Delhi District Court
State vs . Azubnozu Ekene Patric, on 9 August, 2018
IN THE COURT OF AJAY GOEL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440685/2016
In the matter of:
State Vs. Azubnozu Ekene Patric,
S/o Mr. Ekene,
R/o No. 10, PHC, Potu, Nigeria.
FIR No. : 15/15
Police : Crime Branch
Station
Under : 21 (c) NDPS Act & 14 Foreigners
Sections Act
Date of Institution of case : 08.07.2015
Date of Assignment to this court : 06.07.2017
Date of Arguments : 09.08.2018
Date on which judgment was pronounced : 09.08.2018
JUDGMENT:
Case of Prosecution:
1. The case of the prosecution is that on 16.02.2015, an information was received by Inspector Prem Chandra Khanduri through secret informer in Crime Branch office, R. K. Puram that a person namely Ekene (accused herein), a Nigerian national residing in area of Uttam SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 1/40 Nagar is engaged in supply of cocaine. It was informed that said Ekene would come today between 4.00 pm to 5.00 pm to supply large quantity of cocaine to his customer at Kakrola More Bus Stand and if raid is organized, he could be apprehended with Cocaine. On receipt of above secret information, Inspector Prem Chandra Khanduri recorded the said information vide DD No. 22 at about 2.40 p.m. and produced said informer before ACP Sh. Kailash Chandra with copy of said DD entry.
2. On being satisfied with the said secret information, ACP Sh. Kailash Chandra telephonically informed to Sh. Bhisham Singh, DCP, Crime (South) about said secret information who directed to conduct raid and to take all required action in the matter. Accordingly, Inspector Prem Chandra Khanduri constituted a raiding party consisting of HC Surender, HC Virender, HC Govind, HC Sandeep and Ct. Parvinder and they also took drug test kit and IO Bag and left in two private vehicles alongwith secret informer and reached at Kakrola Mor at about 3.45 SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 2/40 p.m. It was stated that Inspector Prem Chandra Khanduri asked public persons to join the raiding party but by telling their inability, none of the public person joined the raiding party and left without telling their names and addresses.
3. Inspector Prem Chandra Khanduri briefed the staf members of raiding party at spot and gave position to staf members around Kakrola Mor Bus stand. A t about 4.15 p.m., accused was seen coming from the side of Kakrola Mor, Red Light, on foot and after reaching at the Bus Stand, accused sat there and started looking here and there and seemed waiting for someone and secret informer pointed out towards accused and left the spot. After waiting for 20 - 25 minutes, when accused started going towards Red Light, Kakrola Mor, accused was stopped by the members of the raiding party at about 4.45 p.m.
4. Thereafter, Inspector Prem Chandra Khanduri disclosed the identity of the raiding party to accused SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 3/40 and on enquiry, accused told his name as Azubnozu Ekene Patric. Inspector Prem Chandra Khanduri while serving notice U/s 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act) apprised accused about the secret information and his legal rights that his search would be conducted in the presence of a Gazetted Officer or a Magistrate, if he so required, and that before his search, he could take search of the members of the raiding team, however accused refused to avail the aforesaid legal rights and allowed Inspector Prem Chandra Khanduri to take his search. During the aforesaid proceedings, some public persons had gathered at the spot and they were requested to join the proceedings by Inspector Prem Chandra Khanduri but none of them agreed to do so.
5. Thereafter, Inspector Prem Chandra Khanduri took the search of accused and a transparent polythene packet containing some white colour SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 4/40 powder was recovered from right side pocket of pant of accused. Inspector Prem Chandra Khanduri opened the transparent polythene packet and checked the white colour powder with the help of drug testing kit and the same was found cocaine. The said transparent polythene packet containing cocaine was weighed on electronic weighing machine by Inspector Prem Chandra Khanduri and the weight of same was found 130 grams. It was stated that two samples of cocaine of 5 gms each were taken from the recovered cocaine and were kept in two separate small polythene pouches and converted into two parcels Mark A1 & A2. The transparent polythene packet containing the remaining cocaine was converted into parcel Mark A. Inspector Prem Chandra Khanduri filled the particulars of FSL form and affixed his seal "PCK" on the FSL form as well as the aforesaid parcels Mark A, A1 and A2. Thereafter, Inspector Prem Chandra Khanduri had handed over SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 5/40 his seal to HC Virender and seized the aforesaid parcels and FSL form. Inspector Prem Chandra Khanduri prepared rukka and handed over the same to HC Surender alongwith the FSL Form, carbon copy of seizure memo and the parcels Mark A, A1 and A2 with the directions to hand over the parcels, FSL form and carbon copy of the seizure memo to the SHO P.S. Crime Branch and rukka to Duty Officer.
6. Case U/s 21 (c) of NDPS Act was registered against the accused. Since accused being Nigerian National was found in India at Kakrola Mor, Bus Stand, New Delhi without any valid Visa or authority for his stay in India, hence provisions of Section 14 of Foreigners Act were also attracted.
7. After the completion of proceedings at P.S. Crime Branch, HC Surender went to the office of Crime Branch alongwith the copy of FIR and original rukka and handed over the same to PW11 Inspector Naresh Sangwan to whom the investigation of the SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 6/40 case was entrusted. He prepared site plan at spot and accused was interrogated by Inspector Naresh Sangwan and his disclosure statement was recorded by him. After completion of investigation, the charge sheet was filed.
Charge against the accused:
8. Vide order dated 20.11.2015, the charge for the ofences under Sections 21 (c) of the NDPS Act and 14 Foreigners Act was framed against the accused to which he pleaded not guilty and claimed trial. Witnesses examined :
9. The prosecution examined following witnesses in support of its case who are as follows:-
PW1 is HC Jag Narain. He has deposed that Inspector Manjeet Tomar had called him in his office on 16.02.2015 with register No. 19 and deposited one sealed pulanda sealed with the seal of PCK and MT, two envelopes sealed with the seal of PCK and MT, one carbon copy of SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 7/40 seizure memo and one FSL form and he made entry in said register at Sl. No. 2132. Copy of said entry was Ex. PW-1/A. He further deposed that SI Naresh Sangwan deposited personal search articles of accused on 17.02.2015 and he made entry of same in register No. 19 at Sl. No. 2133 and copy of same was Ex. PW-1/B. He further proved the copy of Road Certificate as Ex. PW-1/C and copy of receipt /acknowledgement issued by FSL as Ex. PW1/D. PW2 is Inspector Prem Chandra Khanduri. He has deposed that on 16.02.2015, he was posted as Inspector In Crime Branch, SWR, R. K. Puram and a secret informer came to me and informed him about the secret information regarding one Nigerian National namely Ekene who would supply cocaine to his customer. The copy of DD No. 22 was proved as Ex. PW-2/A, attested copy of departure entry vide DD No. 23 was Ex. PW-2/B. He further deposed regarding apprehending of accused at the spot. The notice U/s 50 of NDPS Act was Ex. PW-
2/C and reply of accused was Ex. PW-2/D, recovery of SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 8/40 130 gm cocaine, the seized envelopes, pulanda and FSL form was Ex. PW-2/E, the rukka was Ex. PW-2/F, site plan was Ex. PW-2/G, arrest memo of accused was Ex. PW- 2/H, the personal search memo of accused was Ex. PW- 2/H1, the copy of report U/s 57 NDPS Act was Ex. PW- 2/H2.
PW3 is HC Surender. He deposed that on 16.02.2015, Inspector P. C. Khanduri organised a raiding team consisting of him, HC Virender, HC Govind, HC Sandeep and Ct. Parvinder. He further deposed regarding recovery of contraband, arrest of accused and other proceedings conducted by IO in his presence being member of raiding party. He identified the case property in the court.
PW4 is HC Sanjay. He is the witness who had collected one envelop sealed with the seal of PCK and MT and one FSL form and had taken the same to FSL, Rohini vide Road Certificate No. 41/21 and acknowledgment receipt issued by FSL was handed over to SI Naresh Sangwan. PW5 is HC Raj Kumar. He deposed that he was working SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 9/40 as Duty Officer and he recorded FIR No. 15/15 and proved the copy of FIR as Ex. PW-5/A and his endorsement on same was Ex. PW-5/B. He also proved his certificate U/s 65B of Indian Evidence Act regarding computerized copy of FIR as Ex. PW-5/C. PW6 is ASI Virender. He also deposed that on 16.02.2015, Inspector P. C. Khanduri organized a raiding team consisting of him, HC Surender, HC Govind, HC Sandeep and Ct. Parvinder. He further deposed regarding recovery of contraband, arrest of accused and other proceedings conducted by IO in his presence being member of raiding party.
PW7 is Inspector Manjeet Tomar. He deposed that on 16.02.2015, HC Surender came in his office and produced 3 sealed parcels marked as A, A1 and A2 with the seal of PCK and one FSL Form and he sealed the parcel with his seal of MT. He also deposed that he called MHC(M) HC Jag Narain in his office with register No. 19 and deposited the case property and made entry in rojnamcha regarding said proceedings vide DD No. 34 and copy of SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 10/40 same was Ex. PW-7/A. PW8 is HC Rajeev. He stated that he was posted as Reader to ACP Sh. Kailash Chandra and a report U/s 42 of NDPS Act sent by Inspector P. C. Khanduri was received and same was put up by him before ACP who had made his endorsement in the encircled portion X on the report Ex. PW-8/A and he made entry in diary register at S. No. 279 and copy of same was Ex. PW-8/B. He also deposed that on 17.02.2015, a report U/s 57 of NDPS Act sent by Inspector P. C. Khanduri was also received and same was put up before ACP who had made his endorsement in encircled portion X on report Ex. PW-8/C and he made his entry on diary register at S. No. 290 and copy of same was Ex. PW-8/D. He further deposed that on 17.05.2012, another report U/s 57 of NDPS Act sent by SI Naresh Sangwan forwarded by Inspector P. C. Khanduri was also received and same was put up before ACP who had made his endorsement in encircled portion X on report Ex. PW- 8/E and he made his entry on diary register at S. No. 291 and copy of same was Ex. PW-8/E. SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 11/40 PW9 is ACP Sh. Kailash Chandra. He deposed that on 16.02.2015, Inspector P. C. Khanduri produced a secret informer and he made inquiries from the secret informer and after having satisfying secret information, he informed DCP Sh. Bhisham Singh on telephone about the secret information who directed to take action. He further deposed that his Reader produced a copoy of DD No. 22 before me and he made his endorsement thereon. PW10 is Dr. Subhra Kumar Paul, Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi. He has deposed that one sealed parcel and FSL form was received in FSL for examination which was marked to him. He further deposed that substance therein was examined and found to be cocaine. The detailed report of examination was Ex. PW-10/A. PW11 is Inspector Naresh Sangwan. He deposed that on 16.02.2016, the investigation of present case was assigned to him and he deposed regarding arrest of accused, his personal search and also deposed that accused could not produced any valid visa or authority SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 12/40 for his stay in India. He also deposed about further investigation done in the matter by him and filing of charge sheet.
10. Thereafter, Prosecution Evidence was closed on the request of Ld. APP vide order dated 31.07.2018 by this Court and matter was posted for recording of statement of accused U/s 313 Cr. P. C.
11. Statement of accused U/s 313 Cr. P. C. was recorded on 06.08.2018 whereby all the incriminating evidence was put to him to which he stated that he is innocent and he has been falsely implicated in the present case and stated that he has filed his submissions in written form in his handwriting which be read as his reply. During recording of statement, accused wished to lead evidence in his defence.
12. In his defence evidence, accused produced DW-1 Sh. Mohammad Akhtar who deposed that he does not anything about this case and he does not know accused Azubnozu Ekene Patric and earlier, he used to quarrel in jail with other inmates but now a days, his behaviour has SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 13/40 improved.
ARGUMENTS OF PROSECUTION:
13. The prosecution of the accused had been launched on the receipt of secret information through secret informer. It is stated by Ld. APP for State that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of accused beyond reasonable doubt.
ARGUMENTS OF DEFENCE:
14. On the other hand, Ld. Counsel for accused vehemently argued that the accused is innocent. It is argued by him that the statement of prosecution witnesses is full of omissions and improvements. In view of improvements made by PWs, their evidence has lost the credibility and cannot be relied upon to give finding of guilt against the accused. It is also argued that the present accused has been falsely implicated and that no SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 14/40 recovery was efected from the accused and the contraband had been planted upon him. He has argued that non-joinder of public witnesses at the time of alleged recovery casts a serious doubt on the version of the prosecution. The counsel for accused has further argued that there are material contradictions in the testimony of the witnesses which goes to the root of the case and falsify the case of the prosecution.
15. On the other hand, the Ld. APP for the state in rebuttal submitted that the contradictions in the testimony of material witnesses are minor and natural and does not afect the case of the prosecution. He further argued that nothing has come in the cross- examination of PWs to dis-credit them and their deposition is believe-worthy.
JUDGMENT RELIED UPON ON BEHALF OF STATE.
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58;
2) Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 15/40 SC 2783;
3) Delias Christopher Vs. Customs 2004 (3) JCC 147;
4) State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103;
5) State of Punjab Vs. Baldev Singh (1999) 3 SCC 977.
6) Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77
7) Radha Kishan Vs. State 2000 Cri LJ 4090;
8) Jarnail Singh Vs. State of Punjab (2011) 3 SCC 521;
9) State of Haryana Vs. Mai Ram, (2008) 8 SCC 292;
10) Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652;
11) Tahir Vs. State 1996 (3) SCC 338;
JUDGMENT RELIED UPON ON BEHALF OF ACCUSED.
1) D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416;
16. I have considered the rival submissions and gone SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 16/40 through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence. FINDINGS:
17. Records of present case reveals that the accused stands charged for the conscious possession of commercial quantity of contraband i.e. 130 gm of cocaine. The stringent provisions are provided under the law qua the punishment especially in the case where commercial quantity of contraband is involved. The scheme of NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguard ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, balance must be struck between the need of the law and the enforcement of such law on one hand and the protection of citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 17/40 record or the contraband. In the present case, the accused was apprehended and was found in possession of commercial quantity of 130 gm of cocaine in transparent polythene packet from his front right side pocket of wearing pants. Hence, it cannot be stated that he was not in conscious possession of the contraband i.e. cocaine.
18. Further, one has to go through the examination of witnesses.
19. PW1 HC Jag Narain deposed that Inspector Manjeet Tomar had called him on 16.02.2015 with register No. 19 to deposit one sealed pulanda sealed with the seal of PCK and MT, two envelopes sealed with the seal of PCK and MT, one carbon copy of seizure memo and one FSL form. He deposed that he had made entry in said register at Sl. No. 2132 and he proved the copy of said entry as Ex. PW- 1/A. PW-1 HC Jag Narain also deposed that SI Naresh Sangwan deposited personal search articles of accused on 17.02.2015. He deposed that he had made entry of same in register at Sl. No. 2133 and copy of same was SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 18/40 Ex. PW-1/B. He further proved the copy of Road Certificate as Ex. PW-1/C and copy of receipt /acknowledgement issued by FSL as Ex. PW1/D. He has denied the suggestion that sealed envelop and pulandas were tampered with while the same were in his custody.
20. PW2 Inspector Prem Chandra Khanduri is the star witness of the prosecution who has deposed that on 16.02.2015, he was posted as Inspector In Crime Branch, SWR, R. K. Puram and a secret informer came to me and informed him that a person namely Ekene who is a Nigerian national and resides in area of Uttam Nagar and he is engaged in supply of cocaine. The secret informer further informed that said Ekene would come today between 4.00 pm to 5.00 pm to supply large quantity of cocaine to his customer at Kakrola More Bus Stand and if raid is organized, he could be apprehended with Cocaine. PW-2 proved the copy of DD No. 22 as Ex. PW-2/A, attested copy of departure entry vide DD No. 23 was Ex. PW-2/B. In his chief examination, he has deposed regarding each and every investigation conducted by him SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 19/40 in the present case regarding apprehending of accused, serving of notice U/s 50 of NDPS Act, apprising of accused about his legal right, recovery of commercial quantity of cocaine from his possession, personal search of accused, drawl of sample of recovered substance and arrest of accused. The notice U/s 50 of NDPS Act was Ex. PW-2/C. The perusal of contents of notice Ex. PW-2/C clearly shows that accused was apprised of his legal rights by virtue of said notice but he refused to get himself search in the presence of gazetted Officer /Magistrate. His reply to the notice U/s 50 of NDPS Act in this regard was Ex. PW-2/D. He has also proved the seized envelopes, pulanda and FSL form as Ex. PW-2/E, the rukka as Ex. PW- 2/F, site plan as Ex. PW-2/G, arrest memo of accused as Ex. PW-2/H, the personal search memo of accused as Ex. PW-2/H1, the copy of report U/s 57 NDPS Act as Ex. PW- 2/H2. Nothing contrary has come in his cross- examination conducted by counsel for accused. He has denied all the suggestions put up him.
21. PW3 HC Surender and PW6 ASI Virender had SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 20/40 deposed that on 16.02.2015, Inspector P. C. Khanduri organized a raiding team consisting of them, HC Govind, HC Sandeep and Ct. Parvinder. They further deposed regarding arrest of accused and other proceedings conducted by IO in their presence being member of raiding party. In their cross-examination also, nothing contrary has come.
22. PW4 HC Sanjay is a formal police witness who had collected one envelop sealed with the seal of PCK and MT and one FSL form and had taken the same to FSL, Rohini vide Road Certificate No. 41/21 and acknowledgment receipt issued by FSL was handed over to SI Naresh Sangwan. He deposed that till the said envelope and FSL form remained in his custody, the same were not tampered with.
23. PW5 HC Raj Kumar is another formal witness who deposed that on 16.02.2015, he was working as Duty Officer and on the basis of rukka sent by Inspector P. C. Khanduri through HC Surender, he recorded FIR No. 15/15 and proved the copy of FIR as Ex. PW-5/A and his SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 21/40 endorsement on same was Ex. PW-5/B. He also proved his certificate U/s 65B of Indian Evidence Act regarding computerized copy of FIR as Ex. PW-5/C. During his cross-examination, he denied the suggestion put up him that FIR is anti-dated and anti-time.
24. PW-7 Inspector Manjeet Tomar deposed regarding receipt of 3 sealed parcels marked as A, A1 and A2 with the seal of PCK and one FSL Form. He also deposed that he called MHC(M) HC Jag Narain in his office with register No. 19 and made entry in rojnamcha regarding said proceedings vide DD No. 34 and copy of same was Ex. PW-7/A. Nothing contrary has come in his cross- examination also and his deposition in court has remained unshaken.
25. PW8 HC Rajeev during his examination in chief deposed that he was posted as Reader to ACP Sh. Kailash Chandra and a report U/s 42 of NDPS Act sent by Inspector P. C. Khanduri was received and same was put up by him before ACP who had made his endorsement in the encircled portion X on the report Ex. PW-8/A and he SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 22/40 made entry in diary register at S. No. 279 and copy of same was Ex. PW-8/B. He also deposed that on 17.02.2015, a report U/s 57 of NDPS Act sent by Inspector P. C. Khanduri was also received and same was put up before ACP who had made his endorsement in encircled portion X on report Ex. PW-8/C and he made his entry on diary register at S. No. 290 and copy of same was Ex. PW- 8/D. He further deposed that on 17.05.2012, another report U/s 57 of NDPS Act sent by SI Naresh Sangwan forwarded by Inspector P. C. Khanduri was also received and same was put up before ACP who had made his endorsement in encircled portion X on report Ex. PW-8/E and he made his entry on diary register at S. No. 291 and copy of same was Ex. PW-8/E.
26. PW9 ACP Sh. Kailash Chandra has also deposed on the lines of PW-8 HC Rajeev. He deposed that on 16.02.2015, Inspector P. C. Khanduri produced a secret informer and he made inquiries from the secret informer and after having satisfying secret information, he informed DCP Sh. Bhisham Singh on telephone about the SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 23/40 secret information who directed to take action. He further proved reports U/s 42 and 57 of NDPS Act regarding secret information, recovery of cocaine and arrest of accused. In his cross-examination, he deposed that secret informer remained present for 2-3 minutes in his office and he himself verified the secret information from him. So his testimony has also remained unshaken.
27. Another material witness of the present case is PW10 Dr. Subhra Kumar Paul, Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi. He has deposed that one sealed parcel and FSL form pertaining to this case were received in FSL on 18.02.2015 and same was marked to him for examination. He further deposed that seals on parcel were found intact and tallied as per forwarding authorities specimen seal and the parcel was opened and the substance therein was examined and was found to be cocaine. He further deposed that after examination, the remnants of parcel were sealed with the seal of SKP FSL DELHI and detailed report of examination was Ex. PW- 10/A. During his cross-examination, he stated that it was SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 24/40 examined by him alongwith scientific staf and the parcel was opened by him in the presence of scientific staf. The words mentioned in report are that "On chemical, TLC & GC-MS examination, exhibit 'A' was found to contain 'Cocaine' 87.3%". He denied all the suggestions put to him by Ld. Defence Counsel. So by producing this witness, the prosecution has been able to prove that recovered substance was a Cocaine i.e. Narcotic Drug.
28. PW11 Inspector Naresh Sangwan is another and last police witness of this case. He deposed that on 16.02.2016, the investigation of present case was assigned to him and he deposed regarding further investigation done in the matter by him. He has proved the site plan prepared at the spot. He has recorded the disclosure statement of accused. Nothing contrary has come in his cross-examination also. Several suggestions were put to this witness which he denied.
29. The witnesses produced by prosecution are wholly reliable and trustworthy and nothing could be brought out SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 25/40 in their cross-examination to discredit them as nothing contrary has come in their cross-examination conducted by counsel for accused. Documentary and circumstantial evidence on record corroborate their statements. The counsel for accused has argued that accused has been falsely implicated and has no connection with crime. It is observed that witnesses produced in court have no motive or reason to falsely implicate the accused in this case. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons- falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
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30. Even otherwise, it has been held in case of Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783 that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC 147.
31. The present case is a case of recovery of commercial quantity of cocaine. It is not possible to plant such a quantity upon the accused person. Moreover, there is no reason to falsely implicate the accused. In the case of State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, it was held that:
"The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H. P. 2005 (1) Crimes 358 (H. P.) it was observed: it is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person ......... police had no axe to SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 27/40 grind in implicating the accused."
32. Further it has to be seen that accused has failed to bring on record anything showing that he was not in conscious possession of contraband item. He was found in possession 130 gm of cocaine in transparent polythene packet in his pants. On considering the facts available on record, the document, testimony of witnesses after detailed scrutiny, no doubt remain that accused was in conscious possession of cocaine.
33. The Ld. Counsel for accused has argued that the notice U/s 50 NDPS Act Ex. PW-2/C was defective as the accused was not explained about his legal right to be searched before a Gazetted officer or Magistrate. But Ld. APP for the state has argued that notice U/s 50 of NDPS Act Ex. PW-2/C was served upon the accused whereby he was apprised about his legal rights. During the arguments Ld. Counsel for the accused referred the case of D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416 to contend that if a person in custody is subjected to interrogation, he must be informed in clear and SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 28/40 unequivocal terms as to his right to silence.
34. Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
35. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by State of Punjab Vs. Baldev Singh (1999) 3 SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 29/40 SCC 977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazette Officer or a SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 30/40 Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was substantial compliance with the requirement of Section 50 of NDPS Act. The Court did not agree with the contention that there was non-compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made.
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36. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
37. The prosecution witnesses are clear and consistent in their deposition about the service of notice U/s 50 of NDPS Act before taking search of accused. The notice U/s 50 of NDPS Act Ex. PW-2/C is proved on record and on perusal of same, it is clear that statutory rights of SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 32/40 accused in this regard was clearly explained to him. Same have been perused. By virtue of this notice, the accused was apprised of his legal rights qua his search in the presence of a Gazetted Officer or a Magistrate. The word mentioned in the notice is "Legal right". However, the accused declined to avail the said right in writing under his signatures vide his reply Ex. PW-2/D. So there is no lacuna in the notice U/s 50 of NDPS Act.
38. The Counsel for accused has argued regarding tempering of case property till the same remained in the custody of officials. In this respect, testimony of PW4 HC Sanjay is very important who has deposed that on the instructions of IO, he had taken one sealed pulanda with FSL Form to FSL Rohini and deposited the same there and obtained the acknowledgement of case acceptance from FSL and handed over the same to SI Naresh Sangwan. He also deposed that till the said envelope and FSL form remained in his custody, the same were not tampered with. So from deposition of above witnesses, it is clear that there was no question of tempering with case SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 33/40 property. In rebuttal to this argument of Ld. Counsel for accused, Ld. APP for the state has rightly relied upon judgment titled Radha Kishan Vs. State and Jarnail Singh Vs. State of Punjab mentioned supra. The sequence of deposit of case property with official is duly proved and does not point regarding tempering.
39. The counsel for the accused could not find any flaw in the usage of the seal while sealing the case property. The movement of the contraband items to the Malkhana is also duly proved. The drawing of the samples and deposition of the same with the FSL is also duly proved. The filling of FSL form is also duly proved and dent could not be created in the statement of the witnesses. So, nothing doubtful has been brought on record by the accused against the testimonies of the witnesses produced by the prosecution.
40. In the light of consistent and reliable testimony of prosecution witnesses, the defence taken by the accused is found to be improbable which otherwise has not been substantiated by him either by examining himself on oath SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 34/40 or by leading any cogent evidence in their defence.
41. In the instant case, all the procedural safeguards provided under a statute have been strictly complied with. The prosecution has discharged its burden of proving its case against the accused beyond all reasonable doubt. There is no question of conviction of the accused on a misguided, suspicion. This case is not based on conjectures or surmises.
42. It is a trite that non-joining of public witnesses itself cannot become a ground for acquittal, if the case of prosecution is otherwise reliable. In State of Haryana Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses sufers from any infirmity. The case of the prosecution can not be held to be vulnerable for non-examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution can not be disbelieved. This position was reaffirmed by the Apex Court in State, SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 35/40 Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652, wherein it was held that :
".... Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 36/40 collect signatures of independent persons in the documents made contemporaneous with such actions".
43. It is further held in judgment supra Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution".
44. It is evident from the testimony of prosecution witnesses specially PW-2 Inspector P. C. Khanduri that sincere eforts were made to join the public witnesses but none of them inclined to join and went away telling their excuses. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court proceedings. The non joining of public witnesses is not fatal to the case as otherwise the case is proved by way of consistent and cogent evidence. On examination the facts of the case as well as evidence of prosecution SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 37/40 witnesses and the documents, this court is of the opinion that there is no reason to discredit the convincing testimony of prosecution witnesses. This is also fortified by the judgment of Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under:-
"6....... No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 38/40 independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
45. DE led by accused has yielded no result to him and DW-1 Mohd. Akhtar produced by accused in court has deposed that he does not know anything about this case and about accused. He also stated that earlier, he used to quarrel in jail with other inmates and now a days his behaviour has improved. No other witness in his defence was produced by accused.
46. Thus from the above, it is clear that prosecution witnesses have duly supported their case and sufficient material has been proved on record to prove the guilt of accused. Thus on all counts, guilt of accused has been duly proved beyond reasonable doubt. The accused Azubnozu Ekene Patric is held guilty for commission of ofence punishable U/s 21 (c) of NDPS Act.
47. There is a statement of accused recorded on SC No. 440685/16 State Vs Azubnozu Ekene Patric Page No. 39/40 17.02.2015 in which he has stated that he is not having any Visa and he does not know about his Passport. The onus was upon accused to show that he was residing in India on valid Visa and same has not been produced by him. Since accused being Nigerian National was found without any valid visa or authority for his stay in India and even during trial of the present case, he could not produce any document to show that he was having any valid visa or authority on 16.02.2015 for his stay in India, hence, he is also held guilty for commission of ofence punishable U/s 14 of Foreigners Act.
48. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. Copy of this judgment be given dasti to accused free of costs. Be put up for arguments on the point of sentence on Digitally signed by AJAY 17.08.2018. AJAY GOEL GOEL Date:
2018.08.10 11:57:08 +0530 Pronounced in the open court. (AJAY GOEL) Dated: 09.08.2018 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
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