Delhi District Court
Ncb vs . Chinedu David Offordum on 22 February, 2014
NCB Vs. Chinedu David Offordum
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS: PATIALA HOUSE COURTS: NEW DELHI
SC No. 06/10
ID No. 02403R0132922010
Narcotics Control Bureau
Through: Shri Sanjay Rawat,
Intelligence Officer,
Narcotics Control Bureau,New Delhi
Versus
Chinedu David Offordum
S/o Late Sh. Paul Offordum
R/o F262, 3rd floor, Gandhi Vihar,
New Delhi
Originally: R/o 33, Park Road,
Ebutermete Menand, Lagos,
Nigeria
Date of Institution : 21.04.2010
Judgment reserved on : 17.02.2014
Date of pronouncement : 22.02.2014
Fina order : Acquitted
JUDGMENT
1. The Narcotics Control Bureau (herein after referred to as NCB) through its Intelligence officer (IO) Sh. Sanjay Rawat has filed the present complaint against the aforementioned accused u/s 21 and 23 of the SC No. 06/10 Page No. 1 of 31 NCB Vs. Chinedu David Offordum Narcotic Drugs and Psychotropic Substances Act (herein after referred to as NDPS Act).
2. Briefly stated the allegations against the accused as asserted in the complaint are as follows:
(a) On 22.02.2010, a secret information was received in the NCB office that one Nigerian namely Chinedu David Offordum who was indulging in illicit business of heroin would be coming to Overseas Logistics Pvt. Ltd, LG 9, Somdutt Chambers 1, Bhikaji Cama Place, New Delhi to book a parcel and the said parcel is suspected to contain huge quantity of narcotics.
(b) The information was reduced into writing and was put up before the Superintendent, NCB on whose direction, a raiding team consisting of IO Nirbhay Singh, IO Pankaj Dwivedi, Sepoy Rajendra Ram and Driver Malkeet Singh was constituted by IO Sanjay Rawat. The said team proceeded from NCB office in an official vehicle and reached the office of Overseas Logistics at about 1930 hours. On the request of the IO, Sh. Ashok Gupta and Sh. Shyam Sharma, officials of the Overseas Logistics agreed to join the raiding party and thereafter, all the members of the raiding team alongwith the said two independent witnesses started waiting for the suspect.
(c) At about 1940 hours, an African man carrying two parcels in his SC No. 06/10 Page No. 2 of 31 NCB Vs. Chinedu David Offordum right hand and with similar identity as was mentioned in the secret information, reached the office of Overseas Logistics and approached the counter and at this point of time, he was intercepted by the raiding team.
The IO introduced himself and the members of the raiding team to the suspect and on enquiry, the said person revealed his name as Chinedu David Offordum. He was then informed about the secret information and a Notice U/s 50 of NDPS Act was given to him. He was also made to understand that he has a legal right to be searched before a Magistrate or a Gazetted Officer. However, the accused refused to exercise the said right and informed that any NCB officer could conduct his search.
(d) Thereafter, the personal search of the accused as well as that of the two parcels being held by the accused, was conducted. The said two parcels were packed in cardboard cartons and were addressed to California, USA and Johannesburg, South Africa respectively. Both the parcels were cut open and each of them were found to contain a black colour radiator exhaust fan and on minutely checking, the walls of both the cardboard cartons were found to conceal within themselves, off white coloured powder in a polythene, wrapped with brown tape. The said powder, on separately testing with Field Testing Kit gave positive result for heroin. The total weight of the recovered heroin was found to be 145 grams and 335 grams respectively. Two samples of 5 grams each were SC No. 06/10 Page No. 3 of 31 NCB Vs. Chinedu David Offordum drawn out from the heroin recovered from each of the cartons and were put separately in small polythene pouches and further kept in white colour paper envelopes and the same were given marks B1 and B2 & A1 and A2 respectively and the remaining substance was converted into a parcel with the help of a markin cloth and was given mark B and A respectively. All the packing materials pertaining to the two parcels were separately converted into two cloth pullandas and were given mark C and D.
(e) All the parcels and the samples were duly sealed and paper slips having dated signature of the IO, both public witnesses and that of accused were pasted on them. A test memo in triplicate and the panchnama were also prepared at the spot. Certain documents were also recovered from the accused and the same were seized by the IO.
(f) Summons were then issued to the accused and the independent witnesses u/s 67 NDPS Act and in pursuance of the same they tendered their voluntary statements in the office of the NCB.
(g) The case property along with samples and test memo was deposited with the Malkhana Incharge. Report under Section 57 NDPS Act with respect to the search and seizure was submitted by IO Sanjay Rawat to the Superintendent Sh. Ajay Kumar. Thereafter the accused was arrested and his personal search was conducted and a report u/s 57 SC No. 06/10 Page No. 4 of 31 NCB Vs. Chinedu David Offordum NDPS Act regarding his arrest was submitted by IO Nirbhay Singh to Superintendent Sh. Ajay Kumar.
(h) During the course of investigation, statements of various witnesses were recorded and the samples along with test memos were sent to the CRCL, New Delhi for testing. After receiving the report of the Chemical Examiner that the samples gave positive test for diacetylmorphine, the present complaint was filed.
3. On the basis of the material on record vide order dated 10.05.2010, charge was framed against the accused that he was found in possession of and had attempted to export heroin through two parcels which were seized by the NCB on 22.02.2010 and hence had committed offences punishable under sections 21(c), 23(c) r/w section 28 of the NDPS Act to which the accused pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case has examined 11 witnesses.
5. PW6 Sanjay Rawat, PW5 Nirbhay Singh, PW11 Pankaj Kumar Dwivedi being the members of raiding team, have more or less deposed on similar lines and have reiterated the allegations made in the complaint. The secret information deposed to have been received by PW6 has been exhibited as Ex.PW1/A. Notice u/s 50 NDPS Act given to the accused and panchnama prepared have been exhibited as Ex.PW6/A and PW6/B respectively. The summons given to accused u/s 67 NDPS SC No. 06/10 Page No. 5 of 31 NCB Vs. Chinedu David Offordum Act have been exhibited as Ex.PW6/E and the statements tendered by the accused u/s 67 NDPS Act before PW5 Nirbhay Singh on 22/2/2010 and before PW6 Sanjay Rawat, IO on 23/2/2010 have been exhibited as Ex.PW5/A and Ex.PW6/I respectively. House search of the accused has been exhibited as Ex.PW6/J. Arrest memo and arrest report submitted to the Superintendent have been duly exhibited. Summons issued by the IOs to the panch witnesses and who tendered their statements u/s 67 of NDPS Act have also been duly exhibited as per the deposition of these witnesses.
6. PW1 Sh. Ajay Kumar, Superintendent has deposed that on 22/2/2010, he was posted as Superintendent NCB and on the said day, he had been shown a secret information Ex.PW1/A and he had issued a departmental seal of Narcotics Control Bureau DZU 5 to IO Sanjay Rawat at about 1830 hours and that entry to this effect was made by him in the seal movement register. According to this witness, the said seal was returned to him by IO Sanjay Rawat at 2240 hours on the same day and that a corresponding entry with respect to the same was again made by him in the seal movement register. The relevant page of the seal movement register containing the said entries has been exhibited as Ex.PW1/B. This witness has further deposed that on 24/2/2010, he had forwarded the samples and test memo to CRCL and that he had sent also a letter to SC No. 06/10 Page No. 6 of 31 NCB Vs. Chinedu David Offordum Ministry of External Affairs regarding arrest of accused Chinedu David Offordum. Same has been exhibited as Ex.PW1/E. The forwarding letter and test memo have also been duly proved by this witness as Ex.PW1/C and Ex.PW1/D.
7. PW2 Arun Kumar Maurya, Assistant Chemical Examiner and PW3 Sh. R.P. Singh, Chemical Examiner have inter alia deposed that the samples in question deposited with the CRCL, were examined by PW2 Sh. Arun Kumar Maurya, Assistant Chemical Examiner under the supervision of PW3 Sh. R.P. Singh and the said witnesses have proved the chemical analysis report prepared by them in this regard as Ex.PW2/B. As per their depositions, the samples in question had tested positive for diacetylmorphine having percentage 40.9% in sample A1 and 55.6% in sample B1.
8. PW4 Sh. Akhilesh Kumar Mishra, IO has inter alia deposed that on 22/02/2010 he was working as Intelligence Officer Malkhana Incharge in NCB, DZU, R.K. Puram and that in the present case, the entire case property, test memo in triplicate were deposited with him in the Malkhana and he had made an entry to this effect in the Malkhana register. He has also deposed that on 24/02/2010 samples mark A1 and mark B1 were sent to CRCL and that the remnant sample along with test report were deposited back with him in the Malkhana on 23/3/2010. SC No. 06/10 Page No. 7 of 31 NCB Vs. Chinedu David Offordum According to this witness he had made relevant entries in the register. The relevant page of the malkhana register containing the said entries has been exhibited as Ex.PW4/A.
9. PW7 Sh. Babu Lal has merely deposed that on 24/2/2010 on the directions of Sh. Ajay Kumar, he had gone to CRCL New Delhi to deposit the sample mark A1 and B1 along with duplicate test memo forms and forwarding letter, Ex.PW1/C and had deposited the same against receipt Ex.PW2/A issued by CRCL.
10.PW8 Sh. Ashok Gupta and PW10 Sh. Shyam Sharma, the persons present in the courier office have deposed about the recovery proceedings, witnessed by them and have identified their signatures on the Section 50 notice, on the panchnama and on the paper slips which had been affixed on the samples and the case property.
11. PW9 Malkeet Singh, Driver has merely deposed that on 22/02/2010 on the directions of Sanjay Rawat, IO, he had left the office along with the raiding team and had reached at Overseas Logistics, LG9, Somdutt Chamber, Bhikaji Cama Place and had dropped the raiding team at that place and had thereafter remained with the vehicle. This witness has further deposed that after completing the proceedings at about 22:15 hours, they had left the spot along with accused and seized material and had reached NCB office at about 2235 hours.
SC No. 06/10 Page No. 8 of 31 NCB Vs. Chinedu David Offordum
12.The entire incriminating evidence was put to the accused and the statement of the accused was recorded u/s 313 Cr.PC. In the said statement the accused has inter alia stated that he has been falsely implicated in this case only because he had lost his passport and that he could not show his passport to the NCB officials on being asked. He has also stated in the said statement that he had not gone to book any parcel in any courier office on the date of his apprehension. The accused did try to point out to this court himself that if he had actually gone to book the parcel, he would not be carrying only Rs.104/ with him for this amount is the only amount shown to have been recovered from the person of the accused. The accused has also stepped into the witness box and has reiterated the aforementioned facts, on oath.
13.On behalf of the NCB, SPP Sh. Narender Singh was unable to advance final arguments as he suffered a paralytic attack during trial of this case. However on his behalf, written submissions have been filed by his proxy counsel Ms. Sunita Bhardwaj who has also advanced final arguments. As regards the accused, Ld. Defence counsel Sh. Rahul Tyagi has filed written submissions and has also advanced final arguments.
14. On behalf of the prosecution, it has been submitted that the documentary and the oral evidence produced on record sufficiently prove that the accused was apprehended and found in possession of contraband when SC No. 06/10 Page No. 9 of 31 NCB Vs. Chinedu David Offordum he had come to book the parcels containing the contraband at the office of the courier company in question. Ld. Counsel Ms. Bharadwaj has further pointed out that in the statement tendered by the accused u/s 67 NDPS Act, he has clearly admitted his complicity in the present case and according to her, the said statement can be made the sole basis for convicting the accused in the present case. She has also submitted that though the accused in his statement tendered u/s 313 Cr.PC and u/s 315 Cr.PC has deposed that he was picked up from the ISBT, in the cross examination done on his behalf of PW11, it has been suggested to the said witness that the accused was picked up from his home. It is thus the submission that the said discrepancy in the defence of the accused shows that the statements tendered by him u/s 313 Cr.PC and 315 Cr.PC are a mere afterthoughts and therefore should not be given any credence whatsoever.
15.On behalf of the defence, on the other hand, it has been vehemently contended that present is a case where the evidence on record makes it clear that the accused has been falsely implicated. Ld. Counsel Sh. Tyagi has submitted that present in an unfortunate case where initially the accused did not even have the means to appoint a counsel of his choice and that the Ld. Amicus Curaie who was initially appointed by this court and the Ld. Counsels who were later on appointed by the accused SC No. 06/10 Page No. 10 of 31 NCB Vs. Chinedu David Offordum himself were so ineffective in the conduct of the trial, that when he took this case on pro bono basis, he was constrained to file an application u/s 311 Cr.PC to recall the material prosecution witnesses for a re cross examination. He has pointed out that this court vide its order dated 03.06.2013 took note of the submissions made by him and allowed the said application after a detailed discussion of the material on record. His submission therefore is that the crossexamination done by the earlier counsels should not be given undue importance. Referring to the cross examination conducted by him, it has been pointed out that the main investigating official in this case has admitted that he had no information that the accused would be coming to the courier office on 22.10.2010 itself and the contention of Ld. Defence counsel Sh. Tyagi is that in such circumstances it has not at all been explained by the prosecution as to why was surveillance put at the courier office on 22.02.2010 itself. Ld. Defence counsel has pointed out to various contradictions between the depositions of the NCB officials and the panch witnesses and has contended that the said discrepancies/ contradictions go to the root of the case and demolish the case of the prosecution (the said contradictions would be discussed in detail later on in the judgment). Ld. Counsel has also contended that the statement purportedly tendered by the accused u/s 67 NDPS Act cannot at all be read in evidence by this court for the SC No. 06/10 Page No. 11 of 31 NCB Vs. Chinedu David Offordum evidence on record makes it clear that the same was not his voluntary statement and that he was forced to sign the said statement at the instance of the NCB officials. It has also been pointed out that the said statement was retracted by the accused by submitting an application in his own handwriting before the Ld. Judge on the date that he was first produced from Tihar Jail before the Ld. Court. In support of his contentions, Ld. Defence counsel has relied upon the following judgments:
● Union of India Vs. Bal Mukund 2009(2) Crimes 171.
● Noor Aga Vs. State of Punjab & Anr. 2008 (3) JCC (Narcotics)
135.
● State of Rajasthan Vs. Rajaram AIR 2003 SC 3601.
● Ramanlal Bhogial Shah & Anr. Vs. D.K. Guha & Ors. AIR 1973 SC 1196.
16.In rebuttal, Ms. Sunita Bharadwaj has submitted that the discrepancies in the depositions of the prosecution witnesses pointed out by the Ld. Defence counsel are minor and are not at all fatal to the case of the prosecution. She has further submitted that the accused was produced before the Ld. Court on 24.02.2010 for the first time and that on this date he had never made a complaint to the Ld. Court that he was forced to give the statement u/s 67 NDPS Act and her contention is that the retraction application filed by the accused on the date that he was produced for judicial custody on 10.03.2010 is an afterthought and is SC No. 06/10 Page No. 12 of 31 NCB Vs. Chinedu David Offordum based on legal advice. In support of her contentions, Ms. Sunita Bharadwaj has relied upon the following judgments:
● State of Rajasthan Vs. Kalki & Anr. AIR 1981 SC 1390.
● Bhimrao Anna Ingawale & Ors. Vs. State of Maharashtra AIR 1980 SC 1322.
● State of Punjab Vs. Wassan Singh & Ors. AIR 1981 SC 697.
17. I have carefully considered the submissions made by both the Ld. Counsels. Though for the sake of brevity, the detailed order passed by this court on 03.06.2013 is not being repeated herein, suffice is to state that in view of the said order, this court does agree with the Ld. Defence counsel Sh. Tyagi that the mere fact that the earlier counsel of the accused had given a suggestion to PW11 that the accused had been forcibly picked up from his house, is no ground to disbelieve the entire statement given by the accused u/s 313 Cr.PC and 315 Cr.PC. As narrated hereinabove, in the said two statements the accused had inter alia stated that he had mere Rs.104/ in his possession when he was apprehended by the NCB officials and if he actually had come to book parcels of considerable weight at the courier office where he is shown to have been allegedly apprehended by the investigating officials at the time of booking of the parcels, then he would not have been carrying only the said amount, more so when according to the version of the prosecution SC No. 06/10 Page No. 13 of 31 NCB Vs. Chinedu David Offordum he had even earlier booked parcels for being consigned to international destinations and thus was aware of the courier charges. The fact that the accused had only Rs.104/ in his possession when he was apprehended by the NCB officials stands proved by the document of the prosecution itself, namely the jamatalashi memo Ex.PW5/C which clearly records the said fact. In the considered opinion of this court it does therefore become necessary to bear in mind the aforementioned defence put forward by the accused while examining the evidence put forward by the prosecution with respect to the manner of apprehension of the accused and if one does so, it will have to be held that looking into the following contradictions in the deposition of the witnesses, the case of the prosecution is doubtful and that the prosecution has failed to prove that the contraband was recovered from the accused in the manner alleged by it:
(a) Admittedly the secret information Ex.PW1/A purportedly received in this case has no mention of the expected date and time of the arrival of the accused at the office of Overseas Logistics to book parcels containing the contraband and yet the raid was conducted at about 07.30 PM on 22.02.2010, the date of receiving the secret information. The main investigating officer, Sanjay Rawat has completely failed to explain SC No. 06/10 Page No. 14 of 31 NCB Vs. Chinedu David Offordum as to why was the surveillance put at the courier office on 22.02.2010 itself when the secret information Ex.PW1/A purportedly received did not at all reveal as to on which date and time would the accused come to the office of Overseas Logistics Courier office to book parcels. On being specifically crossexamined in this regard, he has not given any reason whatsoever and has simply stated that despite not knowing the day and the time of expected arrival of the accused at the courier office, they decided to go to the courier office on 22.10.2010 itself i.e. on the date of the receiving of the secret information. He has further stated in his crossexamination that he did not even find out at what time the courier office remains open nor did he think it necessary to inform the courier office of the secret information so that the suspect could be stopped if he reached before the NCB team reached the office. In other words, as per the deposition of the main investigating officer it was simply a matter of chance that the NCB put a surveillance at the courier office on 22.10.2010 at 07.30 PM and the accused walked in at 07.40 PM. In view of such kind of deposition, the defence may not be completely wrong in contending that either the NCB officials did not reduce the actual secret information containing all the particulars, thereof or it did not have any such information at all. The incomplete secret information being relied upon by the prosecution does indeed raise a reasonable doubt with respect to its authenticity and about SC No. 06/10 Page No. 15 of 31 NCB Vs. Chinedu David Offordum the compliance of section 42 NDPS Act.
(b) Further, the place where the accused was assertedly intercepted and apprehended is also not clear from the evidence on record. Though according to the averments made in the complaint, the accused was intercepted only after he had reached the booking counter of the courier office, none of the prosecution witnesses apart from the main investigating officer have stated so in their evidence. Even this witness on being cross examined has changed his version in this regard. According to the examination in chief of the main investigating officer, PW6 Sanjay Rawat, after the raiding team reached the courier office, he introduced himself to Ashok Gupta and Shyam Sharma, who were present in the said office, apprised them about the secret information and requested them to join the proceedings. As per his deposition, at about 1940 hours when he alongwith Nirbhay Singh, Pankaj Dwivedi and the said two panch witnesses were waiting in the courier office, they noticed one African approaching towards the office and that as soon as the said person reached near the booking counter, the raiding team intercepted him. However, in his cross examination this witness has stated that the accused was intercepted just as he was about to enter the gate/door of the courier office and had put one step inside the courier office. I other words, he changed his stance in the crossexamination and admitted that the accused was not apprehended at SC No. 06/10 Page No. 16 of 31 NCB Vs. Chinedu David Offordum the booking counter. Further on being asked where were the panch witnesses at the said time and whether they had seen the accused entering the office, this witness has deposed that he had asked the two independent witnesses, i.e. Ashok Gupta and Shyam Sharma to sit behind the counter, which was towards the right corner of the courier office and very close to its gate and that the accused was seen coming into the courier office by all of them including the independent witnesses. The said deposition of the main investigating officer however is not at all supported by the two panch witnesses. PW8 Ashok Gupta in his crossexamination has deposed that the accused was apprehended from the gallery outside the courier office, while he was 56 feet away from the door of the courier office. The other panch witness PW10 Shyam Sharma, has on the other hand deposed that he had seen the accused for the first time when the NCB officials had brought him in the cabin of PW8 Ashok Gupta where both he and Ashok were sitting.
Further both these panch witnesses have categorically deposed that they were never told by the IO to sit behind the counter of the courier office. PW11 Pankaj Kumar Dwivedi when questioned in this regard has deposed that he does not remember whether the accused before his apprehension had entered the courier office or was outside the courier office. He also failed to recall where had the NCB officials met the panch witnesses whether inside the courier office or outside near a fountain. He was even SC No. 06/10 Page No. 17 of 31 NCB Vs. Chinedu David Offordum unable to tell as to where were the NCB officials and the panch witnesses standing when they saw the accused for the first time. He was also unable to tell whether the accused was carrying both the parcels in one hand or whether he was carrying the two parcels separately in both the hands. It is indeed unacceptable that this witness though being of the rank of a Superintendent, NCB (on the date of his examination) appears to have forgotten all the relevant facts conveniently. Thus out of the five persons who could have deposed from where was the accused actually apprehended, one of them does not remember and two of them contradict the deposition of the fourth.
(c) Apart from the aforementioned discrepancy in the version put forward by the prosecution, the most material discrepancy which has come to the fore in the deposition of the prosecution witnesses is with respect to what was being actually carried by the accused when he was apprehended and what was recovered from therein. Though according to the main investigating officer PW6 Sanjay Rawat, the accused was carrying one polythene bag in his right hand, according to the two other members of the raiding team PW5 and PW11 the accused was carrying two packets/parcels in his right hand. Contrary to the depositions of the NCB officials, PW10, Shyam Sharma the panch witness has deposed that the accused was carrying one leather bag when he was brought by the NCB officials to the SC No. 06/10 Page No. 18 of 31 NCB Vs. Chinedu David Offordum cabin of PW8 Ashok Gupta. Further this witness has categorically deposed in his crossexamination that one metal pulley was recovered from the cardboard box, whose search the NCB officials had conducted before him, though admittedly as per the case of the prosecution, two cardboard boxes and not one were recovered from the accused and further one exhaust fan (and not a metal pulley) was recovered from each of the said boxes in question. This court does not at all agree with the proxy SPP that the panch witness PW10 may not have correctly recalled all facts for he was cross examined after a huge gap of the apprehension of the accused. This witness was categorically put by the Ld. Defence counsel whether there was any fan of whatsoever nature recovered from the box searched by the NCB officials and he categorically denied that there was any fan recovered from the said box. It is also relevant to mention herein that this witness on being crossexamined for the second time on 09.12.2011 (some of the witnesses had been recalled for further crossexamination in pursuance of an application filed by the accused u/s 311 Cr.PC which was allowed by this court vide a detailed order dated 03.06.2013) had stated before this court that on the first occasion that he had come before the court to give his deposition, the IO of this case had met him and told him the facts that he was supposed to depose in court and that he was also shown the copy of his statement (tendered u/s 67 NDPS Act). On a court's query, he had further SC No. 06/10 Page No. 19 of 31 NCB Vs. Chinedu David Offordum stated that though he does not recall what all was told to him on the said first occasion, he remembers what had been witnessed by him. He had then gone on to depose that the accused was brought by the NCB officials in the cabin of PW8 Ashok Gupta and that he had not seen the accused bringing any packets to the courier office. According to him the accused was carrying a leather bag when he was brought in the cabin of Ashok Gupta and that he had seen one cardboard box lying on the booking counter and that he had not seen the accused bringing the said cardboard box to the booking counter. In other words, as per his deposition, he had not even seen the accused being in possession of the box from which the contraband was assertedly recovered.
18. This court is unable to agree with the contention of Ld. Counsel Ms. Bharadwaj that this court must only consider the deposition made by the panch witnesses in their examination in chief and that much importance should not be given to the discrepant statements made by them in their crossexamination, for it is amply clear that what these witnesses had deposed in their examination in chief, was as per the instructions of the investigating agency and under its influence. As narrated hereinabove, the deposition of PW10 itself makes it clear that he was tutored by the IO to depose the same facts in his examination in chief before this court as were given by him in his earlier statement to the NCB. If indeed the said witness SC No. 06/10 Page No. 20 of 31 NCB Vs. Chinedu David Offordum was independent from the influence of the NCB, there was no occasion for the IO to have tutored him nor was it for him to have deposed as per the tutoring of the IO. The deposition given by PW8 Ashok Gupta that apart from the present case, in 34 other cases also where contraband had been recovered from parcels booked at his office, he had dealt with the NCB officials shows that he is not a witness who is unfamiliar with the cases being dealt with by the NCB and therefore it is not possible to accept the contention of Ld. Counsel, Ms. Bharadwaj that he would have not therefore understood the importance of what he was deposing in the court. It is also difficult to accept the submission of Ld. Proxy SPP that due to lapse of time, this witness may have forgotten the facts of this case and had gone on to wrongly narrate in his crossexamination about him being present near a fountain, 1520 ft away from the courier office, when the NCB officials approached him and about the accused having been apprehended in a gallery outside the courier office, for it is a matter of record that when this witness had been recalled for crossexamination, after a gap of time, on his request he was allowed to refresh his memory by going through his examination in chief. In its judgment delivered in the case titled as Kashmir Singh Vs. NCB 2006(3) JCC (Narcotics) 139, the Hon'ble Delhi High Court has held that where NCB is unable to show that the panch witnesses examined by it were independent of its influence, the SC No. 06/10 Page No. 21 of 31 NCB Vs. Chinedu David Offordum recovery itself becomes suspect.
19. In the considered opinion of this court, the discrepancies, discussed in the preceding paragraphs, that have come to the fore in the deposition of the prosecution witnesses may be termed as minor if considered in isolation, however if the same are considered conjunctively and cumulatively, the irresistible inference is that the apprehension of the accused did not happen in the manner put forward by the prosecution and that is why discrepancies have arisen in the depositions of the officials witnesses and the public witnesses not only with respect to the place where the accused was actually apprehended but also with respect to what he was actually carrying. In Sunil W. Sambhudayal Gupta Vs. State (2010), 13 SCC 657 it has been laid down that the omissions in the depositions of the prosecution witnesses which amount to contradiction in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of such witnesses liable to the discredited. It will also be borne in mind that in the present case, what this court finds strange is as to why the Investigating Officials chose to apprehend the accused before he had booked the parcels. As per the alleged secret information received by the NCB, the accused was to book a parcel containing contraband in the office of Overseas Courier and therefore the normal course of conduct would have been to apprehend and intercept the accused SC No. 06/10 Page No. 22 of 31 NCB Vs. Chinedu David Offordum once he had made a booking of the parcel containing contraband, for then the investigating agency would also have documentary evidence in the form of airway bill, etc to prove that it was the accused who had come to book the parcel. Despite a query been put in this regard during final arguments to Ld. Counsel Ms. Sunita Bhardwaj, there is no explanation forthcoming from the prosecution as to why the investigating agency chose to apprehend the accused before he booked the parcel. No doubt, the mere fact that the investigating agency chose to follow a different procedure than that followed by it in other cases of courier parcel recoveries is not sufficient to doubt their conduct but in the present case, looking into the contradictions in the depositions of the prosecution witnesses, discussed in the preceding paragraphs, it is clear that the prosecution has not chosen to come before this court with the true narration of facts. This court cannot at all ignore that the accused was found only in possession of Rs. 104/ on the date of his apprehension which does not at all conform with the version of the prosecution that he had come to the courier office to book a parcel on the said date. The submission of Ld. Counsel Ms. Bharadwaj that perhaps the accused may have come to confirm the price of booking the parcel runs counter to the argument of the prosecution that the accused had even earlier booked such parcels (and as a corollary would have been aware of the courier charges) and is also not borne out from the material on record SC No. 06/10 Page No. 23 of 31 NCB Vs. Chinedu David Offordum including the section 67 statement purportedly tendered by the accused. The fact that the accused was found only in possession of Rs.104/ on the date of his apprehension alongwith the discrepancies that have come to the fore in the deposition of the prosecution witnesses do create a grave doubt on the version put forward with respect to the manner of apprehension of the accused and the recovery of contraband from his possession, more so when even the name of the consignor on the parcels is not that of the accused. In a case titled as Gurcharan Singh Vs. State 1993(2) Crimes 229, it has been clearly held by the Hon'ble High Court that a condition precedent for the prosecution to prove the guilt of the accused is to first prove that its case is plausible and probable and is a true narration of facts and that it did happen in the way and manner as it is asserted to have taken place. The Hon'ble Delhi High Court has categorically held that in case the prosecution fails in this primary duty, the courts need not go any further and need not make any more enquiry in as much as the said case is liable to be dismissed on this short ground alone.
20. Coming now to the statement purportedly tendered by the accused, Ex.PW5/A u/s 67 NDPS Act, I have gone through all the judicial dicta referred to by the Ld. Counsels. No doubt the Hon'ble Supreme Court in its various judgments pronounced in NDPS cases that have been relied upon by the Ld. Proxy SPP has held that a statement given by an accused SC No. 06/10 Page No. 24 of 31 NCB Vs. Chinedu David Offordum u/s 67 NDPS Act is admissible in evidence and can be used for determining the guilt of an accused however at the same time the Hon'ble Supreme Court has also cautioned that a court must be satisfied that the said statement was given voluntarily and that before acting solely on confession, as a rule of prudence, a court must look for some corroboration. The Hon'ble Supreme Court in its judgments pronounced in cases titled as Union of India Vs. Bal Mukund (supra) and Noor Aga Vs. State of Punjab and Anr. (supra) respectively has clearly held that the purported statements tendered by an accused while in custody cannot be presumed to be his voluntary statement. In Bal Mukund's case, the Hon'ble Supreme Court observed that the authorities under the NDPS Act can always show that the accused had not been formally arrested when his statement was recorded u/s 67 of the NDPS Act and that therefore a court while weighing the evidentiary value of such a statement should not lose sight of the ground realities. Further in para 28 of the said judgment the Hon'ble Supreme Court has reiterated that if a person in custody is subjected to interrogation, he must be informed in clear and unequivocal terms as to his right to silence. The Hon'ble Supreme Court in the said case also made it clear that the observations made by it in Kanhaiya Lal Vs. Union of India (2008) 4SCC 668, (a judgment often relied by the prosecution to contend that it is under no obligation to prove that the statement tendered by an SC No. 06/10 Page No. 25 of 31 NCB Vs. Chinedu David Offordum accused was voluntary) was passed in view of the peculiar facts in the said case namely that no crossexamination of a material witness was conducted with respect to statement tendered by the accused. In the same judgment, the Apex Court has also observed that in case an accused retracts the purported confession made by him u/s 67 NDPS Act, the court is bound to take into consideration the said factum of retraction in determining voluntariness of the said purported confession. In Noor Aga's case, the Hon'ble Supreme Court has clearly held that whether the confession was made under duress or coercion and/ or voluntary in nature should be considered having regard to the facts and circumstances of each case. In another case titled as Francis Stanly Vs. NCB reported in (2006) 13 SCC 2010 the Hon'ble Supreme Court has cautioned that a confession asserted to have been recorded under the NDPS Act must be made subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under the Act.
21. Now in the present case, the first and the foremost fact to be noted is that as per record on 10.03.2010, when the accused was produced after his first remand, he filed an application in his own handwriting before the court inter alia stating therein that the NCB officials had forced him to sign many documents and that he had not given any voluntary statement in their office. It is also a matter of record that at this stage the accused was not SC No. 06/10 Page No. 26 of 31 NCB Vs. Chinedu David Offordum being represented by any Advocate whosoever and therefore the contention of Ld. Counsel Ms. Bharadwaj that the said retraction application was based on legal advice cannot be accepted. It is also to be noted that PW11 Pankaj Dwivedi, the NCB official who purportedly wrote the statement of the accused on his dictation, in his crossexamination has categorically stated that during the recording of the statement of the accused u/s 67 NDPS Act, the NCB official Nirbhay Singh was putting questions to the accused. In other words the accused was being interrogated by the NCB officials and admittedly the statement Ex.PW5/A does not record anywhere that the accused was informed of his right to remain silent. It is also the case of the prosecution itself that the accused was in their custody the entire night of 22.02.2010, the day and night of 23.02.2010. The main investigating officer in this case PW6 Sanjay Rawat has also stated in his crossexamination that though he did not arrest the accused immediately after the search and seizure proceedings, he also did not let the accused go because his statement u/s 67 NDPS Act was to be recorded. Similarly PW11 on being questioned in this regard has categorically deposed that the procedure that is followed in NCB is that an accused is arrested only after he tenders his statement u/s 67 NDPS Act. The deposition of these witnesses in particular that the procedure that is followed in NCB is that an accused is arrested only after he tenders his statement u/s 67 NDPS Act SC No. 06/10 Page No. 27 of 31 NCB Vs. Chinedu David Offordum shows how true the observations of the Hon'ble Supreme Court in Bal Mukund's case namely that the authorities under the NDPS Act can always show that the accused had not been formally arrested when his statement was recorded u/s 67 NDPS Act and that is the reason the court should not lose sight of the ground realities.
22. Further in Noor Aga's case, the Hon'ble Supreme Court held that an inference that the accused was subjected to duress and coercion could be drawn from the fact that though the accused was an Afghan National, his statement had use of technical terms, the knowledge of which could not be attributed to him. In the present case also, in the statement purportedly dictated by the accused to the NCB officials Ex.PW5/A, the entire search and seizure proceedings have been written and words like 'field testing kit', 'panchnama' and other technical terms have been used therein and the same makes it apparent that the said statement could not have been dictated by the accused himself for the accused being a Nigerian national could not have at all known the Hindi word 'panchnama' and it does therefore appear that the statement was written by the NCB officials on their own, more so when it even describes the particulars of the markings put on the samples envelopes and the impression of the seal used. It is difficult to comprehend that an accused intercepted in the manner put forward by the NCB officials, would be noting down the markings given to each packet, the SC No. 06/10 Page No. 28 of 31 NCB Vs. Chinedu David Offordum details of the seals used, the annexures, etc made at the spot. It is not the case of the prosecution that some of the words in the said statement were written by the NCB officials themselves, for PW11 in his cross examination has categorically stated that he was writing exactly what was being stated by the accused and that he did not add anything at all on his own. It is also to be borne in mind that in the present case though the accused admittedly was knowing how to write English, his statement was written by PW11 assertedly on the premises that the accused was unable to write at a fast speed and that therefore on his request PW11 had written his purported statement. It will be relevant herein to refer to an order pronounced in Criminal L.P. 192/2009 (the copy of which has been placed on record by the Ld. Defence Counsel) by the Hon'ble Delhi High Court wherein it has been observed that if the statement of an accused is written by the NCB officials despite the fact that the accused was in a position to write, the said statement cannot be stated to be beyond suspicion. Keeping in view the entire judicial dicta referred to hereinabove and the attendant circumstances of the present case, this court is of the considered opinion that the statement u/s 67 NDPS Act purportedly tendered by the accused and being relied by the prosecution cannot be held to be his voluntary statement and therefore cannot be read in evidence against him.
23. In view of the discussion hereinabove, it is clear that neither the deposition SC No. 06/10 Page No. 29 of 31 NCB Vs. Chinedu David Offordum of the prosecution witnesses nor the statement of the accused purportedly tendered u/s 67 NDPS Act can be relied upon to determine the guilt of the accused. It has been repeatedly reiterated by the Hon'ble Supreme Court in its various judgments that it must be borne in mind that severer the punishment, greater has to be the care taken to be seen that the case of the prosecution is proved beyond all reasonable doubt. 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 said judgment, the Hon'ble Apex Court has also observed that indeed in every case the end result is important but the means to achieve it must remain above board and the remedy cannot be worse than the disease itself and the argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in the NDPS Act may result in more acquittals, does not appeal to it. In Noor Aga's case (supra), the Hon'ble Supreme Court has held that in cases arising out of the provisions of NDPS Act as the Legislature in its wisdom has provided a very stringent punishment, the courts have to be therefore extremely cautious and careful in adjudicating such cases. In the same judgment, the Hon'ble Supreme Court has also laid down that the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but SC No. 06/10 Page No. 30 of 31 NCB Vs. Chinedu David Offordum the standard of proof required for the accused to prove his or her innocence is "preponderance of probability". Keeping the aforementioned principles in mind by the Apex Court, this court is of the considered opinion that in the present case the accused has been able to sufficiently show on the preponderance of probability that the prosecution witnesses have not deposed the correct facts before this court and that the statement Ex.PW5/A was not tendered voluntarily by the accused. In a criminal case an accused has no other way to show that a false case has been foisted on him or her except to show that the witnesses examined by the prosecution are not telling the truth when they are making discrepant statements on material aspects of the case and in this respect the accused has successfully shown that the prosecution witnesses have made discrepant statements on material aspects of the case. In view of the detailed discussion hereinabove, this court is therefore of the considered opinion that in the facts and circumstances of the present case which have come to the fore during trial, the accused is entitled to be given the benefit of doubt and therefore is to be acquitted of the charges framed against him. As such the accused hereby stands acquitted of the charges framed against him.
Announced in the open court on this 22 day of February, 2013 nd (Anu Grover Baliga) Special Judge, NDPS New Delhi SC No. 06/10 Page No. 31 of 31