Sc No. 39A/09 Dri vs . Bitoren Dolores Fernandez & Anr. on 24 December, 2014

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Delhi District Court

Sc No. 39A/09 Dri vs . Bitoren Dolores Fernandez & Anr. on 24 December, 2014

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                   IN THE COURT OF SHRI M.K.NAGPAL
                ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
                    SAKET COURT COMPLEX, NEW DELHI


         Directorate of Revenue Intelligence
         Delhi Zonal Unit, New Delhi
         Through Ms Anju Singh, Intelligence Officer

                              V E R S U S

1.       Ms Bitoren Dolores Fernandez (Since P.O.)
         W/o Antonio Bitoren
         R/o 19, Clemente Santos Comp
         Pulong Bayan-II, San Moted, Rizal
         Philippines

2.       Emmanuel Chilkezie
         R/o Flat No. T-304, Hill View Apartment
         Mehrauli
         Delhi

         Permanent Address:
         H. No. 105
         Umuaka Imo State
         Nigeria

(Accused No. 2 presently lodged in Central Jail, Tihar,
New Delhi)

SC No.: 39A/09
U/S   : 21/23/29 NDPS Act
Computer ID No. O2403R0159452009

Date of institution                     :   03.06.2009
Date of reserving judgment              :   17.12.2014
Date of pronouncement                   :   24.12.2014
Decision                                :   Accused no. 2 Acquitted

J U D G M E N T

                The   proceedings   of        this     case         have          been


SC No. 39A/09                                     DRI Vs. Bitoren Dolores Fernandez & Anr.
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initiated on a complaint filed by the Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi (hereinafter referred to as DRI) through Ms Anju Singh, Intelligence Officer (hereinafter referred to as the IO/PW5), against both the above accused persons for commission of the offences punishable U/S 21, 23 and 29 of the NDPS Act, 1985.

2. The facts of the case, in brief, are that on 14.12.2008, an intelligence was gathered from some reliable source by the IO/PW5 that a lady named Ms Bitoren Dolores Fernandez, of fair complexion, would be travelling from Delhi to Hyderabad by Indigo Flight No. 6E307, which was scheduled to depart from the Domestic Airport, Terminal 1-B, New Delhi at 9:00 PM on that day, and she would be carrying some narcotic drugs concealed in her baggage. The IO/PW5 had immediately reduced the above information in writing as Ex. PW4/A and had put up it before her superior officer/PW4 Sh Ramesh Kumar, who in-turn had further put it up before his senior officer/PW9 Sh Nilank Kumar and PW9 had directed PW4 to immediately form a team of officers for interception of the above passenger. It is alleged that based on the said intelligence, a team of DRI officers had reached at the check-in counter of the Indigo Airlines at the above Domestic Airport and had also joined two witnesses at around 7:15 PM, after the witnesses were told about the above information and requested to witness the interception of the above passenger. They all had SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

started waiting for the above passenger there and at about 7:50 PM, the above passenger had reached at the check-in counter of the above airlines and handed over her strolley bag and tickets for checking at the said counter, when the said passenger was intercepted by the DRI officers. On inquiry, the identity of above lady passenger was revealed as the accused no. 1 Bitoren Dolores Fernandez, a Philippines National, and she had also produced her passport no. SS 0438281 in support of her identification. The accused was asked, if she was carrying any narcotics or other contraband in her baggage, to which she replied in negative.

3. Thereafter, the IO/PW5 had served a written notice U/S 50 of the NDPS Act Ex. PW12/A upon the accused, while telling the accused that the search of her person and her baggage was to be conducted and if she so desired, the same could be conducted in the presence of a Magistrate or a Gazetted Officer. The accused had replied by writing on the above notice itself, in her own handwriting, that the search of her person and baggage could be conducted by any lady officer of DRI. The accused was then taken by the DRI officers to the backup room of the above airlines situated behind the check-in counters, alongwith her strolley zipper bag of VIP brand and two hand bags carried by her and also alongwith the two public witnesses. The two hand bags of the accused were searched there in the presence of the witnesses, but the same were found to contain only some personal effects SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

of the accused. The above strolley bag of the accused was found locked and a security check sticker no. A6775660 was found affixed/pasted on the said lock and the above sticker, which is Ex. PW5/B3 on record, was removed and the bag was opened with the help of the key provided by the accused. Thereafter, the examination of the above strolley zipper bag was undertaken by the DRI officers and on opening the bag, it was found to contain some used cloths and some other personal effects of the accused and when all these articles were taken out of the bag, it was observed that the bottom of the said bag was abnormally thick. Then the rivets inside the above said bag were removed and the bottom of the bag was broke opened and one packet secured with black adhesive tapes was found concealed therein. The IO/PW5 had weighed the above packet and its gross weight came to be 2.106 KG and it was then cut opened and further found to contain a transparent polythene packet containing some off white colour powder giving a pungent smell. The IO/PW5 had tested a pinch of the powder of the said packet with the help of a drug testing kit and it gave positive result for heroin. The contents of the above packet were emptied and the net weight of the above powder/heroin was taken and it came to be 1.987 KG. The above heroin, alongwith its packing as well as the above strolley bag and the clothes and other articles found therein, were all seized for violation of provisions of the NDPS Act.

4. IO/PW5 had then drawn three representative SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

samples out of the above recovered heroin and these samples were kept in separate press lock polythene pouches and the same were marked as A1, A2 and A3 and these pouches were further kept in separate brown colour envelopes and then sealed with the DRI seal over a paper slip bearing the dated signatures of the IO/PW5, the above accused and two panch witnesses. The remaining heroin was put back in the same packet from which it was recovered and then the above polythene packet was stapled and marked as A and further put in a yellow colour paper envelope, which was also marked as A and it was then sealed with the above seal and in the same manner. The above sealed packet of the remaining heroin was further put in a metal box, which was wrapped with white cloth, stitched and sealed in the same manner and the cloths and other personal effects of the accused were put back in the same strolley bag, alongwith the lock and key, and a separate cloth parcel thereof was also prepared and sealed in the same manner. The IO/PW5 had also drawn a detailed panchnama Ex. PW5/A regarding the above proceedings and the contents thereof were explained to the above accused as well as the two panch witnesses and the same was signed by them as well as by the IO/PW5 herself and a facsimile of the above seal of the DRI was fixed on the panchnama. The IO/PW5 had also prepared the test memos in triplicate, including the test memos Ex. PW5/F and PW5/G, with regard to the drawing of the above samples and a facsimile of above DRI seal was also affixed on the test memos. The personal search of SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

accused was also conducted by the IO/PW5 and it resulted into the recovery of e-ticket for her above flight no. 6E307 from Delhi to Hyderabad, one e-ticket for her further journey from Hyderabad to Kualalumpur by flight no. MH199 dated 15.12.2008 and also from Kualalumpur to Hanoi by another flight no. MH752 dated 15.12.2008 and these documents were also resumed for the purposes of investigation and the same are Ex. PW5/B1 and Ex. PW5/B2 on record. The panchnama proceedings started at 8:00 PM on that day and concluded at 11:45 PM on the same day.

5. It is further alleged in the complaint that thereafter, in response to the summons Ex. PW5/C dated 14.12.2008 served upon the above accused, she had appeared before the IO/PW5 and tendered her voluntary statement Ex. PW5/D in her own handwriting and in the said statement, besides disclosing her personal details and previous involvement in drug dealings during her visits and stay in China, she had also admitted her interception from the above airport and the seizure of the above heroin from her above strolley bag and other proceedings conducted with regard to the same. She had further disclosed therein, inter-alia, that during her last visit to China, she met a Nigerian named Mr Kent in a restaurant in China and Mr Kent offered her to go to India for carrying some drug consignment from India to Hanoi. She had then told Mr Kent that she was not having an Indian visa and then, at the instructions of Mr Kent, she had gone back to Hanoi and after getting an Indian SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

visa, she had informed Mr Kent in this regard. She had further furnished her e-mail address to Mr Kent and he had sent her the air tickets for her journey from Hanoi to Hyderabad, via Kualalumpur, and return back from Hyderabad to Hanoi through the same route. Mr Kent also told her telephonically that from Hyderabad, she had to go to Delhi and to contact his brother in Delhi and while she was still in Hanoi, she also got a call from the brother of Mr Kent from India and he gave her his mobile number to the accused. The above accused had further disclosed in her above statement that accordingly, she reached Delhi, via Hyderabad, and from Hyderabad she contacted the brother of Mr Kent on the above contact number, which was written by her on a paper slip and thrown away after making the call. As per the instructions of the brother of Mr Kent, she had taken a taxi from the Delhi Airport and came near Mehrauli police station, where one person named Mombai had met her and took her to the house of brother of Mr Kent at Hillside View, T-304, 3rd Floor and she stayed in his house and met the brother of Mr Kent, his wife and three years old daughter there.

6. She had further disclosed in her above statement that in the evening of 13.12.2008, the wife of Mr Kent's brother took her to Domestic Airport, Delhi and while she (accused) remained seated in the taxi, the wife of brother of Mr Kent got down and brought a ticket from Delhi to Hyderabad for the accused for 14.12.2008. She SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

further disclosed in her above statement that in the evening of 14.12.2008, another African person came at the above residence of the brother of Mr Kent at around 6:00 PM, with a blue colour zipper suitcase, and handed it over to the brother of Mr Kent and the above African helped the accused in packing her clothes in the said bag and she was told by Mr Kent's brother that she was to carry the above bag to Hanoi and the above African had introduced himself to her as Jan and Jan and the brother of Mr Kent had both told her that the drugs have been concealed in the said bag in a very good manner and it was safe for her to carry the same from India to Hanoi and after reaching Hanoi she was asked to check in Prince Cafe Hotel and the said bag was to be collected from her there by a person, whose particulars were to be told to her later on by Mr Kent telephonically. She was also told that she would get 2000 US$ for carrying the above consignment, which amount will be transferred in her account through the Western Union Money Transfer and she was also dropped at the Delhi Airport with the above strolley bag by Mr Jan.

7. Since the accused appeared to have committed offences punishable U/S 21, 23 and 29 of the NDPS Act, she was arrested in this case vide arrest memo Ex. PW5/E dated 15.12.2008 and after being got medically examined on the same day, she was produced in the court and remanded to judicial custody. The intimations regarding the arrest of the accused were also given to the Embassy SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

concerned, her father, the Ministry of External Affairs and the office of FRRO vide letters Ex. PW2/B, Ex. PW2/C, Ex. PW2/D and Ex. PW2/E respectively by PW2 Sh M. S. Yadav and some information about the movements of the accused was also sought from the office of the FRRO. One sample parcel Marked A1 was also got deposited with the CRCL, New Delhi through PW1 Sh K. P. Singh, alongwith the duplicate test memos and the forwarding letter Ex. PW1/A issued by PW2, and the same was received there in intact condition by PW7 Sh Bhuwan Ram vide acknowledgment receipt Ex. PW1/B issued by him. The sealed parcels of the case property were also got deposited with the Armory Godown on the same day vide deposit memo Ex. PW3/A prepared by the IO/PW5 and counter signed by PW4 and the same were received there in intact condition by PW3 Sh J. M. Sharma. However, subsequently, the above parcels of the case property were transferred from the Armory Godown to the Valuable Godown, New Customs House and an intimation in this regard was sent to the DRI vide letter dated 18.12.2008. The required information from the office of the FRRO could not be furnished as the available particulars of the accused were stated to be incomplete. One report U/S 57 of the NDPS Act Ex. PW2/F regarding arrest of the accused and seizure of the above heroin was also sent by the IO/PW5 to PW2 on 15.12.2008.

8. It is further alleged that in the follow up investigation, a team of the DRI officer led by PW8 Sh Devender Singh had also visited the above residential SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

house of the brother of Mr Kent, i.e. Flat No. T-304, 3rd floor in Hill View Apartments, Mehrauli, as referred to in the statement of the above accused Bitoren Dolores Fernandez, on the basis of a search authorization Ex. PW8/A issued by PW16 Dr. Atul Handa and two public witnesses were joined for the search of the said house. However, the above flat was found to be locked and the lock thereof was got opened and the search of the flat conducted in the presence of the public witnesses. Some incriminating documents recovered during the search of the said flat were taken into possession for the purposes of investigation and a panchnama Ex. PW2/G regarding the above search proceedings was drawn. The documents resumed vide the above panchnama are Ex. PW2/G1 to Ex. PW2/G10 on record. The above flat was again locked and a notice Ex. PW2/G11 was pasted thereon that anybody who wanted entry in the said flat could contact the DRI officers.

9. PW17 Smt Valsala Kumari, who was the owner/ landlady of the above flat, had also appeared before the IO/PW5 on 17.12.2008 and in response to the summons Ex. PW5/H served upon her, she had also tendered her statement U/S 67 of the NDPS Act Ex. PW5/J in her own handwriting and had disclosed therein that her above flat was rented out in the month of June 2008, through a local property dealer, to one Smt Lal Ramngai Hmar (Mrs Joel Hmar) wife of one Emmanuel and she had also tendered before the IO/PW5 a copy of the tenant verification form, SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

a copy of the passport of above Smt Lal Ramngai Hmar, a copy of rent deed executed between them, a copy of one demand notice of BSES and of the sale deed of the above house, which are Ex. PW7/A collectively on record, alongwith her above statement. She had also disclosed in her above statement that the above Lal Ramngai Hmar @ Joel Hmar was living in the said flat with her husband Emmanuel, who was a black man/African, her brother Lunmin Lal, a three years old daughter named Blessings Ndidi and her maid Losang Kim and she was informed by Lal Ramngai Hmar that her husband was doing some business and she (PW17) had seen the above Emmanuel at the above flat only once on 3rd December when she had visited her above flat in connection with some problem of meter reading.

10. On 22.12.2008, the above Lal Ramngai Hmar, alongwith her husband Emmanuel, i.e. the accused no. 2 Emmanuel Chilkezie, had also visited the DRI office to enquire about the sealing of the said flat and a similar statement Ex. PW5/L was also tendered by the above Lal Ramngai Hmar, in pursuance of the summons Ex. PW5/K served upon her. She had disclosed in her above statement, inter-alia, that one of her sisters named Karthy was married to one Rashid @ Francis L. Hmar and he was presently lodged in Tihar Jail in connection with some seizure of heroin and her sister was in Manipur with her parents; that she met the accused Emmanuel in the year 2004, either in September or October, and at that time she was staying in Moti Bagh and Emmanuel started SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

visiting her at her place; that in December 2004 she came to know that she was pregnant and while going a pregnancy test in a Green Park clinic, she came to know that she was HIV positive and her case was referred to Sir Ganga Ram Hospital and she delivered a baby there on 26.08.2005, who tested negative for HIV, and she (Mrs Joel Hmar) was in live in relationship with Emmanuel, who was supporting her financially. She further disclosed in her above statement that after the delivery of her child, she had gone back to her native place in Manipur and came back to Delhi in 2006 and shifted to some building at Vasant Kunj and then to room no. 3/A, Upper Ground Floor, Neelkanth Apartment, Kishan Garh, Vasant Kunj, which was taken on rent by her brother in law Francis L. Hmar and Emmanuel was not staying with them, but visiting them occasionally at the said flat; that in the month of May and June 2008, she had again gone back to her parents house due to vacations of her child and on 05.06.2008 she came to know from her sister Karthy that Francis L. Hmar had been caught with 1.985 KG of heroin and he was in Tihar Jail and the above flat of Neelkanth Apartment was searched by DRI officers; that she came back to Delhi after one week, stayed at the above flat and paid the rent thereof as Francis L. Hmar was in jail, but she was not aware that Emmanuel had given about 2 KG of heroin concealed in some suitcase to Francis L. Hmar, which was seized by the DRI officers on 02-03.06.2008, as she was not in Delhi at that time and she did not even know any Sukleshwar Basumatary and was further not aware if he SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

stayed at their above flat at Neelkanth Apartment.

11. She had further disclosed in her above statement that she had sent her sister Karthy back to her parents house in the last week of June 2008 and in July, she had shifted to the above house no. 304, 3rd Floor, Hill View Apartment, Mehrauli; that on 09.07.2008 Emmanuel informed her that a Philippines lady would be coming to her house and she had to keep that lady in the house for 2-3 days and Emmanuel also told her that the above lady would reach near Mehrauli Police Station by taking a taxi from the airport and she should send her cousin brother Mungboi, who was staying with her, to escort that lady and her cousin brother brought that lady to her house, who introduced herself as Dolly. She further disclosed therein that the above lady stayed in their house the whole day and on 13.12.2008, as per the instructions of Emmanuel, she had accompanied the above lady named Bitoren Dolores Fernandez @ Dolly to the Domestic Airport of Delhi and while Dolly remained seated in the taxi, she had gone to the counter of Indigo Airlines and booked a ticket from Delhi to Hyderabad for 14.12.2008 in the name of the above lady. On 14.12.2008 in the morning she had gone to Church and then had left her house to meet some friend at Munirka at about 5:30 PM and at that time her husband Emmanuel and the above lady Bitoren Dolores Fernandez were still in the house and were waiting for somebody to come and when she returned back to her house at 8:30 PM, after staying in the house SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

for sometime, Emmanuel asked her to leave the house with the child and her maid at once and then they all had left the house and went to Munirka at her cousin's house, but she was not aware that her husband was dealing in drugs or the above Philippines lady who stayed with them was carrying heroin to Hyderabad and she only came to know from Emmanuel that the above lady had been arrested at Domestic Airport.

12. During the course of recording of the above statement of Ms Lal Ramngai Hmar, PW17 Smt Valsala Kumari, the owner/landlady of the above house, was again made to join the investigation and her another statement Ex. PW5/N, after serving the summons Ex. PW5/M, was also recorded and in the above statement, she had identified the above Ms Lal Ramngai Hmar, her husband/accused Emmanuel and their daughter.

13. The statement Ex. PW18/B of the accused no. 2 Emmanuel Chilkezie, in response to the summons Ex. PW18/A served upon him, was also recorded by PW18 Sh Alkesh Rao on that very day under the above provisions, which was tendered by the above accused in his own handwriting, and in his above statement, he had disclosed, inter-alia, that he came to India on a six month business visa in the year 2002, but he never went back and was residing in India since then; that after reaching India he was staying with his one friend named Mr Paul in Munirka and Mr Paul was in the business of exporting ready made SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

garments from India to Nigeria and he also started doing the said business. He had also disclosed therein that he was working as a Manager in a Nigerian firm named Emmatex Investment Ltd of one Mr Emma and the said firm was in the business of garment export and import, but the doing of his above job while staying in India was for name sake only and in-fact, he was doing drug business under the cover of the above ready made garment business; that he had subsequently joined one Mr Kent, a Nigerian friend staying in China, in the drug business being done by Mr Kent as he was running in losses in his garment business and in April 2008, he had met one Mr Sanjay, through Mr Kent, and he had also collected one consignment of heroin in a plastic bag at Dhaula Kuan from Mr Sanjay, which he had delivered to some other person near Moti Bagh Flyover and the said person contacted him on his mobile number 9818813483, which was given to that person by Mr Kent, and that person also paid him 700 US$ for the said delivery. Thereafter, the accused Emmanuel had desired to take some rest and to continue his statement the next day.

14. In his continued statement Ex. PW18/C made on the next day, i.e. 23.12.2008, it was further disclosed by the accused no. 2 that he came in contact with Ms Joel Hmar in the year 2003 and they became friends and started living together and out of this relationship, their above daughter Blessings Ndidi was born in August 2005; that he was living with Ms Joel at Flat No. T-304, Hill View SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

Apartment and sometimes he had to go out for few days, but he returned back again to the same flat, which was taken on rent by Ms Joel Hmar in June 2008 and also claimed that he had been residing in the said flat with Ms Joel Hmar, their daughter and one maid. He further admitted therein that he had permitted a Philippines lady named Ms Dolores Bitoren Fernandez, i.e. the accused no. 1 herein, to stay in their above house only as per the instructions of Mr Kent as Mr Kent further directed him to give her drugs for onward delivery at Hanoi. He also disclosed therein that the accused no. 1 came at their residence on 09.12.2008 and stayed there till 14.12.2008 and she also contacted him on his mobile from Hyderabad and then, as per his instructions, she came from Hyderabad to Delhi Airport and then near PS Mehrauli, from where she was escorted to their above flat by a person named Mombai; that as per the instructions of Mr Kent, another African person named Mr Jan had visited their above flat with the above blue colour suitcase having drugs concealed therein and the same was handed over to the accused no. 1 Bitoren Dolores Fernandez for taking it to Hanoi, for delivery thereof to some person, who was to contact her at Hotel Prince Cafe, where she was asked to check-in, and further that he directed Mr Jan to drop accused no. 1 at the airport, with the above bag containing drugs. He was also shown a copy of the statement dated 15.12.2008 given by the accused no. 1 before the DRI officers and also her photograph, which he had identified. He was further shown the panchnama and SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

the documents seized from their above flat on 15.12.2008 and he had identified a photograph appearing on one driving license recovered from their above flat to be of one Rashid, who was the husband of Ms Joel's sister named Ms Kim. He further disclosed therein that the consignment of drugs for which the above Rashid was in jail was given to Rashid by him and he got 700-800 US$ from Mr Kent for each delivery of drug consignment and this money was sometime being transferred through Western Union Money Transfer and sometime through some person coming from their native country. He had further disclosed in his above statement that after reaching Hyderabad, the accused no. 1 was to call him and since he does not receive any call from her, he became suspicious about the arrest of accused no. 1 and hence, under the fear of being arrested, he had left their above flat, alongwith Ms Joel and his daughter. He further stated that his passport had already been lost and Indian visa expired long back. However, he was not able to provide any further details of the above Mr Kent, Mr Jan or the above Mr Sanjay etc.

15. Since the accused no. 2 also appeared to have committed the above offences, he too was arrested in this case vide arrest memo Ex. PW8/E dated 23.12.2008 and after being got medically examined, he was produced in the court and remanded to judicial custody. The intimations about his arrest were also sent to the High Commission concerned, his father, the office of FRRO and SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

also to the Ministry of External Affairs vide letters Ex. PW1/I, Ex. PW1/J, Ex. PW1/K and Ex. PW1/L written by PW2. One report U/S 57 of the NDPS Act Ex. PW2/M regarding his arrest was also submitted by PW18 on the same day to PW2 Sh M. S. Yadav. On a request letter given by Ms Lal Ramngai Hmar, the lock affixed on their above flat was opened and the possession thereof handed over to her on the same day. The call details and ownership record of the above mobile number 9818813483 of the accused no. 2 were also collected from the concerned service provider and it was revealed that the above said number was issued in the name of the above Muhammed Rashid with his one address of Delhi, which was subsequently found to be fake. Vide the test report Ex. PW7/A of the CRCL, the above sample was found to have tested for the presence of diacetylmorphine (heroin) and the purity of diacetylmorphine in the said sample was opined to be 86 percent. The above persons named Mr Sanjay, Mombai, Mr Kent and Mr Jan could not be made to join the investigation for want of their complete particulars. After completing some formalities of investigation, a complaint for commission of the above said offences was ultimately prepared and filed in the court against the accused persons.

16. The complaint was filed against both the accused persons in this court on 03.06.2009 and cognizance of the above offences was taken on 05.09.2009. A prima facie case for commission of the offences SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

punishable U/S 21(c) and 29 read with Section 23 of the NDPS Act was found to be made out against the accused no. 1 Bitoren Dolores Fernandez and a prima facie case for commission of the offence punishable U/S 29 read with Section 23 of the said Act was also found to be made out against the accused no. 2 vide order dated 20.11.2009 and separate charges for the said offences were also framed against them on the same day.

17. The prosecution in support of its case has examined on record total 23 witnesses and their names and the purpose of examination is being stated herein below:-

18. PW1 Sh K. P. Singh, Head Hawaldar, DRI had deposited the above sealed sample parcel of this case with the CRCL, New Delhi, alongwith the duplicate test memos and the forwarding letter Ex. PW1/A and against receipt Ex. PW1/B issued by the official of the CRCL.

19. PW2 Sh Man Singh Yadav had written letters Ex. PW2/A and Ex. PW2/H respectively for the medical examination of the above two accused, letter Ex. PW1/A for deposit of the sample, sent the arrest intimations and letter to FRRO Ex. PW2/B to Ex. PW2/E of the accused no. 1 and Ex. PW2/I to Ex. PW2/L of the accused no. 2, received the above reports U/S 57 of the NDPS Act Ex. PW2/F and Ex. PW2/N from the concerned IOs regarding the above seizure and arrest of the accused persons and also the execution report regarding the search of the above SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

residential house of the accused no. 2, alongwith the above panchnama Ex. PW2/G and documents Ex. PW2/G1 to Ex. PW2/G10 recovered during the said search.

20. PW3 Sh J. M. Sharma was posted as an Inspector in the Armory Godown, New Customs House on 15.12.2008 when the sealed parcels of the case property were deposited with him in intact condition. He has proved his endorsement made in this regard on the deposit memo Ex. PW3/A thereof and has stated that the case property stood subsequently transferred to the Valuable Godown of the New Customs House, in the custody of the Inspector Sh Lakhi Ram of the said godown. He has also brought on record a copy of the letter transferring the said property and of the entry of the concerned register of the Customs Preventive Department as Ex. PW3/B collectively.

21. PW4 Sh Ramesh Kumar, Senior Intelligence Officer in DRI office at the relevant time, is the person before whom the above secret information Ex. PW4/A was placed by the IO/PW5. He has stated that he had further produced the said information before his senior officer Sh Nilank Kumar, who directed him to take necessary action on the said information by organizing a team. He also claims to have constituted the above said team and he himself was a part of the above team, which had apprehended the accused no. 1 Bitoren Dolores Fernandez from the Domestic Airport with her above suitcase SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

containing the sealed packet of heroin. He has broadly deposed on the above lines of the prosecution story regarding the above search and sealing work etc conducted with regard to the seized contraband substance. He has also stated that after reaching back in their office, the IO/PW5 had handed over the above sealed parcels of case property and samples, alongwith the test memos, to Sh Man Singh Yadav for safe custody and on 15.12.2008, on the directions of Sh Nilank Kumar, he himself had taken the possession of the case property from Sh Man Singh Yadav, who was assigned some other official assignment and he had got the case property deposited with the Valuable Godown of the New Customs House and had also counter signed the deposit memo Ex. PW3/A thereof. He had also given the above forwarding letter Ex. PW4/B for deposit of the sample parcel with the CRCL. He has also identified the accused no. 1 Bitoren Dolores Fernandez.

22. PW5 Ms Anju Singh, Intelligence Officer of DRI, is the complainant and main Investigating Officer of this case and she was heading the above raiding team of DRI, which had apprehended the accused no. 1 from the airport with the above contraband substance concealed in her above strolley bag. She has broadly deposed on the above lines of the prosecution story and has proved the various documents of this case, prepared by her in connection with the investigation of the case. She has also identified both the accused persons as well as the case property.

SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

23. PW6 Sh Lakhi Ram was working as Inspector and In-charge of the Valuable Godown, New Customs House on 17.12.2008 when the case property was deposited there, after being transferred from the Armory Godown, vide entry Ex. PW3/B of the Armory Godown, which was also signed by him. He further states that the case property was deposited initially in the Armory Godown on 15.12.2008 only because he was not present in the Valuable Godown and he has further brought on record a copy of the relevant entry made by him in the concerned register of the Valuable Godown regarding the deposit of case property as Ex. PW6/A.

24. PW7 Sh Bhuwan Ram is the Assistant Chemical Examiner of CRCL, New Delhi, who has received the above sample and other documents from the official of the DRI on 15.12.2008 vide acknowledgment receipt Ex. PW1/B issued by him. The above sample was also subsequently allotted to him for chemical analysis and the testing thereof was started on 16.02.2009 and concluded vide the above test report Ex. PW7/A dated 18.02.2009, wherein the sample was found positive for the presence of diacetylmorphine (heroin) with the above purity percentage. He had also given the short analysis report about the above testing in Section-II of the test memo Ex. PW5/G.

25. PW8 Sh Devender Singh is another Intelligence Officer of DRI and he also claims to be a part of the SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

above raiding team, which had apprehended the accused from the airport and had recovered the above contraband substance. He has also made some brief depositions regarding the above seizure and further claims that in the follow up investigation, he was also given the above search authorization Ex. PW8/A of the above Flat No. T-304, Hill View Apartment and he had searched it vide panchnama Ex. PW2/G and resumed the documents Ex. PW1/G1 to Ex. PW1/G10 in the said search and further submitted one report Ex. PW8/A in his office regarding its execution. He also claims that on 23.12.2008, he had de- sealed the above property and handed over its possession to Ms Lal Ramngai Hmar.

26. PW9 Sh Nilank Kumar is the then Assistant Director of DRI before whom the above secret information was put up by PW4 Sh Ramesh Kumar and who had given the necessary directions to act upon the same.

27. PW10 Sh Sanjay Kumar, Tax Assistant of DRI, had issued the above seal of DRI to the IO/PW5 on 14.12.2008 vide entry Ex. PW5/O of the seal movement register and it was returned back to him on 15.12.2008.

28. PW11 Sh M. B. Pathak, another Intelligence Officer of DRI, is the person who had got deposited the sealed parcels of the case property in the Armory Godown of the Customs House on 15.12.2008, vide authority letter Ex. PW4/B given by Sh Ramesh Kumar and vide deposit memo SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

Ex. PW3/A.

29. PW12 Sh Vikas Kumar and PW14 Sh Narender Kumar are the two panch witnesses joined at the time of interception of the accused no. 1 at the Domestic Airport and recovery of the above heroin from the luggage of the above accused. They both were working as loaders at the airport and have deposed about their participation in the above seizure and have further identified the accused as well as the case property, though they have deviated from the prosecution story on few aspects and were also cross examined by Ld SPP for DRI on these aspects.

30. PW13 Sh K. K. Dhasmana was a part of the above team headed by PW8 Sh Devender Singh, which had searched the above residential flat of accused no. 2 in Hill View Apartment, on the basis of the search authorization Ex. PW8/A and vide panchnama Ex. PW2/G.

31. PW15 Sh R. K. Singh, Nodal Officer of Bharti Airtel had only supplied the certified copy of call detail records Ex. PW15/B of the above mobile no. 9818813483 to the DRI officers during the investigation vide his letter Ex. PW15/D, alongwith copy of the Subscriber Application Form Ex. PW15/C. He has also brought on record his certificate regarding the authenticity of the said record as Ex. PW15/A.

32. PW16 Sh Atul Handa, Deputy Director of DRI, had SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

only issued the above search authorization Ex. PW8/A of the residential flat of the accused no. 2.

33. PW17 Smt Valsala Kumari is the owner/landlady of the above residential flat of accused no. 2 and she has deposed about the renting of the said flat to Ms Lal Ramngai Hmar and the tendering of her above statements and the identification of Ms Lal Ramngai as well as the accused Emmanuel etc in the DRI office.

34. PW18 Sh Alkesh Rao, an Intelligence Officer of DRI, is the person who had served the summons Ex. PW18/A upon the accused Emmanuel and before whom the above statements Ex. PW18/B and Ex. PW18/C dated 22.12.2008 and 23.12.2008 of the above accused were tendered. He has also arrested the above accused vide memo Ex. PW18/E, got him medically examined and sent the report U/S 57 of the NDPS Act Ex. PW18/M about the arrest of the accused to his senior officer.

35. PW19 Sh S.P.S. Chauhan, PW20 Smt Archana Rastogi, PW21 Sh P. C. Tiwari and PW22 Mohd Salim are all the independent witnesses joined in the search of the above residential premises of accused no. 2 and they all have deposed about their participation in the above search and have identified their signatures on different documents prepared in connection with the same.

36. PW23 Ms Lal Ramngai Hmar is the wife/live-in SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

partner of accused Emmanuel and she has deposed about the joining of the investigation of this case and tendering of her above statement Ex. PW5/L, in response to the summons Ex. PW5/K. However, she claims that some contents of her above statement were correct and some other contents thereof were not correct.

37. It is necessary to mention here that during the trial of this case, one application dated 20.10.2010 was moved on behalf of the accused no. 1 for drawing of fresh sample from the case property for testing, in view of some changes reflected on record in the colour and form/texture of the case property and samples, and the said application was allowed vide a detailed order dated 18.01.2011 of this court and one fresh sample out of the remaining case property of this case was also drawn in this court on 23.02.2011 and the same was sent for testing to CRCL, New Delhi. In the test report dated 23.03.2011 of the CRCL, the said sample was though found positive for the presence of diacetylmorphine (heroin), but the purity thereof was given to be 41.3 percent. Based on the above huge decrease in the purity percentage of diacetylmorphine from 86 percent to 41.3 percent in the above two test reports, one application dated 07.07.2011 seeking the regular bail of the accused no. 1 U/S 439 Cr.P.C. was also moved before this court and the above accused was granted bail vide a detailed order dated 24.08.2011 on furnishing of a personal bond in the sum of Rs. 50,000/- with two sureties of the like amount SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

and subject to certain other conditions contained in the said order. One other application U/S 445 Cr.P.C. was also moved by the above accused for acceptance of cash instead of furnishing of sureties for the above said amount, but the said application was dismissed by this court vide order dated 02.09.2011. However, subsequently, vide order dated 28.09.2011 passed in Crl. M.C. No. 3264/2011 filed by the above accused, the Hon'ble High Court had modified the above bail order dated 24.08.2011 of this court and the accused was directed to deposit the total surety amount of Rs. 1 lac of the two surety bonds in cash, which was deposited subsequently in the court and she was released from custody. The DRI had also filed one Crl. M.C. No. 2970/2011 challenging the bail granted to the accused no. 1, but the above petition was dismissed by the Hon'ble High Court vide order dated 16.09.2011.

38. The accused no. 2 Emmanuel Chilkezie was also granted bail subsequently vide order dated 03.09.2011 of this court, passed on his bail application dated 03.09.2010, on the ground of parity and also because the above seizure of heroin was not effected from his possession and it was also on the same terms and conditions, which were incorporated in the previous bail order of accused no. 1. This bail order was also assailed by the DRI before the Hon'ble High Court in Crl. M.C. No. 3014/2011, which was allowed by the Hon'ble High Court vide order dated 16.09.2011 and the bail granted to the SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

accused no. 2 Emmanuel Chilkezie was cancelled by the Hon'ble High Court on the ground that it was brought to the notice of the Hon'ble High Court that this accused was also involved in some other case under the NDPS Act and hence, his case was not found to be on a parity with the accused no. 1.

39. It is also necessary to mention herein that prior to the seizure of heroin effected in this case on 14.12.2008 from the accused no. 1 at the Delhi Domestic Airport, the DRI officers had also effected another seizure of heroin weighing 1.985 KG (net weight) on 02.06.2008 at about 9:00 PM at a CIFS check-post, outside the airport, while acting upon a secret information, and the above seizure was effected from one Sukleshwar Basumatary and Francis L. Hmar @ Muhammed Rashid, who both were going to the IGI Airport in a Tata Indica car no. DL3C AX 4435 being driven by one Sh Rakesh Kumar Nainawat. The packet containing the above heroin was found to be concealed in a blue colour zipper suitcase lying in the dickey of the above car and it was revealed in the said case that the above suitcase was to be taken to Kualalumpur by the accused Sukleshwar Basumatary travelling by flight no. MH0191 of that day and the accused Francis L. Hmar was going to drop him at the airport. It had further come on record in the said case that the above suitcase was in-fact given to the accused Sukleshwar Basumatary by the accused Francis L. Hmar and he had come from Guwahati to Delhi for taking the above SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

consignment of heroin from Delhi to Kualalumpur at the instance of one Sankar and it was to be delivered at Kualalumpur, as per the instructions of the above Sankar and Francis L. Hmar and he agreed to carry the above consignment for money and previously also he had carried a consignment of about 2 KG of heroin from Delhi and delivered it at Senjen (China) at the instance of the above Sankar. It was further disclosed by the accused Sukleshwar Basumatary in the said case that when he had arrived at Delhi airport from Guwahati for carrying the said consignment, he was picked up from there by the accused Francis L. Hmar in the above taxi car and then they both had gone to the Sarojini Nagar market, where the accused Francis L. Hmar got down from the taxi and again came back in the above taxi with the blue colour suitcase and from there, they had gone to the house of accused Francis L. Hmar at Neelkanth Apartment, Vasant Kunj and there, he was handed over the said suitcase with concealed heroin for its delivery at Kualalumpur to a friend of Francis L. Hmar, but they both were intercepted out of the IGI Airport when they were going to the airport.

40. It was also disclosed by the accused Francis L. Hmar @ Muhammed Rashid in his statement made in the above case that the above blue colour suitcase with concealed packet of heroin was actually given to him by one Emmanuel in the Sarojini Nagar market and the above Emmanuel was also with them when they had come to his SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

above flat at Neelkanth Apartment, Vasant Kunj and on the way, Emmanuel had also collected the travel tickets of accused Sukleshwar Basumatary from some travel agent at Cannaught Place and then Emmanuel was also with him at his above flat/house when they had given the above suitcase with concealed heroin to accused Sukleshwar Basumatary, alongwith the travel tickets, for carrying the said consignment of drugs to Kualalumpur for its delivery there and though Emmanuel was again with them when they had started from their above residence for the airport, but Emmanuel got down near Priya Cinema and they both, i.e. he and the accused Sukleshwar Basumatary, were intercepted by the DRI officers outside the IGI Airport.

41. It is also stated herein that the above Francis L. Hmar @ Muhammed Rashid intercepted by the DRI officers on 02.06.2008 from outside the IGI Airport, alongwith the accused Sukleshwar Basumatary, in connection with the above seizure of 1.985 KG of heroin is the same person whose reference had come in the above statements made by Ms Lal Ramngai Hmar @ Mrs Joel Hmar and the accused no. 2 Emmanuel Chilkezie of this case and he is stated to the husband of the sister of Ms Lal Ramngai Hmar and had taken the above flat of Neelkanth Apartment, Vasant Kunj on rent. The case pertaining to the above seizure of heroin effected from the accused Sukleshwar Basumatary and Francis L. Hmar on 02.06.2008 is also pending in this court vide SC No. 71A/08 and the same is also being taken up for disposal, alongwith the present case. Though, in SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

his statement made in the above case SC No. 71A/08, the accused Francis L. Hmar had disclosed about the involvement of one Emmanuel also and there was further a reference of one Lal Ramngai Hmar and the above flat of Neelkanth Apartment, Vasant Kunj in his statement, and also the statement of the other accused Sukleshwar Basumatary, but no complete particulars thereof were available with the DRI officers. However, after the other seizure of heroin was effected from the accused no. 1 Bitoren Dolores Fernandez of this case on 14.12.2008, it became clear from the above statements of the accused no. 2 Emmanuel Chilkezie and his wife/live-in partner Ms Lal Ramngai that the accused Emmanuel Chilkezie was also connected with the above first seizure of heroin effected from the possession of accused Sukleshwar Basumatary and Francis L. Hmar of the above case SC No. 71A/08 and he was the person who had in-fact given the above blue colour suitcase with the concealed heroin to the accused Sukleshwar Basumatary, for its onward delivery at Kualalumpur.

42. However, despite the above facts and further despite the fact that the accused Emmanuel Chilkezie was already arrested in this case on 23.12.2008 and was running in custody, no steps were taken by the DRI officers to seek the arrest of the accused Emmanuel in connection with the above seizure of heroin effected in case SC No. 71A/08. It is only when he was directed to be released on bail in this case vide order dated SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

03.09.2011 that the DRI officers had moved one application dated 08.09.2011 in this case for passing appropriate orders on their request for arresting the above accused in connection with the seizure of heroin effected in case SC No. 71A/08. It is due to the above previous involvement in case SC No. 71A/08 that the bail granted to the accused Emmanuel Chilkezie by this court vide its above order was subsequently cancelled by the Hon'ble High Court vide its order dated 16.09.2011 in the above Crl. M. C. No. 3014/2011, though by that time the above accused was not even formally arrested in connection with the above previous seizure and the above application dated 08.09.2011 moved by the DRI seeking his arrest in connection with the above seizure was still pending. However, in any case, the accused no. 2 Emmanuel was also subsequently arrested on 20.09.2011 in connection with the above previous seizure effected on 02.06.2008, with the permission of this court granted in terms of the order dated 20.09.2011 itself, and a separate complaint for commission of the offences punishable U/S 21, 23 and 29 of the NDPS Act was also filed against him in this court on 04.11.2011 and the said case registered vide SC No. 33A/11 is also pending in this court and is being taken up for disposal with the present case and the above case SC NO. 71A/08.

43. It is further necessary to mention here that the accused no. 1 Bitoren Dolores Fernandez had subsequently absconded from this case, while the evidence SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

of the prosecution/DRI was still going on, and she could not be apprehended or brought to face the trial despite the issuance of coercive proceedings and she was ultimately declared to be an 'absconder' vide order dated 18.12.2012 of this court, after the execution of the process/proclamation U/S 82 Cr.P.C. Since no local address of the above accused in India was available, the proceedings U/S 83 Cr.P.C. against her were not resorted to as there was no likelihood of attachment of any movable or immovable assets of the above accused.

44. Since the accused no. 1 Bitoren Dolores Fernandez has already absconded and the trial was continued against the accused no. 2 Emmanuel Chilkezie only, his statement U/S 313 Cr.P.C. was recorded by this court after the conclusion of the prosecution evidence and all the incriminating evidence brought on record against him was put to him in his above statement. The accused has denied all the incriminating evidence to be either beyond his knowledge or to be incorrect and has claimed himself to be innocent and to have been falsely implicated in this case. It is his case that he was arrested from Sarojini Nagar Market and was forced by the DRI officers to write a dictated statement in which, certain personal facts disclosed by him to the DRI officers were got mixed with certain other incriminating facts about his previous involvement in drug dealings and regarding his being connected with the heroin seized in the present case, which facts are wrong and incorrect.

SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

He has further claimed that the accused Bitoren Dolores Fernandez was not known to him and she came to reside as a paying guest only at their above house/flat during the said period through internet only and he even did not know any person named Mr Kent. Though, he has admitted that the accused Bitoren Dolores Fernandez had stayed at their above flat in Neelkanth Apartment, which he claims was let out by his wife Ms Lal Ramngai Hmar, during the above period, but he has denied giving of any suitcase with concealed heroin to her for carrying it to Hanoi, as alleged. He has further admitted that the above Francis L. Hmar @ Muhammed Rashid was the husband of the sister of his wife Ms Lal Ramngai Hmar, but he denied the incriminating evidence put to him regarding being also connected with the seizure of heroin effected from the above Francis L. Hmar @ Muhammed Rashid and the accused Sukleshwar Basumatary. It is his case that he was made to write a dictated statement by the DRI officers, while he was in their custody and was physically tortured by them, and he was further made to sign on various documents and photographs, including the photographs of the above Muhammed Rashid and Bitoren Dolores Fernandez. Though he has also admitted some of the contents of statement of his wife Lal Ramngai Hmar shown to him to be correct, but it is his contention that some other contents were not correct and he was not aware whether the said statement was made by her wife voluntarily or not. He has further stated that perhaps something was recovered from accused Bitoren Dolores Fernandez and due SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

to suspicion of his being involved in the case, he was also falsely implicated in this case as Bitoren Dolores Fernandez had stayed at their house. Though he has also chosen to lead evidence in his defence, but has not led any evidence on record and subsequently closed his defence evidence.

45. I have heard the arguments advanced by Ms Mala Sharma, Ld SPP for DRI and Sh Manish Khanna, Ld counsel for the accused Emmanuel. I have also gone through the evidence led and the other record of the case, including the written submissions filed on behalf of both the parties.

46. As stated above, since the seizure of heroin was effected from the accused no. 1 Bitoren Dolores Fernandez only and not from the accused no. 2 Emmanuel Chilkezie and the accused no. 1 has already absconded during the trial, the evidence led on record by the prosecution regarding the seizure of the above contraband substance is not meticulously required to be scrutinized as such by this court, though some material discrepancies and lacunaes of the prosecution case can still be considered by this court to test the veracity of the prosecution case. The other evidence against the accused no. 2 brought on record during this trial is mainly in the form of the statement U/S 67 of the NDPS Act made by the accused no. 1 and similar statement made by the accused no. 2 himself, in which it has been SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

allegedly brought on record that the above strolley bag containing the heroin seized from the possession of the accused no. 1 Bitoren Dolores Fernandez was in-fact given to her by the accused no. 2 Emmanuel Chilkezie and accused no. 2 was a party to a criminal conspiracy in existence between him and the accused no. 1 and certain other persons, including the above Mr Kent, to possess and to export out of India of the above contraband substance. Besides the above, there are also stated to be certain other statements made by the wife of the accused no. 2 named Ms Lal Ramngai Hmar, the owner/ landlady of the above flat at Hill Apartments named Smt Valsala Kumari, in which Ms Lal Ramngai had spoken about the drug dealings of the accused Emmanuel and Smt Valsala Kumari had identified the accused Emmanuel as the husband of Ms Lal Ramngai Hmar and residing in the said flat, alongwith Ms Lal Ramngai Hmar. Since the alleged contraband substance of this case has not been recovered from the possession of the accused Emmanuel Chilkezie, the evidence in the form of the above confessional statements made by the two accused and the other evidence led on record is required to be scrutinized thoroughly as to whether the same inspires confidence and is sufficient or not to convict the accused for the offence punishable U/S 29 of the NDPS Act for which he has been charged in this case.

47. The evidence led on record and the challenges made to the same by the defence can be broadly discussed SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

and appreciated under the following heads:-

CONFESSIONAL STATEMENTS U/S 67 OF THE NDPS ACT OF BOTH THE ACCUSED

48. Before discussing anything about the above statements of the accused persons, which are confessional in nature and are being alleged to be made voluntarily, it is necessary to discuss herein the legal position with regard to the admissibility of such statements. It is now well settled that such a statement made by an accused U/S 67 of the NDPS Act is admissible in evidence and can be acted upon by the court if it is found to be made voluntarily. In the case of Raj Kumar Karwal Vs. Union of India & Ors. (1990) 2 SCC 409 it was held by the Hon'ble Supreme Court that a statement U/S 67 of the NDPS Act made by the accused is not the same as a statement U/S 161 Cr.P.C., unless it is made under some threat or coercion etc., this being a vital difference, the same is excluded from the operation of Sections 24 to 27 of the Evidence Act. Even in the case of Kanhaiya Lal Vs. Union of India 2008 (1) AD (Crl.) (SC) 277 : 2008 (1) JCC (Narcotics) 23 it was held by the Hon'ble Apex Court that such a statement made by an accused is admissible in evidence as the same is made by him at a time when he was not under arrest and hence neither the bar of Sections 24 to 27 of the NDPS Act would operate nor the provisions of Article 20(3) of the Constitution would be attracted. Several other judgments of the Hon'ble Supreme Court and of different SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

High Courts are also to the same effect and the only requirement for the court before acting upon such a statement is that the court has to satisfy itself that such a statement was not made under some threat, coercion or influence etc. and was made by the accused voluntarily.

49. However, if such a confessional statement made by an accused is retracted subsequently, then the position is changed and it is well settled that in such a case the court has to look into the facts and circumstances of the case and the above retraction to see if the confessional statement of the accused was in fact made voluntarily or not and the law is that it will not safe for the court to arrive at a finding regarding the guilt or conviction of the accused solely on the basis of such a retracted statement and the same is required to be corroborated by some independent material evidence on record.

50. Though the Ld SPP for DRI has relied upon a judgment of the Division Bench of the Hon'ble Supreme Court in case Kanhaiya Lal, Supra to argue that the retraction of an accused of his confessional statement cannot be looked into and considered by the court unless it is proved on record as per the provisions of the Evidence Act, but the prepositions of law as laid down in the above said case are no longer good and binding in view of some subsequent judgments of the Hon'ble Supreme SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

Court. In the case of Francis Stanly @ Stalin Vs Intelligence Officer, NCB, Thiruvanan Thapuram 2008 Drugs Cases (Narcotics) 124 there was no allegation that the appellant himself was found in possession of any narcotics and the allegation was only that he handed over some narcotics to a co-accused and the only evidence against the appellant was the retracted statement of the co-accused and the appellant's own retracted confession and it was held by a division bench of the Hon'ble Supreme Court that it would not be safe to maintain the conviction of the appellant in such a case as an accomplice's evidence is looked upon with suspicion because to protect himself he may be inclined to implicate the co-accused. Reference can also be made to a full bench decision of the Hon'ble Supreme Court in case Union of India Vs Bal Mukund and Ors. 2009 (2) Crimes 171 (SC) wherein it was held that conviction should not be based merely on the basis of a statement made U/S 67 of the NDPS Act without any independent corroboration particularly in view of the fact that such statements have already been retracted. It was also held therein that the confessional statement of a co-accused also could not be used as a substantive piece of the evidence against the other accused. In the case of Noor Aga Vs State of Punjab & Anr. 2008(9) Scale 681 also it was held by a Division Bench of the Hon'ble Supreme Court that the confessional statement of an accused like that the one U/S 108 of the Customs Act is considered to be a very week piece of evidence and it will not be safe to SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

convict the accused on the basis of such a statement though such a statement is technically admissible in evidence and is not hit by Section 25 of the Evidence Act or Article 20(3) of the constitution.

51. Besides the above judgments, there is also another judgment of a Division Bench of the Hon'ble Supreme Court in case Ram Singh Vs Central Bureau of Narcotics 2011 (3) JCC (Narcotics) 140 and also a recent judgment of a single bench of our own High Court in case DRI Vs Raj Kumar Mehta & Ors.2011 (3) JCC (Narcotics)

156. In case of Ram Singh, Supra also it was held by their Lordships of the Hon'ble Supreme Court that though as an abstract proposition of law it cannot be said that a conviction cannot be maintained solely on the basis of the confession made U/S 67 of the NDPS Act, but as of a rule of prudence the court requires some corroboration thereof. In the other case of Raj Kumar Mehta, Supra also it was held by our own Hon'ble High Court that a person cannot be convicted solely on the basis of a confessional statement of the co-accused because a statement of co-accused U/S 30 of the Evidence Act can be used only to lend assurance to other evidence against a co-accused, i.e. it is one more circumstance in the basket of circumstances of the prosecution.

52. It is clear from the above legal discussion that though earlier in the case of Kanhaiya Lal, Supra the view of the Hon'ble Supreme Court was that an SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

accused can be convicted solely on the basis of his statement U/S 67 of the NDPS Act and if he has retracted therefrom his retraction is required to be proved on record as per the provisions of the Evidence Act, but, however, in the subsequent decisions of the Hon'ble Supreme Court and also of the different High Courts there is a shift in the stand and the confessional statement of the accused under the above said provisions is now not to be acted upon to make it the sole basis of the conviction of an accused and even if his retraction on record is not proved as per the Evidence Act, the court has to look forward for some independent corroboration of the same as a rule of prudence.

53. As is clear from the legal propositions discussed above, a retracted confessional statement made by the accused is a very weak piece of evidence and the statement made by a co-accused even stands on a lesser footing than that of the accused himself and no conviction should be arrived at on the basis of these statements, unless there is sufficient independent corroborative material on record to substantiate the contents of these statements. It is a matter of record that the above statement Ex. PW5/D made by the accused no. 1 and also the statements Ex. PW18/B and Ex. PW18/C of the accused no. 2 Emmanuel were all retracted by these accused persons subsequently during the investigation of the case itself and the retraction application of accused no. 1 on record is dated SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

05.01.2009 and copy thereof was received by Ld SPP for DRI on 28.01.2009, as per the receiving thereof appearing on the application itself. The accused no. 1 was formally arrested in this case on 15.12.2008 and was produced in the court on the same day and was remanded to custody till 29.12.2008 and it appears from the record that she was not produced in the court from custody on 29.12.2008 and one application for extension of judicial remand moved by the DRI on that day was directed to be put up on 02.01.2009, but it is not clear whether the same was taken up on 02.01.2009 or not. However, on one other application dated 06.01.2009 moved by the DRI, the court had called a report from the Jail Superintendent on 09.01.2009 for 14.01.2009 and the accused was also produced in the court on 14.01.2009, alongwith a report of the Jail Superintendent of that day, and then her remand proceedings were streamlined. Hence, it is not clear from the record exactly as to when the above retraction application dated 05.01.2009 might have been actually filed by the accused in this court and the same should have been filed on record only on 14.01.2009, when the said accused was produced in this court after the initial remand. In the above application, the accused no. 1 had alleged that she was subjected to physical cruelties and was also forced to write and copy a statement by a lady officer of DRI. Though, this application was also subsequently replied by the DRI, but in view of the above retraction application of the accused on record, the court to be SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

very cautious in scrutinizing the above confessional statement of the accused no. 1 Bitoren Dolores Fernandez implicating herself as well as the accused no. 2 in connection with the said seizure. However, as such there does not appear to be any inordinate and unnecessary delay on the part of this accused in moving of her retraction application as this application is dated 05.01.2009 and it appears that after her initial production in the court on 15.12.2008, she was next produced in the court only on 14.01.2009.

54. There also does not appear to be any such delay on the part of accused no. 2 as his three different retraction applications containing similar allegations of similar physical and mental cruelty and of being forced to write the above confessional statements are also found to be on record and all these application are dated 27.12.2008 and were filed in this court on 06.01.2009. This accused no. 2 was formally arrested in this case only on 23.12.2008 and was first produced in the court on the same day and was remanded to JC till 06.01.2009, on which date the above retraction application was filed by him on record, as reflected in the order sheet of the court of that day.

55. The contents of the above statements made by the accused have already been discussed above in detail and the gist thereof was that the accused no. 1 Bitoren Dolores Fernandez had come to Delhi to take the above SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

consignment of heroin from Delhi to Hanoi, via Hyderabad, at the instance of the above Mr Kent and she had stayed at the house of accused no. 2 Emmanuel Chilkezie, which was subsequently found to be rented out to Ms Lal Ramngai Hmar, the wife of accused no. 2, from 09.12.2008 to 14.12.2008 and the above strolley bag with concealed heroin therein was also given to her at the above said house, by the accused no. 2 as well as the above Mr Jan. Even the accused no. 2 in his above statements is claimed to have admitted to had handed over the above strolley bag containing heroin to the accused no. 1, which was brought there by the above Mr Jan and was delivered by one Sanjay, at the instance of above instance of the above Mr Kent. However, apart from the above confessions made by the above two accused of having been connected with the above seizure, the IO/PW5 had not collected any other independent evidence to substantiate the fact that it was the accused no. 2 Emmanuel only who had in-fact supplied the above strolley bag to the accused no. 1 Bitoren Dolores Fernandez or he was involved with the above Mr Jan in the supply of the above heroin concealed in the said suitcase to the accused no. 1. The above persons named as Mr Kent, Mr Jan and Mr Sanjay etc in the statements of the accused could not be traced out and hence, apart from the above disclosures made by these two accused, there is also no satisfactory evidence to substantiate the fact that any such persons named as Mr Jan or Mr Sanjay etc even actually existed, what to say of their SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

being connected with the supply or the ultimate delivery of the said heroin at Hanoi. Further, though the accused Emmanuel had also allegedly admitted about being involved in some previous drug deliveries at the instance of Mr Kent, after having collected it from the above Sanjay and delivered to some other person, but no credible evidence regarding his involvement in such previous drug dealings could also be collected by the IO/PW5. Hence, simply because the investigating agency was able to find that the above flat of Hill View Apartment in Vasant Kunj actually existed and the accused no. 1 Bitoren Dolores Fernandez had stayed in the said flat during her above visit to India, as disclosed by her and the accused Emmanuel in their above confessional statements and further admitted by the accused Emmanuel even in his statement U/S 313 Cr.P.C., no inference can be drawn by this court to the effect that the above strolley bag containing the heroin concealed therein was also supplied to accused no. 1 by the accused no. 2 in the said flat. Further, simply because it was found during the investigation, from the statements of Ms Lal Ramngai Hmar and the accused no. 2 and further admitted by the accused no. 2 in his statement U/S 313 Cr.P.C., that his wife had accompanied the accused no. 1 to the Delhi airport and got a ticket for Hyderabad issued for the above accused for her above flight dated 14.12.2008, no inference can also be drawn by this court therefrom that the accused no. 1 was to carry heroin by the above flight and the same was SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

supplied to her by the accused no. 2 or the accused no. 2 was even aware of the carrying of any such heroin by the accused no. 1 in her above luggage.

56. There are also certain other factors which make the authenticity of these statements to be doubtful. As per the prosecution case, the panchnama proceedings of the substance seized from the accused no. 1 had started at around 8:00 PM on 14.12.2008 and the same had continued till 11:45 PM on that day. The summons Ex. PW5/C given to the accused no. 1 U/S 67 of the NDPS Act are also dated 14.12.2008 and the same might have certainly issued to her only after the conclusion of the panchnama proceedings being conducted by the IO/PW5 Ms Anju Singh at the premises of the Domestic Airport. The above summons were for appearance of this accused before the above IO/PW5 in the office of DRI on 15.12.2008 at 1:00 AM, i.e. the night of 14-15.12.2008. After her apprehension from the airport, the accused no. 1 was also admittedly brought to the office of DRI and it cannot be just believed that she had voluntarily agreed to accompany the DRI officers to their office for tendering of a statement, while missing her above flight for Hyderabad and rather Ld defence counsel appears to be write in making a submission that she was under the custody of DRI officers at that time, for all practical purposes, even though she was not technically arrested in this case and hence, there are serious doubts about the tendering of her above statement by her voluntarily.

SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

57. Further, the above statement Ex. PW5/D of accused no. 1 tendered in response to the said summons is also a long 12 page statement written in the handwriting of the said accused and it contains a very detailed description of the panchnama proceedings conducted with regard to the above seized substance and also the service of a notice U/S 50 of the NDPS etc. upon her, which could never have been incorporated with such details in the said statement by the accused herself, if she had tendered the said statement on her own. Though the IO/PW5 in her statement made in this court has also claimed that after some pages of the statement were recorded by the accused, the accused was provided some rest on her request and the said statement was again resumed by the accused in the morning of 15.12.2008 at around 7:30 AM, but her these depositions are found to be beyond the record as the above statement does not contain any mention of the taking of such rest by the accused or even of her request for the same. There also appears to be some overwriting in date below the signatures of the accused as well as of the IO/PW5 on the first page of the said statement and the date appears to have been changed from 14 to 15. Since the accused was apprehended from the airport at around 8:00 PM and appears to have been continuously made to participate in the seizure proceedings and then to tender the above long statement, it cannot be just believed that she could have been even in a proper state of mind to tender the said statement and the same in SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

itself is a mental as well as physical torture. Moreover, except the stay of the accused no. 1 at the flat of accused no. 2, no other part of her statement could be corroborated by the IO/PW5 form any independent source.

58. Now coming to the statements Ex. PW18/B and Ex. PW18/C of the accused no. 2 Emmanuel also, no independent evidence or material has been collected by the IO/PW5 to substantiate the correctness of the confessions made by this accused regarding his involvement in respect of the seizure of the above heroin. Ld defence counsel has also rightly submitted that once this accused had become suspicious by the arrest of accused no. 1 by the police from the fact that she did not give a call to him after reaching Hyderabad, as recorded in the statement Ex. PW18/C of this accused, there was no occasion or reason on the part of this witness and his wife/live-in partner Ms Lal Ramngai Hmar to appear or surrender themselves in the DRI office for tendering the above statements, when he might have been fully aware that he could also be arrested in connection with the above seizure and there was no compulsion for him to appear before the DRI officers. From the very beginning, the defence of this accused has been that he had been picked up from Sarojini Nagar market and this defence was initially set up in the above retraction statements of the accused itself and then continued during the trial as well as in the statement U/S 313 SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

Cr.P.C. made by the accused and has thus remained consistent. Even no evidence could be collected about any alleged previous drug dealings of this accused also. Hence, simply on the basis of the above confessional statements made by this accused as well as the accused no. 1, which already stand retracted on record, the accused Emmanuel cannot be convicted for such a serious offence like the offence punishable U/S 29 of the NDPS Act, which carry a very stringent punishment, as neither any seizure was effected from him nor the incriminating portions of the above statements have been corroborated by any independent evidence.

STATEMENTS OF MS LAL RAMNGAI HMAR AND SMT VALSALA KUMARI

59. The statement of Ms Lal Ramngai Hmar Ex. PW5/L dated 22.12.2008 made before the IO/PW5, in response to the summons Ex. PW5/K is also being referred to as an incriminating evidence against the above accused Emmanuel as in this statement, the above witness has stated that the accused Emmanuel, who was her husband, was also residing with her in the above flat no. T-304, Hill View Apartment, Vasant Kunj, which was taken on rent by her from PW17 Smt Valsala Kumari. It is further submitted on behalf of the DRI that in the said statement, Ms Lal Ramngai Hmar has also admitted that the above accused no. 1 Bitoren Dolores Fernandez @ Dolly visited and stayed at their above flat and she (Ms Lal Ramngai Hmar) had accompanied the above accused to SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

the Delhi airport on 13.12.2008 and had got a ticket for 14.12.2008 from Delhi to Hyderabad, issued in the name of the said accused, at the instance of accused Emmanuel.

60. However, in this regard also, it is observed that the above Smt Lal Ramngai Hmar has been examined as a witness by the prosecution on record as PW23 and though in her statement, she has admitted the tendering of her statement during the investigation, but she has not supported the case of the prosecution regarding some incriminating contents contained in her above statement and has only owned certain portions of the said statement, while disowning the others. The admitted portions of her statement are about her personal details, relation with the accused Emmanuel and the visit and stay of above Dolly at their house and her visit to the airport etc. with the above Dolly for issuance of a ticket, as stated above, but from the same no inference of the accused Emmanuel being connected with the above seized substance can be drawn as this witness has also clearly stated in her above statement that she was not aware that Emmanuel was dealing in drugs or any strolley bag containing heroin was given by him and from the above Mr Jan to accused no. 1 Bitoren Dolores Fernandez because she was not present in the house at the relevant time when the accused Bitoren Dolores had left their house for the Delhi Airport on 14.12.2008.

SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

61. Similarly, Smt Valsala Kumari has also been examined on record as PW17 and she has deposed about the tendering of her statements Ex. PW5/J and PW5/N before the above IO/PW5 on 17.12.2008 and 22.12.2008, in response to the summons Ex. PW5/M and Ex. PW5/K respectively issued to her on the above dates. Firstly, it is not clear as to by what mode her presence was procured in the DRI office on the above dates as no summons of these dates were served upon this witness in advance and the summons are also found to be of the same dates, on which she had allegedly tendered her above statements and it appears that she was called in the DRI office first and then handed over the said summons and made to write the above statements, which is a strong circumstance to doubt the voluntariness thereof and cannot be termed as a fair investigation. Moreover, in her first statement Ex. PW5/J, she had only stated about renting out of the above flat to Ms Lal Ramngai Hmar and seeing her husband Emmanuel once in the said flat and though in her subsequent statement Ex. PW5/L she had identified the accused Emmanuel to be residing with her tenant with Ms Lal Ramngai Hmar in the said flat, who was introduced to her as husband of Ms Lal Ramngai Hmar, but this statement in itself also cannot be considered to be an incriminating and stretched to the extent that any contraband substance was handed over by the accused Emmanuel to the accused Bitoren Dolores Fernandez in the said flat and this witness does not even speak about the visit or stay of the accused Bitoren Dolores Fernandez SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

in the said flat.

EVIDENCE PERTAINING TO THE RECOVERY OF THE SEIZED SUBSTANCE

62. As discussed above, though the seizure of the above heroin of this case was not effected from the possession of the accused Emmanuel and it was effected from the accused Bitoren Dolores Fernandez, but still the evidence led on record pertaining to the above seizure has got some relevance for appreciating the charge for the offence of criminal conspiracy framed against this accused, in furtherance of which the above contraband substance was being allegedly possessed by the accused no. 1. As also discussed above, besides the IO/PW5 Ms Anju Singh, PW4 Sh Ramesh Kumar, PW8 Sh Devender Singh and the two public witnesses, i.e. PW12 Sh Vikas Kumar and PW14 Sh Narender Kumar, are all being alleged to be witnesses of the seizure of the said substance. However, on a careful examination of their testimonies, it is revealed that even the evidence led on record by the prosecution about the recovery of the said substance is not found to be convincing enough for different reasons.

63. Firstly, though PW4 Sh Ramesh Kumar and PW8 Sh Devender Singh have both claimed on record that they were also in the above raiding team led by the IO/PW5 Ms Anju Singh, which had intercepted the accused no. 1 Bitoren Dolores Fernandez from the Domestic Airport of SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

Delhi and recovered the above contraband substance, but it is found that neither the notice U/S 50 of the NDPS Act Ex. PW12/A given to the above accused nor the panchnama Ex. PW5/A or its annexures Ex. PW5/B1 to Ex. PW5/B3 are found to be bearing the signatures of either of these two witnesses. Though, it was not mandatory for the IO/PW5 to have obtained the signatures of all the officers of DRI participating in the said raid on the above documents, but atleast some credible evidence could have been produced before this court to substantiate the claim being made by these witnesses regarding the participation of PW4 and PW8 in the said raid. It is also found that the names of these officers are even not mentioned in the secret information reduced into writing as Ex. PW4/A as a members of the said team, as though PW9 Sh Nilank Kumar had directed PW4 Sh Ramesh Kumar to collect a team of IOs and others to intercept the above passenger, but it is nowhere recorded therein that PW4 had also participating in the said team, what to say of PW8 Sh Devender Singh. No other record in the form of any register or logbook of the official vehicles etc has also been produced in this court to show the participation of these officers in the above raid and their names are even not found mentioned as members of the raiding team either in the above panchnama or even in the complaint filed against the accused persons in this court.

64. It is only for the first time that it was SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

claimed by PW4 Sh Ramesh Kumar in this court during his statement made on 24.05.2010 that he and PW8 were also part of the above raiding team, besides some other officers namely Sh K. S. Ratra, Sh Alkesh Rao and Sh Diwakar Joshi etc. The above depositions of PW4 came after the lapse of about 1½ year from the date of seizure and the accused cannot be permitted to be surprised by the prosecution by putting such a case at a belated stage when there is no record or document prepared or supplied to him to show the participation of these witnesses in the above raid and even no statements of these witnesses U/S 67 of the NDPS Act were recorded during the investigation. Further, though according to PW4, Sh K. S. Ratra and Sh Alkesh Rao were also in the raiding team and one of these officers Sh Alkesh Rao has also been examined in this case as PW18, but it is found that he has not made any such claim on record regarding his participation in the above team and even his signatures are not found to be there on any of the documents of this case. Moreover, even the depositions of PW8 Sh Devender Singh made on record regarding his participation in the search and seizure are found to be contradictory in nature as though in his examination in chief, he has deposed regarding the search of the above baggage of the accused, recovery of the above packet of heroin from the said baggage, the weightment of the substance, the drawing of samples and the sealing of the parcels of samples and the case property etc, but in his cross examination, he has shifted his stand and has SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

deposed that he was only present till the apprehension of the accused no. 1 from the airport and the strolley bag of accused was not opened and the recovery of the packet not effected in his presence and even the panchnama proceedings were also not conducted in his presence as he had left the airport premises for some other official work.

65. Now coming to the depositions made by the two public witnesses Sh Vikas Kumar/PW12 and Sh Narender Kumar/PW14, it is found that they both are allegedly the loaders of the above airlines, i.e. Indigo Airlines, the flight of which the accused Bitoren Dolores Fernandez was to board on the relevant day. Even they both have not supported the case of the prosecution about the above seizure of heroin from the accused in toto and they do not even provide sufficient corroboration to the testimonies of each other or that of the IO/PW5 about the above seizure as their statements are found to be full of various material contradictions and discrepancies. PW12 in his examination in chief has stated that he was standing at the check-in counter of his airlines when he was called by the manager of his airlines in the backup office and one bag was already lying in the said office. His above depositions apparently bely the prosecution story that the above witness was first told about the secret information and then requested to join the proceedings, even prior to apprehension of the accused. Though, subsequently, he SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

was permitted to be cross examined by DRI on certain aspects on which he did not support the case of the prosecution in his chief examination, but even in his above cross examination, he has denied the conveying of the above secret information to him by the DRI officers in advance, though he has admitted certain other facts pertaining to the service of a notice U/S 50 of the NDPS Act upon the above accused and the recovery of the above packet containing heroin from her strolley bag and the testing thereof etc. Earlier in his examination in chief, he has also stated that he does not even know the nature of the substance which was recovered from the above bag nor it was tested in his presence, but by the time he had corrected himself in his above cross examination conducted on behalf of the prosecution, the damage to the prosecution case has already been done and his credibility impeached from his own depositions. In his cross examination, he even went on to state that the contents of the panchnama Ex. PW5/A were not read over to him before taking his signatures thereon by the DRI officers and he did not even know as to where the same was prepared. According to him, his signatures on the panchnama were obtained at around 8:30 PM and the DRI officers had left the premises of the airport with the above lady accused by 9:15 PM and he also stated that when the DRI officers were conversating with the above accused in English language, which he could understand little bit, the accused answered in affirmative that her baggage may be searched by a Gazetted Officer, but it SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

was stated by the DRI officers that since a Gazetted Officer was not available there, her search can be conducted by any other officer of DRI, to which the accused agreed. His above depositions are also against the prosecution case as according to the IO/PW5, the accused had refused for her search before a Gazetted Officer or a Magistrate. He has further stated on record specifically that no document was given by the DRI officers to the accused at the check-in counter, which falsify the case of the DRI regarding the service of the above notice U/S 50 of the NDPS Act at the said place. According to him, the officer of DRI who had apprehended the accused was not a lady officer but a male officer. Contrary to the depositions of PW12, PW14 Sh Narender Kumar has stated on record that the writing work at the airport had continued till 2:00/3:00 AM and certain other discrepancies and contradictions are also there in his statement and the statement of PW12 regarding the colour etc of the seized substance and the samples produced before them. PW14 was also not sure whether any notice was given to the accused at the spot or not and according to him, the paper slips pasted on the parcels were all got signed from him in advance and prior to the pasting thereof on the parcels. Moreover, both the above witnesses were loaders only and were also not having any educational background and there was no reason on the part of the IO/PW5 in not associating any educated person or official, of the above airlines or otherwise, in the panchnama proceedings, which could SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

have authenticated and corroborated their evidence regarding the seizure in better way than by joining of almost uneducated persons who were even not aware about the proceedings being conducted in their presence.

DECREASE IN THE PURITY OF DIACETYLMORPHINE (HEROIN)

66. As already stated above, the purity of diacetylmorphine (heroin) in the sample marked A1 drawn out of the above seized heroin was given to be 86 percent in the above test report Ex. PW7/A dated 18.02.2009 of the CRCL, New Delhi, which has been duly proved on record from the depositions made by PW7 Sh Bhuwan Ram examined on record. As also discussed above, a fresh sample was drawn out of the remaining seized heroin in this court on 23.02.2011, in terms of the order dated 18.01.2011 passed on the application moved by the accused no. 1, and the said sample mark AC-1 was also sent to CRCL, New Delhi for its chemical analyses and the report dated 23.03.2011 regarding the testing of the said sample was also subsequently filed in this court. Though the above sample had tested positive for the presence of diacetylmorphine (heroin) during the subsequent testing also, but the purity percentage thereof in the said sample was given to be only 41.3 percent, i.e. almost 50 percent of the previous purity of 86 percent, which was given in the previous test report Ex. PW7/A of the same laboratory. It is also stated above that both the accused persons were also SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

subsequently granted bail by this court due to the above drastic fall observed in the purity percentage of diacetylmorphine (heroin) in the above two test reports. The above bail was granted mainly in view of the propositions of law laid down in cases Ram Narain Vs. State 2005 VI AD (Delhi) 245 and Rahul Saini Vs. State 2006 VII AD (Delhi) 531. In the case of Ram Narain, Supra, the accused was granted bail under the NDPS act by the Hon'ble Delhi High Court as the purity of heroin in the re-testing report of the sample taken out of the seized heroin of 1.5 KG was given to be only 0.8 percent as against its earlier purity of 1.08 percent in the first test report and the authenticity of the first sample was doubted. In the other case titled Rahul Saini, Supra also, the bail was granted to an accused by the Hon'ble Delhi High Court in view of the considerable difference observed between the purity percentage of the heroin in two test reports of the samples taken out of the seized heroin weighing 1.5 KG as in the first report, it was found to be 54.9% and in the second report it was given as 19.4% only. There is no challenge to the above test report dated 23.03.2011 regarding the above second sample drawn from the remaining seized substance of this case and the said sample was also drawn in this court in the presence of Ld SPP for DRI and even the concerned IO/officer of the DRI, incharge of the prosecution of this case. There is also no explanation on record from any quarter as to what were the reasons behind such drastic fall in the SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

purity percentage of diacetylmorphine (heroin) in the above second sample as no request was made even on behalf of DRI to summon the above experts for cross examination, with regard to the reasons for such a drastic fall of purity. Hence, in view of the legal propositions laid down in the above judgments, there are serious doubts regarding the genuineness and authenticity of the first sample drawn out of the said substance and tested vide the above test report Ex. PW7/A, to the effect as to whether it was actually drawn out of the said substance or not and the benefit of such doubt is also required to be extended to the accused, as held in the above said pronouncements.

67. In view of the above discussion, it is held that the prosecution has miserably failed to prove its charge and the guilt of the accused for the above offences beyond reasonable doubts and hence, the accused is acquitted of the above charge while holding that the evidence led on record is not sufficient to establish the charge and he is deserves to be given the benefit of doubt.

68. Since the accused is a foreign national and is liable to be deported back to his native country, unless he is wanted to be detained in any other case, the Jail Superintendent is directed that he should not be released from custody and rather he should be deported back to his native country as per law and the case SC No. 39A/09 DRI Vs. Bitoren Dolores Fernandez & Anr.

property be also confiscated and disposed off as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment, if any, or the orders of the Appellate Court, as the case may be.

69. The bond U/S 437A Cr.P.C. is yet to be furnished by the accused and hence, the file be consigned to record room only after furnishing the above bond.



Announced in the open
court on 24.12.2014                                     (M.K.NAGPAL)
                                                  ASJ/Special Judge NDPS
                                                      South District
                                                   Saket Court Complex
                                                         New Delhi




SC No. 39A/09                                        DRI Vs. Bitoren Dolores Fernandez & Anr.

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Sc No. 39A/09 Dri vs . Bitoren Dolores Fernandez & Anr. on 24 December, 2014