1 IN THE COURT OF [ENTITY] : ADDL. SESSION JUDGE SPECIAL JUDGE : NDPS : ROHINI COURTS : DELHI In the matter of : [CASE NUMBER] FIR No.133/12 PS Crime Branch U/[SECTION] [ACT] & U/[SECTION], [SECTION], [SECTION] [ACT] and also U/[SECTION] Foreigners Act [ENTITY] Versus Sunday [ENTITY] S/o Mr. Okeke R/o 72, Lawnsen, Lagos, Nigeria. Date of Receipt : 17.08.2012 Date of arguments : 29.04.2013 Date of Decision : 30.04.2013 JUDGMENT
1. The above named sole accused, was sent up for trial in this case for offences u/[SECTION] of [ACT]; u/[SECTION], [SECTION], [SECTION] [ACT] and; u/[SECTION] of The [ACT].
1.1. In nutshell, the case of prosecution is that on 15.05.2012, based on secret information, the accused was apprehended at Delhi Haat Gate, Pitam Pura, Delhi, an from his personal search, 103 grams of Page of 39 2 Cocaine was recovered. One passport was also found, which was bearing visa stickers. The accused was initially arrested for offence U/[SECTION] [ACT] only and, thereafter, his passport and visa were sent for verification. FSL result confirmed that the substance recovered from the accused, was indeed Cocaine. Accordingly, charge sheet for the offence U/[SECTION] [ACT] was only filed. 1.2. On receipt of report that one of the visa stickers, affixed on his passport, was forged, [SECTION] and [SECTION] of [ACT] and [SECTION] of The [ACT] were also invoked against the accused in the present case and subsequently, supplementary charge sheet for the offences u/[SECTION] of [ACT] and u/[SECTION] of [ACT] was also filed.
2. Accordingly, charges were framed against the accused, to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined total ten witnesses. 3.1. PW3 [ENTITY], PW4 [ENTITY] and PW10 SI [ENTITY] are the recovery witnesses. These three witnesses deposed that on 15.05.2012, secret information was received by PW10 against the accused, upon which a raiding party, comprising of these three witnesses as also Ct. [ENTITY] and [ENTITY], was Page of 39 3 constituted. PW10 also deposed that before constituting the raiding party, he produced the secret informer before Inspector [ENTITY], who also inquired from the secret informer and on being satisfied, conveyed the information to ACP [ENTITY], telephonically. ACP [ENTITY] instructed the Inspector to take appropriate legal action. Thereafter, the secret information was reduced to writing vide DD no.28, at 7.45 PM, which is proved as Ex. PW1/A. PW10 also deposed that he furnished two copies of the said report to Inspector [ENTITY], who forwarded it to senior officers.
The raiding party left the office of Narcotics Cell, Shakar Pur, Delhi, for the spot, at 8.00 PM, under DD no.29, Ex. PW3/A. The secret informer also accompanied the raiding team to the spot. At the spot, the raiding team members were again briefed by PW10 and, position was taken by the raiding team members, as per the instructions of PW10. Accused was noticed at about 9.25 PM, when he was coming from under the metro track at Delhi Haat, Pitam Pura. The secret informer pointed out towards the accused and left the spot. The accused came near the raiding team members, stood there for few minutes, and again started going back in the same direction from which he had come. At that time, Page of 39 4 the accused was apprehended. After apprehension of accused, the raiding team members were introduced to the accused and he was also informed about the secret information. These three witnesses further deposed that notice u/[SECTION] [ACT], was served upon the accused. The notice u/[SECTION] [ACT] is proved as Ex. PW3/B. It is also deposed that the accused refused to get himself searched before a Gazetted officer or a Magistrate. The refusal of accused, was recorded by PW10 on the original notice and it is proved as Ex. PW3/C. 3.2. PW10 claimed that the accused was informed that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate and meaning of those officers were also conveyed to him. Thereafter, a notice u/[SECTION] [ACT] was served upon the accused, by delivering a copy of notice to the accused. 3.3. There is a difference in the version of PWs 3, 4 & 10, as to the manner and time of service of notice upon the accused. There is also difference of version in the testimony of these three witnesses, as to whether the accused was simply informed that he can be searched before a Gazetted Officer or a Magistrate, or whether he was specifically informed that he has such a legal right under [SECTION] [ACT].
Page of 39 5 3.4. These three witnesses further deposed that after service of notice u/[SECTION] [ACT], search of accused was conducted and from the right side pocket of half pants of accused, which he was wearing, one transparent polythene was recovered, which was found to be containing Cocaine. On weighing, the cocaine came to be total 103 grams, out of which, two samples were separated. All the three pulandas i.e. two of sample and one of remaining contraband were sealed with the seal of 7APSNB Delhi. FSL Form was filled up and specimen seal was applied on it also. The samples were given Mark A and B and the main contraband was given Mark C. Seal after use was handed over to PW3. Thereafter the case property was taken into police possession, vide seizure memo, Ex. PW3/D. Thereafter, [ENTITY] Ex. PW10/A was prepared by PW10, which was given to PW4 [ENTITY], to be taken to PS for registration of First Information Report. PW4 also took along all the three sealed pulandas, the FSL Form and a carbon copy of seizure memo from the spot to the PS, where he handed over the [ENTITY] to the Duty Officer for registration of FIR and he handed over the three sealed pulandas with carbon copy of seizure memo and FSL Form to the SHO, (PW8). PW5 Inspector [ENTITY] was appointed as further investigating officer of this case.
Page of 39 6 3.5. PW4, PW10 and PW5 deposed that PW5 reached the spot, on being assigned further investigation of this case. PW5 deposed that DD no.3 Ex. PW5/A was entered in this regard. At the spot, PW10, PW4 and Ct. [ENTITY] were present along with the accused. The accused was handed over to PW5, along with all the documents prepared by PW10 at the spot, by that time. PW5 thereafter prepared the site plan Ex. PW5/B, at the instance of PW10 and interrogated the accused. The accused was thereafter arrested vide memo Ex. PW3/E. Personal search of the accused was conducted vide memo Ex.PW3/F, in which, one copy of notice u/[SECTION] [ACT], which was served upon the accused by PW10, was recovered, along with Indian currency Rs.4[SECTION]/. One passport containing visa was also recovered from the accused. Thereafter, disclosure statement of the accused was recorded, which is Ex.PW3/H. Subsequently, the accused and the personal search articles were taken to PS Crime Branch, Malviya Nagar and the personal search articles were deposited in the Malkhana by PW5. PW5 also deposed that at 9.00 AM, on the next day, DD no.8 was recorded regarding arrival in the office, which is proved as Ex. PW5/C. PW5 also proved his report u/[SECTION] [ACT] as Ex. PW5/D and Page of 39 7 he deposed that he tendered the report to PW9 Inspector [ENTITY] in the office. PW5 also deposed that the sample pulanda was sent to FSL on 23.05.2012 through Ct. [ENTITY] along with FSL Form.
PW5 also proved that the passport of the accused was found to be genuine, vide report Ex. PW5/F1 dated 25.07.2012. He deposed that one of the visa stickers, that is visa bearing no. AM 379177, purportedly issued on 15.12.2011, was found to be forged, vide report of Ministry of External Affairs, dated 24.07.2012, Ex. PW5/G1. The FSL Report is proved as Ex. PW5/E and the carbon copy of notice recovered from the personal search of accused was proved as Ex. PW3/G. 3.6. PW10 SI [ENTITY] also deposed that he prepared a report u/s.
[SECTION], regarding recovery of contraband from the accused, which he furnished to PW9 Inspector [ENTITY]. The said report is proved as Ex. PW10/B. 3.7. PW8 Inspector [ENTITY], SHO PS Crime Branch, deposed th th that on the night intervening 15 & 16 May 2012, at about 1.35 AM, PW3 [ENTITY] came to his office in the PS and handed over three sealed pulandas, which were already sealed with the Page of 39 8 seal of PW10 along with one FSL Form with same specimen seal and a carbon copy of seizure memo. He inquired the FIR number from the Duty Officer and noted down the FIR number on all the three pulandas, the FSL Form as well as on carbon copy of seizure memo. He also signed all the three pulandas, the FSL Form and carbon copy of seizure memo. Thereafter, he called PW6 [ENTITY], MHCM, in his office, along with register no.19 and handed over all these things to PW6.
3.8. PWs 8 & 6 further deposed that an entry in this regard was made in the register no.19, Ex. PW6/A, bearing signatures of both of them, vide entry at sl. no.1460. PW8 also deposed that he entered DD no.23, regarding this fact, which was proved as Ex. PW8/A. PW6 also deposed that on the next morning, at about 7.30 AM, PW5 deposited personal search articles of the accused, regarding which also, an entry was made, in Ex. PW6/A. 3.9. PWs 6 & PW7 Ct. [ENTITY] deposed that on 23.05.2012, on the instructions of SHO, one of the parcel bearing Mark A was sent to FSL, duly sealed, along with FSL Form vide RC No.337/21, Ex. PW6/B, regarding which also, endorsement was made in register no.19 at Ex. PW6/C. Sample was deposited by PW7 in the FSL Page of 39 9 and he obtained acknowledgment of acceptance of exhibits, Ex. PW6/D, which he deposited in the Malkhana. PW6 also deposed that the result of FSL was received in the Malkhana on 30.07.2012 through Ct. [ENTITY] in a sealed parcel, sealed with the seal of FSL, regarding which also an entry was made in register no.19 at Ex. PW6/C1.
3.10. PW2 [ENTITY] was the Duty Officer, who proved the FIR as Ex. PW2/B, endorsement on rukka as Ex. PW2/C and the DD no. 22 as Exs. PW2/A and PW2/D, respectively. 3.11. PW9 Inspector [ENTITY] corroborated the testimonies of PWs 10 & 5, to the effect that on 15.05.2012, a secret informer was produced before him by PW10 and on being satisfied, he telephonically informed ACP [ENTITY], who instructed him to take legal action. He also deposed that PW10 noted down the secret information vide DD no.28, copy of which was furnished to him and he forwarded the same to the ACP. PW9 also deposed that PWs 10 & 5, respectively, prepared two separate reports u/[SECTION] [ACT], which were furnished to him and which he forwarded to the ACP. He proved both these reports as Exs. PW1/C and PW1/D, respectively.
Page of 39 10 3.12. Lastly, PW1 [ENTITY], Reader of ACP concerned, deposed that on 16.05.2012, he received DD no.28 dated 15.05.2012 Ex. PW1/A, in the office, which was put up before the ACP, who made his endorsement Ex. PW1/B on it. This witness also deposed that on 16.05.2012, two reports Exs. PW1/C and PW1/D were received in the office, which also were put up before the ACP, who appended his signatures on them. The relevant entries of receipt of those reports were proved as Ex. PW1/E. 3.13. PW3, PW4 & PW10, identified the case property in the Court as Exs. P1, P2 and P3, carbon copy of notice as Ex. PW3/G and the passport and visa as Ex. P4. They also identified the accused in the court as the same person.
4. After conclusion of entire prosecution evidence, all the incriminating evidence was put to the accused in his statement recorded u/[SECTION] [ACT] It may be mentioned here that before recording statement of the accused, the accused was generally questioned by this Court, as to his capability of understanding and capability to speak, read or write English language, as during recording of evidence before this Court, some of the questions were put to the witnesses, on behalf of the accused, as to his limited understanding of English language and thereby challenging compliance of mandatory provisions of [SECTION] Page of 39 11 [ACT]. As the answers, in the statement of accused, would reveal, the accused was able to understand the questions put to him in English Language and he was able to quickly reply to those questions in English language. The Court made an observation that the Court was completely satisfied that the accused understood English language properly. Thereafter, his statement was recorded. 4.1. The stand taken by the accused in his statement was that he had never been to Delhi Haat and that he was picked up from outside Vasant Vihar Police station, from in front of Ganga Nath Mandir, in the evening of 15.05.2012, at about 5.35 PM. He claimed that he was not apprehended from Delhi Haat, but was apprehended from Vasant Vihar. He claimed that no contraband was recovered from his possession. He claimed that he was never given any option to be searched in the presence of a Gazetted Officer or a Magistrate, but his signatures were obtained on blank papers, in the Narcotics Branch, Shakar Puri, Delhi, after he was taken there and after he was given beatings. He signed blank papers under fear and those blank papers were manipulated into different documents. He claimed that nobody explained him the meaning of Gazetted Officer or Magistrate to him at any point of time. The accused also claimed that he cannot read English language himself and he can Page of 39 12 only understand English language, therefore, the claim of witnesses that notice u/[SECTION] [ACT] was read by him was false and nobody even read over the said notice to him. He claimed that cocaine was planted upon him. Regarding entire procedure, as claimed to have been conducted at the spot, the accused claimed that the entire story is cooked up and all the documents were prepared in the Narcotics Branch.
4.2. Regarding passport, the accused claimed that after he was picked up from Vasant Vihar, the police officials asked for his passport and he told them that he had kept his passport at his house that is at H.No.253, Munirka Village, New Delhi. Thereafter, he was taken to his house, and the passport was taken by the police officials from his house, which was containing visa in question. 4.3. The accused admits that the passport Ex. P4 was recovered from his possession and, at that time, the passport had visa no. AM 379177 with date of issue as 15.12.2011 and date of expiry as 14.06.2012.
4.4. Regarding the fact that this visa was found to be forged, the accused gave an explanation that he is unaware of the visa to be forged, as he had paid a sum of Rs.60,000/ to someone for getting him the said visa and the said person brought the visa to him. He Page of 39 13 claimed that he trusted that person, as he was his friend and at that he was not aware that the visa was forged or genuine. He claims that the prosecution witnesses have deposed falsely about the recovery of cocaine and his apprehension from the Delhi Haat. 4.5. As to the reason, why police would implicate him, the accused explained that the police was searching some person of African origin and when the accused expressed his ignorance, as to knowing such person, his passport was asked and then he was taken to his house. He claims that from his personal search, 4[SECTION] US$ were recovered, which have not been shown to have been recovered and it has been misappropriated. He claims that the police wanted him to be a secret informer and when he refused, he was falsely implicated in this case. The accused did not opt to lead evidence in his defence.
5. I have heard Ld. Prosecutor for the [ENTITY] and Ld. Counsel for the accused.
6. Ld. Addl. PP for the [ENTITY] has argued that huge quantity of Cocaine has been recovered from the possession of accused; the forgery of visa is established and; that the prosecution witnesses have supported each other on material aspects. Ld. Addl. PP also argued that minor variations in the testimonies of prosecution witnesses cannot be given Page of 39 14 unnecessary weightage, because of lapse of time between the incident and when the prosecution witnesses were examined.
7. The facts of this case would show that the charges of prosecution against the accused are on two counts. One is for possession of Cocaine and the second is forgery and using forged Visa while staying in India. The charge under the [ACT] is based on the ground that, as the visa was forged, there was no valid document of his stay in India as on the date of apprehension.
8. I shall first take up the first count of charge i.e. Possession of Cocaine.
In this regard, the accused was charged U/[SECTION] of [ACT]. 8.1. Ld. counsel for the accused argued that there is noncompliance of [SECTION] & [SECTION] of [ACT] as the concerned ACP to whom the reports were furnished has not been examined and instead his reader PW1 was examined. He argued that testimony of PW1 cannot be believed as he is not the author of those documents and he simply received those reports which were furnished to the ACP. Under [SECTION] & [SECTION] of [ACT], all that is required is that report u/[SECTION] should be furnished by the person reducing the secret information into writing, and the report u/[SECTION] should be furnished by the person apprehending the accused or seizing the contraband, to immediate superior officer.
Page of 39 15 8.2. PW5 & 10 complied with those requirements when PW10 furnished the report U/[SECTION] and when both PW5 & 10 furnished the two reports U/[SECTION] to the immediate superior officer i.e. PW9 Inspector [ENTITY], who also entered the witness box and supported the version of PW5 & 10 regarding furnishing of reports Ex.PW1/A, C & D. He even deposed that in turn he forwarded the reports to the ACP. Thus, the contention that [SECTION] & [SECTION] were not complied with does not hold water.
8.3. Ld. Counsel for the accused has relied upon the case of NCB Vs. [ENTITY], III (2011) CCR 314 (SC) and argued that it was necessary for the police team to have called the Gazetted Officer or Magistrate at the spot, or to take the accused before them. The contention of Ld. Counsel for the accused is fallacious for the reason that he perhaps has overlooked that in that case of [ENTITY], the accused had opted to be searched in presence of a Gazetted Officer or a Magistrate, whereas, in the present case, it is the case of prosecution that the accused refused to exercise that option.
8.4. Three witnesses have been examined by the prosecution, out of the raiding team members, who witnessed recovery of contraband. Those three witnesses are PW3 [ENTITY], PW4 [ENTITY] Page of 39 16 and PW10 SI [ENTITY]. Out of these three witnesses, PW10 SI [ENTITY] is the initial investigating officer. 8.5. PW4 [ENTITY], deposed that the accused was noticed at about 9.30 PM at the spot and he was apprehended. Immediately thereafter the accused was searched and from the right side of pocket of his half pants, one polythene containing Cocaine was recovered. He deposed that after recovery of Cocaine, it was tested on the field testing kit and when it was found to be Cocaine, two samples of 5 Gms each were separated and, thereafter, Notice U/[SECTION] of [ACT] was given to the accused. He even deposed that on the pulindas the seal which was affixed was of 7NDPS DELHI. 8.6. This witness was declared hostile by the prosecution and was subjected to cross examination. In his cross examination, he admitted all the suggestions put to him by the Ld. Prosecutor. Though, in his cross examination a feigned attempt was made to show that the witness got confused because of his first evidence in an NDPS Case. However, in his cross examination, the witness admitted that before this case also, he appeared as a witnesses in two more cases and he also admitted that before entering the witness box, he went through his statement U/[SECTION] [ACT] from Page of 39 17 the police file, not only on the date of evidence but also one day prior to it. Thus, no relaxation can be given to the prosecution when a crucial witness in a serious offence like NDPS case, so falters. Punishment under [ACT] is one of the severest punishments provided. The severer the punishment is, the stricter the rules of procedures and the appreciation of evidence has to be. The severer the punishment is, the higher the degree of proof required.
8.7. In Mousam Singha Roy and Others v. [ENTITY] of West Bengal 2003 (3) JCC 1385 : [(2003) 12 SCC 377], Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since higher degree of assurance is required to convict the accused."
8.8. Now, according to the testimony of PW4, the Notice U/[SECTION] [ACT] was given after recovery of cocain, which by itself vitiates entire proceedings, so far as recovery of contraband is concerned. Admittedly there is no independent witness joined, whose testimony could have watered down the effect of hostile testimony of PW4.
8.9. The second witness examined by the prosecution to support the Page of 39 18 fact of recovery and corroborate the testimony of PW10, was PW3 [ENTITY]. If we see the testimony of this witness qua compliance of [SECTION] of [ACT], the witness deposed that the accused was informed about Notice U/[SECTION] [ACT] and that the accused was told by PW10 that if he wishes, he could be searched before a Gazetted Officer, SDM, ACP or a Magistrate. He further deposed that thereafter, the accused was served with a notice U/[SECTION] [ACT]. He also deposed that a photocopy of the notice was given to the accused, whereas, it is the case of the prosecution that carbon copy was given to the accused and not the photocopy. This witness PW3 has used the word Photocopy twice in his examination in chief. 8.10. Thus, even as per the testimony of PW3, the legal requirement U/[SECTION] [ACT] were not complied with as merely an option was given to the accused to be searched in presence of those officers and it is not deposed by this witness that accused was specifically informed that he had a legal right vested in him U/[SECTION] [ACT]. Also PW3 says that besides Gazetted Officer and Magistrate, offer of search was also given to the accused to be searched in presence of SDM and ACP, which does not find support from the other two witnesses.
Page of 39 19 8.11. PW10 has a different version to say on [SECTION] of [ACT].
PW10 states that the accused was specifically informed before his search that he has a legal right to be searched in presence of a Gazetted Officer or a Magistrate. This version of PW10 does not find support in the testimony of PW3 or PW4. PW10 even claimed that he even told the meaning of Gazetted Officer and Magistrate to the accused, which again does not find support from the testimony of PW3 & 4.
8.12. Thus, when we have three different versions by the three prosecution witnesses, as to compliance of [SECTION] [ACT], to the effect that one witness says that notice was given after recovery, the second witness says that only option was given and right was not informed and the third witness says that not only legal rights were informed but also meaning of Gazetted Officer and Magistrate was also informed, a reasonable doubt creeps in whether there was strict compliance of Notice U/[SECTION] [ACT]. Even the notice U/[SECTION] [ACT] does not say that the accused was explained meaning of Gazetted Officer or Magistrate. 8.13. It is no more res integra that compliance U/[SECTION] [ACT] has to be absolute and strict and there cannot be any question of substantial compliance. Recently, in the case of Kishan Chand v.
Page of 39 20 [ENTITY] of Haryana, (2013) 2 SCC [SECTION]2 , Supreme Court held as follows;
" 19. The provisions like [SECTION] or [SECTION] of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in [PRECEDENT] carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds.
20. While dealing with the requirement of complying with the provisions of [SECTION] of the Act and keeping in mind its mandatory nature, a Bench of this Court held that there is need for exact compliance without any attribute to the element of prejudice where there is an admitted or apparent noncompliance. The Court in [ENTITY] of Delhi v.Ram Avtar [(2011) 12 SCC 207 :
(2012) 1 SCC (Cri) 385] held as under: (SCC pp. 21617, paras 2627) "26. The High Court while relying upon the judgment of this Court in Baldev Singh [[ENTITY] of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and rejecting the theory of substantial Page of 39 21 compliance, which had been suggested in Joseph Fernandez [Joseph Fernandez v. [ENTITY] of Goa, (2000) 1 SCC 707 : 2000 SCC (Cri) 300] , found that the intimation did not satisfy the provisions of [SECTION] of the Act. The Court reasoned that the expression 'duly' used in [SECTION] of the Act connotes not 'substantial' but 'exact and definite compliance'. Vide Ext. PW 6A, the appellant was informed that a gazetted officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside.
27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. [ENTITY] of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] , the theory of 'substantial compliance' would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The Page of 39 22 safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of [SECTION] of the Act. While discharging the onus of [SECTION] of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of [SECTION] of the Act. Noncompliance with the provisions of [SECTION] of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial."
8.14. Also recently, in the case of Ashok Kumar Sharma v. [ENTITY] of Rajasthan, (2013) 2 SCC 67, Supreme Court held as follows;
"7. We are in this case concerned only with the question whether PW 1, the officer who had conducted the search on the person of Page of 39 23 the appellant had followed the procedure laid down under [SECTION] of the [ACT]. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a fiveJudge Bench. This Court in [PRECEDENT] answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under [SECTION] of the [ACT], to be searched before a gazetted officer or a Magistrate. This Court also held that it is mandatory on the part of the authorised officer to make the accused aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance.
The above statement of PW 1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a gazetted officer if he so wished. The fact that the accused person has a right under [SECTION] of the [ACT] to be searched before a gazetted officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer Page of 39 24 to inform the accused or the suspect of the existence of such a right to be searched before a gazetted officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person.
9. We are of the view that noncompliance with this mandatory procedure has vitiated the entire proceedings initiated against the appellantaccused. Consequently, the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside "
8.15. When we have three different versions as to compliance of [SECTION] of the Act, it would not be safe to base conviction on this count of charge.
8.16. Besides this, both PW3 & PW4 in their cross examination admitted that they cannot understand English language and the accused and PW10 spoke with each other in English. Yet these two witnesses were cited as witnesses in the Notice U/[SECTION] [ACT]. It would be anybody's guess as to what reliance can be placed on the testimony of such witnesses. PW3 specifically admitted that he Page of 39 25 cannot understand English and therefore, he could not properly understand what was spoken to by the accused to PW10. Similarly, PW4 admitted in his cross examination that since he do not know English, therefore he cannot say what was said by the IO to the accused and what was said by the accused to the IO. He even admitted that for that reason, he cannot even say as to whether or not the IO noted down exactly what the accused said. 8.17. The stand of the accused was that his signatures were obtained on blank papers which were manipulated into different documents of this case, cannot be brushed aside for the reason, that not only one of the prosecution witnesses PW4 himself claims that notice was served after recovery, but also the signatures of accused at point B & B1 with date beneath his signatures on the notice and purported refusal Ex.PW3/B & 3/C are from a different pen, then the rest of the contents and signatures of others on this document. From the same pen, the seizure memo appears to have been signed by the accused, whereas, the rest of the body of seizure memo and signatures of others is in different ink. 8.18. Not only this, there are certain other important aspects of the matter which creates reasonable doubt. PW3 in his cross examination deposed that the first Investigating officer PW10 Page of 39 26 did not prepare any document at the spot besides the FSL Form, seizure memo and the rukka. Similarly, PW4 also in his cross examination stated that first of all FSL form was prepared, then seizure memo was prepared and then rukka was prepared at the spot. He specifically deposed that no other document was prepared at the spot. Thereby meaning, that notice U/[SECTION] [ACT] in all probability was not prepared at the spot and at least it was not served before recovery of contraband. 8.19. The moment there is a reasonable doubt as to the compliance of [SECTION] of [ACT], its benefit has to go to the accused. 8.20. Admittedly, contraband was recovered from inside pocket of half pant of accused and therefore, [SECTION] of [ACT] ought to have been complied, when there was prior secret information. 8.21. Also, isn't it unbelievable that the police team remained at the spot from 9.00 PM till next morning for about ten hours, yet they could not find a single independent witness. There is contradiction in the testimony of prosecution witnesses as to how many witnesses were requested by the IO and at what point of time. PW3 deposed that after the accused was apprehended and before his search was to be conducted, as many as 1015 persons were requested to become witness who had gathered at the spot, but they refused.
Page of 39 27 PW4 remained silent on this aspect of the matter whether anybody was requested to become witness before Notice or after Notice or before search or after search. PW10 claimed that only five persons were requested that too after service of notice and before search of accused.
8.22. PW3 stated that photocopy of notice was given, whereas, PW10 claimed that carbon copy was served upon the accused. PW3 even claimed that what was recovered from the accused in his personal search after recovery of contraband was photocopy of notice and not carbon copy of notice.
8.23. PW3 & 10 claimed that two samples of 2 gms each were taken out whereas PW4 claimed that two samples of 5 gms each were taken out. PW4 even deposed that the case property was measured after taking two samples of 5 gms each and then the remaining property was found to be 103 gms. 8.24. PW3 & PW4 claimed that some of the police officials stood on the other side of the road, whereas some stood on this side of the road. Whereas PW10 claimed that the two police group stood on two opposite sides of the gate of [ENTITY] and not on the opposite side of the road. Similarly, PW3 claimed that accused came at the spot and stood 34 meters away from us. He does not depose that the Page of 39 28 accused crossed the police personnel and went pass them and then stood for 34 minutes. It cannot be lost sight of that PW3 & PW10 both were standing together along with the secret informer, as per their own version.
8.25. PW10 claimed that the metro station was at a distance of 200 mts from the spot of apprehension of accused, whereas the second investigating officer PW5 claimed that it was only [SECTION]60 mts away from the spot. The distances spoken to by these two witnesses differs by a good margin of four times and it is not a case where the distance differs by few or 10 or 20 mts.
8.26. The log book entry in the log book of the Govt. Vehicle allegedly used for going to the spot in this case has not been proved, despite the fact the witnesses were questioned on this point specifically. PW3 claimed that nobody made any entry in the log book of the vehicle. PW10 also admitted that he did not make any entry in the log book but he claimed that PW5 filled it up. PW5 though admitted that he filled up the log book but the log book was never produced.
8.27. PW3 even admitted that the documents of this case were prepared Page of 39 29 at the spot while sitting inside the vehicle whereas he was standing outside and the accused was in custody outside the vehicle. Yet this witness has been cited as a witness in the documents of this case.
8.28. According to PW3 & 4, the weighing capacity of the weighing machine on which contraband was measured was only [SECTION]0 gms, i.e. Half a kilo. Whereas PW10 claims that the machine was big enough to weigh maximum weight of 5 Kgs. PW3 claimed that all the police officials simultaneously apprehended the accused, whereas PW4 in his examination in chief claimed that PW10 apprehended the accused but in his cross examination he claimed that PW3 apprehended the accused first of all. 8.29. Admittedly, a metro station was located near the spot of apprehension of accused. Admittedly, there is a huge marketing complex near the spot. Admittedly, there are various ATMs located in the marketing complex. Admittedly, a TV tower and [ENTITY] complex also located near the spot. Yet no independent witness has been joined. PW3 claimed that the IO did not even make effort to join the staff or guards of metro station, [ENTITY], TV Tower Guards or guards of ATM, whereas, PW4 claimed that IO went and requested the Page of 39 30 staff members and guards from metro as well as ATM and he came and told him about it. PW10 claims that he did not request any such staff member or guard. PW3 claimed that during proceedings at the spot, many people gathered and they were even requested to join but they refused. On the other hand, PW4 claimed that 45 persons simply enquired from the police and they left as soon as the IO gave his introduction.
8.30. PW3 & 4, both admitted that the testing kit carried at the spot was issued from the malkhana before going to the spot. According to PW3, no entry was made in this regard. PW4 claimed that the testing kit was issued from malkhana of Crime Branch, Malviya Nagar but he cannot tell as to when did the IO go and come back after collecting the kit. The case of the prosecution is that the secret information was received on the date of incident at about 7.45 PM at Narcotics Branch, Shakarpur, Delhi and after completing the formalities, the police team left for the spot. Not only the time was insufficient for him to go to Malviya Nagar and collect the testing kit and come back to Shakarpur and then come to the spot but also no documentary proof has been led to prove this point. The relevant entry of malkhana is not proved.
Page of 39 31 8.31. PW10 also admitted that testing kit was also issued from malkhana but he could not tell the date of issuance. He claimed that even the weighing machine was issued from the malkhana of Narcotics Cell on that very day between 7.[SECTION] to 7.55 PM but again the said entry is also not proved.
8.32. PW10 in his cross examination claimed that signatures of witnesses were obtained on pulindas, but signature of accused were not obtained on pulindas, which is contrary to the guidelines. Ld. Counsel for the accused argued that there is violation of standing instruction no. 1/88 issued by the Narcotics Control Bureau as the process of sampling was not followed and in this regard, he placed reliance upon the case of [PRECEDENT] arguing that signatures of accused should have been obtained on the pulindas as per standing instruction no. 1.9. He also argued that as per standing instruction no. 1.10, the sample ought to have been put into an envelope and that envelope along with test memo(FSL) should have been kept in another envelope which should have been sealed and marked Secret Drug sample/Test Memo. He also argued that the FSL form was not prepared in triplicate violating Standing instruction no. 1.12. Ld. counsel for the accused argued Page of 39 32 that the recovery and seizure has not been made in accordance with the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi. Clause 1.9 of the Instructions reads as under : "1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, [ENTITY] witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples. The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelops should also bear the S.No. Of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seal should be legible. This envelope alongwith test memos should be kept in another envelope which should also be sealed and marked "SecretDrug sample/Test Memo" to be sent to the concerned chemical laboratory."
8.33. Noncompliance of standing instructions by itself may not vitiate the trial and it is only an irregularity and not illegality. 8.34. PW3 while deposing in the evidence was concealingly holding a piece of paper containing details of this case and was deposing Page of 39 33 from it and when he was so caught, the document was retained on record as Mark X. This fact makes testimony of this witness doubt full.
8.35. PW5 the second Investigating officer of the case deposed that during investigation, he raided Priya Club, Vasant Kunj as well as Munirka, but this fact is neither mentioned in the charge sheet nor any witness was cited to this effect and no document to this effect was prepared.
8.36. In the FSL result proved as Ex.PW5/E, the weight of the sample is 2.85 gms whereas the case of the prosecution is that the sample separated was 2 gms only. In the acknowledgment of sample in the FSL, carried by Ct. [ENTITY] Ex.PW6/E, it is mentioned that only one sealed cloth parcel was received in the FSL. There is no mention that any FSL form was also received in the laboratory. In the FSL result, Ex.PW5/E, it is mentioned at serial no. 7 that the seals was found intact and it were tallied as per forwarding authorities specimen seals. The prosecution witnesses admitted that no separate forwarding letter was sent along with the sample to the laboratory and only FSL form was sent, which does not find mention in Ex.PW6/D. 8.37. For the above mentioned reasoning, so far as charge U/[SECTION] NDPS Page of 39 34 Act is concerned, the same cannot sustain, and the accused has to be acquitted of that charge, by giving him benefit of doubt.
9. So far as the second set of charges i.e. u/[SECTION] of [ACT] and u/[SECTION] of [ACT] is concerned, the entire case of prosecution is based on the fact that out of two visas affixed in the passport of the accused at the time of recovery of passport, the later visa no. AM379177 dated 15.12.2011 was found to be forged. Admittedly, the passport of the accused was found to be genuine. Admittedly, the visa no. AF[SECTION]17[SECTION] was found to be genuine. 9.1. To prove that the business visa no. AM379177 was forged, the only evidence led is that of PW5 Inspector [ENTITY]. This witness in his examination in chief deposed that during investigation, the visa in question was sent for verification vide letter Ex. PW5/G. He also deposed that vide report Ex. PW5/G1, from the office of High Commission of India at Lagos, Nigeria, the visa in question was found to be not genuine. 9.2. This witness when subjected to cross examination on this issue, admitted that he did not record the statement of anybody during investigation to verify the genuineness of this document Ex. PW5/G1. He admitted that he is not the author of Ex. PW5/G1. He even admitted that since he did not verify this document Ex.
Page of 39 35 PW5/G1, therefore, he cannot say, whether this document is genuine or forged one. Ex.PW5/G1 was not even executed in the presence of this witness.
9.3. Thus, PW5 was in fact not competent to prove the report Ex.
PW5/G1. The person, who sent this report has not been examined.
9.4. Ld. Addl. PP for the [ENTITY] claimed that Sh. [ENTITY], Attachee in the office of High Commission of India, at Lagos, Nigeria, who is author of this document is based in foreign country and, therefore, could not be examined.
9.5. In such eventuality, permission ought to have been sought to prove this document by way of secondary evidence. The said permission was never sought or obtained.
9.6. Even otherwise, PW5/G1 is a hard printout of an email sent by Sh.
[ENTITY] to the concerned Section Officer in the Ministry of External Affairs in India. Ex. PW5/G1 being an email is an electronic record. In order to prove an electronic record, the prosecution ought to have complied with the provisions of [SECTION] of [ACT]. The said provision has not been complied with and, therefore, also this document is Page of 39 36 not proved and thus cannot be looked into. 9.7. Under [SECTION] of the [ACT], "electronic record' means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro record." Computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by [SECTION] of the [ACT]. [SECTION] makes admissible as a document, paper printout of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfillment of the conditions specified in [SECTION] [SECTION] makes admissible without further proof, in evidence, print out of an electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Subsection (2). Thus compliance with [SECTION] is enough to make admissible and prove electronic records. [SECTION] provides for an alternative method to prove electronic record. Subsection (4) allows the proof of the conditions set out in [SECTION] by means of a certificate issued by the person described in Subsection (4) and certifying contents in the manner set out in Page of 39 37 the subsection. The subsection makes admissible an electronic record when certified that the contents of a computer printout are generated by a computer satisfying the conditions of Subsection (1), the certificate being signed by the person described therein. Irrespective of compliance of the requirements of [SECTION], there is no bar to adducing secondary evidence under [SECTION] and [SECTION] of the [ACT]. Therefore, the document could have been proved by adducing secondary evidence in terms of [SECTION] of [ACT] or by complying conditions specified in [SECTION] or [SECTION] of [ACT]. It has not been done and therefore Ex. PW5/G1 is not proved. 9.8. Once, this document Ex. PW5/G1 is held to be not proved and cannot be looked into, there is absolutely no evidence to show that the visa in question was forged. The moment, it is held that the visa in question is not proved to be forged, the entire charge u/[SECTION] [ACT] goes. The moment it is held that the visa is not proved to be forged, the charge u/[SECTION] [ACT] will also have to go because as per record, this visa was issued on 15.12.2011 and it was valid up to 14.06.2012. In this case, the accused was apprehended on 15.05.2012. Once, the visa was valid up to 14.06.2012 and there is no evidence that it was forged, Page of 39 38 the charge u/[SECTION] of [ACT], can also not survive. 9.9. Ld. Prosecutor for the [ENTITY] in this regard argued that it is for the accused to explain, that he was staying in India on valid documents. Once, the prosecution itself fails in establishing its charge of forgery of visa, there is no presumption in law against the accused. No such presumption arises under the [ACT], against the accused. It is not a case where the accused was found in India, without any document whatsoever, in which circumstance things might have been different and onus would have been on the accused.
9.10. The initial burden of proof in criminal case is always on the prosecution and, therefore, the answer given by the accused in his statement u/[SECTION] [ACT] stating that he is not aware whether the visa was forged or not, cannot be used against him. At the most, in the answer given by the accused in his statement, the accused has expressed his ignorance about the genuineness of this visa. Accused never admitted the visa to be forged, in which eventuality, things might have been different. Conviction of the accused cannot be based merely on the statement made under [SECTION] [ACT] as it cannot be regarded as a substantive piece of evidence. It is a Page of 39 39 settled principle of law that the statement made by an accused under [SECTION] [ACT] can be used by the court to the extent that it is in line with the case of the prosecution. The same cannot be the sole basis for convicting an accused. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. Such statements made under this section cannot be considered in isolation and can be considered in conjunction with the evidence adduced by the prosecution. 9.11. For the forgoing reasons, the accused has to be acquitted on both the counts i.e. for possessing the cocaine, as well as other charges. Accused is thus acquitted of the charges. File be consigned to the Record Room.
Announced in open Court on 30 day of April, 2013.
th [ENTITY] ASJ/Special Judge : NDPS Rohini Courts : Delhi Page of 39 40 PS CRIME BRANCH U/[SECTION] [ACT] & U/[SECTION] [ACT] and also U/[SECTION] [ACT] VS. [ENTITY] 30.04.2013 at 3.00 PM Pr. Sh. [ENTITY], Ld. Addl. PP for [ENTITY].
Accused in JC Sh. [ENTITY], Ld. Amicus Curiae for the accused. Vide my separate judgment of even date, the accused is acquitted of the charges.
File be consigned to the Record Room.
Accused is directed to file bonds u/[SECTION] of [ACT] within three working days from today, which shall remain in force for six months.
Case property be confiscated to the Government and the same be disposed of, as per rules, after the expiry of period of limitation of appeal and in case no appeal is filed.
File be consigned to the Record Room.
([ENTITY]) ASJ/ROHINI COURTS/DELHI 30.04.2013 Page of 39