Delhi District Court
Sc No. 33A/11 Dri vs . Emmanuel Chilkezie on 24 December, 2014
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
Directorate of Revenue Intelligence
Delhi Zonal Unit, New Delhi
Through Sh Mahesh Yadav, Intelligence Officer
V E R S U S
Emmanuel Chilkezie
S/o Sh Ignasius
Flat No. T-304, Hill View Apartment
Mehrauli
New Delhi
Permanent Address:
H. No. 105
Umuaka Imo State
Nigeria
Presently lodged in Central Jail, Tihar, New Delhi
SC No.: 33A/11
U/S : 21/23/29 NDPS Act
Computer ID No. O2406R0282892011
Date of institution : 04.11.2011
Date of reserving judgment : 17.12.2014
Date of pronouncement : 24.12.2014
Decision : Acquitted
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 2 (hereinafter referred to as DRI) through Sh Mahesh Yadav, Intelligence Officer (hereinafter referred to as the complainant/PW2), against the above accused for commission of the offences punishable U/S 21, 23 and 29 of the NDPS Act, 1985.
2. The facts of the case, in brief, are that on 02.06.2008 at about 6:00 PM, an intelligence was gathered by PW4 Sh K. S. Ratra through some reliable sources that two Indians belonging to North East India would travel in a silver colour Tata Indica car bearing registration number DL 3C AX 4435 towards IGI Airport, New Delhi, in between 9:00 PM to 9:30 PM on that day, alongwith some narcotic drugs, i.e. heroin, concealed in a suitcase. PW4 had immediately reduced the above information into writing as Ex. PW4/A and had put the same before his senior officers, who had called PW5 Sh Alkesh Rao (hereinafter referred to as the IO/PW5) and directed him to immediately organize a team and rush to the spot to intercept the persons and the goods.
3. It is alleged that based on the above intelligence, the IO/PW5 had called two public witnesses in their office at around 7:00 PM on that day and requested them to join the possible interception of the above vehicle and the occupants thereof, to which they both agreed. A team of DRI officers, accompanied by the two public witnesses, had then left their office at about 7:15 PM and reached near the CISF check-post outside the SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 3 IGI Airport and started mounting a surveillance near the said check-post. At about 9:00 PM, the above Indica car was spotted by them near the above check-post and they had intercepted it. The car was found to be occupied by a driver and two other persons, who were seemingly of North East origin, were also sitting in the car. The officers of DRI disclosed their identities to the occupants of the vehicle and the identities of the two North Eastern persons were revealed on enquiry to be the accused Sukleshwar Basumatary and Francis L. Hmar @ Muhammed Rashid and that of the driver as one Rakesh Kumar Nainawat. On enquiry by the DRI officers, the accused persons had though initially denied the possession/transportation of any contraband goods, but on persistent questioning they admitted that one packet containing about 2 KG of heroin was kept in a blue colour zipper suitcase of 'American Tourister' brand lying in the dickey of the said car. It was further revealed by Sukleshwar Basumatary that he was going to Kualalumpur by a Malaysian Airlines Flight No. MH-0191 of that day and the above blue colour suitcase was his luggage and Francis L. Hmar was accompanying him only to drop him at the airport and was his friend.
4. Thereafter, the IO/PW5 had given separate notices U/S 50 of the NDPS Act Ex. PW5/A, Ex. PW5/B and Ex. PW5/C respectively to the above two occupants and the driver of the said vehicle and they all were asked if they required the presence of a Magistrate or a Gazetted SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 4 Officer for carrying out their searches and in reply to the said notices, all of them are alleged to have expressed their desires in writing, on their respective notices itself, that they did not require the presence of such officers and their search could be conducted by any officer of DRI. They had also requested the DRI officers to take them to any safer place for their search as the above place of their apprehension was not a safe place and it is alleged that, accordingly, all the above three persons, alongwith their above vehicle, the blue colour suitcase and the two panch witnesses, were brought to the office of the DRI situated at CGO Complex, Lodhi Road, New Delhi.
5. After reaching there, the search of the above car of the accused was conducted, in the presence of the public witnesses, and the above blue colour suitcase was recovered from the dickey of the said car and on checking, it was found to contain some old and used cloths only. But on careful examination of the suitcase, it was observed that the bottom of the suitcase was abnormally thick and the screws inside the above bottom were removed and on breaking open the screws of the bottom of the said suitcase, one transparent polythene bag wrapped with brown adhesive tapes was found concealed therein and on opening, the same was further found to contain some off white colour powder giving a pungent smell. On testing with a drug testing kit, the above substance gave positive result for heroin and the gross SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 5 weight of the above packet was found 2.072 KG and the net weight of the heroin contained therein to be 1.985 KG. The above heroin, alongwith its packing and the above blue colour zipper bag, were seized for violation of the provisions of the NDPS Act.
6. The IO/PW5 had drawn three representative samples of 5 Grams each out of the above recovered heroin and the same were kept in three separate transparent polythene pouches, which were stapled and marked as A1, A2 and A3 and were then further kept in separate brown colour paper envelopes and sealed with the DRI seal over a paper slip bearing the dated signatures of the IO/PW5, the two panch witnesses and the above three occupants of the vehicle. The remaining heroin was put back in the same polythene bag and then in a yellow colour paper envelope, which was also sealed with the above seal and in the same manner. This sealed packet of remaining heroin was further kept in a steel box, which was also converted into a cloth parcel and sealed in the same manner. A separate parcel of the above blue colour zipper bag was also prepared. The personal search of all the above three persons was also conducted by the IO/PW5 and in the personal search of Sukleshwar Basumatary, his e-ticket passenger itinerary receipt dated 02.06.2008 for the above flight from Delhi to Kualalumpur and also his return flight dated 16.06.2008 from Kualalumpur to Delhi and his passport number G3110202 issued from Guwahati Ex.
PW5/D6 (colly) were recovered. However, nothing
SC No. 33A/11 DRI Vs. Emmanuel Chilkezie
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incriminating was recovered from the personal search of the other two persons. Some documents pertaining to the above vehicle were also recovered from the said vehicle, which are Ex. PW5/D1 to Ex. PW5/D5 on record, and the said car and the documents were also taken into possession for the purposes of investigation. The IO/PW5 had also prepared a detailed panchnama Ex. PW5/D regarding the above proceedings and had further drawn the test memos in triplicate, including the test memos Ex. PW5/O and Ex. PW6/B, and a facsimile of the above DRI seal was also affixed on the panchnama as well as on the test memos. The contents of the panchnama were explained to all the three occupants of the vehicle and the two panch witnesses and they all had signed the same after understanding the contents thereof, besides signing of the same by the IO/PW5 himself.
7. It is further alleged that in response to the summons Ex. PW5/E dated 03.06.2008 served upon Sukleshwar Basumatary, he had tendered his voluntary statement Ex. PW5/F before the IO/PW5 on the same day, in which, besides disclosing his personal details, he had admitted their interception from the above place and with the above vehicle and contraband substance, and also all the subsequent proceedings done regarding the said substance. It was further disclosed by him in his above statement, inter-alia, that his above passport was got issued by him from Guwahati and he had come to Delhi from Guwahati on 02.06.2008 itself at around 4:00 PM by an Air SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 7 Deccan Flight and he was received at the Delhi Domestic Airport by Francis L. Hmar and was taken from there to Sarojini Nagar market in the above Tata Indica car. He had further disclosed therein that Francis L. Hmar got down from the car there and went inside the above market and after sometime, he had returned back with the above blue colour zipper bag and kept it in the dickey of the car. From there, he was taken by Francis L. Hmar to his (Francis L. Hmar's) house at Neelkanth Apartment, Vasant Kunj, New Delhi, where he had taken bath and some food and was also given the above tickets for Delhi to Kualalumpur and return ticket from Kualalumpur to Delhi by Francis L. Hmar and he (Francis L. Hmar) further handed him over the above blue colour zipper suitcase and told him that the same was to be delivered to his (Francis L. Hmar's) friend at Kualalumpur in Malaysia. Francis L. Hmar had also given him 400 US$ for the above job and then they had left for the airport in the above car, with the above suitcase lying in the dickey thereof, and then were intercepted by the DRI officers at the above check-post. He had further disclosed therein that he was fully aware that about 2 KG of heroin was concealed in the above suitcase and this fact was told to him by Francis L. Hmar at the time of handing over of the said suitcase to him and he had come to India for doing the above job of carrying the consignment of 2 KG of heroin in the above blue colour zipper suitcase at the instance of a person named Sankar, who contacted him on phone and asked him to go to Delhi and to meet Francis L. SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 8 Hmar for delivery of the above suitcase and Sankar promised him a good amount of money for the said job and Sankar also told him that his travel tickets will be arranged by Francis L. Hmar. On being questioned regarding his previous visits to foreign countries, Sukleshwar Basumatary had further disclosed in his above statement that earlier also he came to Delhi on 03.03.2008 and from here he had gone to Malaysia and from there to Senjen (China) on 04.03.2008, at the instance of the above Sankar, and at that time also he carried a suitcase containing 2 KG of narcotic drugs concealed therein with him, which was handed over to him in Delhi by a Manipuri lady named Indira and was further delivered by him in China to some Nigerian National and he got Rs. 30,000/- for the above previous delivery and this time, he was also to get Rs. 25,000/- from Francis L. Hmar.
8. Similarly, in response to the summons Ex. PW5/G served upon Francis L. Hmar, he had also tendered a similar statement Ex. PW5/H on the same day before the IO/PW5, in which he had also admitted their interception with the above contraband substance from the above place, besides disclosing his personal details. It was disclosed by him in his above statement, inter-alia, that one person named Emmanuel met him around one year back in Delhi, through one of his wife's contact namely Ms Lal Ramngai, and Emmanuel offered him to work for him (Emmanuel) in sending heroin out of India, to which he agreed for the sake of money. It was further disclosed SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 9 by him that he had gone to Delhi Domestic Airport on 02.06.2008 to receive Sukleshwar Basumatary, who had called him on his mobile number 9911504020 and met him at the Indigo counter there at about 4:00 PM, at the instance of the above Emmanuel only and from there, they both had gone to Sarojini Nagar market in the above Indica car. He further disclosed therein that he got down from the car at the said market and Emmanuel met him there near a shoe shop and delivered the above blue colour suitcase containing the above drug consignment of 2 KG concealed therein to him, which he kept in the dickey of the car. It was further disclosed by him that from there, they all, including Emmanuel, had started for his residence at Neelkanth Apartment and on the way, Emmanuel got down at Cannaught Place and went to a travel agency office with the passport of Sukleshwar Basumatary and brought the above tickets for journey of Sukleshwar Basumatary from Delhi to Kualalumpur and back to Delhi. From there, they all had then reached at his above residence and there, Emmanuel handed over the passport and tickets of Sukleshwar Basumatary to him (Sukleshwar Basumatary) and also told him that 2 KG of heroin was concealed in the above suitcase, which was to be carried by him (Sukleshwar Basumatary) to Kualalumpur, Malaysia by the above flight and from there, they all had started for the IGI Airport in the above Indica car, but Emmanuel got down on the way near Priya Cinema. He had further disclosed therein that the above Tata Indica car was called by him from one Ashok of Ashoka Tourist and Taxi SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 10 Service, Kishangarh and the same was being driven by the above Rakesh Kumar Nainawat.
9. In response to the summons Ex. PW7/DA of even date served upon the above driver Rakesh Kumar Nainawat, his statement Ex. PW7/A U/S 67 of the NDPS Act was also recorded regarding his driving of the above taxi and their interception outside the above airport. However, from the above statements, it was found that the driver Rakesh Kumar Nainawat was not connected or concerned with the above seized substance and hence, he was let off.
10. Since both Sukleshwar Basumatary and Francis L. Hmar appeared to have committed offences punishable U/S 21, 23 and 29 of the NDPS Act, they both were arrested in this case on that day itself vide arrest memos Ex. PW5/J and Ex. PW5/K respectively and were also got medically examined from RML Hospital, on a letter Ex. PW14/A given PW14 Sh Ramesh Kumar and, vide MLCs Ex. PW5/L and Ex. PW5/M respectively, which both have been admitted on record by Ld defence counsel. Thereafter, they were produced in the court and got remanded to judicial custody. The intimations Ex. PW14/B and Ex. PW14/C respectively were also sent by PW14 to the family members of the above two accused on the same day and one report U/S 57 of the NDPS Act Ex. PW5/N regarding their arrest and seizure of the above heroin was also submitted to PW14 by the IO/PW5 on the same day. The sealed parcels of the case property were deposited by the IO/PW5 with SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 11 PW8 Sh Dharamvir Sharma of Valuable Godown, New Customs House, New Delhi for safe custody on that day vide deposit/inventory memo of goods Ex. PW8/B and one sealed sample parcel, alongwith duplicate test memos, was also deposited with the CRCL, New Delhi on the same day by PW9 Sh L. S. Rauthan, vide authorization letter Ex. PW9/A given by PW14 and it was received there vide acknowledgment Ex. PW3/A issued by PW3 Sh Jaiveer Singh.
11. In pursuance to the summons dated 04.09.2008 Ex. PW5/W issued to one Sh Trilok Chand, proprietor of M/S India Travel Bureau, U/S 67 of the NDPS Act, he is alleged to have appeared before the IO/PW5 on that day and tendered his voluntary statement Ex. PW5/X in which he had disclosed that the above travel tickets of accused Sukleshwar Basumatary were booked from his office on 02.06.2008 by some black person, looking like an African, and that person had also produced the original passport of the accused Sukleshwar Basumatary before him and he had kept a copy of the passport and visa of the above passenger with him. The payment for the above tickets was made to him in cash by the above African person, but he could not provide any further details of the above black person, though he had tendered a copy of the passport and visa of the above passenger and of his ledger, alongwith his above statement, which are Mark A (colly) and Ex. PW11/A respectively.
12. Vide the test report Ex. PW6/A dated 19.06.2008 SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 12 of the CRCL, New Delhi, the above sample is reported to have tested for the presence of diacetylmorphine (heroin) with a purity of 60.8 per cent. The above persons namely Sankar, Ms Indira and Emmanuel etc, as named by the above two accused persons in their above statements, could not be traced out for want of their complete particulars and hence, could not be interrogated or joined in the investigation and after completing some formalities of investigation, a complaint for commission of the above said offences was ultimately prepared against both the above accused persons by the IO/PW5 and filed in this court on 28.11.2008, which has been registered vide SC No. 71A/08 and is also pending in this court and is being taken up for disposal with the present case.
13. Subsequently, one Philippines National named Ms Bitoren Dolores Fernandez was also intercepted by the DRI officers from the premises of the Domestic Airport of Delhi on 14.12.2008, on the basis of a secret intelligence and one packet containing 1.987 KG of heroin (net weight) was recovered from the luggage of the above accused. In the follow up investigation of the said case, one Flat No. T-304, Hill View Apartment, 3rd Floor, Mehrauli was also searched by the DRI officers on 15.12.2008 and in the said search some incriminating documents were taken into possession by them for the purposes of investigation, which included one driving license bearing a photograph of the above accused Francis L. Hmar. The said flat was sealed and it was found to be SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 13 owned by PW12 Smt Valsala Kumari and in pursuance of the summons dated 17.12.2008 Ex. PW12/C, PW12 is also alleged to have tendered her statement Ex. PW12/A before the DRI officers in which she disclosed that she had rented out the said flat to one Ms Lal Ramngai Hmar @ Ms Joel Hmar wife of one Emmanuel @ Mr Joel Hmar through a local property dealer and she was staying in the said flat with her husband Emmanuel, who was a black man/African, her brother Lunmin Lal, a three years old daughter named Blessings Ndidi and her maid Losang Kim and she was informed by Lal Ramngai Hmar that her husband was doing some business and she (PW12) had seen the above Emmanuel at the above flat only once on 3rd December when she had visited her above flat in connection with some problem of meter reading.
14. On 22.12.2008, during the course of recording of the statement of the above Lal Ramngai Hmar, PW12 Smt Valsala Kumar was again made to join the investigation and one other statement Ex. PW12/E of her, in response to the summons Ex. PW12/D, was also recorded wherein, she had, inter-alia, identified her above tenant Ms Lal Ramngai Hmar and her husband, i.e. the accused Emmanuel.
15. Two statements dated 22.12.2008 and 23.12.2008 of the accused Emmanuel Chilkezie are alleged to have been recorded in the above case of seizure of heroin effected from the above accused Bitoren Dolores Fernandez and his statement dated 23.12.2008 is Ex. PW5/Z1 on SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 14 record. In his first statement dated 22.12.2008, the accused Emmanuel is alleged to have disclosed, inter- alia, that he came to India on a six month business visa in the year 2002, but he never went back and was residing in India since then; that after reaching India he was staying with his one friend named Mr Paul in Munirka and Mr Paul was in the business of exporting ready made garments from India to Nigeria and he also started doing the said business. He had also disclosed therein that he was working as a Manager in a Nigerian firm named Emmatex Investment Ltd of one Mr Emma and the said firm was in the business of garment export and import, but the doing of his above job while staying in India was for name sake only and in-fact, he was doing drug business under the cover of the above ready made garment business; that he had subsequently joined one Mr Kent, a Nigerian friend staying in China, in the drug business being done by Mr Kent as he was running in losses in his garment business and in April 2008, he had met one Mr Sanjay, through Mr Kent, and he had also collected one consignment of heroin in a plastic bag at Dhaula Kuan from Mr Sanjay, which he had delivered to some other person near Moti Bagh Flyover and the said person contacted him on his mobile number 9818813483, which was given to that person by Mr Kent, and that person also paid him 700 US$ for the said delivery. Thereafter, the accused Emmanuel had desired to take some rest and to continue his statement the next day.
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16. In his continued statement Ex. PW5/Z1 made on the next day, i.e. 23.12.2008, it was further disclosed by the accused Emmanuel that he came in contact with Ms Joel Hmar in the year 2003 and they became friends and started living together and out of this relationship, their above daughter Blessings Ndidi was born in August 2005; that he was living with Ms Joel at Flat No. T-304, Hill View Apartment and sometimes he had to go out for few days, but he returned back again to the same flat, which was taken on rent by Ms Joel Hmar in June 2008 and also claimed that he had been residing in the said flat with Ms Joel Hmar, their daughter and one maid. He further admitted therein that he had permitted a Philippines lady named Ms Dolores Bitoren Fernandez, i.e. the accused no. 1 herein, to stay in their above house only as per the instructions of Mr Kent as Mr Kent further directed him to give her drugs for onward delivery at Hanoi. He also disclosed therein that the accused Bitoren Dolores Fernandez came at their residence on 09.12.2008 and stayed there till 14.12.2008 and she also contacted him on his mobile from Hyderabad and then, as per his instructions, she came from Hyderabad to Delhi Airport and then near PS Mehrauli, from where she was escorted to their above flat by a person named Mombai; that as per the instructions of Mr Kent, another African person named Mr Jan had visited their above flat with the above blue colour suitcase having drugs concealed therein and the same was handed over to the accused Bitoren Dolores Fernandez for taking it to Hanoi, for delivery SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 16 thereof to some person, who was to contact her at Hotel Prince Cafe, where she was asked to check-in, and further that he directed Mr Jan to drop the accused Bitoren Dolores Fernandez at the airport, with the above bag containing drugs. He was also shown a copy of the statement dated 15.12.2008 given by the accused Bitoren Dolores Fernandez before the DRI officers and also her photograph, which he had identified. He was further shown the panchnama and the documents seized from their above flat on 15.12.2008 and he had identified a photograph appearing on one driving license recovered from their above flat to be of one Rashid, who was the husband of Ms Joel's sister named Ms Kim. He further disclosed therein that the consignment of drugs for which the above Rashid was in jail was given to Rashid by him and he got 700-800 US$ from Mr Kent for each delivery of drug consignment and this money was sometime being transferred through Western Union Money Transfer and sometime through some person coming from their native country. He had further disclosed in his above statement that after reaching Hyderabad, the accused Bitoren Dolores Fernandez was to call him and since he does not receive any call from her, he became suspicious about the her arrest and hence, under the fear of being arrested, he had left their above flat, alongwith Ms Joel and his daughter. He further stated that his passport had already been lost and Indian visa expired long back. However, he was not able to provide any further details of the above Mr Kent, Mr Jan or the above Mr Sanjay etc. SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 17 In view of the above disclosures made by the above accused Emmanuel Chilkezie himself regarding his involvement in connection with the heroin seized from the possession of the accused Bitoren Dolores Fernandez, he was also arrested in the said case and put to trial, alongwith the above female accused and the complaint for commission of the offences punishable U/S 21, 23 and 29 of the NDPS Act was filed against both of them in this court on 03.06.2009, which was registered vide SC No. 39A/09 and the said case is also being taken up for disposal, alongwith the present case and the other case SC No. 71A/08. However, since these three cases have been tried separately and separate evidence has been led in these cases, the same are being disposed off vide separate judgments.
17. During the investigation carried out by the DRI officers in this case, some mobile call details and ownership record etc of one mobile phone number 9818813483 were also obtained by them and it was reported that the said mobile number was in the name of the above Muhammed Rashid of case SC No. 71A/08. Subsequently, based on the disclosures made in the above statements of accused Emmanuel Chilkezie himself in case SC No. 39A/09 and further the disclosures made by the accused Francis L. Hmar @ Muhammed Rashid in his statement made in case SC No. 71A/08 that it was in-fact the accused Emmanuel Chilkezie who had met him (Francis L. Hmar) in Sarojini Nagar Market and had given to him the bag containing the SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 18 packet of heroin concealed therein and which was to be taken by the accused Sukleshwar Basumatary of that case to Kualalumpur, the DRI had filed an application dated 16.09.2011 before this court in the above case SC No. 39A/09 seeking appropriate directions from this court for effecting the arrest of the accused Emmanuel Chilkezie in connection with the seizure of the case SC No. 71A/08, which was effected from the accused Sukleshwar Basumatary and Francis L. Hmar on 02.06.2008 outside the IGI Airport. The above said application was allowed vide order dated 20.09.2011 of this court and subsequently the accused Emmanuel Chilkezie was arrested in connection with the above seizure vide arrest memo Ex. PW2/B by the complainant/PW2 on 20.09.2011 itself and after his medical examination he was got remanded to judicial custody. One fresh statement Ex. PW2/E, in response to the summons Ex. PW2/C, of the above Sh Rakesh Kumar Nainawat was also recorded by the complainant/PW2 in which he had identified a photograph of the accused Emmanuel Chilkezie to be of the same black (African) person who had travelled in his car on 02.06.2008, alongwith the accused Sukleshwar Basumatary and Francis L. Hmar and similarly, another statement Ex. PW2/G, in pursuance of the summons Ex. PW2/D, of the above Sh Trilok Chand was also recorded by the complainant/PW2 in which he had also identified a photograph of the accused Emmanuel Chilkezie to be of the same person who got issued the above air tickets of the accused Sukleshwar Basumatary. The other persons named Mr Sankar and Indira SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 19 etc in the statements of the above accused persons could not be traced out and after completing certain formalities of investigation, a complaint for commission of the offences punishable U/S 21, 23 and 29 of the NDPS Act was also ultimately filed against the accused Emmanuel Chilkezie in this court and it has been registered as SC No 33A/11, which is the subject matter of the present case.
18. It is necessary to mention here that the above application dated 16.09.2011 for passing of appropriate orders regarding the arrest of the accused Emmanuel Chilkezie in connection with the seizure of heroin effected in case SC No. 71A/08 from accused Sukleshwar etc was filed only after the accused Bitoren Dolores Fernandez and Emmanuel Chilkezie were granted bail by this court vide orders dated 24.08.2011 and 03.09.2011 respectively, though the bail granted to the accused Emmanuel was subsequently cancelled by the Hon'ble High Court vide order dated 16.09.2011 in Crl. M. C. No. 3014/2011, while confirming the bail granted to accused Bitoren Dolores Fernandez in another petition being Crl. M. C. No. 2970/2011 decided on the same day. The bail of accused Emmanuel was cancelled due to his involvement in above two cases, i.e SC No. 71A/08 and 39A/09.
19. The complaint was filed against the accused Emmanuel Chilkezie in this court on 04.11.2011 and cognizance of the above offences was taken on the same SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 20 day. A prima facie case for commission of the offence punishable U/S 29 of the NDPS Act read with Section 21(c) of the said Act was also found to be made against him vide order dated 27.02.2012 of this court and a charge for the said offence was also framed against him on the same day, while he was discharged for the other offences punishable U/S 21(c) and 23 of the above said Act.
20. The prosecution in support of its case has examined on record total 23 witnesses and their names and the purpose of examination is being stated herein below :
21. PW1 Sh Pawan Singh is the Nodal Officer of M/S Idea Cellulars and he has stated that vide his letter Ex. PW1/C, he had supplied a copy of the Subscriber Application Form, the identity document of the subscriber Ex. PW1/A and the call details of the above mobile phone No. 9911504020 to the DRI officers, during the investigation of the case, and the said mobile number was registered in the name of one Mohd. Rashid. He has also filed on record one certificate U/S 65B of the Evidence Act regarding the authenticity of above call detail record.
22. PW2 Sh Mahesh Kumar Yadav is the complainant of this case and on being assigned the case file for investigation, he had arrested the accused Emmanuel with the permission of this court and had recorded the above statements Ex. PW2/E and Ex. PW2/G dated 30.09.2011 and SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 21 04.10.2011 respectively of PW Sh Rakesh Kumar Nainawat and Sh Trilok Chand regarding the identification of the photograph of the accused.
23. PW3 Sh Jaiveer Singh, Lab Assistant of CRCL, had only received the above sealed sample parcel, alongwith the duplicate test memos and forwarding letter, vide acknowledgment Ex. PW3/A issued by him and he has stated that he had received the sample on the directions of Sh S. C. Mathur, Chemical Examiner, to whom he had also handed over the above parcel and documents after receiving the same.
24. PW4 Sh K. S. Ratra, Intelligence Officer of DRI, had received the above information, reduced it into writing as Ex. PW4/A and had put up the same before his senior officer/PW21 Sh K. K. Dhasmana.
25. PW5 Sh Alkesh Rao, Intelligence Officer of DRI, is the main Investigating Officer of this case and he was heading the above raiding team of DRI, which had apprehended the accused Sukleshwar Basumatary and Francis L. Hmar from outside the IGI Airport on 02.06.08 and recovered the above contraband substance. He has broadly deposed on the above lines of the prosecution story and has proved the various documents prepared by him in connection with the above seizure. He has also identified the case property and samples.
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26. PW6 Sh B. Ram and PW13 Sh S. C. Mathur are the Assistant Chemical Examiner and Chemical Examiner respectively of CRCL, New Delhi and they have also deposed about the receiving of the above sample and the subsequent testing thereof and have further stated that it tested positive for the presence of diacetylmorphine (heroin) and the report Ex. PW6/A was given by them. PW6 has also proved the short analysis report given by him in Section II of the test memo as Ex. PW6/B.
27. PW7 Sh Rakesh Kumar Nainawat is the driver of the above Indica taxi and he has deposed regarding the interception of the above car, the apprehension of the accused Sukleshwar Basumatary and Francis L. Hmar and seizure of the above contraband substance, his participation in the proceedings thereof and the recording of his statements U/S 67 of the NDPS Act regarding his participation in the above proceeding and the subsequent identification of the photograph of accused Emmanuel. He has also identified his signatures appearing on various documents and the case property and samples.
28. PW8 Sh Dharambir Sharma, Inspector and In- charge of the Valuable Godown of the New Customs House, had only received the above parcels of the case property for deposit and made his endorsement on the deposit/ inventory memo thereof Ex. PW8/B and also the entry Ex. PW8/A in this regard.
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29. PW9 Sh L. S. Rauthan, Intelligence Officer of DRI, had only deposited the above sample parcel, alongwith the duplicate test memos and forwarding letter Ex. PW9/B, on the basis of an authority letter Ex. PW9/A issued by his senior officer Sh Ramesh Kumar in his favour.
30. PW10 Sh Atul Handa, the then Deputy Director, is the officer, who had issued the search authorization Ex. PW10/A in favour of Ms Anju Singh, IO of DRI, as stated above, for search of the above flat at Neelkanth Apartments, Vasant Kunj. However, nothing incriminating was recovered in the above search.
31. PW11 Sh Trilok Chand, PW18 Sh Vinod Kumar and PW23 Sh S.G.R. Rizvi, of M/S India Travels Bureau, Hi Tours India Pvt. Ltd. and M/S Akbar Travels India Pvt. Ltd. respectively and they all have deposed regarding the issuance of the e-tickets of the accused Sukleshwar Basumatary for his above journeys and it has been stated by them that the same were booked from the office of Indian Travel Bureau, which further booked these tickets through M/S Hi Tour Travels Ltd., who in-turn had booked it through M/S Akbar Tour Travels. They have also deposed about the making of their statements in this regard during the investigation and PW11 has also deposed about the making of his subsequent regarding identification of a photograph of accused Emmanuel. The examination-in-chief of PW18 was tendered in this court SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 24 in the form of an affidavit Ex. PW18/A
32. PW12 Smt Valsala Kumari (name wrongly typed as Vansala Kumari) is the owner/landlady of the flat no. T-304, Hill View Apartment, which was searched in connection with the seizure of heroin effected from accused Bitoren Dollar Fernandez of the case SC No. 39A/09. She has deposed that it was rented out to Ms Lal Ramngai wife of the accused Emmanuel and she had also tendered her statements in the DRI office in connection with the same, wherein she identified the above Lal Ramngai, the accused Emmanuel and their daughter.
33. PW14 Sh Ramesh Kumar, the then Appraiser of DRI, had countersigned the deposit memo Ex. PW8/B of the case property, gave the forwarding and authority letters Ex. PW9/A and Ex. PW9/B for deposit of the sample parcel, sent the arrest intimation Ex. PW14/B and Ex. PW14/C of the accused, wrote letter Ex. PW14/A for medical examination of the accused and also wrote one other letter Ex. PW14/D for obtaining some call details of the above mobile phone of the accused and further received the call detail record Ex. PW9/C in response to the same and also one report U/S 57 of the NDPS Act Ex. PW5/N from the IO/PW5. He also claims to be a part of the raiding team which had apprehended the accused Bitoren Dolores Fernandez of the case SC No. 39A/09.
34. PW15 Sh Sanjay Kumar, the then Tax Assistant, SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 25 DRI has deposed regarding the issuance of the above DRI seal to the IO/PW5 by him and its return back to him and he has also made an entry in this regard in the seal movement register at serial no. 63, copy of which has been proved on record Ex. PW5/Z5. His examination-in- chief was tendered in this court in the form of affidavit Ex. PW15/A
35. PW16 Sh Devender Singh is the officer, who had searched the above flat no. 304, Hill View Apartment vide panchnama Ex. PW16/B, recovered documents Ex. PW16/D (collectively) in the said search and further pasted a notice Ex. PW16/C on the door of the said premises. His examination-in-chief was also tendered in this court in the form of an affidavit Ex. PW16/A
36. PW17 Sh V.K. Sharma, Chemical Examiner of CRCL, New Delhi, is the person under whose supervision the two samples drawn in this court, out of the seized substance of this case, were analyzed by Sh Ajay Sharma, Assistant Chemical Examiner and he has stated that both the samples were found positive for presence of diacetylmorphine (heroin) vide the test report Ex. PW17/B issued by them. Earlier he had also received the above samples in CRCL vide acknowledgment Ex. PW17/A.
37. PW19 Sh Govind Kumar is the owner of the above Indica taxi and he has deposed about the renting out of the said car to the accused Muhammed Rashid of case SC SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 26 No. 71A/08, on receiving a phone call from the above accused, and its subsequent interception by the DRI officers, in connection with the above seizure, as he was told by his driver. He has also stated that he tendered his statement Ex. PW5/Q in this regarding during the investigation, on receipt of the summons Ex. PW5/P.
38. PW20 Sh A. K. Khatri was posted as Additional Director, DRI on the above date and he has stated that the above secret information Ex. PW4/A was put up before him by Sh K. K. Dhasmana and he had given the necessary directions to Sh K. K. Dhasmana to act upon the same, vide his endorsement made on the said information itself.
39. PW21 Sh K. K. Dhasmana is the person before whom the above information was initially put up by PW4 Sh K. S. Ratra and he in-turn had put up it before Sh A. K. Khatri/PW20 and then, in view of the directions given by PW20, he had briefed the IO/PW5 Sh Alkesh Rao to act upon the said information.
40. PW22 Dr. Pawan Kumar of RML Hospital has proved the MLC dated 15.12.2008 of accused Emmanuel, wherein no fresh external marks of any injury were reported on the person of the accused.
41. It is also necessary to mention here that the two public/panch witnesses namely Sh Ram Singh and Sh Shamu joined in the above seizure could not be examined SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 27 on record by the DRI and they both were dropped on 31.08.2012, as it was reported on their process that their given addresses were either incomplete or not in existence. Earlier, even during the trial of case SC No. 71A/08, these witnesses were dropped for the same reasons.
42. After the conclusion of the evidence of the prosecution, all the incriminating evidence brought on record by the prosecution was put to the accused in his statement recorded U/S 313 Cr.P.C. and the same was denied by him to be either beyond his knowledge or to be incorrect. The accused has claimed himself to be innocent and to have been falsely implicated in this case while saying that he was picked up from Sarojini Nagar Market and was arrested by the DRI officers immediately and then taken to their office and he was not permitted to leave the DRI office and was being continuously held by them. He has further submitted that in the DRI office, he was physically beaten in such a manner that though it was painful, but was not leaving any mark on his body and he was made to disclose his personal details, which were got incorporated by the DRI officers in his statement, which he was forced to write. He also claims that he had subsequently written a letter retracting from the said statements. It is also his case that though the accused Fernandez L. Hmar was known to him, but he had not given the above suitcase containing Heroin to accused Fernandez L. Hmar and as far as the SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 28 accused Sukleshwar Basumatary is concerned, he had met him only in the jail and the alleged statements made by the above two persons were also forcibly taken from them, as told to him by the above two accused in Jail. He has also specifically denied his involvement in connection with the heroin seized in this case or in the other case of Bitoren Dolores Fernandez, though he admitted that the above lady accused had stayed at their house only as a paying guest and had met him through internet. He has also chosen to lead evidence in his defence.
43. The accused has also examined on record the Ahlmad of this court namely Sh Jyoti Kumar Kujur as DW1 and this witness has placed on record the copies of the three retraction applications filed by the accused Emmanuel Chilkezie as well as of the retraction applications of the above accused Bitoren Dolores Fernandez, Sukleshwar Basumatary and Francis L. Hmar in the above connected cases SC No. 71A/08 and SC No. 39A/09.
44. It is necessary to mention here that the originals of most of the documents of this case, except some formal documents like the arrest memo of the accused Emmanuel Chilkezie in this case and the above statements of PW11 Sh Trilok Chand and PW7 Sh Rakesh Kumar Nainawat, regarding the identification of the photograph of the accused, are available in the files of the above two connected cases SC No. 71A/08 and 39A/09, which were SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 29 produced during the trial of this case and the copies thereof were duly placed on record.
45. It is also necessary to mention here that one application dated 29.02.2012 was moved on behalf of both the accused Sukleshwar Basumatary and Francis L. Hmar during the trial of the case SC No. 71A/08, seeking the drawing of fresh samples for testing out of the remaining case property, i.e. heroin seized from them, which is also the subject matter of this case, on the ground of some changes reflected in the seized substance, but the said application was dismissed by this court vide a detailed order dated 07.05.2012 passed in the said case and one of the grounds for dismissal of the above application was that the said application was moved after a considerable delay as it was found that there was a long gap from the date of seizure of the said substance, i.e. 02.06.2008, and moving of the said application. However, when a separate complaint was filed against the accused Emmanuel Chilkezie subsequently in respect of the same seizure, i.e. the present case SC No. 33A/11, a similar application moved on behalf of the accused in this case was allowed by this court vide order dated 26.09.2012 while observing, inter-alia, that the prosecution against the accused was initiated by the DRI only in the year 2011, though the above seizure was effected in the year 2008, and hence, there was no unreasonable delay on the part of the accused in moving the said application. The above order dated 26.09.2012 SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 30 of this court was even upheld by the Hon'ble High Court in Crl. M.C. No. 4158/2012 filed by the DRI and decided vide the order dated 08.04.2013 and two fresh samples were also drawn out of the remaining heroin in this court on 14.05.2013 and the same were tested in the CRCL, New Delhi vide the above report Ex. PW17/B, which has been proved on record by PW17 Sh V.K. Sharma. In this report, the purity of diacetylmorphine (heroin) in these two samples was opined to be 0.20 per cent and 0.41 per cent only, as against the purity of 60.8 per cent which was given in the previous report Ex. PW6/A dated 19.06.2008.
46. I have heard the arguments advanced by Ms Mala Sharma, Ld SPP for DRI and Sh Manish Khanna, Ld counsel for the accused. I have also gone through the evidence led and the other record of the case, including the written submissions filed on behalf of both the parties.
47. As stated above, since the seizure of the heroin of this case was effected from the possession of the accused Sukleshwar Basumatary and Francis L. Hmar of the above case SC No. 71A/08 and it was not effected from the possession or at the instance of accused Emmanuel Chilkezie of this case, the evidence led on record by the prosecution regarding the seizure of the above contraband substance is not required to be scrutinized meticulously as such by this court, though some material discrepancies and lacunaes of the prosecution case can still be considered by this court to test the veracity of the SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 31 prosecution case as a whole. The other evidence adduced on record during the trial against the present accused is mainly in the form of the statement U/S 67 of the NDPS Act made by the above accused Francis L. Hmar in the above case SC No. 71A/08 and the subsequent statement under the same provisions made by the accused Emmanuel Chilkezie himself during the investigation of the other case SC No. 39A/09 pertaining to the seizure of heroin effected from the accused Bitoren Dolores Fernandez, in which the accused Emmanuel Chilkezie had allegedly disclosed, inter-alia, his involvement in connection with the above seizure of heroin effected from the accused Sukleshwar Basumatary etc. in case SC No. 71A/08. Besides the above statements made by the accused Emmanuel Chilkezie and the above other two accused, there is also some other evidence led on record in the form of the statements tendered by PW7 Sh Rakesh Kumar Nainawat and PW11 Sh Trilok Chand, wherein they are alleged to have identified a photograph of the accused Emmanuel Chilkezie. Some other evidence in the form of call detail record etc. of the above mobile phone number is also there on record, which requires to be scrutinized, alongwith the other evidence, to find out if the accused Emmanuel Chilkezie was in fact a part of or involved in a criminal conspiracy with the accused Sukleshwar Basumatary and Francis L. Hmar etc., in pursuance of which the above heroin seized from the above two accused was being possessed or attempted to be exported out of India by them on 02.06.2008, which offence is punishable SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 32 U/S 29 of the NDPS Act, for which the accused has been charged in this case.
CONFESSIONAL STATEMENTS U/S 67 OF THE NDPS ACT OF THE ACCUSED FRANCIS L. HMAR @ MUHAMMED RASHID AND OF THE ACCUSED EMMANUEL CHILKEZIE HIMSELF
48. Before discussing anything about the above statements of the accused persons, which are confessional in nature and are being alleged to be made voluntarily, it is necessary to discuss herein the legal position with regard to the admissibility of such statements. 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 be made voluntarily. In the case of Raj Kumar Karwal Vs Union of India & Ors. (1990) 2 SCC 409 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 2008 (1) AD (Crl.) (SC) 277 : 2008 (1) JCC (Narcotics) 23 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 NDPS Act would operate nor the provisions of Article 20(3) of the SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 33 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 influence etc. and was made by the accused voluntarily.
49. 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 above 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 safe for the court to arrive at a finding regarding the guilt or conviction 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.
50. Though the Ld 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, but the prepositions of law as laid down in SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 34 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. Reference can also be made to a full bench decision of the Hon'ble Supreme Court in case Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC) wherein 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 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. 2008(9) Scale 681 also it was held by a Division Bench of the Hon'ble Supreme Court that the confessional statement of an accused like that SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 35 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.
51. Besides the above judgments, there is also another judgment of a Division Bench of the Hon'ble Supreme Court in case Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 and also a recent judgment of a single bench of our own High Court in case DRI Vs Raj Kumar Mehta & Ors.2011 (3) JCC (Narcotics)
156. In case of Ram Singh, Supra also it was held by their Lordships of the Hon'ble Supreme Court 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 prudence the court requires some corroboration thereof. In the other case of Raj Kumar Mehta, Supra also it was held by our own Hon'ble High Court 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.
52. It is clear from the above legal discussion SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 36 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 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.
53. Thus it is clear from the legal propositions discussed above that a retracted confessional statement made by the accused is a very weak piece of evidence and the statement made by a co-accused even stands on a lesser footing than that of the accused himself and no conviction should be arrived at on the basis of these statements, unless there is sufficient independent corroborative material on record to substantiate the contents of these statements. As stated above, the seizure of the heroin of this case was effected from the possession of the accused Sukleshwar Basumatary and Francis L. Hmar on 02.06.2008 from outside the IGI Airport and thereafter, they were taken to the DRI SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 37 office and the proceedings regarding the said seized heroin were conducted vide the panchnama Ex. PW5/D on record. Thereafter, the statements Ex. PW5/F and Ex. PW5/H respectively of the above two accused were also recorded in the DRI office by the IO/PW5 Sh Alkesh Rao, after serving the summons Ex. PW5/E and Ex. PW5/G upon the above two accused. Though these statements were recorded prior to the formal arrest of the above two accused in case SC No. 71A/08 and are further found to be written in the handwriting of the respective accused, but it is a matter of record that these statements were subsequently retracted by the above two accused in the said case. However, as far as the statement made by the accused Sukleshwar Basumatary is concerned, the accused Emmanuel Chilkezie of this case was not even named or referred to in the said statement and it is only in the statement of accused Francis L. Hmar that he had named the accused Emmanuel Chilkezie as the person who had handed over the above suitcase containing the above packet of heroin concealed therein to him near a shoe shop in the Sarojini Nagar market and had also subsequently travelled with them in the said car to the above flat at Neelkanth Apartment, where the above suitcase was handed over to the accused Sukleshwar Basumatary for carrying it to Kualalumpur.
54. It is a matter of record that the above statement Ex. PW5/H of the accused Francis L. Hmar dated 03.06.2008 was subsequently retracted by him and a copy SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 38 of his retraction application as well as the covering letters of the Jail Superintendent as well as the office of the DLSA were duly brought on record of this case as Mark DW1/G to Mark DW1/G3, during the statement made by Sh Jyoti Kumar Kujur, the Ahlmad of this court, who had produced the originals of the said documents from the file of the above case SC No. 71A/08. Though, these documents have been marked only during his testimony, but the same have not been disputed and even the above witness was not cross examined on behalf of DRI, perhaps because he was only producing the admitted record of a connected case of DRI, and hence even though the above documents have not been formally exhibited in the evidence, the same can be considered by this court as having not been disputed or admitted by the prosecution. The retraction application of the accused Francis L. Hmar bears the date 16.06.2008 and it was sent from jail to DLSA on 26.06.2008 and further forwarded to this court on 02.07.2008 and though this application does not bear the attestation of a jail visiting advocate, but it appears to have been drafted by some jail visiting Legal Aid Advocate as it was forwarded through the office of the DLSA. However, simply because the accused had sent his application through the office of DLSA, it cannot be presumed that the same is the result of some legal advise. The accused has alleged in his above retraction statement that he was tortured, physically as well as mentally, by the DRI officers while he was in their custody and was made to write the above statement under SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 39 duress and this should not be considered as his voluntary statement. The very fact that his above statement stands retracted on record, the same is required to be considered as a very weak piece of evidence and should not be relied upon without any material independent corroboration of the contents thereof, in view of the legal position already discussed above. Moreover, there is not found to be any undue delay in sending of the above retraction application by him, keeping in view the fact that he was confined in jail.
55. Further, the above statement Ex. PW5/H of the above accused Francis L. Hmar is a eight page statement and even though it has been written by him in his own handwriting and also incorporates his personal and family details, but the Ld defence counsel appears to be right in making a submission that it was very easy for the DRI officers to have incorporated the said personal details in the above statement because the accused was already in their custody and had no option to resist or refuse the DRI officers to provide or write the same. Ld defence counsel has demonstrated that many words and portions of the above statement could only have been incorporated in the said statement on the dictation of the DRI officers as the accused being a laymen could not have been aware about the legal provisions touching upon the said statement or the reasons and consequences of writing such a statement. This statement also contains SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 40 a very detailed description of the search and seizure proceedings conducted by the DRI officers with regard to the above seized substance and the details of the parcels prepared regarding the said substance and samples drawn therefrom and these details could never have been incorporated in the said statement by the accused on his own. Once the above substance had already been seized and the proceedings of panchnama conducted with regard to the same, it was very easy for the DRI officers to have got the said details reproduced in the above statements, which appears to have been done in the present case.
56. Again, during the investigation of the above case SC No. 71A/08, the IO/PW5 Sh Alkesh Rao had not made any efforts to collect any independent evidence from any other sources, which could have established the truthfulness of the submissions contained in the said statement or could have established the existence of a criminal conspiracy between the above two accused persons and the accused Emmanuel Chilkezie etc of this case, to possess or export out of India the above contraband substance. The IO/PW5 could not collect any independent evidence to substantiate that the accused Emmanuel Chilkezie had in-fact met the above accused Francis L. Hmar in Sarojini Nagar market on that day and handed over to him the above suitcase containing the concealed heroin and further that the accused Emmanuel also travelled with the other two accused in the said SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 41 car from Sarojini Nagar market to the above flat in Neelkanth Apartment and then from the said flat upto Priya Cinema, where he (Emmanuel) got down from the car, when the accused Francis L. Hmar was going to drop the accused Sukleshwar Basumatary at IGI Airport or further to substantiate that it was the accused Emmanuel who brought and handed over the said suitcase to the accused Sukleshwar Basumatary at the above flat. Rather, the accused Sukleshwar Basumatary in his above statement Ex. PW5/F had nowhere named or referred Emmanuel Chilkezie as the person who handed over to him the above suitcase for carrying it to Kualalumpur and he claimed that it was handed over to him by the accused Francis L. Hmar. The above statement of accused Sukleshwar Basumatary does not even talks about the presence of the accused Emmanuel Chilkezie or any other person of African origin with them at any point of time, during the above journey of accused Sukleshwar Basumatary with the accused Francis L. Hmar, from the Domestic Airport of Delhi to the above flat, via Sarojini Nagar market, and then back to the airport.
57. Further, the source from which the above contraband substance was procured by the accused Francis L. Hmar and the person to whom it was to be delivered abroad could also not be established during the investigation and even the other persons named in the statement of accused Francis L. Hmar, like Mr Kent, could not be traced out. There were also some SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 42 contradictions in the above statements made by the accused Sukleshwar Basumatary and accused Francis L. Hmar, as also discussed above, as though in his statement Ex. PW5/H it was claimed by the accused Francis L. Hmar that the suitcase containing the above heroin was given to him by one Emmanuel and Emmanuel had even travelled with them in the said car from Sarojini Nagar market to Neelkanth Apartment, Vasant Kunj, the above Emmanuel had even collected the air tickets of accused Sukleshwar Basumatary on the way from Cannaught Place and then he further travelled with them from Neelkanth Apartment upto Priya Cinema, on their way to the IGI Airport, but there was not even a whisper made about the above Emmanuel by the accused Sukleshwar Basumatary in his statement Ex. PW5/F. It was further submitted in the statement Ex. PW5/H of the accused Francis L. Hmar that the above suitcase and the air tickets of accused Sukleshwar Basumatary were delivered to accused Sukleshwar Basumatary by the above Emmanuel, though at his house and in his presence, but the accused Sukleshwar Basumatary in his statement Ex. PW5/F had claimed to the contrary. These were material contradictions in their above statements and when both these statements were being made by the accused before the same officer of DRI, and almost around the same time, it was necessary on the part of the above officer, i.e. the IO/PW5 Sh Alkesh Rao, to have re-examined the accused Sukleshwar Basumatary regarding the above contradictions and to record his further/supplementary SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 43 statement regarding the role played by the above Emmanuel, which he had not done in the present case.
58. Besides the above, there is also one other legal ground argued by the Ld defence counsel on which the above statement Ex. PW5/H made by the above accused Francis L. Hmar in the other case SC No. 71A/08 should not be considered against the accused Emmanuel Chilkezie of this case. Since a separate trial was held against the accused Sukleshwar Basumatary and Francis L. Hmar and the accused Emmanuel Chilkezie has been tried separately from them, though in connection with the same seizure, the above two accused cannot be even termed or called as 'co-accused' of the accused Emmanuel Chilkezie and the above statement Ex. PW5/H made by the accused Francis L. Hmar cannot be used against the accused Emmanuel Chilkezie as per the provisions of Section 30 of the Evidence Act since they both have not been tried 'jointly', as provided under the said Section which deals with the consideration of a proved confession of an accused affecting himself as well as the other persons, who are jointly under trial for the same offence. On this aspect, a reference can be made to the judgments in cases AIR 1923 Mad 365 (366), 1979 Crl. L. J. (NOC) 95 (Goa) and Ramashish Rai & Ors Vs State of Bihar 1989 Crl. L.J. 336 (356) (Patna). In the first case cited above, it was held that even when two accused were originally charged together but were later on tried separately, a statement made by one cannot be used SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 44 against the other. Even in the second case cited above, it was held that the confession of an absconding co- conspirator who is not tried jointly with other conspirators, cannot be used against the later. Further in the third case of Ramashish Rai, Supra one of the accused jointly tried alongwith others absconded at the fag end of the joint trial resulting into the separation of his trial and it was held that the evidence of confession of absconding accused cannot be taken into consideration against the other accused to lend credence to the conclusion of guilt reached on the basis of other evidence. Had the DRI any intentions of using the above confessional statement Ex. PW5/H of the above accused Francis L. Hmar against the accused Emmanuel in this case, they should have examined the accused Sukleshwar Basumatary as a witness in this case, which they have not done. Hence, in view of the legal position discussed above and also because of the other factual discrepancies and lacunaes, the above statement Ex. PW5/H of accused Francis L. Hmar made in the above case SC No. 71A/08 is of no consequence and help for the DRI in securing the conviction of the accused Emmanuel Chilkezie in this case.
59. Now coming to the confessional statement of the accused Emmanuel Chilkezie himself, it has already been discussed above that he had made two statements dated 22.12.2008 and 23.12.2008 before the IO/PW5 Sh Alkesh Rao during investigation of the case SC No. 39A/09 SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 45 against the accused Bitoren Dolores Fernandez. However, his statement dated 22.12.2008 is not even a part of the trial of this case and it is only his subsequent statement dated 23.12.2008 is on record, a copy of which has been brought on record during the trial as Ex. PW5/Z1. In-fact both the above statements were allegedly tendered by the accused in continuity and the second statement Ex. PW5/Z1 was tendered after the accused had sought some rest after tendering his first statement dated 22.12.2008. Moreover, the first statement dated 22.12.2008 made by this accused has nothing to do with the seizure of the present case as the same pertained only to his personal details and family background and his garment business etc and further as to how he was induced into the drug dealings by one Mr Kent. It is only in his second statement Ex. PW5/Z1 that the accused is alleged to have not only confessed about his being involved in the other case SC No. 39A/09 against the accused Bitoren Dolores Fernandez, but is further stated to have admitted his involvement in connection with the heroin of this case, which was seized from the possession of the above two accused Sukleshwar Basumatary and Francis L. Hmar of case SC No. 71A/08. He is alleged to have disclosed in this statement that the consignment of drugs for which Rashid was in jail was given to Rashid by him.
60. However, as already discussed above, the above statement Ex. PW5/Z1 made by the accused Emmanuel was SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 46 also subsequently retracted by him on record and copies of his three retraction applications have been duly brought on record as Mark DW1/A, DW1/B and DW1/C respectively, alongwith the reply Mark DW1/D filed thereto on behalf of the DRI. These three retraction applications of the accused are almost identical in contents and the date 27.12.2008 is found written on these applications and the applications are also bearing the thumb impression of the accused. As also discussed above, the originals of these applications were produced from the file of SC No. 39A/09 titled DRI Vs Bitoren Dolores Fernandez & Anr and DW1 Sh Jyoti Kumar Kujur, who had produced the above file, was not even cross examined on behalf of DRI and hence, the genuineness of the documents as such has not been disputed and even though these have not been exhibited and marked only during the evidence, the same can be considered by this court in evidence as having been admitted or not disputed by the prosecution. As stated above, the accused Emmanuel was formally arrested in the above case SC No. 39A/09 on 23.12.2008 and the retraction applications appear to have been written sometime prior to 27.12.2008, even though the actual date of filing of these applications on record is not clear from these applications or the testimony of DW1. However, there does not appear to be any long or undue delay in filing of these retraction applications by the accused as the same have been filed just within 3-4 days of the making of the alleged statement Ex. PW5/Z1 and the very filing SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 47 thereof makes the voluntariness of the alleged statement Ex. PW5/Z1 of the accused to be doubtful.
61. It is observed that as far as the seizure of the present case is concerned, this statement Ex. PW5/Z1 of the accused Emmanuel nowhere contains any details pertaining to the above seizure or the source of procurement or supply etc of the seized heroin and even the specific role played by him in connection with the seized substance and the only words thereof, which refer to the above seizure, are that the consignment of drugs for which Rashid was in jail was given to Rashid by him, i.e. the accused Emmanuel. Though, this statement was made by the accused Emmanuel on 23.12.2008 itself, i.e. after about 6 months of the seizure of heroin effected from the accused Francis L. Hmar and Sukleshwar Basumatary, but still no steps were taken by the DRI officers to effect the arrest of the accused Emmanuel in connection with the above seizure and it was despite the fact that both the above cases were investigated by the DRI and the accused Emmanuel was arrested by them in case SC No. 39A/09 on 23.12.2008 itself, i.e. the date of making of the above statement. This conduct of the DRI officers was very strange and it appears that they had initiated steps to arrest the accused Emmanuel in connection with the above seizure only because this court had granted bail to the accused Emmanuel in the above case SC No. 39A/09 vide its order dated 03.09.2011, as the application dated 16.09.2011 was SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 48 moved by the DRI for passing appropriate orders regarding the arrest of the accused Emmanuel in connection with the seizure effected from the accused Sukleshwar Basumatary etc in case SC No. 71A/08 only after the passing of the said orders. Perhaps they were aware that on the basis of only the above alleged disclosure made by the accused himself in his above statement Ex. PW5/Z1 of being connected with the seizure for which accused Rashid was in jail, they could not have been able to make out any case against him and their attempt in moving of the above application dated 16.09.2011 was merely to block the release of the accused from jail after passing of the above bail orders in the case SC No. 39A/09. During his cross examination, the IO/PW5 could not give any satisfactory explanation for not arresting the accused Emmanuel in connection with the heroin seized in case SC No. 71A/08, after the accused had confessed his involvement in the above seizure in his statement made in case SC No. 39A/09 on 23.12.2008 and both these cases were investigated by him only, i.e. the IO/PW5 Sh Alkesh Rao. Apart from formally arresting the accused Emmanuel with the permission of the court on 20.09.2011, in connection with the above seizure, nothing material in the name of investigation was done by the complainant/PW2 Sh Mahesh Yadav, who had arrested the accused and he had filed a complaint against the accused in this court simply by placing copies of all the documents of other cases and only two statements, i.e. one each of PW7 Sh Rakesh SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 49 Kumar Nainawat and PW11 Sh Trilok Chand, were recorded by him during the investigation of this case, after the arrest of the accused in this case. Hence, in the absence of there being any further investigation conducted by him to verify or substantiate the truthfulness of the above confession made by this accused in his above statement or any independent evidence collected to substantiate the above contents of his statement, there is nothing on record in the name of evidence to substantiate or corroborate the above disclosure or confession made by the accused Emmanuel of his having been connected with the heroin seized from the possession of accused Sukleshwar Basumatary and Francis L. Hmar. Hence, for want of any such independent corroboration of the above fact and further in view of the legal position discussed above, even the above statement Ex. PW5/Z1 of the accused is of no worth for the DRI.
62. Moreover, the casual attitude of the complainant/PW2 can also be judged from the fact that he had not even placed on record any copy of the first statement dated 22.12.2008 made by this accused in the above case SC No. 39A/09 and due to his above lapse even this second statement cannot be considered as a voluntary statement of this accused for the simple reason that the personal and family details of the accused, if any, were allegedly disclosed by him in his first statement dated 22.12.2008 only and the same are SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 50 not found to be recorded in the second statement Ex. PW5/Z1, which is being alleged to have been made by the accused in continuity of his first statement.
STATEMENTS MADE THE DRIVER SH RAKESH KUMAR NAINAWAT
63. Some mention of a black person looking like an African travelling in the above said car on the relevant date is also there in the statement Ex. PW7/A made by PW7 Sh Rakesh Kumar Nainawat, i.e. the driver of the above Tata Indica car, which was also recorded in the above case SC No. 71A/08, and as per that statement the above black person travelled in his above car from Sarojini Nagar market to Neelkanth Apartment and then from Neelkanth Apartment to Priya Cinema, but the same in itself cannot be considered to be incriminating enough to connect the accused Emmanuel Chilkezie with the above seized heroin. Even the voluntariness of the above statement Ex. PW7/A of this witness is not established on record beyond doubts as Ld defence counsel has been able to demonstrate during the trial that the said statement might also have been dictated to this witness and was not written by him on his own. Even the subsequent statement Ex. PW2/E made by this witness, during the investigation conducted after the formal arrest of accused Emmanuel in this case, wherein he identified a photograph of accused Emmanuel as the same black person who travelled with them in the said car on the relevant date, as stated above, cannot be SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 51 given any weight as such type of identification of an accused from a photograph, and that too from a single photograph, cannot be considered to be relevant and trustworthy and of any consequence. Nothing prevented the DRI officers from getting the accused Emmanuel identified from this witness through judicial TIP proceedings as he was already running into custody in this case. On the aspect of identification of an accused from a photograph, Ld defence counsel has rightly relied upon the judgments of the Hon'ble Supreme Court in cases D. Gopal Krishnan Vs Sadanand Naik & Ors. Appeal (Crl.) 1197-1203 of 1998 decided on 15.10.2004 and State of Madhya Pradesh Vs Chamru Alias Bhagwandas Etc AIR (SC)-2007-0-2400:LAWS (SC)-2007-6-26 decided on 19.06.2007, wherein their lordships had held that the identification of an accused from photographs is valueless. Moreover, though PW7 has also deposed in this court about the above seizure effected from his car, in which the accused Sukleshwar Basumatary and Francis L. Hmar were travelling to IGI Airport, and further about one other black person who travelled with them from Sarojini Nagar market, but during his above examination, he was not sure about the identity of the accused Emmanuel shown to him in this court to be the same black person. He was even permitted to be cross examined on behalf of DRI on the above aspect, but even during his such cross examination, he has only stated that he was not sure if the accused Emmanuel was the same black/African person who had boarded his taxi on SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 52 the relevant date from the Sarojini Nagar market. He has also denied a suggestion given to him by Ld SPP for DRI that he was intentionally not identifying the accused as he was influenced or won over by the accused and rather he stated that the same was due to a long gap of time and further because all African look almost similar in appearance.
STATEMENTS MADE BY SH TRILOK CHAND OF M/S INDIA TRAVEL BUREAU
64. The next incriminating evidence claimed against the accused is stated to be in the form of statements U/S 67 of the NDPS Act made by PW11 Sh Trilok Chand of M/s India Travel Bureau as it is the case of the prosecution that this witness has claimed that the accused Emmanuel had booked the travel tickets of accused Sukleshwar Basumatary for his return journeys between Delhi and Kualalumpur. His first statement on record is Ex. PW5/X dated 15.09.2008 and the same was tendered by him in response to the summons Ex. PW5/W dated 04.09.2008 and the same was tendered during the investigation of the above case SC No. 71A/08. He had also tendered the copies of some documents, which are Ex. PW11/A (colly) on record, regarding the issuance of the said tickets through his office, which were further booked by them through the offices of Hi Tours India Pvt. Ltd. and M/S Akbar Travels India Pvt. Ltd. However, he had not named the accused Emmanuel in his SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 53 above statement and had only stated that the above tickets were booked by one black person, who was looking like an African, against cash payment.
65. It is also the case of DRI that after the accused Emmanuel was formally arrested in this case on 20.09.2011, one other statement Ex. PW2/G dated 04.10.2011 of PW11 Sh Trilok Chand was also recorded, after serving the summons Ex. PW2/D upon him, by the complainant/PW2 and in his above statement, the above witness has also identified a photograph of the accused Emmanuel to be of the same black/African person who had booked the above tickets from his office. As already discussed above in the previous heading, such type of identification of an accused from a photograph is not legally tenable. Moreover, the mere booking of the above air tickets of the accused Sukleshwar Basumatary by the accused Emmanuel in itself cannot be an incriminating factor against him, for showing the existence of any such criminal conspiracy for possession or export etc of some contraband substance. Hence, even this evidence in the form of the statements of this witness cannot be of any help for the case of the prosecution.
66. Besides the above, even the evidence led by the prosecution on record pertaining to the constitution of the above raiding team and seizure etc is not found to be trustworthy or convincing enough and there are also SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 54 various other factors forcing this court to disbelieve the case and evidence of the prosecution about the seizure of the above heroin and all these factors and evidence can be discussed and appreciated broadly under the following heads:-
SEARCH AND SEIZURES AND THE PROVISIONS OF SECTION 41 AND 42 OF THE NDPS ACT
67. Since the secret information Ex. PW4/A received in this case was to the effect that some narcotic drugs, i.e. heroin, concealed in a suitcase was being transported in the above Tata Indica car number DL 3C AX 4435 and the expected time of travel of the accused Sukleshwar Basumatary and Francis L. Hmar in the said car to IGI Airport was between 9:00 PM to 9:30 PM, i.e. after sunset and before sunrise, PW4 Sh K. S. Ratra or any other officer effecting the above seizure and arrest was required to have either an authorization or a search warrant from some competent Gazetted Officer of DRI for effecting the search of the said car and to arrest the accused persons responsible for the above transportation, as per the provisions contained in Sections 41 and 42 of the NDPS Act. However, it has been observed that no search authorization or warrant in writing was ever issued in the name of the IO/PW5 Sh Alkesh Rao for effecting the above search and seizures, either by PW21 Sh K. K. Dhasmana before whom PW4 had put up the said information or by PW20 Sh A. K. Khatri SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 55 before whom the above information was further placed by PW21 being his senior officer in hierarchy. Even the name of the IO/PW5 Sh Alkesh Rao is not found to be endorsed or written in the above information Ex. PW4/A by any of the above two senior Gazetted Officers of DRI or even any other competent officer of DRI. Hence, the above search, seizures and arrests can be said to have been effected in violation of the mandatory provisions of Sections 41 and 42 of the NDPS Act and can be termed as illegal, as has been discussed in detail in the judgment being pronounced separately in the above connected case SC No. 71A/08, and when the seizure effected from the main accused Sukleshwar Basumatary and Francis L. Hmar has become illegal, the conviction of accused Emmanuel on the basis of statements made U/S 67 of the NDPS Act only by the accused himself and some other persons or his accomplices cannot be legally possible. Judgements of Hon'ble Supreme Court in cases State of Punjab Vs Balbir Singh 1994 SC (Crl.) 634, Karnail Singh Vs State of Haryana (2009) 85 SCC 539 and State of Karnataka Vs Dondusa Namasa Baddi (2010) 12 SCC 495 and also of various High Courts, including the judgment in case of DRI Vs Manjinder Singh, Crl. L.P. No. 310/2013 decided on 23.01.2014 by the Hon'ble Delhi High Court, can be referred on the aspect of illegality of such seizures effected in violation of the above provisions of Sections 41 and 42 of the NDPS Act.
RAIDING TEAM AND ITS CONSTITUTION
SC No. 33A/11 DRI Vs. Emmanuel Chilkezie
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68. The next material flaw in the story of the
prosecution case is that the constitution of the raiding team or the names of the members who had participated in the above raiding team is not clear from the evidence led on record. In the panchnama Ex. PW5/D or in the complaint Ex. PW2/H, it is not found disclosed as to who were the officers of the DRI, who had left their office on the above date for the spot to intercept the accused persons and the goods and all that which is found to be mentioned therein, is that a team of officers was constituted and it rushed to the spot. Even in the above secret information Ex. PW4/A, only the directions for organizing a team are found to have been recorded and nowhere it is found stated therein as to who were the officers included or to be included in the said team. As stated above, the above secret information was reduced into writing by PW4 Sh K. S. Ratra and this officer was not a part of the raiding team. PW4 had placed the said information before PW21 Sh K. K. Dhasmana and PW21 had further placed it before his senior officer/PW20 Sh A. K. Khatri and even none of these two officers was also a part of above raiding team, as per their depositions made on the record. Hence, apart from the driver of the above vehicle, i.e. PW7 Sh Rakesh Kumar Nainawat, the IO/PW5 Sh Alkesh Rao is the only official witness of the DRI pertaining to the recovery of the alleged contraband substance from the possession of accused and no other member of team of DRI is examined on record or even cited as a witness in the list of the prosecution SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 57 witnesses. Further, in his statement made in this court also, the IO/PW5 has only deposed about the visit of the DRI team to the spot and has nowhere deposed about the constitution of the raiding party or as to who were the other officers accompanying him to the spot. Thus, in the absence of there being any other member of the team examined on record, the testimony of the IO/PW5 does not get sufficient corroboration from the testimony of any other official participating in the said raid nor the documents prepared by the IO/PW5 about the above seizure are found to be signed by any other officer of DRI.
PUBLIC WITNESSES OF SEIZURE AND THEIR NON EXAMINATION
69. As per the prosecution case, the IO/PW5 had joined two public witnesses namely Ram Singh and Sh Shamu in the above seizure and as per the contents of the panchnama, the complaint as well as the depositions by the IO/PW5, these witnesses were called in the DRI Office at about 7:00 PM and briefed about the above said information and on request of the DRI officers, these witnesses had agreed to join the raiding team. It is only thereafter that the DRI team, accompanied by the above two public witnesses, had left their office for the spot. However, the prosecution was not able to examine the above two public witnesses during the trial as their given addresses were reported to be not existing and ultimately, after repeated attempts made to serve these witnesses, they were dropped by the SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 58 prosecution.
70. On appreciation of the prosecution evidence, it is found that according to the IO/PW5, the above two witnesses called from the same vicinity, in which the office of the DRI is located. The public witness Sh Ram Singh was a resident of Sewa Nagar and the public witness Sh Shamu was a resident of Madangir (written as Madangiri), New Delhi. The IO/PW5 has also admitted on record that he did not make any inquiry regarding the name, parentage and addresses etc. of these witnesses and he further admits that he did not collect any proof of residence or identity etc from these witnesses, though he claims to have demanded the same from the witnesses. In the absence of there being any such document on record, even his claim of demanding these documents from the witnesses cannot be believed. No statements U/S 67 of the NDPS Act of these witnesses were also recorded by him during the investigation. It is also necessary to mention here that these witnesses could not even be examined and were dropped during the other connected case SC No. 71A/08. The very fact that the given addresses of these witnesses were subsequently reported to be incomplete or non existence is a strong circumstance to suggest that they may be false witnesses introduced in the story of the prosecution to give credibility to the same, as has been argued by Ld defence counsel and also observed in many other cases of DRI. On this aspect, a reference can be made to a SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 59 recent judgment of the Hon'ble Delhi High Court dated 03.12.2014 in case Ambrose Vs Director of Revenue Intelligence, Crl. Appeal No. 09/2014, where in similar circumstances, the case of the prosecution was disbelieved and the conviction of the accused arrived by this court for such an offence was set aside by the Hon'ble High court, while doubting the credibility of the prosecution case due to the non examination of the public witnesses, inter-alia, and the similar reports received regarding their incomplete/non existent addresses.
TYPED NOTICES U/S 50 OF THE NDPS ACT
71. The next circumstance to show the fabrication of record is the typed notices Ex. PW5/A, PW5/B and PW5/C, which were allegedly served by the IO/PW5 upon the accused Sukleshwar Basumatary, Francis L. Hmar and PW7 Sh Rakesh Kumar Nainawat respectively at the spot of their apprehension. Since the complete particulars of these persons were not known to the IO/PW5 by the time he left his office for the spot, as the same were not disclosed in the secret information, the above notices could not have been typed prior to leaving of their office by the DRI team for the spot. Further, the above notices could not also have been typed at the spot for the reason that no facility of a typewriter, computer or printer was available to the DRI officers at the spot, i.e. the above CISF check-post outside the IGI Airport, and hence, the only inference which is possible from the SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 60 above is that these notices were subsequently typed and prepared in the DRI office and the same were or could not have been prepared or served upon the above accused and PW7 at the spot of their interception, as is the case of the DRI. It is also necessary to mention here that in the above connected case SC No. 71A/08, the IO/PW5 Sh Alkesh Rao (who was examined as PW6 in the above case) had introduced the concept of a 'standby' team during his cross examination, when he was questioned by Ld defence counsel of that case to explain the above typed notices served at the spot, and he tried to explain that the above notices were prepared by someone in the DRI office on the basis of the information passed from the spot and then the same were brought at the spot by a standby team. Though, the above depositions in the said case were made by the IO/PW5 much prior to his making depositions in this case and Ld defence counsel of this case could have easily confronted him on the above aspect during his cross examination in this case, but the same has not been done. However, even otherwise, since the above case SC No. 71A/08 has been tried alongwith this case and is being disposed off simultaneously, though separately, the court cannot close its eyes on the above vital aspect and cannot believe the testimony made by the IO/PW5 in this case, on the aspect of seizure and specially the service of the above typed notices at the spot.
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DECREASE IN THE PURITY PERCENTAGE
72. As discussed above, in the test report Ex.
PW6/A dated 19.06.2008 of one of the samples drawn out of the above heroin seized from the possession of the accused Sukleshwar Basumatary and Francis L. Hmar, the purity of diacetylmorphine (heroin) in the said sample was given as 60.8 percent, whereas in the subsequent two samples drawn out of the above remaining heroin in this court, the purity of diacetylmorphine (heroin) in these samples was given to be only 0.20 percent and 0.41 percent in the report Ex. PW17/B. In view of the judgments in cases Ram Narain Vs State 2005 VI AD (Delhi) 245, Rahul Saini Vs State 2006 VII AD (Delhi) 531 and also in case of Ved Singh Vs State of Rajasthan LAWS (Raj)-2002-1-13 Crl. L.J.-2002-0-1463, which is being relied upon by Ld defence counsel, such a drastic fall in the purity of diacetylmorphine (heroin) makes the very genesis of the first sample tested vide the report Ex. PW6/A to be doubtful and the accused is entitled to be given benefit of doubt because of the same.
DIFFERENCE IN WEIGHT OF SAMPLE
73. It has also been observed from the evidence that the gross weight of the sample received in the CRCL as per the report in Section-II Ex. PW6/B dated 03.06.2008 on record is mentioned as 9.0 Grams, as SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 62 against the weight of sample of 5 Grams drawn by the IO/PW5 out of the above seized substance from the possession of the accused Sukleshwar Basumatary etc. Though this gross weight includes the net weight of the sample heroin as well as the weight of the small polythene pouch in which the sample was put, but even then this discrepancy or difference of weight of sample in the prosecution story is unexplainable as the weight of the small empty pouch cannot be taken to be around 4 Grams. It is also observed that even after consuming some substance in the testing process of the above sample, the gross weight of the remnant sample as per the test report Ex. PW6/A is 7.2 Grams, which still is too high than the actual weight of the sample drawn in this case. Even this discrepancy or difference in weight is to be considered as a material discrepancy and it makes the veracity of the above sample to be doubtful and warrants the giving of benefit of doubt to the accused. Reference on this aspect can be made to the judgments in cases Rajesh Jagdamba Awasthi Vs State of Goa, 2005 (I) AD Crl. SCI, Noor Aga Vs State of Punjab & Anr. 2008(9) Scale 681 and also R. Mayilvahanam Vs NCB LAWS (Kar)-2008-4-21 Crl. L.J. 2008-0-4425, as is being relied upon by Ld defence counsel.
OTHER DISCREPANCIES OF THE PROSECUTION CASE ABOUT SEIZURE
74. As already stated above, out of the 23 witnesses examined by the prosecution on record, only two witnesses pertain to the recovery of the above heroin SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 63 from the possession of the accused persons and they are the IO/PW5 and PW7 Sh Rakesh Kumar Nainawat, who was driving the above car at the relevant time. Though PW7 was a natural witness of the incident, but as already discussed, he was not sure if the accused Emmanuel was the same person who travelled in his car on the relevant date, alongwith the accused Sukleshwar Basumatary and Francis L. Hmar. Besides the above, there are also certain inherent contradictions, inconsistencies and loopholes in the prosecution case. Though the secret information received in this case was to the effect that the above two North-Eastern persons were going to the IGI Airport with some narcotic drugs, i.e. heroin, in a suitcase being carried in the above car and further, the case of the prosecution is also that after the service of the above notices at the spot, the accused persons had disclosed therein that 2 KG of heroin was concealed in the suitcase kept in the dickey of the car and from there the accused persons, alongwith the above driver, car and the suitcase kept therein, were brought to the office of DRI, but there is nothing on record to show that after the factum of concealment of 2 KG of heroin in the above suitcase being transported in the said car has come to the knowledge of the IO/PW5, he had taken any steps to resume or to possess the said suitcase containing the above contraband substance. The evidence led on record suggests as if he had even not tried to check whether the said suitcase was actually lying in the dickey of the car or not or whether it was containing any heroin or not and SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 64 rather he had straightaway taken the accused Sukleshwar Basumatary etc to their office simply on the basis of their above alleged admissions made during oral enquiries regarding the presence of the above contraband substance in the said suitcase and had not taken any pain even to open the dickey of the car to confirm the above fact. This conduct of the IO/PW5 is very unnatural and is to be viewed very seriously.
75. Further, as already discussed above, the constitution of the raiding team or the members who had participated in the said team is/are not clear from the evidence led on record. In the absence of the number of the members constituting the said team being on record, it cannot also be stated as to how many vehicles were involved in the said raid and no record in the form of any logbook pertaining to the use of the official vehicle/vehicles or the above visit of the said vehicle/ vehicles has been produced during the evidence in this court nor even the name of the driver/drivers of the said vehicle/vehicles is found to be mentioned or disclosed in any document and the same should not even be expected when even the names of the members of the raiding team are not found disclosed on record. Again, the above secret information is also not found to be entered in any separate record or register and Ld defence counsel is right in making a submission that the same could always have been fabricated at a subsequent stage, as per the convenience of the investigating officer, and there is no SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 65 concrete evidence to show that this document had come into existence at the initial stage of the case, i.e. prior to the alleged visit of the raiding team to the spot. No duty slip of PW7 Sh Rakesh Kumar Nainawat as a driver on the said vehicle or even no documentary record of hiring of the said vehicle by the accused Francis L. Hmar for the above visit has been brought on record. Though it was alleged by the prosecution that the said car/taxi was directly hired by the accused Francis L. Hmar by making a call from one mobile number 9818813483, which was allegedly reported to be in the name of accused Francis L. Hmar, but no document or record pertaining to the above mobile number or conversation has been produced during the trial and rather PW1 Sh Pawan Kumar, Nodal Officer of M/s Idea Cellular has produced some record of one other mobile number 9911504020, which is stated to have figured during the statement made by the accused Francis L. Hmar in the above case SC No. 71A/08. No booking slip of the said vehicle showing the start time and the destination of the above hired vehicle etc was also seized or taken into possession by the IO/PW5 during the investigation of this case. Even the replies given by both the accused Sukleshwar Basumatary and Francis L. Hmar on their above notices U/S 50 of the NDPS Act in their own handwritings are found to be exactly same, which is another circumstance to show the fabrication of the said notices and further that either the same were dictated to them or they were forced to copy it from some other paper.
SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 66
76. One other discrepancy of the prosecution case is that though the above seizure was allegedly effected at a check-post outside the IGI Airport, which was put and manned by the CISF personnel, but the DRI officers had not joined even any official of the CISF in the alleged interception of the accused persons from the above place and had they done so, the prosecution story regarding the apprehension of the accused from the above spot and particularly the inquiries and other proceedings conducted at the spot, regarding the admission of the carrying of 2 KG of heroin by the accused Sukleshwar Basumatary etc in the above said suitcase lying in the dickey of the car and further serving of the above notices U/S 50 of the NDPS Act upon the accused Sukleshwar Basumatary etc and the above driver, could have certainly got a boost and could have been more credible and worthy of acceptance. No reasonable explanation could be furnished on record as to why no such attempt was made by the IO/PW5 Sh Alkesh Rao to join such CISF officials in the above raid and the evidence does not even suggest that he had made any request to any such official to join the proceedings.
77. In view of the above discussion, it is held that the prosecution has miserably failed to prove its charge and the guilt of the accused Emmanuel Chilkezie for the above offence beyond reasonable doubts and hence, the accused is acquitted of the above charge while holding that the evidence led on record is not SC No. 33A/11 DRI Vs. Emmanuel Chilkezie 67 sufficient to establish the above charge and he deserves to be given the benefit of doubt.
78. Since the accused is a foreign national and is liable to be deported back to his native country, unless he is wanted to be detained in any other case, the Jail Superintendent is directed that he should not be released from custody and rather he should be deported back to his native country as per law and the case property be also confiscated and disposed off as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment, if any, or the orders of the Appellate Court, as the case may be.
79. The bond U/S 437A Cr.P.C. is yet to be furnished by the accused and hence, the file be consigned to record room only after furnishing the above bond.
Announced in the open
court on 24.12.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No. 33A/11 DRI Vs. Emmanuel Chilkezie