Delhi District Court
Sc No. 35A/06 Dri vs Debari D Yormadi & Anr. on 22 October, 2013
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
Directorate of Revenue Intelligence
Delhi Zonal Unit, New Delhi
Through Sh Arvind Kumar Sharma, IO.
V E R S U S
1. Debari D. Yormadi
S/o Sh Yormadi
A native of Nigeria
R/o M-19, New Mahavir Nagar,
Near District Centre, Janakpuri
New Delhi
2. Balwant Singh Negi
S/o Sh Himmat Singh Negi
R/o F-1, West Vinod Nagar
New Delhi.
Presently residing at:
A-105, 2nd Floor, Flat No.2
Main Road, Chander Vihar
I.P. Extension, Patparganj
Delhi-110092.
SC No.: 35A/06
U/S : 21 & 29 NDPS Act
Computer ID No. 02403R0344792006
Date of institution : 23.06.2006
Date of reserving judgment : 10.10.2013
Date of pronouncement of judgment : 22.10.2013
Decision : Acquitted
SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
2
J U D G M E N T
The proceedings of this case have been initiated on a complaint filed by the Directorate of Revenue Intelligence (hereinafter referred to as DRI) through Sh Arvind Kumar Sharma, Intelligence Officer, against the accused Debari D. Yormadi (hereinafter referred to as Debari) and Balwant Singh Negi for commission of the offences punishable U/S 21 and 29 of the NDPS Act, 1985.
2. The case of the prosecution/DRI, in brief and as set up in the complaint, is that while acting upon a specific intelligence developed in their office, a team of DRI officers had intercepted both the accused persons at about 8 PM on 17.03.2006 when they both, while travelling in a Haryana roadways bus, had entered the Haryana-Delhi border at Tikri. After the verbal admissions made by the accused no. 1 that he was carrying some narcotic drugs with him, both the accused persons, alongwith their baggage, were escorted to the office of DRI located at CGO Complex, Lodhi Road, New Delhi as the place of their interception, being a National Highway and a congested place having heavy traffic, was not considered conducive for carrying out the detailed search and seizure proceedings.
3. It is alleged that after reaching in the DRI office, separate notices U/S 50 of the NDPS Act were served upon the accused persons and they were told about their SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
3right of being searched before a Magistrate or a Gazetted Officer, but both the accused persons had given their written replies to the effect that they did not require the any presence of the aforesaid officers for their personal search as well as the search of their baggage and the same may be conducted by any officer of DRI. It is alleged that thereafter the search of the 'person' and the baggage of accused no. 1 Debari had resulted in recovery of some Indian and Foreign currency and also 2.976 KG of off white powder, which on testing with the help of a UN Drug Field Test Kit had given positive result for the presence of heroin. The above articles were seized and a panchnama was drawn in this regard, alongwith its annexures and copies of the seized documents.
4. It is also alleged that summons dated 17.03.2006 were also served separately upon both the accused persons for their appearance on 18.03.2006 and in response to the summons, both the accused persons had also tendered their separate voluntary statements U/S 67 of the NDPS Act on that day and in the said statements both of them had admitted the recovery and seizure of the above contraband substance and other incriminating facts. Both the accused persons were then arrested in this case on 18.03.2006.
5. Samples were also allegedly drawn at the time of seizure of the above contraband substance and test memos in this regard were prepared and the samples are alleged to SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
4have been sent to the Chemical Examiner, CRCL and received there in intact condition on 20.03.2006. The case property is also alleged to have been deposited in intact condition, as per the prescribed procedure for the same. In the test reports of CRCL, three packets containing heroin and Marked A, B and C and weighing 989 Grams, 998 Grams and 989 Grams respectively were found to be having diacetylmorphine to the extent of 3.3%, 3.3% and 4.5% respectively and thus the purity/percentage weight of the heroin found in the above packets is stated to be 32.637 Grams heroin/ diacetylmorphine 32.94 Grams and 44.505 Grams respectively, i.e. a total of 110.076 Grams only on the basis of its purity.
6. After conclusion of the investigation, a formal complaint for commission of the offences punishable U/S 21 and 29 of the NDPS Act was ultimately filed against both the accused persons in this court on 23.06.2006 and cognizance of the above offences was taken. A prime facie case for commission of the offences punishable U/S 21(b) pertaining to the possession of the above quantity of heroin and also 29 r/w Section 21 of the NDPS Act pertaining to being part of a criminal conspiracy to possess the above quantity and to deal in contraband substances was also found to be made out against both the accused persons vide order dated 26.07.2006 as the above quantity of about 110 Grams of heroin falls within the category of medium or intermediate quantity of the said SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
5substance because under the NDPS Act 5 Grams of heroin is prescribed as small quantity and 250 Grams as commercial quantity. Charges for the above said offences were also accordingly framed against both the accused persons on the same day.
7. The prosecution/DRI in support of its case has examined total 13 witnesses on record, but due to some mistake or inadvertence two witnesses namely Sh Diwakar Joshi and Sh R.P.Meena have both been given the same serial number as PW2. Hence, to avoid any confusion in discussion of their testimonies, Sh R.P.Meena shall be referred to as PW2A and the documents brought on record during his testimony shall also be referred to accordingly. The names and the purpose of their examination is being stated herein below:
8. PW1 Sh Arvind Kumar Sharma, Intelligence Officer of DRI is the investigating officer of this case who was leading the team of DRI officers, which accompanied by two panch witnesses, had apprehended both the accused persons with the above contraband substance. He has made detailed depositions in this regard to the effect that on 17.03.2006, he was informed by his senior officer that there was specific intelligence that an African national carrying some narcotic drugs, accompanied by another person of Indian origin, will be coming from Punjab to Delhi in a Haryana roadways bus bearing registration no. HR 39A 8474.
SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
6He has stated that on receiving the said information and directions he, alongwith other officers and two panch witnesses, had reached the toll collection point at Tikri Border, i.e. Delhi-Haryana Border, and had started keeping a surveillance at the spot. At about 8 PM, one Haryana roadways bus coming from Bhatinda to Delhi and bearing the above registration number had crossed the above toll tax point and the above bus was stopped and a person of African national carrying two bags on his lap was located in the said bus and another person of Indian origin was also found sitting besides him.
9. The IO/PW1 had made some enquiries from those persons regarding their identities and the luggage and during the said enquiries the names and other details of the above two persons were revealed and they had also admitted that they were carrying some narcotic drugs. The above two persons were off loaded from the above bus, alongwith their above two bags and the baggage and luggages of the other passengers of the said bus were also got verified to ensure that no unclaimed baggage/luggage is left out in the bus and since the place of interception of the accused persons was a public place and not conducive for conduction of the detail searches, both the accused persons, alongwith their above two bags and the panch witnesses, were brought to the office of the DRI located in the CGO Complex, Lodhi Road, New Delhi. The IO/PW1 has also deposed that in the DRI Office, separate notices U/S SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
750 of the NDPS Act Ex. PW1/A and PW1/B respectively were given to the accused persons and through the said notices they were informed that their persons and the above luggage were required to be searched and if they desire the searches could be carried out before a Gazetted Officer or a Magistrate, but the accused persons had refused to call any of the above officers for the search proceedings and had rather offered that their searches be carried out by any officer of DRI in the presence of the panch witnesses. During the search of the 'person' of the accused Debari conducted by the IO/PW1, three tickets of Haryana roadways bus totalling for a sum of Rs 65/-, one ID card of Annamalai University, 1535 US $ and Rs 15,410/- were recovered, besides one wrist watch and two mobile phones.
10. He has also stated that the above two bags found in possession of the above accused were also checked and from one canvas bag carried by him, only one Bible and some articles of personal use were recovered, but in the other leather bag found with him a polythene bag containing three packets wrapped with brown colour adhesive tape were recovered, which were found to contain a cloth packet each, further containing a polythene bag each, containing some off white colour substance giving a pungent smell. The IO/PW1 had then tested a pinch of the substance of all three packets and same had given positive test for the presence of heroin and the net weight of the heroin of the above three packets Mark A, B and C was found to be 989, SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
8998 and 989 Grams respectively, i.e. total net weight of the heroin of three packets to be 2.976 KG. IO/PW1 had also drawn three samples of 5 Grams each from each of the said packets and these samples were kept in separate polythene pouches and were correspondingly marked as A1 to A3, B1 to B3 and C1 to C3 and these parcels of samples were further put in a brown colour envelope and were sealed with the seals of DRI affixed over a paper slip pasted on each of the said envelopes, which were bearing the signatures of the accused persons, two panch witnesses and the IO/PW1 himself. Test memos were also prepared by the IO/PW1 at the spot and the remaining heroin was put back in the same packings and three separate white colour cloth parcels were also prepared and the same were also sealed in the same manner. The parcels of the remaining case property, the packing material as well as the above two bags were kept in a metal trunk and a cloth parcel thereof was also prepared in the same manner. The above currency amounts and other articles recovered in the personal search of the accused Debari were put in a separate envelope and it was also sealed in the same manner.
11. He has further stated that in the personal search of the accused Balwant Singh Negi carried out by him, three similar bus tickets and one mobile phone were recovered and these were also sealed in a paper envelope and then these two paper envelope parcels of the personal search articles of the accused were put back in a separate metal box and it SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
9was also converted into a cloth parcel in the same manner. The IO had also prepared a detailed panchnama Ex. PW1/C regarding the above proceedings and the contents thereof were explained to all of them. It was also signed by all the above persons and the details of the above currency amounts were also noted down and made as a part of the said panchnama as Annexure A and the same is Ex. PW1/G on record. The above bus tickets seized in this case from the possession of the accused persons are also Ex. PW1/E and PW1/F on record. The test memos prepared during the said proceedings are Ex. PW1/L to PW1/R and a facsimile of the above DRI seal was also affixed on the panchnama and test memos.
12. It is also deposed by the IO/PW1 on record that after the conclusion of the panchnama proceedings he had issued summons Ex. PW1/I U/S 67 of the NDPS Act to the accused Debari and in response to the summons the above accused had also appeared before him and had tendered his voluntary statement Ex. PW1/J under the above provisions on 18.03.2006 and thereafter the accused was arrested by him in this case vide arrest cum jamatalashi memo Ex. PW1/K. The IO/PW1 had also subsequently submitted one report U/S 57 of the NDPS Act Ex. PW1/O to his superior officer and had prepared the deposit memo PW1/S for deposit of the case property and also got the above accused medically examined vide MLC Ex. PW1/T and had subsequently filed this complaint Ex. PW1/U in the court. He has also identified SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
10both the accused persons as well as the entire case property and the personal search articles during his examination in the court and also the signatures of different persons as appearing on the above documents.
13. PW2 Sh Diwakar Joshi, who is also an Intelligence Officer of DRI at the relevant time, had received the above secret intelligence, reduced into writing as Ex. PW2/A and had put it up before his senior officer Sh Sanjay Bansal, the then Joint Director of DRI.
14. PW2A Sh R.P.Meena is the then Assistant Chemical Examiner of CRCL, New Delhi, who was allotted the above three samples of this case for analysis on 20.03.2006 by his senior Sh S.K.Mittal and he had kept the sample parcels in the strong room. The samples were subsequently taken out by him and were tested with the assistance of Dr T.C.Tanwar, the then Chemical Assistant, and the test reports dated 05.06.2006 Ex. PW2A/A, PW2A/B and PW2A/C were issued in this regard under his signatures. The short analysis report given in Section II of the test memos Ex. PW1/P, PW1/Q and PW1/R were also given in the handwriting of Dr T.C.Kanwar regarding the said analysis. (This witness is actually numbered as PW2 and the documents as PW2/A, PW2/B and PW2/C on record, as stated above).
15. PW3 Sh Devender Singh is also an Intelligence Officer of DRI at the relevant time and he had issued SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
11summons U/S 67 of the NDPS Act Ex. PW3/A to the accused Balwant Singh Negi and in response to the said summons the statement Ex. PW3/B dated 18.03.2006 was allegedly tendered by the above accused before him. He had also subsequently arrested the accused Balwant Singh Negi vide memo Ex. PW1/C, got him medically examined, produced him in the court and had also deposited the two sealed parcels of the case property of this case in the Valuable Godown of the New Customs House on 20.03.2006 vide deposit memo Ex. PW1/S.
16. PW4 Sh N.D.Azad was posted as a Senior Intelligence Officer in the said office at the relevant time and he had only sent the arrest intimations of the above two accused Ex. PW4/A and PW4/B respectively on 18.06.2006, wrote letters Ex. PW4/C and Ex. PW4/D for their medical examinations and also the forwarding letter Ex. PW1/V for the deposit of the samples with the CRCL through the IO/PW1. He had also counter-signed the deposit memo Ex. PW1/S of the case property and received the intimation U/S 57 of the NDPS Act Ex. PW1/O regarding the above seizure and arrest.
17. PW5 Sh V.K.Sharma is also an Intelligence Officer of DRI at the relevant time and he had conducted the search of the residential premises of the accused Debari, on the basis of the search authorization issued in his favour, located in Mahavir Nagar, New Delhi and had prepared the SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
12panchnama Ex. PW5/A in this regard. However, nothing was recovered in the said search, except some documents like copies of rent agreement, police verification and passport etc. of the said accused, which are Ex. PW5/B (collectively) on record. He has stated that the above search was witnessed by the two public witnesses and one Sh Virender Pal who was the owner/landlord of the said premises.
18. PW6 Smt Mukesh Gaur is also an Intelligence Officer of DRI at the relevant time and she had conducted the search of the residential premises of the accused Balwant Singh Negi, on the basis of the search authorization issued in her favour, located in West Vinod Nagar, New Delhi and had prepared the panchnama Ex. PW6/A in this regard. However, nothing incriminating was also recovered in the said search and only some documents like copies of the ration card and telephone bill of the accused were taken into possession. She has also stated that the above search was witnessed by the two public witnesses and one Sh Prakash Singh Negi, the brother of the accused.
19. PW7 Sh A.C.Wadhwa is the then In-charge of Valuable Godown, New Customs House with whom two sealed parcels of the case property of this case were deposited on 20.03.2006. He has stated that he had made one entry at serial no. 147 Ex. PW7/A in the concerned register of the Valuable Godown in this regard and has also made an SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
13endorsement regarding the same on the deposit memo Ex. PW1/S of the case property.
20. PW8 Sh K.K.Singh is the then Lab Assistant of the CRCL Delhi who had received the three sealed parcels of this case, alongwith duplicate test memos and a forwarding letter, from an officer of DRI on 20.03.2006 for testing against the acknowledgment receipt Ex. PW8/A issued by him.
21. PW9 Sh Shyam Sunder and PW10 Sh Darshan Kumar are two alleged witnesses of the search of the residential premises of the accused Debari vide the above panchnama Ex. PW5/A. However, depositions of both of them suggest that they were not even aware about the nature of the said proceedings or the contents of the abovesaid documents and they had only signed the above panchnama Ex. PW5/A and the copies of documents Ex. PW5/B (collectively) on record on being asked by the DRI officers.
22. PW11 Dr T.C.Tanwar is the then Chemical Assistant who had assisted PW2A Sh R.P.Meena in analysis of the above samples and had given test reports Ex. PW2A/A, Ex. PW2A/B and Ex. PW2A/C and Section II reports in the test memos Ex. PW1/P, PW1/Q and PW1/R in this regard.
23. PW12 Sh Sanjay Bansal is the then Joint Director to whom the above secret information Ex. PW2/A was put up by PW2 Sh Diwakar Joshi and who had given directions for SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
14taking the necessary action thereon.
24. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record by the prosecution was put to both the accused persons in their statements recorded U/S 313 Cr.P.C. and the same was denied by them either to be incorrect or beyond their knowledge. They both have claimed themselves to be innocent and to have been falsely implicated in this case while specifically denying the recovery of any heroin or any other contraband substance from their possession or at their instance.
25. Though the accused Debari has admitted that he was picked up from the above place and has not denied that he was not travelling in the above Haryana roadways bus at the relevant time, but it is his case that he was not carrying any bag with him or having the same in his lap and he was picked up by some policemen and taken to some office where his signatures were forcibly taken on so many blank, written and semi written documents and he was also made to copy one already written statement. He has also specifically claimed that his belongings were not searched in his presence and no proceedings whatsoever were conducted by the above police officer in his SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
15presence and even no public witnesses were present or available with the police officers at the time when he was picked up or the alleged proceedings were conducted. He has also specifically denied the making of any voluntary statement U/S 67 of the NDPS Act containing his confession regarding his involvement in the dealings of drugs or the seizure etc. of the above heroin from his possession and has further claimed that even such statement of his co-accused might have been recorded forcibly. He also claims to have already retracted the above alleged statement. He has also chosen to lead evidence in his defence.
26. However, the accused Balwant Singh Negi has not admitted his apprehension from the above place or the above bus and rather his case is that he was intercepted by the DRI officers in the area of his residence, i.e. West Vinod Nagar near IP Extension, on 17.03.2006 at about 10 AM when he was returning home after the grinding of pulse (dhuli urd dal in dry form) from a flour mill (chakki) and he was asked by the DRI officers to accompany them to a nearby Satyam Cyber Cafe on the pretext that he was being called by one Dannel who was already known to him. He claims that when he had reached the above cyber cafe alongwith the above DRI officers, the same was found SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
16closed and then the DRI officers had made to sit him in a vehicle and had taken him to some office in the R.K.Puram area and from there he was shifted to the CGO Complex office of the DRI in the evening and the above Dannel, who is the co-accused Debari of this case, was also seen present in the said office. He even claims that the above grinded dal found in his possession was weighing around 3 KG and the DRI officers had prepared some packets of the said dal, though the same were not sealed in his presence, and the packets of the alleged contraband substances produced in the court were the same packets of the dal recovered from his possession. He also claims he was forcibly made to sign on various blank, written and semi written documents in the DRI office and has further denied the making of any statement U/S 67 of the NDPS Act voluntarily and has claimed that he had never been involved in any drugs dealings with his above co-accused at any point of time, though his co- accused was already known to him as his co-accused used to hire taxi from him and he was earlier in the travel business. However, he has not chosen to lead any evidence in his defence.
27. The accused Debari is support of his case has examined total 3 witnesses on record and the names and the SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
17purpose of their examination is being stated herein below:
28. DW1 Sh Sushil Babu is the Warden of Jail No. 4 Tihar and he has produced on record some documents pertaining to the above retraction application of the accused Debari, i.e. a copy of the dispatch register of the jail as Ex. DW1/B vide which the retraction application Ex. DW1/D of the accused was forwarded to the court vide the letter Ex. DW1/C of the Deputy Superintendent of the said jail, and has further filed on record one authority letter Ex. DW1/A in his favour.
29. DW2 Sh Jyoti Kumar Kujur is the Ahlmad of this court and DW3 Sh D.P.Singh is the Branch In- Charge, RTI and Vigilance of this Saket Court Complex and they both have appeared and deposed about some replies given by the Ahlmad of this court to some RTI applications regarding the status of the public witnesses cited in the different cases of the DRI filed or pending in this court. The documents on record produced and exhibited in their statements are Ex. DW2/A to DW2/G and DW3/A to DW3/J and these pertaining to the public witnesses cited in different cases of DRI and the comparison of handwriting of some of these witnesses in some cases.
SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
1830. I have heard the arguments advanced by Sh Satish Aggarwal, Ld SPP for DRI, assisted by Sh Vikas Gautam, Advocate, Sh Manish Kumar Khanna, Ld counsel for the accused Debari D Yormadi and Sh Rajiv Jain, Ld Legal Aid Counsel for the accused Balwant Singh Negi and I have also perused the evidence led and the other record of the case, including the written submissions/arguments filed on record on behalf of both the parties.
31. It is well settled that the onus of proving its case beyond reasonable doubts is always upon the prosecution and in a case under any 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 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 severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.19
scrupulously followed".
32. Reference can also be made to 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.
33. When the propositions of law as laid down in the aforesaid cases are applied in this case, it is found that the story of the prosecution and the evidence led on record in support of the same do not meet out the standards laid down in the above said cases, so as to believe the case of the prosecution and to make it the basis of conviction of the accused. Besides this, the very credibility and trustworthiness of the prosecution witnesses is under serious clouds which render the entire evidence led on record to be unworthy of acceptance and being acted upon to base the conviction of the accused. This is so as the evidence led on record is full of material discrepancies, inconsistencies and lacunae which make the very apprehension of the accused persons and the SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
20recovery of the contraband substance etc. in the given manner to be highly doubtful.
34. The first flaw in the story of prosecution is regarding the authenticity of the document proved on record as Ex. PW2/A, which is the secret intelligence reduced into writing by PW2 Sh Diwakar Joshi who had received it. According to him, after reducing the above information into writing as such, he had immediately put it before PW12 Sh Sanjay Bansal, who was his senior officer. Even PW12 corroborates his above depositions and he has also proved on record his endorsement made at the portion X to X on said information vide which he had directed the taking of the necessary action on the said information. However, on perusal of the above information, it is found that the above information was assigned to and the directions for acting upon the said information were given in the name of Sh Amitesh, Deputy Director (GI) and not in the name of the IO/PW1 Sh Arvind Kumar Sharma who had led the above raiding team of DRI to the spot and had conducted the entire investigation. Even PW12 has specifically stated on record that he had directed Sh Amitesh to form a team of officers for keeping surveillance and the possible interception of the said information. There is no connecting evidence SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
21on record as to how and by whom the IO/PW1 Sh Arvind Kumar Sharma was entrusted the task of acting upon the said information and to lead the above raiding team of DRI as his name is not mentioned or endorsed in any document, including PW2/A, for acting upon the said information.
35. In his examination-in-chief, the IO/PW1 has simply stated that his senior officer had discussed the said information with him and had instructed him to take the requisite action on the said information and though he was also questioned during his cross examination regarding the above senior officer, but he has only stated that he do not remember the name of the above officer and it may be Sh Amitesh or Sh N.D.Azad. Strangely enough, Sh Amitesh is not even cited as a witness in this case, what to say of examining him as a witness by the prosecution on record. The above circumstances make the very authenticity of the above document Ex. PW2/A to be doubtful and the Ld defence counsel is right in expressing his apprehensions that this document might have been created subsequently.
36. Further, the very constitution of the alleged raiding team of DRI is also under serious clouds as SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
22out of the 13 witnesses examined on record by the prosecution only the IO/PW1 Sh Arvind Kumar Sharma has claimed himself to be a witness of the apprehension of the accused persons and the recovery of the above contraband substance. Though PW12 has endorsed the above information in the name of Sh Amitesh, as stated above, for taking action on the said information, but there is no documentary evidence produced on record by the prosecution as to what was the constitution of the above raiding team which was assigned the task of interception of the accused persons. The IO/PW1 in his examination-in-chief is completely silent regarding the other members of the raiding team and he has simply stated that after receiving the information he had left for the spot, alongwith his senior officers and subordinate staff. However, when he was questioned in this regard during his cross examination, he has stated that there were 7-8 members in the team and he had also given the names of Sh Amitesh, Sh N.D.Azad and Sh Diwakar Joshi as members of the said raiding team, while saying that he does not now remember the other names of the members. It appears to be strange as to when the above information Ex. PW2/A was assigned by PW12 to Sh Amitesh then how and on whose directions PW12 might have made the IO/PW1 as in-charge of the alleged raiding team and SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
23even if it was so then what made him to himself join the said raiding team as a member, as claimed by the IO/PW1. It appears that the IO/PW1 is not speaking truth when he is giving the above name of his senior officers as members of the raiding team as though Sh Amitesh is not a witness in this case, but the other two persons, i.e. Sh Diwakar Joshi and Sh N.D.Azad, examined in his case as PW2 and PW4 respectively have not made any such claim regarding their participation in the above raiding team or there being a witness of the above apprehension of the accused persons and the seizure of the contraband substance.
38. A perusal of the testimonies of PW2 and PW4 will show that PW2 has confined his role only to the receiving of the said information, reducing it into writing as Ex. PW2/A and putting the same before PW12 and even PW4 has deposed about his alleged role in writing some letters regarding the arrests of the accused, their medical examinations and for testing of samples etc. and they both had not uttered even a single word regarding the other facts of the case, what to say of making any claim regarding their being present in the raiding team and at the time of arrest and recovery of the above heroin. In view of the above depositions made by these two senior officers of SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
24the DRI, this court is left with no option but to discard the claim being made by the IO regarding the above constitution of the raiding team and participation of the above two witnesses in the above proceedings and this is also supported by the absence of the signatures of the above two persons on any of the documents prepared during the said proceedings, like the panchnama, the notices U/S 50 of the NDPS Act given to the accused or the test memos etc. This also seriously affects the credibility of the IO as well as the case of the prosecution as a whole.
39. The next material circumstance is surrounding the joining and the non examination of the two public witnesses in this case at the time of the alleged apprehension and seizure of the above contraband substance of this case. As per the case of the prosecution, the two public witnesses were joined in this case by the IO/PW1 before he had left for the interception of the accused persons on the basis of the said information. The complaint is silent regarding the joining of the above public witnesses, their names or the place from which they were joined in the raiding team, though the names of two public witnesses Sh Narender Singh and Sh Satish Chawla were given in the list of witnesses of the prosecution and SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
25some of the documents like panchnama Ex. PW1/C and its annexure Ex. PW1/G and the documents recovered from the possession of the accused persons, i.e. PW1/D, PW1/E, PW2/F and site plan Ex. PW1/H etc. are also found bearing the alleged signatures of the above two persons. Even the IO/PW1 in his examination-in-chief has not disclosed the names of these persons, though he has vaguely stated that they were accompanied by two panch witnesses who were requested to be the witness of the proceedings.
40. However, when the IO was questioned on this aspect during his cross examination, he has stated that the two public witnesses were joined by him from the area of Paryavaran Bhawan, CGO Complex itself where their office is located, but he has also stated that he had not made any enquiries about the purpose of presence of the said witnesses in the above complex. He has also stated that he had not conducted any investigation about the addresses of the public witnesses, as provided by the witnesses to him. He has also denied the suggestion given by Ld defence counsel for the accused no. 2 that the alleged public witnesses cited in this case were the stock witnesses of DRI.
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2641. It is a matter of record that summons to the above two public witnesses were issued by this court on few occasions and the same were also issued through the IO/concerned officer of the DRI and it was consistently reported that the given addresses of the above public witnesses were not traceable and ultimately the above two public witnesses were dropped by the prosecution on 08.02.2011, in view of the reports being received on their summons, which were given by the officials/officers of DRI itself. Ld SPP for DRI has argued that the production of the above two witnesses in this court was not in their hands and hence, the non examination of the above two public witnesses should not be held to be fatal for the case of the prosecution, as also held in a number of cases including the recent judgment of Hon'ble Supreme Court in case of Ram Swaroop Vs State (Govt. of NCT) of Delhi 2013 (3) JCC 129 (Narcotics). He has also submitted that the conviction can be based on the testimonies of the official witnesses only and one judgment in case Sunil Tomar Vs The State of Punjab (2012) 10 SCALE has also been referred to by him on this aspect. On the other hand the contention of Ld defence counsels is that the above two witnesses never existed in reality and their names have only been incorporated on record to meet out the legal SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
27requirements and this fact is corroborated by the above reports received regarding their non availability at their given addresses and also by the conduct of the IO in not collecting any document of identity or not verifying the addresses of the above witnesses. The judgments in cases Chand Khan Vs State of Delhi AD (Delhi) 2000 (3) 850 and Sandeep Kumar Vs State of HP Crimes 2003 (1) 335 etc. have also been relied upon by Ld counsel for the accused Debari on this aspect.
42. Though there is no doubt to this court that the examination of the public witnesses is never in the hands of the prosecution and the conviction can be based solely on the testimonies of the official witnesses, but for that the evidence led on record in the form of the official testimonies should be beyond reasonable doubts and should inspire confidence to the court to make it the basis of conviction of the accused. As discussed above, it becomes more necessary in a case like the present one under the NDPS Act where stringent punishments have been prescribed. Though the examination of the above public witnesses was never in the hands of the prosecution, but the facts and circumstances of the case, as brought on record, do not by itself establish beyond reasonable SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
28doubts that any such public witnesses named above were joined in this case.
43. During the defence evidence of accused no. 1 some information furnished by the Ahlmad of this court under the RTI Act has also been brought on record and it includes the information Ex. DW2/E, which contains a list of 55 different cases of DRI containing the status of the availability and examination of the public witnesses to seizure of contraband substance cited in the said cases. Though in some of the above cases both the cited public witnesses or one of them were examined on record, but in most of the cases the witnesses or their addresses were reported to be not traceable. Though, the above is not a certain circumstance to infer that the above two public witnesses cited in this case were the fake or stock witnesses, but their non examination on record not only gives a serious blow to the credibility of the prosecution story but make their very joining and participation in the above proceedings to be doubtful. However, judgments in cases Chand Khan and Sandeep Kumar (SUPRA) being referred to by Ld counsel for accused Debari are not found to be applicable to the facts and circumstances of this case.
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2944. The next manipulation of documents visible from the record is in the form of summons U/S 67 of the NDPS Act Ex. PW1/I and PW3/A issued to the accused persons for the recording of their statements under the said provisions. The summons Ex. PW1/I to accused Debari had been issued by the IO/PW1 Sh Arvind Kumar Sharma himself and the summons Ex. PW3/A to accused Balwant Singh Negi had been issued by PW3 Sh Devender Singh. However, the handwriting of both the above summons appears to be the same and there is nothing on record to suggest that these summons were prepared by one and the same person, i.e. either of the above two officers of DRI or any other officer or official of the DRI. Again, these summons are bearing serial no. 41 and 43 and are not in continuity and keeping in view the fact that both the summons were issued almost at the same time and were for the appearance of both the accused after a gap of 30 minutes only, it was necessary to be explained on record as to why the above summons are not in continuity as this fact leads to an inference that the above processes might have been manipulated subsequently. The above view is further strengthened by the fact that both the summons are dated 17.03.2006, i.e. the date of the apprehension of the accused persons and the seizure of the above contraband substance, and the same are for SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
30their appearance before the above two officers of DRI on 18.03.2006 at 7 AM and 7.30 AM respectively. As per the panchnama Ex. PW1/C, the panchnama proceedings of this case had continued till 4 AM on 18.03.2006 and the summons could not have been prepared and served upon the accused persons prior to that time as the statements Ex. PW1/J and Ex. PW3/B made by the accused persons contain their disclosures regarding the entire panchnama proceedings and this fact clearly suggests that the summons were given and the statements were recorded only after the conclusion of the panchnama proceedings. The very fact that date 17.03.2006 is appearing on the above two summons is also a strong circumstance to suggest that the above summons were manipulated and created subsequently by the DRI officers.
45. The manipulation of documents at a subsequent stage is also visible from the test memos Ex. PW1/L, PW1/M and PW1/N brought on record which, according to the IO/PW1, were prepared during the conduction of the panchnama proceedings itself in the night of 17-18.03.2006. In the above test memos the date of drawl of the samples is shown as 17.03.2006 but the date of dispatch of the sample is shown as 18.03.2006. Even in the complaint filed in the court it was stated SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
31that the samples were dispatched to the CRCL on 18.03.2006, though the oral and documentary evidence brought on record shows that the same were actually taken and deposited in the CRCL on 20.03.2006. Though it has been argued that the same could not be deposited in the CRCL on 18.03.2006 and 19.03.2006 as both these days were holidays on account of Saturday and Sunday, but there is no oral or documentary evidence led in this regard as none of the witnesses has even deposed this fact on record. Though, the above delay of 2-3 days in depositing the samples could not have been material or fatal for the case of the prosecution, but the very fact that the status of the samples is being shown as "dispatched" in the date of 18.03.2006 in the above test memos Ex. PW1/L, PW1/M and PW1/N is a circumstance to show that even the above memos were prepared subsequently, without even caring for the actual facts of the case, and the same were not prepared during the conduction of the panchnama proceedings during the night of 17-18.03.2006.
46. Apart form the above lacunae in the case of the prosecution, the evidence led on record regarding the recovery of the above contraband substance in the manner, as stated above, is also highly doubtful.
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32Firstly it is the admitted case of the prosecution that the recovery of the above heroin was not effected from the physical possession of the accused Balwant Singh Negi as the above two bags were allegedly being carried by the accused Debari in his lap at the time of his apprehension from the above bus and the same were not found to be possessed by the accused Balwant Singh Negi. It is alleged that he was only sitting beside the accused Debari at the relevant time of their apprehension in this case. Hence, as far as the accused Balwant Singh Negi is concerned, the evidence against him is only the alleged voluntary statement made by him U/S 67 of the NDPS Act and the statement of his co-accused Debari under the said provisions, which will be discussed and appreciated subsequently.
47. Coming to the evidence of recovery led on record qua the accused Debari, it is observed that as per the intelligence report Ex. PW2/A the above bus having registration no. HR 39A 8474 was coming from Bhatinda to Delhi and the same was to reach the toll tax collection point at Haryana-Delhi Border at Tikri at around 8 PM. Time of apprehension of the accused has also been stated to be around 8 PM. Ld defence counsel is right in expressing his apprehensions that the above document Ex. PW2/A was manipulated SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
33subsequently by one more reason as keeping in view the distance being travelled by the bus and the road conditions, it could never have been possible for the said bus to arrive at the same time at the abovesaid place, as disclosed in the said information.
48. It is also observed that as per the IO/PW1, they had reached at the spot at around 7.45 PM and had waited there for about 15-20 minutes before the arrival of the abovesaid bus. Admittedly, there was a tax collection point at the spot and the police officials of both the States, i.e. Haryana and Delhi, were also available near the spot, but he has not made any request to any such officials of the tax department or of the police to join the proceedings with them. He has also deposed that there were many passengers in the bus at that time and he has stated the number of the passengers in the said bus at the relevant time to be around 40, but even no passenger, conductor or driver of the above bus has also been made a witness to the above search and seizure proceedings nor even their names or particulars were noted down by the IO for summoning them at a later stage to record their statements regarding the apprehension of the accused persons from the above spot and in the manner as stated above. Further, SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
34though three tickets each of the said bus totalling for a sum of Rs 65/- each were also allegedly recovered from the possession of the accused persons and the same could have corroborated the case of apprehension of the accused persons from the above bus and place, but the IO/PW1 had not even cared to collect any evidence to connect the above tickets with the bus of above number or to verify the above facts and to lead any evidence on record in this regard.
49. It is also observed that as per the depositions of the IO they had spent about 30 minutes at the spot and keeping in view his other depositions it can be said that they had remained present at the spot at least till about 8.30 PM. He has also stated that the distance between the spot and their office was around 30 Kms and they had taken about 1 hour and 45 minutes in reaching to the spot from their office, as the time of leaving their office was stated by him to be around 6 PM and of reaching at the spot to be around 7.45 PM. Hence, if they were present at the spot till about 8.30 PM or after that, it could not have been possible for them to reach their office prior to around 10 PM. The notice Ex. PW1/A served upon the accused Debari is bearing the time of 9.30 PM (2130 hours) below the signatures of the IO put by the SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
35IO on the above typed notice. Since the notice is a typed document and was admittedly prepared in the office of the DRI, the preparation of the above document and also the notice Ex. PW1/B given to the other accused, could have taken considerable time as these notices contain a brief description of the facts leading to the apprehension of the accused persons. Hence, this court has serious doubts regarding the depositions being made by the IO/PW1 regarding the above timings and it appears that the IO/PW1 is not telling the truth and notices Ex. PW1/A and PW3/A are also manipulated documents, which had been created to suit the requirements of the prosecution case. Further, the prosecution has also not led on record any documentary evidence in the form of any log book etc. of the vehicles used in the alleged raid to corroborate the above depositions of the IO/PW1 regarding their visit at the spot.
50. Further, it is found that the complaint exhibited as Ex. PW1/U on record is clearly silent regarding the manner of apprehension of the accused persons and it is only in the panchnama Ex. PW1/C on record that these facts have been mentioned in detail. In the complaint, it was mentioned that the verbal admissions regarding the carrying of narcotic drugs were SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
36made only by the accused Debari during his inquiry by the IO/PW1, but the IO/PW1 went on to state in his testimony that both the accused persons had answered in affirmative to his query regarding their being in possession of narcotic drugs and his these depositions are liable to be ignored as the same are not only in contrast to the contents of the complaint, but to the contents of the panchnama Ex. PW1/C also. No investigation at all was conducted by the IO/PW1 as to from which source the above contraband substance was procured by the accused Debari and to whom the same was to be delivered as though some names have allegedly figured in the statements of the accused persons U/S 67 of the NDPS Act, but the above persons could not be apprehended or interrogated for want of their complete particulars. Hence, even the evidence led by the prosecution on record regarding the alleged recovery of the above contraband substance from the accused Debari is not found to be convincing enough and worthy of being accepted, so as to convict the accused Debari for possession of the above contraband substance, i.e. heroin weighing 110.076 Grams only on the basis of its purity, as given in the CRCL report.
51. Besides the recovery of the above contraband substance, the next incriminating evidence of the prosecution against the accused persons is their alleged statements U/S 67 of the NDPS Act made before the IO/PW1 and PW3 respectively. As per the prosecution case, the SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
37above statement Ex. PW1/J of the accused Debari was made by the said accused voluntarily in his own handwriting and it was tendered in response to the summons Ex. PW1/I served upon him. The other statement Ex. PW3/B of the accused Balwant Singh Negi was also tendered by the said accused in his own handwriting before PW3 Sh Devender Singh, in response to the summons Ex. PW3/A. However, as discussed above, there are strong grounds for believing that certain documents of this case, including the above summons Ex. PW1/I and PW3/A, have been manipulated and created subsequently by the DRI officers and this also adversely effects and makes doubtful the very genuineness and authenticity of the above two statements.
52. As far as the admissibility of such a statement made by an accused under the NDPS Act is concerned, it is now well settled that if such a statement is made by the accused voluntarily, it can not only be acted upon by the court, but it can also be made the basis of the conviction of the accused. However, if such a statement has been subsequently retracted upon by the accused then such a retracted confessional statement of the accused, even though the retraction is not proved in evidence as per law, has been held to be a very weak peace of evidence and it cannot be made the basis of the conviction of the accused in the absence of any independent corroboration thereof. But the entire facts and circumstances of a case are to be looked into for arriving at a conclusion regarding the SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
38voluntariness of such a statement and those leading to retraction thereof. Reference in this regard can be made to judgments in cases of Kanhaiya Lal Vs Union of India 2008 (1) JCC (Narcotics) 23, Raj Kumar Karwal Vs Union of India & Ors. (1990) 2 SCC 409, Kanhaiya Lal Vs Union of India 2008 (1) AD (Crl.) (SC) 277:2008 (1) JCC (Narcotics) 23, Francis Stanly @ Stalin Vs Intelligence Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124, Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC) and Noor Aga Vs State of Punjab & Anr. 2008(9) Scale 681, some of which have been even referred to from both the sides. Reference on this aspect can also be made to the judgment of the Hon'ble Supreme Court in case Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140, wherein it was held by their Lordships 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.
53. Coming to the facts of the present case, the above statements U/S 67 of the NDPS Act have already been retracted by the accused persons on record and the retraction applications were filed in the court during their remand proceedings on 01.04.2006, i.e. on the second date of their remand/production in the court and after a period of about 14 days from the date of recording of their alleged statements dated 18.03.2006. Another set of their SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
39retraction applications was also received in the court, having been forwarded by the Jail Superintendent concerned, and the retraction application of accused Debari was forwarded from the jail on 28.03.2006 and was received in the court on 29.03.2006, though that of the accused Balwant Singh Negi, it was forwarded on 31.03.2006 and was received only on 01.04.2006. The documents Ex. DW1/B, DW1/C and DW1/D proved on record by DW1 Sh Sushil Babu, Warden of the concerned jail, are to the effect of dispatch of the above retraction application of accused Debari from the jail to this court.
54. Since no recovery of any contraband substance has been effected from the possession of the accused Balwant Singh Negi, therefore, in view of the legal propositions discussed above, he cannot be convicted in this case merely on the basis of the contents of his above statement and the statement of his co-accused Debari, as required by prudence or rule of caution, in the absence of any independent corroboration thereof.
55. Moreover, as per the statement Ex. PW3/B of the accused Balwant Singh Negi, he was known to the accused Debari (who was known to him as Dannel) for the last sometime and he was asked by the accused Debari to accompany him to Punjab and to act as an interpretor only as the accused Debari was finding it difficult to converse in Hindi or English language with other persons. He has SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
40also allegedly stated in his above statement that even during the above trip, he had accompanied the accused Debari to Punjab as an interpretor only and for that the accused Debari had called him on 16.03.2006 at about 8.30 PM on his mobile phone number 9871446016 and asked him to reach at a given place in West Vinod Nagar area and then they both had left for Ludhiana from ISBT, Delhi at around 10 PM on 16.03.2006 and had reached Firozpur at about 8.30 AM on 17.03.2006. He has also allegedly stated in his above statement that from Firozpur Cantt, they had taken a rickshaw and had reached near the gate of Firozpur Engineering College, where one silver colour Tata Indica car was already standing and the accused Debari had talked with a person was already sitting in the above vehicle and then the accused Debari had also gone to sit on the front seat of the vehicle and he was made to sit on the rear seat and then the above Indica car was driven by the said person towards some village, where the accused Debari had got down and had collected some packets from a person, who had reached there in the fields on a bicycle, and had put the said packets in his above leather bag and then they both were dropped by the above person driving the Indica car on the outskirts of Firozpur city on the road and from there they were returning the Delhi with the above packets, via Dabwali, Sirsa and Hisar etc. and were apprehended by the police.
56. Even, the above contents of his alleged SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
41voluntarily statement nowhere show that he had helped the accused Debari in conversating with any of the above persons regarding the above dealings or exchange of the narcotic drugs or that he was aware that the above packets collected by the accused Debari from the above person on bicycle were containing heroin. Though, he has also stated in his above alleged statement that previously also he had accompanied Debari to Punjab on few occasions and Debari used to bring some white powdery substance from Punjab to Delhi and he was accompanying him in the greed of money and the above powdery substance used to give a pungent smell, but the same do not in any way constitute his knowledge regarding the drug dealings of the accused Debari or his own involvement in any such drug dealings. The IO/PW1 has not collected any evidence regarding the previous visits of this accused to Punjab with the accused Debari or even regarding any alleged telephonic conversations between the two accused. His above statement Ex. PW3/B cannot even be used against the other accused Debari also for the above reasons that the same is self-exculpatory and is not in- culpatory, as also held in case Bal Krishna Naik Vs State of MP Cr.L.J. 2000-0-4797 being relied up by Ld counsel for the accused Debari. Even otherwise, its contents are not incriminating enough to implicate the accused Debari.
57. Though, the statement Ex. PW1/J of the accused Debari contains his admissions of guilt regarding his possession of the above contraband substance and also his SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
42being conscious of the said possession and nature of substance, but as discussed above, since the above statement already stands retracted and is not corroborated by any independent evidence, the same is not sufficient to hold him guilty for the above offences when the evidence led on record regarding possession of the said substance from him is not found to be convincing. His statement also nowhere shows that the accused Balwant Singh Negi was aware regarding his drug dealings or was conscious or aware regarding his alleged possession of the above contraband substance. Therefore, the above two confessional statements of the accused persons are not of any help to the case of the prosecution and can not be used any purposes. Even the evidence regarding the alleged recovery of the above heroin from the possession of accused Debari has been held to be untrustworthy and hence, his above statement U/S 67 of the NDPS Act cannot be used for any corroboration purposes thereof, for securing his conviction in this case. Except the disclosures made by the accused Debari, the prosecution has also not been able to collect or lead any evidence on record to suggest that the above currency amounts recovered from his possession were the sale proceeds of the drugs. There is not even an iota of evidence on record to show that both the accused persons were part of any such alleged criminal conspiracy to deal in contraband substances.
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4358. Ld SPP for DRI has also argued that in view of the legal presumptions about the consciousness of possession and the mental state of the accused contained in Sections 35 and 54 of the NDPS Act, the onus lies upon the accused persons to prove their innocence and the absence of such consciousness to possess the above contraband substance and to explain their possession of the said substance. However, the above arguments and submissions being made by Ld SPP for DRI are without any merits as the above presumptions contained in the above sections can come into operation only when the evidence led by the prosecution on record regarding the recovery of such contraband substance from the possession of the accused is convincing and trustworthy and these presumptions cannot be resorted to if the evidence regarding recovery of possession is doubtful or under serious clouds, as is in the present case. Reference in this regard can be made to the celebrated case of Noor Aga Vs State of Punjab & Anr. 2008(3) JCC (Narcotics) 135, wherein the following observations were made by the Hon'ble Supreme Court:-
87. "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 SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.44
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 initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is 'preponderance of probability' on the accused. 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."
Hence, the accused Debari cannot be held guilty for the alleged possession of the above contraband substance even with the help of the provisions of 35 and 54 of the NDPS Act.
59. It is also an argument of Ld SPP for DRI that the defence of false implication taken by the accused persons is a very weak defence and no evidence has SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
45been led by the accused persons on record in their defence to substantiate the same and hence, the case of the prosecution should be believed. He has also argued that the accused Debari in the course of recording of his statement U/S 313 Cr.P.C has even admitted his apprehension from the above bus and spot, but these arguments of Ld SPP also do not hold good as the prosecution has to prove its case against the accused beyond reasonable doubts and it cannot be given any advantage of the weakness of the defence. Simply because the accused Debari has admitted that he was picked up from the above said bus and place and the accused persons have not led any evidence to substantiate their plea of false implication, it cannot be taken to be an admission on their part of their guilt or the possession of the above contraband substance.
60. One other contention of Ld SPP for DRI is that huge recovery of heroin weighing about 3 KG has been effected from the possession of the accused persons and in view of the law laid down in case of State of Punjab Vs Balwant Rai 2005 (1) JCC (Narcotics) 103, the question of implanting of the same does not arise and the prosecution case should be believed. However, as discussed above, the purity SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
46weight of the above heroin comes to around 110 Grams only and the prescribed commercial quantity of the heroin under the NDPS Act is 250 Grams. The above seizure of this case was effected on 17.03.2006, i.e. much prior to the issuance of the Notification No. S.O. 2941(E) dated 18.11.2009 of the Ministry of Finance, Department of Revenue, vide which it has been laid down that the entire quantity of the mixture of such a substance and not only its purity contents are to be considered. At that time, in accordance with the settled legal propositions, it was only the purity contents/weight of a narcotic drug which was to be considered and not the entire weight of the substance. Both the accused persons were also earlier released on bail in this case on the ground that the above pure quantity of heroin allegedly recovered in this case is about 110 Grams only, which is not a commercial quantity and hence, the provisions of Section 37 of the NDPS Act were not attracted in this case. Therefore, the above argument of Ld SPP for DRI regarding the quantity of heroin in this case being huge is not legally tenable.
61. Though, some other arguments have also been advanced regarding the discrepancies revolving around the service of notices U/S 50 of the NDPS Act upon the SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
47accused persons and the intactness etc. of the case property and samples and some judgments in this regard have also been cited by the Ld defence counsel, but because of the above fabrication of the different documents visible from the record and the doubtful evidence regarding the alleged recovery of the above contraband substance from the possession of the accused persons, no further detailed discussion in this regard is being felt necessary. However, it is stated that the provisions of Section 50 of the NDPS Act are apparently not applicable in this case as the recovery of heroin was not effected from the 'person' of accused Debari, but from the bag carried by him.
62. In view of the above, it is held that the evidence led by the prosecution on record is not sufficient to bring home the guilt of the accused persons for the offences punishable U/S 21(b) and 29 read with Section 21(b) of the NDPS Act, for which charges were framed against them. They both are therefore, acquitted of the above charges for lack of credible evidence and giving benefit of doubt.
63. Accused Debari is in custody, though on bail in this case. Let the Jail Superintendent be intimated that he is not required to be detained in custody in this case SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.
48and can be released. But, however, since he is not an Indian National and is a National of Nigeria, he can be dealt with accordingly as per law.
64. The case property be also confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment, if any.
65. Bonds U/S 437A Cr.P.C are yet to be furnished by the accused persons. They both have been directed to furnish a personal bond in the sum of Rs 25,000/- each with one surety for the like amount each by 29th October 2013 and the case file be consigned to record room thereafter.
Announced in the open
court on 22.10.2013 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC NO. 35A/06 DRI Vs Debari D Yormadi & Anr.