpur, Delhi actually existed or not, as he did not visit the said address. But, he has stated that as per the report given by Satpal Singh, Hawaldar, the address C-56A, Mandawli, Fazalpur, Delhi was found to be incomplete and the said report has been proved as Ex.CW1/C. This report is dated 08.08.2011. I fail to understand how the same process server in the DRI could give contradictory reports with regard to the address SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 70 of 96 :: 71 ::
C-56A, Mandawli, Fazalpur, Delhi in different cases with impunity. The same person Satpal Singh, HC on summons of Raju( in the case of DRI VS Samson Ongera) at the address C-56A, Mandawli, Fazalpur, Delhi reports that this address is not complete, therefore, witness remains unserved. The same HC Satpal Singh on summons issued to Ashok Kumar(in the present case) gave the report on 19.04.2011 Ex.PW2/DB that C-56A, Mandawli, Fazalpur, Delhi was a plot, where nine shops have been constructed. Now, it is to be noted that the report Ex.PW2/DB is dated 19.04.2011 and as per this report, he could locate C-56A, Mandawli, Fazalpur, Delhi, but after four months he gave the report Ex.CW1/E dated 08.08.2011 in case of "DRI Vs. Samson Ongera" on the summons issued to Raju at the same address, that the address was not complete.
34.2 Thus, the statement of PW-2 is not found truthful and the report given on summons of the panch witness Ashok Kumar at the address C-56A, Mandawli, Fazalpur, Delhi is also not correct. The statement of CW-1 Sh. R. Roy SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 71 of 96 :: 72 ::
shows that panch witness Raju in case of "DRI Vs. Samson Ongera" is resident of address, that is, "C-56A, Mandawli, Fazalpur, Delhi", which is also shown as address of panch witness Ashok Kumar in this case. There are contradictory reports about the existence of the address in both cases. It gives strength to the argument of learned defence counsel that in fact, there is no person with the name Ashok Kumar residing at C-56A, Mandawli, Fazalpur, Delhi and DRI/ complainant has concocted the story of joining the public witnesses during the investigation in the present case. 34.2.1 Another evidence, which supports the case of learned defence counsel is the report given by CW-3 Dr. Jiju P.V. Ex.PX. A-1 Sampson Chukwudi had moved an application under Sections 45 and 73 of Evidence Act dated 31.08.2012 seeking comparison of writing and signatures of Ashok Kumar on some of the documents of the present case with the handwriting and signatures of panch witnesses in other cases, that is, DRI Vs. Samson Ongera (SC No. 01A/11), DRI Vs. Vimal Kumar Behl (59A/01) and DRI Vs. SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 72 of 96 :: 73 ::
Hakim Md. (SC No. 50A/05). Argument of learned defence counsel was that the person, who had written and signed as Ashok Kumar in the present case had been examined as public witness with the name of Raju in the case of DRI Vs. Samson Ongera and also as panch witness with the name Ashok Kumar in the case of DRI Vs. Vimal Kumar Behl. Therefore, after summoning these files, the relevant documents were sent for examination. Initially, the report was submitted by CW-2 Dr. Bijender Singh, but he admitted that he did not examine the handwriting on the documents, therefore, the documents were again sent for examination and this time, the report was submitted by CW-3 Dr. Jiju P.V. CW-3 in his report has inter alia examined the questioned documents that is, Q-1 to Q-11, which are the signatures of panch witness Ashok Kumar in the present case on the panchnama Ex.PW2/D and the notice under Section 67 NDPS Act Ex.PW2/O and the statement under Section 67 NDPS Act Ex.PW2/Q. He also examined the questioned signatures Q-11/1 to Q-11/6, which are the signatures of Ashok Kumar on Ex.PW2/D-1 to Ex.PW2/D-6. He also examined the SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 73 of 96 :: 74 ::
questioned writing of the witness Sh. Ashok Kumar Q-115 to Q-119, which is his statement under Section 67 NDPS Act Ex.PW2/Q. These writings and signatures were compared by the handwriting expert with the questioned signatures Q-22 to Q-42 of panch witness Sh. Raju in the case of DRI Vs. Samson Ongera appearing on the panchnama Ex.CW2/A-2 of the said case. He further examined the questioned signatures Q-97 to Q-114 of the witness, namely, Sh. Ashok Kumar in the case of DRI Vs. Vimal Kumar Behl appearing on the notice and the statement under Section 67 NDPS Act of the said Ashok Kumar proved on record as Ex.CW2/A-3 (colly.).
35.0 CW-3 Dr. Jiju P.V. has opined that the writing and signatures stamped and marked Q-1 to Q-11, Q-11/1 to Q-11/6, Q-115 to Q-119, Q-22 to Q-42, Q-97 to Q-114 were written by one and the same person. Even a bare eye comparison of signatures in name of Ashok Kumar on documents Q-1 to Q-11 (in present case) and Q-96 to Q-114 (in case of DRI Vs. Vimal Kumar Behl) would show that they SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 74 of 96 :: 75 ::
are by same person. This report leads to only logical inference that same person is signing and writing as Ashok Kumar, S/o Sh. Raj Kumar,r/o C-56A, Mandawli, Fazalpur, Delhi; in the case of DRI Vs. Samson Ongera, he is signing and writing as Raju S/o Raj Kumar, R/o C-56A, Mandawli, Fazalpur, Delhi; in the case of DRI Vs. Vimal Kumar Behl, he is signing and writing as Ashok S/o Dahu Saini R/o D-212, Gali No. 12, Lalita Park, Laxmi Nagar. Therefore, a very serious question arise about the identity of panch witness, namely Ashok Kumar. Whether such a person is fictitious person. Answer to the question in all probabilities is in affirmative. This also established that the prosecution case that DRI officials had engaged a public witness, namely, Sh. Ashok Kumar during the investigation of the case is pulpably false and therefore, the edifice of the prosecution case collapse on the same ground.
36.0 The effect of this would be that the statement of witnesses, that is, PW-2 and PW-8, who depose that the panchnama was prepared in the presence of public SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 75 of 96 :: 76 ::
witnesses, namely, Sh. Ashok Kumar and Vinod Kumar is not truthful statements. Similarly, the statements of PW-2 and PW-8 that at the time of apprehension of accused, the independent witness were introduced to them is again not a truthful statement. The statements of recovery witnesses, therefore, do not inspire confidence. No implicit reliance can be placed on their statements. It is not a case where during investigation, no public witness is joined with DRI Team, but to the contrary the case of DRI/ complainant is that two public witnesses were joined in the team. However, the evidence on record has established that there was no public witness with DRI team. Thus, the prosecution story, as projected, is not proved. The observation in case of NCB Vs. Anju Tiwari (supra) as under are relevant:
"The NCB has to discharge the burden of proving beyond reasonable doubts that it is respondents, who are guilty of the offences with which they have been charged. Since, NCB has presented a version in which independent witnesses are stated to have participated through out the raid, the NCB has to satisfactorily explain how any why the SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 76 of 96 :: 77 ::
addresses given for such witness as turned out to be non-existent and they have not been produced in the Court. No effort appears to have been made by NCB to ascertain the correct addresses and summon independent witnesses. That was not the responsibility of the Court. In the circumstances, the only inference that was possible to be drawn was that the said witnesses and their addresses did not exist..".
Statement under Section 67 NDPS Act:
37.0 Learned SPP argued that even if we take that there was no independent witness in the raiding team and do not consider that Ashok Kumar and Vinod Kumar had joined the proceedings, still the statement of accused persons under Section 67 NDPS Act, which was voluntarily given by them would be sufficient to connect the accused with the offence of possessing narcotics drugs. In support of his submissions, learned SPP had relied upon number of judgments, which I have referred above. 37.1 Learned defence counsel for both the accused SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 77 of 96 :: 78 ::
persons on the contrary, have argued that the submissions made by learned SPP with regard to the evidential value of statement under Section 67 NDPS Act is based on judgments, which have been overruled. Learned defence counsel argued that the statement of accused persons under Section 67 NDPS Act is not voluntary, which is evident from the fact that the statements were retracted later on. They also argued that the statement under Section 67 NDPS Act can only be used in aid of evidence, which had already come on record and at the most, it can be supportive or corroborative evidence.
38.0 I have considered the rival contentions on this issue. It is necessary to go through the legal position with regard to admissibility and evidential value of statements of accused persons recorded under Section 67 NDPS Act. 39.0 It is now well settled that such a statement made by an accused U/S 67 of the NDPS Act is admissible in evidence and can be acted upon by the court if it is found to SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 78 of 96 :: 79 ::
be made voluntarily. In the case of Raj Kumar Karwal Vs. Union of India & Ors. (supra),on which ld.SPP has placed reliance, it was held by the Hon'ble Supreme Court that a statement U/S 67 of the NDPS Act made by the accused is not the same as a statement U/S 161 Cr.P.C., unless it is made under some threat or coercion etc., this being a vital difference, the same is excluded from the operation of Sections 24 to 27 of the Evidence Act. Even in the case of Kanhaiya Lal Vs. Union of India (supra), also relied upon by Ld.SPP ,it was held by the Hon'ble Apex Court that such a statement made by an accused is admissible in evidence as the same is made by him at a time when he was not under arrest and hence neither the bar of Sections 24 to 27 of the Evidence Act would operate nor the provisions of Article 20(3) of the Constitution would be attracted. Several other judgments of the Hon'ble Supreme Court and of different High Courts are also to the same effect and the only requirement for the court before acting upon such a statement is that the court has to satisfy itself that such a statement was not made under some threat, coercion or SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 79 of 96 :: 80 ::
influence etc. and was made by the accused voluntarily. 39.1 However, if such a confessional statement made by an accused is retracted subsequently, then the position is changed and it is well settled that in such a case the court has to look into the facts and circumstances of the case and the retraction to see if the confessional statement of the accused was in fact made voluntarily or not and the law is that it will not be safe for the court to arrive at a finding regarding the guilt of the accused solely on the basis of such a retracted statement and the same is required to be corroborated by some independent material evidence on record.
39.2 Though learned SPP for DRI has relied upon a judgment of the Division Bench of the Hon'ble Supreme Court in case Kanhaiya Lal (supra) to argue that the retraction of an accused of his confessional statement cannot be looked into and considered by the court unless it is proved on record as per the provisions of the Evidence Act, SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 80 of 96 :: 81 ::
but the prepositions of law as laid down in the above said case are no longer good and binding in view of some subsequent judgments of the Hon'ble Supreme Court. In the case of Francis Stanly @ Stalin Vs Intelligence Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124 there was no allegation that the appellant himself was found in possession of any narcotics and the allegation was only that he handed over some narcotics to a co-accused and the only evidence against the appellant was the retracted statement of the co-accused and the appellant's own retracted confession and it was held by a division bench of the Hon'ble Supreme Court that it would not be safe to maintain the conviction of the appellant in such a case as an accomplice's evidence is looked upon with suspicion because to protect himself he may be inclined to implicate the co-accused. In case Union of India Vs Bal Mukund and Ors. (supra),relied upon by defence counsel, it was held that conviction should not be based merely on the basis of a statement made U/S 67 of the NDPS Act without any independent corroboration particularly in view of SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 81 of 96 :: 82 ::
the fact that such statements have already been retracted. It was also held therein that the confessional statement of a co-accused also could not be used as a substantive piece of the evidence against the other accused. In the case of Noor Aga Vs State of Punjab & Anr. (supra) also relied upon by defence counsel, it was held by a Division Bench of the Hon'ble Supreme Court that the confessional statement of an accused like that the one U/S 108 of the Customs Act is considered to be a very week piece of evidence and it will not be safe to convict the accused on the basis of such a statement though such a statement is technically admissible in evidence and is not hit by Section 25 of the Evidence Act or Article 20(3) of the constitution.
39.3 Besides the above judgments, the Hon'ble Supreme Court in case Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 held that though as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made U/S 67 of the NDPS Act, but as of a rule of SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 82 of 96 :: 83 ::
prudence the court requires some corroboration thereof. In case of DRI Vs Raj Kumar Mehta & Ors.2011 (3) JCC (Narcotics) 156. it was held that a person cannot be convicted solely on the basis of a confessional statement of the co-accused because a statement of co-accused U/S 30 of the Evidence Act can be used only to lend assurance to other evidence against a co-accused, i.e. it is one more circumstance in the basket of circumstances of the prosecution.
40.0 It is clear from the above legal discussion that though earlier in the case of Kanhaiya Lal (supra) the view of the Hon'ble Supreme Court was that an accused can be convicted solely on the basis of his statement U/S 67 of the NDPS Act and if he has retracted therefrom his retraction is required to be proved on record as per the provisions of the Evidence Act, but, however, in the subsequent decisions of the Hon'ble Supreme Court and also of the different High Courts there is a shift in the stand and the confessional statement of the accused under the above said provisions is SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 83 of 96 :: 84 ::
now not to be acted upon to make it the sole basis of the conviction of an accused and even if his retraction on record is not proved as per the Evidence Act, the court has to look forward for some independent corroboration of the same as a rule of prudence.
41.0 Thus, the position of law is that if the statement under Section 67 NDPS Act has been retracted then its evidential value is reduced and the prosecution then has to prove on record some independent evidence in support and in aid of which statement under Section 67 NDPS Act can be used.The Ld.SPP has argued that retraction is made at belated stage and it was not proved by the accused which they could have done by appearing as witness in defence.
This submission of ld. SPP can not be accepted.The observation of Honble High Court in the case of N C B vs Ramesh kumar CRL.A. 419/97 decided on 29/05/2013 would be sufficient to reject this argument. It was observed, " I am unable to uphold the contention of the learned counsel for the appellant that the respondent should have retracted at SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 84 of 96 :: 85 ::
the time of his remand or should have entered the witness box to make a retraction."
41.1 In the present case, recovery and possession of narcotics drugs from the accused persons could not be proved beyond reasonable doubt in view of improbabilities in the statements of recovery witnesses, PW-2 Rajpal Singh, PW-4 Pankaj K. Singh, PW-8 Smt. Poonam Aggarwal and PW-13 D.P. Saxena. Non-examination of public witness put their statements under close and strict scrutiny and it was found that their statements lack credence. Once their statement is found to be doubtful, then the only evidence on which the prosecution can rely is statement of accused persons under Section 67 Act. The legal position as mentioned above is very clear that the statement under Section 67 NDPS Act, which is retracted cannot be made the sole basis of conviction of accused.
42.0 Not only the statement under Section 67 NDPS Act needs some other independent incriminating material on SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 85 of 96 :: 86 ::
record against accused, the statement itself should qualify the twin test of "voluntariness" and "truthfulness". In the present case, the truthfulness of the statement is also doubtful in the sense that as per the statement given by both the accused persons, they had travelled to Delhi from Ludhiana in a bus and had got down at G.T. Karnal Bypass bus stand, but surprisingly, no travel ticket of the bus was recovered from the possession. The prosecution witnesses have categorically stated that no travel ticket was recovered from the possession of accused persons and after their apprehension, they had not handed over anything to anybody nor they had thrown anything away. So far as the voluntariness of statement under Section 67 NDPS Act is concerned, the observation of Honourable Supreme Court in case of UOI Vs. Bal Mukund (supra) are very important wherein it was observed that if accused persons are "interrogated while they are in custody, it can not be said that they have made a voluntary statement, which satisfy the conditions precedent laid down in Section 67 of the Act". More over these statements were admittedly retracted. SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 86 of 96 :: 87 ::
Ld.SPP had argued that retraction is not at earliest point of time. The accused in this case were arrested on 31/03/2009. Retraction application were received in court on 06/04/2009 and replied by DRI on 29/04/2009. There is no requirement of law that retraction is to made on very first date of appearance before court or it should be proved by accused by appearing in court as witness.Thus, the statements of accused persons Ex.PW2/F and Ex.PW2/H cannot acquire the status of voluntary statement, simply because some personal details have been mentioned by accused persons in their statements. These statements, therefore, in absence of other reliable independent evidence to connect accused with offence, cannot be used as substantive evidence against accused.
Presumption under Sections 35 and 54 NDPS Act. 43.0 Although the possession and recovery of contraband from accused is found doubtful still learned SPP wanted this court draw presumption against accused in terms of section 35 and 54 of the Act. Learned SPP had SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 87 of 96 :: 88 ::
argued that there is presumption under the law of culpable state of mind when the possession of narcotics drugs has been proved. He referred to Sections 35 and 54 NDPS Act in this regard. No doubt, Sections 35 and 54 NDPS Act speaks about presumption of culpable state of mind of accused if he is found in possession of narcotics drugs. Though in terms of Section 35 and 54 of NDPS Act, an accused has to explain his possession of narcotics drugs and Court can presume existence of criminal intent to possess such substance, if such criminal intent is required to be proved. Yet even despite this presumption, the initial burden of proving its case always remain upon the prosecution. This presumption therefore, must be preceded with the proof of possession of narcotics drugs by an accused. By virtue of presumption under Sections 35 and 54 NDPS Act, the prosecution cannot absolve itself of its duty to prove its case beyond reasonable doubt regarding possession of narcotics drugs. In this regard, I would refer to judgment of Honourable Supreme Court in Noor Aga Vs. State of Punjab (supra), wherein following observations were made:
SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 88 of 96 :: 89 ::
"Section 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is 'preponderance of probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 89 of 96 :: 90 ::
44.0 Coming back to the facts of the present case, the question of presumption does not arise when the possession itself has not been proved beyond reasonable doubt. Merely because huge quantity of narcotics is alleged to have been recovered, that cannot be made a ground to presume that accused persons consciously possessed the narcotics drugs and, therefore, Sections 35 and 54 NDPS Act would be attracted to impute culpable state of mind of accused persons.
44.1 The evidence which is discussed above is not sufficient enough to prove the possession of narcotics drugs by accused persons. Huge quantity of narcotics drugs is stated to have been recovered. However, a vital question is from whose possession, how and when? The entire story which prosecution has propounded regarding manner of recovery, the place of recovery and the person from whom the recovery of narcotics drugs has been effected is found to be doubtful, because the documents which have been prepared do not inspire confidence. Mere heavy recovery of SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 90 of 96 :: 91 ::
narcotics drugs cannot be made basis for conclusion that whatever the recovery witnesses have deposed has to accepted as gospel truth. Even in the case of NCB Vs. Anju Tiwari (supra), Honourable Delhi High Court was of the view that conviction cannot depend only on the fact that huge quantity of 'heroin' is shown to have been seized. 45.0 Learned SPP had also argued that no motive was attributed to DRI officials for false implication of accused persons. In this regard also, it has to be seen as to what is the evidential value of official witnesses, who have spoken about the recovery of narcotics drugs from the accused.
Learned defence counsel for A-1 argued that accused has no way to prove his innocence or to show why a false case has been foisted upon him and at the best he can do is to point out some vital discrepancies in the prosecution case. He submitted that the reason for a false implication could be best known to officials of DRI. The accused has no means to establish the fact, which is known to officials of DRI. The submissions made by learned defence counsel has some SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 91 of 96 :: 92 ::
force. When a person is imputed with false allegation of possessing some incriminating substance, then it is difficult for him to establish why he has been falsely implicated. If accused fails to prove any motive for false implication that would not be taken to mean that prosecution evidence is credible and trustworthy.
45.1 There may be cases when there are reasons known to accused for his false implication, but there can be cases, where the accused is not even aware as to why he has been implicated in the case. If, recovery effected from 'X' has been imputed to 'Z', then 'Z' has no means to establish why he has been falsely implicated except by pleading the same and by pointing out deficiencies in the case of prosecution. Learned SPP had submitted that there cannot be any reason for DRI officials to falsely implicate a person in case of such a huge quantity. If that is so, then the evidence led by prosecution should establish beyond reasonable doubts, the recovery of narcotics drugs from accused. Similar argument was dispelled by Honourable High SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 92 of 96 :: 93 ::
Court in case of NCB Vs. Anju Tiwari (supra) by observing as under:
"The court would like to observe that conviction can not depend only on the fact that a huge quantity of heroin is shown to have been seized. Also the argument that the prosecution will not needlessly implicate innocent persons does not impress the court. The NCB has to discharge the burden of proving beyond reasonable doubts that it is respondents, who are guilty of the offences with which they have been charged. 46.0 In the present case, the DRI/ complainant did not produce the independent witnesses, namely, Ashok Kumar and Vinod Kumar and chose to drop them during the trial.
The evidence given by CW-1 and CW-3 with regard to handwriting of the independent witness, namely, Sh. Ashok Kumar compel the Court to draw an inference that either the prosecution has some stock witness, who becomes a witness in the cases investigated by DRI repeatedly with different names or no independent witness joined during the investigation and documents are being fabricated with the SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 93 of 96 :: 94 ::
help of some person to show the Court that independent witnesses were joined at the time of raid for apprehension of accused and recovery of narcotics drugs. In the present case, however, it is apparent that some person is signing and writing the statement under Section 67 NDPS Act with different names in different cases investigated by DRI and in none of the cases, such independent witness has been produced in the court.
47.0 The story of the prosecution that two public persons were joined at the time of apprehension and recovery of contraband from accused persons and also at the time of preparation of panchnama has lost its credibility.
Although, the officials witnesses have spoken about the recovery, but as discussed above in view of the improbabilities in the prosecution case reflected in their statements and non-examination of public witnesses castes a serious doubt and no implicit reliance can placed on the statements of official witnesses.
SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 94 of 96 :: 95 ::
47.1 Learned SPP had vehemently argued that wrong acquittals cause more harm to society and Court should not take lenient view especially in the cases under NDPS Act.
This Court fully agrees with the submissions of learned SPP. However, Court cannot go beyond the evidence, which is led by prosecution. A casual attitude in the investigation and attempt to project something, which does not exist cause more harm and as a result of such an investigation, the acquittals are pronounced in the Courts. DRI being a specialized investigating agency can make use of scientific way of investigation and thereby, bring more transparency in the investigation. A heavy burden is on the investigating agency to investigate a case diligently and in a scientific manner and then to prove its case in the Court of law beyond reasonable doubts.
48.0 In view of the above facts and evidence led by the DRI/ Complainant, it is very hard to believe the prosecution version of recovery of narcotics drugs from the possession of accused persons and in the manner as SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 95 of 96 :: 96 ::
projected. Therefore, I conclude that the DRI/ complainant has thus, failed to prove its case beyond reasonable doubts against A-1 Sampson Chukwudi and A-2 Ms. Lahia Junias. Therefore, I hereby acquit, Samspon Chukwudi and Ms. Lahia Junias for the offence under Section 21(C) and 29 of NDPS Act.
49.0 Case property be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of the appeal to be filed against this judgment, if any, or the orders of the Appellate Court, as the case may be.
50.0 Both the accused persons have furnished personal bonds with cash surety in terms of Section 437A Cr.PC along with their latest photographs, which have been accepted.
File be consigned to record room.
Announced in the open Court on (Ajay Kumar Kuhar) 11th May, 2015 Special Judge (NDPS Act) South District SC No. 47A/09 DRI Vs. Sampson Chukwudi & Anr. Page No. 96 of 96