Delhi District Court
Ajmer Singh vs . State Of Haryana (2010) 3 Scc 746, ... on 13 November, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.11/14
FIR No. 75/2014
PS Crime Branch
U/s 21 NDPS Act & Sec.14 Foreigners Act
State
Versus
Okafor Ejike,
S/o Anidebe,
R/o 32, Ogunshi Street Sobo Ikorodu,
Lagos, Nigeria. .......Accused
Date of institution : 03.09.2014
Date of Judgment : 13.11.2014
J U D G M E N T
Okafor Ejike, accused is a foreign national i.e. from Nigeria. He has been facing trial for offence U/s 21 of Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act') and Sec.14 of Foreigners Act, 1946.
2. Accusation levelled against him is that on 08.07.2014, at about 2.35 p.m., when apprehended near metro station Karol Bagh on PUSA road, Delhi, FIR NO.75/14 Page 1 of 20 on the basis of secret information, he was found in possession of 70 gms of cocaine.
He was so apprehended by the party headed by SI Karamveer of Narcotics Cell, Shakarpur. PW4 HC Sudhir Kumar & PW5 Ct. Sonu Tomar were the police officials accompanying the SI at the time of raid. Secret informer was also a member of the raiding party but is said to have left soon after pointing out towards the accused from a distance.
It is case of prosecution that contraband is said to have been recovered from the left side pocket of jeans, which the accused was wearing. From the lot, two samples each of 2 gms were drawn, sealed in two parcels and seized. The residue was also turned into a cloth parcel, sealed and seized. FSL form was filled in and impression of the seal used was affixed on it. After use, seal was handed over to HC Sudhir. Rukka was dispatched from the spot.
Ct. Sonu Tomar, other member of the raiding party took rukka, case property, FSL form and copy of seizure memo from the spot. On reaching PS Crime Branch, he got the case registered and produced items, other than rukka, before the SHO. The SHO affixed his seal on the sealed parcels. Then the case property was deposited with MHC(M). One of the sample parcels was got dispatched to FSL, where its contents were analyzed and found to be cocaine.
3. On completion of investigation, challan was put in court. Copies of FIR NO.75/14 Page 2 of 20 documents relied on by the prosecution were supplied to the accused free of costs U/s 207 Cr.P.C.
Charge
4. Prima facie case having been made out, charge for an offence U/s 21 of the Act was framed against the accused on 29.09.2014. The accused pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following 10 witnesses: PW1 HC Shambhu Nath To prove recording of FIR.
PW2 HC Chand Ram Concerned MHC(M).
PW3 ASI Satbir Singh To prove receipt of information U/s 42 of
the Act and reports U/s 57 of the Act at
the office of ACP.
PW4 HC Sudhir Kumar Member of raiding party and witness to
recovery & arrest.
PW5 Ct. Sonu Tomar Another witness to recovery & arrest.
PW6 ASI Rajbir Singh, Second Who took over after registration of the Investigating Officer case.
PW7 Inspector Kuldeep Singh Under whose directions raiding party was constituted and before whom the accused was produced after his arrest and who forwarded reports U/s 57 of the Act to the office of ACP.
FIR NO.75/14 Page 3 of 20 PW8 Inspector Virender Singh, Who sealed the case property at his office Concerned SHO on its production by Ct. Sonu Tomar at the police station at about 7.00 p.m. and deposited the same with MHC(M).
PW9 SI Karamveer First Investigating Officer of the case. PW10 Ct. Ranbir Who took the sealed sample parcel and other items to FSL, Rohini and deposited the same there on 11.07.2014.
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused denied all the incriminating circumstances regarding recovery, appearing in evidence against him and claimed false implication.
The plea put forth by accused reads as under : "On 07.07.2014, I was arrested in the area of Karol Bagh while I was going to market.
I may mention that on 07.07.2014, one Christopher from Nigeria had called me on mobile phone and asked me to come to Karol Bagh so that I could accompany him for purchase of mobile phone. He asked me to come to metro station Karol Bagh. I accordingly reached near Karol Bagh metro station by riding auto rickshaw. I then called Christopher on mobile phone and told him that I had reached near metro station Karol Bagh. We met each other near metro station Karol Bagh. Immediately, police came there. That is how, I was picked up by the police. Then police took me to the police station. At the police station, they inquired from me if I used to sell any drug. I denied.
I told the police that I knew Christopher when both of us were in Nigeria.
I expressed my anger with Christopher as to why he had called me and as to why I was brought to the police station. Police and FIR NO.75/14 Page 4 of 20 Christopher appear to have conspired and falsely implicated me.
I do not know as to why Christopher conspired with police against me. I have been falsely implicated in this case." Regarding his over stay in India, the accused has pleaded as under : "At that time, I was not carrying my passport. It was at my tenanted premises in Tilak Nagar. I came to India about 3 years back for business in auto parts. My visa expired about 6 months prior to my arrest. I could not return to my country because of payments which were delayed by my debtors."
7. Despite opportunity, accused opted not to lead any evidence in defence.
8. Arguments heard. File perused.
It is case of prosecution that on 08.07.2014, at about 1.00 p.m., while SI Karamveer was serving at PS Narcotics Cell, Shakarpur, Delhi, a secret informer came to him and told that a Nigerian, namely Okafor Ejike, who used to indulge in supply of cocaine in the area of Delhi, would reach metro station Karol Bagh in between 2.30 - 3.00 p.m., for supply of cocaine for someone.
SI Karamveer, while appearing as PW9 narrated contents of secret information and that he satisfied himself about the information and produced the secret informer before PW7 Inspector Kuldeep Singh.
He has further stated to have made inquiries from the secret informer and satisfied himself about secret information and the SHO communicated the information on phone, to Sh. Zile Singh, the ACP. PW7 has supported this FIR NO.75/14 Page 5 of 20 version and then ACP directed him for raid and accordingly directed the SI.
It is available from Ex.PW3/B - DD no.19 as to what were the contents of secret information received by SI Karamveer and communicated to SHO and then to the ACP. It was sent to the office of ACP through Inspector Kuldeep Singh. This fact stands proved from the statements of PW7 and PW3.
Learned defence counsel has raised objection that original DD no.19 having not been proved and as such, no reliance can be placed thereon.
Ex.PW3/B is copy of DD no.19, copied from the original daily diary register. SI Karamveer put up the same before the Inspector soon after it was recorded and the Inspector forwarded the same to the office of ACP. The fact that it was forwarded by the Inspector to the office of ACP on 08.07.2014 and received there on the same day, stands proved from the statements of PW3 ASI Satbir Singh, who is from the office of ACP, PW7 Inspector Kuldeep Singh and PW9 SI Karamveer. During trial, original DD register could be summoned by the accused to verify genuineness of Ex.PW3/B but no such step was taken. Therefore, this Court does not find any merit in the contention of learned defence counsel regarding this document Ex.PW3/B.
9. SI Karamveer has stated that he called Ct. Sonu Tomar (PW5) and HC Sudhir (PW4), apprised them of the secret information and constituted a raiding party. Secret informer also accompanied them. The party left FIR NO.75/14 Page 6 of 20 Narcotics Cell by government vehicle driven by HC Amarnath, at about 1.55 p.m. and reached under Karol Bagh metro station at 2.25 p.m. On reaching Karol Bagh metro station, the government vehicle was directed to be parked towards Patel Nagar side of the metro station. According to PW9 - SI Karamveer, he and secret informer took position towards Hanuman Temple, whereas HC Sudhir and Ct. Sonu Tomar also took positions at some distance from them.
According to PWs, at about 2.40 p.m., accused was seen coming, from the side of Hanuman temple. On seeing accused, secret informer pointed out towards him as the person against whom he had passed on secret information. The secret informer then went away. The accused came and stopped at a distance of about 20 steps from the raiding party, waited for 45 minutes for someone and then started moving towards the temple. According to PW9, he gave a signal to the Constable and the Head Constable and all of them, chased the accused and apprehended him at a short distance.
Nonjoining of independent witness
10. It is true that this case is based on statements of police officials and there is no corroboration from independent source. Accused was apprehended at about 2.35 p.m. from near Karol Bagh metro station. It is in the statement of PW9 that on the way, that is, from Narcotic Cell to the metro station, he made efforts to join persons from the public but no one joined. FIR NO.75/14 Page 7 of 20 Further according to him, persons gathered around the party but no one from them came forward to join the party and rather the crowd disbursed when he apprised them of the secret information and asked them to join the investigation. This goes to show the steps taken by the Sub Inspector to associate persons from the public.
On the point of nonjoining of independent witnesses, in the case of Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, Hon'ble Apex Court observed as under: "The submission that the evidence of the official witnesses cannot be relied upon as their testimony has not been corroborated by any independent witness cannot be accepted. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. It may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
Having regard to the facts and circumstances of this case and the decision in Ajmer Singh's case (supra), this Court proceeds to evaluate the FIR NO.75/14 Page 8 of 20 testimony of PW4, PW5, PW6 & PW9.
Compliance with provisions of Sec.50 of the Act
11. Case of prosecution is that SI Karamveer introduced himself to the accused. The driver of the government vehicle also brought the vehicle nearby as directed. According to PW9, he apprised the accused of the secret information available against him. He also apprised the accused of his rights that he could opt to be subjected to search in presence of Gazetted Officer or Magistrate and that he (the accused) could search their person and the government vehicle. He even explained the accused meaning of words 'Gazetted Officer' and 'Magistrate'. In this regard, notice U/s 50 of the Act was served upon accused. Same is Ex.PW4/A. It has been duly proved. It bears attestation of HC Sudhir Kumar and Ct. Sonu Tomar.
Learned counsel for the accused has submitted that while proving this notice, PWs have not proved signatures of the accused on this notice, which creates doubt if any such notice was actually delivered to the accused. Further, it has been pointed out that according to PW9 SI Karamveer Singh, he produced before SI Rajbir Singh the document prepared by him but according to PW6 ASI Rajbir Singh, SI Karamveer produced before him carbon copy of notice U/s 50 of the Act and seizure memo which also creates doubt if any such notice was actually served upon the accused.
It is true that according to PW6 ASI Rajbir Singh, SI Karamveer FIR NO.75/14 Page 9 of 20 produced before him carbon copy of notice U/s 50 of the Act. But it appears to have been stated by the witness inadvertently, the reason being that in his further examination he clearly stated about recovery of copy of notice U/s 50 of the Act from the accused. Had SI Karamveer produced carbon copy of the notice before ASI Rajbir Singh, no carbon copy (Ex.P4) could be recovered on personal search of the accused. As regards, nonidentification of signatures of the accused on notice Ex.PW4/A, accused has not disputed that the signatures available on this notice are not his signatures.
Learned defence counsel has also challenged the validity of the notice Ex.PW4/A wherein SI Karamveer stated that search of the accused as required to be conducted by him. The contention is that when the SI expressed to the accused that he was to conduct personal search of the accused, the version of prosecution that accused was asked that he could subject himself to search in presence of Gazetted Officer or Magistrate, was a meaningless exercise.
It is true that SI Karamveer recorded in the notice and apprised the accused that his search was required to be conducted but at the same time when he told the accused of his legal right of being subjected to search in presence of Gazetted Officer or Magistrate and specifically told him that in this regard arrangement could be made, it cannot be said that the notice suffers from any illegality.
FIR NO.75/14 Page 10 of 20
Learned defence counsel has also pointed out that statements of the witnesses regarding conversation between SI Karamveer and the accused, at the time he was served with notice U/s 50 of the Act do not disclose that any conversation took place regarding address of the accused, and as such, it remains unexplained as to how the address of the accused came to be mentioned in notice Ex.PW4/A. It is true that there is nothing in the statements of the witnesses specifically narrating the part of conversation during which the accused disclosed his address, but same does not adversely affect the case of prosecution. The reason is that before serving notice U/s 50 of the Act SI Karamveer must have enquired from the accused his name, parentage and address. Otherwise, it could not be recorded in this notice. It is not case of the accused that this address available in Ex.PW4/A is wrong. Therefore, this court does not find any merit in this contention.
Accused refused to exercise legal rights
12. According to PW9, PW4 & PW5, the accused refused to exercise his legal rights. The refusal of the accused is Ex.PW4/B. It bears attestation of these three PWs. Signatures of the accused at point D appended to the refusal have been identified by the witnesses. This refusal is in the handwriting of the accused. Although the accused has put forth the plea that he was forced to sign some documents, he has not brought on record any FIR NO.75/14 Page 11 of 20 evidence to suggest that he or on his behalf anyone else including Embassy of Nigeria ever complained to the senior police officers in this regard.
13. Learned defence counsel has contended that in this case prosecution has neither cited the driver of the government vehicle which was used in reaching the spot nor produced on record log book which creates doubt if any such raid was conducted.
As per prosecution version, the raiding party reached under metro station Karol Bagh riding the government vehicle but neither the driver was cited as a witness nor copy of log book has bee produced on record. In this regard, learned defence counsel has referred to decision in Om Prakash V. State, 2014 (143) DRJ 349.
It is in the statements of PW4, PW5 & PW9 that government vehicle was used in conducting raid. Name of the driver has also come in evidence. It is true that no copy of the log book has been produced on record but the same does not adversely affect the case of prosecution as the accused has himself come forward with the delivery, in his statement U/s 313 Cr.P.C. that he was taken away by the police from near metro station Karol Bagh when he reached there to meet another person, namely, Christopher as called by him. Although accused has put forth defence plea that he had reached near metro station Karol Bagh on being called by another Nigerian, namely, Christopher, he has not been able to bring any fact in the prosecution evidence. In the given FIR NO.75/14 Page 12 of 20 circumstances, decision in Om Prakash's case (supra) does not come to the aid of the accused.
Recovery of contraband
13. As stated by these three PW9, PW4 & PW5, personal search of accused was conducted, which led to recovery of white colour powder contained in transparent polythene found lying in front left side pocket of his jeans. The SI tested small quantity of powder on the field testing kit and found it to be cocaine. It was found to be 70 gms when weighed with transparent polythene.
Drawing of samples
14. SI Karamveer then drew two samples, each of 2 gms, from the lot. These two samples were turned into cloth parcels and the remaining quantity of 66 gms. was allowed to remain in the recovered transparent polythene, turned into separate cloth parcel. The SI filled in FSL form.
While narrating so, SI Karamveer has further stated that he sealed all the aforesaid three parcels with his seal bearing impression 4B PS NB DELHI. Impression of his seal was affixed on the FSL form. After use, he handed over the seal to HC Sudhir. All the sealed parcels were seized. PW5 Ct. Sonu Tomar and PW4 HC Sudhir have supported this version.
According to PW5 Ct. Sonu Tomar, on reaching the office of Inspector Virender Singh, he produced three sealed parcels, FSL form and copy of seizure memo. The SHO affixed his seal of VSS on all the parcels, affixed its FIR NO.75/14 Page 13 of 20 impression on FSL forms and deposited all items with MHC(M).
PW8 Inspector Virender Singh has stated in his examination that on 08.07.2014, at about 7.05 p.m., Ct. Sonu Tomar came to him and produced three duly sealed parcels, one FSL form and one carbon copy of seizure memo. These were bearing seals of impression 4B PS NB DELHI. Impression of the seal was also available on FSL form. According to PW8, he put his seal bearing impression 'VSS' on all the three parcels and affixed its impression on the FSL form and deposited all items with MHC(M). Statements of PW5 & PW8 find corroboration from the statement of MHC(M) PW2.
It has been stated by PW HC Chand Ram, MHC(M) in his examination that on 08.07.2014, at about 7.30 p.m., Inspector Virender Singh, SHO PS Crime Branch called him to his office with register no.19. At that time, the SHO deposited with him three sealed parcels bearing seals of aforesaid seals, FSL form having impression of the aforesaid two seals and carbon copy of seizure memo. HC Chand Ram has proved entry at Sr.no.2110. Same is Ex.PW2/A. PW10 Ct. Ranvir collected one sample parcel, form FSL, copy of FIR, copy of seizure memo to FSL, Rohini and deposited the same there on the same day.
Learned defence counsel has pointed out that as per prosecution version PW10 Ct. Ranbir collected the sealed parcel from the MHC(M) for its FIR NO.75/14 Page 14 of 20 deposit at FSL, Rohini but he nowhere stated to have collected any FSL form from the MHC(M) or to have deposited the same at FSL Rohini. The contention is that prosecution has failed to rule out possibility of tampering with the case property.
While making statement in court, PW10 Ct. Ranbir has specifically deposed that on 11.07.2014, he collected from the MHC(M) of PS Crime Branch, Malviya Nagar, one sealed parcel Mark A, lying sealed with two seals and "forwarding letter bearing impression of same seals". He specified the impression of the seal i.e. 4B PS NB DELHI and VSS. Forwarding letter is also termed as FSL form. In Road Certificate Ex.PW2/C, it finds mention that FSL form was also sent to FSL. Furthermore, as per report Ex.PX, received from FSL, seals on the parcel were found in tact and same tallied as per specimen seal. It has come in the statements of witnesses to the recovery and Inspector Virender Singh that FSL form was prepared and impressions of the two seals were there on this form. Therefore, this Court does not find that prosecution has failed to rule out possibility of tampering with case property.
15. SI Karamveer prepared rukka and handed over the same to Ct. Sonu Tomar with the three sealed parcels, FSL form and copy of seizure memo with the directions that he shall visit PS Crime Branch, Malviya Nagar and produce rukka before Duty Officer and remaining items before SHO. The Constable left the spot by government gypsy.
FIR NO.75/14 Page 15 of 20
On the basis of rukka received through PW5 Ct. Sonu Tomar, present case was got registered. PW1 HC Shambhu Nath, Duty Officer appended endorsement to the rukka in this regard. This fact stands proved from statements of PW5 also.
After registration of the case, investigation of the case was assigned to ASI Rajbir Singh. According to PW6 - ASI Rajbir Singh, he reached the spot by the government vehicle driven by HC Amarnath vide DD no.32 Ex.PW6/A. SI produced before him documents prepared by him, while apprising him of the sequence of events. He has also proved rough site plan Ex.PW6/B of the place of arrest and recovery from the accused prepared at the instance of SI Karamveer.
ASI Rajbir arrested the accused and conducted his personal search which led to recovery of Rs.500/ in cash, carbon copy of notice U/s 50 of the Act. In this regard, he has prepared memo Ex.PW4/D and Ex.PW4/E. Learned defence counsel has pointed out that according to PW6 ASI Rajbir Singh, a sum of Rs.500/ was recovered on personal search of the accused vide memo Ex.PW4/C. But according to PW4 HC Sudhir Kumar on personal search of the accused currency notes worth Rs.5000/ were recovered which creates doubt in the version of the prosecution about any such recovery.
It is true that statement of PW4 HC Sudhir Kumar is not in consonance FIR NO.75/14 Page 16 of 20 with the contents of personal search memo Ex.PW4/C regarding the currency notes but it appears to be result of slip of tongue and at the most can be said to be a minor contradiction.
16. At about 00.05 a.m., i.e. on 09.07.2014, SI Karamveer left the spot and reached PS Crime Branch, Malviya Nagar, in the company of others and deposited personal search items in the malkhana.
Learned defence counsel has submitted that according to PW6 ASI Rajbir Singh, SI Karamveer was accompanying him at 1.50 a.m., when he, HC Sudhir in the company of accused departed from PS Crime Branch, Malviya Nagar and reached Narcotics Cell, Shakarpur. Further, it has been pointed out that subsequently investigation was again assigned to SI Karamveer, as per directions of senior police officers. The contention is that when the first Investigating Officer SI Karamveer was to accompany ASI Rajbir Singh and assigned the investigation again what was the need of assigning the investigation to PW6 ASI Rajbir Singh.
It is true that initially the investigation was conducted by SI Karamveer who apprehended the accused and made recovery. On the basis of rukka sent by him, case was registered and investigation was assigned to ASI Rajbir Singh. Thereupon, ASI Rajbir reached the spot, collected documents from SI Karamveer, made inquiries from the accused, conducted his personal search, arrested him and ultimately brought him to PS Crime Branch, Malviya Nagar. FIR NO.75/14 Page 17 of 20 It is ASI Rajbir, who recorded statements of Inspector Virender and that of MHC(M) on reaching Narcotics Cell Shakarpur at 2.30 p.m., ASI Rajbir produced the accused before Inspector Virender and the later made inquiries from him. In this regard, ASI Rajbir recorded DD no.3 Ex.PW6/C. So, ASI Rajbir Singh conducted investigation after registration of the case and that as per well settled law, that no complainant can be the Investigating Officer. Even if SI Karamveer was accompanying ASI Rajbir, same does not adversely affect the case of prosecution. As regards assignment of investigation once again to SI Karamveer after having been taken over from ASI Rajbir, it appears that senior police officers reassigned the investigation to the SubInspector. But this fact does not create doubt in the prosecution version, as no material investigation appears to have been conducted subsequent to the investigation conducted by SI Karamveer after having taken over from ASI Rajbir.
17. It is in evidence that on 09.07.2014, at about 1.05 a.m., SI Karmavir, ASI Rajbir Singh and other members of the party reached Narcotics Cell, Shakarpur. There ASI Rajbir produced the accused before the Inspector and the Inspector made inquiries from the accused.
Compliance with provisions of Sec.42 & 57 of the Act
18. PW3 ASI Satbir Singh, Reader to the ACP stated in his examination that DD no.19 was received at the office of ACP and put up before ACP Zile Singh. This document proved compliance with provision of Sec.42 of Act. FIR NO.75/14 Page 18 of 20
PW9 SI Karamveer prepared report U/s 57 of the Act and submitted the same to Inspector Kuldeep Singh. PW6 - ASI Rajbir Singh also prepared report U/s 57 of the Act. Both of them have proved these reports. PW7 Inspector Kuldeep Singh forwarded those reports to the office of ACP, whereas these were received vide entries at SR.no.1638 & 1639. Then same were put up before the ACP. This fact stands proved from the statements of PW7 and PW3.
19. As per report of FSL, the contents of the sample analyzed there, revealed that the same were cocaine. Despite opportunity, the expert was not called for the purpose of cross examination. Report of the expert has gone unchallenged.
20. In view of the above discussion, this Court finds that prosecution has fully established its case that on the basis of secret information accused Okafor Ejike was apprehended by the police party headed by SI Karamveer from near metro station Karol Bagh on PUSA road, Delhi, and from his possession 70 gms of cocaine was recovered. Therefore, the accused is held guilty of the offence U/s 21 of the Act.
21. So far as the other offence U/s 14 of Foreigners Act is concerned, it has come in evidence that at the time he was apprehended by SI Karamveer on 08.07.2014, he could not produce any passport or documents depicting valid visa. In h is statement U/s 313 Cr.P.C., accused has stated to have come to FIR NO.75/14 Page 19 of 20 India three years back for business and that his visa expired about 6 months prior to his arrest. He has further admitted that at the time of his arrest he was not carrying any passport. He has further stated that he could not return to his country because of certain delayed payments in his favour. In the given circumstances, it stands established that the accused violated provisions of Section 3 of Foreigners Act and made himself liable for an offence U/s 14 of Foreigners Act. I thus hold the accused guilty of the offence U/s 14 of the Foreigners Act, 1946.
17. Accordingly, the accused is convicted for the two offences i.e. U/s 21 of the NDPS Act and U/s 14 of Foreigners Act.
Let the convict be heard on the point of sentence.
Announced in Open Court
on 13.11.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR NO.75/14 Page 20 of 20