Delhi District Court
State vs . Richard Nwafer And Anr. Sc No. 03/12 on 15 November, 2014
State vs. Richard Nwafer and Anr. SC No. 03/12
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 3/12
ID No. 02403R0007252012
FIR No. 248/2011
PS Crime Branch
u/s 21/29 of NDPS Act and 14 Foreigner Act
State Vs. 1. Richard Nwafer
S/o Nwafer
R/o 29, Niyioguneeye Street,
Lagos Nigeria
2. Chris Chinoye
S/o Onum Ajuru
R/o H.No. 1, Ezeweka Steet,
Onitsha Anabra, Nigeria
(Absconder)
Date of Institution : 06.02.2012
Judgment reserved on : 11.11.2014
Date of pronouncement : 15.11.2014
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons under section 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act') and 14 Foreigners Act.
FIR No. 248/11 Page 1 of 23
State vs. Richard Nwafer and Anr. SC No. 03/12
2. Briefly stated the allegations that can be culled out from the contents of the chargesheet and the documents filed with the same are as follows:
(a) On 24/9/2011 at about 12:45 PM, one secret informer came to the office of Narcotics Cell Shakarpur and informed SI Satyawan that two Nigerians namely Richard and Chris, natives of Nigeria, presently residing in Delhi, are indulging in export of heroin from Delhi to abroad through post parcels and that they would be coming on 24/9/2011 between 02:3003:30 PM near Gol Dak Khana, New Delhi to book a parcel containing heroin to Nigeria.
(b) SI Satyawan produced the secret informer before Inspector Vivek Pathak who in turn telephonically informed ACP Bir Singh about the information received. ACP Bir Singh directed for the conduct of a raid.
DD entry no. 19 was also lodged in this regard and as per the directions of the ACP, a raiding team comprising of SI Satyawan, HC Mukesh, HC Abdul Haakim, HC Jagender, Ct. Yogesh and Ct. Sohan Pal and the secret informer left for Gol Dak Khana alongwith IO kit at about 1:30 PM vide DD no. 20 and reached the designated spot at about 02.30 PM.
(c) On the way, the IO requested 45 passengers near Ramesh Park bus stop at Pushta Road, 5 passengers at ITO bus stop and 45 passersby at the spot to join the raiding team but none agreed to do so. Thereafter, the members of the raiding team were briefed by SI Satyawan and govt. FIR No. 248/11 Page 2 of 23
State vs. Richard Nwafer and Anr. SC No. 03/12 vehicle was got parked on Pandit Pant Marg at a distance of 30 meters from Gol Dak Khana and HC Om Prakash was directed to remain present near the vehicle. IO SI Satyawan himself took position alongwith HC Mukesh, Ct. Yogesh and the informer near the main gate of the post office and the members of the raiding team positioned themselves at strategic points and started waiting.
(d) At about 2:55 PM, two Nigerian persons were seen coming from Pandit Pant Marg side on foot. One of them was seen holding one white colour heavy plastic bag in his right hand and was identified as Richard and the other person was identified as Chris, by the secret informer. Both Nigerian persons came near the main gate of Gol Dak Khana and stood at a distance of 56 steps from SI Satyawan. After sometime, Chris went towards ATM Axis Bank and after seeing something came back to the place where Richard was standing. Both of them talked with each other and thereafter started moving in the direction from where they had come and at that point of time, they were apprehended by the raiding team.
(e) IO SI Satyawan then introduced himself and the members of the raiding team to the accused persons and on enquiry they revealed their names as Richard Nwafer and Chris. They were then informed about the secret information received by the raiding team and they were also apprised about their right to be searched before a Gazetted Officer or a FIR No. 248/11 Page 3 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 Magistrate. Notices u/s 50 NDPS Act were also issued to the accused persons and they were explained its contents. Both of them refused to call a Gazetted Officer or a Magistrate and informed the IO that their search may be taken by the police officials themselves. At that time also SI Satyawan requested 56 public persons to join the proceedings but none agreed.
(f) Thereafter, SI Satyawan conducted the search of the white colour plastic bag which the accused Richard was carrying in his right hand. It was found containing 20 bicycles seats made of black colour plastic and steel like material. On examining the plastic seats one transparent polythene wrapped in carbon paper having brown colour substance was recovered from each seat. The powdery substance from each polythene was collected in another transparent polythene and the contents were homogeneously mixed and thereafter tested with the help of field testing kit which gave positive result for heroin. The said powder on being weighed was found to be 1.200 kg. Two samples of 5 grams each were taken out from the recovered heroin and were put in two separate small transparent pouches and were converted into cloth pullandas which were then given Mark A and B. The remaining heroin was sealed in the same polythene from where it was recovered and was converted into a cloth pullanda and given Mark 'C'. The bicycle seats, empty polythenes and FIR No. 248/11 Page 4 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 carbon paper were also put into the white plastic bag out of which the same were recovered and the same was given mark 'D'. All the pullandas were sealed with the seal of 7APS NB DELHI. The FSL Form was filled and the impression of the same seal was then affixed on the Form FSL and thereafter the seal was handed over to HC Mukesh. Thereafter the cursory search of accused Chris was conducted but nothing incriminating was recovered during his search. Nil recovery memo was then prepared in this regard.
(g) Thereafter IO prepared the rukka and handed over the same to Ct. Sohanpal alongwith form FSL and copy of seizure memo with directions to register the case and deposit the case property with SHO. Further investigation was handed over to ASI Devinder who came to the spot and prepared the site plan, arrested the accused persons and interrogated them.
(h) Both the accused persons were then produced before Inspector Vivek Pathak and the case property was then deposited with the malkhana and statements of witnesses were recorded. Reports u/s 57 NDPS Act pertaining to the seizure and arrest of accused persons were submitted to the senior officials. During investigation both the accused persons were asked to produce their documents for staying in India but they could not produce any document for their stay in India. FIR No. 248/11 Page 5 of 23
State vs. Richard Nwafer and Anr. SC No. 03/12 (i) Thereafter the sample pullandas were sent to FSL, Rohini. After
receiving the reports from FSL with respect to the contraband, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed against accused Richard and Chris for the offences punishable u/s 21 (c) r/w section 29 of the NDPS Act and Section 14 of the Foreigners Act. Both the accused persons pleaded not guilty to the said charges and claimed trial.
4. The prosecution in order to prove its case has examined 11 witnesses in all.
5. PW1 HC Mukesh, PW2 Ct. Yogesh and PW10 SI Satyawan are members of the raiding team which had apprehended the accused persons. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, the secret information received by PW10 was reduced into writing vide DD no. 19 and the departure of the raiding team from the PS was recorded vide DD no. 20. The said DDs have been exhibited as Ex.PW3/A and Ex.PW10/C respectively. The notices issued to the accused Chris and Richard u/s 50 of the NDPS Act have been exhibited as Ex.PW1/A and ExPW1/B respectively and the refusals written by the accused persons have been exhibited as Ex.PW1/C and ExPW1/D respectively. The FIR No. 248/11 Page 6 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 seizure memo prepared with respect to the recovery of the heroin has been exhibited as Ex.PW1/E. Non recovery memo is ExPW1/F. The tehrir prepared at the spot has been exhibited as Ex.PW10/D. The report prepared by PW10 u/s 57 NDPS Act has also been proved by him as Ex.PW3/C.
6. PW3 HC OM Prakash, SO to ACP Narcotic Cell, Shakarpur has interalia deposed that as per the record maintained by him, DD no. 19 regarding secret information, report u/s 57 NDPS Act regarding seizure of heroin, prepared by SI Satyawan and report u/s 57 NDPS Act regarding arrest of accused persons, prepared by ASI Devender Singh were received in the office of ACP and that the said reports were put before ACP. The DD, reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW3/A to Ex.PW3/F.
7. PW4 HC Jag Narayan has deposed that he was posted as MHC(M) at PS Crime Branch on 24/9/2011 and this witness has proved the entries in the malkhana register maintained by him with respect to case property, pullandas, etc deposited with him by the investigating official.
8. PW5 HC Satyawan has interalia deposed that on 04/10/2011 on the directions of Insp. C.R. Meena, he had gone to PS Crime Branch, Nehru Place and had taken pullanda mark A along with FSL form from MHC(M) vide RC no. 463/21/2011 and had got the same deposited with FIR No. 248/11 Page 7 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 FSL, Rohini, obtained a receipt thereof and handed over the same to MHC(M).
9. PW6 Sh. M.L. Meena, Senior Scientific Officer, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the sample mark A sent to FSL during investigation. The said report has been exhibited as Ex. PW6/A and as per the said report, the sample Mark A was found to contain diacetylmorphine, paracetamol and caffeine, the percentage of diacetylmorphine to be 10.56%.
10.PW7 Duty officer HC Jagmohan has interalia deposed that he was the duty officer on 24/9/2011 and that on this date he had received the rukka of the present case through Ct. Yogesh and had registered the FIR, Ex.PW7/B and had made endorsement in this respect, Ex.PW7/D and had also recorded DD no. 21 and 23, Ex.PW7/A and PW7/C, in this respect.
11.PW8 Insp. Vivek Pathak, has interalia deposed that on 24/9/2011, he was posted as Inspector Incharge, Narcotics Cell and on the said day SI Satyawan along with secret informer had come to his office and had apprised him regarding the secret information. He has further deposed that he had passed this information to ACP and had then also forwarded the DD no. 19 prepared by SI Satyawan to the said ACP. He has further deposed that on 25/9/2011 at about 6:00 a.m. the accused persons were produced before him by ASI Devinder and he had enquired from him FIR No. 248/11 Page 8 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 regarding their arrest. According to this witness SI Satyawan and ASI Devinder had submitted before him, the reports u/s 57 of NDPS Act.
12.PW9 Insp. C.R. Meena, has interalia deposed that on 24/9/2011, he was posted as SHO, PS Crime Branch, Nehru Place Delhi and on said day, Ct. Yogesh had produced before him, four sealed pullandas mark A to D, one FSL Form and carbon copy of seizure memo. As per the deposition of this witness, he had put the FIR number, his initials and his seal of '7 APS NB Delhi' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana by HC Jag Narain MHC(M) and had lodged DD no. 22, ExPW9/A in this regard.
13.PW11 ASI Devinder is the second investigating officer of the present case who has inter alia deposed that on reaching the spot he had met SI Satyawan who had produced before him the accused persons and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW10/A and had arrested accused Richard and Chris vide arrest memos, Ex.PW1/H and ExPW1/G respectively. This witness has also inter alia proved the report prepared by him u/s 57 NDPS Act as Ex.PW11/A.
14.It will be relevant to mention herein that during trial the accused Chris after being granted bail started absenting himself and when he could not be arrested even in pursuance of the NBWs issued against him, FIR No. 248/11 Page 9 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 proclamation u/s 82 CrPC was issued against him and he was declared an absconder vide order dated 20.02.2014.
15.All the aforementioned evidence was thus put to only accused Richard u/s 313 CrPC and in the said statement the accused Richard has contended before this court that he is innocent and has been falsely implicated and that no contraband was recovered from him. As per the version given by the accused in the said statement, on 24/9/2011, in the afternoon, he was was going in an auto rickshaw to India Gate for sight seeing and that the said auto broke down on the way and an argument ensued between him and the driver and that suddenly some police officials came and demanded him to show his passport. According to the accused he told the police officials that he was not having the passport with him and that the same was lying in his friend's house and that he could produce the same if they so wanted. The accused has further narrated that the police officials however forcibly took him to a police station where they demanded a bribe of $ 10,000 from him and that when he could not arrange for the same they falsely implicated him in this case and forced him to sign many documents by giving him beatings.
16.After the aforementioned statement of accused was recorded u/s 313 CrPC, the accused chose to summon an official from the office of Department of Post along with the information regarding rate for sending FIR No. 248/11 Page 10 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 the parcels through a post office to Nigeria as on 23/9/2011.
17.After the conclusion of the defence evidence Ld. APP for State Sh. A.K. Mishra and Ld. Defence Counsel Sh. Manish Khanna have advanced final arguments before this court and written submissions have also been filed on record by the Ld. Defence Counsel.
18.On behalf of the State, Ld. APP has submitted that the deposition of the prosecution witnesses and the documentary evidence proved on record sufficiently prove that the accused persons were apprehended and and the contraband was recovered from them in the manner as alleged by the prosecution.
19.On the other hand Ld. Defence Counsel has inter alia made the following contentions:
• No genuine efforts were made by the Investigating Officials to join any independent public witness despite the fact that the accused persons were assertedly apprehended from outside the Gol Dak Khana gate and that this failure itself should be held fatal to the case of the prosecution. • The accused cannot at all be convicted for having been found in possession of 1.2 kg. of heroin because though as per the case of the prosecution 20 packets containing some powder were recovered from the accused, none of the individual packets were weighed or tested and that the samples were drawn out only after the powder from all the 20 packets was mixed FIR No. 248/11 Page 11 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 together and that therefore it cannot at all be held that all the 20 packets assertedly recovered from the possession of the accused contained a contraband, more so in view of the FSL report proved on record which shows that only about 10 per cent of the sample sent to FSL was found to be diacetylmorphine and the remaining was found to be only caffeine and paracetamol.
• The entire version of the prosecution appears to be false for if the accused along with his accomplice had come to the post office to send a parcel containing 1.2 kg of substance through post from India to Nigeria, it would have cost more than Rs.3,000/ to send it through post as per the record brought by DW1, an official from the Postal Department and that since admittedly from the personal search of accused, only Rs.1,450/ are shown to have been recovered, he possibly could not come to the post office to book any parcel and that therefore this fact itself shows that the accused was not apprehended outside the gate of Gol Dak Khana and that the prosecution has come up with a false version of the manner of his apprehension.
• The overwriting on the arrest memos of the two accused persons also point out that there has been a tampering on record and the investigation in the present case has not been done in a fair manner.
FIR No. 248/11 Page 12 of 23
State vs. Richard Nwafer and Anr. SC No. 03/12 • The reply given by the accused persons to the section 50 notice assertedly issued to them at the spot is verbatim the same which clearly shows that it was dictated to the accused persons by the police officials and that this raises a question on the credibility of the investigating officials. In support of his contentions, Ld. Defence counsel has relied upon the following judgments:
• Gaunter Edwin Kircher Vs. State of Goa AIR (SC) 1993311 • Basant Rai Vs. State LAWS (DLH)201272 • Union of India Vs. Bal Mukund 2009 (TLS) 48580 • Chand Khan Vs. State of Delhi 2000AD(Del)3850 • Mohammad Raffique Vs. State of Delhi 2000AD(Del)3861 • Sanjiv Puri Vs. State of Delhi 1995DLT5718 • Om Prakash Vs. State of Punjab LAWS (P&H)19961124 • Rajesh Kumar @ Sanjay Vs. State of NCT of Delhi 2014(3) JCC (Narcotics) 156.
20.In rebuttal, Ld. APP for the State has submitted that recently the Hon'ble Supreme Court, in two of its judgments pronounced in NDPS cases, has observed that when public persons refuse to join the raiding team despite request made to them, the court must not treat the testimony of the police officials with suspicion and in case the testimony of the police officials are found to be reliable and trustworthy, the court should rely upon the same. The said judgments relied upon by the Ld. APP are as follows: FIR No. 248/11 Page 13 of 23
State vs. Richard Nwafer and Anr. SC No. 03/12 ● Ram Swaroop Vs. State 2013 Crl. L.J. 2997 ● Kashmiri Lal Vs. State of Haryana 2013 Crl. L.J. 3036
21.I have carefully considered the submissions made by both the Ld. Counsels and have gone through the entire record. In view of the judicial dicta referred to by the Ld. APP namely the two judgments recently pronounced by Hon'ble Supreme Court in Ram Swaroop's case and Kashmiri Lal's case (supra), it will have to be held that the version put forward by the prosecution with respect to the apprehension of the accused cannot be doubted solely on the ground that no public witnesses were joined in the proceedings. Apart from the said judgments, in another case titled and reported as Kamaljeet Singh vs. State (Delhi Administration) AIR 2003 SC 1311, it has been similarly held by the Hon'ble Supreme Court that absence of joining of public witnesses is not fatal to the case of the prosecution, if the testimony of police witnesses inspires confidence. Though no doubt it has been rightly pointed out by the Ld. Defence counsel that in the very same judgments the Apex court has also made it clear that if a court has any good reason to suspect the truthfulness of the records produced by the police officials, the court can certainly take into account the fact that no other independent person was present at the time of recovery, in the considered opinion of this court in the present case no such fact has come to the fore during the cross FIR No. 248/11 Page 14 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 examination of the prosecution witnesses which can lead this court to suspect the truthfulness of the records produced by the investigating agency.
22.In the present case, after going through the entire crossexamination of the witnesses of the prosecution this court does find that they have all been able to stand the test of the crossexamination and that there is no discrepancy appearing in the statements given by these witnesses in their crossexaminations. All the mandatory provisions of NDPS Act appear to have been followed by the investigating officials. The secret information received by Inspector Vivek Pathak who has been examined as PW8 has been proved to have been relayed to the senior officers. Further this Inspector has also categorically deposed that on 25.09.2011 at about 06.00 PM, both the accused persons were produced before him by the second investigating officer ASI Devender. PW9 Inspector C.R. Meena has also deposed that the four sealed pullandas, with the FSL form and the carbon copy of the seizure memo were deposited with him on 24.09.2011 and therefore the depositions of both theses officials show that there has been a compliance of section 52 and 55 of the NDPS Act. The report of seizure of contraband and the arrest of the accused persons has been duly proved to have been submitted before the concerned ACP in compliance of section 57 NDPS Act. The MHCM PW4 HC Jag Narain FIR No. 248/11 Page 15 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 has also clearly deposed that he was handed over the samples duly sealed and the deposition of PW5 HC Satyawan makes it clear that the sealed sample pullandas, without being tampered with, were duly deposited in the office of Chemical Examiner, Rohini. From the aforementioned evidence it is clear that the prosecution has proved the entire link evidence and has also proved the material documents. The mere fact that both the accused persons appear to have used the same words in their refusal to section 50 NDPS Act notice issued to them cannot be made the sole ground to doubt the issuance of such notices to them. As such this court is of the considered opinion that non joining of the public witnesses in the present case is not fatal to the case of the prosecution and thus the argument of the Ld. Defence counsel that since no independent witness was associated, the accused is liable to be acquitted is totally devoid of any merit. Further the mere fact that the cost of sending a parcel weighing 1.2 Kg would have cost the accused persons Rs.3000/ to send it through post as per the record brought by DW1, an official from the Postal Department and that the accused was found only in possession of Rs.1450/, is in itself absolutely insufficient to hold that the accused could not have gone to the post office to book any parcel. The asserted overwriting on the arrest memos of the accused persons, as pointed out by the Ld. Defence counsel is also not of much relevance in the facts of FIR No. 248/11 Page 16 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 the present case and in view of the defence taken by the accused and therefore in the considered opinion of this court the evidence brought on record by the prosecution clearly does prove beyond reasonable doubt that the accused Richard was apprehended in the manner deposed by the prosecution witnesses and he was found in possession of heroin.
23.However having held so this court is of the considered opinion that the accused Richard cannot be held guilty of having been found in possession of 1.2 Kg i.e. commercial quantity of heroin. This is because the investigating officer of the present case SI Satyawan has completely and utterly failed to draw out the samples from the seized packets in the proper manner. This court is constrained to mention that despite the categorical observations made by the Hon'ble Supreme Court and the Hon'ble Delhi High Court, in their judgments pertaining to cases tried under the NDPS Act, the investigating officials of the State are not drawing out samples from a recovered substance in a proper and representative manner. In Bal Mukund's case (supra the judgment relied upon by the Ld. Defence counsel), the facts before the Hon'ble Supreme Court were that as per the version of the prosecution, 20 Kg of Opium had been recovered from the accused persons but the Hon'ble Supreme Court did not accept the contention of the State that representative samples from the recovered substance had been drawn out. FIR No. 248/11 Page 17 of 23
State vs. Richard Nwafer and Anr. SC No. 03/12 In para 10 of its judgment, the Apex Court took note of the standing instructions no.1/88 issued by the NCB and observed that the said instructions (clause 1.7 (e)) clearly laid down that while drawing out the sample from a particular lot, it must be ensured that representative drug in equal quantity is taken from each packet/container of that lot and mixed together to make a composite whole from which the samples should then be drawn for that lot. In para 39 of its judgment, the Hon'ble Supreme court took note that the seizing officer had taken only 25 gm each from all the 5 bags and then mixed them and sent them to the laboratory and had thereafter held that the said quantity was not an adequate quantity and that the requirement of law as laid down in the standing instructions had not been met. Similarly in another case titled as Gaunter Edwin Kircher Vs. State of Goa 1993(3) SCC 145, the Hon'ble Supreme Court emphasised the importance of sending representative samples of the recovered cannabis substance by laying down that from each of the packets of pieces recovered, sufficient quantity by way of samples must be sent for chemical examination. The aforementioned judgments have been followed by the Hon'ble Delhi High Court in its recent judgment dated 02.07.2012 pronounced in the case titled as Basant Rai Vs. State in criminal appeal no.909/2005 to hold that drawing out of samples of mere 25 gm each from each of eight FIR No. 248/11 Page 18 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 of the polythene bags allegedly containing cannabis substance, is not at all sufficient. In the said case, the Hon'ble Delhi High Court has held that where proper procedure for drawing out the samples has not been followed by the investigating agency, the benefit of doubt will have to be given to the accused. The Hon'ble High Court, in the said judgment, in para 27, took an example that if out of 8 packets that are allegedly recovered from an accused, only two packets were having contraband and the rest six packets were not having any contraband, the action of the IO of mixing the substance of all the 8 packets and then drawing out the samples will lead to an incorrect result, the benefit of which will have to be given to the accused. Now in the present case also though as per the deposition of the investigating official IO SI Satyawan, there were 20 different parcels recovered from the 20 bicycle seats, he did not separately weigh the packets nor did he draw out separate samples from each of the packets and on the contrary mixed the substance from all the packets together and then drew out two samples therefrom. The said procedure is completely improper as held by the Hon'ble Delhi High Court in the aforementioned case and may have led to an incorrect result. Further admittedly in the present case the IO SI Satyawan did not even bother to check the substance in all the packets with the field testing kit. As per his own deposition this IO had cut open the polythenes that were FIR No. 248/11 Page 19 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 recovered from each of the bicycle seats and had collected the powder contained in all the said polythenes, in one another transparent polythene and only thereafter had tested the said mixture with the help of field testing kit and had thereafter drawn two samples of 5 gm each to be sent for analysis to the FSL. In view of such facts and the judicial dicta referred to hereinabove the contention of the defence counsel Sh. Khanna that the possibility that all the packets did not contain diacetylmorphine cannot be ruled out, has to be upheld, more so when as per the FSL report itself the sample sent to it was found to contain not only diacetylmorphine but also caffeine and paracetamol.
24.The question that now remains to be determined is for possession of how much quantity of diacetylmorphine can the accused be held guilty of. In the considered opinion of this court from the facts that have been proved before this court it can be safely inferred and held that the accused can be held guilty for having been found in possession of 60 gm of contraband.
25.This is so because the 20 bicycle seats and the 20 packets that were recovered from the said seats have been produced before this court during trial and the said seats and the packets have been found to be exactly of the same size. In the considered opinion of this court the said fact alongwith the deposition of the IO that all the packets were similarly found to contain some powder easily gives rise to the conclusion that the FIR No. 248/11 Page 20 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 weight of each packet would have been 60 gm (1.2 Kg divided by 20) and since the sample drawn from the entire mixture collected from the 20 packets has been found to contain diacetylmorphine, it is clear that atleast one of the packets would have contained diacetylmorphine. The percentage of diacetylmorphine in the said 60 gm is obviously irrelevant in view of the notification No. S.O.2941(E) 18.11.2009 issued by the Central Government vide which the Central Government has notified that it is the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, wherever existence of such substance is possible, which shall be considered for determining the quantity of the contraband recovered in a particular case. The said notification was challenged in a writ petition before the Hon'ble Delhi High Court and while dismissing the said petition the Hon'ble Supreme Court has clearly held that any preparation containing 'any' diacetylmorphine would be regarded as an opium derivative and hence a manufactured drug and the word 'preparation' includes reference to a mixture of one narcotic drug with a neutral material and that the Central Government had the power to issue the aforementioned notification to specify the 'commercial quantity' and 'small quantity' with reference to the entire mixture and not just its pure drug content. In view of the said FIR No. 248/11 Page 21 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 judicial dicta it is to be held that the entire 60 gm of the powder containing diacetylmorphine in any percentage which shall be considered for determining the quantity of the contraband recovered from the accused in the present case.
26.In view of the discussion hereinabove the accused is hereby held guilty of having been found in possession of 60 gm of diacetylmorphine. As such he hereby stands convicted of the offence punishable u/s 21(b) NDPS Act. As regards the charges framed against this accused u/s 29 NDPS Act, apart from the fact that both the accused persons were apprehended from the same spot, there is no other fact brought on record to show that there was any conspiracy between the two of them to deal in illegal trafficking of drugs. As such the offence u/s 29 NDPS Act is not brought out against the present accused.
27.Coming now to the charges that have been framed against the accused u/s 14 Foreigners Act, the accused has also to be held guilty for the same for he himself has admitted in his statement u/s 313 Cr.PC that at the time of his apprehension he did not have his passport and therefore was unable to show the same to the investigating officials. Though the accused has taken a plea before this court that he did have a passport that on the date of his apprehension was lying in the residence of his friend, admittedly during trial no such passport has been produced. As such it is to be held FIR No. 248/11 Page 22 of 23 State vs. Richard Nwafer and Anr. SC No. 03/12 that the accused did not have any valid documents for his stay in India on the date of his apprehension and therefore he has to be also held guilty of the offence punishable u/s 14 of the Foreigners Act. Accordingly he stands hereby convicted of the said offence also.
Announced in the open court
th
on this 15 day of November, 2014 (Anu Grover Baliga)
Special Judge NDPS : New Delhi
Patiala House : New Delhi
FIR No. 248/11 Page 23 of 23