CHIDI BERR NWAYOGA Vs. STATE

JUDGEMENT

(1.) Aggrieved by the judgment dtd. 10/8/2017 whereby the appellant was convicted for offences punishable under Sec. 21(c) of the NDPS Act and Sec. 14 of the Foreigners Act and the order on sentence dtd. 23/8/2017 whereby he was directed to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1.00 lakh, in default whereof to undergo simple imprisonment for 3 months for offence punishable under Sec. 21(c) of the NDPS Act and to pay a fine of Rs.5000.00 in default whereof to undergo simple imprisonment for 1 month under Sec. 14 of the Foreigners Act, the appellant prefers the present appeal. Along with the appellant, one Abdul Khaliq was also tried, however, he was convicted only for offence punishable under Sec. 14 of the Foreigners Act and acquitted for offence punishable under Ss. 21(c) read with 29 of the NDPS Act.

(2.) Learned counsel for the appellant contends that on the same evidence, the co-accused of the appellant namely Abdul Khaliq who was charged for offences punishable under Sec. 21(c) read with 29 of the NDPS Act has been acquitted with the specific finding that since no recovery was made from him, the conspiracy was not established. The said finding itself demolishes the entire case of the prosecution. However, by the same impugned judgment, the appellant against whom the same evidence was placed on record by the prosecution has been convicted for offences punishable under Sec. 21(c) NDPS Act and Sec. of 14 Foreigners Act. Despite specific finding that there was no evidence of any previous nexus between the appellant and the co-accused, Abdul Khaliq such as by mobile details etc., merely on the evidence of the Police officer that the contraband was handed-over to the appellant by Abdul Khaliq, the appellant has been convicted. Version of the members of the raiding team cannot be relied as the investigation was carried out by an officer who was subordinate to the members of the raiding team from the same police station, contrary to the decision of the Constitution Bench of Hon'ble Supreme Court reported as (2020) 10 SCC 120 Mukesh Singh Vs. State. There is no independent corroboration to the version of the Police officers and thus, the Court has to be very circumspect while solely relying upon the said version of the police officers. Reliance is placed on the decision reported as (2018) 17 SCC 627 Mohan Lal Vs. State of Punjab. From the two accused, no mobile phone, no watch etc. were recovered, however, still, according to the prosecution case, the two accused reached the spot at the exact time for which information was received. No investigation was carried out to find out from whom Abdul Khaliq allegedly procured the Heroin and to whom, the appellant was to allegedly supply the Heroin. Except the alleged recovery, there is no incriminating evidence against the appellant. The police officers made no efforts to join independent witnesses at the time of raid. No passerby was asked to join the alleged raid and no residents or shop owners from the locality were joined in the investigation despite the fact that the alleged recovery was made on a busy road with houses and shops in close vicinity. Admittedly, the raid was conducted on a secret information and thus, the police could have easily covered the incident by videography or the incident must have been corroborated in any CCTV footage, however, none was produced. Reliance is placed on the decisions reported as (2014) 143 DRJ 349 Om Prakash Vs. State; (2017) 242 DLT 311 Mohd. Javed Vs. State; (2017) 242 DLT 342 Mohd. Firoz Vs. State and (2014) 146 DRJ 629 Ram Prakash Vs. State. Sec. 50 of the NDPS Act has not been complied as directed by the Hon'ble Supreme Court in the decision reported as AIR 2018 SC 2123 Arif Khan Vs. State of Uttarakhand and the appellant was not produced before any Gazetted Officer or a Magistrate and none of the members of the raiding party was a Gazetted Officer.

(3.) Learned counsel for the appellant further contends that the sanctity of the custody of the case property and the samples is doubtful as the seal was not handed over to an independent witness as no seal handing over memo was prepared and even as per PW-2 HC Mukesh Kumar, the seal was returned to SI Sunil Jain, PW-8 after 3-4 days when again, no memo was prepared. Further, despite the fact that all the witnesses stated that the seal affixed on the case property and the samples was '3A PS NB DELHI', however when the samples were received at the FSL the seal was found as 'PS/NB/3A DELHI'. In their testimonies PW-2, PW-5 and PW-8 did not state that they affixed their signatures on the cloth pullandas nor was so stated in the seizure memo. However, when the pullandas were opened in the Court, signatures of PW-2, PW-5 and PW-8 were found. The samples were sent to the FSL after 6 days on 30/6/2014 during which period, the seal admittedly remained with PW-2 and PW-8, both of whom were part of the raiding team. Despite clear directions of the Hon'ble Supreme Court in the decision reported as (2016) 3 SCC 379 Union of India Vs. Mohan Lal and Anr. which provided that the samples should be sent for chemical examination to the laboratory at the earliest and in any case, not later than 72 hours after their recovery, however, the samples were sent to FSL belatedly. Form FSL was not placed on record nor was the seized property produced for verification before the learned M.M. during investigation. Injury marks were found on co-accused Abdul and as per the Doctor, the said marks could be caused due to beating also, thereby, showing the possibility of alleged recovery being planted on the appellant. Copy of the DD entries were recorded on loose sheets and submitted with the charge sheet. Requirement of Sec. 52-A of the NDPS Act was not complied with. The fact that Abdul Khaliq handed-over the polythene to the appellant is not recorded in the report under Sec. 57 of the NDPS Act. The secret information was specific that an Afghani national would hand-over the heroin to Nigerian national named James. Prosecution has placed on record no material to show that the appellant's name is James. No intimation was given to the Nigerian Embassy at the time of arrest and thus the appellant could not avail Consular access. It is thus prayed that in view of serious non-compliance of the provisions of the NDPS Act coupled with the inconsistencies in the case of the prosecution, the appellant be acquitted of the charge and be released forthwith.