Delhi District Court
Dri vs Samson Ongera Omoro @ Samson Mokari ... on 4 June, 2016
IN THE COURT OF SH. A. K. KUHAR, SPECIAL JUDGE;NDPS
SOUTH DISTRICT, SAKET
SC No. 01A/11
u/s 21 (c) of NDPS Act
Computer ID No: 02406R0012722011
Sh. R. Roy, Intelligence Officer, Headquarters, ..........complainant
Directorate of Revenue Intelligence, New Delhi
versus
Samson Ongera Omoro @ Samson Mokari Ongera ..........accused
s/o late Sh. Ongera Omoro
r/o PO Box 61314, Nairobi, Kenya
also at 26/4, Indira Vikas Colony
near Nirankari Colony, Delhi
Date of institution : 18th January, 2011
Date of reserving judgment : 27th May, 2016
Date of pronouncement : 04th June, 2016
J U D G M E N T
1. Sh. Sujeet Kumar Senior Intelligence Officer, DRI (PW6) received an information on 29.07.2010 that a person of African origin, six feet in hight, medium built, aged 40 years would be standing at around 10:00pm, at the bus stand, Nirankari Sarover, Burari crossing on the red light leading towards Nirankari colony and would be in possession of narcotic drug either on his person or in his shoulder bag. Sh. Sujeet Kumar(PW6) reduced the information into writing (Ex. PW2/A) and placed DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 1 of 45 SC No. 01A/2011 before Sh. Atul Handa, Deputy Director, DRI (PW5). Sh. Atul Handa called Sh. R. Roy, Intelligence officer (PW2) for taking necessary action for the possible interception and seizure of contraband. In view of information (Ex. PW2/A) received by Sh. Sujeet Singh, Sh. R. Roy constituted a team of officers and obtained seal of "Directorate of Revenue Intelligence10" from Sh V. S. Pandey (PW8) after making an entry at sl. no. 23 in the Seal Movement Register (Ex. PW2/U). Sh. R. Roy called two panch witnesses namely, Raju and Rakesh from the nearby area of ITO at round 08:00pm. They were informed about the specific information and were told that they had to accompany the team of DRI to the spot. Thereafter, DRI team with two panch witnesses namely, Raju and Rakesh reached the spot i.e. at the bus stand, Nirankari Sarover, Burari crossing on the red light leading towards Nirankari colony and kept surveillance. At around 10:00pm, the DRI officials noticed a person of African origin, who matched with the description given in the information, carrying a black shoulder bag and waiting on the spot. After about 1015 minutes, when nobody approached him, he got suspicious of a surveillance upon him and started walking towards Nirankari Colony. DRI officials had given him a signal to stop but he started running. DRI officials chased him and apprehended him after a brief scuffle, in which he sustained an injury on or around his right eye. The said person of African origin disclosed his identity as Samson Ongera Omoro r/o Nairobi, Kenya. DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 2 of 45 SC No. 01A/2011 DRI officials introduced themselves to him and also apprised that they have to carry out his personal search as well as of the black shoulder bag carried by him. A Notice u/s 50 of NDPS Act (Ex. PW2/B) was issued to him whereby he was informed that he has a legal right of his search before a Magistrate or a Gazetted Officer. The accused, however, preferred to get his search conducted in the presence of any Gazetted Officer of the DRI at a safe place and he wrote his reply in his own hand writing on the Notice u/s 50 of NDPS Act (Ex. PW2/B). Since, accused had opted for his search before the Gazetted Officer of the DRI at a safe place, he was taken to the office of DRI alongwith his bag where Sh. V. S. Pandey, Senior Intelligence Officer (PW8), a Gazetted officer was introduced to him. Sh. R. Roy, Intelligence Officer (PW2) told Sh. V. S. Pandey Senior Intelligence Officer (PW8) about the interception of the accused alongwith the bag and the service of Notice u/s 50 of NDPS Act (Ex. PW2/B) and also reply given by the accused.
2. Thereafter, in the presence of Sh. V. S. Pandey Senior Intelligence Officer (PW8) personal search of accused was conducted by Sh. R. Roy, Intelligence Officer (PW2). In the said personal search one driving licence issued by Licencing Authority, Lucknow was recovered. The bag carried by the accused was found to contain 10 polythene packets. On detailed examination of three packets, each of the packets was found to contain a heat sealed transparent polythene packet DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 3 of 45 SC No. 01A/2011 containing white colour bag, having some rubber stamp marking on them, which further contained heat sealed plastic polythene packets containing off white granule powdery substance emanating a pungent smell. All these stamped packets were marked A1 to A10 for purpose of identification.
3. Thereafter, Sh. R. Roy (PW2) took a small quantity of white colour granule/powdery substance from each of the 10 packets and tested the substance with the Narcotic Drug Detection Kit, which showed positive test for "heroin". The weighment of the packets was carried out. The gross weight of the packets A1 to A10 was found to be 10.432kg and net weight was found to be 10.204 kg. Sh. R. Roy (PW2) drew two representative samples of five gram each, from each of the 10 packets A1 to A10. The samples were kept in the separate zip locked polythene pouches and were marked A1A to A10A and A1B to A10B. These samples were further kept in a separate paper envelope, which were given corresponding marking and thereafter, sealed with the seal of "Directorate of Revenue Intelligence10" over a paper slip pasted on the envelopes. The remaining substance was kept in the same 10 packets which were kept in a white cloth pullanda and these pullandas were sealed with the seal of "Directorate of Revenue Intelligence10" over a paper slip pasted thereon and kept in a metal box alongwith shoulder bag and the metal box was wrapped with a cloth and sealed with the seal of "Directorate of DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 4 of 45 SC No. 01A/2011 Revenue Intelligence10" over a paper seal signed by both the panchas.
4. Sh. R. Roy (PW2) had prepared the Test Memo in triplicate vide (Ex. PW2/E and Ex. 1/C). He also prepared the panchnama (Ex. PW2/C) regarding the proceedings of search and seizure and put a facsimile of the seal of DRI on the panchnama as well as the Test Memos. The said panchnama was signed by both panch witnesses as well as Sh. V. S. Pandey (PW8).
5. Sh. R. Roy (PW2) had served a summon (Ex. PW2/F) dated 30.07.2010 u/s 67 of NDPS Act to the accused. In response to which he tendered his statement (Ex. PW2/G). He disclosed in the statement about his personal and family details and he also disclosed that one of his Kenyian friendMr. Kefa, was lodged in Patiala Jail, Punjab, whom he had met sometime back in the jail and he also met a person namely, Sh. Amrit Singh. He also disclosed that the said Amrit Singh had proposed him to carry the narcotic substance to Delhi where somebody will collect the same at a predecided place and for this the accused would be paid Rs. 25,000/ plus travelling expenses. He further disclosed that he met Sh. Amrit Singh near Gurudwara Shri Dukh Niwaran, Patiala on 29.07.2010 at about 09:00am where Sh. Amrit Singh handed over a black shoulder bag containing ten packets of "heroin" to him, which he brought to Delhi by bus. The accused also admitted his interception and recovery of 10 packets of "heroin" from his packet.
DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 5 of 45 SC No. 01A/2011
6. In the meantime, Sh. K. K. Sood, Deputy Director, DRI (PW4), issued search authorization (Ex. PW4/A) dated 30.07.2010 in favour of Sh. Ajay Bhasin (PW7), for search at the tenanted residential premises of the accused at 26/4, ground floor, Indira Vikas Colony, Delhi. Pursuant to this search warrant, a search was conducted at the premises but nothing incriminating was recovered except recovery of Rs. 33,600/ 964 US$, which was handed over to one Joel Mose, a friend of the accused.
7. After the statement u/s 67 NDPS Act tendered by the accused, he was arrested, as per arrest cum jamatalashi memo (Ex. PW2/H) and he was medically examined at RML Hospital vide his MLC (Ex. PW12/A). On 30.07.2010, he was kept in the lock up of PS Daryaganj and was again examined on the next day at RML Hospital vide MLC (Ex. PW11/A). Since, the accused was a Foreigner, Sh. K. K. Sood , Deputy Director, DRI (PW4) sent intimation of arrest vide letter (Ex. PW4/B) to the Ministry of External Affairs.
8. The sealed parcels of the case property, samples and Test Memo in triplicate were also handed over to Sh. K. K. Sood , Deputy Director, DRI (PW4) in the safe custody. Sh. R. Roy (PW2) submitted the report of seizure of "heroin" and arrest of accused u/s 57 of NDPS Act (Ex. PW2/U) to Sh. V. S. Pandey (PW8) on 31.07.2010.
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9. On 02.08.2010, Sh. K. K. Sood, Deputy Director, DRI (PW4) handed over the sealed parcels of the case property alongwith deposit memo in duplicate to Sh. R. Roy (PW2) for depositing the same in the Valuable Godown of Customs House. Sh. R. Roy (PW2) deposited the same with Sh. Lakhiram (PW3) at the Valuable Godown of Customs House vide deposit memo (Ex. PW3/A). An entry was made in the Valuable Godown of Customs House register (Ex. PW3/B).
10. On 02.08.2010, Sh. K. K. Sood (PW4) also wrote a letter (Ex. PW4/D) to the Chemical Examiner, CRCL for conducting a test of the sample and authorizing Sh. R. Roy (PW2) to deposit the samples and Test Memo in duplicate. Sh. R. Roy (PW2) had deposited the sample at CRCL for which an acknowledgment (Ex. PW2/A) was issued by Sh. A. K. Morya, Asstt. Chemical Examiner (PW1).
11. The samples were given registration no. CLD 149157 (N) dated 02.08.2010 in the CRCL, Delhi. They were examined by Sh. A. K. Morya (PW1) in the presence and under the supervision of Ms. Meenakshi Gupta, Chemical Examiner (PW10). Thereafter, the Chemical Analysis report (Ex. PW1/V) was submitted. As per report, the samples had tested positive for the presence of "Diacetylmorphine"
12. Sh. R. Roy (PW2) had also issued summons to the panch witnesses namely, Raju and Rakesh on 30.07.2010 itself, pursuant to which panch witness Raju has tendered his voluntary statement (Ex. DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 7 of 45 SC No. 01A/2011 PW2/R) on 04.08.2010 in his own handwriting and panch witness Rajesh has tendered his voluntary statement (Ex. PW2/S) on 05.08.2010 in his own handwriting. After the investigation was complete, Sh. R. Roy (PW2) has filed the complaint (Ex. PW2/T) in the Court. The complaint for the commission of the offence punishable u/s 21 of NDPS Act 1985 was filed on 18th January, 2011. The cognizance was taken by my Ld. Predecessor. Thereafter, accused was charged for the offence punishable u/s 21 (c) of NDPS Act to which accused pleaded not guilty and claimed trial.
13. DRI/complainant examined following witnesses:
13.1 Sh. A. K. Morya (PW1) Asstt. Chemical Examiner, CRCL, PUSA, New Delhi. He deposed that on 02.08.2010 he was posted as Asstt. Chemical Examiner and on the said date, he received 10 sample packets brought by an officer of DRI on the direction of Ms. Meenakshi Gupta, Chemical Examiner, Incharge, Narcotic Section, CRCL, PUSA. He checked the seal which were found affixed on the ten sample packets with the facsimile given on the Test Memo and forwarding letter. After being satisfied with seal, being intact, he had issued an acknowledgment receipt (Ex. PW1/A) to the officer of DRI. An entry no. 127 dated 02.08.2010 was made with regard to the receipt of sample. He kept the samples in the strong room of CRCL under the supervision of Ms. Meenakshi Gupta. On 18.08.2010, samples were taken out from the strong room in the presence of Ms. Meenakshi Gupta for chemical analysis. He again checked the seal DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 8 of 45 SC No. 01A/2011 affixed on the sample packets and tallied with the facsimile of the seal given on the Test Memo. The samples were checked and analyzed under the supervision of Ms. Meenakshi Gupta and on the basis of its chemical and chromatography examination, each of the sample was found positive for "Diacetylmorphine" (heroin). The Test report is proved by him as Ex.
PW1/B). PW1 further deposed that the analysis report was also given in SectionII of the Test Memo (Ex. PW1/C) at point X to X1. 13.2 Sh. R. Roy (PW2), Intelligence Officer, DRI, Headquarter is the recovery and seizing officer as well as the complainant in this case. He deposed that on 29.07.2010, while working as Intelligence officer in DRI, Headquarter, he was called by Sh. Atul Handa, Deputy Director, DRI, who disclosed to him a secret information (Ex. PW2/A) about a person of African origin, who would be standing at the bus stop, Nirankari Sarover, Burari crossing on the red light leading towards Nirankari colony with narcotic drugs at around 10:00pm for delivery to some person. Sh. Atul Handa also directed him to take necessary action for the possible interception and seizure of the contraband.
13.2.1 PW2 deposed that he constituted a team of the officers consisting of himself, Kamal Sharma, Intelligence Officer, Sujeet Kumar, Intelligence Officer, Sh. Rajpal, Intelligence Officer and one daily wager. He collected the seal of "Directorate of Revenue Intelligence10" from Sh. V. S. Pandey. PW2 called two public witnesses namely, Raju and Rakesh DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 9 of 45 SC No. 01A/2011 at around 08:00pm, who were briefed with the intelligence report available with the Department, and were requested to join as a panch witness, for which they readily agreed. The team of the DRI officers alongwith panch witnesses reached the spot in a Government vehicle. The team kept surveillance and at around 10:0010:10pm, accused, who matched with the description given in the intelligence, came and started waiting. After sometime, he got suspicious that he was being watched, therefore, he started walking towards Nirankari Colony. He was signaled to stop but he started running. He was apprehended after a brief chase and a brief scuffle, during which the accused sustained injury on and around his right eye.
13.2.2 PW2 further deposed that accused was introduced to the public witnesses, in whose presence, accused disclosed his identity. The DRI officers also disclosed their identity to the accused and the secret information available with them. He was served a Notice u/s 50 of NDPS Act (Ex. PW2/B) whereby he was apprised of his right to get his personal and shoulder bag searched in presence of a Gazetted Officer or a Magistrate. Accused, however, opted for search before a Gazetted Officer of DRI at safe place. Thereafter, accused was escorted to the office of DRI in the Government vehicle, where he was introduced to Sh. V. S. Pandey, Senior Intelligence Officer (Gazetted officer). PW2 apprised Sh. V. S. Pandey about the interception of the accused and the reply of DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 10 of 45 SC No. 01A/2011 accused to the Notice u/s 50 of NDPS Act. Sh. V. S. Pandey allowed him to conduct the search, after making endorsement (Ex. PW2/B) on the Notice u/s 50 of NDPS Act.
13.2.3 PW2 further testified that he conducted personal search of the accused and nothing incriminating was recovered except a driving licence. During the search of the bag carried by the accused, which was having marking "The Rim and ILC" on its side pocket, it was found containing 10 polythene packets, which were containing cloth bags, having certain rubber stamp marking, which further contained heat sealed transparent polythene packets containing off white granule powdery substance emanating a pungent smell. He further deposed that all these 10 packets were marked A1 to A10. The gross weight of the packets A1 to A10 was found to 10.432 kg and net weight was found to be 10.204 kg. He drew two representative samples of five gram each from each of the 10 packets A1 to A10 and kept them in a zip locked polythene pouches, which were given marked A1A to A10A and A1B to A10B. The remaining substance was kept in the same packets. Thereafter, all the parcels were sealed with the seal of "Directorate of Revenue Intelligence10". The seal was affixed above on a paper slip, which was pasted on the parcels.
13.2.4 PW2 further deposed that he prepared the Test Memos and the panchnama (Ex. PW2/C) which was signed by the accused, public DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 11 of 45 SC No. 01A/2011 witnesses and Sh. V. S. Pandey. The Test Memos (Ex. PW2/E and Ex. PW1/C) were also signed by him, accused, panch witnesses and Sh. V. S. Pandey. PW2 deposed that case property, samples and test memos were handed over to Sh. K. K. Sood, Deputy Director, DRI immediately, after completion of the panchnama proceedings.
13.2.5 PW2 further deposed that on 30.07.2010, he issued summon u/s 67 of NDPS Act (Ex. PW2/F) to the accused and recorded his statement (Ex. PW2/G). He deposed that after the statement of accused, he was arrested and thereafter, accused was got medically examined at RML Hospital and kept in the lock up of PS Daryaganj. On the next day, accused was again medically examined at RML Hospital. 13.2.6 PW2 further deposed that he had issued notices (Ex. PW2/O and Ex. PW2/P) to the public witnesses namely, Raju and Rakesh respectively. In response to which, they appeared on 04.08.2010and 05.08.2010 and tendered their statements (Ex. PW2/R and Ex. PW2/S) on the respective dates .
13.2.7 PW2 further deposed that he submitted a report u/s 57 of NDPS Act (Ex. PW2/Q) on 31.07.2010 to Sh. V. S. Pandey, Senior Intelligence Officer.
13.2.8 On 02.08.2010, Sh. K. K. Sood had handed over the sealed case property with the deposit memo to him for depositing the same with the Valuable Godown New Customs House and he further deposited the DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 12 of 45 SC No. 01A/2011 same with the officer, incharge, Valuable Godown vide deposit memo (Ex. PW3/A). PW2 deposed that on the same day, he was handed over 10 sample packets by Sh. K. K. Sood alongwith forwarding letter (Ex. PW4/D) and he deposited the samples with the Test Memo in duplicate at CRCL, PUSA. After completion of investigation, he filed the complaint (Ex. PW2/E).
13.3 Sh. Lakhi Ram (PW3) Inspector Customs, Valuable Godown New Customs House , near IGI Airport, New Delhi deposed that on 02.08.2010 on the direction of Sh. Niranjan, Asstt. Commissioner, Disposal, he had received the case property having seal of "Directorate of Revenue Intelligence10" and he kept the same in the Valuable Godown for safe custody and issued an acknowledgment (Ex. PW3/A). 13.4 Sh. K. K. Sood (PW4) Deputy Director, DRI, Headquarter deposed that on 30.07.2010, at around 06:00am, after completion of panchnama proceedings, Sh. R. Roy, Intelligence Officer had handed over to him the sealed pullandas of the case property, 10 samples and Test Memos for safe custody. He kept the case property in the safe custody under lock. PW4 deposed that he also issued search authorization (Ex. PW4/A) in the name of Sh. Ajay Bhasin for the search of premises no. 26/4, ground floor, Indira Vikas Colony, Delhi. He deposed that on 02.08.2010, he handed over one set of samples to Sh. R. Roy with a forwarding letter (Ex. PW4/D) to deposit the same in CRCL for chemical DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 13 of 45 SC No. 01A/2011 analysis. On the same day, he handed over the sealed seized goods for depositing in Valuable Godown vide deposit memo (Ex. PW3/A). On 27.09.2010, he received the report of CRCL in sealed condition, which he handed over the IO.
13.5 Sh. Atul Handa (PW5) Deputy Director, DRI deposed that on 29.07.2010, Sh. Sujeet Kumar, Intelligence Officer had placed before him the Intelligence Report (Ex. PW2/A) regarding a person of African origin, who would be carrying narcotic drugs for supply to some person. He deposed that he made endorsement on the Intelligence report (Ex. PW2/A) at point X to X1 and directed Sh. R. Roy, Intelligence Officer for taking necessary action for possible interception and seizure of the contraband.
13.6 Sh. Sujeet Kumar (PW6) Intelligence Officer deposed that on 29.07.2010 at about 05:15pm, he had received a secret information (Ex. PW2/A). He put up the same before Sh. Atul Handa, the then Deputy Director, DRI. PW6 deposed that he was also a member of team constituted for the possible interception and seizure of contraband on the basis of the information. He has further deposed about joining of two public witnesses and reaching at the spot. He further deposed about the apprehension of accused; service of Notice u/s 50 of NDPS Act to the accused. PW6 deposed that Sh. V. S. Pandey had allowed the search of the accused and his bag in his presence and pursuant thereto, the DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 14 of 45 SC No. 01A/2011 personal search of the accused was conducted by Sh. R. Roy, in which one driving licence was recovered and from the search of the bag of accused, 10 heat sealed transparent polythenes were recovered. Thereafter, he left the place.
13.7 Sh. Ajay Bhasin (PW7) Intelligence Officer, DRI, Headquarter deposed that on 30.07.2010, he was directed by Sh. K. K. Sood to conduct search vide search authorization (Ex.PW4/A) at the residential premises of the accused. He deposed that search of the premises was conducted in the presence of one Sh. Bihari Lal Chabra, owner of the premises.
13.7.1 PW7 prepared the panchnama (Ex. PW7/A). He has deposed that during the search of the premises, Rs. 33,600/ and 964 US $ were recovered, which were handed over to Sh. Joel Mose, a friend of accused.
13.8 Sh. V. S. Pandey (PW8) deposed that on 29.07.2010, he had issued the seal of "Directorate of Revenue Intelligence10" to Sh. R. Roy. He deposed that on the same day at about 11:30pm, Sh. R. Roy had informed him about the apprehension of the accused and that accused has opted for his search in the presence of a Gazetted Officer of DRI. He deposed that he allowed the search of the accused by making an endorsement on the Notice (Ex. PW2/B) at point X to X1. This witness has deposed about search of the bag, from which ten packets were DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 15 of 45 SC No. 01A/2011 recovered containing "heroin".
13.8.1 PW8 is also a witness to the preparation of the panchnama prepared by Sh. R. Roy and Report u/s 57 of NDPS Act was also submitted to him. PW8 has also produced the register containing an entry with regard to seal movement and proved the relevant entry (Ex. PW2/U). 13.9 Sh. Bihari Lal Chabra (PW9) owner of premises no. 26/4, ground floor, Indira Vikas Colony, Delhi deposed that he rented out this house to the accused on monthly rent. He deposed that some officers had come to the premises for the purpose of search of the tenanted premises, which was conducted, for which panchnama (Ex. PW7/A) was prepared, which was signed by him. PW9 had handed over the copy of rent agreement (Ex. PW9/A); tenant verification (Ex. PW9/B), FRRO, Delhi Police form (Ex. PW9/C) to the DRI officials. He identified the accused in the Court correctly.
13.10 Ms. Meenakshi Gupta (PW10) has deposed about the receipt of ten sealed sample packets brought to the laboratory for the purpose of chemical analysis. She deposed that samples were allotted to Sh. A. K. Morya, Asstt. Chemical Examiner, who kept them in strong room in her presence. PW10 deposed that samples were taken out in her presence and same were opened for the purpose of analysis in her presence. The analysis report (Ex. PW1/B) was issued bearing her signatures at point A. DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 16 of 45 SC No. 01A/2011 13.11 Dr. Rashmi (PW11) has proved Medical Examination of accused dated 31.07.2010 (Ex. PW11/A). Sh. Om Prakash Meena (PW12) has proved MLC no. E/110409/10 dated 31.07.2010 (Ex. PW12/A) of the accused.
14. All the incriminating evidence in the statement of Prosecution Witnesses was explained to the accused when he was examined u/s 313 Cr. PC. Accused claimed that he was falsely implicated in this case. With regard to his apprehension, he stated that on 29.07.2010, he was standing outside his house with his Honda Activa Scooter, when some persons in plain clothes came to him and forcibly took him to the office, where he was illegally kept and he was repeatedly asked about some other person, whom he did not know. He was also threatened, pressurized and beaten by these officers, his family history was obtained. He was forced to write a dictated statement and also sign certain blank papers. He stated that no public witness/person was present in the office of DRI. He stated that when he was taken to RML Hospital, he was threatened not to disclose anything to the doctor. He was advised admission by the doctor but the DRI officials managed his discharge. He further stated that he received injuries when he was given fist blows on his face.
15. Accused preferred to lead Defence Evidence and one Sushila, Asstt. Manager, State Bank of India, Vijay Nagar has DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 17 of 45 SC No. 01A/2011 appeared as DW1. As per the case of prosecution, accused had come from Punjab on 29.07.2010 with the narcotic drugs. It is so recorded in the statement u/s 67 of NDPS Act (Ex. PW2/G) purported to be tendered by the accused. To counter this averment in the statement u/s 67 of NDPS Act (Ex. PW2/G) and to establish that he was forced to write the statement, accused has examined this witness to prove that on 29.07.2010, he had visited his bank and deposited the amount in the account. DW1 has deposed that on 29.07.2010, a sum of Rs. 25,000/ was deposited in cash in State Bank of India, Vijay Nagar Branch. The deposit slip (Ex. DW1/A) bears the signatures of depositor at point A and his mobile phone number at point B. Case of the accused is that the signature appearing at point A are his signature and the mobile phone number mentioned at point B is his mobile phone number. 15.1 Accused has also examined Sh. Raghuvir, Asstt. Superintendent, Central Jail, Patiala, Punjab as DW2. In the statement u/s 67 of NDPS Act, it had come that the accused had met with one Kefa, a convict lodged in Central Jail, Patiala, Punjab. To counter this, accused had summoned DW2, who brought the summoned record of the visitors to the above said jail having record from 15.06.2010 to 29.06.2010. He has produced the register (Ex. DW2/B). As per the entry at sl. no. 209 dated 29.06.2010, one Jimmy s/o Jogo r/o 129, Lajpat Nagar, Delhi had visited the convictKefa in Central Jail, Patiala, Punjab. He deposed that as per DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 18 of 45 SC No. 01A/2011 record, none other than Jimmy had visited this convict in Jail. 15.2 Accused with the permission of the Court had examined himself as DW4 u/s 315 Cr. PC.
15.3 It may be clarified that there is no DW3 in the present case. Infact, DW2 was examined on 17.09.2014 and thereafter, accused had moved an application for appearing as defence witness, which was allowed. Pursuant to which he examined himself on 16.09.2015. However, inadvertently, he has been given sl. no. as DW4.
15.4 Accused (DW4) has repeated whatever he has stated in his statement u/s 313 Cr. PC with more details. In nut shell, his statement is to the effect that he was picked up by the officers of DRI on 29.07.2010 at 09:3009:45pm when he was standing outside his rented house. He has deposed that he has never visited Patiala and on that date, he was in Delhi and visited State Bank of India, Mukherjee Nagar to deposit money. He also stated that he obtained the details pertaining the public witnesses namely, Raju and Rakesh from S. P. Darbhanga, Bihar. He placed on record RTI reply on the record as MarkA.
16. I have heard submissions advanced by Ms. Mala Sharma Ld. SPP for the DRI/complainant and Sh. Yogesh Kumar Saxena Learned counsel for accused.
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17. Learned SPP for DRI has argued that the case of complainant has been proved beyond reasonable doubt. The recovery has been proved from the possession of the accused by Sh. R. Roy (PW2), Sh Sujeet Kumar(PW6) and Sh. V. S. Pandey (PW8). It was submitted that all the statutory compliances have been made. The samples have been kept in the safe custody, after being duly sealed and there is evidence on record in the statement of A. K. Morya (PW1), K. K. Sood (PW4) and Ms. Meenakshi Gupta (PW10), which establish that the seal on the sample remain intact right from the time they were taken and sealed and till the time they reach CRCL, Pusa. Thus, the link evidence is complete. It was submitted that there is no reason for false implication on the accused. When such a huge recovery of contraband has been effected, the plea of false implication becomes very fragile. It was further submitted by Ld. SPP that accused has been found in possession of narcotic drug and therefore, a presumption about the "conscious possession" of narcotic drug and substance can be drawn in terms of Section 35 and Section 54 of NDPS Act. It was submitted that Prosecution witnesses have deposed after a considerable time, therefore, some contradictions in their statements here and there were bound to occur and no significance should be attached to the contradictions.
DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 20 of 45 SC No. 01A/2011
18. Learned Defence counsel had filed Written Submissions and adduced oral arguments as well. Learned counsel for accused has taken the plea that Prosecution could not establish conscious possession of contraband by the accused. It was further submitted that no public witness was associated at the time of alleged recovery and the panch witnesses, named in the list of witnesses namely, Raju and Rakesh are fictitious persons and this fact is evident from the record. To support this argument, Learned counsel for accused has relied upon certified copy of Judgment of this Court "DRI vs Samson Chukwundi & ors", which has been filed on record. He submitted that the case of Prosecution that accused was apprehended on 29.07.2010, after he came from Patiala has been demolished by the defence witnesses, who have established that the accused was very much present in Delhi on 29.07.2010. He submitted that panchnama, which was allegedly prepared with regard to recovery proceedings, is conspicuously silent about the DRI officials, who had participated in the raid, search and seizure proceedings. Learned defence counsel further submitted that service of Notice u/s 50 of NDPS Act upon the accused is also not as per law and perusal of the same (Ex. PW2/B) would show that it has been prepared much later. Learned counsel has further argued that statement of accused recorded u/s 67 of NDPS Act is neither truthful nor voluntary. Accused has sustained injury when he was in custody of DRI, which DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 21 of 45 SC No. 01A/2011 leads to an inference that accused has been tortured to obtain his statement. It was further submitted that statement u/s 67 of NDPS Act has been proved wrong by the accused by leading Defence Evidence, which falsify the contents of statement u/s 67 of NDPS Act. He further submitted that link evidence is missing in this case and so far as, the statutory presumption is concerned, it was argued that before such a presumption is drawn, the Prosecution has to establish its case against the accused that he was in possession of the contraband.
19. DRI had filed Written Submissions in rebuttal and has controverted the submissions made by Learned Defence Counsel.
20. Case of DRI against accused is that he has kept in possession more than 10 kg of Heroin in contravention of Section 8 (c) of NDPS Act, which prohibit the possession of any narcotic drug or Psychotropic substance. In view of allegations against the accused of keeping in possession of narcotic drug, the fundamental question, which was to be answered in favour of Prosecution was that the accused was in possession of any narcotic drug or the recovery of more than 10 kg of Heroin has been effected from the possession of the accused. To prove it case against the accused for the offence punishable u/s 21 of NDPS Act, it was incumbent upon the Prosecution/DRI first to prove the "recovery" of contraband substance from the possession of accused. DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 22 of 45 SC No. 01A/2011
21. It is well settled that the onus of proving its case beyond reasonable doubts is always upon the Prosecution and in a case under an enactment like the NDPS Act laying down severe punishments, this onus becomes more high in degree and the duty of the Court is to ensure that the provisions of such an enactment are complied with strictly and a higher degree of assurance is required for convicting the accused. Reference in this regard can be made to the Judgment of Hon'ble Supreme Court in case of State of Punjab vs Baldev Singh 1999 Drugs Cases 150: (1999) 3 SCC 977, wherein it was held that:
"It must be born in mind that severe the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed"
22. Reference can also be made to another Judgment of the Hon'ble Apex Court in the case of Mausam Singh Roy vs State of WB (2003) 12 SCC 377 wherein also it was held that "It is a settled principle of criminal jurisprudence that the more serious the offence is, the stricter is the degree of proof, since a higher degree of assurance is required to convict the accused."
23. The recovery of contraband substance from the possession of an accused acquire importance in view of the provisions of Section 35 DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 23 of 45 SC No. 01A/2011 and 54 of NDPS Act.
24. Section 35 of NDPS Act provides that if any criminal intent to possess narcotic or psychotropic substance is required to be proved, then the Court can presume the existence of such criminal intent on the part of accused, if he is found in possession of contraband substance.
25. Section 54 of NDPS Act further provides that if the accused fails to satisfactorily account for the possession of contraband substance, the Court shall presume that he has committed the offence under the Act.
26. However, it is also well settled that even despite the above presumptions contained in the above said Sections, the initial burden of proving its case always remains upon the Prosecution. Reference in this regard can be made to another Judgment of the Hon'ble Supreme in case of Noor Aga vs State of Punjab & anr. (2008) 16 SCC 417 wherein the following observations were made by their Lordships:
"Section 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 24 of 45 SC No. 01A/2011 initial burn exists upon the Prosecution and only when it stands satisfied, the legal burden would shift."
27. It was further held;
"If the Prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.
28. In the light of this position of law, the evidence on record need to be appreciated. A secret information/intelligence report (Ex. PW2/A) was received by Sh. Sujeet Kumar (PW6) Intelligence Officer with DRI, HQ. It was received at 05:35pm. This information was put up before Sh. Atul Handa (PW5), who was the Deputy Director, DRI, HQ on 29.07.2010. He assigned the investigation to Sh. R. Roy (PW2) Intelligence Officer, DRI for taking necessary action. Sh. R. Roy (PW2) then constituted a team of DRI officials to conduct a raid at the place which was mentioned in the Intelligence Report. The information was to the effect that a person of African origin of approximately 6 ft height, medium built and aged around 40 years, would be standing at the bus stop at Nirankari Sarover, Burari crossing on the red light leading towards Nirankari colony, Delhi and he would be in possession of narcotic either on his person or in a shoulder bag being carried by him. Sh. R. Roy (PW2) included Sh. Kamal Sharma, Intelligence Officer, Sh. DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 25 of 45 SC No. 01A/2011 Sujit Kumar, Intelligence Officer, Sh. Rajpal, Intelligence Officer and one daily wager in his team. He also collected a seal of "Directorate of Revenue Intelligence10" from Sh. V. S. Pandey, Senior Intelligence Officer (PW8). It is pertinent to mention that name of the officers, included in the team is neither mentioned in the complaint (Ex. PW2/J) nor in the panchnama (Ex. PW2/C) which has been prepared by Sh. R. Roy (PW2).
29. Sh. R. Roy (PW2) had also called two public witnesses namely, Raju and Rakesh. They were called from the nearby area of ITO where the office of DRI is situated. The case of Prosecution /DRI is that the team constituted by Sh. R. Roy (PW2) apprehended the accused at 10:10pm and after serving him Notice u/s 50 of NDPS Act, informing him about his legal right of having his search before a Gazetted Officer or a Magistrate, he was brought to the office of DRI for his search before a Gazetted Officer of DRI, as per the desire of the accused.
30. Sh. V. S. Pandey, Senior Intelligence Officer (PW8) being the Gazetted Officer authorised the search of the accused. It was witnessed by the members of the team. However, no where it has come in the complaint or in the panchnama that recovery was also witnessed by Sh. Kamal Sharma, Intelligence Officer and Sh. Rajpal, Intelligence Officer. So far as one daily wager, who had accompanied the team, Sh. R. Roy (PW2) has stated that he does not know his name. Although, he DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 26 of 45 SC No. 01A/2011 admitted that this daily wager witnessed the proceedings of recovery. But the reason best known to the complainant, he is also not cited as a witness. So far as Sh. Kamal Sharma and Sh. Rajpal, both Intelligence Officers are concerned, it is not clear whether they witnessed the recovery proceedings or had left the spot after reaching the office of DRI. If they had witnessed recovery, why they are not cited as witness?
31. Prosecution has now two witnesses, with regard to the apprehension of accused, i.e. Sh. R. Roy (PW2) and Sh. Sujeet Kumar (PW6) and three witnesses with regard to recovery i.e. Sh. R. Roy (PW2), Sh. Sujeet Kumar (PW6) and Sh. V. S. Pandey (PW8). Prosecution has examined these three witnesses but the public witnesses/panch witnesses namely, Raju and Rakesh have not been examined. Nonexamination of these public witnesses would not have made much difference, had they been found not available at the given address or they having left the given address, because that would not have been cast doubt on the proceedings conducted by Sh. R. Roy (PW2), with regard to the recovery. Panch witnesses namely, Raju has been dropped by the Prosecution on 18.08.2011 and Panch witnesses namely, Rakesh has been dropped by the Prosecution on 31.10.2011. The reason for dropping panch witness Raju was that address was not complete and reason for dropping panch witness Rakesh was that he was not residing at the given address.
DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 27 of 45 SC No. 01A/2011
32. Learned defence counsel has vehemently argued that panch witness Raju is fictitious person and infact no person with this name either existed and DRI has been using some person, who has been appearing in different cases with different names. He submitted that there was a case titled as DRI vs Sampson Chukwudi & ors. SC No. 47A/09, which was pending in this very Court and has been decided on 11.05.2015 leading to the acquittal of the accused therein. (Learned Counsel for accused has filed certified copy of Judgment in the case of DRI vs Sampson Chukwudi & ors. SC No. 47A/09)
33. Learned counsel had argued that there was a panch witness with the name of Sh. Ashok Kumar in the case of DRI vs Sampson Chukwudi & ors. SC No. 47A/09, whose statement u/s 67 of NDPS Act was recorded. In the said case on the application of accused, the said statement u/s 67 of NDPS Act of Sh. Ashok Kumar, panch witness and the statement u/s 67 of NDPS Act of Sh. Raju in the present case (Ex. PW2/R) and their signatures on panchnama were sent for comparison of signature and writing on these documents and the report was submitted by Sh. Jiju P. V (CW3) in the case of DRI vs Sampson Chukwudi & ors. SC No. 47A/09, which established that the statement u/s 67 of NDPS Act purported to be that of Sh. Ashok Kumar and signatures on the panchnama (Ex. PW2/Q and Ex. PW2/D respectively in DRI vs Sampson Chukwudi & ors. SC No. 47A/09) which are marked DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 28 of 45 SC No. 01A/2011 Q1 to Q11 and the questioned signatures marked Q22 to Q42 of Sh. Raju, panch witness in the present case on the panchnama and other documents are of the same person. Learned counsel has filed certified copy of the FSL report dated 28.07.2014 filed by Dr. Jiju P. V in the case of DRI vs Sampson Chukwudi & ors. SC No. 47A/09.
34. So far as panch witness Raju is concerned, statement of Sh. R. Roy (PW2), who is the complainant as well as seizing officer in this case, would show that no effort was made by him to ascertain the identity of this witness. The reason for this omission is not given by Sh. R. Roy (PW2). Sh. R. Roy (PW2) deposed that panch witnesses were brought by one of his colleague but he does not remember the name of said colleague. He is also not aware whether said colleague has been made a witness in the present case. He admitted that he did not check the identification document of Sh. Rajupanch witness. In cross examination, PW2 deposed that he does not know if any panch witnesses were made witness in any case of DRI, having address of C56, Mandawali, Fazalpur, Delhi92. He deposed that he does not know that in case of DRI vs Sampson Chukwudi & ors. SC No. 47A/09, the address of Sh. Ashok Kumarpanch witness was the same as that of Sh. Rajupanch witness in the present case. It is pertinent to mention that Sh. R. Roy (PW2) has been examined as Court witness in case of DRI vs Sampson Chukwudi & ors. SC No. 47A/09.
DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 29 of 45 SC No. 01A/2011
35. During cross examination of Sh. R. Roy (PW2), case file DRI vs Sampson Chukwudi & ors. SC No. 47A/09 was summoned through the Ahlmad. After seeing the file, PW2 admitted that address of Sh. Ashok Kumar and Sh. Vinod Kumar, both panch witnesses in DRI vs Sampson Chukwudi & ors. SC No. 47A/09 and that of Sh. Rajupanch witness in this case, is the same i.e. C56, Mandawali, Fazalpur, Delhi92. PW2 has further deposed that the statement u/s 67 of NDPS Act (Ex. PW2/R) of Sh. Rajupanch witness was tendered by him in his own hand writing. This witness was also shown the statement of Sh. Ashok Kumarpanch witness in DRI vs Sampson Chukwudi & ors. SC No. 47A/09 purported to be in the handwriting of said Ashok Kumar. The said statement of Sh. Ashok Kumar, which was marked as Ex. PW2/Q in DRI vs Sampson Chukwudi & ors. SC No. 47A/09 was marked as Ex. PW2/DA in the present case. PW2 deposed that handwriting on the statement (Ex. PW2/R) of Raju in the present case and handwriting on the statement (Ex. PW2/DA) of Ashok Kumar in SC No. 47A/09 are not of the same person.
36. The statement (Ex. PW2/R) of Sh. Raju s/o Sh. Raj Kumar has been written by a person named Raju, who is panch witness in the present case, in his own handwriting, as per the statement of Sh. R. Roy (PW2). The statement (Ex. PW2/DA) of Sh. Ashok in SC No. 47A/09 has been placed on record in this case. The first similarity or nexus DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 30 of 45 SC No. 01A/2011 between Raju and Ashok is that they both are resident of same premises i.e. C56, Mandawali, Fazalpur, Delhi92. So far as, the report on record on the said address is concerned, I will take it up lateron. Here, I intend to notice that the handwriting on Ex. PW2/R and Ex. PW2/DA are of the same person. Even a layman, not very conversant with the science of handwriting examination, with his naked eye can make out that the handwriting on both the statements are same. The formation of words "Aa" in word Ashok in statement (Ex. PW2/DA) and words "Aa" in apna, aapke etc., in statement (Ex. PW2/R) are absolutely same. Similarly, the formation of words "Ja" in words Raju, Fazalpur in statement (Ex. PW2/R) and words Fazalpur, darz in statement (Ex. PW2/DA) are same.
37. The similarity in the handwriting of public witness in the case of DRI vs Sampson Chukwudi & ors. SC No. 47A/09 with that of the statement of Raju in the present case leads to an inference raise a very serious doubt that both the statements are written by the same person. Therefore, the chances of these two witnesses being different person is negligible. Thus, a serious doubt about the identity of panch witness Raju arise in the present case. Whether Raju is fictitious person? The answer to this question in all probabilities would be in affirmative. The version of the Prosecution therefore, that they had joined public witness at the time of apprehension of the accused and subsequent recovery of contraband from his possession appear to be false and DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 31 of 45 SC No. 01A/2011 therefore, the very edifice of the Prosecution case is shaken on this ground alone.
38. Summons to the panch witness Raju were sent at the C56, Mandawali, Fazalpur, Delhi92 for the date 19.07.2011 and report was received that there are about nine shops in C56/A and in none of these shop any person by the name of Raju s/o Sh. Raj Kumar resides. This report was submitted by one HC Satyapal Singh. Thereafter, PWRaju was again summoned at the same address through IO of the case for 18.08.2011. This time, however, the report was received that the address is not complete. Meaning thereby, the address C56/A was not traced. Interestingly, this report is again given by the same person i.e HC Satyapal Singh. This report is also endorsed by Sh. R. Roy on 08.08.2011, who was the Senior Intelligence Officer of DRI. The credibility of Sh. R. Roy (PW2) is shaken from the fact that during his examination, he had stated, "I have not received any summon from this Court for serving the same to the panch witnesses of this case as IO of the case. It has never been to my knowledge that the public witnesses of this case are not traceable at the given address. I have even no knowledge whether they had appeared in this case or not for their examination. I am also not aware as to who had taken their summons for service".
DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 32 of 45 SC No. 01A/2011
39. This statement of Sh. R. Roy (PW2) is apparently a false statement. His endorsement on the summons of PWRaju, which were directed to be served through IO, falsify his statement. (This report on summon and endorsement of Sh. R. Roy on same is now being marked as 'CX' for the purpose of identification.)
40. Therefore, despite being an official witness, who carry a great respect from Courts, I am constrained to observe that this witness has deliberately tried to mislead the Court while deposing in the case. Therefore, the entire Prosecution story that accused was apprehended in the presence of panch witnesses is turned out to be false.
41. So far as Sh. R. Roy (PW2) is concerned, he is official witness and official witnesses carry the same command, respect and treatment from the Court as any other witness. The law has gone to the extent that if the statement of official witness is found unimpeachable, it can solely become the basis of conviction even in the absence of corroboration from public witnesses. Therefore, it is expected from the official witnesses to maintain the standard of investigation and credibility as expected from them. In the present case, Sh. R. Roy (PW2)stated that he had taken the official team of DRI to the spot in a Government vehicle but he does not know even the name of the driver. He submitted that he called two panch witnesses in the office of DRI itself before proceeding for raid, but he does not know who had brought these panch DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 33 of 45 SC No. 01A/2011 witnesses to the office. He joined one daily wager as a witness to the proceedings. He does not know even his name. When such a witness had seen the proceedings of recovery, not disclosing his name, amount to withholding a witness from the Court. He has not bothered even to take a copy of the log book of the vehicle, which could have added credibility to the Prosecution case that the team had visited the spot in the official vehicle.
42. Another aspect pertaining to recovery of contraband from the possession of the accused is that this recovery has been effected in the presence of Sh. V. S. Pandey (PW8), who was a Gazetted Officer. This witness has not been able to explain his presence in the office at 11:30pm on the night of 29.07.2010. He deposed; "when there is no special work, he used to leave office around 07:0008:00pm and his official hours are from 09:30am to 06:00pm." He deposed that being a preventive office, SIO have to do work late in the office, whenever it is required. There cannot be any dispute with the fact that the officers of Intelligence Department can have no fixed working hours and they have to remain present in office in odd hours depending on exigency of their duty. But in the present case, Sh. V. S. Pandey (PW8) has failed to explain why he was present in the office on 29.07.2010 at 11:30pm.
43. Sh. R. Roy (PW2) has deposed in his cross examination that they had left the office at 08:30/08:45pm and at that time Sh. V. S. DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 34 of 45 SC No. 01A/2011 Pandey (PW8) was present in the office. But he is not aware whether Sh. V. S. Pandey (PW8) had left the office thereafter. Sh. R. Roy (PW2) further deposed that they left the spot at 11:00pm on 29.07.2010 and reached the office at around 11:15 or 11:30pm. He further deposed that Sh. V. S. Pandey (PW8) was informed after their arrival in the office. He was briefed about the fact of interception. Meaning thereby, when the accused was apprehended and accused opted for his search before a Gazetted Officer of DRI, no communication was sent to Sh. V. S. Pandey (PW8) to remain present in the office, till the DRI team alongwith accused reached in the office. No communication between Sh. R. Roy (PW2) and Sh. V. S. Pandey (PW8) has taken place in this regard. Therefore, this question had arisen as to why Sh. V. S. Pandey (PW8) was present in the office at 11:30pm. This caste doubt on the proceedings of recovery and preparation of panchnama in the office at the time, as mentioned in the complaint and deposed to by Sh. R. Roy (PW2) and Sh. V. S. Pandey (PW8).
44. In view of evidence, which has been discussed above, one cannot say that the statement of official witnesses in the case is of unimpeachable character. The complainant/DRI has joined panch witnesses but dropped these witnesses. One of the panch witness Raju is found to be a fictitious person, which cause a serious doubt on the entire version of the complaint. Second panch witness Rakesh is not DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 35 of 45 SC No. 01A/2011 available at the given address. The Intelligence Officer, who called the panch witnesses, must have been aware that the presence of these witnesses would be required during the trial. Therefore, it was incumbent upon him to ascertain the identity of the witnesses as well as their addresses. I need not comment further whether this omission on the part of Sh. R. Roy (PW2) is deliberate to avoid the production of panch witnesses in the Court or it is lack of diligence on his part.
45. DRI/complainant has also relied upon the statement of accused u/s 67 of NDPS Act (Ex.PW2/G), to prove recovery from him, claiming that it is voluntary and therefore, admissible against him. So far as the statement u/s 67 of NDPS Act is concerned, under the NDPS Act, such a statement is admissible in the evidence and there is no dispute with this proposition. However, there is rider that the statement must be truthful and voluntary.
46. It is well settled that a statement made by an accused U/S 67 of the NDPS Act is admissible in evidence and can be acted upon by the court if it is found to be made voluntarily. In the case of Kanhaiya Lal Vs. Union of India AIR 2008 SC 1044, it was held by the Hon'ble Apex Court that;
"such a statement made by an accused is admissible in evidence as the same is made by him at a time when he was not under arrest and hence neither the bar of Sections DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 36 of 45 SC No. 01A/2011 24 to 27 of the Evidence Act would operate nor the provisions of Article 20(3) of the Constitution would be attracted."
47. Several other judgments of the Hon'ble Supreme Court and of different High Courts are also to the same effect and the only requirement for the court before acting upon such a statement is that the court has to satisfy itself that such a statement was not made under some threat, coercion or influence etc. and was made by the accused voluntarily.
48. However, if such a confessional statement made by an accused is retracted subsequently, then the position is changed and it is well settled that in such a case the court has to look into the facts and circumstances of the case and the retraction to see if the confessional statement of the accused was in fact made voluntarily or not.
49. In case Union of India Vs Bal Mukund and Ors. 2009 (2) JCC (Narcotics) 76, it was held that conviction should not be based merely on the basis of a statement made u/s 67 of the NDPS Act without an independent corroboration particularly in view of the fact that such statements have already been retracted. In the case of Noor Aga Vs State of Punjab& Anr.(supra) it was held that the confessional statement of an accused like that the one u/s 108 of the Customs Act is considered to be a very week piece of evidence and it will not be safe to convict the DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 37 of 45 SC No. 01A/2011 accused on the basis of such a statement though such a statement is technically admissible in evidence and is not hit by Section 25 of the Evidence Act or Article 20(3) of the constitution.
50. Besides the above judgments, the Hon'ble Supreme Court in case Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 held that though as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made u/s 67 of the NDPS Act, but as of a rule of prudence the court requires some corroboration thereof.
51. Thus, the confessional statement of the accused under the above said provisions (i.e. statement under Section 67 of NDPS Act) is not to be acted upon to make it the sole basis of the conviction of an accused and even if his retraction on record is not proved as per the Evidence Act, the court has to look forward for some independent corroboration of the same as a rule of prudence.
52. Statement u/s 67 of NDPS Act therefore, has to pass twin test of voluntariness and truthfulness, before it is accepted and read against an accused.
53. In the present case, statement (Ex. PW2/G) u/s 67 of NDPS Act of accused fails to pass this test. It neither appears to be voluntary nor it appears to be correct and truthful. The accused in his statement u/s 313 Cr. PC has taken the plea that his statement has been taken DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 38 of 45 SC No. 01A/2011 forcibly and he did not given any voluntary statement. He had submitted that his family history was obtained by the officials of DRI. He was forced to copy a written document. He retracted his statement at the first available opportunity. The accused himself appears as DW4 u/s 315 Cr. PC where he again has stated that he was taken to the office of DRI where he was beaten and DRI officials were asking to him about a Nigerian person. He was beaten to the extent that he received serious injury on his eye. He was taken to the hospital. The doctor had advised his admission in the hospital but the DRI officials went inside the hospital and convinced the doctor not to admit him. This fact that doctor had advised the admission of the accused is evident from the fact that a discharge summary (Ex. PW2/K) has been prepared at the RML Hospital. It shows the admission of the accused on 30.07.2010 at 09:45pm and discharge on the same date at 10:00pm. Had it been a case of simple medical examination for legal purposes, the preparation of MLC (Ex. PW12/A) would have been sufficient. But the process of his admission in the hospital and his discharge from the hospital lends credence to the version of the accused that doctor had advised his admission in the hospital, which established that the accused was having sufficient injury on his person, requiring his admission.
54. DRI/complainant has taken a plea that accused had a scuffle as he had tried to escape when he was being apprehended, as a DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 39 of 45 SC No. 01A/2011 result, he might have received the injury. Now, if the accused was apprehended at 10:10pm on 29.07.2010 and as per DRI/complainant, during the scuffle, he had received injury on and around his right eye, was it not appropriate for the DRI official to get medical treatment of the accused immediately? DRI officials waited to complete all their formalities and took the accused for medical examination after 24 hours. Thus, possibility cannot be ruled out that accused did not receive any injury at the time of his apprehension. This raise a serious doubt that even the panchnama (Ex. PW2/C) has been prepared, after the accused has been injured because there is a reference to this injury in panchnama. A very serious doubt is created that statement u/s 67 of NDPS Act of the accused is voluntary.
55. Then statement (Ex. PW2/G) u/s 67 of NDPS Act is also not truthful. What is stated in the statement has been disproved by the defence witnesses. DRI/complainant has believed what is written in the statement and proceeded on the premise that the statement is correct. Accused throughout, has been denying that this statement was given voluntarily. Learned counsel for accused had argued that the contents of statement (Ex. PW2/G) were written by the accused under pressure, as per the wish of the officials of DRI.
56. In the statement (Ex. PW2/G) u/s 67 of NDPS Act, it is stated that accused went to Patiala on 29.07.2010 at about 09:00am and DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 40 of 45 SC No. 01A/2011 met one Amrit Singh near Gurudwara, Dukh Niwaran Sahib, where he was given a black bag carrying ten packets of "heroin". He took the bag to Delhi by bus, reached in the evening on 29.07.2010 and thereafter, he went to his residence. This statement shows that on 29.07.2010, during the day time, the accused was in Patiala or in the journey. Accused has examined Ms. Sushila Sagar, Asstt. Manager, SBI as DW1. She has deposed that on 29.07.2010, a sum of Rs. 25,000/ was deposited in cash in account no. 31194435869. She had brought the original deposit slip and deposed that the signatures of the depositor was at point A with his mobile phone at point B. Accused submitted that the signatures at point A belongs to him and telephone number mentioned therein is also his mobile phone number. It was argued by Learned Defence counsel that a bare eyes comparing with the signatures appearing on the statement of accused (Ex. PW2/G) u/s 67 of NDPS Act with the signatures appearing at point A on deposit receipt (Ex. DW1/A) would show that the signatures are same. A bare eyes comparison of signature on Ex. PW2/G and Ex. DW1/A would show uncanny similarity.
57. It was further argued on behalf of accused that as per statement u/s 67 of NDPS Act, a person namely, Kefa, is lodged in Patiala Jail, Punjab and sometime back, accused had gone to see him in Patiala Jail, Punjab, where he also met with a person named Amrit Singh. Learned counsel for accused argued that this is also a wrong fact. DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 41 of 45 SC No. 01A/2011 Accused has never visited Kefa in Patiala Jail, Punjab for this purpose. He has relied upon statement of Sh. Raghuvir (DW2) , who deposed that on the basis of the record. He brought a Visitors Register of Central Jail, Patiala, Punjab for the period 15.06.2010 to 29.06.2010. He brought the same in the Court as DW2 and he also placed on record authorization on behalf of Superintendent of Jail to produce this record vide letter of authorisation (Ex. DW2/A). As per this record, the convict Kefa has been visited only by one Jimmy in the jail. Meaning thereby, no person by the name of Samson has visited the convicted Kefa in the jail.
58. Learned SPP for the DRI argued that defence taken by the accused has not been proved. It was also argued that such a huge quantity of contraband can not be planted from the accused.
59. The basic principal of criminal trial is that Prosecution has to prove its case "beyond reasonable doubt" and the accused can establish and prove its case on the basis of "preponderance of probabilities". In the case of Noor Aga vs State of Punjab & anr (supra) , Hon'ble Supreme Court observed that standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas, standard of proof required to prove the guilt of the accused and the Prosecution is "beyond all reasonable doubt", but this "preponderance of probability on the accused". DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 42 of 45 SC No. 01A/2011
60. Thus, the evidence, which the accused has led may not prove his defence beyond reasonable doubt, but it has definitely raised a serious doubt on the prosecution case. Accused cannot answer the question why such a huge quantity of contraband would be planted upon him. False plantation of contraband substance, when the recovery is heavy may be rare, but is not impossible.
61. In case NCB vs Anju Tiwari Crl L. P. No. 353/12, decided on 05.11.2014. Hon'ble High Court observed as under:
"The Court would like to observe that conviction cannot depend only on the fact that a huge quantity of heroin is shown to have been seized. Also the argument that the prosecution will not needlessly implicate innocent persons does not impress the court. The NCB has to discharge the burden of proving beyond reasonable doubts that it is respondents, who are guilty of the offences with which they have been charged."
62. Hon'ble Supreme Court in Noor Aga vs State of Punjab & anr (supra) has observed that "It is also necessary to bear in mind that superficially case may have an ugly look and thereby primafacie, shaking the conscience of any Court, but it is well settled that suspicion, however high may be, can under no DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 43 of 45 SC No. 01A/2011 circumstances be held to be substitute for legal evidence."
63. This Court has very serious doubt about the recovery of contraband from the possession of accused in this case. The very story of DRI /complainant that recovery of 10.442 kg of "heroin" was effected from the accused in the presence of independent witnesses has turned out to be unreliable. The existence of Rajupanch witness is doubtful. When the complainant had engaged public witness the endeavour should have been to produce him in the Court. Though, Sh. R. Roy (PW2); Sh. Sujeet Kumar(PW6) and Sh. V. S. Pandey (PW8) have spoken about the recovery but, as discussed above, no implicit reliance can be placed on the statement of these witnesses, in view of the improbabilities of the prosecution case and nonexamination of public witnesses, whose existence itself is in doubt.
64. This Court is conscious of the fact that offences under NDPS Act have been considered very serious in nature, which is evident from severe punishment provided on conviction, in such cases. But the Court always feel a constraint when the evidence, which is required to prove Prosecution case, does not come through. Knowing fully well, the gravity of the offences under the NDPS Act, investigating agencies do not follow the protocol of the investigation. A transparent investigation is the need of the day, which should be carried out diligently and in a scientific manner. In the absence of such an investigation, benefit of DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 44 of 45 SC No. 01A/2011 doubt would always go to accused, as has happened in the present case.
65. In view of above facts, evidence led by the complainant/DRI and by accused himself in his defence, it has become difficult to believe the Prosecution version of "recovery" of narcotic drug from the possession of accused from the place, at the time and in the manner projected by the Prosecution. Therefore, there is no escape from the conclusion that complainant/DRI has failed to prove its case against the accused Samson Ongera Omoro @ Samson Mokari Ongera beyond reasonable doubt. Therefore, I hereby acquit, Samson Ongera Omoro @ Samson Mokari Ongera for the offence under Section 21(C) of NDPS Act.
66. File be consigned to record room after all the necessary compliances.
(announced in the (Ajay Kumar Kuhar)
open Court on Special Judge (NDPS)
04 June, 2016)
th
South District: Saket
DRI vs Samson Ongera Omoro @ Samson Mokari Ongera Page no. 45 of 45
SC No. 01A/2011