Delhi District Court
Ncb vs . Lee Wei Qi on 22 November, 2014
NCB Vs. Lee Wei Qi
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS : PATIALA HOUSE COURTS:NEW DELHI
SC No. 21/10
ID No. 02403R0306492010
Narcotics Control Bureau
Through: Shri G.S. Bhinder
Intelligence Officer,
Narcotics Control Bureau, New Delhi
Versus
Lee Wei Qi
S/o Mr. Lee Phuay Hong,
R/o BLK 286 3 # 07419,
Singapore
Date of Institution : 25.10.2010
Judgment reserved on : 10.11.2014
Date of pronouncement : 22.11.2014
JUDGMENT
1. The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer (IO) Sh. G.S. Bhinder has filed the present complaint against the accused u/s 20 (c) and 23 (c) of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act).
2. Briefly stated, the facts that can be culled out from the assertions made in the complaint and the documents filed therewith are as follows : SC No. 21/2010 Page No. 1 of 33
NCB Vs. Lee Wei Qi
(a) On 01.05.2010 at about 2010 hours Sh. G.S. Bhinder, IO, NCB received a secret information that one Singapore national namely Lee Wei Qi holding passport no. E 14142747, age approximately 28 years, 5'11'' in height, fair complexion who was to depart from IGI Airport for Zurich by Lufthansa Airlines no. LH 763 is suspected to be carrying huge quantity of hashish in his baggage.
(b) The information was reduced into writing and put up before Sh. Y.R. Yadav, Superintendent, NCB and on his instructions and under his supervision a raiding team consisting of Intelligence officers of NCB namely G.S. Bhinder, Vikash Kumar, Babu Lal, Sepoy and Sahib Singh, Sepoy proceeded for the airport from NCB office at about 0415 hours and reached the Terminal no. II of IGI airport at about 0500 hours. On reaching the airport the IO and his team members met Lufthansa Airlines staff and introduced themselves. On the request of Sh. G.S. Bhinder, Sh. Saranjit Singh and Sh. Mahinder Singh Yadav, Lufthansa staff officials agreed to witness the proceedings that were to be conducted by the NCB team.
Thereafter NCB team reached the check in counter and found that the accused had checked in his baggage and was filling up some form at the check in counter. On inquiry the suspect revealed his name as Lee Wee Qi.
(c) The accused was then served a notice under Section 50 of the NDPS Act and was explained his legal rights that if he wants his search can be taken before a Gazetted Officer or a Magistrate but the accused refused to SC No. 21/2010 Page No. 2 of 33 NCB Vs. Lee Wei Qi exercise the said right and informed that any NCB officer could conduct his search. Thereafter, the black coloured stroller (baggage) of the accused with tag no. LH102692 was offloaded and search of the baggage of the accused was then conducted. On opening, the bag was found to contain some clothes and on minute search of the bag, it was found that the bottom of the bag was stuffed with some suspicious substance. On cutting open the bottom of the bag a rectangular shape sheet wrapped in brown tape was recovered. The tape was cut opened and it was found to conceal dark brown material. The said material on being tested with the help of field testing kit gave positive result for hashish. The weight of the recovered substance came out to be 7 Kg. Two samples of 25 grams each were then drawn out of the said substance in transparent polythene and further put in white paper envelopes and given Mark A1 and A2. The remaining hashish in brown tape was kept in a transparent polythene and converted into a parcel with the help of a markin cloth and was given mark A. All the packing material and stroller bag were taken into possession and were given mark B.
(d) All the parcels and the samples were duly sealed and paper slips having dated signature of the IO, both public witnesses and that of accused were pasted on them. A test memo in triplicate and the panchnama were also prepared at the spot. Certain documents were also recovered from the accused and the same were seized by the IO.
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NCB Vs. Lee Wei Qi
(e) Summons were then issued to the accused and the independent witnesses u/s 67 NDPS Act and in pursuance of the same they tendered their voluntary statements in the office of the NCB. The accused was thereafter arrested, his personal search was conducted and was thereafter got medically examined.
(f) Reports of arrest and seizure under Section 57 of the NDPS Act were submitted by the seizing officer Sh. G.S. Bhinder and arresting officer Sh. Vikash Kumar to Sh. Y.R.Yadav, Superintendent and the intimation of the arrest of the accused was also conveyed to Singapore Embassy through the Ministry of External Affairs.
(g) The case property along with samples and test memo was deposited with the Malkhana Incharge and on 03.05.2010 the samples along with test memos were sent to the CRCL, New Delhi for testing and after receiving the report from CRCL, the present complaint was filed.
3. Based on the material on record, the Ld. Predecessor of this court vide order dated 04.02.2011 had framed charges against the accused for having been found in possession of 7 kg of charas and for having made an attempt to export the same outside India and thereby for having committed offences punishable under section 20(b)(ii)(C) and section 23 read with section 28 of the NDPS Act to which the accused pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case has examined 12 witnesses. SC No. 21/2010 Page No. 4 of 33
NCB Vs. Lee Wei Qi
5. PW9 Sh. Vikash Kumar, PW11 Sh. G.S. Bhinder and PW3 Sh. Y.R. Yadav, the Intelligence Officers and Superintendent respectively of the NCB, being members of the raiding team have more or less deposed on similar lines. The secret information deposed to have been received by PW3 Sh. G.S. Bhinder has been exhibited as Ex.PW3/A. PW11 G.S. Bhinder being the main seizing officer has deposed in detail about the search and seizure proceedings conducted by him. PW3 Y.R. Yadav being the Superintendent has inter alia deposed about the directions given by him for the constitution of the raiding team after being apprised of the secret information. He has also deposed about the NCB seal handed over by him to the main IO. The relevant page of the Seal Movement Register has been exhibited as Ex.PW3/B. Notice u/s 50 NDPS Act given to the accused, test memo and panchnama prepared have been exhibited as Ex.PW3/C, ExPW3/I and PW3/D respectively. The summons given to accused u/s 67 NDPS Act have been exhibited as Ex.PW11/C and the statement deposed to have been tendered by the accused before PW9 Sh. Vikash has been exhibited as Ex.PW9/A. PW3 has further deposed that on 3/5/2010, he had forwarded the samples and test memo to CRCL and that he had also sent a letter to Ministry of External Affairs regarding arrest of accused. The forwarding letter has also been proved by this witness as Ex.PW3/G. The statements of the panch witnesses have been exhibited as Ex.PW1/F and SC No. 21/2010 Page No. 5 of 33 NCB Vs. Lee Wei Qi Ex.PW2/B. Arrest memo and arrest report submitted to the Superintendent have been duly exhibited. The case property and the samples were also duly produced before the court and were duly exhibited.
6. PW1 Sh. Sanjay Rawat has merely deposed that on 2/5/2010 accused Lee Wei Qui was arrested by PW9 Vikash Kumar, IO and in his presence personal search of accused was conducted. This witness has further deposed that the information of arrest was sent to Singapore Embassy through proper channel. The arrest cum jamatalashi and the information of arrest have been exhibited as ExPW1/A and ExPW1/B.
7. PW2 Dr. Subhash Chand Surana, Chemical Examiner and PW7 Dr. Rajkumar, Assistant Chemical Examiner have inter alia deposed that the samples in question deposited with the CRCL, were examined by PW7 Dr. Raj Kumar, Assistant Chemical Examiner with the assistance of Anuradha Sharma under the supervision of PW2 Dr. Subhash Chand Surana and the said witnesses have proved the chemical analysis report prepared by them in this regard as Ex.PW2/A.
8. PW4 Sh. Babu Lal, Sepoy has deposed that on 2/5/2010 he took the raiding party to the IGI airport at about 4:15 a.m. and had dropped the raiding team at that place and had thereafter remained with the vehicle. According to this witness, after completing the proceedings at about 9:30 a.m., they had left the spot along with accused. This witness has further SC No. 21/2010 Page No. 6 of 33 NCB Vs. Lee Wei Qi deposed that on 3/5/2010 on the directions of Sh. Y.R. Yadav, he had gone to CRCL New Delhi to deposit the sample along with duplicate test memo forms and forwarding letter, Ex.PW3/G and had deposited the same against receipt Ex.PW3/H issued by CRCL.
9. PW5 Sh. Saranjeet Singh, panch witness has in his deposition inter alia described the recovery proceedings conducted by the NCB officials and witnessed by him. He has also identified his signatures on the notice, paper slips and panchnama. He has also deposed that in pursuance of the summons served upon him he had appeared in the office of the NCB and had tendered his statement Ex.PW5/G.
10. PW6 Ms. Sweety Barar has interalia deposed that in the year 2010 she was working with Bird's Worldwide Flight Service which were the Customer Service Agents of Lufthansa Airlines and that on one day while she was deputed at the checkin counter, one Sikh person came to her and pointed towards a baggage and asked her if she had checked in the same and that there was a man alongwith the said person and she was asked whether it was the same person who had booked the said trolley bag. She has further stated that she confirmed that the said man had booked the bag and that she had issued a tag and number to the said bag in question and the said tag number was tallied with that mentioned on the luggage. She has also deposed that she had tendered a statement Ex.PW6/A in this regard and has SC No. 21/2010 Page No. 7 of 33 NCB Vs. Lee Wei Qi identified her signatures on the same. She was however unable to identify whether the accused is the same person about whom she had deposed for according to her the incident was two years old and all that she recalled was that the person was having Chinese features and that the accused appeared to be like the said person only.
11. PW8 Sh. Sanjeev Narula has inter alia deposed that on 02.05.2010 he was posted at IGI Airport with Lufthansa Airlines as a Supervisor and that on the said day one Mr. Bhinder from Narcotics Department had approached him and after showing his identity card had enquired about a person named Lee Wei Qi. This witness has further deposed that he informed Sh. Bhinder that the said person as per the list of passengers had already checked in and he had been issued a boarding pass and thereafter on request of Sh. Bhinder he had accompanied him to the checkin counter where his colleague Sweety Barar was present and she identified the person in question and his luggage as the same was still lying at the checkin counter. This witness has further stated that he had given a statement with respect to the aforementioned facts and confirmed that the statement is Ex.PW8/B bearing his signatures at point A.
12. PW10 Sh. Jigme Kunga has inter alia stated that he was the Manager with Yak House, Majnoo ka Teela during the period July 2009 to July, 2012 and that in the year 2011, three persons from police had come to his guest SC No. 21/2010 Page No. 8 of 33 NCB Vs. Lee Wei Qi house and had made inquiries from him about a Singapore national and on their directions he had supplied them with a copy of the Guest House register maintained by him as per which the Singapore national about whom the three persons had made enquiry had been lodged in room no. 103. The copy of the page of the said register containing the relevant entry has been exhibited as PW10/A as per the deposition of this witness.
13. PW12 Sh. A.K. Mishra has inter alia deposed that on 02/05/2010 he was working as Intelligence Officer Malkhana Incharge in NCB, DZU, R.K. Puram and that in the present case, the entire case property, test memo in triplicate were deposited with him in the Malkhana and he had made an entry to this effect in the Malkhana register. He has also deposed that on 03/05/2010 samples mark A1 was sent to CRCL and that the remnant sample along with test report were deposited back with him in the Malkhana on 21/5/2010. According to this witness he had made relevant entries in the register. The relevant pages of the malkhana register containing the said entries has been exhibited as ExPW11/F1, Ex.PW12/A1 and ExPW12/A2.
14. The entire aforementioned incriminating evidence was put to the accused and his statement was recorded u/s 313 Cr.PC. In the said statement, he has inter alia taken a stand that the luggage from which the NCB is showing the recovery of the drugs did not belong to him at all and that his luggage was a navy blue trolley bag and not the black coloured SC No. 21/2010 Page No. 9 of 33 NCB Vs. Lee Wei Qi luggage that has been produced in the court. He has further stated before this Court that he was forced to admit his guilt by the NCB officials in the NCB office where they had taken him and they forced him to write his statement as per their dictation. He has further narrated that six NCB officials surrounded him and slapped him and instructed him to do as told. The accused after filing an application u/s 315 CrPC has also stepped in the witness box and has deposed the aforementioned facts on oath also. In his deposition given u/s 315 CrPC he has explained the reasons for his coming to India. As per the said deposition he had infact wanted to go on a vacation to Europe directly from Singapore, the country where he resides permanently, but due to a volcano eruption in Europe in mid April, 2010 the flights to Europe were not operating and therefore he decided to visit India for a few days and then travel to Europe after the improvement of travel conditions. In the said statement the accused has further narrated that on the date of his apprehension he was present at the airport and had checked in his luggage when two NCB officials came and after confirming his identity, grabbed his hand and held them behind his back and thereafter the IO G.S. Bhinder brought a bag and started insisting that it was belonging to the accused and that drugs have been recovered from the same. According to the accused the bag produced in the court during trial does not belong to him at all and that the same was planted upon him by the NCB officials. SC No. 21/2010 Page No. 10 of 33
NCB Vs. Lee Wei Qi
15. After the conclusion of the prosecution and the defence evidence Ld. SPP for NCB Sh. B.S. Arora and Ld. Defence Counsel Sh. T.K. Mahapatra have advanced final arguments. Both the Ld. Counsels have also filed written submissions on record.
16. On behalf of the prosecution, it has been submitted that the documentary and the oral evidence produced on record sufficiently prove that commercial quantity of charas was recovered from the baggage of the accused and that therefore he is to be held guilty of the offences that he has been charged with. Ld. SPP for NCB Sh. B.S. Arora has further submitted that the statement tendered by the accused u/s 67 NDPS Act, in view of the settled judicial dicta, is an admissible piece of evidence and in the said statement the accused has admitted that he was attempting to export charas and that this court can, also on the sole basis of the said statement, convict the accused in the present case.
17. On the other hand, Ld. Defence Counsel Sh. T.K. Mahapatra has inter alia contended that the evidence led on behalf of the prosecution is completely insufficient to reach a conclusion that the luggage from which the alleged contraband was recovered belonged to the accused only. He has pointed out that though as per the depositions of the prosecution witnesses the baggage tag found attached to the trolley bag in question was tallied with the baggage tag affixed on the boarding pass of the accused, the trolley bag from which the contraband was assertedly recovered, produced during trial SC No. 21/2010 Page No. 11 of 33 NCB Vs. Lee Wei Qi before this court was not found having any baggage tag affixed thereon. He has further tried to point out that deposition of the panch witnesses itself reveal that samples were not drawn out at the airport and this according to him is fatal to the case of the prosecution. According to the Ld. Defence Counsel the prosecution has also not been able to prove that sample of the case property remained intact and not tampered with till it was produced before this Court. It is also the submission of the Ld. Defence Counsel Sh. T.K. Mahapatra that the testimony of the IO is full of discrepancies and that it is not corroborated in any material particulars by any of the other prosecution witnesses. Ld. Defence counsel has also contended that the statement assertedly tendered by the accused u/s 67 NDPS Act cannot at all be presumed to be his voluntary statement in the facts and circumstances of the present case. In support of his contentions Ld. Defence counsel has relied upon the following judgments:
Judgment dated 11.04.2013 pronounced by the Hon'ble Delhi High Court in the case titled as Hannan Vs. State of NCT of Delhi in Criminal Appeal No. 773/2010.
Judgment dated 13.03.2013 pronounced by the Hon'ble Delhi High Court in the case titled as Akhilesh Kumar Mishra, IO NCB Vs. Benjamin David Billington & Anr. in Crl. M.A. Numbers 6277/2007 and 10173/2007.
Safiullah Vs. State 1993 Drug Cases 311 Raju Premji Vs. Customs Ner Shillong Unit 2009(3) JCC (Narcotics) 153 SC No. 21/2010 Page No. 12 of 33 NCB Vs. Lee Wei Qi Kuldeep Singh Vs. State of Punjab (2010) 3SCC (Cri) 1255 Judgment dated 16.04.2013 pronounced by the Hon'ble Rajasthan High Court in the case titled as State Vs. Behari S.B. in Criminal Appeal No. 300/1991.
Judgment dated 13.12.2012 pronounced by the Hon'ble Haryana High Court in the case titled as Sukhdev Singh Vs. State of Haryana in Criminal Appeal No. 2118/2008.
Judgment dated 11.12.2009 pronounced by the Hon'ble Chhattisgarh High Court in the case titled as Tula Ram Vs. State of Chhattisgarh in Criminal Appeal No. 455/2001.
18. In rebuttal, Ld. SPP has pointed out that the deposition of the officials of the concerned airlines read with the deposition of IO G.S. Bhinder clearly proves that the luggage in question belonged to the accused only and that there is no possibility at all that the said luggage did not belong to the accused. It is the submission of Ld. SPP that this court had allowed the NCB to summon the IO G.S. Bhinder u/s 311 Cr.PC and that when the said witness was examined by the NCB again, he had clarified that the baggage tag was taken out from the trolley bag and was affixed with the panchnama. The submission of Ld. SPP therefore is that the fact that the trolley bag produced in the court was not found having the baggage tag has absolutely no relevance whatsoever. As regards the place of drawing of samples it is the submission of Ld. SPP that the panchnama prepared by the IO which is also signed by the panch witnesses clearly reveals that the samples were drawn at the airport itself and therefore the mere oral deposition of the SC No. 21/2010 Page No. 13 of 33 NCB Vs. Lee Wei Qi panch witness that the samples were not drawn at the spot but in the NCB office has no relevance whatsoever. He has further contended that all the NCB officials have categorically deposed in this regard and his submission is that the deposition of the panch witnesses cannot falsify the depositions of the NCB officials. Further according to Ld. SPP the none of the discrepancies pointed out by the Ld. Defence counsel in the testimony of the IO are so relevant so as to doubt the case put forward by the prosecution. It is the contention of Ld. SPP that the NCB officials cannot be expected to have a photographic memory of all the minute details of all the proceedings that they had conducted. He has further reiterated that the statement tendered by the accused u/s 67 NDPS Act is to be presumed by this court to be the voluntary statement of the accused in view of the dicta laid down by the Hon'ble Supreme Court in Kanhaiya Lal Vs. Union of India (2008) 4SCC 668 and the same can be relied upon to determine the guilt of the accused
19. I have carefully considered the submissions made by both the Ld. Counsels and have gone through the entire record. As narrated hereinabove, the most material point raised by the defence is with respect to the evidence led by the prosecution to prove that the luggage from which the contraband was recovered belonged to the accused only. After going through the entire evidence on record this court is unable to agree with Ld. Defence counsel SC No. 21/2010 Page No. 14 of 33 NCB Vs. Lee Wei Qi that the evidence led by the prosecution in this regard is not sufficient and that there is a possibility that the said luggage did not belong to the accused. The prosecution has relied upon the deposition of the main investigating officer, G.S. Bhinder and the officials of the Lufthansa Airlines (via which the accused was to travel on the date of his apprehension) to prove that the luggage in question belonged to the accused only. The main investigating officer PW11 G.S. Bhinder and two of the officials of the Lufthansa Airlines namely PW5 Saranjeet Singh and PW6 Sweety Barar have all deposed that the trolley bag in question was identified to be belonging to him by the accused himself and further that the baggage tag affixed on the boarding pass of the accused had also been tallied with the baggage tag affixed on the trolley bag in question. No doubt though it does appear from record that the IO G.S. Bhinder has been completely lackadaisical in preserving the baggage tag which was found on the trolley bag in question, and has deposed some incorrect facts in this regard before this court, in the considered opinion of this court the same has not proved fatal to the case of the prosecution in view of the depositions of the concerned airline officials. Since lengthy contentions have been made by the Ld. Defence counsel with respect to the aforementioned deposition of the IO, this court finds it necessary to deal with the same in some detail. Now as per record, the IO G.S. Bhinder was examined for the first time during trial on 07.12.2012 and his entire examination in chief and crossexamination was finally concluded SC No. 21/2010 Page No. 15 of 33 NCB Vs. Lee Wei Qi on 17.05.2013. In the examination in chief this witness did not depose that he had taken into possession/seized the baggage tag affixed on the trolley bag in question and had affixed the same alongwith the panchnama and his mere deposition was that the baggage tag pasted on the back side of the boarding pass of the accused had been tallied with the baggage tag pasted on the trolley in question. In his crossexamination on being categorically questioned in this regard, he had chosen to depose that he had not removed the baggage tag from the trolley bag in question (top line of page no.5 of the evidence sheet containing the crossexamination of the accused conducted on 24.01.2013). Now on the basis of the aforementioned deposition of the IO G.S. Bhinder Ld. Defence counsel Sh. Mahapatra had contended during the course of final arguments that since no baggage tag was found affixed on the trolley bag produced before the court during trial, the prosecution had utterly failed to prove that the trolley bag from which the contraband was recovered and which was produced before this court was the bag of the accused only. Faced with this contention of the defence, an application had been filed by the prosecution u/s 311 Cr.PC for recalling PW11 G.S. Bhinder and with the prayer that the case property namely the trolley bag be allowed to be again produced before the court. The said application was allowed by this court vide order dated 05.09.2014 and subsequently PW11 G.S. Bhinder was again examined by the prosecution on 01.10.2014. Now on this date this witness IO G.S. Bhinder on being asked about the baggage SC No. 21/2010 Page No. 16 of 33 NCB Vs. Lee Wei Qi tag that he had assertedly found affixed on the trolley bag at the time of the search of the trolley bag, chose to state that initially the said baggage tag was affixed on the handle of the trolley bag by means of an adhesive and that he had taken out the same and had annexed it with the panchnama and the said baggage tag was mentioned by him at serial no. ii in Annexure A to the panchnama and attached just before the last document of the annexure i.e. the eticket. Now a perusal of the said annexure and the documents attached therein does give rise to an inference that the aforementioned deposition of the IO G.S. Bhinder is incorrect. It will be relevant to note that the said Annexure exhibited as Ex.PW5/A mentions the following documents :
(i) Two boarding passes of LH 763 & LH 3744 dated 2nd May, 2010.
(ii) Baggage Stab No. LH 102692 issued to Lee Wei Qi (iii) Boarding pass flight A1 481 dated 30.04.2010 (iv) Invoice Yak House No. 1633 dated 30.04.2010 (v) Electronic Ticket Lee Wei Qi/MR 02 May DEL MUC
and the baggage tag mentioned at serial no.(ii) corresponds with the baggage tag affixed on the boarding pass, which as per the own deposition of this witness was exhibited as Ex.PW5/D during his earlier deposition recorded on 20.10.2011. Thus in the Annexure A there is no baggage tag mentioned which was assertedly found affixed by this witness on the trolley bag in question. Further the document filed just before the eticket, which according to the witness was the baggage tag is completely blank and the SC No. 21/2010 Page No. 17 of 33 NCB Vs. Lee Wei Qi deposition of this witness that due to passage of time the computer printout on the same may have disappeared cannot at all be believed because no such disappearance of the electronic print on the corresponding baggage tag on the boarding pass i.e. Ex.PW5/D has occurred and no such explanation has at all been given in the complaint filed, though Ld. SPP Sh. B.S. Arora has admitted that even at the time of filing of the chargesheet the print on the said document was not at all legible and that is the reason a copy thereof supplied to Ld. Defence counsel was also blank. In view of such material on record, it has been rightly contended by Ld. Defence counsel Sh. Mahapatra that the IO G.S. Bhinder appears to have deposed falsely before this court that he had taken out the baggage tag from the trolley bag in question and had seized the same alongwith the panchnama. However in the considered opinion of this court the said incorrect deposition given by IO G.S. Bhinder does not in any manner take away anything from the depositions made by the officials of Lufthansa Airlines. In this regard it would be relevant herein to consider the depositions of PW5 Saranjeet Singh, PW6 Sweety Barar and PW8 Sanjiv Narula. All the said three witnesses are the officials of Lufthansa Airlines and therefore can be termed to be independent witnesses who are not in any manner under the control and influence of the NCB officials, more so when nothing has emerged on record which leads this court to suspect their credibility. Now the first of these witnesses namely PW5 Saranjeet Singh has inter alia deposed that on 02.05.2010 he was SC No. 21/2010 Page No. 18 of 33 NCB Vs. Lee Wei Qi working as a loader with Lufthansa Airlines and that on the said day while he was sitting at the counter of Lufthansa Airlines one passenger had brought his luggage to him and he had affixed a baggage tag on the luggage brought by the passenger and that after a while certain officials from the NCB had come and had informed him that they have got an information that one passenger going by Lufthansa Airlines Flight is carrying with him some narcotics in his luggage. According to this witness, the duty Manager Sh.
Narula, (PW8) was also present when the NCB officials had approached him and Sh. Narula had then shown the name of the list passengers to the NCB officials and that after going through the said list of passengers it was confirmed that the passenger about whom the NCB officers had asked had already checked in and that his luggage was lying on the conveyor belt and that he might have gone to report to the immigration. He has further narrated that the NCB officers then rushed to the immigration and brought the said passenger back to the counter. This witness has then gone on to identify the accused as the said passenger. He has further categorically deposed that the accused was then asked to identify his luggage, a trolley bag from the conveyor belt in his presence. The witness has also confirmed that it was he who had affixed baggage tag on the trolley bag that had been identified by the accused. Further, on being shown the case property, this witness identified the black trolley bag produced by the NCB as the trolley bag about which he had deposed. This witness has also further gone on to SC No. 21/2010 Page No. 19 of 33 NCB Vs. Lee Wei Qi depose that in his presence the trolley bag belonging to the accused was checked and was found containing 7 Kg of some substance which was checked by the NCB officials using some machine and they had informed that the same is charas. Similarly PW6 Sweety Barar in her deposition before this court his deposed that while she was working at the checkin counter of Lufthansa Airlines on a day in the year 2010, a passenger had checked in his baggage and that she had issued a tag number to the luggage of the said passenger and that after the NCB officers had approached her, the said passenger was asked to identify his luggage and he had done so. Though the said witness has been unable to state with certainty whether the accused is the same person about whom she has deposed, she has categorically confirmed that she had tendered a statement Ex.PW6/A before the NCB officials and has also categorically deposed that she had issued a tag number to the luggage in the passenger in question and that the said tag number was tallied with the number on the baggage that was taken away by the NCB officials.
20. PW8 Sanjiv Narula, the Supervisor of Lufthansa Airlines has also confirmed that on 02.05.2010 IO G.S. Bhinder of the present case had come to the airport and on his request he had accompanied him to the checkin counter wherein his colleague Sweety Barar was present at the counter and that she was asked to identify one person Lee Wei Qi and that Sweety Barar had identified the said person and luggage of the said passenger was then SC No. 21/2010 Page No. 20 of 33 NCB Vs. Lee Wei Qi retrieved as the same was still lying at the checkin counter itself. This witness had identified the accused as the passenger in question. In the considered opinion of this court the deposition of the aforementioned three witnesses when read in conjunction with each other clearly proves that the luggage that was seized by the NCB officer IO G.S. Bhinder was the one that was identified by the accused himself as his own luggage and that the said luggage had been checked in by the accused himself at the checkin counter of Lufthansa Airlines.
21. It is also to be taken note of that when the trolley bag in question was produced before the court during the course of final arguments it was found to contain amongst other things two printouts of travel etickets dated 29.04.2010 in the name of the accused and a small plastic pouch bearing a paper slip with the name of the accused and the prescription issued by 'Pro Health 24 hours', medical clinic, Singapore. The presence of both the said articles in the trolley bag in question, in the considered opinion of this court, is being rightly relied upon by the prosecution to contend that the bag belonged to the accused only. Though the Ld. Defence counsel Sh. Mahapatra has contended that the accused has already explained in his statement u/s 313 Cr.PC and his deposition u/s 315 Cr.PC that his baggage was infact consisting of a navy blue trolley bag and his submission is that the aforementioned articles could have been planted by the IO from the said blue bag into the black trolley bag in question, as narrated hereinabove the SC No. 21/2010 Page No. 21 of 33 NCB Vs. Lee Wei Qi depositions given by officials of the Lufthansa Airlines in particular the detailed deposition given by PW5 Saranjit Singh makes it amply clear that the defence taken by the accused in this regard cannot be believed. Further the contention of Ld. Defence counsel that the fact that no permission for retrieving the baggage of the accused was taken by the IO from the airline officials entitles the accused to be granted the benefit of doubt in view of the judicial dicta laid down by Hon'ble Delhi High Court in Benjamin David's case (supra the judgment relied upon by the Ld. Defence counsel) cannot also be accepted for the facts before the Hon'ble Delhi High Court in the said case are materially different from the facts of the said case. In the said case admittedly no airline official had been at all examined by the intelligence officer of the NCB and in such circumstances the Hon'ble Delhi High Court had held that since the prosecution had failed to lead any evidence to prove the chronology of events which led to the retrieval of the baggage of the accused before it, the accused was entitled to be granted the benefit of doubt. In the present case as narrated hereinabove three officials of Lufthansa Airlines have deposed before the court the chronology of events that led to the retrieval of the baggage of the accused from the conveyor belt. As such in the considered opinion of this court the aforementioned judgment does not come to the aid of the defence. SC No. 21/2010 Page No. 22 of 33
NCB Vs. Lee Wei Qi
22. However despite having come to a conclusion that the baggage retrieved by the NCB officials at the airport belonged to the accused only, in the considered opinion of this court, the accused still cannot be convicted and will have to be given the benefit of doubt in view of the judicial dicta laid down by the Hon'ble Supreme Court in a case titled and reported as Kuldeep Singh Vs. State of Punjab (2010) 10SCC 219. In the said case on the basis of a disclosure given by an accused which was admissible u/s 27 of the Evidence Act, a recovery of 4 bags of poppy husk was made. Despite the recovery having been proved the Hon'ble Supreme Court set aside the conviction of the accused on the ground that the investigating official had not taken the samples from the contraband at the spot but had merely sealed the four bags of poppy husk and had taken the same to the PS where the samples were finally taken. The Hon'ble Supreme Court held that non collection of samples at the initial stage of seizure was an illegality and the entire recovery stood vitiated as a result thereof.
23. In the present case also in the considered opinion of this court the deposition of PW5 Saranjeet Singh clearly proves that no samples from the contraband assertedly recovered from the trolley bag of the accused were taken at the airport and the said trolley bag was simply taken to the office of NCB and it is there that the samples were drawn. At this stage it will be SC No. 21/2010 Page No. 23 of 33 NCB Vs. Lee Wei Qi relevant herein to reproduce some portion of the examination in chief of this witness wherein he has inter alia deposed about the said facts:
NCB officers asked the accused that they had to take the search of the baggage of the accused. The accused himself identified his baggage by verifying his name on the tag affixed on the boarding pass. The NCB officers asked the accused that if he wish the search can be taken before the Magistrate and the accused told there is no problem the search can be conducted here. The lock affixed on the bag was opened by the accused he was having and on opening the same some clothes were being kept on opening the same and after removing the clothes the whole bottom of the suitcase hashish was being kept in wrapped brown tapes. The NCB officers took out a small portion of the hashish and after smelling the same informed the same is charas. After that the same was weighed by the NCB officer and its weight was found to be 7 kg. After that the same was being checked by some machines and then they took the bag as well as the accused. Before leaving the NCB offices asked Sh. Narula that they want me as a witness and sought his permission to take him a witness take him as a witness to the office. Mr. Narula then left me and the NCB officer and the accused after cancelling his boarding pass outside the airport. After that the accused was brought to the NCB office where some documents were prepared and my signature were obtained. I can identify the said documents only after looking at them. On request of Ld. Counsel for NCB SC No. 21/2010 Page No. 24 of 33 NCB Vs. Lee Wei Qi the witness has been shown the judicial record and he identifies his signatures on ExPW3/D which is at point A on all the pages. When the accused was asked whether he wants his search to be conducted in the presence of the magistrate a letter was given to him I can identify the same. The same is ExPW3/C which bears my signatures at point B. The signature of the accused was also obtained after obtaining his refusal and the same is mark A on ExPW3/C. The boarding pass, his tickets and other papers were taken into possession and a paper was prepared . The same is ExPW5/A which bears my signature at point A and the papers are ExPW5/B. The boarding pass is ExPW5/C and the luggage tag is ExPW5/D and the another boarding pass is ExPW5/E and other papers are ExPW5/F1 to ExPW5/F3. Two samples were taken out from the charas and they were wrapped in an envelop and seal were affixed over that. But I do not remember the numbers of the seal on the samples.
24.The said deposition on its own makes it clear that according to this witness all that was done at the airport was that the substance recovered from the bag was tested and thereafter the bag and the accused were taken to the NCB office. This witness in his cross examination by the defence on being asked categorically and clearly has deposed that it is only at the office of NCB that the samples were drawn and sealed and recovery memo was prepared. Though Ld. SPP SC No. 21/2010 Page No. 25 of 33 NCB Vs. Lee Wei Qi did not think it proper to ask this witness any specific questions in his reexamination about the drawing of samples, he did choose to cross examine this witness with respect to the recovery memo and even on a crossexamination by the Ld. SPP this witness has reiterated that his signatures were obtained on the recovery memo Ex.PW3/D at the office of NCB only. In such view of the matter the deposition given by this witness in his examination in chief and crossexamination that samples were drawn only at the NCB office cannot be ignored at all. In two of its judgments pronounced in cases titled and reported as Mukhtiyar Ahmed Ansari Vs. State reported in 2005 Cri.L.J. 2569(1) and Raja Ram Vs. State of Rajasthan reported in JT (2000) 7 SC 549, the Apex court has made it clear that in case the prosecution does not declare a witness who has not entirely supported its case as hostile, the testimony of the said witness becomes binding upon the prosecution and can be relied upon by the defence. In the considered opinion of this Court, in view of this judicial dicta the deposition of PW5 that the samples were taken at the NCB office has become finding upon the prosecution and is being rightly relied upon by the defence.
25.Further the contention of Ld. SPP that the said deposition of the independent panch witness should be ignored by this court in view of SC No. 21/2010 Page No. 26 of 33 NCB Vs. Lee Wei Qi the clear deposition given by the three NCB officers namely IO G.S. Bhinder, Superintendent Y.R. Yadav and IO Vikas Yadav, cannot be accepted not only in view of the judicial dicta referred hereinabove but also because of the kind of statements that these witnesses have made when they have been crossexamined in this regard. It is relevant to mention herein that neither in the complaint nor in the examination in chief of the two IOs G.S. Bhinder and Vikash Kumar, is there a mention that the Superintendent Y.R. Yadav had also followed the NCB officials to the airport. Both in the complaint and in the examination in chief of G.S. Bhinder and Vikash Kumar the only statements about the NCB officials who had gone to the airport is that a team constituting of G.S. Bhinder, Vikash Kumar and two Sepoys had left the NCB office for the airport and had conducted the proceedings at the airport. There is not a whisper in the entire complaint that the Superintendent Y.R. Yadav had followed the NCB team to the airport. This Superintendent however in his cross examination has deposed that he had reached the airport at about 05.15 AM and that in his presence only the baggage of the accused was identified and he was served a notice u/s 50 NDPS Act. He has further gone on to depose in his crossexamination that the samples drawn were converted into cloth pullandas which were then hot sealed. On the other hand G.S. Bhinder in his crossexamination has SC No. 21/2010 Page No. 27 of 33 NCB Vs. Lee Wei Qi deposed that Sh. Y.R. Yadav had reached the spot only after the trolley bag of the accused had already been opened and further that the sample were not put in any cloth pullanda but were put into envelopes which were not hot sealed. PW9 Vikash Kumar on being questioned has not at all taken a stand that the Superintendent Y.R. Yadav was present at the airport during the proceedings and as regards the procedure of sampling assertedly done at the airport, this witness appears to have conveniently forgotten about the details of the same. He has deposed that he does not remember whether the samples were taken from one, two or more places and how were they packed. In view of the aforementioned contradictory and discrepant statements made by the three NCB officials, the same can hardly be relied upon by this court to reach a conclusion that the sampling procedure was done at the airport in the manner described in the panchnama.
26.This court does not at all agree with Ld. SPP that the aforementioned contradictions in the depositions of the members of the raiding team are minor and that this court should take into account that the said members cannot be expected to have a photographic memory of all the details of the proceedings that took place. In the considered opinion of this court the testing of the contraband, drawing out of sample therefrom, weighing the contraband, preparing pullandas are SC No. 21/2010 Page No. 28 of 33 NCB Vs. Lee Wei Qi all very essential steps in the proceedings conducted in a case registered under the provisions of the NDPS Act and the members of the raiding team are expected to remember the details thereof. In Kuldeep Singh's case (supra), the Hon'ble Supreme Court has held that the drawing of the samples at the spot and the sealing of the case property at the spot itself are mandatory as per the provisions of the NDPS Act. The judgment of the Hon'ble Delhi High Court in case titled as Mohd. Ibrahim Vs. State Crl. Appeal No. 426/2010 decided on 27.11.2010 also makes it clear that the prosecution is bound to prove beyond reasonable doubt, all the proceedings that the investigating officials assertedly conducted at the spot. In the said case the Hon'ble Delhi High Court has held that the case of the prosecution cannot be taken to have been proved beyond reasonable doubt when the prosecution has not led sufficient credible evidence to prove the preparation of FSL form at the spot. The aforementioned judicial dicta makes clear the importance that is to be attached to the proof of the proceedings that the prosecution asserts to have conducted at the spot.
27.Further it is also to be taken note of that the IO G.S. Bhinder in his examination in chief has categorically deposed that he had deposited the samples and case property with Sanjay Rawat, the malkhana SC No. 21/2010 Page No. 29 of 33 NCB Vs. Lee Wei Qi incharge and even this deposition is contrary to the deposition of PW11 Akhilesh Mishra according to whom it was he who was the malkhana incharge on the date of the incident and that the IO G.S. Bhinder had deposited the case property and samples with him. Thus the prosecution has not even led clear evidence to show with whom the case property and the samples were deposited with. It is also to be taken note of that even PW11 has not at all deposed that as long as the case property and samples remained with him, the same were not tampered with. In Hannan's case (supra a judgment relied upon by the Ld. Defence counsel), the Hon'ble Delhi High Court has held that an malkhana incharge is bound to depose before the court that the case property and samples were not tampered with while the same were in his custody and in the absence of such a deposition, the court can draw an inference that the prosecution has failed to prove that there was no possibility of the case property or the samples having been tampered with.
28.In view of the discussion hereinabove this court is of the considered opinion that the prosecution has failed to prove that the samples were drawn at the airport i.e. the spot of seizure of the contraband and has also failed to prove that the same were deposited with the malkhana incharge as per procedure and the same were not tampered with in his SC No. 21/2010 Page No. 30 of 33 NCB Vs. Lee Wei Qi custody. In view of such a finding this court is bound to follow the judicial dicta laid down by Hon'ble Supreme Court in Kuldeep Singh's case (supra) and grant the benefit of doubt to the accused. The submission of the Ld. SPP that the statement tendered by the accused u/s 67 NDPS Act is admissible in evidence and can be relied by this court to come to the conclusion that the contraband recovered from the bag of the accused was charas only, is to be rejected for even before the Hon'ble Supreme Court, despite the disclosure given by the accused leading to the recovery of four poppy bags, being admissible in evidence u/s 27 of the Evidence Act, the same was not considered sufficient to cure the illegality committed by the investigating officers. Further it is also to be borne in mind that the statement tendered by the accused u/s 67 NDPS Act in the present case was retracted by the accused after his arrest and admittedly at the time of tendering of the said statement the accused was in the custody of the NCB officials and a perusal of the said statement shows that the accused was interrogated during the tendering of the said statement and was at no point of time informed that he has a right to remain silent. In such circumstances in view of the judicial dicta laid down by the Hon'ble Supreme Court in cases titled as Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab and Anr. reported in SC No. 21/2010 Page No. 31 of 33 NCB Vs. Lee Wei Qi (2009)12 SCC 161 and JT 2008 (7) SC 409, the said statement should not be even otherwise be relied upon by this court. In the judgments pronounced in the said cases the Apex Court has clearly held that the purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement. In Bal Mukund's case, the Hon'ble Supreme Court has observed that the authorities under the NDPS Act can always show that the accused had not been formally arrested when his statement was recorded u/s 67 of the NDPS Act and that therefore a court while weighing the evidentiary value of such a statement should not lose sight of the ground realities. Further in para 28 of the said judgment the Hon'ble Supreme Court has reiterated that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. The Hon'ble Supreme Court in the said case also made it clear that the observations made by it in Kanhaiya Lal Vs. Union of India (2008) 4SCC 668, (a judgment relied by the NCB to contend that it is under no obligation to prove that the statement tendered by an accused was voluntary) was passed in view of the peculiar facts in the said case namely that no crossexamination of a material witness was conducted with respect to statement tendered by the accused. In another case titled as Francis Stanly Vs. NCB SC No. 21/2010 Page No. 32 of 33 NCB Vs. Lee Wei Qi reported in (2006) 13 SCC 2010 the Hon'ble Supreme Court has cautioned that a confession asserted to have been recorded under the NDPS Act must be made subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act.
29. Thus in view of the aforementioned judicial dicta, this court is of the considered opinion that the statement tendered by the accused u/s 67 NDPS Act cannot be read against him and further even if it is considered admissible in evidence, the same, in view of the dicta laid down by Hon'ble Supreme Court in Kuldeep Singh's case, cannot be held sufficient to be curing the illegality committed by the investigating officials in not collecting the samples at the airport itself.
30.In view of the discussion hereinabove, this court is of the considered opinion that the accused has to be granted the benefit of doubt in view of the judicial dicta laid down by Hon'ble Supreme Court in Kuldeep Singh's case. As such the accused hereby stands acquitted of the offences that he has been charged with.
Announced in the open court on this 22nd day of November, 2014 (Anu Grover Baliga) Special Judge, NDPS New Delhi SC No. 21/2010 Page No. 33 of 33