Delhi District Court
State vs . Jackson Nwaobiara Obinna, on 15 April, 2017
IN THE COURT OF SH. SANJAY GARG, SPECIAL JUDGE
(NDPS), DWARKA COURTS, NEW DELHI.
Sessions Case No. 440964/2016
State Vs. Jackson Nwaobiara Obinna,
S/o Sh. Obinna,
R/o Naini Park,
Matiala, Uttam Nagar,
New Delhi.
Permanent resident of Abia State,
Nigeria.
FIR No. : 205/2012
Police Station : Crime Branch
Under Section : 22 NDPS Act
Date of presentation of charge sheet : 29.09.2012
Date on which judgment was reserved : 01.04.2017
Date on which judgment was pronounced : 15.04.2017
JUDGMENT:
1. The case of the prosecution is that on 04.08.2012 at about 1.45 p.m., a secret informer came to Narcotics Cell, Shakarpur and informed SI Sunil Jain that a Nigerian national namely Ken, resident of Uttam Nagar, Delhi, who was involved in supply of party drug namely Ecstacy to young boys and girls in Delhi and Gurgaon, would come at the bus stop of Sector3/4, Dwarka, Opposite Dakshiyanan Group Housing Society, New Delhi between 4 p.m. to 4.30 p.m. for supplying Ecstacy tablets to one Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 1/22 Yashpal @ Garry. SI Sunil Jain recorded the secret information vide DD No. 16 at about 2.15 p.m. He produced the secret informer before Inspector Vivek Pathak and handed over a copy of DD No.16 to him. Inspector Vivek Pathak forwarded the copy of the said DD to ACP Bir Singh and directed SI Sunil Jain to conduct raid. Accordingly, SI Sunil Jain organized a raiding team consisting of himself, HC Om Prakash, HC Mukesh Kumar, HC Mahesh and Constable Kheta Ram. The raiding team left the office of Narcotics Cell alongwith secret informer at about 2.30 p.m. in a government vehicle No. DL 1 CM 4228. They reached at the bus stop of Sector3/4, Dwarka at about 3.45 p.m. On the way as well as at the spot, public persons were asked to join the proceedings but they refused to do so. At about 4.10 p.m., a man was seen coming on foot from the side of red light of Sector3/4, Dwarka and the secret informer identified him as Ken. After reaching the spot, he waited for some one for about 34 minutes. When he started leaving the spot, the raiding team apprehended him. SI Sunil Jain introduced himself and raiding team members to the accused. On inquiry, the accused disclosed his name as Jackson Nwaobiara Obinna @ Ken. Secret information was disclosed to the accused and he was apprised about his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. He was also served with a notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act).
Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 2/22However, the accused declined to avail the same. Thereafter, SI Sunil Jain took search of the accused and a milky coloured polythene bag containing 150 tablets of light green colour were recovered from the left side pocket of his pant. A little portion of few tablets was tested with the help of drug testing kit, which gave positive result for Ecstacy/MDMA. Upon weighing the tablets recovered from the possession of accused, the weight thereof was found to be 44 grams. Two samples of 5 tablets each were drawn therefrom and converted into two parcels Mark A and B. The remaining tablets were kept in a separate parcel Mark C. FSL form was filled. All the aforesaid parcels were sealed by SI Sunil Jain with his seal '3B PS NB DELHI' and were seized. Rukka was prepared and on the basis thereof, FIR No. 205/12 under Section 22 NDPS Act was registered at P.S. Crime Branch, Malviya Nagar. The case property was also sent to the SHO Inspector C.R. Meena, who deposited the same in malkhana after affixing his seal 'CRM'. After the registration of FIR, the investigation of the case was entrusted to ASI Devender Singh, who reached the spot at about 11.45 p.m. The accused was arrested by ASI Devender Singh and his personal search was conducted. Site plan was prepared and statements of witnesses were recorded. Reports under Section 57 NDPS Act were prepared and sent to ACP. The disclosure statement of accused was also recorded. In his disclosure statement, the accused stated that he had purchased the contraband Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 3/22 from one Lucky, a Nigerian national. However, the whereabouts of the said Lucky could not be traced. The sample of the recovered substance was sent to FSL for chemical examination. During investigation, it was revealed that the visa of the accused was forged and his stay in India was unauthorised. After completion of investigation, the charge sheet was filed.
2. On 19.11.2012, the charge for the offences under Section 22 NDPS Act, Sections 468/471 IPC and Section 14 Foreigners Act was framed against the accused. The accused pleaded not guilty and claimed trial.
3. The prosecution examined 11 witnesses in support of its case. 3.1. PW1 HC Jaipal Singh is the duty officer. He proved the copy of FIR as Ex.PW1/A; his endorsement on the rukka as Ex.PW1/B and the copies of DD Nos. 22 and 24 regarding the initiation of recording of FIR and its completion as Ex.PW1/C and Ex.PW1/D respectively.
3.2. PW2 SI Sunil Jain is the first investigating officer of the case. He proved the copy of DD No. 16 recorded by him regarding the receipt of secret information as Ex.PW2/A; the copy of DD No. 17 recorded by him regarding departure of raiding team from the office of Narcotics Cell as Ex.PW2/B; the original notice under Section 50 NDPS Act prepared by him as Ex.PW2/C; the seizure memo in respect of recovered substance, samples and FSL form as Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 4/22 Ex.PW2/D; the site plan prepared by ASI Devender Singh at his instance as Ex.PW2/E; the arrest memo of the accused prepared by ASI Devender Singh as Ex.PW2/F; the personal search memo of the accused prepared by ASI Devender Singh as Ex.PW2/G; the disclosure statement of the accused recorded by ASI Devender Singh as Ex.PW2/H and the report under Section 57 NDPS Act prepared by him regarding the seizure of Ecstacy tablets as Ex.PW2/I. He also identified the accused and the case property produced in the court.
3.3. PW3 HC Laxman Prasad deposed that on the instructions of SHO, Narcotics Cell, he had taken the sealed sample parcel Mark A alongwith FSL form from MHC(M), P.S. Crime Branch and deposited the same with FSL, Rohini on 09.08.2012. 3.4. PW4 Inspector C.R. Meena is the SHO, P.S. Crime Branch, Malviya Nagar. He proved the copy of DD No. 23 dated 04.08.2012 regarding the deposit of three sealed parcels, FSL form and carbon copy of seizure memo in the malkhana by him as Ex.PW4/A. 3.5. PW5 HC Jag Narain is the MHC(M). He proved the copy of entry made by him at serial No. 1613 in register No. 19 in respect of deposit of three sealed parcels alongwith FSL form and carbon copy of seizure memo in the malkhana as Ex.PW5/A; the copy of road certificate No. 503/21/12 vide which the sample parcel Mark A alongwith FSL form was sent to FSL, Rohini through HC Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 5/22 Laxman Prasad as Ex.PW5/B and the copy of acknowledgment issued by the laboratory regarding the deposit of sample parcel as Ex.PW3/DX.
3.6. PW6 HC Om Prakash was one of the members of raiding team.
Besides corroborating the documents already proved by PW2 SI Sunil Jain, he proved the reply of accused recorded on the original notice under Section 50 NDPS Act as Ex.PW6/A. He also identified the accused and the case property produced in the court. 3.7. PW7 ASI Om Prakash is the Reader to ACP, Narcotics Cell, Shakarpur, Delhi. He proved the copy of DD No. 16 forwarded by Inspector Vivek Pathak to ACP regarding the receipt of secret information as Ex.PW7/A; the reports under Section 57 NDPS Act regarding the seizure of contraband and arrest of accused received in the office of ACP as Ex.PW7/B and Ex.PW7/C respectively; the entry dated 04.08.2012 made by him in the correspondence register regarding the receipt of DD No. 16 as Ex.PW7/D and the entries dated 05.08.2012 made by him regarding the receipt of reports under Section 57 NDPS Act as Ex.PW7/E (collectively). 3.8. PW8 HC Mukesh Kumar was also a member of raiding team and deposed regarding the proceedings conducted in his presence. He corroborated the documents already proved by PW2 SI Sunil Jain and PW6 HC Om Prakash. He also identified the accused and the case property produced in the court.
3.9. PW9 Inspector Vivek Pathak deposed that on 04.08.2012 at about Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 6/22 2 p.m., SI Sunil Jain produced the secret informer before him. He informed about the secret information to ACP and directed SI Sunil Jain to conduct raid. He proved the copy of DD No. 16 recorded by SI Sunil Jain regarding the receipt of secret information as Ex.PW7/A; the report under Section 57 NDPS Act regarding the seizure of Ecstacy tablets prepared and submitted to him by SI Sunil Jain as Ex.PW7/B and the report under Section 57 NDPS Act regarding the arrest of accused prepared and submitted to him by ASI Devender Singh as Ex.PW7/C. He deposed that the copies of DD No.16 and reports under Section 57 NDPS Act were forwarded by him to the ACP, Narcotics Cell. 3.10. PW10 Sh. Bhopal Dutt, Superintendent, PVII Section, Ministry of External Affairs, appeared on behalf of Ms. Deepa Jain, who had worked as Section Officer in the Ministry of External Affairs during the relevant period. He proved the letter dated 17.09.2012 written by Ms. Deepa Jain to the High Commission of India, Abuja regarding the verification of genuineness of visa of the accused as Ex.PW10/A; the report received from the High Commission of India, Abuja in response to the said letter as Ex.PW10/B and the forwarding letter of Ms. Deepa Jain whereby the said report was forwarded to Inspector Vivek Pathak as Ex.PW10/C. 3.11. PW11 SI Devender Singh (then ASI) is the second investigating officer of the case. In addition to the documents already proved on record, he proved the report of FSL as Ex.PX.
Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 7/224. The statement of the accused under Section 313 Cr.P.C. was recorded on 14.03.2017 wherein all the incriminating evidence was put to him to which his stand was of general denial. The accused pleaded innocence. He stated that on 04.08.2012 at about 2 p.m., when he was sitting in a car alongwith his Indian friend namely Sh. Amit near Sarita Vihar Metro Station, Delhi, the police forcibly took him and his friend to the police station and while his friend was released after giving beatings, he was falsely involved in the present case. However, he did not lead any evidence in his defence.
5. I have heard the Addl. PP for the State and the counsel for the accused. The material on record has also been perused.
6. The counsel for the accused has submitted that the accused has been falsely implicated in the case and he was not even present at the spot. He has stated that the police had picked the accused while he was sitting in a car with his friend near Sarita Vihar Metro Station and no recovery was effected from him. He has argued that the alleged recovery of the contraband had been planted upon the accused. He has also argued that nonjoinder of public witnesses in the investigation casts a serious doubt on the version of the prosecution.
On the other hand, the APP has argued that the case of the Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 8/22 prosecution has been duly proved by the prosecution witnesses. He has contended that the testimony of the police officials can not be treated with suspicion merely because no public witnesses were joined in the investigation. He has submitted that ordinarily, the public at large show their disinclination to come forward to become witnesses and in case the depositions of the police officials are found to be trustworthy, the court should rely upon the same. 6.1. It is trite that nonjoining of public witnesses itself can not become a ground for acquittal if the case of prosecution is otherwise reliable. In State of Haryana v. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses suffers from any infirmity. The case of the prosecution can not be held to be vulnerable for non examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution can not be disbelieved. This position was reaffirmed by the Apex Court in State, Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652, wherein it was held that :
"... Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 9/22 police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
6.2. The case of the prosecution is that upon receiving a secret information on 04.08.2012 at about 1.45 p.m. to the effect that a Nigerian national namely Ken, resident of Uttam Nagar, who used to deal in drug namely Ecstacy, would come at the bus stop of Sector3/4, Dwarka between 4 p.m. to 4.30 p.m. for supplying contraband to one Yashpal @ Garry, SI Sunil Jain apprised about the same to Sh. Vivek Pathak, Inspector, Narcotics Cell. Inspector Vivek Pathak, who has been examined as PW9, has deposed that on 04.08.2012 at about 2 p.m., SI Sunil Jain had produced the secret informer before him and after being satisfied with the secret information, he intimated ACP, Narcotics Cell regarding the same and directed SI Sunil Jain to conduct raid. Accordingly, a raiding team comprising of SI Sunil Jain, HC Om Prakash, HC Mukesh Kumar, HC Mahesh and Constable Kheta Ram was constituted. The prosecution has examined SI Sunil Jain, HC Om Prakash and HC Mukesh Kumar as PW2, PW6 and PW8 respectively. All of them have deposed that the raiding team left the office of Narcotics Cell alongwith secret informer at about 2.30 p.m. in a government vehicle after recording its departure vide DD No. 17 (Ex.PW2/B) and reached the spot i.e. bus stop of Sector3/4, Dwarka at about Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 10/22 3.45 p.m. At about 4.10 p.m., a man was seen coming on foot from the side of red light of Sector3/4, Dwarka and the secret informer identified him as the accused. After reaching the spot, the accused waited for some one for about 34 minutes and when he started leaving the spot, the raiding team apprehended him. On inquiry, the accused disclosed his name as Jackson Nwaobiara Obinna @ Ken. A notice under Section 50 NDPS Act was served upon the accused but he refused to avail the same. SI Sunil Jain requested some of the public persons, who had gathered at the spot, to join the proceedings but they refused to cooperate. Thereafter, the search of the accused was taken and a polythene bag containing 150 tablets of light green colour were recovered from the left side pocket of his pant. Upon testing and weighing, the tablets were found to be 44 grams of Ecstacy/MDMA. The witnesses have stated that the contraband recovered from the possession of accused was seized and they proved the seizure memo as Ex.PW2/D. The prosecution has examined the duty officer HC Jaipal Singh as PW1, who has proved the FIR as Ex.PW1/A. SI Devender Singh (then ASI) to whom the further investigation was assigned has been examined as PW11. He has deposed that upon being entrusted with the investigation of the case, he went to the spot and arrested the accused, who was produced before him by SI Sunil Jain. He has proved the arrest and personal search memos of the accused as Ex.PW2/F and Ex.PW2/G respectively. The above Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 11/22 witnesses were crossexamined by the accused but he could not dent their testimonies and elicit anything material from them.
The counsel for the accused has contended that since the secret information regarding drug peddling had been received against one Ken and the name of the accused is Jackson Nwaobiara Obinna, it is clear that the accused has been falsely implicated in this case. The above contention is devoid of any substance. Had there been any intention on the part of the investigating agency to falsely implicate the accused, they would have certainly mentioned his name as Jackson Nwaobiara Obinna in the secret information instead of Ken. The fact that the name of the accused was mentioned as Ken in the secret information rather shows the genuineness of the version of the prosecution. The material aspect to be taken into consideration is not the name of the suspect as disclosed in the secret information but the fact that upon the apprehension of the accused, the contraband was recovered from his possession. Even otherwise, a perusal of the notice under Section 50 NDPS Act (Ex.PW2/C) shows that the name of the accused had been mentioned therein as 'Jackson Nwaobiara Obinna @ Ken'. The reply (Ex.PW6/A) to the said notice was written by the accused in his own hand at the foot of the notice. In the said reply, the accused had not disputed that he is also known as Ken.
The accused has raised the defence that on 04.08.2012 at Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 12/22 about 2 p.m., when he was sitting in a car alongwith his Indian friend namely Sh. Amit near Sarita Vihar Metro Station, Delhi, the police forcibly took him and his friend to the police station and while his friend was released after giving beatings, he was falsely involved in the present case. In his statement under Section 313 Cr.P.C., he has reiterated the above defence and has also claimed that after being apprehended, the police had taken him to his residence and seized many valuable articles including his mobile phone. In order to prove the apprehension of the accused from the bus stop of Sector3/4, Dwarka, the prosecution has examined PW2 SI Sunil Jain, PW6 HC Om Prakash and PW8 HC Mukesh Kumar. The accused had not put his defence to the above witnesses in their crossexamination. On 09.03.2015, an application under Section 311 Cr.P.C. was preferred by the prosecution for recalling PW2 SI Sunil Jain for the limited purpose of proving the rukka prepared by him. The said application was allowed and pursuant thereto, PW2 SI Sunil Jain was again examined on 14.05.2015. It was only on the said date that the above defence of the accused was for the first time put to the witness. Considering the same, it appears that the defence raised by the accused at the belated stage is merely an afterthought. Further, the accused has not led any evidence to substantiate his defence. Neither he has examined his friend Sh. Amit nor any witness from his neighbourhood in his defence. The accused also did not lodge any complaint to any Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 13/22 authority in respect of his false implication in the present case. Since no material has been brought on record by the accused to discredit the case of the prosecution, the defence raised by him does not inspire any confidence. It is not the case of the accused that the police officials had any enmity against him. In the absence of animosity, it is hard to believe that the police would falsely implicate the accused in such a serious case by planting a huge quantity of contraband on him. Considering the material on record, the nonjoinder of independent public witnesses does not cast any doubt on the case of the prosecution and thus the version of the prosecution regarding the apprehension of the accused from the spot and seizure of the contraband from him stands proved.
7. The counsel for the accused has next contended that there was delay of five days in sending the sample parcel to the laboratory which is against the NCB guidelines and thus the same should be read against the prosecution. He has submitted that the sample needs to be sent to the FSL without delay and if the sample was dispatched with delay and no explanation was given, tampering with the sample should be inferred.
7.1. It is a settled law that to safeguard the possible tampering, the sample should be sent to the laboratory at the earliest, preferably within 72 hours, and in case of delay, the onus is on the prosecution to show that there was no tampering with the case Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 14/22 property and the samples. In the event of doubt, the benefit has to be given to the accused, however, if the prosecution satisfies that there was no tempering, the delay is to be ignored. 7.2. The prosecution has completed the link evidence in this case by examining all the material witnesses, namely, HC Mukesh Kumar (PW8), who took the case property alongwith rukka from the spot to the police station; Inspector C.R. Meena (PW4) to whom the case property was handed over by HC Mukesh Kumar in the police station; the MHC(M) HC Jag Narain (PW5) to whom the case property was handed over by Inspector C.R. Meena while depositing it in the malkhana and HC Laxman Prasad (PW3), who took the sample parcel Mark A alongwith FSL form to the laboratory from the malkhana.
7.3. PW8 HC Mukesh Kumar has deposed that after the seizure of 150 tablets of Ecstacy/MDMA recovered from the possession of accused, two samples of 5 tablets each were drawn therefrom and SI Sunil Jain sealed all the three parcels Mark A, B and C with his seal '3B PS NB DELHI', filled the FSL form, affixed sample seal on the FSL form and handed over the seal to HC Om Prakash (PW6). PW4 Inspector C.R. Meena deposed that upon receipt of three sealed parcels and FSL form from HC Mukesh Kumar, he affixed his seal 'CRM' on them. PW5 MHC(M) HC Jag Narain has proved the entry made by him at serial No. 1613 in register No. 19 in respect of deposit of three sealed parcels and FSL form in the Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 15/22 malkhana by Inspector C.R. Meena as Ex.PW5/A. PW3 HC Laxman Prasad has corroborated the testimonies of above witnesses and deposed that when he had taken sample parcel Mark A and FSL form from malkhana to laboratory, the same were sealed with the seal of '3B PS NB DELHI' and 'CRM'. The FSL report (Ex.PX) also specifically records that the seals on the sample parcel Mark A were found intact and tallied with the specimen seals. Thus, the prosecution has proved that the sample parcel Mark A and FSL form remained in safe custody throughout and there was no possibility of the same having been tampered with at any stage of their transfer from one hand to the other.
8. The record reveals that the statutory safeguards as prescribed in Sections 42, 50 and 57 NDPS Act were also complied with by the investigating agency.
8.1. Though Section 42 NDPS Act was not applicable in the present case and the secret information was not required to be reduced in writing as the search, seizure and arrest had been made from a public place but still PW2 SI Sunil Jain complied with the provisions of Section 42 and recorded the secret information on 04.08.2012 at about 2.15 p.m. vide DD No.16. He proved the copy of DD No. 16 as Ex.PW2/A. PW9 Inspector Vivek Pathak has deposed that on 04.08.2012, SI Sunil Jain produced the copy of DD No.16 before him which was forwarded by him to the ACP, Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 16/22 Narcotics Cell. PW7 ASI Om Prakash, Reader to ACP, has proved the copy of DD No.16 received in the office of ACP (Ex.PW7/A) as well as the endorsement dated 04.08.2012 made thereon by the ACP. He has also proved the entry made by him at serial No. 1853 in the correspondence register regarding the receipt of DD No. 16 as Ex.PW7/D. 8.2. Further, PW2 SI Sunil Jain had also served the carbon copy of notice under Section 50 NDPS Act prepared by him upon the accused. PW6 HC Om Prakash and PW8 HC Mukesh Kumar, who were the witnesses to the same, have proved the original notice as Ex.PW2/C. A perusal of the said notice reveals that the accused had been apprised of his right to be searched before a Gazetted Officer or a Magistrate and that before his search, he could take search of raiding team members and their vehicle. PW2, PW6 and PW8 deposed that the accused declined to avail the same and wrote his reply in his own hand at the foot of the original notice. The said reply has been proved as Ex.PW6/A which bears the signatures of accused at point E. Here it is noteworthy that in the personal search of the accused conducted by PW11 SI Devender Singh (then ASI) vide memo Ex.PW2/G, the carbon copy of notice under Section 50 NDPS Act was recovered which has been proved as Ex.P8. The recovery of carbon copy of notice under Section 50 NDPS Act during the personal search of accused clearly proves that the same was duly served upon him. Therefore, the compliance of Section Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 17/22 50 NDPS Act stands established.
8.3. Further, PW9 Inspector Vivek Pathak deposed that the reports under Section 57 NDPS Act regarding seizure and arrest received from SI Sunil Jain and ASI Devender Singh respectively were forwarded by him to ACP, Narcotics Cell. He has proved the copies of said reports as Ex.PW7/B and Ex.PW7/C respectively. The prosecution has also examined PW7 ASI Om Prakash from ACP office, who deposed that the reports of seizure and arrest had been received in the office of ACP and proved the endorsement dated 05.08.2012 made thereon by the ACP. He has also proved the entries made by him at serial Nos. 1859 and 1860 in the correspondence register regarding the receipt of said reports as Ex.PW7/E (collectively). In view of the above, the compliance of the provisions of Section 57 NDPS Act also stands established.
9. Qua the nature and composition of the substance recovered from the accused, the prosecution has placed on record the chemical examination report dated 26.09.2012 received from FSL, Rohini as Ex.PX. PW11 SI Devender Singh has deposed that the report Ex.PX was collected by him from FSL, Rohini. A perusal of the report shows that upon examination of sample parcel Mark A, Sh. M.L. Meena, Senior Scientific Officer (Chemistry) cum Ex.Officio Chemical Examiner had opined that it contained N Methyl3, 4methylenedioxyamphetamine (MDMA). As per the Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 18/22 Central Government Notification bearing No. S.O.1055(E) dated 19.10.2001, MDMA/Ecstacy is a psychotropic substance.
10. The counsel for the accused has argued that since the prosecution has failed to examine the scientific expert from the FSL who had examined the sample parcel, the chemical examination report dated 26.09.2012 has not been proved in accordance with law. The argument is without any merit. Section 293 Cr.P.C. specifically provides that the examination report of any Chemical Examiner to Government may be used as evidence in any inquiry, trial or other proceedings although such officer is not called as a witness. In the present case, the sample parcel was examined by Sh. M.L. Meena, who was working as Senior Scientific Officer (Chemistry), Forensic Science Laboratory cum Ex.Officio Chemical Examiner to the Government of National Capital Territory of Delhi. By virtue of the office held by Sh. M.L. Meena, his report dated 26.09.2012 is per se admissible in evidence and it was not necessary for the prosecution to examine him for proving the same.
11. In the light of above discussion, it is clear that the prosecution has succeeded in proving beyond reasonable doubt that the accused was found in possession of 150 tablets of Ecstacy/MDMA weighing 44 grams. At serial No. 134 of the above mentioned notification dated 19.10.2001, quantity of MDMA/Ecstacy upto 0.5 gms has been Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 19/22 mentioned as small quantity and 10 gms or more amounts to commercial quantity. Since the quantity of MDMA/Ecstacy recovered from the accused falls under commercial quantity, the accused has committed an offence punishable under Section 22(c) of the NDPS Act.
12. An additional charge for the commission of offences under Sections 468/471 IPC and Section 14 of the Foreigners Act was also framed against the accused. As per the case of the prosecution, the original passport of the accused bearing No. A00108286 (valid upto 22.11.2015) having visa No. AF 2434960 (valid for the period 09.11.2011 to 09.11.2012), which was recovered from his personal search, had been sent for verification by Inspector Vivek Pathak to the High Commission of Nigeria, New Delhi and vide letter dated 03.01.2013 issued under the signatures of Sh. A.M. Monguno, the High Commission of Nigeria informed that the passport of the accused was forged. However, the letter dated 03.01.2013 has remained unproved as the prosecution failed to secure the presence of Sh. A.M. Monguno or any other official acquainted with his signatures in the witness box to prove the same. It is further the case of the prosecution that the copy of visa of the accused was also sent by Inspector Vivek Pathak for verification to the Ministry of External Affairs and vide letter dated 17.09.2012 (Ex.PW10/C), Ms. Deepa Jain, Section Officer (PVII), Ministry of External Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 20/22 Affairs had forwarded a report dated 17.09.2012 (Ex.PW10/B) received from the High Commission of India, Abuja to the effect that it had not issued any visa to the accused. The prosecution has examined Sh. Bhopal Dutt, Superintendent, PVII Section, Ministry of External Affairs as PW10, who has identified the signatures of Ms. Deepa Jain on the said forwarding letter and report. However, the report dated 17.09.2012 has not been proved by the prosecution in accordance with law. A perusal of the report shows that the same is under the name of one Sh. S. Mahesh, Attache (Consular), High Commission of India, Abuja but the said official has not been examined by the prosecution. Moreover, the report is a print out of an email and in the absence of certificate under Section 65B of the Indian Evidence Act, the report is inadmissible in evidence. Considering the same, no reliance can be placed upon the report dated 17.09.2012 (Ex.PW10/B). In the facts and circumstances, it is evident that the prosecution has miserably failed to prove that the passport and visa of the accused were forged. As per the visa of the accused available on record, the same was valid upto 09.11.2012. Since the accused was apprehended on 04.08.2012 (i.e. during the validity period of the visa), it can not be said that he was staying in India without any legal authority. Accordingly, the accused is acquitted of the charge under Sections 468/471 IPC and Section 14 of the Foreigners Act.
Sessions Case No. 440964/2016 State Vs. Jackson Nwaobiara Obinna Page No. 21/2213. Resultantly, the accused Jackson Nwaobiara Obinna, who was found in possession of commercial quantity i.e. 44 grams of MDMA/Ecstacy, is convicted for the commission of offence punishable under Section 22(c) of the NDPS Act. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules.
Let the accused be heard on the point of sentence on 19.04.2017 at 2 p.m. Pronounced in the open court. (SANJAY GARG) Dated: 15.04.2017 Special Judge (NDPS), Dwarka Courts, New Delhi.
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