Delhi District Court
Ncb vs . Emeka Celestine Obi on 8 August, 2012
NCB Vs. Emeka Celestine Obi
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL
JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 55/08
ID No. 02403R0493282006
and
SC no. 56/08
ID No. 02403R0477892006
Narcotics Control Bureau
Through Sh. Ajay Kumar, Intelligence Officer,
Delhi Zonal Unit, Delhi.
Versus
Emeka Celestine Obi
S/o Sh. Obi Igwebuike
R/o 101 Abvor,
Village Nvewichi Nvewi Anambra
Nigeria
Date of Institution (SC No. 55/08): 06/09/2006
and date of Institution (SC No. 56/08): 01/09/2006
Judgment reserved on : 08.08.2012
Date of pronouncement : 25.08.2012
JUDGMENT
1. Vide the present judgment, I shall be deciding two complaints filed on behalf of the NCB against the aforementioned accused. A SC No. 55/08 and 56/08 Page 1 of 37 NCB Vs. Emeka Celestine Obi common judgment is being passed as the facts in both the complaints are interrelated to each other and much of the evidence led is common to both the cases.
2. Briefly stated, the case put up against the accused in the aforementioned two complaints are as follows:
(a) As per the assertions made in SC No. 55/08, on 29/6/2006, an information was received at the office of NCB from the DTDC office, Naraina that two parcels lying at their office at B101, Naraina Industrial Area are suspected to contain Narcotic drugs.
(b) The information was reduced into writing by Sh. Ajay Kumar, IO and was also forwarded to the superior officials who then asked Sh. Ajay Kumar, IO to take necessary action.
(c) Sh. Ajay Kumar, IO along with Hawaldar Shiv Ratan then reached the DTDC office at Naraina and the two parcels in question were opened and searched in front of two employees of the DTDC office namely, Sh. Firoz Warsi, Assistant Manager (Operation) and Raghuraj. The first parcel, on opening, was found to contain one book with a hard cover and the said cover was found concealing therein two polythene packets. The polythene packets were in turn found to contain white powder which on testing with the field testing kit, gave positive results for heroin. The total SC No. 55/08 and 56/08 Page 2 of 37 NCB Vs. Emeka Celestine Obi weight of the powder was found to be 80 grams. Samples were drawn out from the said substance and after properly sealing and seizing the samples of the remaining case property, a test memo was prepared at the spot. Thereafter the second parcel was opened and it was also found containing one book with a hard cover. The said cover was also found concealing two polythenes containing brown material which on being tested with a field testing kit gave positive results for heroin. The weight of the total powder recovered was found to be 145 grams. Samples were drawn out from the said substance and after properly sealing and seizing the samples of the remaining case property, a test memo was prepared at the spot.
(d) Summons were issued to both the independent witnesses and they were asked to appear before the NCB to give their statements.
(e) Seizure report u/s 57 NDPS Act were submitted by the IO Sh. Ajay Kumar to his immediate superior officers.
(f) In pursuance of the summons issued to Firoz Warsi and Raghuraj, they presented themselves before Sh. P.C. Khandoori, IO in the NCB office and tendered their statements on 30/06/2006.
(g) During further investigation, summons u/s 67 NDPS Act were also served upon one Sh. E. Thomas and Sh. D.K. Sinha. Sh. SC No. 55/08 and 56/08 Page 3 of 37
NCB Vs. Emeka Celestine Obi E. Thomas in pursuance of the said summons, appeared in the NCB office and gave a statement that he is operating a franchise of DTDC Courier and Cargo Ltd. at Janakpuri for the last 10 years and that on 12/06/2006 one black Negro had come to his office and had booked a consignment with airway bill no. N91221485. He further stated that he can identify the said person. Similarly D.K. Sinha in his statement stated that on 13/06/2006, a black complexion person, aged about 30 years had come to his franchise office at Connaught Place to book a parcel for Sydney, Australia and that the said parcel was booked vide airway bill no. N91091341.
(h) Sh. D.K. Sinha is also stated to have revealed that the said person had given his phone no. 9871879079 and based on this information the call detail records of the aforementioned number were procured and it was verified that calls were made from this phone to both DTDC franchise Connaught Place and DTDC Regional Office, Naraina. During the investigation with respect to the consignor of the two aforementioned parcels a secret information was received that the person who had booked the parcel on 12/06/2006 at District Centre, Janakpuri is residing at 11/4, Top Floor, Indra Vikas Colony, New Delhi. The said secret SC No. 55/08 and 56/08 Page 4 of 37 NCB Vs. Emeka Celestine Obi information is the starting point of the complaint SC No. 56/08.
(i) The information was received by the IO Sh. Manoj Kumar who reduced it into writing and then as per the directions of Superior Officers constituted a raiding team comprising of Sh. A.K. Mishra, Sh. P.C. Khandoori, Sh. Ajay Kumar, Sh. N.S. Yadav, Sh. Vikash Kumar, Sh. R.K. Yadav and Hawaldar Shiv Ratan. Sh. E. Thomas, the proprietor of the franchise of DTDC Janakpuri was also called at the NCB office and requested to join the raiding team. The entire team and Sh. E. Thomas then proceeded towards the premises namely opposite Batra Cinema hall, Mukherjee Nagar and there one public witness Mahesh Chand on request of the NCB official also joined the raiding party.
(j) The raiding team reached at 11/4, Top Floor, Indra Vikas Colony, New Delhi and on knocking the door of the said premises one person opened the door to whom NCB officials disclosed the purpose of their visit. In the meanwhile Sh. E. Thomas disclosed that the person who had opened the door is the same person who had booked the parcel at his office on 12/06/2006 vide airway bill number N 91221485. On enquiry the said person revealed his name as Emeka Obi. A notice u/s 50 NDPS Act was served upon him and he was briefed that he has a legal right to get himself searched SC No. 55/08 and 56/08 Page 5 of 37 NCB Vs. Emeka Celestine Obi before a Gazetted Officer and a Magistrate and on his refusal to exercise the said right, the search of his house as well as his personal search was conducted by the NCB officials only. During the house search, one polythene containing off white colour powder was recovered, the total weight of which was found to be 150 grams and the said white powder on test gave positive test for heroin. Samples were drawn out from the said substance and after properly sealing and seizing the samples of the remaining case property, a test memo was prepared at the spot.
(k) Summons were issued to the accused u/s 67 NDPS Act and in pursuance of the same he is stated to have tendered a statement admitting therein that he had booked the parcel at the instance of one acquaintance of his namely Mr. John.
(l) During further investigation summons were also issued to one Anju Borker, the landlady of the premises, where the accused was found residing and to D.K. Sinha. Sh. D.K. Sinha is asserted to have come to the office of the NCB and to have verified that accused is the same person who had booked the parcel at his office at Connaught Place.
(m) Samples drawn at the time of all the three recoveries were duly sent to the CRCL and after having received the report two SC No. 55/08 and 56/08 Page 6 of 37 NCB Vs. Emeka Celestine Obi complaints were filed.
3. Based on the material on record, charges were framed against the accused in SC no. 55/08 for the offence punishable u/s 21 r.w.s. 23 of the NDPS Act and in SC No. 56/08 for the offence punishable u/s 21 and 22 of the NDPS Act.
4. The prosecution in order to prove its case against the accused has examined eighteen witnesses in SC no. 55/08 and 19 witnesses in SC no. 56/08. The witnesses that have deposed in both the cases are Sepoy Babu Lal, D.K. Sinha, Anju Borker, Sh. Ajay Kumar, Sh. E. Thomas, Inspector Manoj Kumar, Inspector P.C. Khandoori, Chemical Examiner Sh. S.K. Mittal, Lab Assistant K.K. Singh, Sh. R.R. Kumar, Sh. Deepak Kanda Nodal Officer and IO Akhilesh Kumar Mishra.
5. PW Sh. D.K. Sinha has inter alia deposed that he runs a franchise of DTDC Courier and Cargo Limited at Connaught Place, New Delhi and that on 13.06.2006, a foreigner having dark complexion had booked a parcel with him for being sent to Sydney. As per the deposition of this witness, the said parcel was found to be weighing about 500 gms and that it was booked vide airway bill no. N91091341 and that he had also handed over one copy of the said bill to the said foreigner. He has identified the accused to be the SC No. 55/08 and 56/08 Page 7 of 37 NCB Vs. Emeka Celestine Obi consignor of the said parcel and has also deposed that the accused kept on enquiring from him about the status of the said parcel. This witness has also produced on record the copy of the airway bill maintained by him and the same has been exhibited as Ex.PW2/A. He has also inter alia deposed that he had identified the accused in the office of the NCB on 04.07.2006. The statements tendered by this witness to the NCB in pursuance of the summons issued to him under section 67 NDPS Act have been exhibited as Ex.PW2/D and PW2/F.
6. PW Sh. E. Thomas has inter alia deposed that he runs a franchise of DTDC Courier and Cargo Limited at Janak Puri District Center, New Delhi and that on 12.06.2006, a foreigner having dark complexion had booked a parcel containing two books with him. As per the deposition of this witness, the said parcel was found to be weighing about 800 gms and that it was booked vide airway bill, the number of which starts with 91 and ends with 85 and this witness has identified mark A as the copy of the airway bill. He has identified the accused to be the consignor of the said parcel and has also deposed that the accused had given his name as John at the time of booking of the parcel and had later on also enquired from him about the status of the said parcel. He has also inter alia SC No. 55/08 and 56/08 Page 8 of 37 NCB Vs. Emeka Celestine Obi deposed that on 03.07.2006, he was called by the NCB officials and asked to accompany them to H.No. 11/4, Top Floor, Indira Vikas Colony, New Delhi. As per the deposition of this witness, the door of the said house was opened by the accused and he (the witness) had informed the NCB officials that he was the same person who had booked the parcel in his office on 12.06.2006. He has further deposed that the house of the accused was searched on this day and white coloured powder weighing 150 gm was recovered lying on the fridge of the house of the accused. The statements tendered by this witness to the NCB in pursuance to the summons issued to him under section 67 NDPS Act have been exhibited as Ex.PW3/D and PW7/D.
7. PW Sh. Manoj Mehta (SC No. 55/08) and PW6 Suman Dass (SC No. 55/08) are the employees of DTDC Courier and Cargo Limited who as per their deposition had received the parcel sent by D.K. Sinha and E. Thomas respectively and thereafter had forwarded the same to the Naraina regional office of DTDC. The statements tendered by them to the NCB have been exhibited as Ex.PW3/B and PW5/A respectively.
8. PW Anju Borker is the landlady of the accused and as per her deposition, she had rented out her flat no. 11/4, Indira Vikas SC No. 55/08 and 56/08 Page 9 of 37 NCB Vs. Emeka Celestine Obi Colony, 3rd floor to the accused on 27.03.2006.
9. PW Sh. N.S. Yadav, IO (SC no. 55/08) has inter alia deposed that on 01/07/2006 PW3 Manoj Mehta appeared before him and tendered his voluntarily statement Ex.PW3/B in his own handwriting. He has also recorded the statement of Sh. Suman Das, Ex.PW5/A on the same day.
10.PW Sh. Ajay Kumar, IO has deposed about the search proceedings conducted by him at the office of the DTDC, Naraina Industrial Area, New Delhi. He has inter alia deposed that the secret information received by him was reduced into writing by him and was also produced before Sh. RR Kumar, Superintendent, NCB. The said secret information has been exhibited as Ex.PW8/A. As per the deposition of this witness, he alongwith Hawaldar Shiv Ratan, had left the NCB office on 29/6/2006 in a govt. vehicle and reached the DTDC office Naraina at about 1330 hours where they met Firoz Warsi and Raghuraj, employees of the DTDC office. This witness has then gone on to describe the search and seizure proceedings conducted by him. PW8 has proved the seizure memos Ex.PW8/C, Ex.PW8/F, test memos Ex.PW8/E Ex.PW8/H prepared by him. Copy of airway bills stated to have been seized by this IO have been exhibited as Ex.PW8/D & SC No. 55/08 and 56/08 Page 10 of 37 NCB Vs. Emeka Celestine Obi Ex.PW8/G. PW Firoz Warsi (SC No. 55/08), employee of DTDC Office, Naraina has inter alia deposed that on the request of IO Sh. Ajay Kumar he had agreed to be present during the search of the parcels in question and as regards the search and seizure proceedings, this witness has more or less deposed on similar lines as done by PW8. Apart from the deposition with respect to the seizure of heroin in DTDC office, PW8 Ajay Kumar has also deposed that he alongwith Sh. Manoj Kumar, IO and other NCB officials had also gone to the house of accused i.e. 11/4, Top Floor, Indira Vikas Colony. He has also in particular deposed the he had issued notice u/s 50 of the NDPS Act to the accused and the said notice has been exhibited as Ex.PW3/A. As per the deposition of this witness, accused had signed the same endorsing his refusal to get himself searched before a magistrate. The recovery memo and the test memo prepared by this witness have been exhibited as Ex.PW7/3 and Ex.PW5/6 respectively. The reports regarding search and seizure tendered by him u/s 57 of the NPDS Act have been exhibited as Ex.PW8/O and Ex.PW8/P. The summons issued by him u/s 67 NDPS Act to the accused have been exhibited as Ex.PW8/S. The summons issued to the panch witnesses have been exhibited as Ex.PW7/8, Ex.PW7/9, Ex.PW7/10 and Ex.PW7/11. SC No. 55/08 and 56/08 Page 11 of 37 NCB Vs. Emeka Celestine Obi This witness has inter alia deposed that on 04/07/2006 on the basis of the voluntary statement Ex.PW8/T of accused he had arrested him and the arrest memo and personal search memo in this regard have been exhibited as Ex.PW8/U and Ex.PW8/V respectively. The arrest report tendered by him u/s 57 of the NPDS Act has been exhibited as Ex.PW8/W. During his deposition he has also identified the case property.
11.PW Sh Manoj Kumar, IO has deposed in detail about the investigation conducted by him. The secret information deposed to have been received by him has been exhibited as Ex.PW10/A. He has then described in detail the apprehension of the accused on more or less on the same lines as the averments made in the complaint. The recovery memo and test memo prepared by this IO have been exhibited as Ex.PW10/B and Ex.PW10/E respectively. The report tendered by him u/s 57 of the NPDS Act has been exhibited as Ex.PW10/D. He has also deposed that the case property was deposited with the Malkhana Incharge on 04/07/2006 and the entries to this effect in the Malkhana register have been exhibited as Ex.PW10/G.
12.PW Sh. P.C. Khandoori, IO has inter alia deposed that on 04/07/2006 he was working as Intelligence Officer Malkhana SC No. 55/08 and 56/08 Page 12 of 37 NCB Vs. Emeka Celestine Obi Incharge in NCB, DZU, R.K. Puram. He has deposed on similar lines as the main IO Sh. Manoj Kumar. He has also deposed that the entire case property and test memo in triplicate were deposited with him in the Malkhana and the entries to this effect in the Malkhana register have been exhibited as Ex.PW10/G, Ex.PW11/B and Ex.PW11/C. He has also deposed that on 30/06/2006 Sh. Raghuraj Singh and Sh. Firoz Warsi had appeared before him and gave voluntarily statements Ex.PW11/D and Ex.PW11/E respectively.
13.PW R.R. Kumar has inter alia deposed that on 29.06.2006, he was posted as Superintendent, NCB DZU and on that day, PW8 Sh. Ajay Kumar had put up before him a secret information and after going through the information he had directed to take necessary action and had issued departmental seal of NARCOTIC CONTROL BUREAU DZU4 to PW8. As per this witness, he had signed on the seal movement register with respect to the handing over and return of the seals to and from the IO Sh. Ajay Kumar. He has then further deposed that on the same day, PW8 Sh. Ajay Kumar put before him report u/s 57 NDPS Act Ex.PW8/O and Ex.PW8/P regarding seizure of 80 grams and 145 grams of heroin from two parcels. As per this witness, on 30.06.2006, he forwarded SC No. 55/08 and 56/08 Page 13 of 37 NCB Vs. Emeka Celestine Obi the samples alongwith test memo to CRCL vide forwarding letter Ex.PW1/A and Ex.PW1/B through Sepoy Babu Lal. This witness has further deposed that on 30/07/2006, PW10 Sh. Manoj Kumar had put up before him a secret information and after going through the information he had directed to take necessary action and had issued departmental seal of NARCOTIC CONTROL BUREAU DZU3 to PW10. As per this witness, he had signed on the seal movement register with respect to the handing over and return of the seals to and from the IO Sh. Manoj Kumar. He has then further deposed that on the same day, PW10 Sh. Manoj Kumar put before him report seizure report u/s 57 NDPS Act and PW8 Sh. Ajay Kumar submitted report Ex.PW8/W regarding arrest of accused. As per this witness, on 05/07/2006, he forwarded the samples alongwith test memo to CRCL vide forwarding letter Ex.PW9/A to CRCL and on 07/07/2006 intimated the Ministry of External Affairs regarding the arrest of accused vide Ex.PW15/A.
14.PW Sh. Akhilesh Kumar Mishra, IO has deposed on similar lines as the main IO Sh. Manoj Kumar. He has also deposed that the in pursuance of summons Sh. Raghuraj had appeared before him on 30/06/2006 and tendered his voluntary statement Ex.PW17/C. He has further deposed that on the request of PW Manoj Mehta he had SC No. 55/08 and 56/08 Page 14 of 37 NCB Vs. Emeka Celestine Obi recorded his voluntary statement Ex.PW17/A on his dictation before Sh. Vikas Kumar, IO.
15.PW Sh. Vikas Kumar, (SC No. 56/08) IO has deposed on similar lines as the main IO Sh. Manoj Kumar. He has also deposed that the in pursuance of summons Sh. Mahesh Chand had appeared before him on 07/07/2006 and tendered his voluntary statement Ex.PW17/A .
16.PW Hawaldar Shivratan (SC no. 56/08) has inter alia deposed that on 05/07/2006, Sh. R.R. Kumar, Superintendent, NCB handed over to him sample and test memo and that he had deposited the same with PW K.K. Singh, CRCL Pusa and receipt issued by the said officer of CRCL has been exhibited as Ex.PW1/A.
17.PW Babu Lal Sepoy has inter alia deposed that on 30.06.2006, Sh. R.R. Kumar, Superintendent, NCB handed over to him two samples and two test memos pertaining to case no. VIII/36/DZU/2006 and VIII/37/DZU/2006 that he had deposited the same with PW K.K. Singh, CRCL Pusa and two receipts issued by the said officer of CRCL has been exhibited as Ex.PW1/C and Ex.PW1/D. As per the further deposition of this witness, on 22/08/2006 he had collected the report and the remnant samples from the CRCL and handed over them to Sh. R.R. Kumar. SC No. 55/08 and 56/08 Page 15 of 37 NCB Vs. Emeka Celestine Obi
18.PW Sh. K.K. Singh, Lab Assistant, has inter alia deposed that he had received samples, test memo forms and forwarding letters from Babu Lal Sepoy and Hawaldar Shivratan on 30/06/2006 and 05/07/2006 respectively and had issued receipts Ex.PW1/C, Ex.PW1/B and Ex.PW1/A respectively.
19.PW Sh. S.K. Mittal, Chemical Examiner, CRCL New Delhi has proved the analysis reports of the substances recovered from the two parcels in question in SC No. 55/08 and the said reports have been exhibited as Ex.PW12/A and Ex.PW12/B.
20.PW R.P. Meena (SC No. 56/08), Chemical Examiner, CRCL has proved the analysis report of the substance recovered from the house of the accused and the said reports have been exhibited as Ex.PW20/A. Since as per this report, the CRCL could not trace out any Diacetylmorphine in the sample sent to it, on an application by the NCB, another sample A2 drawn out from the substance allegedly recovered from the premises of the house of the accused was sent to FSL Rohini. In this regard, PW Dr. Madhulika Sharma (SC no. 56/08) Assistant Director, CFSL, Rohini has deposed that on 20/12/2006, one parcel marked A2 alongwith FSL form was received in the FSL office and same was SC No. 55/08 and 56/08 Page 16 of 37 NCB Vs. Emeka Celestine Obi handed over to her for chemical examination. Parcel A2 was found to contain Ex.A2. According to her, on the basis of TLC, GC and MS examination, Ex.A2 was found to contain Monoacetylmorphine, Acetylcodeine, Diacetylmorphine, Diazepam and Paracetamol. However, on GC examination Ex.A2 was contain Diacetylmorphine and Diazepam 0.4% and 0.4% respectively. The report prepared by her with respect to the sample has been exhibited as Ex.PW17/B.
21.PW Sh. Deepak Kanda, Nodal Officer has proved the details of mobile no. 9871879079 from 01/04/2006 to 29/06/2006 vide Ex.PW14/1 to 9 (colly).
22.The entire incriminating evidence discussed hereinabove has been put to the accused in both the cases and his statement u/s 313 Cr.PC has also been recorded in both the cases. In the said statements, accused has inter alia stated that he has been falsely implicated in the present case and neither had he ever booked a parcel containing heroin nor was any heroin recovered from his house. No defence evidence has been led on behalf of the accused.
23.I have heard the Ld. Defence counsel Sh. Y.K. Saxena for the accused. On behalf of the NCB, no arguments have been advanced but written submissions have been filed. As per the written SC No. 55/08 and 56/08 Page 17 of 37 NCB Vs. Emeka Celestine Obi submissions filed, according to the prosecution, the witnesses and the documentary evidence produced by it clearly prove the guilt of the accused persons. It has been submitted on behalf of the prosecution that not only the prosecution witnesses have been able to prove the guilt of the accused, the accused has himself confessed his offence in the statement tendered by him u/s 67 of the NDPS Act. Alongwith the written submissions, the copies of the following judgments pronounced by the Hon'ble Supreme Court and Hon'ble Delhi High Court have been annexed:
● Mohd. Hussain Farah Vs. Union of India & Ors. AIR 1999 SC 3343.
● Amarjeet Singh Vs. State of Maharashtra 2002(1) East Cr.C 232(SC).
● Umar Abdul Sakoor Sorathia Vs. Intelligence Officer, Narcotics Control Bureau AIR 1999 SC 2562.
● Hegedus Lahel Csaba Vs. Union of India 120 (2205) DLT
341.
● Namdi Francis Nwazor Vs. Narcotics Control Bureau 53 (1994) DLT 562.
24.The Defence Counsel Sh. Y.K. Saxena on the other hand, has contended that the accused has been falsely implicated in this case and that the contractions in the deposition of the prosecution witnesses amply proves that nothing was recovered from the SC No. 55/08 and 56/08 Page 18 of 37 NCB Vs. Emeka Celestine Obi premises of the accused. He has also submitted that the answers given by PW Manoj Kumar in his crossexamination with respect to the secret information allegedly received in this case, show that no such information was ever received. He has pointed out that as per Ex.PW10/A, the secret information was received on 13.07.2006 at about 1600 hours but that no raid was conducted on this date though PW9 Manoj Kumar in his crossexamination has clearly admitted that they had sufficient time on this date to conduct a raid. He has also pointed out that this witness when specifically asked as to why the raid was not conducted at the house of accused on 13.07.2006 has merely deposed that on 13.07.2006, his superior officer R.R. Kumar had engaged him in other official work and therefore the raid could not be conducted on this date. According to Ld. Defence Counsels, such kind of answers show that no such information was received for else the NCB officials would have acted on the secret information on the date of its receipt only. As regards the allegations that the accused had attempted to export the contraband outside India and had booked parcels containing heroin with the courier company, DTDC, Ld. Defence Counsel has pointed out that there is no evidence whatsoever to connect the accused with the said parcels. SC No. 55/08 and 56/08 Page 19 of 37 NCB Vs. Emeka Celestine Obi He has pointed out that no identity proof documents of the accused were found annexed with the airway bill and that the accused is being connected with the said parcels only on the basis of his identification been done by the franchise owners of the courier company. His contention is that the alleged identification done of the accused by PW E.Thomas and PW D.K. Sinha is no identification in the eyes of law. He has also contended that no SIM card of any phone was recovered from the premises of the accused and that the version of the prosecution in this regard is completely concocted. He has also pointed out various discrepancies in the deposition of PW Ajay Kumar, who as per the version of the prosecution had seized the parcels in question and the CRCL reports proved on record. His contention is that the discrepancy in the colour of the substance allegedly recovered from the said parcels and the colour of the samples tested by the CRCL clearly prove that the case property has been tampered with.
25.I have carefully considered the written submissions filed on behalf of the NCB and the arguments advanced on behalf of the defence and I have also perused the entire material on record. I will first consider the case made out against the accused in SC No. 56/08 wherein it has been alleged that 150 gms of heroin was recovered SC No. 55/08 and 56/08 Page 20 of 37 NCB Vs. Emeka Celestine Obi from the flat of the accused. It is indeed very surprising that though a recovery memo Ex.PW3/B is asserted to have been prepared at the spot with respect to the alleged recovery of heroin from the house of the accused, there is not a whisper in the recovery memo as to from which part of the house was the said contraband recovered. The recovery memo Ex.PW3/B merely mentions that on the search of the house of the accused, one polythene containing off white colour powder was recovered. As regards the oral depositions of the prosecution witnesses in this regard, they have been found to be completely inconsistent with each other. Though it is averred in para 4 of the complaint that the raiding party which had gone to the house of the accused consisted of IO Manoj Kumar, IO Ajay Kumar, IO Akhilesh Kumar, IO P.C. Khandoori, IO N.S. Yadav, IO Vikash Kumar, IO R.K. Yadav, Hawaldar Shiv Ratan and two independent witnesses E. Thomas and Mahesh Chand, PW Hawaldar Shivratan has not spoken a word about the said recovery and the prosecution has not produced N.S. Yadav, R.K. Yadav and Mahesh Chand in the witness box in SC No. 56/8. As regards the remaining witnesses, E. Thomas, an employee of DTDC Courier has deposed that a polythene containing contraband was found lying on the fridge in the house SC No. 55/08 and 56/08 Page 21 of 37 NCB Vs. Emeka Celestine Obi of the accused. Similarly, according to the deposition of IO Ajay Kumar, IO Vikas Kumar and IO Akhilesh Mishra, the polythene was found lying on the top of the fridge. However, IO Manoj Kumar and IO P.C. Khandoori when questioned in this regard, have given contrary depositions. According to IO P.C. Khandoori, the said polythene was recovered from a rack kept in a room of the flat of the accused. The main investigating officer namely the author of the recovery memo IO Manoj Kumar has given still another version as per his deposition, the polythene was recovered from the bedroom of the flat of the accused. There is also no reason given by him as to why the place of recovery of the contraband has not been mentioned in the recovery memo and when confronted with the recovery memo, he has merely admitted that it is not mentioned in the recovery memo that the polythene was recovered from the bedroom of the accused.
26.The members of the raiding team have also contradicted each other even with respect to the description of the premises of the accused. On the one hand, as per the depositions of IO Vikas Kumar and IO Akhilesh Kumar, the flat/premises of the accused had three rooms in total, on the other hand, as per the statement made by IO P.C. Khandoori in his crossexamination, the flat of the accused SC No. 55/08 and 56/08 Page 22 of 37 NCB Vs. Emeka Celestine Obi consisted of only one room, kitchen, bathroom and toilet and still further as per the main investigating officer, the complainant Manoj Kumar, the flat of the accused was a two bedroom flat.
27.Despite the aforementioned contradictions, it has been submitted on behalf of the prosecution that the search proceedings at the premises of the accused should not be doubted by this court as the raiding team consisted of two independent witnesses namely Mahesh Chand and E. Thomas. As regards Mahesh Chand, as narrated hereinabove, he has not been produced in the witness box. The summons sent to this witness have been returned back with the report that his address is incorrect. However, the prosecution is relying upon the statement of this witness tendered u/s 67 NDPS Act which has been proved by PW 17 Akhilesh Kumar as Ex.PW17/A. This witness has deposed that this person had appeared before him and tendered his voluntary statement and since Mahesh Chand was not much educated, he had not written his statement on his own but that the same was written on his dictation by PW19 Vikash Kumar. Both these IOs namely Akhilesh Kumar and Vikas Kumar were crossexamined at length with respect to this statement given by Mahesh Chand. Though in his crossexamination PW Akhilesh Kumar has deposed that SC No. 55/08 and 56/08 Page 23 of 37 NCB Vs. Emeka Celestine Obi Mahesh Chand was able to read the statement written by Vikash Kumar on his dictation i.e. the document Ex.PW17/A, PW19 Vikas Kumar has deposed that Mahesh Chand was unable to read or write Hindi at all. In other words, according to this witness, Mahesh Chand was not able to read his own statement Ex.PW17/A which is in Hindi. It is noted that this witness has only affixed his thumb impression on all the documents allegedly prepared at the spot and that this witness was an illiterate person. Taking into consideration the said fact and also the fact that this witness has not been produced in the witness box and there is a material contradiction between the deposition of PW Akhilesh Kumar and PW Vikas Kumar with respect to the manner of recording of statement of this witness, in the considered opinion of this court, the statement purportedly tendered by this witness Ex.PW7/A cannot be read against the accused at all. As regards the other public witness namely E. Thomas, he is admittedly the owner of the franchise of DTDC Courier, District Center Janakpuri where allegedly the accused had booked the parcel containing drugs, for which the accused has faced trial in SC No. 55/08. Though this witness in his examination in chief has stated that in his presence, the contraband recovered from the house of the accused was weighed and its SC No. 55/08 and 56/08 Page 24 of 37 NCB Vs. Emeka Celestine Obi weight came out to be 150 grms and that two parcels of 5 grm each were taken from the said substance, in his crossexamination he has deposed that he did not see any weighing balance on the spot. He has not elaborated further to explain as to how then was the material weighed and how has be so categorically deposed that the weight of the material recovered came out to 150 grm and that two samples of 5 grms each were taken out. Further, he is unable to even tell what were the other household articles lying in the house of the accused or the colour/make/size of the fridge from which the contraband was allegedly recovered as per his deposition. Further, though as per the version of the prosecution, the copy of the airway bill of the parcel booked at the office of this person, was also recovered during the search of the premises of the accused, this witness has not stated a word about the recovery of the said airway bill and in fact on being questioned about the documents that were recovered from the premises of the accused, he has merely stated that he does not remember the details of the same. Apart from the aformentioned facts which create a reasonable doubt with respect to the presence of this witness at the premises of the accused, the one glaring aspect of the present case, of which one cannot lose sight of is the fact that though as per the assertion of the IO Manoj SC No. 55/08 and 56/08 Page 25 of 37 NCB Vs. Emeka Celestine Obi Kumar, the substance recovered from the house of the accused on being tested with the field testing kit had tested positive for heroin, the CRCL did not find any traces of diacetylmorphine (heroin) in the sample from the substance A1 recovered sent to it for testing. It is indeed very surprising that though the field testing kit which is very basic in nature could, as per the version of IO, detect the heroin in the recovered substance, the sophisticated machinery at CRCL could not. In its report Ex.PW20/A, the CRCL has mentioned that on the basis of the chemical and chromatographic examination, it has been concluded that the sample A1 sent to it does not answer positive for heroin. It is only when on the request of the prosecution that the second sample A2 was sent to FSL Rohini for testing, it was found to contain .4% of Diacetylmorphine and .4% of Diazepam. No amount of contraband having been traced in the sample A1 and the minuscule amount of Diacetylmorphine and Diazepam found in sample A2 clearly do support the assertion of the accused that the investigating agency has falsely implicated him in this case by planting 150 gms of some substance upon him and falsely alleging that it is heroin. This court is also of the considered opinion that when the deposition of the prosecution witnesses are neither consistent with SC No. 55/08 and 56/08 Page 26 of 37 NCB Vs. Emeka Celestine Obi respect to the description of the premises of the accused nor with respect to the exact place from where the alleged recovery of the polythene containing the contraband was recovered, it cannot at all be stated that the prosecution has been able to prove the recovery of contraband from the premises of the accused. In a case titled as Shiv Narayan Vs. State reported in 2001(93) DLT 681, the Hon'ble Delhi High Court after taking note that the prosecution witnesses were not consistent with respect to the description of the place from which incriminating material against the accused was recovered, held that the said recovery cannot be made the basis of convicting the accused.
28.In view of the discussion hereinabove, this court is of the considered opinion that the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused in SC No. 56/08.
29.Coming now to the charges framed against the accused in SC No. 55/08 namely that the accused had booked one 145 grms and 80 grms of heroin in sealed packets with the DTDC courier in an attempt to export the same in contravention of the provisions of section 8 of the NDPS Act and thereby committed an offence punishable u/s 23 of the NDPS Act, the prosecution is relying upon SC No. 55/08 and 56/08 Page 27 of 37 NCB Vs. Emeka Celestine Obi the following incriminating facts to prove the said charges:
(a) That the accused was identified by D.K. Sinha, the franchise of DTDC in Connaught Place and E. Thomas, the franchise owner of DTDC at Janakpuri.
(b) The copies of the airway bill vide which the parcels were booked were recovered from the premises of the accused.
(c) The SIM card bearing number 9871879079 was recovered from the house of the accused and this number finds mention on the airway bill vide which the parcel was booked at the DTDC office, Connaught Place.
(d) The accused has admitted his guilt in the statement tendered by him u/s 67 of the NDPS Act.
30.As regards the recovery of the incriminating documents namely the airway bills and the SIM card from the house of the accused, in view of the discussion in the preceding paragraph wherein this court has observed that the version of the prosecution with respect to the search of the premises of the accused cannot be believed, the said recoveries cannot be made the sole basis to connect the accused with the parcels in question.
31.As regards the identification of the accused by the franchise owners of DTDC courier, in the considered opinion of this court, it SC No. 55/08 and 56/08 Page 28 of 37 NCB Vs. Emeka Celestine Obi has been rightly contended on behalf of the defence that the said identification should have no relevance in the eyes of law for when the accused was allegedly shown to the said two witnesses, he was the only Nigerian/African looking person available at the spot. In other words, it is not a case where the accused was made to stand amongst ten other persons similar in looks and appearance to him and that the said witnesses were able to still recognize him. As narrated hereinabove, the franchise owner of the DTDC, Janakpuri, E. Thomas was taken to the residence of the accused where he was shown the accused and the other franchise owner was made to see the accused at the office of NCB. It is also to be noted that in their statements given u/s 67 NDPS Act, the said witnesses have not given any particular identification features of the accused. The only description given by E. Thomas in his purported statement given u/s 67 NDPS Act Ex.PW7/B is that the person who had come to book the parcel was a black Negro. Similarly, D.K. Sinha has merely stated in his statement Ex.PW7/C that a black foreigner whose age was about 30 years had come to book the parcel. It is a matter of record that the age of the accused recorded in the tenant verification form, produced by his landlady Ex.PW4/B mentions his age as 27 years. Similarly, the MLC of the accused filed on SC No. 55/08 and 56/08 Page 29 of 37 NCB Vs. Emeka Celestine Obi record by the prosecution also mentions his age as 26 years. The voluntary statement of the accused being relied upon by the prosecution also mentions his age as 26 years. No doubt, it can be argued that though if a person is aged about 2627 years, he can have a physical appearance of about 30 years but that does not appear to be a possibility in the present case going by the actual appearance of the accused who has been produced before this court on various occasions in the year 2012.
32.At this stage, it would also be relevant to consider the contention made by the Ld. Defence Counsel that the two franchise owners D.K. Sinha & E. Thomas did not follow the mandatory guidelines at the time of booking of the parcel and in order to save themselves from any further scrutiny in this regard have chosen to support the case of the prosecution. It is a matter of common knowledge that any courier company at the time of booking a parcel destined to outside India has to ask for the identity proof of the consignor. PW8, Ajay Kumar, Superintendent of NCB also has specifically deposed in this regard that there are international guidelines which make it mandatory for a courier company to ask for identity proof documents of the consignor. Admittedly in the present case, there is not a whisper in the statements of D.K. Sinha or E. Thomas that SC No. 55/08 and 56/08 Page 30 of 37 NCB Vs. Emeka Celestine Obi they had asked for any such documents from the accused at the time of booking of the parcel. The name of the accused does not appear on the airway bill nor does his address. It is therefore then not understandable as to how the parcels were booked by the franchises of DTDC courier without asking for the identity proof of the accused. In such circumstances, in the considered opinion of this court, it is being rightly contended on behalf of the defence that the testimony of these witnesses cannot be accepted to be the entire truth.
33.The reliance of the prosecution, for proving the guilt of the accused, on the statement tendered by the accused purportedly given voluntarily by him in answer to the summons issued to him u/s 67 of the NDPS Act, is also totally misplaced. I have gone through the judgments filed on record on behalf of the NCB in support of their contention about the admissibility of the confessional statement of the accused recorded u/s 67 of the NDPS Act. No doubt, as per the judicial dicta and as per the statutory provisions of section 67, a voluntary statement tendered by an accused u/s 67 NDPS Act is admissible against him, but in the considered opinion of this court, the statement in the present case purportedly tendered voluntarily by the accused u/s 67 NDPS Act SC No. 55/08 and 56/08 Page 31 of 37 NCB Vs. Emeka Celestine Obi has been retracted by him and even otherwise, it does not amount to a confession of his guilt. A perusal of the said statement Ex.PW8/T reveals that the accused has only admitted therein that he had booked only one parcel at the franchise office of DTDC at Connaught Place (there is no reference in the purported statement of any parcel booked by him at DTDC office, Janakpuri) and that he was not aware of the contents of the parcel, as it had been handed over to him by one John whom he had met while playing football. In view of such self exculpatory facts mentioned in the aforementioned statement, it cannot be stated that the accused himself has admitted his guilt and therefore on the basis of the said admission is liable to be convicted for having made an attempt to export heroin. In a judgment pronounced by the Privy Council in a case titled as Pakala Narayana Swami Vs. Emperor reported in AIR 1939 PC 47, it was made clear that admission of even a conclusively incriminating fact cannot be called a confession of guilt if the statement of admission also contains an exculpatory statement, which if true would negate the offence alleged to be confessed.
34.This court is also of the considered opinion that even otherwise before pressing the said statement against the accused or before SC No. 55/08 and 56/08 Page 32 of 37 NCB Vs. Emeka Celestine Obi relying upon his alleged identification by the franchise owners and the recovery of a SIM card used by him for making calls to the courier company, the prosecution will have to first conclusively prove that there has been no tampering with the parcel admitted to have been booked by the accused and from which heroin has been allegedly recovered. At this stage, it would be relevant herein to take note of the contentions of the Ld. Defence counsel with respect to the tampering of the case property. Ld. Defence counsel Sh. Y.K. Saxena has pointed out that both D.K. Sinha and E. Thomas have categorically stated in their crossexamination that at the time of booking of the parcel they had checked the parcels in question and had not found them to be suspicious. He has also brought it to the attention of this court that E. Thomas in his cross examination has categorically deposed that as per the instructions of the courier company, he thoroughly checks every parcel before accepting it for the purpose of booking and that in the present case also he had physically checked the parcel in question consisting of books and he had not found anything suspicious therein. According to Ld. Defence Counsel, the parcels in question remained in the custody of the regional office DTDC right from 12.06.2006/13.06.2006 till 29.06.2006 and that the deposition of SC No. 55/08 and 56/08 Page 33 of 37 NCB Vs. Emeka Celestine Obi witness Firoz Warsi that it was only on 29/06/2006 that two parcels were received in the Naraina office of DTDC is false and is belied by two other employees of DTDC namely PW3 Manoj Gupta and PW6 Suman Dass. He has pointed out that both of these are the employees of the hub office of DTDC and their job was to forward the parcels received from the franchise office to the regional office of DTDC at Naraina and that both of them admittedly in their statements, tendered u/s 67 NDPS Act, which have been exhibited during the course of evidence, have stated that the parcels were forwarded to the Naraina office on 12.06.2006 and 13.06.2006 respectively. It is also submitted that D.K. Sinha has also similarly in his examination in chief has deposed that when the consignor telephoned him two days after the booking to ask about the parcel, he informed him that the enquiries be made from Firoz Warsi as the parcel already had reached Firoz Warsi by this date. The submission of Ld. Defence Counsel is that the evidence produced on record makes it clear that the parcels were received in the regional office of DTDC at Naraina on 12.06.2006/13.06.2006 and there is no evidence produced on behalf of the prosecution to show that between the date when the parcels were allegedly booked by the accused i.e. 12.06.2006/13.06.2006 and the date SC No. 55/08 and 56/08 Page 34 of 37 NCB Vs. Emeka Celestine Obi when they were seized and searched by the NCB officials i.e. 29.06.2006, there was no possibility of tampering with the parcels and that in fact the incorrect deposition of Firoz Warsi shows that he is hiding some facts from this court.
35.Though on behalf of the NCB it has been submitted that there is no reason for the employees of DTDC courier or the NCB officials to tamper with the parcels or to falsely implicate the accused, in the considered opinion of this court an appreciation of the entire evidence produced during trial in this regard makes it clear that the possibility of the tampering of the parcel and the case property cannot be ruled out at all. As narrated in the facts hereinabove, it is PW8 Ajay Kumar who has conducted the search and seizure proceedings with respect to the two parcels in question. As per the panchnama/seizure memo Ex.PW8/F and PW8/C and the deposition of this witness, brown powder was recovered from the parcel booked vide airway bill no. N91221485 and white powder was recovered from the parcel booked vide airway bill no. N91091341 and case no. VIII/36/DZU/2006 was assigned to the recovery made from the parcel booked vide airway bill no. N91221485 and case no. VIII/37/DZU/2006 was assigned to the recovery made from the parcel booked vide airway bill No. SC No. 55/08 and 56/08 Page 35 of 37 NCB Vs. Emeka Celestine Obi N91091341. However, when the case property was produced during the deposition of this witness, the Ld. Predecessor of this court had observed that that the powder shown to be recovered from the parcel booked vide airway bill no. N91221485 and assigned case no. VIII/36/DZU/2006 was white coloured and not brown. Similarly, it was observed by the Ld. Predecessor that the powder shown to be recovered from the parcel booked vide airway bill no. N91091341 and assigned case no. VIII/37/DZU/2006 was wheat flour coloured and not white. Further, as per the deposition of PW8, he had drawn out two samples A1 and A2 from both the substances and had sent the same to CRCL for testing. He has also deposed that FSL forms were filled in by him and the same have been proved to be sections I of Ex.PW12/A and PW12/B. Now the CRCL report i.e. section II Ex. PW12/B proved on record by PW12 S.K. Mittal, Assistance Chemical Examiner, CRCL show that the sample sent to it in case no. VIII/37/DZU/2006 was found to be in the form of brown coloured powder and lumps. In other words, though PW8 has sought to prove that he had sent a sample consisting of white powder, drawn out from the parcel booked vide airway bill no. N9109134, the said sample was found to be of brown colour by the CRCL. There is absolutely no explanation SC No. 55/08 and 56/08 Page 36 of 37 NCB Vs. Emeka Celestine Obi given by the prosecution with respect to the aforementioned discrepancies and therefore this court is constrained to note that it is not a possibility that the parcels and the case property have been tampered with but in fact the tampering has been proved and in such circumstances, the accused cannot be convicted of the charges framed against him. The Hon'ble Supreme Court in its judgment pronounced in case titled as Premchand Vs. Union of India reported in 1981 SCC(Crl.) 239, has insisted that in the administration of criminal law, the means that the prosecution agency adopts to secure the conviction of a criminal must also be good as the ends.
36.In view of the discussion hereinabove, this court is of the considered opinion that the prosecution has failed to prove its case against the accused even in SC No. 55/08. As such, the accused is hereby acquitted of the charges framed against him in both SC No. 55/08 and 56/08. A copy of this judgment be kept in both the said files.
Announced in the open court (Anu Grover Baliga)
On: 25th August, 2012 Special Judge: NDPS
New Delhi
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