Delhi District Court
Ncb vs . Otegbola Oluwaseunsolu on 11 May, 2012
NCB Vs. Otegbola Oluwaseunsolu
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 22/08
ID No. 02403R0436042008
Narcotics Control Bureau
Through Shri Akhilesh Kumar Mishra,
Intelligence Officer,
Narcotic Control Bureau, Delhi Zonal Unit,
West BlockI, Wing No.7, R.K. Puram,
New Delhi110066
..... Complainant
Versus
Otegbola Oluwaseunsolu,
s/o Otegbola,
R/o No. 9, Little Road,
Sabo, Yabo, Lagos,
Nigeria. ..... Accused
Date of Institution : 31/03/2008
Judgment reserved on : 28/03/2012
Date of pronouncement : 11/05/2012
JUDGMENT
1. The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer (IO) Sh. Akhilesh Kumar, has filed the present complaint against the accused u/s 21 (c) and 23 of the Narcotic Drugs and SC No. 22/08 Page 1 of 29 NCB Vs. Otegbola Oluwaseunsolu Psychotropic Substances Act (herein after referred to as NDPS Act).
2. Briefly stated the allegations against the accused as contained in the complaint are inter alia as follows:
(a) It is asserted that on 17/9/2007 a secret information was received by Sh.
Akhilesh Kumar, IO from DHL office at Rama Road that a parcel booked from its NOIDA office vide airway bill no.1713318876 and destined for Philadelphia, Pennsylvania, USA is suspected to contain narcotic substance.
(b) On the instructions of the superiors, the said IO Akhilesh Mishra alongwith one driver Rajesh Kumar went to the office of DHL at Rama Road and there one Neelanshu Jaiswal, Retail Home Executive, DHL produced before the said IO, the parcel in question. The said parcel was then opened in presence of two independent witnesses Sh. Jaiswal and one Sh. Jatin Nagpal, both employees of DHL office.
(c) On opening the parcel it was found to contain a wall hanging and within the photo frame of the wall hanging, some white polythene sticks wrapped with transparent tape were found concealed. On counting the said sticks, they were found 19 in number. The sticks were cut open and their contents namely off white colour powder was poured into one transparent polythene and a small amount of the said powder was tested with the help of field testing kit and it gave positive result of heroin and the total weight of the SC No. 22/08 Page 2 of 29 NCB Vs. Otegbola Oluwaseunsolu white powder substance came out to be 300 grams. Two representative samples of 5 grams each were drawn and were separately sealed and seized and were given mark A1 and A2 and the remaining substance was kept in a polythene, wrapped in a cloth and was converted into a parcel and was given mark A. The packing material, photo frame and the nineteen sticks from which the off white colour powder material was drawn, were packed together with DHL tape and were given mark B. Signatures of the witnesses were taken on all the sealed pullandas and the seizure memo was also prepared.
(d) A copy of the invoice, airway bill and copy of passport of consignor were also taken into possession. The entire case property alongwith samples and its memo were deposited in the malkhana and statements of Jatin Nagpal and Neelanshu Jaiswal, the employees of DHL were recorded.
(e) It is further asserted that on 3/10/2007 another secret information was received by Sh. Akhilesh Kumar Mishra, IO that the consignor, namely Oluwaseunsolu Sola Otegbola of the parcel which was seized on 17/9/2007 from DHL Rama Road, New Delhi is likely to come for booking of another parcel at DHL Office, Sector 18 NOIDA, between 1700 hours to 1900 hours.
(f) Pursuant to the said information the Superintendent is asserted to have issued a search authorization dt. 03.10.2007 in favour of the Intelligence SC No. 22/08 Page 3 of 29 NCB Vs. Otegbola Oluwaseunsolu Officer Sh. P.C. Khanduri for the search of the accused and his belongings. It is asserted that on the same day at about 1645 hours Sh. P.C. Khanduri collected the seal of NARCOTIC CONTROL BUREAU DZU 5 and the raiding team consisting of P.C. Khanduri, Manoj Kumar, Ajay Kumar, HC Shiv Ratan, Sepoy Babu Lal left the office of NCB, DZU and reached the DHL office, Sector 18 Noida, UP at about 1710 hours. Two public witnesses namely Sh. Braham Prakash and Nitin Chauhan, both employees of DHL are asserted to have voluntarily agreed to join the investigation as independent witnesses.
(g) As per the assertions made in the complaint, at about 1730 hours the accused, came at the counter of DHL office with a pink colour hand bag. It is asserted in the complaint that Sh. Nitin Chauhan identified the accused as the one who had booked the parcel on 17/09/2007. The accused was then apprehended by the members of the raiding team who then introduced themselves to the accused and apprised him about the secret information, and the accused was duly made to understand that he has a legal right to ask for a Gazetted Officer or Magistrate for the purposes of his search. The accused is stated to have accordingly refused the said offer and he was accordingly searched by the IO himself.
(h) During the search of the pink colour bag which is alleged to have been recovered from right hand of the accused, it was found containing one SC No. 22/08 Page 4 of 29 NCB Vs. Otegbola Oluwaseunsolu black/brown colour rexin purse. On checking the purse two brown colour polythene packets having off white powder were recovered. The said powder on testing with the help of field testing kit is stated to have tested positive for heroin. Both the packets were given mark A and B. The powder from the packets was kept into two separate transparent polythene and was weighed and it was found to be 150 grams each. Two representative samples of 5 grams each were drawn from each of the packets and were separately sealed and seized and were given mark A1, A2, B1 and B2. The packet mark A and B along with two brown packets were kept inside the ladies purse and further kept in the pink bag and were given mark C and signatures of the witnesses were taken on all the sealed pullandas on paper slips. Test memo form and seizure memo were also prepared.
(i) After completing search and seizure proceedings at DHL, NOIDA, Sh. P.C. Khanduri and Sh. Manoj Kumar, Sh. Ajay Kumar, HC Shiv Rattan and Sepoy Babu Lal alongwith accused are stated to have reached his rented house at Chotta Mohalla, Village Hosiyarpur, Sector 51, Noida UP for search of the said premises. Sh. Bhanu Mukhiya, landlord of accused and one Ram Kumar are stated to have voluntarily joined the said search proceedings. In the presence of the above witnesses the search of the house of accused was conducted and from the said search photocopy of passport SC No. 22/08 Page 5 of 29 NCB Vs. Otegbola Oluwaseunsolu of the accused, photocopy of airway bill no. 1713318876 of DHL were recovered and were seized and the house search memo was prepared.
(j) Thereafter in pursuance of the summons issued to the accused Otegbola, he is stated to have appeared before the NCB officials and to have tendered his voluntary statement. In his statement given u/s. 67 of the NDPS Act accused Otegbola is asserted to have inter alia stated that he is a soccer (football) player and had played for various clubs in his country and had also represented the national team of Nigeria in under 20 football matches and had visited Thailand, Maldives, Russia and Sri Lanka in connection with his football matches. This accused is also stated to have revealed that he came to India on 19/8/2007 and stayed with one of his friends in Noida and that he was facing financial difficulties. As per the said statement he had met one person namely Hennery Igwe in Haiti who asked him to book parcels to different destinations for which he would be paid Rs.2,000/ extra along with the booking amount. This accused is also stated to have revealed that on 17/9/2007, on the instruction of Henery he had booked a parcel which was to be sent to USA from DHL, Noida Office and had given photocopy of his passport as his identity proof. This accused is also stated to have revealed that on 3/10/2007 on the instruction of Henery he had again taken a parcel from him, which has to be sent to Holland from DHL, Noida Office and that when he went to DHL office at Sector 18, SC No. 22/08 Page 6 of 29 NCB Vs. Otegbola Oluwaseunsolu Noida to book the parcel, he was intercepted by the NCB officials.
(k) The accused was arrested thereafter on the basis of the seizure of the contraband and the statements of the witnesses. Report u/s. 57 of the NDPS Act was submitted and the samples drawn from the substance recovered were sent to CRCL. The panch witnesses were also summoned and their statements were also recorded u/s. 67 of the NDPS Act.
3. On the basis of the material available on the record, vide order dated 6/3/2009 charges were framed against the accused for the offences punishable u/s 21 (c), 23 (c) of the NDPS Act to which the accused pleaded not guilty and claimed trial.
4. To substantiate its allegations against the accused persons the prosecution has examined thirteen witnesses. (including one numbered 10A).
5. PW1 Rajesh Kumar has deposed that he had taken samples, test memo forms and forwarding letters on 18/09/2007 and deposited the same in CRCL vide receipt Ex.PW1/DA.
6. PW2 Sh. S.C. Mathur, Chemical Examiner has proved analysis report of the substance recovered as Ex.PW2/1 and Ex.PW2/3.
7. PW3 Sh. Jaiveer Singh, Lab Assistant, has interalia deposed that he had received samples, test memo forms and forwarding letters from PW1 Sh. Rajesh Kumar and PW Havaldar Shiv Ratan on 18/09/2007 and 05/10/2007 respectively and had issued receipts Ex.PW1/DA and SC No. 22/08 Page 7 of 29 NCB Vs. Otegbola Oluwaseunsolu Ex.PW2/2 respectively.
8. PW4 Akhilesh Kumar Mishra has deposed about the search proceedings conducted by him at the office of the DHL Rama Road. He has inter alia deposed that the secret information received by him was reduced into writing by him and was also produced before PW5 Sh. RR Kumar, Superintendent, NCB. The said secret information has been exhibited as Ex.PW4/1. As per the deposition of PW4 Akhilesh Mishra and PW1 Rajesh Kumar, driver, both of them had left the NCB office on 17.09.2007 at about 6:15 PM and reached the DHL office at about 7:15 PM where they met the Jatin Nagpal and Neelanshu Jaiswal. PW6 Jatin Nagpal, employee of DHL couriers has inter alia deposed that on the request of IO Akhilesh Mishra he agreed to be present during the search of the parcel in question. Regarding the search and seizure proceedings, both witnesses namely PW4 and PW6 have deposed on similar lines. PW4 has proved the panchnama, test memo prepared by him and the same has exhibited as Ex.PW4/3 & Ex.PW4/7. Copy of airway bill, copy of proforma, copy of passport of accused stated to have been seized by this IO have been exhibited as Ex.PW4/4, Ex.PW4/5 and Ex.PW4/7 respectively. Photocopy of malkhana register has also been exhibited. The report tendered by him u/s 57 of the NPDS Act has been exhibited as Ex.PW4/9. SC No. 22/08 Page 8 of 29 NCB Vs. Otegbola Oluwaseunsolu
9. PW5 Sh. R.R. Kumar, Superintendent, has inter alia deposed that on 17/09/2007 PW4 Sh. Akhilesh Mishra had put up before him secret information and after going through the information he had issued departmental seal of NARCOTIC CONTROL BUREAU DZU5 to PW4. He has then further deposed that pursuant to seizure proceedings the IO Akhilesh Mishra (PW4) had submitted a report Ex.PW4/9 before him to the effect that 300 grams of heroin had been recovered from the parcel carried by the accused. He has also deposed that on 03/10/2007 PW4 again up before him secret information Ex.PW4/13 and after going through the information he had had issued search authorisation Ex.PW5/1 and departmental seal of NARCOTIC CONTROL BUREAU DZU5 to PW Sh. P.C. Khanduri. He has then further deposed that pursuant to search and seizure proceedings the IO P.C. Khanduri (PW7) had submitted a report Ex.PW5/4 before him to the effect that 300 grams of heroin had been recovered from the parcel carried by the accused. According to this witness IO P.C. Khanduri had also put up the report Ex.PW5/3 regarding the search of house of accused. According to this witness the arrest reports of the accused was also placed before him and the same has been exhibited as Ex.PW5/5. This witness has also stated that he had issued a letter to the Ministry of External Affairs with respect to the information of the arrest of the accused who is a foreigner. As per SC No. 22/08 Page 9 of 29 NCB Vs. Otegbola Oluwaseunsolu this witness, he had signed on the seal movement register with respect to the handing over and return of the seals to and from the IOs A.K. Mishra and P.C. Khanduri. The relevant page of the seal movement register has been exhibited as Ex.PW4/2. As per the deposition of this witness samples alongwith test memo in duplicate were sent to CRCL for examination and received the report.
10.PW7 Insp. P.C. Khanduri has inter alia deposed that on 17/09/2007 he was working as Intelligence Officer Malkhana Incharge in NCB, DZU, R.K. Puram and that on 3/10/2007 on the basis of the search authorization issued in his favour by R.R. Kumar, he alongwith other officials of NCB namely Manoj Kumar, Sh. Ajay Kumar, PW9 Havaldar Shiv Ratan and Sepoy Babu Lal left for the DHL office sector, 18, Noida. He has then described in detail the apprehension of the accused is more or less on the same lines as the averments made in the complaint. He has also in particular deposed the he had issued notice u/s 50 of the NDPS Act to the accused and the said notice has been exhibited as Ex.PW7/2. As per the deposition of this witness, accused had signed the same endorsing his refusal to get himself searched before a magistrate. The seizure memo and the test memo prepared by this witness have been exhibited as Ex.PW7/3 and Ex.PW5/6 respectively. Apart from the deposition with respect to the apprehension of the accused, this witness has also deposed that he SC No. 22/08 Page 10 of 29 NCB Vs. Otegbola Oluwaseunsolu alongwith Jai Bhagwan and other NCB officials had also searched the house of accused, from where one photocopy of passport of accused Ex.PW7/5 and one photocopy of airway bill Ex.PW7/6 were recovered. The summons issued by him u/s 67 NDPS Act to the accused have been exhibited as Ex.PW7/7. The summons issued to the panch witnesses have been exhibited as Ex.PW7/8, Ex.PW7/9, Ex.PW7/10, Ex.PW7/11. The report tendered by him u/s 57 of the NPDS Act has been exhibited as Ex.PW5/4. The voluntary statements of panch witnesses Braham Prakash who is stated to have appeared before him to tender his voluntary statements u/s 67 of the NDPS Act has been exhibited as Ex.PW7/13. He has also deposed that the entire case property and test memo in triplicate were deposited with him in the Malkhana and the entries to this effect in the Malkhana register have been exhibited as Ex.PW4/8 and Ex.PW7/12. During his deposition he has also identified the case property.
11.PW8 Braham Prakash, has inter alia deposed that he had witnessed the apprehension of the accused and the search and seizure proceedings that were conducted by the NCB officials on 03/10/2007 in the office of DHL Express India Pvt. Ltd. F24, Sector 18, Noida. As per his deposition he was working as Supervisor in the said office on the said date and that in his presence the accused had come to the said office on 03/10/2007 at about 1730 hours when he was intercepted and apprehended by the NCB SC No. 22/08 Page 11 of 29 NCB Vs. Otegbola Oluwaseunsolu officials. This witness has in detail deposed abut the entire proceedings conducted by the NCB officials.
12.PW9 Hawaldar Shiv Ratan has deposed that on 05/10/2007 on the directions of Superintendent, he had taken two samples along with forwarding letter and test memo form in duplicate and deposited the same with PW3 Sh.Jaivir, Lab Assistant, CRCL, Pusa. This witness has further deposed that on 27/02/2009 on the directions of court he had taken three samples along with forwarding letter and test memo form in duplicate and deposited the same with Sh. Bhuwan Ram, CRCL, Pusa. This witness has further deposed that on 04/03/2009 on the instruction of Sh. Ajay Kumar Superintendent he had collected the report Ex.PW2/6.
13.PW10 Sh. Avnish Kumar, IO has inter alia deposed that on 03/10/2007 in pursuance of the summons accused Otegbola had given his statement before him which was correctly written by PW4 Sh. Akhilesh Mishra on his dictation and the same has been exhibited as Ex.PW4/14. This witness has inter alia deposed that on 04/10/2010 on the basis of the voluntary statement of Otegbola he had arrested him and the arrest cum jamatalashi memo in this regard has been exhibited as Ex.PW10/1. The arrest report tendered by him u/s 57 of the NPDS Act has been exhibited as Ex.PW5/5.
14.PW10 (A) Bhanu Mukhiya and PW11 Ram Kumar have not supported SC No. 22/08 Page 12 of 29 NCB Vs. Otegbola Oluwaseunsolu the case of the prosecution and their testimonies will be discussed a little later in the judgment.
15.PW12 Sh. V.B. Chaurasia, Chemical Examiner has proved the report Ex.PW12/1 prepared by him. This witness has inter alia deposed that during passage of one year if a sample of aqueous solution of diacetylmorphine is stored in humid and hot conditions, the percentage of diacetylmorphine reduces upto 2% and the said compound gets converted into monoacetylmorphine and then to morphine.
16.All the incriminating evidence referred to herein above was put to the accused and his statement was recorded u/s 313 Cr.P.C. In the said statement, accused has denied his complicity in the present case and has stated that no parcel was recovered from him and that he had not booked any parcel with DHL Express India Pvt. Ltd. (hereinafter referred to as DHL), Rama Road on 17.09.2007. He has further stated that the consignor copy of the airway bill with respect to the parcel booked on 17.09.2007 was not recovered from him or at his instance from his tenanted premises. According to the accused, he was not residing in the house of Bhanu Mukhiya in village Hoshiyarpur, Noida. He has also denied giving any voluntary statement u/s 67 NDPS Act and has stated that his signatures were taken under pressure, threat and coercion. The accused has not lead any defence evidence.
SC No. 22/08 Page 13 of 29 NCB Vs. Otegbola Oluwaseunsolu
17.I have heard the Ld. Counsel Sh. Rajesh Manchanda, SPP for NCB and counsel for accused Sh. Y.K. Saxena. Written submissions have also been filed on record by both the Ld. Counsels. Ld. Counsel Sh. Manchanda has submitted that the accused was apprehended red handed when he had gone to book a parcel of drugs i.e. 300 gms of heroin in the office of DHL, Noida on 03.10.2007 and that the two independent public witnesses have supported the version put forward by the prosecution and that therefore there is no doubt about the complicity of the accused in the present case. He further points out that with respect to the parcel of drugs that was seized on 17.09.2007 by the NCB officials and was found to contain 300 gms of heroin, the accused had admitted in his statement u/s 67 NDPS Act that the said parcel was also booked by him and that further the consignor's copy of the airway bill with respect to the said parcel was recovered from the tenanted premises of the accused and that therefore with respect to the said recovery of contraband also, the complicity of the accused stands proved.
18.On the other hand, Ld. Counsel Sh. Saxena has submitted that as regards the recovery of contraband from the parcel that was booked on 17.09.2007, the prosecution has not been able to prove that the same was booked by the accused. He has pointed out that the name of the consignor mentioned in the airway bill pertaining to the parcel in question is not that SC No. 22/08 Page 14 of 29 NCB Vs. Otegbola Oluwaseunsolu of the accused but that of one Prince Moorey. He has also submitted that the landlord of the premises at Noida from where the photocopy of airway bill was alleged to have been recovered has also stepped into the witness box and has categorically deposed that the accused was not is tenant. His contention is that the NCB is only trying to connect the parcel recovered on 17.09.2007 with the accused by planting the evidence against him. His further contention is that the recovery allegedly made from the accused on 03.10.2007 also cannot be made the basis for his conviction for the provisions of section 50 NDPS Act have not been complied with with respect to the said alleged recovery. He has pointed out that the public witness PW8 has stated in his examination in chief itself that the accused was only informed that he can get himself searched before an advocate. His contention is therefore that the accused was never informed that he has a legal right to be searched before a Magistrate or a Gazetted officer and that therefore no conviction can based on the said search. Ld. Defence counsel has also submitted that in fact the entire case of the prosecution is fabricated in as much as the samples allegedly drawn by the investigating officer have been proved not to have been drawn from the case property produced in the court. In this regard, he has pointed out to the deposition of the expert witnesses PW2 and PW12 (which shall be discussed in detail later in the judgment). In support of his contentions, SC No. 22/08 Page 15 of 29 NCB Vs. Otegbola Oluwaseunsolu Ld. Counsel has relied upon the following judgments:
(i) Ali Mustafa Abdul Rehman Moosa Vs. State of Kerala (1194) 6SCC 569.
(ii) Union of India Vs. Shah Alam & Anr. 2009 (3) Crimes 71 (SC).
(iii) NCB Vs. Sukhdev Raj Sodhi 2011(2) Crimes 311 (SC).
(iv) State of Delhi Vs. Ram Avtar @ Rama 2011(3) JCC 146.
(v) Union of India Vs. Farid 2011(4) JCC (Narcotics) 213.
19.In rebuttal, Ld. Counsel Sh. Manchanda has submitted that since the parcel from which the heroin has been recovered was being carried by the accused in a bag in his right hand, there is no question of applicability of section 50 NDPS Act to the present case. In this regard, he has relied upon the judgments of Hon'ble Supreme Court reported as State of HP Vs. Pawan Kumar (2005) 4SCC 350 and Jarnail Singh Vs. State of Punjab AIR 2011 SC 964. He has further contended that the statement recorded of the accused u/s 67 NDPS Act can be made the sole basis for his conviction and in this regard he has referred to the judgment of Hon'ble Supreme Court pronounced in the case reported as Ram Singh Vs. Central Bureau of Narcotics AIR 2011 SC 2490. Ld. Counsel Sh. SC No. 22/08 Page 16 of 29 NCB Vs. Otegbola Oluwaseunsolu Manchanda has also submitted that the prosecution is not required to prove its case against the accused beyond all shadows of doubt and in this regard has relied upon a judgment of Hon'ble Supreme Court pronounced in the case of Sucha Singh Vs. State of Punjab reported in (2203) 7SCC 643.
20.I have carefully considered the submissions made by both the Ld. Counsels and have gone through the entire material on record and the judicial dicta referred to by the Ld. Counsels. As narrated hereinabove, accused is facing charges in the present case with respect to two recoveries of contraband one that was made from a parcel booked in the office of DHL Courier, Noida on 17.09.2007 and secondly from a parcel that the accused was found carrying on 03.10.2007 when he had gone at the said office of Noida to book another parcel. As regards the first recovery, the prosecution is relying upon the fact that the consignor copy of the airway bill was recovered from the rented premises of the accused and that the accused himself had admitted in his statement u/s 67 NDPS Act that it was who had booked the parcel. Reliance has also been made on the statement tendered u/s 67 by one Nitin Chauhan, employee of the DHL courier wherein the said Nitin Chauhan has stated that the accused is the same person who had come to book the parcel at the DHL office at SC No. 22/08 Page 17 of 29 NCB Vs. Otegbola Oluwaseunsolu Noida on 17.09.2007. In my considered opinion, none of the aforementioned facts are sufficient to hold the accused guilty of having booked the said parcel of drugs, due to the reasons discussed hereinbelow. The first of the said reasons is because Nitin Chauhan has not been produced in the witness box by the prosecution. Summons sent to this witness had come back with the report that he had left the services of DHL and that his residential address is not available. In the absence of prosecution producing this witness in the witness box, the accused never had an opportunity to crossexamine him to dispute his statement tendered u/s 67 NDPS Act and therefore the said statement placed on record cannot be read in evidence against the accused. The second reason for this court holding that the accused cannot be held guilty for booking the parcel on 17.09.2007 is that the airway bill pertaining to the said parcel, Ex.PW4/4 does not reflect the accused as the consignor thereof but shows the name of the consignor as one Prince Moorey. PW6 Jatin Nagpal and PW8 Braham Prakash, both employees of DHL Courier have deposed that whenever an individual comes to book a parcel, his ID proof is asked for and the same is taken by the booking clerk at the time of booking the parcel. Thus, as per their deposition, the courier company would have taken the ID proof of the consignor mentioned in the aforementioned airway bill namely Prince Moorey and not of any other SC No. 22/08 Page 18 of 29 NCB Vs. Otegbola Oluwaseunsolu person. There is absolutely no explanation forthcoming as to how and why the courier company accepted the copy of passport of the accused as the ID proof of the consignor when his name was not mentioned as the consignor in the airway bill. Infact PW8 Braham Prakash the supervisor of the DHL Office, where the parcel was allegedly booked by the accused on 17.09.2007, has very interestingly revealed in his cross examination that on the day that the packet was booked at the Noida office the packet was opened in the presence of the person who had come to book it, for checking and at that time itself they had suspicion about its contents but they still booked it because the Noida Office does not have a Xray machine that could have confirmed their suspicion and so it was sent to Rama Road Office which does have such a machine. Such kind of deposition only shows that this person would then have been aware of the person who had come to book the parcel and if such a suspicion had arisen then more care would have taken to see that the identity proof document of the consignor would have been insisted upon. On the other hand PW8 has deposed evasively that he had not seen the person who had booked the parcel but that the name of the said person must be on the airway bill. On being shown the Airway Bill Ex.PW4/4 he admits that it mentions the name of Prince Moore. He also admits that there had been no discussion about the name of the accused prior to 03.10.2007 and the SC No. 22/08 Page 19 of 29 NCB Vs. Otegbola Oluwaseunsolu name of the accused was revealed to him and the other employees at Noida Office only on 03.10.2007. In view of such deposition and the non mentioning of the name of the accused as the consignor of the questioned parcel, it cannot be ruled out as contended by the defence that the copy of the passport of the accused was later on planted alongwith the airway bill of the parcel and his signatures taken on the computerized copy of the airway bill.
21.Much reliance has then been placed on the fact that the consignor copy of the airway bill pertaining to the said parcel was recovered from the tenanted premises of the accused at Sector 51, Noida. This version of the prosecution has also not been supported by both the public witnesses who had allegedly witnessed the said recovery proceedings. The public witness PW11 Ram Kumar, a resident of the locality, who was allegedly joined by the investigating agency in the search of the premises in question has categorically deposed that he did not witness any such search. He has categorically stated that in his presence nothing was recovered from the premises at sector 51, Noida UP. Though this witness was crossexamined at length by the Ld. counsel for NCB, he stuck to his version. The landlord of the said premises,PW10 Bhanu Mukhiya, who was also a purported witness to the said recovery, in his examination in chief has refused to identify the accused as his tenant. He was also cross SC No. 22/08 Page 20 of 29 NCB Vs. Otegbola Oluwaseunsolu examined by the Ld. Counsel for NCB and though in the said cross examination he admits that on 03.10.2007 the accused had been brought by plainclothes police men to his premises, he also states that the search of the premises was not taken in the presence of the accused but that the accused had been tied and was made to sit in the Maruti Van while the premises were being searched. He also has deposed in his cross examination on behalf of the Defence that he had given a room in his premises at Sector 51, Noida, UP to a tall and strong built Nigerian and that the said Nigerian is not the accused. Though he does say on a question put by the Ld Counsel for NCB that in the said room along with the said person one another Negro i.e. the accused was also residing, he again insists that the tall and well built Negro was also present when some documents were recovered from the portion in which he was residing. The only inference that can be drawn from the testimony of this witness is that the premises from where the copy of the consignor bill was allegedly recovered was not given on rent to the accused and that even if he was staying in the said premises at some point of time with the tenant therein, he was not the exclusive occupant thereof. Though Ld. Counsel SPP for NCB has vehemently contended that the witness PW10 has deliberately introduced the story of two Nigerians being the occupants of the premises in question and has deliberately not identified the accused as his tenant, I SC No. 22/08 Page 21 of 29 NCB Vs. Otegbola Oluwaseunsolu find no reason to discard his testimony only because for the reason that he has not supported the version of the prosecution. Infact even another witness of the prosecution namely PW8 Brahm Prakash, the employee of DHL courier, in whose presence the accused was apprehended, has in his crossexamination, stated that the accused had disclosed his residential address of Uttam Nagar. This witness was not reexamined by the NCB in this respect. When the own witness of the prosecution who has not been declared hostile has categorically stated that the accused had disclosed his residential address of Uttam Nagar and there is no reason for this court to disbelieve him, the prosecution cannot be heard to state that the accused had disclosed his residential premises to be in Noida. The conduct of the investigating officials at the Noida premises is also highly questionable taking into account that both PW10 and PW11 have stated that they had not given any statement on their own to the NCB officials and that they had signed whatever was instructed to them by the NCB officials. In fact PW11 has categorically stated that Ex.PW7/4, the house search memo and his purported statement Ex.PW4/15 do not even bear his signatures at point D. In view of such depositions, it is to be held that the prosecution has not produced any credible evidence documentary or otherwise to show that the copy of the consignor bill was recovered from premises in the exclusive possession of the accused. SC No. 22/08 Page 22 of 29 NCB Vs. Otegbola Oluwaseunsolu
22.Coming now to the contention of Ld. SPP for NCB that the own statement of the accused tendered u/s 67 of NDPS Act is sufficient to prove his guilt in the present case, it is a matter of record that the said statement was retracted by the accused on the first opportunity available to him i.e. when he was produced for his judicial remand before the Special Judge, NDPS Court. With respect to a retracted confessional statement, the Hon'ble Supreme Court in the case reported as Noor Aga vs. State of Punjab, 2008 (10) SCR 379 has held that the burden of proving that the confession was voluntary is upon the prosecution and the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but the standard of proof required for the accused to prove his or her innocence is "preponderance of probability". Keeping the aforementioned principle in mind I am of the considered opinion that in the present case the accused has been able to sufficiently show on the preponderance of probability that his statement was not given voluntarily. As narrated hereinabove, PW10 a public witness has stated on oath in the court that when the accused was brought to his premises at Noida, he was handcuffed and tied and was made to sit in the vehicle while his so called tenanted premises were searched. In such circumstances, it can hardly be held that the accused SC No. 22/08 Page 23 of 29 NCB Vs. Otegbola Oluwaseunsolu was free to give a voluntary statement and that his purported statement was recorded without exercising any pressure, force or coercion upon him.
23.Another very important discrepancy in the case of the prosecution which makes this court hesitant to rely, for the determination of the accused, upon the sole statement of the accused tendered u/s 67 of the NDPS Act is the difference in colour in the samples that were allegedly sent to the CRCL, Delhi and the case property that was exhibited in the court. In the entire set of documents prepared by the investigating officer in both the recoveries, the substance that was recovered from the parcel on 17.09.2007 and thereafter from the possession of accused on 03.10.2007 is shown to be of off white colour. The employees of the courier company in whose presence the said recoveries were made have also deposed that the substances recovered from the said parcels was off white in colour. PW2 S.C. Mathur, Chemical Examiner has also deposed in his cross examination that all the samples sent to him for analysis were of off white colour. In contradistinction when the case property was produced in court, it was observed that the colour of the substance i.e. case property was light brown in colour. In fact taking note of the said variation in the colour of the samples and the case property, the Ld. Predecessor of this court, vide order dated 05.05.2011, on an application filed on behalf of SC No. 22/08 Page 24 of 29 NCB Vs. Otegbola Oluwaseunsolu the accused, directed that fresh samples be drawn out from the case property and be sent to CRCL, Pusa Road for ascertaining the purity percentage of diacetylmorphine.
24.In pursuance to the direction of the Ld. Predecessor, from the substance recovered on 17/09/2007, a fresh sample C3 was drawn out and from the substance recovered on 03/10/2007, samples A3 and B3 were drawn out and the same were sent to CRCL. As per the CRCL report dated 12/05/2011, the samples C3, A3 and B3 were found to contain diacetylmorphine with purity 57%, 2.2% and 2% respectively. The said report was in huge variation from the earlier CRCL report dated 04.03.2009 (the first report dated 29.11.2007 that was submitted by CRCL, New Delhi during investigation had not mentioned the contents of the diacetylmorphine in the samples sent to it and therefore on the joint request of the counsel for NCB and the accused, one of the Ld. Predecessor of this court had directed vide order dated 13.10.2008 that remnant samples be resent to CRCL for determining the diacetylmorphine content in the said samples and the report dated 04.03.2009 is with respect to the said retesting of the remnant samples) vide which it had been reported that the sample drawn from the substance that was recovered on 17/09/2007 (A1) was found containing 56.4% diacetylmorphine while the two samples drawn from the substance SC No. 22/08 Page 25 of 29 NCB Vs. Otegbola Oluwaseunsolu recovered on 03/10/2001 (samples A1, B1) were found to contain 48.2% and 58% of diacetylmorphine.
25.After the receipt of this report, an application was filed on behalf of the NCB stating therein that since there is a huge variation between the CRCL Report dt. 04/03/2009 and the CRCL Report dt.12/05/2011, the ends of justice demand that this court must either not take notice of the second CRCL report or alternatively this court may send the duplicate samples which were drawn by the IO at the time of the alleged recovery from the accused for analysis to CFSL, Hyderabad. The said application was dismissed by this court vide order dated 27.07.2011 by inter alia holding that where the prayer of retesting of samples is made for the mere purpose of demolishing the report of the Chemical Examiner, it cannot be allowed. Subsequently however, on a prayer made by the Ld. Counsel for NCB the Chemical Examiner who had tendered the second report dated 12.05.2011, Sh. V.B. Chaurasiya, was summoned by this court and examined as PW12. He was shown the earlier report Ex.PW2/6 dated 04.03.2009 prepared by PW2 S.C. Mathur and he was asked to explain the variation between the two reports. He has tried to explain the variation in the two reports by deposing that as per some studies conducted outside India, over a passage of one year, the percentage of diacetylmorphine reduces by upto 2% in a sample of aqueous solution of diacetylmorphine stored in hot and humid conditions. He has also SC No. 22/08 Page 26 of 29 NCB Vs. Otegbola Oluwaseunsolu deposed that even in the sample in powder form, the percentage of diacetylmorphine may reduce though there are no studies as such conducted in this regard. In his crossexamination, the said expert witness submits that he himself has not done any research with respect to decrease of diacetylmorphine percentage in a sample of contraband over a passage of time and that he is not aware if any such research has been done by any department of the Govt. of India. He also admits in his crossexamination that as per the report Ex.PW2/6, the sample examined in the year 2009 were of off white coarse powder while the sample analysed by him was of light brown colour. The aforesaid deposition of the expert makes two things clear - it does not at all explain the difference in colour in the samples examined at different points of time and secondly, it does not explain the huge variation of the reduction in diacetylmorphine percentage, in the two samples drawn from the substance allegedly recovered from the accused on 03.10.2007. Even as per the deposition of this expert, in an aqueous solution of diacetylmorphine, the percentage of diacetylmorphine reduces only by 2% over a passage of one year. In the present case, the substance allegedly recovered from the accused, was in powder form i.e. solid and not aqueous form. Secondly, the diacetylmorphine is shown to have SC No. 22/08 Page 27 of 29 NCB Vs. Otegbola Oluwaseunsolu reduced by 4656% over a period of only 2 years, a variation which cannot be explained scientifically. In view thereof, the only logical inference that can be drawn is that the remnant samples drawn out and sent to CRCL in 2009 were not from the substance exhibited as case property in the court. It is relevant to mention herein that during the course of final arguments, Ld. Counsel for NCB Sh. Rajesh Manchanda has made an argument that since no tampering of case property is evident on record, the accused at the best should be given the benefit of the purity as per the second report and that since he has already been in custody for the last four and a half years, this court must convict him at least for having being found in possession of a small quantity of contraband. Suffice is to state that the said argument is totally untenable. In a judgment pronounced in a case titled as Eze Val Okeke Vs. NCB and reported in 2005(1) JCC (Narcotics) 57, the Hon'ble Delhi High Court has held that where the prosecution has been unable to prove satisfactorily that what was recovered from the accused was the same substance that was actually chemically tested, the accused is entitled to be acquitted. In the present case, not only there is a variation (which is scientifically not explained) in the percentage of the diacetylmorphine between the case property and the sample sent for testing, as discussed SC No. 22/08 Page 28 of 29 NCB Vs. Otegbola Oluwaseunsolu hereinabove there is also a variation in the colour of the same.
26.The said variance, in my considered opinion, is itself sufficient to hold that the prosecution has not been able to prove its case beyond reasonable doubt against the accused and therefore the accused is entitled to be given the benefit of doubt. The discussion in the preceding paragraphs also makes it clear that the accused cannot be held guilty for any of the two alleged recoveries of the contraband. He therefore stands acquitted of all the charges framed against him. However, in terms of the provision of section 437A Cr.P.C, he is hereby directed to tender personal bond of Rs. 10,000/ with one surety of like amount to ensure his presence before the Ld. Appellate Court in case an appeal is filed against the present judgment. It is made clear that the said bond shall remain in force only for a period of six months. On request of the accused that he be granted time till 15.05.2012 to submit he said bonds, the case stands adjourned for the same on 15.05.2012. It is directed that till such time, the accused shall not be released from JC.
Announced in the open court (Anu Grover Baliga)
on 11th May, 2012 Special Judge: NDPS: New Delhi
Patiala House Courts
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