Delhi District Court
State vs . Christion Asieme Nsofor, on 4 August, 2016
IN THE COURT OF SH. SANJAY GARG, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 17/2/12
Unique ID No. 02405R0241622012
State Vs. Christion Asieme Nsofor,
S/o Sh. Asieme Nsofor,
R/o Uubul Ikoyi Lagos,
Nigeria.
FIR No. : 182/2012
Police Station : Crime Branch
Under Sections : 21 NDPS Act, 186/353/332/420/468/471/34
IPC and Section 14 of the Foreigners Act
Date of committal to sessions court : 20.10.2012
Date on which judgment was reserved : 11.07.2016
Date on which judgment was pronounced : 04.08.2016
JUDGMENT:
1. The case of the prosecution is that on 03.07.2012 at about 5.00 p.m., a secret informer came to the office of Narcotics Cell, Shakkarpur and informed SI Satyawan that a person, namely, Christion, who was a Nigerian national and dealt in supply of Heroin and Cocaine, would come near Metro Pillar No. 741, Uttam Nagar, New Delhi between 7.00 p.m. to 7.30 p.m. for supplying huge quantity of Heroin to someone. SI Satyawan recorded the Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 1/23 secret information vide DD No. 35 at 5.30 p.m. He produced the secret informer before Inspector Vivek Pathak and handed over a copy of DD No. 35 to him. Inspector Vivek Pathak forwarded the copy of the said DD to Sh. Bir Singh, ACP, Narcotics Cell and directed SI Satyawan to conduct raid. Accordingly, SI Satyawan constituted a raiding team comprising of himself, HC Pradeep Khatri, HC Abdul Hakim, Constable Satish and Constable Sohanpal. Armed with drug testing kit and electronic weighing scale, the raiding team left the office of Narcotics Cell alongwith secret informer in a government vehicle No. DL 1CM 4228 driven by Constable Rajender and reached the spot at 7 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. Around 7.10 p.m., one person of African origin was seen coming on foot from the side of Dwarka Mor Metro Station. The secret informer identified him as the accused person. The accused was apprehended from the spot when he started going back after waiting for five minutes. 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 notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act). However, the accused declined to avail the same. From the search of the accused, one transparent Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 2/23 polythene pouch tied with rubber band and containing matiala coloured powder was recovered from the right side pocket of his pant. Upon testing and weighing, the powder was found to be 400 gms of Heroin. Two samples of 5 gms each were drawn which were converted into two pulandas Mark A and B. The remaining Heroin was kept in a separate pulanda Mark C. FSL form was filled. All the aforesaid pulandas were sealed with the seal of 7 APS NB DELHI and seized. While the proceedings were being conducted, the accused pushed Constable Satish and tried to flee from the spot. Upon being chased by HC Pradeep Khatri, the accused manhandled him and bit his right hand thumb. The accused also caught hold of both the ears of HC Pradeep Khatri and kicked him. Thereafter, the accused torn his own shirt and banged his forehead against the Metro pillar which caused injuries to him. Thus the raiding team took the accused to Lok Nayak Hospital where he and HC Pradeep Khatri were medically examined. After obtaining the MLCs, the raiding team alongwith accused reached the office of Narcotics Cell at about 11.55 p.m. Rukka was prepared and on the basis thereof, FIR No. 182/12 under Section 21 NDPS Act and Sections 186/353/332 IPC 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 of CRM. The accused was Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 3/23 arrested and his disclosure statement was recorded. Site plan was prepared and statements of witnesses were recorded. Reports under Section 57 NDPS Act regarding seizure and arrest were prepared and sent to the ACP. The sample of the recovered substance was sent to FSL, Rohini, for chemical examination and was found to contain Diacetylmorphine and Phenobarbital. 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 chargesheet was filed.
2. On 21.01.2013, the charge for the offences under Section 21 NDPS Act, Sections 186/353/332/420/468/471/34 IPC and Section 14 Foreigners Act was framed against the accused. The accused pleaded not guilty and claimed trial.
3. The prosecution examined 12 witnesses in support of its case. 3.1. PW1 HC Mahesh Kumar deposed that on the instructions of the SHO, P.S. Crime Branch, he had taken the sealed pulanda of sample Mark A alongwith FSL form from MHC(M) and deposited the same with FSL, Rohini on 09.07.2012.
3.2. PW2 HC Jag Narain is the MHC(M). He proved the entry No.1561 in Register No.19 in respect of deposit of case property, FSL form, seizure memo and personal search articles of the accused in Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 4/23 the malkhana as Ex.PW2/A; the copy of road certificate No. 430/21/12 vide which PW1 HC Mahesh Kumar had taken the sealed pulanda Mark A and FSL form to FSL, Rohini as Ex.PW2/B and the FSL receipt deposited by PW1 HC Mahesh Kumar in the malkhana as Ex.PW2/C. 3.3. PW3 HC Jaipal Singh is the duty officer. He proved the FIR No. 182/12 as Ex.PW3/A; the attested copies of DD Nos. 25 and 27 regarding the initiation of recording of FIR and its closure as Ex.PW3/C and Ex.PW3/D respectively and his endorsement on the rukka as Ex.PW3/B. 3.4. PW4 Dr. Ravinder Kumar is the Chief Medical Officer from LNJP Hospital, who appeared on behalf of Dr. Naveen. He proved the MLC of the accused and HC Pradeep prepared by Dr. Naveen as Ex.PW4/A and Ex.PW4/C respectively.
3.5. PW5 HC Pradeep Khatri was the member of raiding team. He proved the notice under Section 50 NDPS Act served upon the accused as Ex.PW5/A; the reply of accused recorded on his notice as Ex.PW5/B; the seizure memo in respect of FSL form & pulandas Mark A to C as Ex.PW5/C; the arrest and personal search memo of the accused as Ex.PW5/D and Ex.PW5/E respectively and the disclosure statement of the accused as Ex.PW5/F. He also identified the carbon copy of notice under Section 50 NDPS Act served upon the accused as Ex.P1; the sample of Heroin Mark A as Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 5/23 Ex.P2; the sample of Heroin Mark B as Ex.P5 and the remaining Heroin recovered from the accused as Ex.P7.
3.6. PW6 ASI Om Prakash is the Reader to ACP, Narcotics Cell, Shakkarpur, Delhi. He proved the copy of DD No.35 received in the office of ACP as Ex.PW6/A; the special reports under Section 57 NDPS Act regarding the seizure and arrest received in the office of ACP as Ex.PW6/B and Ex.PW6/C respectively and the entries made by him regarding the receipt of DD No. 35 and the reports under Section 57 NDPS Act as Ex.PW6/D and Ex.PW6/E respectively.
3.7. PW7 SI Satyawan is the initial investigating officer of the case. He proved the attested copy of DD No. 36 regarding the departure of the raiding team as Ex.PW7/A; the rukka as Ex.PW7/B and the site plan of the place of apprehension of the accused as Ex.PW7/C. 3.8. PW8 Inspector C.R. Meena is the SHO. He proved the attested copy of DD No. 26 dated 04.07.2012 regarding the deposit of case property and documents in the malkhana by him as Ex.PW8/A. 3.9. PW9 Inspector Vivek Pathak deposed that on 03.07.2012, SI Satyawan produced the secret informer before him and after making enquiries and informing about the same to ACP, he had directed SI Satyawan to conduct raid. He deposed that the copy of DD No. 35 as well as the reports under Section 57 NDPS Act were Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 6/23 forwarded by him to the ACP, Narcotics Cell. He proved the complaint under Section 195 Cr.P.C. made by him against the accused for obstructing police officials from discharge of their official duty and causing injuries to HC Pradeep Khatri as Ex.PW9/A; the letter dated 30.07.2012 written by him to the Ministry of External Affairs regarding verification of visa of the accused as Ex.PW9/B and the letter dated 21.08.2012 received from the Section Officer, Ministry of External Affairs in response thereto as Ex.PW9/C. 3.10. PW10 Constable Satish Kumar was the member of the raiding team. He proved the notice under Section 50 NDPS Act served upon the accused and other proceedings conducted by the investigating officer in his presence.
3.11. PW11 Sh. Amit Rawat is the Senior Scientific Officer from FSL, Rohini, Delhi. He proved his examination report dated 25.07.2012 regarding the sample Mark A as Ex.PW11/A. 3.12. PW12 Inspector Bhagwan Singh is the second investigating officer.
He proved the attested copy of DD No.2 regarding the assignment of case for investigation to him as Ex.PW12/A; the attested copy of DD No.3 regarding the arrest of accused as Ex.PW12/B; the verification report of the High Commission of Nigeria in respect of the passport of the accused as Ex.PW12/C; the visa verification report received from High Commission of India, Lagos as Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 7/23 Ex.PW12/D and the certificate under Section 65B of the Evidence Act regarding the print out of FIR as Ex.PW12/E.
4. On 20.10.2014, the statement of the accused under Section 313 Cr.P.C. was recorded wherein all the incriminating evidence was put to him to which his stand was of general denial. The accused stated that in the morning hours of 03.07.2012, the police officials forcibly took him from his house at Nawada to Narcotics Cell where he was beaten mercilessly, compelled to sign on blank papers and was falsely implicated 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 contraband in this case had been planted upon the accused which is apparent from the fact that no public witness was joined by the police at the time of the alleged search and seizure. He has placed reliance upon State of Punjab v. Baldev Singh, 1999 (4) JT 595, wherein it has been held by the Apex Court that though the conduct of search and seizure in violation of statutory safeguards as provided in Sections 100, 102, 103 and 165 Cr.P.C. per se does not vitiate the trial but it Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 8/23 has to be borne in mind that such search and seizure would be violative of the reasonable, fair and just procedure. 6.1. In Baldev Singh case (supra), the Hon'ble Supreme Court had laid down the rule of caution. However, it is also 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 witness suffers from any infirmity. The case of the prosecution can not be held to be vulnerable for nonexamination of person 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 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 Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 9/23 merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
6.2. The instant case hinges on the testimonies of the police witnesses.
PW9 Inspector Vivek Pathak deposed that on 03.07.2012, when he was posted as Inspector at Narcotics Cell, Shakkarpur, Delhi, SI Satyawan alongwith secret informer came to his office at 5.15 p.m. and informed that one Nigerian national, namely, Christion would come near Metro Pillar No. 741, Uttam Nagar, New Delhi between 7.00 p.m. to 7.30 p.m. to deliver contraband to one of his customers and upon his direction, SI Satyawan organized a raiding team comprising of himself, HC Pradeep, HC Abdul, Constable Satish and Constable Sohan Pal. In his testimony, PW7 SI Satyawan stated that the raiding party left the Narcotics Cell on 03.07.2012 at about 5.45 p.m. alongwith secret informer and driver Constable Rajender in a government vehicle No. DL 1 CM 4228 after recording its departure vide DD No. 36 (Ex.PW7/A) and reached at the spot at 7 p.m. At about 7.10 p.m., they noticed one person of African region coming on foot from the side of Najafgarh at a distance of 20 meters and the secret informer identified him as accused Christion. The accused came at the spot and was apprehended when he started going back after waiting for about 4 5 minutes. He was served with notice under Section 50 of the NDPS Act but he refused to avail his legal rights regarding search.
Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 10/23In the meantime, many persons had gathered at the spot. SI Satyawan requested 78 persons to join the proceedings but none was willing and they left without disclosing their names and addresses. Thereafter, the search of the accused was taken and one transparent polythene pouch containing matiala coloured powder was recovered from the right side pocket of his pant. Upon testing and weighing, the content of polythene pouch was found to be 400 gms Heroin. The witness further stated that the contraband recovered from the possession of accused was seized vide seizure memo Ex.PW5/C. PW5 HC Pradeep Khatri and PW10 Constable Satish Kumar also deposed on the same lines as that of PW7 SI Satyawan. The above witnesses were crossexamined by the accused but he failed to dent their testimonies and elicit anything material from them. Though the accused has stated in his statement under Section 313 Cr.P.C. that the police officials had forcibly picked him from his house at Nawada on 03.07.2012 but no evidence has been led by him to corroborate the same. 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 implicate innocent person in such a serious case by planting a huge quantity of Heroin on him. Moreover, the accused has not lodged any complaint to any authority regarding his false implication. Considering the material on record, the non Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 11/23 joinder of the independent public witnesses does not cast any doubt on the case of the prosecution and it has succeeded in proving the apprehension of the accused from the spot as well as seizure of the narcotic drug from him.
7. The counsel for the accused has next contended that the sample parcel was sent to the laboratory after six days of the alleged seizure of the contraband which is against the NCB guidelines and thus the same should be read against the prosecution. Reliance has been placed upon Matloob v. State (Delhi Administration), 67 (1997) DLT 372 and Rishi Dev @ Onkar Singh v. State (Delhi Admn.), Crl.A.No. 757/2000 decided on 01.05.2008, wherein the Hon'ble Delhi High Court held 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 can be inferred. He has argued that since PW5 HC Pradeep Khatri has admitted that he had returned the seal to the investigating officer on 09.07.2012 i.e. the day on which sample parcel was sent from malkhana to laboratory, the tempering with the sample can not be ruled out. He has also submitted that neither the FSL form has been proved on record nor there is any evidence to show that it was sent to the FSL alongwith the sample.
7.1. It is a settled law that to safeguard the possible tampering, the Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 12/23 sample should be sent to the laboratory within 72 hours and in case of delay, the onus is on the prosecution to show that there was no tampering with the case 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, Constable Satish Kumar (PW10), who took the case property alongwith rukka from the office of Narcotics Cell to the police station; Inspector C.R. Meena (PW8) to whom the case property was handed over by Constable Satish Kumar in the police station; the MHC(M) HC Jag Narain (PW2) to whom the case property was handed over by Inspector C.R. Meena while depositing it in the malkhana, and HC Mahesh Kumar (PW1), who took the sample Mark A with FSL form to the laboratory from the malkhana.
7.3. PW10 Constable Satish Kumar has deposed that after the seizure of 400 gms of Heroin from the accused, two samples each were drawn from the recovered substance and SI Satyawan sealed all the three pulandas Mark A to C with his official seal 7 APS NB DELHI, filled the FSL form, affixed sample seal on the FSL form and handed over the seal to HC Pradeep Khatri. PW8 Inspector C.R. Meena deposed that on receipt of sealed pulandas Mark A to Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 13/23 C and FSL form from Constable Satish Kumar, he affixed his seal of CRM on them. PW2 MHC(M) HC Jag Narain has corroborated the testimonies of PW10 and PW8 and stated that when the case property was deposited in the malkhana, specimen seals of 7 APS NB DELHI and CRM were existing thereon. Infact, the entry in Register No.19 (Ex.PW2/A) is the best evidence on this aspect of the matter. It specifically records that all the three pulandas and FSL form were indeed containing specimen seals of 7 APS NB DELHI and CRM at the time of deposit in the malkhana. PW1 HC Mahesh Kumar deposed that when he had taken sample pulanda Mark A and FSL form from malkhana to laboratory, the same were in duly sealed condition. PW11 Sh. Amit Rawat from FSL, Rohini has also stated that one parcel sealed with the seal of 7 APS NB DELHI and CRM alongwith FSL form was received in the laboratory on 09.07.2012 and the FSL report (Ex.PW11/A) specifically records that the seals on the parcel were found intact and tallied with the specimen seals. From the above, it stands established that the FSL form was prepared at the spot; was taken to police station alongwith the case property by Constable Satish Kumar; was deposited in the malkhana by Inspector C.R. Meena and was taken from the malkhana to the laboratory alongwith sample parcel by HC Mahesh Kumar. Further, there is no evidence to suggest that during the time the case property, sample and FSL Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 14/23 form remained in possession of the prosecution witnesses, the same were tampered with by anyone.Thus, the delay in sending sample to the laboratory can not be read against the prosecution.
8. The counsel for the accused has next contended that SI Satyawan, who allegedly received the secret information, failed to reduce the same into writing in compliance of the provisions of Section 42 of the NDPS Act which is manifest from the deposition of PW5 HC Pradeep Khatri that though the secret information was divulged to him by SI Satyawan but the said information was not shown to him in writing. The contention is devoid of any merit. Since the search, seizure and arrest had been made from a public place, Section 42 of the NDPS Act was not applicable in the present case. (See judgment dated 30.11.2015 passed by the High Court of Delhi in Crl.A.No.1370/2010 titled as Chand Singh v. The Narcotics Control Bureau). Even otherwise, SI Satyawan had complied with the provisions of Section 42 and recorded the secret information on 03.07.2012 at 5.30 p.m. vide DD No. 35. The members of the raiding team were duly apprised about the secret information and it was not at all necessary to show them the copy of DD No. 35 whereby the said information was reduced into writing. PW9 Inspector Vivek Pathak has deposed that on 03.07.2012, SI Satyawan produced the copy of DD No.35 before him which was Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 15/23 forwarded by him to the ACP, Narcotics Cell. PW6 ASI Om Prakash, Reader to ACP, has proved the copy of DD No. 35 received in the office of ACP (Ex.PW6/A) as well as the endorsement dated 03.07.2012 made thereon by the ACP. He has also proved the entry No. 1588 made by him in the correspondence register regarding the receipt of DD No. 35 as Ex.PW6/D.
9. The counsel for the accused has further argued that the alleged notice under Section 50 of the NDPS Act (Ex.PW5/A) was never served upon the accused and his purported signatures on the same as well as other documents prepared during the course of investigation have been forged by the investigating agency. He has submitted that the purported signatures of the accused on the above documents are palpably different from his actual signature as appearing on the coloured copy of his passport (Ex.P9) and rather resemble the signature of Sh. A.M. Monguno under whose name the letter dated 09.08.2012 regarding the verification of the passport of the accused had been issued by the High Commission of Nigeria, New Delhi. He has contended that while forging the signatures of the accused, the investigating officer had mistakenly copied the signature of Sh. A.M. Monguno on the notice under Section 50 of the NDPS Act which shows that the investigation had been manipulated and the said notice was not served upon the Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 16/23 accused.
9.1. I find no merits in the above contention. A perusal of the notice (Ex.PW5/A) shows that the investigating officer SI Satyawan had served the same upon the accused in the presence of two witnesses namely HC Pradeep Khatri and Constable Satish Kumar. The prosecution has examined the investigating officer and the said witnesses as PW7, PW5 and PW10 respectively. All of them have deposed that the notice under Section 50 of the NDPS Act was served upon the accused. It has not been suggested to any of them in their crossexamination that the signature of the accused on the notice is forged. Infact, it has been suggested to them that the accused had been forced to sign blank papers in the Narcotics Cell. The contention that the signature of the accused on the notice has been forged is in stark contrast to the line of crossexamination adopted during the testimony of the witnesses. Even otherwise, if the signatures of the accused had been forcibly obtained on the blank papers, there was no need for the investigating agency to forge his signatures on the notice. Further, no evidence has been produced by the accused to prove that the signature appearing on the notice is not in his handwriting. It is seen from the record that the signatures of the accused on the notice as well as all the other documents prepared during the course of investigation are the same. Considering the above, the contention raised on behalf of the Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 17/23 accused has to be rejected.
9.2. It is seen from the notice Ex.PW5/A 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. PW5 HC Pradeep Khatri and PW10 Constable Satish Kumar have deposed that the accused declined to avail the same and his reply was reduced into writing by the investigating officer SI Satyawan (PW7) on the original notice. They all have proved the reply of the accused as Ex.PW5/B and have identified his signatures on the same. Thus the compliance of Section 50 of the NDPS Act stands established.
10. The record also reveals that the investigating agency had duly complied with the provisions of Section 57 of the NDPS Act. PW9 Inspector Vivek Pathak has deposed that the reports under Section 57 NDPS Act regarding seizure and arrest were prepared and submitted to him by SI Satyawan and SI Bhagwan Singh respectively which were forwarded by him to ACP, Narcotics Cell. He has proved the copies of said reports as Ex.PW6/B and Ex.PW6/C respectively. The prosecution has also examined PW6 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 04.07.2012 made Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 18/23 thereon by the ACP. He has also proved the entries No. 1589 and 1590 dated 04.07.2012 made by him in the correspondence register regarding the receipt of said reports as Ex.PW6/E.
11. Qua the nature and composition of the substance recovered from the accused, the prosecution has examined PW11 Sh. Amit Rawat, who proved his report dated 25.07.2012 (Ex.PW11/A) wherein he has opined that the sample Mark A contained Diacetylmorphine, Phenobarbital, Caffine, Paracetamol and 6Monoacetylmorphine. Diacetylmorphine is the chemical name for Heroin.
12. In the light of above discussion, the prosecution has successfully proved that the commercial quantity of 400 gms of Heroin was recovered from the possession of accused, which is punishable under Section 21 (c) of the NDPS Act.
13. Charges for the commission of offences under Sections 186/353/332 IPC were also framed against the accused. In order to bring home the guilt of the accused for the said charges, the prosecution has examined Constable Satish Kumar as PW10. He has deposed that after the recovery of Heroin, the accused tried to flee from the spot by pushing him and when HC Pradeep Khatri chased the accused, he manhandled HC Pradeep Khatri. HC Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 19/23 Pradeep Khatri, who has also been examined as PW5, has deposed that the accused had bit his right hand thumb and had also caused injuries to him by catching hold of both his ears. The MLC dated 03.07.2012 of PW5 HC Pradeep Khatri is on record which has been proved by PW4 Dr. Ravinder Kumar as Ex.PW4/C. The testimonies of PW5 HC Pradeep Khatri and PW10 Constable Satish Kumar have also been supported by PW7 IO SI Satyawan. The accused has failed to dent the testimonies of the witnesses on the above score. The complaint under Section 195 Cr.P.C., which is a prerequisite for prosecution of the offence under Section 186 IPC, is also on record. The complainant Inspector Vivek Pathak was examined as PW9, who has proved the said complaint as Ex.PW9/A. In view of the testimonies of PW5, PW10 and PW7 and the medical record Ex.PW4/C, the prosecution has succeeded in proving the guilt of the accused for the commission of offences under Sections 186/353/332 IPC.
14. As far as the charges for the commission of offences under Sections 420/468/471/34 IPC and Section 14 of the Foreigners Act are concerned, it is the case of the prosecution that from the personal search of the accused a coloured copy of passport No. A01364335 (valid upto 28.08.2014) having visa No. Z414591 (valid for the period 19.12.2010 to 19.12.2011) was recovered and Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 20/23 during the course of investigation, it was revealed that the visa had been forged by the accused in connivance with his accomplice Derry and Montu. The prosecution has examined PW9 Inspector Vivek Pathak who has deposed that he had sent a letter dated 30.07.2012 (Ex.PW9/B) to the Ministry of External Affairs for verification of the visa of the accused and that in response thereto, a letter dated 21.08.2012 (Ex.PW9/C) was received from the Section Officer, Ministry of External Affairs forwarding a report dated 10.08.2012 (Ex.PW12/D) received from High Commission of India, Lagos. In the said report, it has been mentioned that the dates of issue and expiry of visa were 20.11.2009 and 20.03.2010 instead of 19.12.2010 and 19.12.2011 as mentioned in the visa recovered from the accused. However, the report dated 10.08.2012 has remained unproved. A perusal of the report shows that the same is under the name of one B.S. Negi but the said person has not been examined by the prosecution. Further, the report is a print out of the email received and in the absence of certificate under Section 65B of the Indian Evidence Act, the report is inadmissible in evidence. Not only this, it is seen that while at the top and bottom of the report, the subject has been mentioned as 'Verification of Indian visa to Edwin Nelubusi Igwilo', in the body of the report, it has been written that the report pertained to the visa of the accused. Considering the same, no reliance can be placed Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 21/23 upon the report dated 10.08.2012 (Ex.PW12/D) enclosed with the letter dated 21.08.2012 (Ex.PW9/C). Moreover, Derry and Montu in connivance with whom the accused allegedly forged the visa could not be arrested. It is pertinent to mention here that the investigating agency could also not seize the original passport of the accused and for the want of original passport, the High Commission of Nigeria expressed its inability vide letter dated 09.08.2012 (Ex.PW12/C) to verify the genuineness of the coloured copy of the passport recovered from the accused. In the facts and circumstances, it is evident that the prosecution has miserably failed to prove the charges under Sections 420/468/471/34 IPC against the accused. However, it is important to note that even as per the coloured copy of the passport recovered from the accused, his visa was valid upto 19.12.2011. Since the accused was apprehended on 03.07.2012 i.e. after the expiry of the period of validity of the visa, it is evident that he was staying in India without any authority and thereby committed offence punishable under Section 14 (a) of the Foreigners Act, 1946.
15. Resultantly, the accused is convicted for the commission of offences punishable under Section 21 (c) NDPS Act, Sections 186/353/332 IPC and Section 14 (a) Foreigners Act. The case property is confiscated to the State and in case no appeal is filed Sessions Case No. 17/2/12 State Vs. Christion Asieme Nsofor Page No. 22/23 within the prescribed time, the same may be disposed of as per rules.
Let the accused be heard on the point of sentence on 11.08.2016.
Pronounced in the open court. (SANJAY GARG)
Dated: 04.08.2016 Special Judge (NDPS),
Dwarka Courts, New Delhi.
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