Delhi District Court
State vs . Daniel Obinuo, on 15 March, 2018
IN THE COURT OF AJAY GOEL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 440554/2016
State Vs. Daniel Obinuo,
S/o Sh. Ebera Obinuo,
R/o H. No. 2/18, 3rd Floor,
Hastsal Vihar, Uttam Nagar,
New Delhi.
Permanent address:
H. No. 18, Village Ifite,
Lagos, Nigeria.
FIR No. : 15/14
Police : Crime Branch
Station
Under : 21 (c) NDPS Act
Sections
Date of Institution of case : 05.07.2014
Date of Assignment to this court : 17.05.2017
Date of Arguments : 08.03.2018
Date on which judgment was pronounced : 15.03.2018
JUDGMENT:
Case of Prosecution:
1. The case of the prosecution is that on 15.02.2014, an information was received by SI Raj Malik through secret SC No. 440554/16 State Vs Daniel Obinuo Page No. 1/40 informer in ARC office that a person namely Daniel Obinuo (accused herein) is a Nigerian national and resides in area Uttam Nagar and he is engaged in supply of cocaine in Delhi and NCR. It was informed that said Daniel would come today at about 2.30 pm to 3.30 pm to supply large quantity of cocaine to some one at Sector-14 Dwarka, Metro Station and if raid is organised, he could be apprehended. On receipt of above secret information, SI Raj Malik produced said informer before Inspector Kuldeep Singh and on being satisfied with the said secret information, Inspector Kuldeep Singh telephonically informed to Sh. KPS Malhotra, ACP/ARC, Chankya Puri about said secret information who directed to conduct raid and to take all required action in the matter.
Accordingly, SI Raj Malik recorded DD No. 7 and completed all formalities and constituted a raiding party consisting of HC Sushil Kumar, Ct. Kripal and Ct. Pradeep and they also took field test kit, IO Bag and electronic weigh machine and reached at spot in their private vehicle. It was stated that on the way under Moti Bagh SC No. 440554/16 State Vs Daniel Obinuo Page No. 2/40 Fly over, they asked public persons to join the raiding party but by telling their inability, none of the public person joined the raiding party. SI Raj Malik brief the staf members of raiding party at spot and at about 3.00 pm one African national was found coming crossing road from Bharat Vihar, Sector-15 Dwarka and on seeing him, the secret informer made gesture towards him and told that he is said person namely Daniel who had come to supply cocaine and he started waiting for somebody. When after weighting for 10 minutes, he was leaving, SI Raj Malik with the help of other staf members apprehended him who disclosed his name as Danial Obinuo and SI Raj Malik gave him his introduction and also disclosed him about the secret information. He was also informed about his all legal rights qua his search in the presence of a Gazetted Officer or a Magistrate. He was also served with a notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act). However, the accused declined to avail the said right. Public persons were requested to join proceedings SC No. 440554/16 State Vs Daniel Obinuo Page No. 3/40 but none inclined to join and gave their respective reasons. On search, a transparent polythene having white colour powder was recovered from right side pocket of his wearing jeans and mouth of said polythene was tied with rubber band. On testing it from field test kit, it was found positive for cocaine. On weighting, it was found to be 109 gm with polythene. Two samples of 5gm each was taken from said polythene and pulandas were prepared and marked as A and B and remaining recovered substance was put in pulanda and was marked as Mark C. FSL form was filled and seal of RM was put on prepared pulandas. Rukka was sent for registration of case and thereafter, FIR in the present case was registered and the accused Daniel was arrested for the commission of ofence U/s 21 NPDS Act and his personal search was conducted. He was interrogated and his disclosure statement was recorded. Report under Section 57 NDPS Act were prepared and sent to senior official. The samples of the recovered substance were sent to FSL for chemical examination. Since visa of accused was SC No. 440554/16 State Vs Daniel Obinuo Page No. 4/40 seized and it was found that same had already expired, hence Section 14 of Foreigner Act was added. After completion of investigation, the charge sheet was filed. Charge against the accused:
2. Vide order dated 14.07.2014, the charge for the ofences under Sections 21 (c) of the NDPS Act was framed against the accused to which he pleaded not guilty and claimed trial.
Witnesses examined :
3. The prosecution examined following witnesses in support of its case who are as follows:-
PW1 is Sh. Yashpal. He has deposed that on 12.02.2014, one room at 3 rd floor of said house was given on rent to accused which was registered in the name of his wife Smt. Nirmal Bajaj. He had asked the accused to give the copy of his passport and visa and he assured to give the same but he did not give and later on, he came to know that he was apprehended by the SC No. 440554/16 State Vs Daniel Obinuo Page No. 5/40 police.
PW2 is HC Sushil Kumar. He has deposed that on 15.02.2014, he was posted in Anti Robbery Cell Crime Branch, Chankyapuri and on that date, he was called by SI Raj Malik with other staf and they were informed about the secret information. He further deposed regarding mode and manner of raid conducted, recovery of contraband substance from accused and further investigation done by them in the matter. He proved the copy of notice U/s 50 of NDPS Act served upon accused as PW-2/A, refusal of accused in his own handwriting below notice as Ex. PW-2/B, seizure memo of FSL form as PW-2/C, arrest memo as PW-2/D, his personal search as Ex. PW-2/E, disclosure statement as Ex. PW-2/F. PW3 is Inspector Virender Singh Sajwan. He deposed that on 15.02.2014, Ct. Kripal came to his office and produced three sealed pullanda with one FSL Form and he put his seal of VSS on pullanda and FSL form and he called the duty officer and called MHCM HC Jagnarain with register No. 19 of Malkhana who made entries in SC No. 440554/16 State Vs Daniel Obinuo Page No. 6/40 said register and DD entry No. 22 was made regarding deposition of case property and documents in present case and copy of same was Ex. PW-3/A. PW4 is SI Munish Kumar. He has deposed that on above said date, he received the information regarding registration of present case and he received the copy of FIR and asal Tehreer. Thereafter, he reached at spot and prepared site plan which was Ex. PW4/A, the report U/s 57 NDPS Act was prepared regarding arrest of accused and was Ex. PW-4/B, the application moved for obtaining photocopy of passport to SHO PS Chandigarh was Ex. PW-4/C, the photocopy of his passport consisting of four pages were Ex. PW-4/D. PW5 is Ct. Pradeep Kumar. He brought register No. 19 of Malkhana regarding depositing the personal search of accused Daniel in case FIR No. 390/12 U/s 21 NDPS Act registered with PS-Sector-17, Chandigarh, UT and copy of entry made in register No. 19 was Ex. PW-5/A and copy of passport was Ex. PW-5/B. PW6 is Ct. Kripal. He was one the member of raiding SC No. 440554/16 State Vs Daniel Obinuo Page No. 7/40 party and has deposed regarding mode and manner of raid conducted in the present matter and recovery of contraband and arrest of accused.
PW7 is HC Jag Narain. He deposed regarding the entries made by him regarding FSL form and sealed pulandas in register No. 19 as Ex. PW-7/A, entry made in said register with regard to personal search articles as Ex. PW-7/B, the copy of road certificate No. 57/21 as Ex. PW-7/C and receipt/acknowledgement of FSL as Ex. PW- 7/D. PW8 is HC Nitin. He stated that he was posted as Reader to ACP, ARC, Crime Branch and on 15.02.2014, a true copy of DD No. 7 sent by SI Raj Malik was received in office of ACP and he put up same before ACP who had gone through the same and made his endorsement in encircled portion X on DD No. 7 Ex. PW-8/A and he had made entry in diary register at no. 318 and copy of same was Ex. PW-8/B. He further deposed that on 16.02.2014, a report U/s 57 NDPS Act regarding seizure of 109 gms of cocaine from possession of accused sent by SI Raj Malik SC No. 440554/16 State Vs Daniel Obinuo Page No. 8/40 was received in the office of ACP and he put up same before ACP who made his endorsement in encircled portion X on report Ex. PW-8/C and he had made entry in diary register at no. 319. He further deposed that on same day, a report U/s 57 NDPS Act regarding arrest of accused sent by SI Muneesh Kumar was received in the office of ACP and he put up same before ACP who made his endorsement in encircled portion X on report Ex. PW- 8/D and he had made entry in diary register at no. 320. The copies of entries No. 319 and 320 was Ex. PW-8/E. PW9 is HC Rajbir Singh. He deposed that he was working as Duty Officer on 15.02.2014 and he recorded FIR No. 15/14 and copy of same was Ex. PW-9/A. He recorded DD No. 21 and attested copy of same was Ex. PW-9/B. He made endorsement on Ex. PW-9/C on rukka and he issued certificate u/s 65 of Indian Evidence Act regarding copy of FIR which was Ex. PW-9/D. PW10 is SI Raj Malik. He is IO of the case and has deposed regarding receipt of secret information and organising a raid and apprehending and arrest of accused SC No. 440554/16 State Vs Daniel Obinuo Page No. 9/40 in the present case. He has also deposed regarding investigation done in the matter. He proved rukka as Ex. PW-10/A, his departure entry as Ex. PW-10/B. PW11 is Ct. Manoj Kumar. He deposed that on the instructions of IO, he had taken one sealed pulanda with FSL Form to FSL Rohini and deposited the same there and obtained the acknowledgement of case acceptance from FSL and handed over the same to MHC(M).
PW12 is Dr. Lingaraj Sahoo, Sr. Scientific Officer (Chemistry), FSL Rohini. He deposed that he examined the sealed parcel. He stated that seals were found intact and tallied and parcel was opened and was found containing white powdery material and on examination, the same was found cocaine and detailed report of examination was Ex. PW-12/A. PW13 is ACP KPS Malhotra, DSP, CID, Port Blair. He deposed that on 15.02.2014, he was posted as ACP, ARC, Chankya Puri and on that day, Inspector Kuldeep Singh informed him about the receiving of secret information and after having satisfied with secret information, he SC No. 440554/16 State Vs Daniel Obinuo Page No. 10/40 directed him to conduct raid.
4. Thereafter, Prosecution Evidence was closed on the request of Ld. APP vide order dated 19.02.2018 by this Court and matter was posted for recording of statement of accused U/s 313 Cr. P. C.
5. Statement of accused U/s 313 Cr. P. C. was recorded on 08.03.2018 whereby all the incriminating evidence was put to him to which he denied all allegations and accused pleaded innocence. While recording his statement, he pleaded that he is innocent and he has been falsely implicated in the present case and he was lifted from football ground. During recording of statement, accused wished not to lead evidence in his defence. ARGUMENTS OF PROSECUTION:
6. The prosecution of the accused had been launched on the receipt of secret information through secret informer. It is stated by Ld. APP for State that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of accused beyond reasonable doubt. SC No. 440554/16 State Vs Daniel Obinuo Page No. 11/40 ARGUMENTS OF DEFENCE:
7. On the other hand, Ld. Counsel for accused vehemently argued that the accused is innocent. It is argued by him that the statement of prosecution witnesses is full of omissions and improvements. In view of improvements made by PWs, their evidence has lost the credibility and cannot be relied upon to give finding of guilt against the accused. It is also argued that the present accused has been falsely implicated and that no recovery was efected from the accused and the contraband had been planted upon him. He has argued that non-
joinder of public witnesses at the time of alleged recovery casts a serious doubt on the version of the prosecution. The counsel for accused has further argued that there are material contradictions in the testimony of the witnesses which goes to the root of the case and falsify the case of the prosecution.
8. On the other hand, the Ld. APP for the state submitted that the contradictions in the testimony of material SC No. 440554/16 State Vs Daniel Obinuo Page No. 12/40 witnesses are minor and natural and does not afect the case of the prosecution. He further argued that nothing has come in the cross-examination of PWs to dis-credit them.
JUDGMENT RELIED UPON ON BEHALF OF STATE.
1) Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58;
2) Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783;
3) Delias Christopher Vs. Customs 2004 (3) JCC 147;
4) State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103;
5) State of Punjab Vs. Baldev Singh (1999) 3 SCC 977.
6) Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77
7) Ranjodh Singh Vs. State of Haryana;
8) Parminder Singh Vs. State of Haryana;
SC No. 440554/16 State Vs Daniel Obinuo Page No. 13/40
10) Beera Singh Vs. State of Punjab;
11) Amarjit Singh Vs. The State of Punjab;
12) Jarnail Singh Vs. State of Punjab;
13) State of Haryana Vs. Mai Ram, (2008) 8 SCC 292;
14) Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652;
15) Tahir Vs. State 1996 (3) SCC 338;
JUDGMENT RELIED UPON ON BEHALF OF ACCUSED.
1) D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416;
9. I have considered the rival submissions and gone through the voluminous documents and evidence available on record. I have also perused the case law relied upon by the prosecution as well as the defence.
FINDINGS:
10. Records of present case reveals that the accused stands SC No. 440554/16 State Vs Daniel Obinuo Page No. 14/40 charged for the conscious possession of commercial quantity of contraband i.e. 109 gm of cocaine. The stringent provisions are provided under that qua the punishment especially in the case where commercial quantity of contraband is involved. The scheme of NDPS Act and its objects and reasons mandate that the prosecution must prove compliance of various safeguard ensured by virtue of the Act. The NDPS Act prescribes stringent punishment and therefore, balance must be struck between the need of the law and the enforcement of such law on the one hand, the protection of citizen from oppression and injustice on the other. The provisions are intended for providing certain checks on exercise of power by the authority concerned to rule out any possibility of false implication or tampering with the record or the contraband. In the present case, the accused was apprehended and was found in possession of commercial quantity of 109 gm of cocaine in transparent polythene from his wearing pants pockets. Hence, it cannot be stated that he was not in conscious SC No. 440554/16 State Vs Daniel Obinuo Page No. 15/40 possession of the contraband i.e. cocaine.
11. Further, one has to go through the examination of witnesses.
12. PW1 Sh. Yashpal is the owner of flat where accused was residing and he deposed that on 12.02.2014, one room at 3rd floor of his house was given on rent to accused which was registered in the name of his wife Smt. Nirmal Bajaj. He deposed that he asked the accused to give the copy of his passport and visa and accused assured him to give the same but he did not give and later on, he came to know that he was apprehended by the police in the present case. In cross-examination, he deposed that no information was given to police about the tenant as he was waiting for documents of accused which he did not supply and due to this reason the information was not given.
13. Prosecution further produced PW2 HC Sushil Kumar who was posted in Anti Robbery Cell Crime Branch, Chankyapuri and he deposed that on that date, he was called by SI Raj Malik with other staf and they were SC No. 440554/16 State Vs Daniel Obinuo Page No. 16/40 informed about the secret information. He further deposed regarding mode and manner of raid conducted, recovery of contraband substance from accused and further investigation done by them in the matter. He proved the copy of notice U/s 50 of NDPS Act served upon accused as PW-2/A, refusal of accused in his own handwriting below notice as Ex. PW-2/B, seizure memo of FSL form as PW-2/C, arrest memo as PW-2/D, his personal search as Ex. PW-2/E, disclosure statement as Ex. PW-2/F. This witness was cross-examination by counsel for accused at length. Several suggestions were put to this witness which he denied.
14. PW3 Inspector Virender Singh Sajwan in his testimony deposed that on 15.02.2014, Ct. Kripal came to his office and produced three sealed pullanda with one FSL Form and he put his seal of VSS on pullanda and FSL form and he called the duty officer and called MHCM HC Jagnarain with register No. 19 of Malkhana who made entries in said register and DD entry No. 22 was made regarding deposition of case property and documents in SC No. 440554/16 State Vs Daniel Obinuo Page No. 17/40 present case and copy of same was Ex. PW-3/A. During cross-examination, he denied suggestion that he made manipulation in connivance with IO in this case.
15. PW4 SI Munish Kumar was posted in Anti-Robbery Cell, Crime Branch. PW-4 deposed that on above said date, he received the information regarding registration of present case and he received the copy of FIR and asal Tehreer. Thereafter, he reached at spot and prepared site plan which was Ex. PW4/A, the report U/s 57 NDPS Act was prepared regarding arrest of accused and was Ex. PW-4/B, the application moved for obtaining photocopy of passport to SHO PS Chandigarh was Ex. PW-4/C, the photocopy of his passport consisting of four pages were Ex. PW-4/D. During cross-examination, he denied the suggestion that all the documents were prepared by him after sitting in PS and then obtained signatures of witnesses in PS or that he obtained the signatures of accused on some blank papers.
16. PW5 Ct. Pradeep Kumar was working as Asst.
MHC(M) and PW-5 brought register No. 19 of Malkhana SC No. 440554/16 State Vs Daniel Obinuo Page No. 18/40 regarding depositing the personal search of accused Daniel in case FIR No. 390/12 U/s 21 NDPS Act registered with PS-Sector-17, Chandigarh, UT and copy of entry made in register No. 19 was Ex. PW-5/A and copy of passport was Ex. PW-5/B. In cross-examination, he deposed that SHO has not signed the register No. 19 and denied the suggestion that he manipulated the entry in register no. 19 in connivance with IO of case FIR No. 390/12.
17. PW6 Ct. Kripal is another material witness of present case who was one the members of raiding party. PW-6 deposed regarding mode and manner of raid conducted in the present matter and recovery of contraband and arrest of accused. He denied the suggestion that no raiding party was organised or nothing was recovered from the possession of accused or that due to this reason, none was called from metro station, local police and traffic police. He further denied the suggestion that all the documents were prepared at the office of ARC or that he simply signed the same at the instance of SI Raj Malik. SC No. 440554/16 State Vs Daniel Obinuo Page No. 19/40
18. PW7 HC Jag Narain was working as MHC(M) at PS-
Crime Branch, Malviya Nagar. He proved the entries made by him regarding FSL form and sealed pulandas in register No. 19 as Ex. PW-7/A, entry made in said register with regard to personal search articles as Ex. PW-7/B, the copy of road certificate No. 57/21 as Ex. PW-7/C and receipt/acknowledgement of FSL as Ex. PW-7/D. He denied the suggestion that entries in register No. 19 were manipulated and the case property was tampered or that entries in register No. 19 are anti-dated and anti-timed or that seals of pulanda were tampered.
19. PW8 HC Nitin was posted as Reader to ACP, ARC, Crime Branch. PW-8 proved true copy of DD No. 7 sent by SI Raj Malik received in office of ACP. He proved that he put up same before ACP who had gone through the same and made his endorsement in encircled portion X on DD No. 7 Ex. PW-8/A and he had made entry in diary register at no. 318 and copy of same was Ex. PW-8/B. He further proved that on 16.02.2014, a report U/s 57 NDPS Act regarding seizure of 109 gms of cocaine from possession SC No. 440554/16 State Vs Daniel Obinuo Page No. 20/40 of accused sent by SI Raj Malik was received in the office of ACP and he put up same before ACP who made his endorsement in encircled portion X on report Ex. PW-8/C and he had made entry in diary register at no. 319. He further deposed that on same day, a report U/s 57 NDPS Act regarding arrest of accused sent by SI Muneesh Kumar was received in the office of ACP and he put up same before ACP who made his endorsement in encircled portion X on report Ex. PW-8/D and he had made entry in diary register at no. 320. The copies of entries No. 319 and 320 was Ex. PW-8/E. In his cross-examination, he stated that it is correct that time of receiving DD No. 7 and reports has not been mentioned in the diary register and further voluntarily deposed that such practice is not prevailing in office. He also denied the suggestion that entries in diary register were manipulated later on.
20. Prosecution has also produced PW9 HC Rajbir Singh who was working as Duty Officer on 15.02.2014. PW-9 deposed that he recorded FIR No. 15/14 and copy of same was Ex. PW-9/A. He recorded DD No. 21 and SC No. 440554/16 State Vs Daniel Obinuo Page No. 21/40 attested copy of same was Ex. PW-9/B. He made endorsement on Ex. PW-9/C on rukka and he issued certificate u/s 65 of Indian Evidence Act regarding copy of FIR which was Ex. PW-9/D. During his cross-examination, he stated that permission of SHO was taken before registration of FIR. He stated that it is correct that there is some correction in DD No. 21 Ex. PW-9/B at point A. He denied the suggestion that FIR and DD entries are ante- time and ante-dated or that FIR and DD entry were manipulated at the instance of IO.
21. The other important witness produced by prosecution is PW-10 SI Raj Malik. He is IO of the case and has deposed regarding receipt of secret information and organising a raid and apprehending and arrest of accused in the present case. He has also deposed regarding investigation done in the matter. He proved rukka as Ex. PW-10/A, his departure entry as Ex. PW-10/B.
22. Prosecution further produced PW11 Ct. Manoj Kumar. He deposed that on the instructions of IO, he had taken one sealed pulanda with FSL Form to FSL Rohini SC No. 440554/16 State Vs Daniel Obinuo Page No. 22/40 and deposited the same there and obtained the acknowledgement of case acceptance from FSL and handed over the same to MHC(M).
23. Another star witness produced by prosecution is PW12 Dr. Lingaraj Sahoo, Sr. Scientific Officer (Chemistry), FSL Rohini. He deposed that he examined the sealed parcel from 11.03.2014 to 27.03.2014. He stated that seals were found intact and tallied as per forwarding authority specimen seals and parcel was opened and was found containing white powdery material and on examination, the same was found cocaine and detailed report of examination was Ex. PW-12/A. The words mentioned in report are that "On chemical, TLC, GC and GC-MS examination, exhibit 'A' was found to contain 'Cocaine' 22.4%". He further deposed that after examination th remnants of exhibits were re-sealed with the seal of LRS FSL Delhi. During his cross- examination, he deposed that he is having 15 years experience in the analysis of narcotics drugs and handled a number of cases and the sample was analyzed as per SC No. 440554/16 State Vs Daniel Obinuo Page No. 23/40 our manual. He denied suggestion that exhibit pertaining to this case was not properly analyzed or that he prepared a false report at the instance of police. He further denied the suggestion that exhibits sent to the FSL was not having intact seals or that sample was putrefied as there was a long gap between its seizure and examination.
24. PW13 ACP KPS Malhotra, DSP, CID, Port Blair is the last witness produced by prosecution. He deposed that on 15.02.2014, he was posted as ACP, ARC, Chankya Puri and on that day, Inspector Kuldeep Singh informed him about the receiving of secret information and after having satisfied with secret information, he directed him to conduct raid. During his cross-examination, he stated that Inspector Kuldeep Singh informed him on telephone about receiving the secret information and he himself had not met with secret informer and raiding team was constituted by him on my telephonic directions.
25. The witnesses produced by prosecution are wholly reliable and trustworthy and nothing could be brought out SC No. 440554/16 State Vs Daniel Obinuo Page No. 24/40 in their cross-examination to discredit them as nothing contrary has come in their cross-examination conducted by counsel for accused. Documentary and circumstantial evidence on record corroborate their statements. The counsel for accused has argued that accused has been falsely implicated and has no connection with crime. It is observed that witnesses produced in court have no motive or reason to falsely implicate the accused in this case. In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002 (2) CC Cases (SC) 58 it was held that: it is the duty of the court to separate grain from chaff-when chaff can be separated from grain, it could be open to the Court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons- falsehood of particular material witness or material particular would not seclude it from the beginning to end - maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
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26. Even otherwise, it has been held in case of Nathu Singh Vs. State of Madhya Pradesh AIR 1973 SC 2783 that merely if the prosecution witnesses are police officers that is not sufficient to discard their evidence in the absence of evidence of their hostility to the accused. This was also reiterated in the case of Delias Christopher Vs. Customs 2004 (3) JCC 147.
27. The present case is a case of recovery of commercial quantity of cocaine. It is not possible to plant such a quantity upon the accused person. Moreover, there is no reason to falsely implicate the accused. In the case of State of Punjab Vs. Balwant Rai 2005 (1) JCC (Narcotics) 103, it was held that:
"The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H. P. 2005 (1) Crimes 358 (H. P.) it was observed: it is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person ......... police had no axe to SC No. 440554/16 State Vs Daniel Obinuo Page No. 26/40 grind in implicating the accused."
28. Further it has to be seen that accused has failed to bring on record anything showing that he was not in conscious possession of contraband items. He was found in possession 109 gm of cocaine in transparent polythene in his pants. On considering the facts available on record, the document, testimony of witnesses after detailed scrutiny, no doubt remain that accused was in conscious possession of cocaine.
29. The Ld. Counsel for accused has argued that the notice U/s 50 NDPS Act Ex. PW-2/A was defective as the accused was not explained about his legal right to be searched before a Gazetted officer or Magistrate. But Ld. APP for the state has argued that notice U/s 50 of NDPS Act Ex. PW-2/A was served upon the accused whereby he was apprised about his legal rights. During the arguments Ld. Counsel for the accused referred the case of D. K. Basu Vs. State of West Bengal (1997) 1 SCC 416 to contend that if a person in custody is subjected to interrogation, he must be informed in clear and SC No. 440554/16 State Vs Daniel Obinuo Page No. 27/40 unequivocal terms as to his right to silence.
30. Section 50 of the NDPS Act prescribes the safeguards to be followed before conducting the personal search of a suspect. It confers an extremely valuable right upon a suspect to get his person searched in the presence of a Gazetted Officer or a Magistrate. The compliance with the procedural safeguard contained in the above provision is intended to protect a person against false accusation and also to lend credibility to the search and seizure conducted by the empowered officer.
31. The question which thus arises for consideration is that whether Section 50 of the NDPS Act casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section. This issue has been settled by State of Punjab Vs. Baldev Singh (1999) 3 SCC SC No. 440554/16 State Vs Daniel Obinuo Page No. 28/40
977. It has been held therein that this is an extremely valuable right which the legislature has given to the concerned person having regard to grave consequences that may entail the possession of illicit articles under the NDPS Act. It is however, not necessary to give the information to the person to be searched about his right in writing. The prosecution must, however, at the trial establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. In the instant case as appearing from the testimony of the prosecution witnesses that accused were told about the information, they were also told that if they require, their search could be concluded before a Gazetted Officer or Magistrate. It is not the case that the accused were not informed of their right to be searched before a Gazette Officer or a SC No. 440554/16 State Vs Daniel Obinuo Page No. 29/40 Magistrate. The accused have also recorded their refusal. In Joseph Fernandes Vs. State of Goa 2000 (1) SCC 707, three Judges Bench of Hon'ble Supreme Court dealt with the case in which the search officer informed the accused "if you wish you may be searched in the presence of a Gazetted Officer or a Magistrate". It was held that it was substantial compliance with the requirement of Section 50 of NDPS Act. The Court did not agree with the contention that there was non-compliance with the mandatory provisions, contained in Section 50 of NDPS Act. In Prabha Shankar Dubey Vs. State of M. P. (2004) 2 SCC 56 it was held that no specific words are necessary to be used to convey the existence of the right. The accused has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. Viewed thereof in the instant case sufficient compliance U/s 50 NDPS Act was made.
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32. It has been held by the Hon'ble Supreme Court in Vijayasinh Chandubha Jadeja Vs. State of Gujrat AIR 2011 SC 77 that the objection with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of the power, to avoid harm to innocent persons and to minimise the allegations of planting and foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of illicit article suspect and vitiate the conviction.
33. The prosecution witnesses are clear and consistent in their deposition about the service of notice U/s 50 of NDPS Act before taking search of accused. The notice U/s 50 of NDPS Act Ex. PW-2/A is proved on record and on perusal of same, it is clear that statutory rights of SC No. 440554/16 State Vs Daniel Obinuo Page No. 31/40 accused in this regard was clearly explained to him. Same have been perused. By virtue of this notice, the accused was apprised of his legal rights qua his search in the presence of a Gazetted Officer or a Magistrate. However, the accused declined to avail the said right in writing vide his noting Ex. PW-2/B. PW-2 and PW-6 have proved the notice.
34. The Counsel for accused has argued regarding tempering of case property till the same remained in the custody of officials. In this respect, testimony of PW11 Ct. Manoj Kumar is very important who has deposed that on the instructions of IO, he had taken one sealed pulanda with FSL Form to FSL Rohini and deposited the same there and obtained the acknowledgement of case acceptance from FSL and handed over the same to MHC(M). He also deposed that till the pulanda and FSL form remained in his custody, the same were not tampered with in any manner. Suggestions were also put to him with regard to tempering of pulanda by Ld. Defence Counsel which were denied by him. So from SC No. 440554/16 State Vs Daniel Obinuo Page No. 32/40 deposition of above witnesses, it is clear that there was no question of tempering with case property. In rebuttal to this argument of Ld. Counsel for accused, Ld. APP for the state has rightly relied upon judgment titled Ranjodh Singh Vs. State of Haryana, Parminder Singh Vs. State of Haryana, Radha Kishan Vs. State, Beera Singh Vs. State of Punjab, Amarjit Singh Vs. The State of Punjab and Jarnail Singh Vs. State of Punjab. The sequence of deposit of case property with official is duly proved and does not point regarding tempering.
35. The counsel for the accused could not find any flaw in the usage of the seal while sealing the case property. The movement of the contraband items to the Malkhana is also duly proved. The drawing of the samples and deposition of the same with the FSL is also duly proved. PW-2 HC Sushil Kumar in his deposition stated that two samples of 5 gms each were taken and the same were kept in polythene pouches and mouth were tied with rubber band and converted into cloth parcels given Mark SC No. 440554/16 State Vs Daniel Obinuo Page No. 33/40 A and B. The filling of FSL form is also duly proved and dent could not be created in the statement of the witnesses. So, nothing doubtful has been brought on record by the accused against the testimonies of the witnesses produced by the prosecution.
36. In the light of consistent and reliable testimony of prosecution witnesses, the defence taken by the accused is found to be improbable which otherwise has not been substantiated by him either by examining himself on oath or by leading any cogent evidence in their defence.
37. In the instant case, all the procedural safeguards provided under a statute have been strictly complied with. The prosecution has discharged its burden of proving its case against the accused beyond all reasonable doubt. There is no question of conviction of the accused on a misguided, suspicion. This case is not based on conjectures or surmises.
38. It is trite that non-joining of public witnesses itself cannot become a ground for acquittal, if the case of prosecution is otherwise reliable. In State of Haryana SC No. 440554/16 State Vs Daniel Obinuo Page No. 34/40 Vs. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witnesses sufers from any infirmity. The case of the prosecution can not be held to be vulnerable for non-examination of persons who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution can not be disbelieved. This position was reaffirmed by the Apex Court in State, Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652, wherein it was held that :
".... Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or SC No. 440554/16 State Vs Daniel Obinuo Page No. 35/40 at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police, the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
39. It is further held in judgment supra Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 that "conviction can be based on the testimony of official witnesses provided their testimony is trustworthy and reliable and the court is required to scrutinize their testimony with due care and caution".
40. It is evident from the testimony of prosecution witnesses specially PW-10 SI Raj Malik that sincere eforts SC No. 440554/16 State Vs Daniel Obinuo Page No. 36/40 were made to join the public witnesses but none of them inclined to join and went away telling their excuses. It is not uncommon that public persons are reluctant to join as witnesses in criminal cases as they do not want to indulge in hectic police and court proceedings. The non joining of public witnesses is not fatal to the case as otherwise the case is proved by way of consistent and cogent evidence. On examination the facts of the case as well as evidence of prosecution witnesses and the documents, this court is of the opinion that there is no reason to discredit the convincing testimony of prosecution witnesses. This is also fortified by the judgment of Hon'ble Supreme Court titled Tahir Vs. State 1996 (3) SCC 338. Para 6 of this judgment reads as under:-
"6....... No infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be SC No. 440554/16 State Vs Daniel Obinuo Page No. 37/40 recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
41. Thus from the above, it is clear that prosecution witnesses have duly supported their case and sufficient material has been proved on record to prove the guilt of accused. This court, during the course of judgment, to rule out any mischief, has called the case property again SC No. 440554/16 State Vs Daniel Obinuo Page No. 38/40 alongwith weighing machine to actually see as to what is the weight of recovered substance. On weighing, the recovered substance alongwith polythene it was found to be 98 gms and it was kept on blank white paper without polythene and it weighed 104 gms as weight of paper was 6 gm. The weight of polythene came out to be 2 gm. It is the case of prosecution that 10 gms were taken out for two samples of 5gm each. So meaning thereby the weight was 108 gm in toto with polythene and without polythene 106 gm. The case of prosecution is that it was 109 gm with polythene. In any case, it has fallen in the category of commercial quantity once it crossed the limit of 100 gm and arguments of Ld. Defence counsel that case can be covered U/s 21 (b) of NDPS Act looses rigour and thus case U/s 21 (c) of NDPS Act has been duly proved by prosecution. Thus on all counts, guilt of accused has been duly proved beyond reasonable doubt. The accused Daniel Obinuo is held guilty for commission of ofence punishable U/s 21 (c) of NDPS Act. SC No. 440554/16 State Vs Daniel Obinuo Page No. 39/40
42. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules. Copy of this order be given dasti to accused free of costs.
Pronounced in the open court. (AJAY GOEL) Dated: 15.03.2018 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
Digitally
signed by
AJAY AJAY GOEL
Date:
GOEL 2018.03.15
15:44:08
+0530
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