Delhi District Court
State vs . Anyika Okechukwu Mike on 19 December, 2020
Page 1 of 15
IN THE COURT OF SHRI ANURAG THAKUR
MM-02: CENTRAL DISTRICT: TIS HAZARI COURTS:NEW DELHI
FIR No. 359/16
PS: Timar Pur
U/s 20 NDPS Act, 1985 & U/s 14 of Foreigners
Act, 1946 and Sec. 471 IPC
State Vs. Anyika Okechukwu Mike
Date of Institution of case: 08.10.2016
Date of Judgment reserved: 01.12.2020
Date on which Judgment pronounced: 19.12.2020
JUDGMENT
Unique ID no. of the case : 307667/16
Date of commission of offence : 09.08.2016
Name of complainant : Ct. Bachche, No. 2027/N
PS Timarpur, Delhi
Name and address of accused : Anyika Okechukwu Mike
s/o Mr. Anyika
R/o Nigera Cogos John.
Present Address:
H. No. 2382, Floor Bengali
Colony, Sant Nagar, Burari,
Delhi.
Offence complained of : Sec. 20 NDPS Act & Sec.14
Foreigners Act and Sec.
471 IPC
Plea of accused : Pleaded not guilty
Date of order : 19.12.2020
Final order : Acquitted of offence u/s 20
NDPS Act & 471 IPC.
Convicted for offence u/s 14
Foreigners Act, 1946
BRIEF REASONS FOR DECISION OF THE CASE
1. The case of the prosecution in brief is that on 09.08.2016 at about 8:35 p.m behind CNG Pump, Gandhi Vihar within the jurisdiction of PS Timar Pur, accused Anyika Okechukwu Mike was found in possession of 150 gm of ganja (narcotic drug) and during the investigation, the IO collected the passport no. A05131202 issued in his name with a visa No. V160754984 issued from Nigerian Embassy with validity upto 15.07.2016 and and as per the verification report, the said visa Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2020.12.19 12:03:57 +05'30' FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 2 of 15 was not issued in his name and the said visa was reported 'not genuine'. At that relevant time, accused remained in India without having valid visa and further he used the fake visa with knowledge or having reason to believe the same to be fake. On the basis of the above allegations, the present FIR 359/16 was registered against the accused Anyika Okechukwu Mike at police station Timarpur for offences u/s 20 NDPS Act, 1985 & u/s 14 Foreigners Act, 1946 and u/s 471 Indian Penal Code (hereinafter called as IPC), 1860.
2. After investigation, chargesheet was filed against the accused. Copy of same was supplied to him in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.). Thereafter, charge u/s 20 NDPS Act, u/s 14 of Foreigners Act and u/s 471 IPC was framed against accused Anyika Okechukwu Mike vide an order dated 02.06.2017 to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined seven witnesses. PW-1 ASI Umesh Kumar had deposed that on 10.08.2016 he was posted at PS Timar as HC and was working as duty officer from 12 midnight to 8 a.m. On that day he received a rukka brought by Ct. Sunny which was sent by ASI Ashok Kumar. On the basis of rukka, he recorded the FIR exhibited as Ex. PW.1/A bearing his signatures at point A (OSR). He also made his endorsement on the rukka from point B to B1 which was exhibited as EX. PW.1/B bearing his signature at point C. The copy of FIR and original rukka were given to Ct. Sunny to further hand over to ASI Ashok Kumar for investigation. He did not record any DD entry and the same was recorded by the police official/duty officer.
4. PW. 2 HC Bache Singh had deposed that on 09.08.2016 he was posted at PS Timar Pur, Delhi as constable and on that day he was on patrolling duty at beat no.
7. When he reached near CNG Pump Gandhi Nagar and it was about 08:30PM, he noticed one Nigerian man coming towards Gandhi Vihar from behind the CNG pump. On seeing him he returned back. On suspicious, he stopped him after taking long steps. That Nigerian man was correctly identified by the witness. On checking, he found there was one polythene of white colour in his hand which was tied. On opening the said polythene, it smelt like ganja. Thereafter, he shared that information at PS Timar Pur. After some time, ASI Ashok Kumar along with Ct. Sunny came at the spot and he disclosed whole incident to them. IO recorded his statement which was exhibited as Ex. PW-2/A bearing his signature at point A. IO interrogated the accused. During the said investigation, SI Ganpati Maharaj ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2020.12.19 12:04:24 +05'30' FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 3 of 15 also came at the spot and talk with the accused in English language. IO served the notice under Section 50 NDPS Act to the accused which was exhibited as Ex. PW- 2/B bearing his signature at point A. Public persons gathered at the spot and IO asked them to join the investigation but none agreed and left the spot without disclosing their names and addresses. In the mean time, SI Ganpati Maharaj left the spot and ASI Ashok Kumar took one electronic measurement machine and weighted the said polythene and found the ganja was about 165 gm. From which 50 gm ganja was taken out for the sample purpose and sealed the same with the seal of AK and kept the remaining ganja in same polythene and also sealed the same with the seal of AK. IO seized the case property and prepared the seizure memo which was exhibited as Ex. PW-2/C bearing his signature at point A. IO prepared rukka and handed over the same to Ct. Sunny for registration of FIR. Ct. Sunny left for PS for getting FIR registered. After some time, Ct. Sunny reached at the spot along with copy of FIR and original rukka and handed over same to the IO. IO prepared the site plan at his instance. IO arrested the accused person and conducted his personal search vide personal search and arrest memos exhibited as Ex. PW-2/D and Ex. PW-E both bearing his signatures at point A. Thereafter, IO deposited the case property in malkhana and kept the accused in lock-up after got conducted his medical examination. IO asked accused about his visa and passport but he did not give satisfactory reply. Thereafter, he along with IO, Ct. Sunny and accused went to house of the accused i.e. Bangali Cololy, Sant Nagar, Burari, Delhi but could not find the relevant documents in above said house. Thereafter, they all returned back at PS Timar Pur, Delhi. In the mean time, one friend of accused came at PS Timar Pur and IO inquired about passport and VISA of accused from the said friend. IO recorded his statement and relieved him. He correctly identified the case property i.e. one polythene with the particulars of the present FIR. The said polythene contained one envelope in yellow colour having seal of FSL and one another pullanda in white colour having seal of AK and OPT. The seals were unteck with the permission of the court and after opening the white pullanda found containing one polythene having some brown material. After looking at the brown material, witness correctly identified the same as which was recovered from the accused. Other envelope in yellow colour found contained other brown material. After looking at the same, witness correctly identified it. The case properties collectively Ex. P-1 (Colly.).
5. PW. 3 Ct. Sunny had deposed that on 09.08.2016, he was posted as constable at PS. Timar Pur. On that day, he was on emergency duty and one information vide DD No. 34A was received by ASI Ashok Kumar regarding apprehension of one ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2020.12.19 12:04:44 +05'30' FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 4 of 15 Nigro near CNG pump Gandhi Vihar, Delhi. He along with IO went to the above said place where they met with Ct. Bache Singh who handed over the accused Nigro along with one polythene of white colour. Thereafter, on checking they found brown material in the said polythene. IO recorded the statement of Bache Singh. In the mean time, SI Ganpati Maharaj came at the spot and he talked to accused in English language. He did some paper works and prepared some documents. IO handed over him rukka for registration of FIR. He went to the PS for registration of FIR. After got lodging the FIR, he came back at the spot and handed over the copy of FIR and original rukka to IO. Accused was correctly identified by the witness.
6. During cross-examination by ld. APP for the State, he admitted that IO served notice under Section 50 of NDPS Act to the accused. He denied the suggestion that the case properties were seized in his presence and IO prepared pullanda after weighing the case property and took out 50 gm of the said brown material which was total in 165 gm and sealed the both pullands with the seal of AK. He further denied the suggestion that IO seized the case property in his presence. He denied the suggestion that IO asked public person to join the investigation but none agreed and left the spot without disclosing their names and addresses. He denied the suggestion that IO fill FSL form. He admitted that FSL form, case property and seizure memo was handed over to him by IO to further hand it over to HC Umesh Kumar. He admitted that accused was arrested in his presence and his personal search was also conducted in his presence. Witness was confronted with his statement from point A to A-1 Ex. 3/X. PW-3 also correctly the case property i.e. one polythene with the particulars of the present FIR. The said polythene contained one envelope in yellow colour having seal of FSL and one other pullanda in white colour having seal of AK and OPT. The seals were unteck with the permission of the court and after opening the white pullanda found containing one polythene having some brown material. After looking at the brown material, witness correctly identified the same as which was recovered from the accused. Other envelope in yellow colour found contained other brown material. After looking at the same, witness correctly identified it. The case properties were already exhibited as Ex. P-1 (Colly.) in the testimony of PW-2.
7. PW-4 ASI Shakeel Ahmed had deposed that on 10.08.2016 he was posted at PS Timar Pur as HC and was working as MHC(M). On that day SHO called him and gave two sealed pullanda containing the case property and in that regard he made the entry in register no. 19 against Sl. No. 2632. On 12.09.2016 the samples were ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2020.12.19 12:05:03 +05'30' FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 5 of 15 sent to FSL through Ct. Anand vide RC No. 34/21/16 in sealed condition. The said road certificate was placed on record was Mark X. The concerned result was obtained on 10.03.2017 through Ct. Laxman and same was handed over to ASI Ashok Kumar. As long as the case property remained in his possession it was not tampered in any manner. He had brought the original register no. 19 and photocopy of the relevant entry exhibited as Ex. PW.1/4 He had also brought the case property which was already exhibited as EX. P.1 (colly). During cross- examination by ld. Counsel for the accused, he had deposed that SHO called him on the said day at around 12:30 p.m. The key of the said malkhana was always remained with him. He denied the suggestion that he was not on duty on that day.
8. PW. 5 ASI Mahesh Tyagi had deposed that he was working in the aforesaid office since June, 2018. He was summoned witness today and brought the original notice u/s 57 NDPS Act in present case alongwith register wherein the entry of the same was made. The copy of the said notice EX.PW5/A(OSR) and entry regarding the above notice was made on dated 11.08.2016 in register maintained for the same vide entry no.5740 ACP/CL of the date in the office of ACP which was EX.PW5/B(OSR).
9. PW. 6 Ct. Anand Prakash had deposed that on 12.09.2016, he was posted at PS. Timarpur as constable and on that day, he was present at PS. On that day, IO ASI Ashok Kumar handed over to him one road certificate for depositing the sample in present case in FSL, Rohini and then he went to the MHCM, CP and handed over to him the documents in present FIR and asked him to hand over to him parcel in present case and then MHCM handed over to him the sample/parcel duly sealed with the seal of AK bearing the particulars of the present case along with road certificate no.34/21/16 and FSL form for depositing the same in FSL Rohini. He went alongwith aforesaid sample and documents to the FSL Rohini and got deposited the same there and obtained the receipt and thereafter, he returned to PS and handed over the receipt to MHCM, CP to deposit the same in his record. He did not tamper with the sample or with the parcel during the period when it was in his custody. He brought original road certificate bearing no. 34/21/16. The copy of said certificate was EX.PW6/A(OSR). The copy of acknowledgment from FSL was EX.PW6/B bearing my signature at point A. IO recorded his statement u/s 161 Cr.P.C. During cross-examination by Ld. Counsel for accused he stated that the road certificate and sample was handed over to him by MHCM at about 11 am. The entry in that regard is made on road certificate. At the time when he received sample it was in sealed condition. he went to FSL for depositing sample ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2020.12.19 12:05:24 +05'30' FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 6 of 15 on auto rickshaw and reached at about 12 noon. The case property was deposited in FSL and it was received by the dealing clerk of the FSL, Rohini, however, he did not know the name of that person. he returned back at PS at about 3 pm. He denied the suggestion that he did not take the sample for depositing in Rohini. He denied the suggestion that he was deposing falsely at the instance of IO. He also denied that there was tampering with the sample during the period of investigation or that the road certificate was anti-dated or that the sample were in unsealed condition.
10.PW-7 SI Ashok Kumar had deposed that on 09.08.2016, he was posted as ASI at PS Timarpur. On receipt of DD No. 34-A Ex. PW7/A regarding apprehension of one Nigerian at Gandhi Vihar, beside CNG pump he along with Ct. Sunny reached at the spot i.e. behind CNG Pump, Gandhi Vihar, Delhi, where, they met constable Bacche Singh who had already apprehended one Nigerian person namely Anyika Okechukwu Mike (present in the Court on that day was correctly identified by the witness). Ct. Bachhe also produced one white colour polythene containing ganja. Thereafter, he recorded the statement of Ct. Bacche Singh which was already Ex. PW-2/A attested by him at point B. Thereafter, he asked four to five public persons to join the investigation, however, none had agreed and left the spot without disclosing their name and addresses. Thereafter, he served notice under Section 50 NDPS Act already exhibited as Ex. PW-2/B bearing his signature at point B to the accused. He had read over the contents of notice to the accused. Accused also read the notice himself and signed on the notice. Accused also gave his reply on the said notice which was Ex. PW-7/B bearing his signature at point A. He told the accused to get his personal search in presence of Gazetted Officer or a Magistrate, however, accused denied the same. Thereafter, ganja was taken out from the polythene and measured on a electronic weighing machine and found having weight of 165 gms. Thereafter, he separated 50 gms of ganja as a sample and kept the remaining 115 gms into the polythene. Sample ganja was sealed in a white pullinda with the seal of 'AK'. He also sealed the polythene containing 115 gms in a white pullinda sealed with the seal of 'AK'. Sample was given S.No. A-1 and case property was given S.No. A. Thereafter, he prepared the seizure memo of the case property and sample and seized the same vide seizure memo already Ex. PW-2/C bearing his signature at point B. FSL form was also filled up at the spot. Copy of the same was marked as Mark A bearing his signature at point A. Seal after use was handed over to Ct. Bacche Singh as mentioned in seizure memo. At that time, FIR Number was surfaced on the documents.Thereafter, he prepared rukka which was Ex. PW-7/C bearing his signature at point A and same was ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2020.12.19 12:05:44 +05'30' FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 7 of 15 handed over to Ct. Sunny for registration of FIR. He also handed over the sealed exhibit, FSL form and carbon copy of seizure memo for producing the same before the SHO concerned. Accordingly, he went to PS for registration of FIR. After registration of FIR, Ct. Sunny came back at the spot and handed over to him copy of FIR and original rukka. He prepared site plan of the spot at the instance of Ct. Bacche Singh which was Ex.PW-7/D bearing his signature at point A. Thereafter, he arrested the accused at the spot vide arrest memo already Ex. PW- 2/D and conducted his personal search which was already Ex. PW-2/E both bearing his signature at point B respectively. Thereafter, they came back to the PS with the accused. Accused was medically examined and produced before the concerned Court. Accused was sent to JC by the Court.
11.The accused was not having the passport and he could not produce the same during investigation. Accordingly, after discussing with senior officers, Section 14 Foreigners Act was added. He had also obtained the copy of passport with visa of Anyika Okechu KwuMike from the property dealer namely Sunil Babbar on the orders of the Court. The visa was found expired and was valid till 15.7.2016. He prepared the seizure memo of photocopy of passport which was Ex. PW-7/E bearing his signature at point A. Copy of passport having Visa was Ex. PW-7/E-1. He had also deposited the exhibits in FSL, Rohini, for obtaining opinion. Thereafter, he filed the chargesheet under Section 20 NDPS Act and 14 Foreigners Act against the accused before the Court. Thereafter, during investigation, he verified the passport of accused Anyika Okechukwu Mike from the High Commission of Nigeria through MHA and MEA by his request Ex. PW-7/F and Ex. PW-7/G both bearing his signature at point A respectively. Thereafter, he had received the report in the PS from High Commission of Nigeria in which it was informed the Commission is unable to determine the genuineness of passport on the basis of photocopy provided and for want of original passport. The verification report was marked as Mark B. During investigation, he received a letter dated 17.10.2016 from Section Officer, MEA which was marked as Mark C in which verification report vide email dated 14.10.2016 from High Commission of India, Lagos was annexed. As per the email it was certified that the Indian Visa Number VI6075498 on passport number A05131202 was not issued to the holder of the passport i.e. the accused Anyika Okechukwu Mike. The email was marked as Mark D. Thereafter, he added Section 468/471 IPC and filed the supplementary chargesheet before the Court. He had also placed on record DD No. 35-A and DD No. 36-A which are marked as Mark E and Mark F. He had also given intimation to ACP of arrest of accused and seizure of case property under Section 57 NDPS ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2020.12.19 12:06:12 +05'30' FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 8 of 15 Act which was Ex. PW-7/H bearing his signature at point A. He had also given intimation under Section 14 Foreigners Act regarding arrest of accused to the Consulate, Nigerian Embassy. The said intimation was Ex. PW-7/I bearing his signature at point A. He had also made request to verify the Visa of accused Anyika Okechu KwuMike to Consulate, Nigerian Embassy and DCP, FRRO which was Ex. PW-7/K and Ex. PW-7/L. On 14.03.2017, he had filed the FSL report before the Court. As per report of FSL, the exhibits were found to be ganja. The same was Ex. PW-7/M. The case property had already been exhibited in the testimony of PW-2 HC Bacche Singh. Same was already Ex. P-1 (collectively).
12.During cross-examination by Sh. Anup Kumar Gupta, Ld. counsel for the accused he stated that he received DD No. 34-A at about 8:55 pm. He had not shown the above said DD No. 34-A to his senior officer. He had not sought any permission from his senior officer to investigate the present case under Section 42 of NDPS Act. He reached at the spot at about 9:15 pm through his two wheeler scooter along with Ct. Sunny. No notice was served upon the public person who refused to join the investigation and he had noted down their name, addresses and mobile number. He admitted the suggestion that residential colony is situated 50 meter away from the spot and he did not try to call any public person from that residential colony to be witness of search and seizure proceedings. He admitted that before search of the accused, he did not call ACP/gazetted officer at the spot to be the witness of search of the accused. He remained at the spot for about 5 hours. He admitted that after registration of FIR, the investigation of the present case was not handed over to any other IO. He filled only single FSL form. Seal was return to him by Ct. Bacche Singh on the same day. No handing over or taking over memo was prepared in respect of seal. In his office they were not maintaining seal movement register. He had not made entry in the register while taking weighing machine from malkhana. Vol. he was keeping weighing machine personally. The weighing machine was taken from some other IO but he could not tell the name of said IO. During that 5 hours proceedings till he remained at the spot, no person passed through the spot. SHO had not visited the place during that period. He had not called or received any call from SHO or ACP. He did not remember how many seals he put on the sample. Ct. Sunny left the spot for registration of FIR at about 11:15 pm and came back at the spot at around 1:30 am. he had not obtained the signature of Ct. Bacche Singh as a token that same was prepared at his instance. He had not informed the accused before giving him notice under Section 50 NDPS Act that he could take search of his scooter. He could not repeat the English words in which he gave notice to accused and made ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2020.12.19 12:06:34 +05'30' FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 9 of 15 him understand his rights. He could not communicate in English. Vol. SI Ganpati was called at the spot for communicating with accused in English language vide DD No. 35-A. He had not recorded the statement of SI Ganpati in this regard. He admitted that he had also not made him witness in the present case. He denied the suggestion that nothing had been recovered from the possession of accused in his presence. He also denied the suggestion that the signature of accused were obtained on the blank, semi-written and semi printed papers or that under threat, coercion and beating accused was ask to copy some writing given to him by them on some plain paper and subsequently those documents were manipulated in order to falsely implicate the accused in the present case. He deied that no notice under Section 50 NDPS Act was ever given to accused. He had not obtained the signature of SI Ganpati on notice under Section 50 NDPS Act.
13. He denied that he had not given any report of seizure and arrest of accused under Section 57 of NDPS Act to ACP. He admitted that he had not given notice under Section 57 of NDPS Act which is Ex. PW-7/H to ACP. He admitted that he had not obtained arrival-departure details of accused from FRRO. He had also not obtained IVFRT form from FRRO. He admitted that he had not made the officials of FRRO as a witness in the present case. He had also not made the personnel of Embassy witness in the present case. He denied the suggestion that he had not informed regarding arrest of accused to Embassy or to FRRO. He admitted that he had not invoked the provisions of Passport Act in the present case. He had not investigated the present case regarding the source of aforesaid ganja and recipient of the aforesaid ganja. He did not investigate regarding last received call from the mobile phone of accused. He admitted that he did not obtain CDR of the accused mobile from its service provider. He denied the suggestion that accused had been arrested in the present case on the issue of Passport and Visa and subsequently he had been falsely implicated in the present case when he could not accede to their demand. He denied that he did not fairly investigate the present case. After arrest of the accused, in order to comply with Section 52 of NDPS Act, he did not produce the accused before his senior officer in the present case. He denied that he was deposing falsely.
14. During his statement u/s 294 Cr.P.C dated 13.03.2020 the accused admitted and did not dispute the genuineness and correctness of FSL reports dated 23.09.2016 Ex. PA-1, report regarding verification of Visa dated 17.10.2016 issued by Anil Kant Sharma, Section Officer, CPV Division, MEA, Delhi which was Ex. PA-2 and DD No. 6A dated 11.08.2016 by Inspector O.P. Thakur which was Ex. PA-3 ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2020.12.19 12:06:55 +05'30' FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 10 of 15 without admitting their contents. The PE was closed on 13.03.2020. Statement of accused u/s 313 Cr.P.C was recorded on 20.10.2020. Accused opted not to lead evidence in his defence. Final Arguments were concluded on 01.12.2020. At this stage it is profitable to reproduce in verbatim the penal provisions related to the case:-
The NDPS Act, 1985
20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,--
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,--
(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),-- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
The Foreigners Act, 1946
14. Penalty for contravention of provisions of the Act, etc. -- Whoever. --
(a) remains in any area in India for a period exceeding the period for which the visa was issued to him;
(b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder;
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-
section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him.
Explanation. -- For the purposes of this section, the expression "visa" shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (entry into India) Act, 1920 (34 of 1920). The Indian Penal Code, 1860 S. 471. Using as genuine a forged document or electronic record.--Whoever ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2020.12.19 12:07:15 +05'30' FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 11 of 15 fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
14. I have heard the Ld. APP, Ld. Defence Counsel and also perused the record carefully. My observations are delineated below. The case of the prosecution is that PW-2 HC Bache Singh on 09.08.2016 while on patrolling duty at beat no. 7 of PS Timarpur came across accused who acted suspiciously and upon his cursory search a polythene bag containing material which smelt like ganja was recovered. Chapter 22 Rule 49 of the Punjab Police Rules, 1934 which is reproduced as under:-
"Chapter 22 Rule 49 Matter to be entered in Register no.11. The following matters shall amongst others, be entered :
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at a police station or elsewhere with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term police station will include all places such as Police Lines and Police Posts where Register no.11 is maintained."
In view of this rule, while deposing PW-2 did not tell that by what entry in register no.11, he was patrolling at beat no. 7. Now if PW-2 was on patrolling duty then the prosecution was bound to prove the same by placing on record the duty register of 09.08.2016 and also the relevant departure entry by which PW-2 left the PS for patrolling but for reasons best known to the prosecution the aforesaid record has not been tendered in evidence.
15. As per the original rukka Ex.PW7/C the contraband was seized, sample was drawn and FSL form was duly filled prior to sending of rukka to the PS for registration of FIR but it is quite surprising that the seizure memo of ganja Ex. PW2/C and the FSL form Mark A both bear the FIR no. of the case thus leading to inference that either both these documents were later on tampered with or the same were not prepared till the time the rukka was sent. This raises question mark not only on the correctness of FSL form and seizure memo of ganja but also on the truthfulness of the rukka. The seal used by the IO was handed over to HC Bache Singh but no handing over memo of the seal was prepared and seal was returned to IO on the same day by HC Bache Singh. IO in his cross-examination admitted that no record is kept regarding the movement and handing over of the seal. The whole purpose of handing over the seal (after sealing the case property) ANURAG Digitally signed by ANURAG THAKUR THAKUR 12:07:34 +05'30' Date: 2020.12.19 FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 12 of 15 to other police person gets defeated if the timing of handing over of seal and the timing of its return are not recorded as the chance of tampering with sealed case property by IO cannot be excluded. Doubts start creeping into the case of the prosecution.
16. The accused was allegedly apprehended near CNG petrol pump, Gandhi Nagar at about 08:30 pm and it has also come in evidence that the public persons were available at the spot, yet HC Bache Singh did not even bother to ask any of the public witnesses to join the investigation before making a cursory search of the accused. Not only this, even the IO SI Ashok Kumar did not make sincere and diligent efforts to make public persons join the investigation despite admitting that public persons gathered at the spot. He also admitted in his cross-examination that residential colony is situated at a distance of 50 meters from the spot of incident. The IO in his cross-examination revealed that he asked the public persons to join the investigation but they refused and he had not noted down their names, addresses and mobile numbers. This casual approach of police officials in making feeble attempts to join public persons as witnesses in the case is beyond the comprehension of this court but the benefit, if any of such omission must accrue to the accused. It has been held by High Court of Delhi in Rattan Lal v. State of Delhi Criminal Appeal no. 111 of 1986 decided on 10.03.1987 as under:-
I personally feel that the learned Counsel for the appellant is justified in raising these contentions. In view of the nature of punishment provided for the offence under the NDPS Act the Legislature has deliberately made certain provisions to afford safeguards so that innocent persons are not harassed, if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. In the case in hand the seizure and the arrest have been made under Section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by Sub-section (4) of Section 100 Cr.P.C. The explanation offered is that public witnesses were requested but they declined to co- operate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to co-operate without reasonable cause in spite of an order in writing, to witness the seizure and search, he will be deemed to have com - mitted an offence under Section 187, IPC and this has been clearly spelt out in Sub- section (8) of section 100 Cr.P.C. In the present case there is a vauge explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards. ANURAG Digitally signed by ANURAG THAKUR THAKUR 12:07:54 +05'30' Date: 2020.12.19 FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 13 of 15 This failure to join public witnesses despite their presence creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
17. Numerous questions have been asked by ld. defence counsel from IO regarding the service of notice u/s 50 NDPS Act to the accused. The present case is of chance recovery of contraband and not one of receiving a prior information regarding presence of contraband at some place, hence the requirement of giving notice to the accused under section 50 NDPS Act stands obviated. I am supported in my view by the judgment of Apex court in the case of State Of Punjab vs Balbir Singh 1994 AIR 1872 :-
25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
From a reading of the aforementioned observation it also follows that after the chance recovery of contraband has been made then from that stage onward provisions of NDPS Act shall be strictly adhered to which was not done in the present matter. Section 52A (2) NDPS Act which specifies for making an application to a magistrate for purpose of certifying correctness of inventory prepared by IO, taking of photographs of contraband and drawing of representative samples has not been complied with. Regarding the mandatory nature of section 52A (2) NDPS Act the Supreme Court in the case of Union of India v. Mohanlal & Another order dated 28 January, 2016 Criminal Appeal no.652 of 2012 held that:
13. It is manifest from Section 52A (2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so ANURAG Digitally signed by ANURAG THAKUR THAKUR 12:08:14 +05'30' Date: 2020.12.19 FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 14 of 15 drawn. Sub-section (3) of Section 52- A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial...........
14...........................There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52A (supra)...............
The requisite application under section 52A (2) NDPS Act was not made and this omission further raises questions on the drawing of sample by the IO especially when the seizure memo of ganja is suspicious and one of the police witnesses PW-3 Ct. Sunny has disowned the same by denying the suggestion given by the ld. APP for state that the contraband was weighed and samples were drawn at the spot in his presence. During cross-examination the IO of the case conceded that he could not communicate in English and he called SI Ganpati for communicating with the accused in English. SI Ganpati has not even been cited as a witness in this case. No written record of communication between SI Ganpati and accused is tendered in evidence. The said SI Ganpati has not signed any of the important documents like notice u/s 50 NDPS Act, seizure memo of ganja, arrest memo of accused and personal search memo of accused. It intrigues this court as to how the aforementioned memos were prepared and proceedings were conducted by the IO without the ability to communicate with the accused and to make him understand his rights and the nature of proceedings.
18. The accused is also facing trial u/s 471 IPC for use of a forged visa of Republic of ANURAG Digitally signed by ANURAG THAKUR THAKUR 12:08:35 +05'30' Date: 2020.12.19 FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur Page 15 of 15 India. In his testimony the IO stated that the accused could not produce his passport during investigation. He also disclosed that he obtained the copy of passport with visa of accused from property dealer viz. Sunil Babbar. The original passport and visa have not even been produced before this court during trial. It has not even been explained as to how property dealer Sunil Babbar came in possession of the photocopy of passport and visa produced during trial. Sunil Babbar has not been examined as a witness by the prosecution to fortify its case. Nobody has testified before this court that the forged visa was used by the accused for any purpose whatsoever, even the name of the forger is not known.
19. To conclude, it is a matter of fact that the accused is a foreign national and he till date has not been able to produce a valid visa for his stay in India on the date of incident i.e. 09.08.2016. As per section 106 of the Indian Evidence Act, 1872 the onus of proof to show that the accused had a valid visa to stay in India on 09.08.2016 was on him which he miserably failed to discharge. Hence he is convicted for the offence u/s 14 of the Foreigners Act, 1946. There is no evidence on record to prove beyond reasonable doubt that the accused committed offence punishable u/s 471 IPC. The evidence is also grossly insufficient to record the finding of guilt of the accused u/s 20 NDPS Act, 1985, especially taking into consideration the shoddy nature of investigation carried out. Resultantly, the accused is acquitted of the offence u/s 471 IPC and section 20 NDPS Act.
Announced in the open court
ANURAG Digitally signed by
ANURAG THAKUR
today i.e. on 19th December, 2020 THAKUR Date: 2020.12.19
12:08:57 +05'30'
(ANURAG THAKUR)
METROPOLITAN MAGISTRATE -02
TIS HAZARI COURTS, DELHI
This judgment consists of 15 pages
and each and every page of this
judgment is signed by me.
FIR No. 359/16 State vs. Anyika Okechukwu Mike PS Timar Pur