Delhi District Court
State vs Odinaka Fortunatus Alasonye on 27 February, 2025
IN THE COURT OF MS. BHAVNA KALIA:
SPL. JUDGE (NDPS)-01: DWARKA COURTS: NEW DELHI
SC No. 62-2022
FIR No. 420-2021
U/s. 8/22/25 NDPS Act, 420/467/468/471 IPC
& 14A Foreigners Act
PS: Mohan Garden
State Vs. Odinaka Fortunatus Alasonye
Date of Institution of case:-28.01.2022
Date of arguments:- 17.01.2025
Date on which Judgment pronounced:-27.02.2025
JUDGMENT
CNR No. : DLSW01-000596-2022
Date of commission of the offence : 11.08.2021
Name of the complainant : SI Subhash Chand
Name and address of accused : Odinaka Fortunatus Alasonye
S/o Mr. Eze
Present/Permanent Address :
Festac, Lugos, Anambra State,
Nigeria.
Offence complained of : 22(c)/25 NDPS Act, 468/471
IPC/14A Foreigners Act
Plea of accused : Pleaded not guilty
Date of order : 29.01.2025
Final order : Conviction for the offence
punishable u/s 22(c) of NDPS
Act, 1985 and 14(c) of
Foreigners Act, 1946.
Acquittal for offence punishable
u/s 25 NDPS Act and u/s
468/471 IPC, 1860.
THE CASE OF THE PROSECUTION:
1. It is the case of the prosecution that on 10.08.2021, at about 10.30 pm, when SI Subhash Chand was present in the office of Anti- Narcotics Cell/DWD, one secret informer came to the office and SC No.62/2022 FIR No.420/2021 Page 1 of 25 informed that one person namely Odinaka of African Origin, who was in the business of supplying of mescaline drugs, would come at about 12.00-12.30 am on 10/11.08.2021 near the corner of Govt School opposite to Vipin Garden park at dispensary road, Vipin Garden, New Delhi for supply of mescaline drugs to a known person. He informed that if raid is conducted, the accused could be caught alongwith the drugs red handed. This information was reduced to writing vide DD No. 7 AATS/Anti-Narcotics Cell/DWD and copy of the same was sent to ACP/OPS for compliance of section 42 NDPS Act. After the permission/direction from ACP/OPS, one raiding team was formed consisting of SI Subhash, ASI Kartar, Ct. Sheeshpal, Ct. Mukesh, Ct. Arjun and the secret informer by SI Subhash himself. The raiding team was informed about the secret information. SI Subhash took the IO bag, laptop, UPS, printer cum photocopier, complete set of wiring, car charger, an electronic weighing machine and one field testing kit of narcotic substances and went to the spot in his own car bearing no. HR26ED 1550 make Maruti Celerio White Colour. He drove the car himself and ASI Kartar sat on the front passenger seat while Ct. Arjun and Ct. Sheeshpal alongwith secret informer sat in the back. At about 11.30 pm, on 10.08.2021, the raiding team started for the spot after making entry vide DD no.10. Through Kakrola Mor, at about 11.45 pm, they reached near Govt. School at the spot. Due to Corona times, they could not find any public witness. Without wasting further time, the raiding team took their positions on instructions of SI Subhash and the secret informer was asked to stand at about 10-15 ft. from the raiding party. At about 12.20 am, on 11.08.2021, one African person came on scooty no. DL9SBM 6142 make Honda Liq, Black Colour from the side of Khedi Baba Pul and going through Vipin Garden SC No.62/2022 FIR No.420/2021 Page 2 of 25 Dispensary lane, towards the Ganda Nala, Najafgarh, he went and stood at the corner near a Eucalyptus tree. On seeing him, the secret informer signaled that he was the person with the drugs and then left the spot. SI Subhash alerted the raiding party. The person pointed out by the secret informer got ready to leave after 05 mins but immediately at about 12.25 am, SI Subhash apprehended him with the help of the raiding team. He was introduced to the raiding party and he disclosed his name as Odinaka Fortunatus Alasonye s/o Eze r/o FASTAC, Lagos, Anambra State, Nigeria aged about 28 years. SI Subhash introduced himself and the raiding team to the accused in English language and also told him about the secret information and further informed him that since there was information that he was carrying drugs, his search was to be done. He was informed about his legal rights and also informed that he could get his search done before any Gazetted Officer or Magistrate and he could be produced before such officer. He was also informed that before his search, he could take the search of the police party/raiding team and their vehicle. He was also told the meaning of Gazetted Officer or Magistrate and was handed over computerized copy of notice u/s 50 NDPS Act. Accused read the notice, replied to the same stating that he had been explained about his right of search before Gazetted Officer or Magistrate but he had full faith on the police party and did not want his search before Gazetted Officer or Magistrate. He wrote the same on the copy of the notice u/s 50 NDPS Act and signed the same. SI Subhash telephoned Sh. Ravinder Kumar, ACP, Dwarka at about 12.37 am and informed him about the case. At about 12.50 am, the said ACP came to the spot in his official vehicle and he was again apprised about the case. The ACP interacted with the accused and introduced himself and also SC No.62/2022 FIR No.420/2021 Page 3 of 25 offered his search. SI Subhash waited for some public person to join the investigation but due to covid, nobody came. On the directions of the ACP, search of the accused was undertaken and from the right side pocket of the blue colour half-pant which the accused was wearing, one white colour knotted polythene was recovered. On checking of same, some crystallized white colour substance was found. On checking on field testing kit, it was found to be mescaline drugs and on weighing it alongwith the polythene, its weight was found to be 200 grams. SI Subhash knotted the polythene again and kept it in a transparent plastic container on which he put doctor tape and prepared a pulanda sealing it with the seal of SC. He handed over the seal to Ct. Mukesh and seized the recovered contraband. The ACP also signed on the seizure memo and at about 01.50 am, he left the spot. Rukka was prepared for offence u/s 8/22/25 NDPS Act. Ct. Sheeshpal was sent alongwith the rukka, pulandas and seizure memo to the PS for compliance of Section 55 NDPS Act. He was told that he should produce the rukka before the Duty Officer and produce the pulanda and seizure memo before SHO PS Mohan Garden. Investigation of the case was marked to SI Vinod Kumar Yadav who entered the spot pursuant to DD No. 2 dt. 11.08.2021 on his motorcycle bearing no. DL12SF 6487. He reached at the spot at about 02.50 am where he met SI Subhash with ASI Kartar, Ct. Mukesh, Ct. Arjun, Ct. Sheeshpal and accused. SI Subhash informed him about the case and handed him over the seizure memo of contraband/drugs plus the copy of notice u/s 50 NDPS Act. Accused was also handed over to the IO. In the meantime, Ct. Sheeshpal informed SI Subhash on telephone regarding registration of FIR. IO put the FIR number on the seizure memo. IO prepared site plan at the instance of SI Subhash. Ct.
SC No.62/2022 FIR No.420/2021 Page 4 of 25Sheeshpal reached at the spot alongwith copy of FIR and tehrir, and handed the same to IO. IO recorded statement of SI Subhash who thereafter left the spot. IO made enquries from the accused who admitted his mistake. He was arrested and informed about his rights. His personal search was done and his disclosure statement was recorded. His arrest information was given to a friend. IO gave information vide diary no. 482 dt. 11.08.2021 in compliance of Section 57 NDPS Act. PC remand of accused was taken to trace co- accused Monday but he could not be traced. Proceedings u/s 52A NDPS Act were done before Ld. MM where two samples of 10 grams each were taken out and given mark S1 and S2. Photographs were taken and samples were sent to FSL for examination. During investigation, passport no. A01837300 of accused was found to be fake and his viza was found to be not valid for which offence u/s 420/467/468/471 IPC were added. Further, during investigation, the owner of scooty bearing no. DL9SBM 6142 was found to be one Gurdeep Singh who was granted anticipatory bail by the Court but since no evidence was found against him, he was kept in column no. 12 and not summoned by the Court. Supplementary charge-sheet for the FSL report was filed as per which the sample sent to FSL was found to be of Methamphetamine. Hence, charge-sheet was filed against the accused and he was summoned by the Court.
COGNIZANCE AND CHARGE
2. Cognizance of the offence was taken and documents were supplied to the accused. After hearing arguments on charge, charge was directed to be framed against the accused for offence u/s 22(c) & 25 of NDPS Act and Section 468/471 IPC and Section 14A Foreigners SC No.62/2022 FIR No.420/2021 Page 5 of 25 Act, 1946. Accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
3. In order to prove its case, prosecution examined 15 witnesses.
4. HC Sheeshpal, Ct. Mukesh and Insp. Subhash Chand were the members of the raiding team alongwith ASI Kartar and Ct. Arjun who were examined as PW-7, PW-9 and PW-11 respectively. They deposed on similar lines as case of the prosecution and they were cross examined at length by the Ld. defence Counsel.
5. PW-1 ASI Jitender Kumar was the MHC(M) at PS Mohan Garden on 11.08.2021. He stated that on that day, he was called by SHO / Inspector Rajesh Kumar Mourya in his office with register No.
19. He reached there and Inspector Rajesh Kumar Mourya deposited one transparent plastic box sealed with the seal of SC and RKM with one photocopy of seizure memo with him and he made entry in register no. 19. The relevant entry in register No. 19 is at serial No. 967/21 and the copy of the same is Ex.PW-1/A. He further stated that on 12.08.2021, sealed pullanda / box duly sealed with the seal of SC and RKM and was handed over to Ct. Ravi for proceedings u/s 52A of NDPS Act vide RC No. 104/21/21. After proceedings under Section 52A of NDPS Act, Ct. Ravi deposited three pulandas marked as S1 and S2 and one plastic box. All three boxes were sealed with the seal of MA. He has further stated that on 13.08.021, Ct. Het Ram took two sealed boxes from the malkhana for depositing the same in FSL Rohini vide RC No.106/21/21. After depositing the sample in FSL Rohini, Ct. Het Ram handed over to him copy of receipt. He stated SC No.62/2022 FIR No.420/2021 Page 6 of 25 that till the case property remained in his custody the same was not tampered with. He also produced original RC No. 104/21/21 and 106/21/21 Ex.PW-1/B and Ex.PW-1/C respectively. Receipt of acknowledgment dt. 13.08.2021 is Ex.PW-1/D. He was cross examined at length but there is nothing to suggest that he did not support the case of the prosecution or that he made any entries wrongly.
6. PW-2 SI Jai Bhagwan stated that on 11.08.2021, he was posted at PS Mohan Garden as a Duty Officer. On that day, his duty hours were from 12.00 am midnight to 8.00 am. He has stated that at about 3.00 am, Ct. Sheeshpal brought the rukka sent by SI Subhash Chand.
On the basis of rukka, he registered the FIR No. 420/21, same is Ex. PW-2/A. He has stated that he made endorsement on the rukka Ex. PW-2/B. He also issued a certificate under section 65(B) Indian Evidence Act with regard to lawful control over and use of the computer by him and computer operating properly vide Ex. PW-2/C. He stated that thereafter, SHO Rajender Kumar Maurya called him in his office and after the compliance under section 55 NDPS Act, he get lodged DD No. 9, which is Ex. PW-2/D. He was cross examined at length but there is nothing to suggest that he did not support the case of the prosecution.
7. PW-3 HC Rajesh Kumar stated that on 10.08.2021, he was posted as DD writer at AATS, Dwarka. On that day, his duty hours was from 8 pm to 8 am (12 hours). He further stated that on that day, at about 10.40 pm, SI Subhash Chand lodged DD No.7 regarding secret information in regard to accused Odinaka who used to be SC No.62/2022 FIR No.420/2021 Page 7 of 25 involved in the supply of Mescaline drug, mentioning that he would come in the intervening night of 10/11.08.2021 between 12.00 am - 12.30 am, near Govt. School, Vipin Garden, Oppo. Dispensary wali Gali for supply of Mescaline drug and if raid be conducted, accused Odinaka could be apprehended. He further stated that after lodging the above-said DD entry, same was sent to ACP Operation for compliance of Section 42 NDPS Act through Ct. Mukesh, vide DD NO.8. DD no.7 is Ex.PW-3/A and DD No. 8 is Ex.PW-3/B. Thereafter, at about 11.10 pm Ct. Mukesh lodged his arrival entry, same is Ex.PW-3/C. He further stated that on the same day, at about 11.30 pm, SI Subhash lodged departure entry of his raiding party including himself. Same is Ex.PW-3/D. He has further stated that on 11.08.2021, at about 02.35 am, he lodged DD No.2 with regard to marking of the further investigation to ASI Vinod pursuant to which he reached at the spot. Same is Ex.PW-3/E. He was cross examined but there is nothing to suggest that he did not support the case of the prosecution.
8. PW-4 Insp. Rajesh Kumar Maurya stated that on 11.08.2021, he was posted as SHO Mohan Garden and on that day, he was present in the police station. He further stated that on that day, Duty Officer Jai Bhagwan alongwith Ct. Sheeshpal came at his office and Duty Officer informed him that he had lodged FIR No. 420/2021 on the basis of rukka brought by Ct. Sheeshpal, and thereafter, Ct. Sheeshpal produced one sealed pulanda duly sealed with the seal of 'SC' and carbon copy of seizure memo before him in his office at PS Mohan Garden. He further stated that he checked the parcel/pulanda and document. Thereafter, he countersealed the sealed pullanda/parcel SC No.62/2022 FIR No.420/2021 Page 8 of 25 with his seal i.e. 'RKM', and thereafter, he mentioned FIR No.420/2021 on the sealed parcel/pulanda and document. Thereafter, he called MHC(M) CP HC Jitender to his office along with register No. 19. He handed over the sealed parcel and carbon copy of seizure memo to MHC(M) for depositing the same in Malkhana. He made entry in register No. 19 regarding depositing of case property. Thereafter, he lodged DD No. 9A regarding depositing of case property under compliance of Section 55 NDPS Act. True copy of DD No. 9A dt. 11.08.2021 PS Mohan Garden is Ex.PW-2/D. He was cross examined but there is nothing to suggest that he did not support the case of the prosecution.
9. PW-5 W/HC Kavita brought the original DD register pertaining to Diary no. 316 and 317 both dt. 11.08.2021 pertaining to DD register of ACP Operation, Dwarka. The copy of DD No. 316 dt. 11.08.2021 regarding intimation u/s 57 NDPS Act in present case sent by SI Subhash Chand is Ex.PW-5/A. The entry pertaining to DD No. 317 dt. 11.08.2021 regarding intimation u/s 57 NDPS Act in present case sent by ASI Vinod is Ex.PW-5/B. He was cross examined but there is nothing to suggest that she did not support the case of the prosecution.
10. PW-6 SI Vinay Kumar stated that on 12.08.2021, he was posted as ASI as Govt. Photographer in the office of Photo Section, Crime Branch, Kamla Market. On that day, he was on official duty in the office of Finger Print, Dwarka Court in Room No. 228, Chamber Building. It is further submitted that on that day, he had joined the investigation alongwith IO/ASI Vinod Kumar, Anti-Narcotics Cell, Dwarka alongwith his official camera and during investigation, he was SC No.62/2022 FIR No.420/2021 Page 9 of 25 called by IO/ASI Vinod Kumar in Court Room No. 206 of Ms. Medha Arya, Ld. MM, Dwarka Courts, where during proceedings of sampling of recovered contraband in this case from the possession of accused of this case, he had clicked some photographs of the sampling proceedings before the Court. He further submitted that thereafter, the photographs were saved in pendrive, which was handed over to IO alongwith requisite certificate u/s 65B of IEA. Photographs are Ex.PW-6/A1 to A12. Certificate u/s 65B IEA in this regard is Ex.PW-6/B.
11. PW-8 Ct. Ravi stated that on 12.08.2021, he was posted at PS Mohan Garden and on the direction of IO in the present case, he had taken the case property vide RC No. 104/21 in the Court. He further stated that he could not tell the seal of pulanada and he did not know anything but he recollected that samples were drawn.
During his cross examination by Ld. Addl. PP for State, he stated that it was correct that the case property was sealed with the seal of SC and RKM and it was also correct that proceedings u/s 52A NDPS Act were conducted in the Court of Ms. Medha Arya, then Ld. MM in the presence of the accused. He further stated that it was correct that two samples of 10 gms were drawn and the case property and the samples were sealed with the seal of MA and it was also correct that after conducting the proceedings u/s 52A NDPS Act, the case property and the samples were re-deposited in the malkhana. He further stated that so long as the case property and samples remained in his possession, the same were intact and not tampered with. He was cross examined but there is nothing to suggest that he did not support the case of the prosecution.
SC No.62/2022 FIR No.420/2021 Page 10 of 2512. PW-10 SI Vinod stated that during the intervening night of 10/11.08.2021, he was posted as ASI in the office of Anti Narcotic Cell, Dwarka, Sector-16A and on that day, investigation of present case was entrusted to him by DO concerned through telephonic mode. He further stated that thereupon he reached at the place of incident i.e. near corner of government school, opposite side of Vipin Garden Park, in the street of dispensary, Vipin Garden, New Delhi, where SI Subhash Chand met him along with Ct. Mukesh, ASI Kartar and already apprehended accused Odinaka Fortunatus Alasonye and he received the copy of FIR with its original rukka from Ct. Sheeshpal, who got registered this case at PS Mohan Garden. The facts of the incident and proceedings were brought into his knowledge by SI Subhash Chand, who had also given him the original seizure memo of recovered contraband which is Ex.PW7/B. Thereafter accused was arrested, his personal search was conducted and during his interrogation, his separate disclosure statement was recorded vide his arrest memo Ex.PW7/C, his personal search memo Ex.PW7/D and his disclosure statement Ex.PW7/H. He further stated that thereafter, the place of incident was inspected and a site plan was prepared at the instance of SI Subhash Chand which is Ex.PW10/A. SI Subhash was relieved from there. He stated that thereafter, the statement of ACP Sh. Ravinder Singh (PG Cell) was recorded in his office. The personal search articles i.e. one original notice u/s 50 NDPS Act, one rexine purse of brown colour, cash of Rs. 700/-, some miscellaneous documents and visiting cards and one of visiting cards was bearing some mobile numbers and one passport paper photocopy which were recovered during personal search of accused were deposited in the SC No.62/2022 FIR No.420/2021 Page 11 of 25 malkhana of PS Mohan Garden. He further stated that thereafter, he tried his best to trace the associate of accused but he could not be traced. Accused led them to his rented house at Gali No. 1, Vipin Garden and said place was pointed out by accused to be his rented premises. Thereafter accused was taken to their office and he was got medically examined at RTRM hospital. Thereafter, accused was produced before concerned court where accused was granted one day PC by Ld. Judge and during his PC accused was further interrogated and in pursuant to his disclosure, accused led them in the area of Mohan Garden, Chander Vihar for the purpose of tracing his other associates but they could not be traced. Thereafter, accused was brought back to their office where he was kept under custody. Witness recorded the statement of SHO concerned of PS Mohan Garden, MHCM of PS Mohan Garden, Ct. Sheeshpal and Ct. Mukesh. He further stated that next day, after medical examination of accused, accused was again produced before concerned court and also for proceedings of sampling before Ld. MM. During sampling proceedings of recovered contraband, which was produced by Ct. Ravi from malkhana of PS Mohan Garden in sealed condition vide RC NO. 104/21 sampling proceedings were conducted in the presence of accused, before Ld. Judge and during said proceedings some photographs were also got clicked by concerned official photographer. Thereafter, accused was sent to JC. Witness recorded the statement of concerned photographer ASI Vinay. It is further stated that the scooty make Honda bearing no. DL9SBM6142 was found parked at the spot, when he reached at the spot and accused was found already apprehended there by SI Subhash Chand. The scooty vide its photograph Ex.p-2 was taken into police possession vide its seizure SC No.62/2022 FIR No.420/2021 Page 12 of 25 memo Ex.PW7/E. One mobile phone make Nokia, was recovered from the possession of accused during his superficial search conducted by him and said mobile phone was taken into police possession vide seizure memo Ex.PW7/A and the passport photocopy of accused was taken in police possession vide seizure memo Ex.PW7/4. The photocopy of passport data base of accused Mark A and the copy of Visa which was found attached with passport of accused Mark B was also placed on record. During PC remand of accused, he recorded the supplementary disclosure statement of accused Ex.PW7/I. It is further stated that thereafter, the information u/s 57 NDPS Act was sent to the office of ACP Operation Cell. The said information is Ex.PW10/B. The information regarding arrest of accused was given to FRRO, RK Puram, High Commissioner of Nigeria, Chankyapuri, New Delhi. The order regarding sampling proceedings of Ld. MM was obtained and same was placed on record which is Ex.PD-2. The photographs collected from government photographer are Ex.PW6/A1 to Ex.PW6/A12. He further stated that on 13.08.2021, the sealed plastic container containing quantity of recovered contraband, i.e. container with Mark-S1 sealed with the seal of Ld. MM was sent to FSL Rohini for examination through Ct. Het Ram vide RC No. 106/21/21 vide copy of RC Ex.PW1/C and he received the acknowledgment of case property acceptance vide Ex.PW1/D from Ct. Het Ram. Thereafter, on the receipt of FSL result, the same was filed in court. It is further stated that during investigation, the passport of accused was found forged and he obtained the report from FRRO in this regard vide report of IB sent to DCP concerned Ex.PW10/C and on the basis of said report, section 420/467/468/471 IPC and 14A Foreigners Act were also invoked against the accused. During proceedings of SC No.62/2022 FIR No.420/2021 Page 13 of 25 investigation the aforesaid seized scooty was also deposited in the malkhana of PS Mohan Garden. After completion of investigation, the charge-sheet was filed in court for trial against the accused. After completion of proceedings the information regarding his arrival and other proceedings conducted by him was got reduced in writing vide DD No. 2AATS, ANC which is Ex.PW3/E6. He was cross examined but there is nothing to suggest that he did not support the case of the prosecution.
13. PW-12 HC Hetram stated that on 13.08.2021, he was posted in the office of Anti Narcotic Cell, Sector 16A, Dwarka and on that day on the instructions of IO of this case, he received one sealed parcel i.e. sealed plastic container sealed with the seal of MA, which was marked as Mark S1 from MCH(M) of PS Mohan Garden vide RC no.
106/21/21 dated 13.08.2021 along with forwarding letter and same were deposited in FSL, Rohini for examination of contraband contained in that sealed parcel and he received the copy of acknowledgment of the case property acceptance which was handed over to MHC(M) of PS Mohan Garden and said parcel was intact till the time it was in his possession. The copy of RC no. 106/21/21 dated 13.08.2021 was marked as Mark A and copy of acknowledgment of case property acceptance was marked as Mark B. He was cross examined but there is nothing to suggest that he did not support the case of the prosecution.
14. PW-13ASI Kuldeep Singh stated that he has been working in the office of ACP (operations), Dwarka District, Dwarka Sector-17, since October 2022. He brought original summoned record i.e. diary SC No.62/2022 FIR No.420/2021 Page 14 of 25 of correspondence of their office on behalf of his ACP concerned and vide its serial no. 316 dated 11.08.2021, an intimation u/s 57 NDPS Act pertaining to this case was received in their office, sent by SI Subhash Chand, Anti-Narcotics Cell, Dwarka, and the then Reader to ACP had made an entry in this regard in this diary of correspondence. The said entry is Ex.PW13/A. It is stated that vide serial no. 317 dated 11.08.2021, an intimation u/s 57 NDPS Act pertaining to this case was received in their office, sent by ASI Vinod, Anti-Narcotics Cell, Dwarka, and the then Reader to ACP had made an entry in this regard in the diary of correspondence. The said entry is Ex.PW13/B. He further stated that the said intimation u/s 57 NDPS Act (computer generated) received on 11.08.2021 sent by SI Subhash is Ex.PW11/C vide diary no. 316/ACP (Operations)/Dwarka and the other intimation u/s 57 NDPS Act sent by ASI Vinod is Ex.PW10/B vide its diary no. 317/ACP (Operations)/Dwarka dated 11.08.2021. He was cross examined but there is nothing to suggest that he did not support the case of the prosecution.
15. PW-14 Sh. Rajesh Ranjan, Assitant Central Intelligence Officer- I, IB, MHA, brought an envelope bearing no. 6149/CFB addressed to this Court from Sh. M.C. Roy, Additional Deputy Director/CFB, IB (MHA), Government of India, Bureau of Immigration, Head Quarter, New Delhi. That envelope was opened before the Court and same was found containing summon issued by this Court addressed to Record Clerk concerned, letter dated 20.12.2024 addressed to this Court with the subject to testify letter no. 4/CFB/2021(1)-IV/7425 dated 17.09.21, vide which he had been authorized to attend this Court and to testify on the requisite documents, authorization letter along-with certificate SC No.62/2022 FIR No.420/2021 Page 15 of 25 u/s 65B Indian Evidence Act. The authorization letter was Ex.PW14/A and certificate u/s 65B Indian Evidence Act Ex.PW14/B, both issued by Deputy Director concerned. The copy of letter addressed to Sh. Shankar Chaudhary, DCP, Dwarka District, regarding arrival/departure details and confirmation on Indian Visa, if issued to Nigerian national on the accused PP No. A01837300, and the requisite information is Ex.PW14/C. The travel details of the pax from 01.01.2010 to 13.09.2021 issued by Additional Deputy Director, IB, is Ex.PW14/D. The letter issued by Sh. Shankar Chaudhary, Additional DCP, Dwarka District, addressed to his Additional Director is Ex.PW14/E. During his cross examination, he said that he has no personal knowledge about this case.
16. PW-15 ACP (Retd.) Ravinder Kumar, s/o Sh. Lakhi Ram has stated that on the intervening night of 10/11.08.2021, he was posted as ACP (PG Cell), Dwarka Sector-19. On that night, the duties of Night GO was assigned to him by DCP concerned. During the same, at about 0037 hours, he was telephonically informed by Incharge, Anti-Narcotics Cell, Dwarka, regarding apprehension of accused Odinaka Fortunatus Alasonye at Vipin Garden, Dispensary wali gali, near government school, as Incharge, Anti-Narcotics Cell, Dwarka, and was informed that the accused was indulged in drugs related offences and there was strong suspicion that there were drugs with the accused. He further stated that thereupon, on the receipt of said information, at about 0050 hours, he reached at the spot, where SI Subhash Chand met him and while briefing him about the incident in question, the accused was produced before him by the said SI. Accused was inquired about the incident in question by him and during the same, accused was apprised about his legal rights in details. Thereafter, on his instructions, the body search of the accused SC No.62/2022 FIR No.420/2021 Page 16 of 25 was conducted by SI Subhash Chand and during his search, one white knotted polythene pouch was recovered from right side pocket of his blue coloured half pant which he was wearing. The said polythene pouch was opened and checked and it was found containing dalidar white colour crystal substance, which was found to contain mescaline drugs when it was checked by field testing kit. He further stated that thereafter, on being weighed, the total weight of said contraband with polythene pouch was found to be 200 grams and thereafter, the said contraband was again kept into said polythene pouch, it was knotted and was kept into a plastic transparent container packed with doctor-tape and it was sealed with the seal of "SC" and was taken into police possession vide its seizure memo Ex.PW7/B. He stated that thereafter, at about 1.50 am, he left from the spot after giving necessary instructions to all team members present at the spot. He correctly identified the accused. He was cross examined but there is nothing to suggest that he did not support the case of the prosecution.
STATEMENT OF ACCUSED RECORDED U/S 294 CR.P.C.:
17. On 19.07.2023, statement of accused u/s 294 Cr.P.C. was recorded where accused admitted the genuineness of certain documents i.e. DD No.7 dt. 10.08.2021 Ex.P/D/1, proceedings u/s 52A with photographs dt. 12.08.2021 Ex.P/D/2 and vehicle particulars of vehicle registration no. DL9SBM 6142, Ex.P/D/3.
STATEMENT OF ACCUSED RECORDED U/S 313 CR.P.C.:
18. On 13.01.2025, all the incriminating evidence was put to the accused for the purpose of recording his statement u/s 313 Cr.P.C. He replied that he was falsely implicated in the present case; nothing incriminating was recovered from his possession or at his instance;
SC No.62/2022 FIR No.420/2021 Page 17 of 25police implicated him at the instance of their senior officers and that he was innocent. The accused had not opted to lead any evidence in his defence.
FINAL ARGUMENTS:
19. Final arguments in the matter were heard on 17.01.2025. Ld. Counsel for the accused had stated that accused should be acquitted in the matter as there were contradictions in the statements of prosecution witnesses and that despite availability of independent witnesses, no public witness was included in the list of witnesses. The main thrust of argument taken by the defence Counsel was that PW-7 had stated in his examination/cross examination that accused wanted to get examined in front of Gazetted Officer or Magistrate and it was not recorded as stated. It was further submitted that no videography or photography had been done by the police officials at the time of search and seizure proceedings.
20. Ld. APP had argued that evidence of prosecution witnesses was consistent and recovery made from the accused was as per procedure. It was submitted that no defence had come forward from the accused to discharge the reverse burden of proof placed upon him. It was further submitted that despite refusal of accused (which he gave in written to the notice given to him u/s 50 NDPS Act) his search was infact conducted before Gazetted Officer (PW-15) when the contraband was recovered from him.
REASONS FOR DECISION AND DECISION:
21. I have considered the rival submissions and gone through the SC No.62/2022 FIR No.420/2021 Page 18 of 25 documents and evidence available on record.
22. Before proceeding to discuss the merits of the case, it is important to understand the legal provisions. Section 35 of NDPS Act presumes culpable mental state of the accused i.e. reverse burden of proof. It provides that the Court shall presume the culpable mental state of the accused but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged. Further, Section 54 of the NDPS Act provides that the Court shall presume unless the contrary is proved, that the accused has committed an offence under the Act for which he has been charged in case he is found in possession of the substance as mentioned in the Section for which he has no satisfactory explanation 1. It is settled legal proposition that the procedure provided under Chapter V of the NDPS Act has to be scrupulously followed for the Court to raise such presumption. The procedure provides that when the Officer u/s 41 NDPS Act receives secret information, he has to inform the same to his superior Officer within 72 hours. In case, any arrest or seizure is done, the Officer mentioned u/s 42 NDPS Act has to forward the same to the IO without unnecessary delay. The Officer mentioned u/s 42 NDPS Act is the complainant who arrests the accused and does recoveries himself or through the raiding party. The complainant is the witness who claims recovery of prohibited substances from the possession of the accused and these claims are verified and substantiated by the IO during investigation. It is further mandatory that the IO has to take measures for disposal of the alleged substances as per Section 52(4) of the Act. Further, the person arrested has to be produced before the Magistrate and the contraband seized is required 1 Balvinder Singh (Binda) Vs. NCB AIR 2023 SC 4684 SC No.62/2022 FIR No.420/2021 Page 19 of 25 to be dealt with by the Officer u/s 53 NDPS Act or the SHO in accordance with Section 52A of NDPS Act. For raising the presumption u/s 54 of the Act it must be first established that recovery was made from the accused and the procedure provided under the NDPS Act followed thoroughly without fail. It is further settled law that for attracting the provision of Section 54 of NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused beyond reasonable doubt for the burden to shift to the accused to prove his innocence 2. This burden on the prosecution is a heavy burden. To decide whether the burden has been discharged or not by the prosecution, it is relevant to peruse the record and evidence and consider the submissions made by the parties.
23. The record of the present case reveals that the accused stands charged for the possession of 200 grams of Methamphetamine concealed in a white colour polythene (panni) and same was transported by the accused on a scooty bearing no. DL9SBM 6142 in contravention of the provisions of NDPS Act. He was apprehended on the basis of secret information. All the prosecution witnesses of the raiding party have deposed similarly with regard to the above-said recovery from the accused on the basis of the secret information.
24. From the recovery made and samples sent to FSL, the report of FSL confirmed it to be Methamphetamine. However, even though the samples sent to FSL were properly taken at the spot, yet it is still to be seen whether the sampling was done as per law i.e. whether the provisions u/s 52 and 52A of NDPS Act were properly followed.
2 Balvinder Singh (Binda) Vs. NCB, AIR 2023 SC 4684; Noor Aga Vs. State of Punjab, (2008) 16 SCC 417 SC No.62/2022 FIR No.420/2021 Page 20 of 25 Section 52 provides that the accused has to be informed about the grounds of arrest and the property seized has to be sent to the Magistrate by whom warrants were issued/Officer Incharge of nearest police station/Officer empowered u/s 53 NDPS Act, as the case may be. In the present case, the accused was informed about his apprehension and arrest by the Officer concerned. Further, the seized property was also sent to Officer Incharge of the nearest police station. The seized property was then produced before concerned Magistrate and samples were drawn and sent to FSL by filing application u/s 52A which is Ex.PD-2 and as per the FSL report Ex. PD-3, the same was confirmed to be Methamphetamine.
25. From the deposition of all the prosecution witnesses, it is seen that all the prosecution witnesses have deposed almost on the same lines as the case of the prosecution, hence, any minor contradictions in the evidence of prosecution witnesses does not hamper the case of the prosecution. In any case, there are hardly even minor contradictions in the deposition of prosecution witnesses. Only with regard to notice u/s 50 NDPS Act, PW-7 has stated that accused wanted to be examined in front of a Magistrate. The requirement of Section 50 NDPS Act is when any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazzetted Officer of any of the department mentioned in section 42 or to the nearest Magistrate. On perusal of record, it is seen that when PW-7 was cross examined on this point, he again said that the accused had stated at the spot that he wanted to be examined by the SC No.62/2022 FIR No.420/2021 Page 21 of 25 Magistrate/Gazetted Officer. However, on perusal of the record, it is seen that Notice u/s 50 NDPS Act was prepared at the spot and accused had given his reply that he did not want to get searched in front of Magistrate or Gazetted Officer and he has also signed the same. In fact, the same has also been written in his handwriting. Considering that PW-7 is the only witness who has deposed regarding non-compliance of the oral reply of the accused to be taken before Magistrate for his search and all other witnesses have deposed otherwise, in the opinion of the Court, PW-7 is not a reliable witness and his testimony regarding this point does not inspire confidence. There is no other evidence to suggest that accused wanted to be examined in front of a Magistrate. Further, it is a matter of record that accused was infact searched before a Gazetted Officer (PW-15) and during such search, Methamphetamine was recovered from him.
26. Accused has been charged for offence u/s 22(c) of NDPS Act. Section 22(c) NDPS Act provides punishment for possession of any commercial quantity of psychotropic substance which in the present case is Methamphetamine. Hence, considering the overall facts and circumstances of the present case, evidence led by the prosecution and lack of any defence on part of the accused, this Court does not find any discrepancy in prosecution case and the recovery of 200 grams of Methamphetamine from the accused. Hence, accused Odinaka Fortunatus Alasonye is convicted for the offence punishable under Section 22(c) of the NDPS Act.
27. The accused has further been charged u/s 25 NDPS Act.
Section 25 NDPS Act provides punishment to the SC No.62/2022 FIR No.420/2021 Page 22 of 25 owner/occupier/controller/having use of any conveyance when he knowingly permits it to be used for the commission of an offence by any other person under the act.3 In the present case, the accused was apprehended on a scooty which he was driving himself. The owner of the scooty was one Gurdeep Singh who was kept in column no. 12 of charge-sheet and was not summoned by the Court. It is clear that section 25 NDPS Act can be invoked only against owner of any vehicle which in this case was not the accused. Hence, accused is acquitted for offence u/s 25 of the NDPS Act.
28. The accused is also facing trial for the offence under Section 14A of Foreigners Act and u/s 468/471 of IPC.
29. Section 468/471 of IPC provide punishment for doing forgery for the purpose of cheating and using as genuine a forged document respectively. PW-10 SI Vinod has specifically deposed that he had seized the photocopy of accused's passport and viza and he had sent a letter to Nigerian Embassy on 10.09.2021. He stated that he had also sent letter to FRRO and Bureau of Immigration regarding arrival/departure of accused and later on he collected report Ex.PW10/C.
30. This court has perused the report Ex.PW10/C received from Ministry of External Affairs wherein it has been informed that PP No. A01837300 is found issued in the name of one Nigerian lady namely Ewanlefoh Faith lwade instead of Odinaka Fortunatus Alasonye and no passport number or arrival/departure has been traced on the name of Odinaka Fortunaturs Alasonye. No suggestion was given by Ld. 3 Sheetal Vs. The State Govt. of NCT of Delhi, AIRONLINE 2021 DEL 234 SC No.62/2022 FIR No.420/2021 Page 23 of 25 Defence counsel on this point. The onus was upon the accused to show that he was residing in India on a genuine passport and a valid Visa and the same has not been produced by him. It is clear that the onus was on the accused to produce any document or lead evidence to show that at the relevant time, he was staying in India on basis of valid documents. Further, as per deposition of PW-10 the passport that was being carried by the accused was found to be forged but no evidence of any forgery has been led by the prosecution. Further, the allegation of the prosecution is that the accused was found with a visa on forged passport no. A01837300 and was dishonestly using the same as genuine. On perusal of letter Ex.PW-10/C, it is seen that only arrival of one lady namely Ewanlefoh Faith Iwade could be traced on passport no. A01837300 and there was no record available for the accused. Thus, in the opinion of court, the prosecution has not led any evidence to show that the accused was carrying any forged document or that he was using any false document as genuine. Hence, the accused is acquitted for the offence u/s 468/471 of IPC.
31. Accused has further been charged for an offence u/s 14A Foreigners Act which provides penalty for entry in restricted area and Section 14A(B) provides punishment for entering or staying in India without valid documents required for such entry or for such stay, as the case may be, under the provision made or any order made under the Act or any direction given in pursuance thereof. In the present case, the accused was found staying in India without any valid documents which is an offence u/s 14(c) of the Foreigners Act, 1946 and not Section 14A which the accused has been charged. Since, section 14(c) of Foreigners Act provides for lesser punishment than SC No.62/2022 FIR No.420/2021 Page 24 of 25 section 14A of Foreigners Act and since it is settled law that a person can be punished for a lesser offence than for which he has been charged, which has been proved by bringing evidence, the accused can be punished u/s 14 (c) Foreigners Act herein as it has been proved that accused was staying in India without a vaild passport and visa. Thus, accused is convicted for offence u/s 14 (c) of Foreigners Act.
CONCLUSION:
32. Thus, the accused Odinaka Fortunatus Alasonye is convicted for the offence punishable u/s 22(c) of NDPS Act, 1985 and is convicted for the offence punishable u/s 14(c) of Foreigners Act, 1946 and he is acquitted for offence punishable u/s 25 NDPS Act and is acquitted for offence punishable u/s 468/471 IPC, 1860. Digitally signed by BHAVNA BHAVNA KALIA KALIA Date:
Announced in the open court 2025.02.27
16:39:56
today i.e 27th February, 2025 +0530
(BHAVNA KALIA)
Special Judge (NDPS)-01: SW District
Dwarka Courts: New Delhi
SC No.62/2022
FIR No.420/2021 Page 25 of 25