Delhi District Court
Dri vs Becky Samuel & Ors on 3 March, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURTS COMPLEX, NEW DELHI
DRI Versus Becky Samuel & ors
1) Becky Samuel (Since Expired)
W/o Samuel
R/o R-22, 2nd Floor,
Khirki Extension,
Malviya Nagar,
New Delhi-110017
2) Tassavvur
S/o Hazi Inkshar Ali,
R/o P-56, Gali no. 17,
Brahampuri, Seelampur,
Delhi - 110053
3) Mukail Adebayo
S/o Dauda Adebayo,
R/o 47,Street, Jolade Street
Lagos Island,
Nigeria.
SC no. : 30A/06
U/S : 21/29 NDPS Act.
Computer ID no.: 02403R0272622006
Date of institution : 17.05.2006
Date of reserving judgment : 22.02.2012
Date of pronouncement of judgment : 03.03.2012
J U D G M E N T :
1. The proceedings of this case were initiated on a complaint filed by the Directorate of Revenue Intelligence (herein after referred to as DRI) through Sh Devendra SC No. 30A/06 DRI Vs Becky Samuel & Ors.
2Singh, Intelligence Officer against the above three accused for commission of the offences punishable U/S 21 and 29 of the NDPS Act, 1985.
2. In brief, the case of the DRI is that on 20.11.2005 at about 11:00 AM an intelligence was received by PW1 Sh K.S.Ratra, Intelligence Officer (IO), DRI, DZU, New Delhi that one person named Tassavvur, i.e. the accused no. 2 herein, would be bringing around 3 kgs of Heroin to deliver the same to one Ms. Becky Samuel, i.e. the accused no. 1 herein (Since expired), and one other African origin male (foreign national) at R-22, 2nd floor, Khirki Extn., Malviya Nagar, New Delhi, in between 4:00 to 7:00 PM on that day. The above information was reduced into writing as Ex. PW1/A and was put up by PW1 to his superior officer, who had directed that a surveillance be mounted around the above premises and for immediate action.
3. It is alleged that acting upon the above intelligence a team of the DRI officers, accompanied by two independent witnesses, had raided the above premises on the same day at about 05:00 PM and had found three persons present in the above said premises, whose identity was revealed subsequently on enquiry as the above three accused persons. The accused no. 1 Becky Samuel had introduced the accused no. 3 Mukail Adebayo as her cousin.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
3The two independent witnesses and the accused persons were then shown the search authorization Ex. PW2/B issued U/S 41 of the NDPS Act and the same was also got signed from them, in token of their having seen the same. The accused persons were also offered the search of the members of the raiding team, which included a female member, but they had declined the same. It is alleged that at this time the accused no. 2 Tassavvur had run inside the house towards the rear bedroom and had quickly climbed down with the help of the pipe in the shaft area, but one of the DRI officers had immediately run down through the stairs and the above accused was apprehended and brought back to the above 2nd floor premises.
4. It is alleged that then the DRI officers had started searching the above premises and in the search they had recovered one black leather bag of "DA MILANO"
brand and some Indian and Foreign currency, the details of which are mentioned in Annexure A to the panchnama which was subsequently prepared by the DRI officers, from the rear bedroom of the said premises. On enquiry the accused no. 1 had disclosed that the above bag was brought there by the accused no. 2 and the same contained narcotic drugs concealed in capsules and footwear. The above bag was then examined by the DRI officers and it was found to contain two golden fabric pouches and four pairs of ladies sandals of the given description and colours and the above two SC No. 30A/06 DRI Vs Becky Samuel & Ors.4
fabric pouches were marked as A and B and the pairs of ladies sandals were marked as C1 & C2, D1 & D2, E1 & E2 and F1 & F2.
5. On further examination the fabric pouch marked A was found to contain five big sized capsules, in packings of silver colour foil and adhesive tapes, and one transparent polythene pouch was found to be concealed in each of the above capsules and the gross weight of these polythene pouches was found to be 0.635 kgs and the net weight of the white powder/granules packed therein to be 0.595 kgs. Similarly, the second fabric marked B was also found to contain 115 smaller capsules containing similar polythene pouches and the gross weight of these pouches was found to be 1.690 kgs and the net weight of the powder/granules packed therein to be 1.484 kgs.
6. All the above four pairs of ladies sandals were also found to be abnormally heavy in the heels and on cutting open the upper sole of these sandals, it was found that five polythene pouches containing some off white colour powder/granules were found concealed in each of the above sandals, i.e. ten polythene pouches in each of the above four pairs of sandals marked C to F. The net weights of the powder contained in the polythene pouches of the above four pairs of sandals were found to be 0.246 kgs, 0.191 kgs, 0.204 kgs and 0.204 kgs respectively. The above SC No. 30A/06 DRI Vs Becky Samuel & Ors.
5powder/granules found in the above two fabric pouches marked A and B were put in two separate polythene pouches after the same were mixed homogeneously separately and were marked as G and H respectively and the powder found in the pouches of the above four pairs of sandals was also separately mixed homogeneously, i.e. pair wise, and the same was also put in four separate pouches and the same were marked as I, J,K and L respectively. The gross weight of the above six pouches was found to be 2.924kgs and the net weight of the heroin contained in the above pouches to be 2.895kgs.
7. A pinch of the substance from all the above six pouches marked G to L was taken and on testing with the help of a U.N.O. Field Drug Test Kit, the same had given positive result for the presence of heroin. The above heroin as well as the above packing material, sandals and bag etc. were all seized under the NDPS Act and since on inquiry it was also disclosed by the accused no. 1 that the above Indian and Foreign currency found in the above premises was the sale proceed of the narcotic drugs sold by her, the same was also seized in this case.
8. The IO had then drawn three representatives samples of five grams each from all the above six pouches and the same were marked correspondingly as G1 to G3 and L1 TO L3 and the same were put in separate polythene SC No. 30A/06 DRI Vs Becky Samuel & Ors.
6pouches and after being stapled, the same were further put in separate envelopes and were sealed with the DRI seal over a paper slip bearing signatures of all the signatories of the panchnama. The above six pouches marked G to L containing the remaining substance were also stapled and were kept in separate envelopes and sealed in the similar manner, over similar paper slips containing the signatures of the above signatories. The seized packing materials of the above two golden fabric pouches marked as A and B were also kept into separate pouches marked 1 and 2 and the same were further kept in paper envelopes separately and sealed in the similar manner. The seized packing materials of the above four pairs of sandals were kept in the same sandals and the above pairs of sandals were then converted into a separate cloth pullanda and the same was given serial no. 3 and was marked as 3 and a separate cloth pullanda of the above leather bag was also similarly prepared and marked as 4.
9. Thereafter, the sealed envelope containing the above currency notes was kept in a metal box and was converted into a cloth pullanda, similarly sealed, and it was marked X. The sealed envelopes of the remaining case property marked G to L as well as the above envelopes marked 1 to 3 of the packing material etc. were also put in a metal trunk and the same was also converted into a sealed cloth pullanda and was marked as Y and the sealed SC No. 30A/06 DRI Vs Becky Samuel & Ors.
7packets marked 4 of the above leather bag was also kept in a separate trunk and converted into a cloth pullanda and marked Z. A panchnama Ex. PW2/C regarding the above proceedings was also drawn at the spot itself, which was signed by the IO/complainant, the accused persons as well as the two panch witnesses etc. The denominations and details of the above currency notes were mentioned in a separate sheet made as Annexure A to the above panchnama and the details regarding the weights of the above packets were made as Annexure B to the same. Test memos were also prepared and the facsimiles of the above seal of the DRI used in the proceeding affixed on the panchnama and test memos. The IO/PW1 has also prepared the site plan Ex.PW2/C3 at the spot.
10. It is also alleged in the complaint that thereafter in response to the summons dated 20.11.2005 issued U/S 67 of the NDPS Act, all the three accused persons had also tendered their respective statements Ex. PW10/B, Ex. PW2/F and Ex. PW5/B respectively before the officers of the DRI. It was stated by the accused no. 1 Becky Samuel in her above statement, inter-alia, that she was born in Malawi, East Africa and was holding a Malawi passport and after her husband had lost his job, she had come to India in the month of February 2003 and after coming to Delhi she was helped by her one Nigerian friend named Ms Shola, who was living in Munirka, in getting a SC No. 30A/06 DRI Vs Becky Samuel & Ors.
8rented accommodation in Munirka and in the purchase of garments from Delhi and transported to her native country, as she was in the business of garments at her native place. She had also stated that in August 2005 she had shifted from Munirka to the above 2nd floor premises bearing no. R-22, Malviya Nagar and since there was not enough profit in the above business of export of the garments, she was looking for some alternate business when in September 2005, she was approached by a lady and a boy at Mc Donalds restaurant in Lajpat Nagar and the above lady had introduced herself as Saida and the above boy to be her son. The above lady named Saida had told her that she had many African friends and she also wanted the accused to be a friend of her and she had also given her mobile number 9817517385 to the accused. The accused had also disclosed therein that after some days she had called Saida on the above number and Saida and the above boy had come to her above house in Malviya Nagar and Saida had told her that she was based in Lahore, Pakistan and she was dealing in drugs/narcotics, which were being sent from Pakistan through some persons, and she had also offered the accused that if the accused wanted she could also sell the same on commission and she had offered the accused a commission of 300 US$ for the sale of 1 kg of Heroin. Finding the above offer to be very lucrative, the accused had asked Saida to give her some time so that she could inquire from her friends in Africa whether they can buy SC No. 30A/06 DRI Vs Becky Samuel & Ors.
9the drugs from her and subsequently she had talked with her friend Ms Mary Adam in South Africa and her above friend had agreed to her proposal and the accused had also told her friend that Saida was already having 700 gms of Heroin for sale for 7000 US$ and after talking with her above friend and Saida the accused had struck a deal for the sale of above 700 grams of Heroin for 7300 US$ and she was told by Ms Mary Adam that she will coming to India within one month to take the above drugs.
11. It was also disclosed by the above accused in her above statement that subsequently the above Saida had got delivered the above Heroin of 700 grams at her residence through the accused no. 2 Tassavvur, who had introduced himself as Pindo, on 17.11.2005 and her brother Mukail Adebayo was also present at her residence at that time and the above Heroin was contained in 17 capsules, wrapped with silver foil and adhesive tapes etc., kept in a packet. The accused no. 2 had collected the amount of 7000 US $ from her and after staying her residence at night, he had left her house in the morning of 18.11.2005. It was also disclosed by her that the accused Tassavvur had also visited her residence on 16.11.2005 without drugs. She had further disclosed that the above Saida had again called her on 20.11.2005 in connection with the delivery of a further consignment of 3 kgs Heroin through the accused Tassavvur and when the accused Tassavvur had come to her SC No. 30A/06 DRI Vs Becky Samuel & Ors.
10residence to deliver the same at about 04:00 PM that day, in the presence of accused Mukail Adebayo, her residence was raided by the DRI officers while they were in the process of opening and checking the above consignment and thereafter she had deposed about their apprehension and the above proceedings of search, seizure and sealing etc. conducted at her residence.
12. In his statement Ex. PW2/F, the accused Tassavvur had also admitted, inter-alia, their apprehension with the above contraband substance from the house of accused Becky Samuel and the above proceedings of search and seizure etc. He had also disclosed that though he was a resident of village Sankhani in District Bulandshahar, U.P., but he was residing with his wife and children at his above said address of Brahampuri, Seelampur, Delhi and was in the business of sale of cloths. He had stated that he knew the above lady Saida living in Lahore, Pakistan for last about 8 years and he had met her through her cousin brother Zakir, who was since dead, who used to sell clothes at Jama Masjid as the Saida too brought cloths from Pakistan and she had also introduced one Asif to him as her partner. He had also stated that one day during a conversation at hotel Karim, at Jama Masjid in September 2005, Saida had told him that they were sending narcotic drugs, Heroin to Delhi from Pakistan and on being offered he had also agreed to the proposal of Saida to collect SC No. 30A/06 DRI Vs Becky Samuel & Ors.
11Heroin from Saida's men in India and to deliver the same as per her instructions. He had further disclosed that as per the instructions of above Saida, he had collected the above 700 grams of Heroin from one person named Irshad on 16.11.2005 and he had visited the above residence of accused no. 1 on 16.11.2005 without drugs, to see the location, and had delivered the same to her at her above residence on 17.11.2005, in the presence of accused no. 3, who was introduced by accused no. 1 as her brother, and after collecting the amount of 7000 US $ from the accused no. 1, he had delivered the same to the above Irshad.
13. He had also disclosed therein that subsequently on the instructions of above Saida he had also taken the delivery of one black bag containing 115 capsules, 5 bigger capsules and 4 pairs of ladies sandals containing Heroin weighing about 3 kgs from one Zamir on 20.11.2005 and he was directed to deliver the same to accused Becky Samuel at her residence and to collect its price at the rate of 10,000/- US $ per kg and when he had gone there and he and the other two co-accused were checking the goods, the DRI officers had raided the above premises and though he had made an attempt to escape by climbing down from the shaft pipe of the said house, but he was also apprehended and brought back to the premises and thereafter the above seizure and search proceedings were conducted by the DRI officers at the spot.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
1214. The accused Mukail Adebayo in his statement Ex. PW5/B had stated that he belongs to Nigeria and he came to India about 4 months ago and after visiting different places he had reached Delhi on 05.11.2005 and he was living with his one friend Mr. Joseph at Munirka. He had also stated that on 16.11.2005 he had called her cousin sister named Becky Samuel living at the above address at Malviya Nagar and on her request he had reached at her residence and one other person had also come there and had stayed there for about one hour and then he was told by the accused no. 1 Becky Samuel to come at her residence again on 17.11.2005 as the above person would come there again to deliver Heroin sent by Saida from Pakistan. This accused claims to had again gone to the residence of accused no. 1 on 17.11.2005 and he had taken the delivery of the above Heroin weighing 700 grams from the above person after checking the contents thereof. He had also stated that the accused no. 1 had again contacted her on 19.11.2005 and had called her at her residence on 20.11.2005 and when he had reached there, the above person named Tassavvur had given one black bag to the accused no. 1 and when he was opening and checking the above bag, the DRI officers had raided the above premises and had apprehended all of them with the above contraband substance.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
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15. It is also alleged in the complainant that
thereafter all the accused persons were arrested for the commission of the offences under the NDPS Act and the intimations regarding their arrest were given to their family members/concerned Embassies. Subsequently, the provisions of Section 57 NDPS Act were also complied with by the IO/Complainant Sh. Devinder Singh, the case property was deposited in the Valuable Godown, Customs House and the samples packets were deposited in the CRCL for analysis. The residential premises of the accused no. 2 Tassavvur in Delhi and U.P. were also raided but nothing incriminating was recovered. However, the residential address of accused no. 3 Mukail Adebayo of Bomaby, as furnished by him, could not be verified. The statements of the father and brother of accused no. 2 were also recorded, but they had expressed their ignorance regarding the above activities of accused. The details of some mobile numbers disclosed by the accused persons in their above statements were collected and the statements of some persons, in whose some of the above mobiles numbers were registered and of the above panch witnesses were also recorded, besides the statement of the land lady of the above premises named Smt. Pushpa. In the CRCL report dated 07.02.2006, diacetylmorphine(Heroin) was detected in one of the above three sets of six samples sent for analysis and ultimately a complaint was filed in this court for the commission of the offences punishable U/S 21 and 29 of the SC No. 30A/06 DRI Vs Becky Samuel & Ors.
1416. The complaint was filed in this court on 17.05.2006 and cognizance thereof was taken on 19.05.2006. A prima facie case for commission of the offences punishable U/S 21 (c) and Section 29 read with Section 21 of the NDPS Act was also made out against all the three accused persons and charges for the above said offences were also framed against them on 17.07.2006.
17. The prosecution/DRI in support of its case has examined on record total 16 witnesses and their names and the purpose of examination etc. is being stated herein below:
PW1 Sh. K.S. Ratra, Intelligence Officer (IO), of DRI is the person who had received the above secret information/intelligence and had reduced it in writing as Ex.PW1/A. Thereafter, he had put it before his Deputy Director, Intelligence on the same day.
PW2 Sh. Devender Singh, Intelligence Officer (IO) is the main investigating officer and complainant of this case and he is the person in whose favour the search authorization Ex.PW2/B for raiding the above premises was issued and he had also conducted all the seizure and sealing work etc. and is the author of the documents SC No. 30A/06 DRI Vs Becky Samuel & Ors.15
prepared at the spot. He has broadly deposed on the above lines of the prosecution story and has deposed about and proved various documents prepared by him during the investigation of the case.
PW3 Sh. R.P. Meena, Assistant Chemical Examiner, CRCL had received the above six sealed sample parcels of this case, alongwith the test memos Ex.PW3/D1 to D6 and letter Ex.PW3/B attesting the signatures of Sh. A.K. Sinha, on 21.11.2005 from Sh. A.K. Sinha, IO of DRI, which were forwarded vide the forwarding letter Ex.PW3/A and he had issued the acknowledgment Ex.PW 3/C for the receipt thereof.
He has also proved on record the test reports Ex.PW 3/E1 to E6 of the above samples and has further identified the remnants thereof as Ex.P14 to Ex.P19 and the envelopes etc. containing the above remnants as Ex.P1, Ex.P2 to P7 and Ex. P8 to P13.
PW4 SH. A.C. Wadhwa, was working as Incharge, Valuable Godown, New Customs House on 22.11.2005 and he had received the case property of this case for deposit vide entry Ex. PW4/A of the relevant register and had also made his endorsement in this regard on the deposit memo Ex.PW2/K. PW5 Sh. A.K. Sinha, Intelligence Officer (IO) of DRI has stated himself to be a part of the above raiding team and had also issued the summons U/S 67 of the NDPS Act Ex.PW5/A to the accused no. 3 Mukail Adebayo and in response to the above summons, the above accused had tendered his statement Ex.PW5/B dated 20.11.2005 before him in his own handwriting. Further, on 21.11.2005, he had also taken the above sample parcels to CRCL and had deposited the same there.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
16PW6 Sh. N.D. Azad, Senior Intelligence Officer (SIO), DRI has stated that on 21.11.2005 the report U/S 57 of the NDPS Act Ex.PW2/I of this case was submitted to him by the IO/complainant Sh. Devender Singh. Subsequently, this witness had also written letter Ex.PW6/A for medical examination of the accused persons and also written letters Ex.PW6/B and Ex.PW6/E to some mobile service providers and had called for some details of the mobile numbers which had come on record during the investigation.
PW7 Sh. Sanjay Kumar, Tax Assistant had only issued the above seal of DRI used in this case to the IO/ complainant, on directions of his senior officer Sh. K.K. Dhasmana, SIO, vide entry Ex.PW2/D of the seal movement register.
PW8 Smt. Pushpa is the owner of the above 2nd floor premises no. R-22, Khirki Extn., Malviya Nagar, which were rented out to the accused no. 1 Becky Samuel and she has stated that on being summoned by the DRI Officers vide summons Ex.PW2/P, she had tendered her statement Ex.PW2/P1 before them and had also tendered a copy of her rent agreement Ex.PW8/A, a copy of the tenant verification form Ex.PW8/B and copies of her electricity bills and elections card Ex.PW8/C to Ex.PW8/D with the said statement.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
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PW9 Sh. K.K. Dhasmana, SIO has claimed that he
was called by Sh. Amitesh B. Singh, Deputy Director, DRI on 20.11.2005 and was shown the above the secret intelligence report reduced into writing as Ex.PW1/A and he was asked to act upon the above information immediately with a team. He has stated that he had instructed the IO/complainant Sh. Devender Singh to keep ready a team of officers and then the team of officers, including the above Deputy Director of DRI, had conducted the raid and the search authorization was executed by the IO /complainant Sh. Devender Singh in whose favour the same was issued by the above Deputy Director. He has deposed regarding the apprehension of all the three accused persons and the recovery of the above contraband substance during the above raid.
PW10 Ms. Anju Singh is also a member of the above raiding team and has broadly deposed on the above lines of the prosecution story regarding the raid. Subsequently, in response to the summons U/S 67 of the NDPS Act Ex.PW10/A issued by her, the accused no. Becky Samuel (since deceased) had also tendered her statement Ex.PW10/B before her in the handwriting of the accused herself, alongwith the passport Ex.PW10/D of the accused. She has also arrested the above accused vide the arrest-cum
-jamatalashi memo Ex.PW10/C. SC No. 30A/06 DRI Vs Becky Samuel & Ors.
18PW11 Sh. P.S. Gulati, the then Assistant Director, DRI had only issued one search authorization
Ex.PW11/A on 21.11.2005 for search of the house of the accused no. 2 in Delhi and the report Ex.PW11/B was submitted to him subsequently by Sh. R.M. Singh, IO to whom the above authorization was issued. On the same day, he had also sent the above samples parcels to FSL through Sh. N.D. Azad vide forwarding letter Ex.PW3/A. PW12 Sh. Amitesh Bharat Singh, is the then Deputy Director, DRI to whom the above secret information Ex.PW1/A was put up by PW1 Sh. K.S. Ratra. He had directed PW9 Sh. K.K Dshmana to conduct a raid and had also issued the above search authorization in favour of the IO/complainant Sh. Devender Singh for search of the above premises. He himself was also a member of the raiding team and has deposed about the apprehension of the accused person and seizure of the above contraband substance. Subsequently, he had also written some letters intimating the arrest of the accused persons in this case to their family members and the concerned embassy and also some letters in the follow up action.
PW13 Inspector R.M. Singh, has only gone for execution of the above search authorization dated 21.11.2005 Ex.PW11/A of the Delhi house of the accused no.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
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2 Tassavvur and had submitted his report Ex.PW11/B to
PW11. He had also prepared one panchnama Ex.PW13/A in this regard, but the same is not relevant as nothing incriminating was recovered in the above search.
PW14 Sh. Deepak Kanda, is the Nodal Officer of Airtel and he has brought on record the the record pertaining to one mobile number 9871517385 in the name of one Sh. Khan Mohd. A copy of the application form has been brought on record as Ex.PW14/A and the call detail record thereof as Ex.PW14/B, which were earlier supplied during the investigation of the case and in response to the letter Ex.PW6/F (colly). The call detail record pertaining to one other mobile number 9810410874 have also been brought on record by him as Ex.PW14/C. PW15 Sh. Pawan Singh, is the Nodal Officer of Idea Cellular Ltd. and he had also brought on record the call detail record of one mobile no. 9891069556 as Ex.PW15/B. PW16 Sh. Khan Mohd. is the person in whose name the mobile no. 9871517385 was issued on the record and on being summoned by the DRI Officers, he had made a statement Ex.PW2/O1 before them.
18. After the conclusion of the evidence of the SC No. 30A/06 DRI Vs Becky Samuel & Ors.
20prosecution, statements of all the three accused persons U/S 313 Cr.P.C. were recorded separately and in their above statements the accused persons had denied the recovery of the above heroin from them or from their possession. They all have claimed themselves to be innocent and this case to be false.
19. It was stated by the accused no. 1 Becky Samuel that she was residing in the above said premises at the relevant time and her residential premises were raided by some Government officials and she had called her cousin brother Mukail Adebayo there and then they both were taken to the DRI Office and were falsely implicated in this case. The accused no. 2 Mukail Adebayo has also made similar depositions in his above statement and both the above accused have claimed that in the DRI Office, they were forced to sign on many documents and paper slips and were further made to write some statements, after taking their family and personal details, which they had subsequently retracted. The accused no. 1 has also claimed that she had seen the co accused Tassavvur for the first time only in the DRI Office.
20. The accused Tassavvur in his statement has also claimed that on that day, he was called by the DRI officers in their office for some enquires and later he was implicated in this case and he was also made to sign SC No. 30A/06 DRI Vs Becky Samuel & Ors.
21various documents and paper slips and further to write down a statement by giving his family and personal details, which he had subsequently retracted. All the three accused persons have also chosen to lead evidence in their defence, but only the accused no. 3 Mukail Adebayo had examined himself in his defence as DW 1, U/S 315 Cr.P.C., and none of the other accused had examined any witness on record. The accused no. 3 in his above statement has made similar depositions as made by him in his statement U/S 313 Cr.P.C. and has also proved on record his retraction application dated 05.12.2005 as Ex.DW1/A.
21. It is necessary to mention her that while the matter was still at the stage of defense evidence, the accused no. 1 Becky Samuel had died in jail and after verification of her death, the proceedings against her were abated vide order dated 11.08.2011.
22. I have heard the arguments advanced by Sh. Satish Aggarwal, Ld. SPP for DRI assisted by Sh. Vikas Gautam, Advocate, and Sh. Sanjay Suri, Advocate and Sh. Yogesh Saxena, Advocate representing the accused no. 2 and 3 respectively. I have also gone through the records of the case, including the written submissions filed on behalf of the DRI.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
2223. The first argument of both Ld. Defense Counsels is that no public or independent witness has been examined on record by the DRI and in view of the above the depositions made only by the official witnesses should not be believed and the same should not be made the basis of the conviction of the accused. It has also been argued that the alleged public witnesses namely Sh. Chander Pal and Sh. Mohd. Alam cited in the list of the prosecution witnesses and also named in the panchnama Ex.PW2/C are fake witnesses as no such persons ever existed on their given addresses and this fact was also substantiated by the reports received in this court on their summons.
24. As far as the reliability of the official witnesses is concerned, there can not be any dispute with regard to the fact that their statements can be believed and acted upon by the court provided, the same are found to be inspiring confidence and are corroborative in nature. Ld. SPP for DRI has rightly relied upon a number of judgments in this regard, including the judgments in cases of T. Shanker Prasad Vs. State of Andhra Pradesh- Crl. Appeal no. 909 of 1997, decided by the Hon'ble Supreme Court on 12.01.2004 and Chander Bhan Ram Chand Vs. The State - 1971 Crl. L.J. 197 (P&H) wherein it has been held that court may feel safe in accepting the testimony of the official witnesses and conviction can be based on these statements.
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25. As far as the non-examination of the public
witnesses is concerned, it is observed that it has been deposed by all the members of the raiding team of DRI that two panch witnesses were joined during the search proceedings and even the search warrants Ex.PW2/B, the panchnama Ex.PW2/C and the Annexures thereof Ex.PW2/C1, Ex.PW2/C2 are all found bearing the signatures of the above two public witnesses. Hence, in case the above public witnesses are subsequently found to be not existing or traceable at their given addresses, the prosecution cannot be faulted for non-production or non-examination thereof as it was never in its hands to secure their production in the court. It is not a case where the prosecution has intentionally withheld or not examined the above witnesses. Reference in this regard can be made to the cases of Delias Christophe Guy Jeans Vs. Customs 2004 (3) JCC 1747, Union of India Vs. Sat Roshan 2008 (3) JCC (Narcotics) 182 and State of Haryana Vs. Mai Ram 2008 (3) JCC (Narcotics) 188.
26. Moreover, the examination or joining of the public witnesses at every time may not be necessary or possible and a case of serious nature like this wherein recovery of a heavy quantity of heroins has been effected cannot be thrown away on the above sole ground. Ld. SPP for DRI has rightly relied upon, inter-alia, a judgment of the Hon'ble High Court in case of Ajmer Singh Vs. State SC No. 30A/06 DRI Vs Becky Samuel & Ors.
24of Haryana, 2010 (2) SCR 785 (Crl Appeal No. 436/2009), wherein it was held by the Hon'ble Supreme Court that it would be a travesty of justice if the appellant/accused is acquitted in such a case merely because no independent witnesses has been produced.
27. The next contention of the Ld. Defense Counsels is that the evidence led by the prosecution on record do not make out a case of possession, what to say of a conscious possession, of the above heroin on the part of the accused no. 2 and 3. It is their argument that the recovery of the above heroin has been allegedly effected from the above tenanted premises of the accused no. 1 (since deceased) and hence merely because the accused no. 2 and 3 were found present in the above premises, they cannot be said to have knowledge of the presence of the above bag containing the above contraband substance in the said premises. It is so because it has been argued by them that none of the above two accused was allegedly found to be in the physical possession of the above bag containing the above contraband substance and the same was only recovered from one of the rooms of the said premises, which were in possession of the accused no. 1 (since deceased) as a tenant. It has been pointed out by them that the rent agreement Ex.PW8/A and the tenant verification form Ex.PW8/B in respect of the said premises, which have been brought on record by the SC No. 30A/06 DRI Vs Becky Samuel & Ors.
25prosecution during the depositions of the owner/land lady of the said premises namely Smt. Pushpa/PW8, are only in the name of accused no. 1 (since expired).
28. It has also been argued by the Ld. Counsel for accused Tassavvur that even the presence of the accused Tassavvur in the above said premises or the alleged attempt made by him to run away from the said premises by climbing down from the shaft pipe of the said premises is highly doubtful as the above accused has nothing to do with the other two co-accused or the said premises and the IO during the investigation has not collected any evidence or material to link the above accused with the other two co-accused.
29. In this regard, it is observed that out of the total 16 witnesses examined by the prosecution on record the IO/PW2 Sh. Devender Singh, PW5 Sh. A.K. Sinha, PW9 Sh. K.K. Dshmana, PW10 Ms. Anju Singh and PW12 Sh. Amitesh .B. Singh have all claimed themselves to be the witnesses of recovery of the above contraband substance from the above said premises as they all were members of the above raiding team. Except PW5 Sh. A.K. Sinha, all the above other members of the raiding team have made on record detailed depositions with regard to the manner of conduction of the above raid, the apprehension of the above accused from the said premises and the recovery of SC No. 30A/06 DRI Vs Becky Samuel & Ors.
26the above contraband substance. Even PW5 Sh. A.K. Sinha in his cross-examination has deposed about his participation in the above raid proceedings. It has been deposed specifically by all of them that all the above three accused persons were found present in the above said premises at the time of the raid and all the three accused persons, including the deceased accused no. 1, were apprehended from the said premises. It has also come on record in their statements that one of the above accused persons, i.e. the accused Tassavvur, had made an attempt to escape from the window of the rear room of the above said premises by climbing down from the shaft pipe, but he was chased by one of the members of the raiding team through the stairs and after being apprehended, he was brought back to the above second floor premises.
30. The depositions made by all of them in this regard are found to be consistent and corroborative in nature and there are no material variations or contradictions on the above aspect. Nothing material could also be extracted from them in their cross-examinations to contradict or challenge their above depositions. Hence, it is established from the depositions of all the above material witnesses that all the above three accused persons were found present in and apprehended from the said premises, from which the recovery of the above contraband substance was effected. As far as the argument SC No. 30A/06 DRI Vs Becky Samuel & Ors.
27of Ld. Counsel for accused Tassavvur that there are no injury marks on the body of the accused Tassavvur to show or prove any such attempt to escape through the shaft pipe is concerned, it is held that injury was not necessarily required to be sustained by the above accused in making such an attempt and there is no reason to disbelieve the consistent and corroborative depositions made by the above witnesses in this regard. Further, though they have also not been able to tell the name of the concerned officer of DRI who had chased the above accused through the stairs and brought him back after apprehension, but the same can only be because of the long gap between the date of the above incident, i.e. 20.11.2005, and the dates of examination of the above witnesses.
31. It is true that none of the above members of the raiding team has deposed on record that any of the above three accused persons was physically holding the above bag or was in the actual physical possession of the above bag containing the contraband substance, as it has been stated by almost all of them that the above bag was found in the rear room of the above said second floor tenanted premises and the same was recovered during the such proceedings. The IO/PW2 in his cross examination conducted on behalf of the accused no.1 (since deceased) has even stated that the above bag was lying in open in the above said room. Though, in the statements under SC No. 30A/06 DRI Vs Becky Samuel & Ors.
28Section 67 of the NDPS Act of the accused persons recorded by the officers of the DRI it is found mentioned that the members of the raiding team of DRI had apprehended them when they were in the process of opening the above bag and checking the contents thereof, but this fact is not stated on record by any member of the raiding team and is even not found mentioned in the complaint Ex PW2/A, which was subsequently filed against the accused persons.
32. Section 35 of the NDPS Act deals with the culpable mental state of an accused under the said Act and it provides as under:
"(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation- In this section "culpable mental state"
includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is SC No. 30A/06 DRI Vs Becky Samuel & Ors.29
established by a preponderance of probability".
33. Section 54 of the above said Act also deals with the presumption from the possession of illicit articles under the said Act and it lays down as under:
34. In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of -
(a) any narcotic during of psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plants or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any material which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.
35. It is clear from the above provisions that if any culpable mental state of an accused is required to be SC No. 30A/06 DRI Vs Becky Samuel & Ors.
30proved for proving an offence under the said Act, then the court shall presume the presence of such culpable mental state of the accused and it is for the accused to prove that he had no such mental state at the alleged time of commission of the said offence. Similarly, if an accused has been found to be in possession of a contraband substance for which he fails to account satisfactorily, then he has committed an offence under the above said Act, unless and until the accused proves the contrary on record. It is also now well settled that the above onus of proof can be discharged by the accused in different ways, i.e. either by proving the contrary during the evidence led by the prosecution itself or by leading his own evidence in defence etc., but if he fails to discharge the above onus and to prove his defence of the absence of a culpable intent on his part to possess the contraband substance then in view of the presumptions contained in the above provisions he can be held guilty for possession of the said contraband substance.
36. When the evidence led by the prosecution on record is examined in entirety, it is observed that the requisite criminal intent on the part of the above three accused persons for possession of the above contraband substance is established on record and the evidence also proves that the accused persons had failed to prove the contrary or to discharge the above onus. The prosecution SC No. 30A/06 DRI Vs Becky Samuel & Ors.
31has duly proved on record the above secret intelligence which was received by PW1 Sh. K. S. Ratra and was reduced into writing by him as Ex PW1/A. Even the names of the accused no.1 (since deceased) and the accused no.2 are duly found recorded in the above information. Though, the name or any physical description of the accused no.3 Mukail Adebayo is not found recorded therein, but it is mentioned therein that the third person which will be present in the above premises will be an African origin male (foreign National). Besides the above three accused of this case, no other person, what to say of an African male person, was found present in the said premises and hence there cannot be any doubts with regard to the identity of the accused no.3 also as one of the occupants of the said premises at the relevant time of raid. Moreover, it is the admitted case of the above accused that he is the cousin brother of the accused no.1 (since deceased) and his presence in the said premises cannot be doubted and appears to be natural and this fact has even been admitted by both of them in their statements under Section 67 of the NDPS Act recorded subsequently and also during the trial of the case. Further, the conduct of the accused no.2 Tassavuur in making an attempt to abscond from the above premises also clearly proves the presence of a culpable intent on his part regarding the knowledge and presence of the above contraband substance in the said premises.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
3237. It has been pointed out by Ld. Counsel for the accused no.3 that the IO/PW2 in his cross examination has stated on record that except the statements under Section 67 of the NDPS Act of the above accused and the co accused, there is no other material against the accused Mukail and hence his argument is that the prosecution itself has admitted on record that no case against the above accused for possession of the above contraband substance is made out. In my view the above depositions made by the IO on record only reflect his careless and negligent attitude in deposing in this court, without even going thorough the records of the case, and the same cannot be given much weight as the court has to appreciate and consider the evidence led on record in entirety and not the above isolated depositions of the witness.
38. The Ld. Counsel for accused Tassavvur has also argued that the presence of the above accused in the said premises is also disproved from the depositions of PW8 Smt. Pushpa Devi as during her cross examination on the above aspect she has only stated on record that two persons were taken away by the DRI Officers and they were her tenants. It is his argument that since her tenant in the above premises was the accused no.1 (since deceased), who was an African female, the obvious reference to the other person is for the accused Mukail, who was her cousin brother, and not to the accused Tassavvur who was an SC No. 30A/06 DRI Vs Becky Samuel & Ors.
33Indian National. It is so because as per him if the accused Tassavvur was also apprehended from the said premises, then PW8 might have also made a mention regarding the presence or the apprehension of an Indian National from the said premises, alongwith the above two tenants, as the accused Tassavvur had nothing to do with the said premises as a tenant. This argument of Ld. Defence counsel for the above accused doesn't appear to be forceful because PW8 Smt. Pushpa is not a witness of apprehension of the accused persons or the search and seizure proceedings and she had been cited a witness only for a limited aspect of proving the rent agreement for the said premises. She was never called by the DRI officials to be a witness of the above raid or other proceedings and hence the casual depositions made by the above witness cannot be given much weight because the team of the DRI officials consisted of so many persons and she could have never judged or distinguished if the accused Tassavvur was a member of the raiding team or was apprehended with the above tenants. Moreover, Ld. Counsel for the above accused has nowhere specifically asked the above witness whether she has seen the accused Tassavvur at the spot or near the above said premises or not.
39. Apart from the above possession of the contraband substance proved against the accused persons, there are also the statements under Section 67 of the NDPS Act made SC No. 30A/06 DRI Vs Becky Samuel & Ors.
34by them which have to be considered by the court. It has been deposed by PW10 Ms. Anju Singh on record that she had issued summons Ex PW10/A to the accused no. 1 (since deceased) and the above accused had tendered her statement Ex PW10/B in her own handwriting. Similarly, the IO/PW2 Sh. Devender Singh had also issued the summons Ex PW2/E to the accused no. 2 and the above accused had tendered his statement Ex PW2/F in his own handwriting before the witness. The statement Ex PW5/B of the third accused Mukail Adebayo was tendered by the above accused also in his own handwriting before PW5 Sh. A. K. Sinha, in response to the summons Ex PW5/A issued by the witness to the above accused. The above documents stand duly proved on record during the depositions made by the above witnesses.
40. As far as the admissibility and relevance of a statement made U/S 67 of the NDPS Act is concerned, the law in this regard is now well settled and such statements are very much admissible in evidence and can be considered by the court for finding out the guilt of the accused. The confessional statement made by a co accused only is considered to be a weak piece of evidence as the same can only bind the maker thereof and not any other person. However, the confessional statement made by an accused under the above said provision can be made to be the sole basis of the conviction of such an accused, if the same is SC No. 30A/06 DRI Vs Becky Samuel & Ors.
35found to be made voluntarily, but recently there is a shift in the stand of the higher courts on the above aspect and it has now been held in many pronouncements of the Hon'ble Supreme Court and of different High courts that the court must look for some independent corroboration of a confessional statement to arrive at a the finding of conviction of the accused and it will not be prudent to base the conviction only on such confessional statements. It has further been held that if such confessional statements are subsequently retracted by the accused persons, then such corroboration becomes more necessary.
41. In the case of Raj Kumar Karwal Vs. Union of India & Ors-(1990) 2 SCC 409 it was held by the Hon'ble Supreme Court that a statement U/S 67 of the NDPS Act should not be equated with a statement U/S 161 Cr PC and unless it is made under threat or coercion etc. the same is excluded from the operation of Section 24 to 27 of the Evidence Act. In the case of Kanhaiya Lal Vs. Union of India 2008 (1) JCC (Narcotics) 23 also it was held by the Hon'ble Supreme Court that a statement made U/S 67 of the NDPS Act is admissible in evidence because it was not made by an 'accused' (as it is recorded prior to the arrest of the accused) and hence the same is not hit by Sections 24 to 27 of the Evidence Act and if the same is found to be made voluntarily it can be acted upon by the court being SC No. 30A/06 DRI Vs Becky Samuel & Ors.
36legal. In the case of M. Prabhu Dayal vs. The Assistant Director, DRI-2003 (Suppl. 2) SCC 459 also it was held by the Hon'ble Supreme Court that such a statement is admissible because the same is not made to a police officer and can also be acted upon if it is found to be made voluntarily. However, in the subsequent cases of Noor Agah Vs. State of Punjab & Anr.-2008 (3) JCC (Narcotics) 135, Union of India Vs. Bal Mukund & Ors.-2009 (2) Crimes 171 (SC) and NCB Vs. Aziz Ahmed-2010 (1) JCC (Narcotics) 6 etc. it was held that the conviction of the accused should not be based merely on such a statement and that too when the same had already been retracted.
42. In the instant case also the statements U/S 67 of the NDPS Act Ex PW10/B, Ex PW2/F and Ex PW5/B respectively as made by all the above three accused persons were already retracted by them. As per record the above statements of all the three accused persons were retracted on 06.12.05, i.e. after about 14-15 days of the making of their first statements. ٍِAs stated above, only the accused no.3 Mukail Adebayo led evidence in his defence by examining himself on record U/S 315 Cr. PC and only his retraction statement has been exhibited on record as Ex DW1/A. Though, Ld. SPP for DRI has argued that the above retractions of the accused are to be rejected out rightly and the retractions statements of the accused no.1 and 2 SC No. 30A/06 DRI Vs Becky Samuel & Ors.
37had even not been proved on record as per the Evidence Act, but the above argument now carries no weight as though it was earlier observed in the case of Kanhaiya Lal, supra that a retraction statement is required to be proved as per the provisions of the Evidence Act, but the above view no longer holds good in view of the subsequent pronouncements of the Hon'ble Supreme Court, as referred to above. Hence, their above statements U/S 67 of the NDPS Act can be considered and acted upon by this court for basing the conviction of the accused persons, if the same are found to be made voluntarily and are also corroborated by some independent evidence.
43. A bare perusal of the above statements of the accused persons shows that the accused persons had disclosed therein a number of their personal circumstances and facts, which could have been disclosed by them only voluntarily and not by the exercise of any pressure or influence etc. upon them. Even otherwise the onus of proving that their above statements were made involuntarily was on the accused themselves and they have done nothing to discharge the above onus. The above statements have been recorded in the hand writing of the accused persons and this is also a strong circumstance to show the voluntariness thereof. The personal facts about their life and family relations found to be disclosed therein could never have been in the knowledge of the SC No. 30A/06 DRI Vs Becky Samuel & Ors.
38officers of the DRI before whom they had tendered their above statements. It can also not be ignored that the above retraction statements have been filed by the accused persons in this court only after a long gap of about 14-15 days, during which they were in custody and the same appear to be the product of some legal advise and this fact is also duly substantiated from the record as one other copy of the retraction statement of the accused no.3 Mukail Adebayo, which is dated 02.12.05 and is exactly similar to the other retraction statement Ex DW1/A filed in the court on 06.12.05, is also a part of the judicial record and the same is found to be carrying an endorsement of being drafted by the Jail Visiting Advocate and the same was subsequently received in this court on 16.12.05, forwarded by the letter dated 15.12.05 of the Jail Superintendent concerned. Though, Ld. Defence Counsel for accused Tassavvur has pointed out some over writings on the date on few pages of the statement Ex.PW2/F of the above accused, but the same is not material as his statement was recorded during the intervening night of 20-21.11.2005 and hence is does not make any difference if the date 21.11.2005 was written on few subsequent pages of the statement after over writing the date 20.11.2005. Hence, this court has no hesitation in concluding that the above statements of the accused persons can be considered and acted upon by this court as the same are found to be voluntary in nature.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
39
44. In the above statements made by the accused
persons, all the three accused persons have admitted the recovery, search and seizure etc. of the above contraband substance from the above said premises and also their apprehension from the said premises. It has been specifically disclosed therein by the accused no. 1 and 2 that the above contraband substance/heroine weighing about 3 kgs was brought in the said premises in the above said bag by the accused no. 2 and the same was to be delivered to the accused no. 1 and it has also been deposed by the accused no. 1 and 3 that the accused no. 3 was called in the said premises by the accused no. 1 to help her and facilitate the delivery of the said contraband substance. Even the accused no. 2 in his above statement has specifically stated about the presence of the accused no. 3 in the said premises at the relevant time. Hence, apart from the possession of the above contraband substance by the accused persons, as proved against them, their voluntary statements U/S 67 of the NDPS Act are also there which have to be considered against them and which clearly make out a case conscious possession of the above contraband substance by all of them.
45. Though, Ld. Defence counsel representing the accused no.3 Mukail Adebayo has also relied upon the judgment of the Hon'ble Supreme Court in case Bal Mukand, supra and also of the Hon'ble Delhi High Court in cases SC No. 30A/06 DRI Vs Becky Samuel & Ors.
40Aziz Ahmed, supra and DRI Vs. Raj Kumar Mehta-2011 (3) JCC (Narcotics) 156, but it is found that the same are not applicable in this court in the context in which the same are being relied upon by him as besides the statements U/S 67 of the NDPS Act of the accused persons, the prosecution has also proved on record a conscious possession on their part for the above said contraband substance. He has also relied upon one other judgment of the Hon'ble Supreme Court in case Shiva Karam Payaswami Tewari Vs. State of Maharashtra-JT 2009 (1) SC 625 to raise an argument that the statement U/S 67 of the NDPS Act Ex PW5/B of the accused no.3 cannot be said to had been proved by the depositions of PW5 Sh. A. K. Sinha as he had not reproduced on record the actual confessional words used by the accused in the recording of the said statement. However, it is found that even the reliance upon the above judgment of the Hon'ble Supreme Court has not been rightly placed upon by him as herein the confession of the accused was not made orally, to be reproduced by the witness, but it was already reduced into writing and that too by the accused himself in his own handwriting. One other judgment in case Uttam Kumar Vs. State-2010 (3) JCC 1946 being relied upon by him is also not found to be applicable to the facts and circumstances of this case as herein the case of the prosecution and all incriminating circumstances were already brought on record in the form of the prosecution witnesses examined on record and the SC No. 30A/06 DRI Vs Becky Samuel & Ors.
41documents proved in their statements, before the accused had stepped into the witness box to plead his innocence.
46. The next contention of both the Ld. Defence counsel is that no effective investigation has been conducted by the IO/PW2 on various aspects which had come on record during the recording of the above statements of the accused persons and particularly he had not made any efforts to corroborate the fact that the above contraband substance had in fact been sent by the above Saida of Pakistan. It is also argued that even the call detail records of the alleged conversations between the accused no.1 and 2, pertaining to the circumstances as to how the above contraband substance was collected from the sources of the above Saida and the same was delivered to the accused no.1 by accused no.2, the conversation between the accused no.1 and 3 leading to the calling of the accused no.3 in the above premises at the relevant time or the record of the conversations between the above Saida and the accused no.1 had not been collected nor any record of ownership of the telephone numbers which had come up during the statements has been proved on record to be in the name of the accused persons.
47. It is observed on appreciation of the evidence that in the statements of the accused no.1 and 2, the mobile nos. 9871517385 and 9891069556 are mentioned to had SC No. 30A/06 DRI Vs Becky Samuel & Ors.
42been used by the accused no.1 (since deceased). The accused no.2 was not having any mobile or other landline number and he used to call the accused no.1, the above Saida or the source through whom the substance was delivered to him by the above Saida form some STD booth only. But, the numbers 3009413679 and 7402657 of the above Saida and one STD booth no. 261622 of the native village of the accused no.2 in UP have also come on record. However, it is found that the prosecution has not been able to lead on record any satisfactory evidence to corroborate the depositions made by the above accused persons in their above statements, regarding their being in touch or communication between them through the above numbers. Besides the above, two other mobile numbers 9810420874 and 9810410874 allegedly used by the above Irshad and Jamil, who were the source persons of the above Saida and through whom the contraband substance was delivered to accused no.2 for further delivery of the same to accused no.1, have also figured on record during the investigation.
48. Though the prosecution has examined on record PW14 Sh. Deepak Kanda, Nodal Officer of Airtel and PW15 Sh. Pawan Singh, Nodal Officer of Idea Cellular Ltd., but the depositions made by these witnesses and the call detail records brought by them are hardly relevant for the disposal of this case. PW14 has deposed about the SC No. 30A/06 DRI Vs Becky Samuel & Ors.
43ownership of the above mobile no.9871517385 which stood registered in the name of one Sh. Khan Mohammad and was allegedly used by the accused no.1. However, the above Khan Mohammad has also been examined by the prosecution on record as PW16, but he has not supported the prosecution case in this regard and he was even not sure whether the above mobile number was being used by himself or not, what to say of any other person. Even otherwise, the SIM of the above mobile number was never recovered from the possession of the above accused, so as to connect her with the same. Hence, the call detail records Ex PW14/B with regard to the above mobile number are of no consequence or no use. Moreover, nothing material has been pointed out in the above call details pertaining to the alleged transaction of delivery of the contraband substance.
49. The other mobile number 9810410874 of Airtel is alleged by the prosecution to be belonging to one Bharat Wadhla, as per the complaint though not deposed by PW14, and the above person could not be traced during the investigation. The call detail record Ex PW14/C of the above number is also hence not relevant as the above number also could not be connected with any of the above accused persons, though it has been pointed out on behalf of DRI that some calls are found to have been made from the above number on the number 923009413679 of the above Saida of Pakistan, as mentioned in the above statements.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
44Even the confessions made by the accused regarding the previous delivery of the contraband substance/heroine weighing 700 gms by the accused no.2 to the accused no.1 could not be substantiated through these calls, similarly PW15 Sh. Pawan Singh has also produced on record the ownership and call detail record of mobile no.9891069556, which was registered in the one Sh. Divji Chopra and was allegedly being used by the accused no.1, but even the above mobile phone could not be connected with the accused no.1 or any other co accused as even the SIM thereof was not seized or recovered from the possession of the accused no.1. Hence, the record of the ownership and call details of above mobile numbers is not found to be relevant for consideration. However, the same could have been relevant only for proving the charge of criminal conspiracy punishable U/S 29 read with Section 21 (c) of the NDPS Act framed separately against the accused persons, but the same has nothing to do with the other charge for commission of the offence punishable U/S 21 (c) of the said Act, pertaining to the possession of the above said contraband substance.
50. The secret information received in this case was with regard to the delivery of the contraband substance in the above tenanted residential premises and hence the above information was duly reduced into writing as Ex PW1/A and was even communicated by PW1 Sh. K. S. Ratra to SC No. 30A/06 DRI Vs Becky Samuel & Ors.
45his superior officer Sh. Amitesh B. Singh/PW12 and he had directed PW9 to act upon the same and had even issued a search authorization Ex PW2/B in favour of the IO/PW2. Hence, the provisions of Section 42 of the NDPS Act are found to be duly complied with. There does not appear to be any force in the argument of Ld. Defence counsels that PW12 was not the immediate superior of PW1 as there is nothing to show that there was any fixed hierarchy in the DRI Office. It is a case of heavy seizure of heroine weighing about 3 kgs, as only 250 gms of heroine has been prescribed to be a commercial quantity of the above substance, and there also does not appear to be any force in the argument of Ld. Defence counsels for planting of the above contraband substance upon the accused persons. Moreover, the accused no.1 and 2 were foreign nationals and though the accused no.3 was an Indian national, but no previous enmity between any of the three accused or any member of the raiding team has been alleged or established on record.
51. Further, though the accused no.1 has already expired before leading any defence evidence on record, but the accused no.2 and 3 also have not been able to bring on record any satisfactory defence evidence to substantiate the pleas of their false implications. As stated above, the accused no.2 Tassuvvar had not led on record any defence evidence and though accused no.3 Mukail Adebayo SC No. 30A/06 DRI Vs Becky Samuel & Ors.
46had examined himself in his defence, even the depositions made by him on record are found to be not inspiring any confidence as in his statement as DW1 he has stated that he was called at the above premises by the accused no. 1 (since deceased) after some Government officials had visited her residence, but in his above retraction statement Ex.DW1/A he had no where claimed that he was called subsequently and rather it shows that he was already present in the said premises when the raid was conducted. Even otherwise, he had not disclosed his mobile number or the mobile number of the accused no. 1 on which they both had communicated, to substantiate his above depositions. Even the defense of the accused no.2, as set up during the course of the trial in the cross- examination of the witnesses and as stated by him in his statement U/S 313 Cr.P.C, is found to be contrary because in his above statement, he has claimed that on that day, i.e. obviously the day of incident, he was taken by some Government officials from his residence to the DRI office, whereas during the trial it was suggested to the witnesses that he was kept in illegal confinement in the DRI Office for about two days before his implication in this case. In any case, his above plea of false implication has also remained unsubstantiated.
52. Since, apart from the above statements U/S 67 of the NDPS Act made by the accused persons there is no other SC No. 30A/06 DRI Vs Becky Samuel & Ors.
47independent evidence to prove the charge for the offence punishable U/S 29 read with Section 21 (c) of the NDPS Act, the accused persons cannot be held guilty for the said offence merely on the basis of the said statements as there is no other evidence on record to prove that they were part of any criminal conspiracy to possess the above contraband substance or were dealing in contraband substances, for which an independent charge was framed against them. However, the conscious possession of the above contraband substance proved against them, coupled with there above voluntarily statements U/S 67 of the NDPS Act, is sufficient to prove the charge for the offence punishable U/S 21 (c) of the NDPS Act framed against them. No arguments has been on behalf of raised by any of the accused persons to allege any tampering with the parcels of the case property or the samples etc. nor any such tampering is visible from the record. Though, the Ld. Defence Counsels have pointed out some contradictions in the statements of the witnesses and some other discrepancies in the prosecution evidence, but the same are minor in nature and are not found to be material enough for the disposal of the case.
53. In the test reports Ex.PW3/E1 to Ex.PW3/E6, the percentage of Diacetylmorphine in the samples of the above heroin recovered from the accused persons have been given as 64.6%, 53.7%, 54.5%, 47.2%, 55% and 55.8% and the SC No. 30A/06 DRI Vs Becky Samuel & Ors.
48average percentage of Diacetylmorphine in the above samples comes to around 55.1% and going by the same, the percentage/purity weight of the heroin recovered from the accused persons, comes to around 1.600 kgs. Since, the seizure of this case pertains to the year 2005, i.e. much prior to the issuance of the notification dated 18.11.2009 of the Ministry of Finance for consideration of the entire quantity of the recovered substance and not just its pure drug content, the percentage of Diacetylmorphine opined in the above samples is relevant. Under the NDPS Act only a quantity of 250 gms of heroin has been prescribed to be a commercial quantity and hence even the above purity weight of 1.600 kgs of heroin is still a very huge commercial quantity of the above substance.
54. In view of the above discussion, it is held that the prosecution has been successful in establishing the guilt of the accused persons for the offence punishable U/S 21(c) of the NDPS Act only and it has not been able to prove its charge for the other offence punishable U/S 29 read with Section 21(c) of the above said Act. The accused no. 2 namely Tassavvur and the accused no. 3 namely Mukail Adebayo are, therefore, held guilty for the above said offence punishable U/S 21(c) of the above said Act and are convicted thereunder.
SC No. 30A/06 DRI Vs Becky Samuel & Ors.
49
Let they both be now heard on the point of
sentence on 06.03.2012.
Announced in the open
court on 03.03.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 30A/06 DRI Vs Becky Samuel & Ors.