Delhi District Court
State vs . David Dawood on 12 December, 2012
FIR No. 158/10
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
SC No. 03/11
ID No. 02403R0003252011
FIR No. 158/10
PS Crime Branch
u/s 21(b) NDPS Act & 14 Foreigners Act
State Vs. David Dawood
S/o Sh. Shokenu
R/o 55, S.J. Tacoma, Washington, USA
Presently residing at:
133/9, Kishangarh,
Vasant Kunj, Delhi
Date of Institution : 18.01.2011
Judgment reserved on : 05.12.2012
Date of pronouncement : 10.12.2012
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused u/s 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act') and section 14 of the Foreigners Act.
2. Briefly stated the allegations against the accused as contained in the chargesheet are as follows:
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(a) It is asserted that on 20.11.2010 at about 05.45 PM, a secret informer came to the office of SI Paramjeet Singh and informed him that one David Dawood is indulging in supply of cocaine and heroin and would be coming between 08.0008.30 PM at Shahjahan Road near the gate of Bikaner House to supply cocaine to someone. The said secret informer was produced before the SHO and the information given by him was reduced in the daily diary and a copy thereof was forwarded to the office of the concerned ACP and the ACP was also telephonically informed about the information received.
(b) The raiding party was constituted as per the instructions of the SHO consisting of SI Paramjeet Singh, HC Sanjeev Kumar, HC Subhash, HC Jogender and HC Om Prakash. The said team alongwith secret informer left the police station Narcotics Cell for the spot in Govt. vehicle DL 1CJ 4367.
(c) On the way, just after PS Shakkarpur and at ITO Bus stand SI Paramjeet Singh is stated to have requested 5 passersby and 56 passengers standing at the bus stand to join the raiding party but none of them is stated to have agreed. On reaching the spot the raiding team members were briefed by the IO and the government vehicle was got parked about 50 mtrs from the UPSC bus stand and the members of the raiding party were deployed at different positions. At about 07.55 PM SC No. 03/11 Page 2 of 26 FIR No. 158/10 one black coloured person wearing a black jacket and a gray colour track suit was seen coming from the side of India Gate towards the spot. He was identified by the secret informer as the suspect David. Thereafter the accused was seen waiting at the gate of Bikaner House and thereafter when he started walking away after five minutes, he was intercepted by the police officials.
(d) The IO is stated to have introduced himself and the other members of the raiding party to the accused and is also stated to have apprised the accused of the secret information received. The accused on enquiry revealed his name as David Dawood s/o Shokenu r/o 55, SJ Tacoma, Washington, USA presently residing at 133/9, First Floor, Kishan Garh, Vasant, Delhi. It is further asserted that the accused was also then served with the notice u/s 50 NDPS Act and he was made to understand the contents of the notice as well as his legal rights. Since the accused is stated to have refused to be searched in the presence of the Gazetted Officer and Magistrate, he was searched by the IO himself.
Before the said search also, 56 passersby were requested to join the proceedings but they refused. On frisking of the accused one white semi transparent polythene was recovered from the left pocket of the pajamas worn by him. It is asserted that the said polythene was found containing white colour powder which on testing with the help of field testing kit, SC No. 03/11 Page 3 of 26 FIR No. 158/10 gave positive result for cocaine and its total weight came to be 10 grams.
(e) Two samples of 1 gms each were drawn out of the said bag and were given mark A and B. The samples, the remaining substance were sealed in pullandas, the FSL Form was filled, seal after use was handed over to HC Sanjeev Kumar, the rukka was prepared and was sent to PS for registration of the case.
(f) Further investigation of the case was then handed over to ASI Rajbir Singh, who came to the spot after further investigation was entrusted to him and during further investigation ASI Rajbir Singh prepared the site plan and formally arrested the accused. Since the accused was unable to provide his passport or any other valid document for his stay in India, it was also recorded by the IO Rajbir Singh that offence u/s 14 of the Foreigners Act also appears to have been committed by the accused. The remaining proceedings were completed at the spot and the accused and the case property was produced before the SHO concerned. On 21.11.2010 at about 09.30 AM the accused gave a disclosure that he had been supplied the cocaine by one Baba Lala r/o Tilak Nagar area. The accused was taken to the said area but he could not identify the address of the said person. The accused was also taken to his rented accommodation and the said premises was also searched but nothing incriminating was recovered therefrom.
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(g) On 21.11.2010 at about 12.40 AM, the SHO deposited the case property in the Malkhana. On 29.11.2010, samples taken out from the substance were sent to FSL through HC Narender Kumar.
3. On the basis of the aforementioned allegations and the material placed on record by the investigating agency, charges were framed against the accused vide order dated 07.02.2011 for the offence punishable u/s 21 (b) NDPS Act and 14 of Foreigners Act.
4. The Prosecution in order to prove its case against the accused persons has examined 12 witnesses in all.
5. PW5 HC Sanjeev Kumar, PW10 HC Subhash Singh and PW11 SI Paramjeet Singh, being all members of the raiding team have deposed on similar lines. They have more or less reiterated the allegations made in the charge sheet. PW11 SI Paramjeet Singh was the main Investigating Officer and he has deposed that the secret information received by him was reduced into writing vide DD no. 21. He has also in particular deposed that on the way to the spot he had requested many public persons at various places to join the raiding party but all of them refused to do so. He has also, in particular, deposed that it was he who had got prepared the notice u/s 50 NDPS Act in the handwriting of HC Sanjeev and had served it upon the accused. The said notice has been proved as Ex.PW5/A. He SC No. 03/11 Page 5 of 26 FIR No. 158/10 has also specifically deposed that accused had refused to get himself searched before a Magistrate or a Gazetted Officer and the refusal asserted to have been given by the accused to the said notice has been Exhibited as Ex.PW5/B. This witness has deposed that 10 grams of cocaine was found recovered from David Dawood and after drawing out two samples of 1 gram each from the same the samples were converted into the pullanda mark A and B and the remaining substance was converted into a pullanda and given mark C. The seizure memo and the rukka have been proved by this witness as Ex.PW5/C and Ex.PW11/A respectively.
6. PW12 ASI Rajbir Singh is second investigating officer of the present case who has deposed that he had reached the spot after receiving directions from ACP Sh. S.R. Yadav. According to him he left the Crime Branch along with ASI Raghubir Singh and on reaching the spot SI Paramjeet Singh produced before him, the accused and documents prepared by him. As per this witness he thereafter prepared the site plan Ex.PW12/A, recorded the statement of HC Sanjeev and then interrogated accused and thereafter recorded the disclosure statement of accused Ex.PW5/F and also arrested him vide arrest memo Ex.PW5/D and also prepared the personal search memo Ex.PW5/E. He has also deposed that SC No. 03/11 Page 6 of 26 FIR No. 158/10 after completion of investigation at the spot, he alongwith other staff members and the team reached the police station and collected the copy of FIR and original rukka and recorded the statement of Inspector Kuldeep Singh and MHCM HC Jagnarain. According to the deposition of this IO, thereafter he alongwith staff members and accused reached PS Narcotics Cell and produced the accused before Inspector Vivek Pathak who made enquiries from the accused and he disclosed the name of Baba Lala as the person who used to supply him cocaine. The said witness has then deposed about the taking of the accused to Tilak Nagar area and the search of his house. The report prepared by him u/s 57 NDPS Act has also been proved by him as Ex.PW4/F.
7. PW1 HC Narender Kumar has deposed that on 29.11.2010, he had taken pullanda mark A from MHC(M) and FSL form vide RC no. 415/21/10 Ex.PW1/A and had deposited the same with FSL, Rohini. He has also deposed that he had taken the receipt no. 2010/C5237 dated 29/11/2010 Ex.PW1/B from FSL and had brought the same to PS and had handed over the same to MHCM. He has also specifically deposed that so long as the case property remained with him, it was not tampered with.
8. PW2 Duty officer HC Ashok has deposed that he was the duty officer on the night intervening 2021 November, 2010 and that on this night he had SC No. 03/11 Page 7 of 26 FIR No. 158/10 received the rukka of the present case through HC Subhash and had registered the FIR, Ex.PW2/A. He has also proved the copies of DD no. 13 and 15 as Ex.PW2/B and C.
9. PW3 HC Jagnarain has deposed that he was posted as MHC(M) at PS Narcotics Branch on 21.112010 and that on this date, SHO of the said branch called him in his office alongwith register no.19 and had handed over to him three pullandas A, B and C sealed with the seal of PS and KSY with one FSL form and carbon copy of seizure memo. The said witness has also given details of the entries made by him with respect to the deposit of case property and FSL form as Ex.PW3/A. He has also deposed that ASI Rajbir Singh had also deposited the articles of personal search of accused. He has proved the said entry as Ex.PW3/B. According to his deposition, he had also sent the samples mark A to FSL Rohini through HC Narender Kumar vide RC no. 415/21 Ex.PW3/C. He has also deposed that on 23.12.2010 the result was deposited along with the remnant sample. He has proved the said entry as Ex.PW3/D.
10.PW4 HC Karunakaran has deposed that he was posted as Reader ACP, Narcotic Cell. As per the record produced by this witness, on 20.11.2010 SHO PS Narcotics Cell had forwarded DD no. 21 and that the entry in this regard was mentioned in the concerned diary at Sl. no. 2478 and the SC No. 03/11 Page 8 of 26 FIR No. 158/10 relevant page of the diary has been exhibited as Ex.PW4/B and the DD no. 21 has been exhibited as Ex.PW4/A. He has also deposed that on 22.11.2010, report u/s 57 NDPS Act Ex.PW4/C, prepared by SI Paramjeet Singh was also received in the office of ACP and the same was again forwarded to Addl. DCP who after perusing the same, mad endorsement. He proved the diary no. 2479 as Ex.PW4/D. He has also deposed that on the same day, report u/s 57 NDPS Act Ex.PW4/F was also received in the office of ACP and the same was again forwarded to Addl. DCP who after perusing the same, had made his endorsement thereon.
11.PW6 Dr. Madhulika Sharma, Assistant Director, CFSL, Rohini has inter alia deposed that on 29.11.2010, one parcel mark A alongwith FSL form and specimen seal impression were received in the CFSL office and same were handed over to her for chemical examination and that Parcel A was found to contain sample Ex.A. According to her, on the basis of chemical teat, chromatography and instrumental methods, Ex.A was found to contain 13.74% cocaine. The report prepared by her with respect to the sample has been exhibited as Ex.PW6/A.
12.PW7 Ms. Rajni, public witness has inter alia deposed that she had given on rent one flat on the first floor of House no. 13339, village Kishan Ganj, New Delhi to the accused at the monthly rent of Rs. 5000/. She has inter SC No. 03/11 Page 9 of 26 FIR No. 158/10 alia deposed that in the month of November, 2010 the accused had taken the said flat and that 1520 days thereafter, one day some police officials had come to the said tenanted premises along with the accused and had searched the said flat but that nothing was recovered from the same.
13.PW8 Inspector Vivek Pathak has deposed that on 20.11.2010, he was posted as Incharge, Narcotics Branch and according to his deposition on this date, SI Paramjeet Singh had come to his office alongwith the informer who had then told them about the activities of the accused. This witness has also deposed that pursuant to the secret information, he had informed the ACP and then on the direction of the ACP, he in turn had directed SI Paramjeet Singh to organize a raiding party and forwarded the secret information to ACP. He has further deposed that on 21.11.2010 ASI Rajbir Singh and SI Paramjeet Singh submitted before him the Special Reports u/s 57 of NDPS Act.
14.PW9 Insp. Kuldeep Singh has interalia deposed that on 21/11/2010, he was posted as SHO, PS Crime Branch Cell and on that day, HC Subhash produced before him, three cloth parcels marked as A, B and C, one FSL Form and a carbon copy of Seizure Memo. As per the deposition of this witness, he put the FIR number and his seal 'KSY' on all the three pullandas, the FSL form and the seizure memo and then got the said SC No. 03/11 Page 10 of 26 FIR No. 158/10 property deposited in the Malkhana by HC Jag Narain, MHC(M) and lodged DD no. 14 in daily diary of PS Crime Branch which has been Exhibited as Ex.PW9/A.
15.The aforementioned entire incriminating evidence was put to the accused and his statement was recorded u/s 313 Cr.PC. It is relevant to mention herein that the accused has also stepped into the witness box and has been examined as DW2. In his statement tendered u/s 313 Cr.PC and in his deposition given on oath, the accused has explained how he was picked up by the police officials and then beaten up by the police officials so mercilessly that his left ear got perforated. In support of his defence, accused has also summoned his medical records from the Central Jail no.4, Tihar Jail. DW1 Dr. Ravinder Kumar, Medical Incharge has produced the records and as per the same, on 23.11.2010 the accused was for the first time examined by the medical official in Tihar Jail and was finally referred to an ENT Specialist on 02.12.2010. According to the record produced by this witness, the ENT Specialist prescribed certain medicines to the accused and also observed that he had suffered from Traumatic Tympanic Perforation in his left ear.
16.After the evidence on behalf of the accused was concluded, Ld. APP for the State and the Ld. Defence counsel Sh. J.S. Kushwaha have advanced final arguments.
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17.Ld. APP for the State has submitted that the deposition of the prosecution witnesses is more or less unrebutted with respect to the search and seizure proceedings and her contention therefore is that the prosecution has been able to prove beyond reasonable doubt that the 10 gm cocaine had been recovered from the person of the accused.
18.Ld. Defence counsel Sh. Kushwaha on the other hand has submitted that in the present case there has been a gross violation of section 50 of the NDPS Act and that the accused was never informed that he has a legal right to get his search conducted in the presence of a Magistrate or a Gazetted Officer and that in fact the accused was beaten up mercilessly and was made to write that he does not wish to avail the aforementioned right. Ld. Counsel has pointed out that the evidence produced on record by the accused namely the medical records clearly show that the accused was beaten by the police officials. He has further pointed out that no efforts were made by the investigating officials to call a Magistrate or a Gazetted Officer at the spot and therefore in view of the judgment of the Hon'ble Supreme Court pronounced in the case titled as NCB Vs. Sukhdev Raj Sodhi reported in 2011(4) JCC 212, it cannot be at all held that the provisions of section 50 of the NDPS Act have been complied with. Ld. Counsel Sh. Kushwaha has also pointed out that there is a variation in colour between the substance that has been produced before the court as case property and SC No. 03/11 Page 12 of 26 FIR No. 158/10 the colour of the sample which were allegedly drawn out from the said substance. He has pointed out that the case property parcel A produced before this court was found to contain white colour powder and the parcels B and C, the samples drawn out from the sample A were found to contain yellow colour substance. He has also submitted that though the FSL expert PW6 Dr. Madhulika Sharma has tried to explain the variation in the colour of the two substances by stating that over a passage of time the colour of cocaine has been observed to change, his contention is that the said testimony of the expert is not supported by any study whatsoever. In support of his contentions that the accused is entitled to be acquitted, Ld. Defence counsel has relied upon the following judgments:
● Union of India Vs. Kasilmgam 2011(1) JCC 7.
● Shyam Babu Vs. State of UP 2012(2) JCC 43.
● James Eazy Franky Vs. DRI 2012(3) JCC 81.
● Prithvi Singh Vs. State of Haryana 2012(2) JCC 33. ● NCB Vs. Sukh Dev Raj Sodhi 2011(4) JCC 212.
● Union of India Vs. Farid 2011(4) JCC (Narcotics) 213.
19.In rebuttal, Ld. APP for the State has submitted that at no time did the accused inform the Ld. Court before whom he was produced for remand that he had been beaten up by the police officials and that therefore the defence taken by him is totally concocted and false. She has further submitted that the testimony of PW6 Dr. Madhulika Sharma is clear and SC No. 03/11 Page 13 of 26 FIR No. 158/10 categorical with respect to the variation in colour of the case property and the samples drawn and that therefore no benefit can accrue to the accused in this regard. As regards the notice u/s 50 NDPS Act, the contention of the Ld. APP is that the notice was duly served upon the accused and since he had refused to get himself searched before a Magistrate or a Gazetted Officer, the judgment of Hon'ble Supreme Court pronounced in Sukhdev Raj Sodhi's case (supra) is not applicable to the facts and circumstances of the present case. In support of her contentions, Ld. APP has relied upon the following judgments:
● Customs Vs. Konan Jean 2012(1) JCC (Narcotics) 12. ● Bilal Ahmed Vs. State 2011(1) JCC (Narcotics) 27. ● Fakir Ahmed Mohd. Sheikh Vs. State of Maharashtra 2012(2) JCC (Narcotics) 70.
20.I have carefully considered the submissions made by both the Ld. Counsels and have perused the entire record and have also gone through the judicial dicta referred to by the Ld. Counsels.
21.This court is of the considered opinion that the contention of Ld. Defence counsel with respect to the variation in colour between the case property and the samples drawn therefrom cannot be upheld, in view of the deposition of the expert witness PW6 Dr. Madhulika Sharma. The said witness has explained that cocaine being a hygroscopic substance, absorbs SC No. 03/11 Page 14 of 26 FIR No. 158/10 water over a passage of time and its colour can change from white to yellowish brown due to hydrolysis and due to the presence of adulterants i.e. combination of lactose with either Tetracaine or Lidocaine or cocaine. In support of the said deposition the expert witness has also placed on record the findings of a study conducted by the New York city Police Department, Crime Laboratory. This witness has also stated that though she herself has not conducted any experiment in this regard but that having functioned as a Chemical Examiner for the last 29 years and having examined more than 2000 samples, it is her observation that a sample of cocaine changes in colour due to moisturisation. In the considered opinion of this court since the defence has been unable to place any material before this court to contradict the said testimony of the expert witness, there is no reason for this court to discard or brush aside the aforementioned testimony of an expert Chemical Examiner.
22.However having negated the aforementioned contention of the defence, this court is of the considered opinion that the contentions made on behalf of the accused with respect to the non compliance of the provisions of section 50 of the NDPS Act cannot be brushed aside at all. A Constitutional Bench of the Hon'ble Supreme Court in its judgment pronounced in case titled as Vijay Sinh Chanduba Jadeja Vs. State of Gujarat reported in 2011(1) SCC 609 has categorically held that the SC No. 03/11 Page 15 of 26 FIR No. 158/10 requirement as laid down by section 50 NDPS Act is a mandatory requirement and it is imperative on the part of the Investigating Officer to apprise the accused intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. The Hon'ble Supreme Court has categorically held that this obligation is mandatory and requires a strict compliance and a failure to comply with the said provisions will render the recovery of the illicit article, suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. It has also been observed by the Hon'ble Supreme Court that whether or not the safeguards provided in section 50 NDPS Act have been duly observed would have to be determined by the court on the basis of the evidence led at the trial and a finding of that issue, one way or the other, would be absolutely relevant for recording an order of conviction or acquittal.
23.Keeping in view the aforementioned principles enunciated by the Hon'ble Supreme Court and taking into consideration that in the present case the contraband was allegedly recovered from the person of the accused, the question to be necessarily examined in the present case is whether or not the accused was informed that he has a legal right u/s 50 NDPS Act to get himself searched before a Magistrate or a Gazetted Officer and whether he was given an opportunity to exercise the said right. Though the Ld. APP SC No. 03/11 Page 16 of 26 FIR No. 158/10 may be right in pointing out that the Investigating Officer of this case PW11 SI Paramjeet Singh has deposed that the accused was informed of the said right and a notice u/s 50 NDPS Act was also duly served upon him and that the accused in his own handwriting wrote his refusal in exercising the said right, it cannot be ignored that the accused has also stepped into the witness box and has deposed on oath that he was beaten up by the said police official only and was forced to write his refusal on the said notice. Both in his statement u/s 313 Cr.PC and his deposition on oath, accused has inter alia stated that on the date of incident he had gone to India Gate alongwith two of his friends for a casual visit and that when at about 06.3007.00 PM, he was going to take an auto to go back to his house, 34 persons in plain clothes stopped him from getting into the auto and pulled him down. The accused has further deposed that the said persons then started searching him and when he asked them about their identity, they informed him that they are police officials and they have an information that he was trying to sell drugs. As per the statement of the accused, the said persons then comprehensively searched him and the auto but when nothing was recovered, they made him sit in a vehicle and handcuffed him and told him to take them to his residential premises. He has further deposed that on reaching his premises they spoke to his landlady and searched his premises but nothing was recovered from his house. The SC No. 03/11 Page 17 of 26 FIR No. 158/10 accused has alleged that thereafter the police officials put him in a vehicle and that they kept beating and slapping him in the vehicle and that due to the beatings received by him on his ear, he started having acute pain in his left year. He has also deposed that thereafter he was made to sign many documents and was also made to write his refusal on the section 50 NDPS Act notice. He has also deposed that though he was taken to a hospital for his medical examination, he was not allowed to speak to the doctor and similarly when he was produced before the Ld. Judge, he was not allowed to speak to the judge. As per the accused it was only when he was shifted to Tihar Jail and was allowed to see a doctor, did he get an opportunity to get his left ear treated.
24.No doubt the said deposition by the accused that he was beaten up by the police officials and forced to write his refusal on the said notice, may not be sufficient in each and every case to hold that the accused was not apprised of the said right and was not given an opportunity to call for a Magistrate or a Gazetted Officer, however in view of the evidence brought on record by the accused in the present case, it will have to be held that it is much more probable that it is the accused who is speaking the truth. The medical record summoned by the accused from the Central Jail No.4, Tihar Jail proves on record that the accused after being remanded to judicial custody had on 24.11.2010 complained of severe pain in his left ear and SC No. 03/11 Page 18 of 26 FIR No. 158/10 that an ENT Specialist had opined that the accused was suffering from Traumatic Tympanic Perforation in his left ear. The medical records proved on record also show that the accused in order to explain the history of the pain in his left ear, had informed the concerned doctors that he had been beaten up by the police. DW1, the medical officer from the Central Jail has also deposed before this court that the said injury can be caused by beating of a person on his ear by another. The said medical record does supports the assertion of the accused that he was beaten up by the police officials and was forced to write his refusal on the section 50 NDPS Act notice. It is interesting to note that in the crossexamination of DW1 Dr. Rabindra Kumar, all that has been suggested to him on behalf of the State is that the accused had given the history of beatings by police outside the jail and had not stated that he was beaten up by the police team during police custody. This court fails to understand as to how such a suggestion would make a difference to the assertions of the prosecution that no injuries had been caused to the accused by the investigating team officials. In Prithvi Singh's case (supra, a judgment pronounced by Hon'ble Punjab and Haryana High Court and relied upon by the Ld. Defence counsel), it has been held that if an accused sustains an injury at the scene of occurrence then it is the duty of the prosecution to explain as to how the injury was sustained by the accused and if the prosecution fails to explain SC No. 03/11 Page 19 of 26 FIR No. 158/10 the same, the court will have to give much credence to the defence taken by the accused that he was beaten up by the police and falsely implicated in the case.
25.The contention of the Ld. APP that the fact that the accused did not inform the court of any injury/beating received by him from the police officials, when he was produced before the court for judicial remand and the fact that no injuries were found on his body by the doctor who had medically examined him before his production in the court show that the defence of the accused is an afterthought, is not acceptable to the court, for an internal injury in the ear is not an injury which would have been apparent to the doctor who assertedly examined the accused before his production in the court. Further, the accused has explained in his deposition that the police officials did not allow him to speak to the doctor and tell him about the beatings given to him by the police officials. This court cannot ignore the ground realities, one of which is that police officials will not easily allow an accused to speak to the doctor, at the time of his medical examination conducted immediately after his arrest. It also cannot be ignored that in the present case, the accused was produced before a Duty Magistrate on his first remand and thereafter on 26.11.2010 he did write to the Ld. Predecessor of this court, a letter Ex.DW2/A informing therein that he had been forced to copy a statement statement written by the IO. In the SC No. 03/11 Page 20 of 26 FIR No. 158/10 considered opinion of this court, in view of the evidence on record, it cannot be held that the allegation of the accused that he was beaten up is an afterthought and it will have to be held that the prosecution in the present case has failed to explain the ear injury sustained by the accused on the day of his arrest and therefore his deposition that he was beaten and forced to write his refusal on the section 50 NDPS Act notice will have to be given much credence and will have to be believed. This court is also of the considered opinion that the deposition of the accused with respect to the injury received by him has a ring of truth about it and has inspired much confidence in this court. Merely because a person is an accused does not necessarily have to lead to a conclusion that he is speaking falsely to save himself. As discussed hereinabove, the deposition of the accused with respect to the injury received by him is supported by the medical evidence on record. The judgment of Hon'ble Delhi High Court in Konan Jean's case relied upon by Ld. APP, in the considered opinion of this court, is not applicable to the facts and circumstances of the present case, for in the said case, the medical officer of the Central Jail had not reported that the accused had been observed to have an injury on his body, which is the situation in the present case.
26.The Apex Court in the case of Noor Aga vs. State of Punjab and Anrs. 2008 (3) JCC (Narcotics) 135 has held that in cases arising out of the SC No. 03/11 Page 21 of 26 FIR No. 158/10 provisions of NDPS Act the Legislature in its wisdom has provided a very stringent punishment. Therefore the courts have to be extremely cautious and careful in adjudicating the case pertaining to NDPS Act. There has to be a perfect balance and fine tuning between the interest of society and protection of the statutory safeguards available to the accused. It has also been observed by the Hon'ble Supreme Court in the said case that though the standard of proof required to prove the guilt of the accused on the prosecution is 'beyond all reasonable doubt' but the standard of proving required for the accused to prove his or her innocence is 'preponderance of probability'. In State of Punjab Vs. Baldev Singh (1999) 3 SCC 977 it was held that "It must be borne in mind that severe the punishment, greater has to be taken care to see that the safeguards provided in a statute are scrupulously followed". In the present case, the only inference that can be drawn in view of the circumstances and the evidence discussed herein above is that the prosecution has not been able to prove beyond reasonable doubt that the investigating officials had complied with the provisions of section 50 of the NDPS Act and the accused on the other hand has been able to show his assertion that he was beaten up and forced to give up his right u/s 50 of the NDPS Act as probable.
27.In view of the discussion hereinabove, this court is of the considered opinion that the recovery of contraband from the accused, if any, stands SC No. 03/11 Page 22 of 26 FIR No. 158/10 vitiated due to the fact that accused was not given an opportunity to exercise his right u/s 50 NDPS Act and that therefore the accused will have to be acquitted for the offence punishable u/s 21 of the NDPS Act.
28.However, as regards the offence punishable u/s 14 of the Foreigners Act, Ld. Defence counsel has been unable to point out any infirmity in the evidence produced by the prosecution. In fact, the accused himself in his statement recorded u/s 313 Cr.PC has clearly admitted that his visa had expired in the year 2008 and therefore it is clear that he did not have any valid document to stay in India on the date of his apprehension. Accordingly, accused stands convicted of the charges u/s 14 Foreigners Act. To come up for arguments on sentence in this regard on 12.12.2012. Let the SHO of PS Crime Branch be also informed to be present at the said time.
Announced in open Court on this 10th day of December, 2012 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi SC No. 03/11 Page 23 of 26 FIR No. 158/10 FIR No. 158/10 PS Crime Branch u/s 21(b) NDPS Act & 14 Foreigners Act State Vs. David Dawood 12.12.2012 Present: Ms. Sushma, Ld. APP for the State.
Accused produced from JC.
Ld. Defence Counsel Sh. Kushwaha.
I have heard the Ld. APP for the State and the Ld.Defence Counsel. Ld. APP for the State has submitted that the maximum punishment for the offence punishable u/s 14 of the Foreigners Act is upto 5 years and that the convict having been found staying in India without any valid documents should be sentenced to maximum imprisonment. She further submits that heavy fine be also imposed upon him.
Ld. Defence Counsel, on the other hand has submitted that convict was only 24 years of age due to the war like situation in Afghanistan when he had come to India from Afghanistan on valid passport. He submits that unfortunately, the brother of the convict expired during his stay in India and the convict also misplaced his passport. He further submits that convict has been earning his livelihood by helping people who come from Afghanistan to India for medical treatment and is staying presently with his cousin sister in Delhi and earns only a meagre amount. He has also submitted that apart from this case, the convict is not SC No. 03/11 Page 24 of 26 FIR No. 158/10 involved in any other case and he has pointed that even this Court has acquitted him for the offence punishable u/s 21 of NDPS Act and he has prayed that a lenient view be taken against him and he be sentenced to minimum imprisonment i.e. period already undergone by him and be imposed minimum fine.
I have given careful consideration to the submissions made by both the Ld. counsels. Keeping in view that this accused has not been found guilty of having committed any offence under the NDPS Act and also taking into consideration his age, his antecedents and the conditions that forced him to leave Afghanistan, this court is of the considered opinion that the interest of justice would be met if the accused is sentenced to imprisonment for the period already undergone by him i.e. w.e.f. 22/9/2009 to 7/1/2010 and a fine of Rs.5,000/ is imposed upon him. Fine has been paid. The accused is now therefore handed over to the officials from the PS Crime Branch, Narcotic Cell, Shakarpur who are directed to hand him over further to FRRO, for his immediate deportation to Afghanistan.
At this stage on behalf of one Ms. Khalida an application has been filed stating therein that she had stood surety for the accused during trial and had submitted a FDR of Rs. 10,000/ along with the surety bond. Keeping in view the final order passed by this Court the said surety stands discharged and it is directed that the FDR deposited by her be returned to her. Ahlmad is directed to retain a photocopy thereof on the record.
This file be presently consigned to R.R. and the same will be revived as and when the accused persons who are proclaimed offenders are arrested in this SC No. 03/11 Page 25 of 26 FIR No. 158/10 case. Copy of this order be given dasti to the officials of PS Crime Branch, Narcotic Cell, Shakarpur. Further a copy of judgment and this order be also supplied free of cost to the accused.
(Anu Grover Baliga) Spl. Judge, NDPS/N. Delhi 12.12.2012 SC No. 03/11 Page 26 of 26