EDWARD KHIMANI KAMAU Vs. THE NARCOTICS CONTROL BUREAU

JUDGEMENT

(1.) EDWARD Khimani Kamau impugns the judgment dated 06.05.2011 and the order on sentence dated 11.05.2011 vide which he was convicted under Section 21(C) read with Section 23 read with Section 28 of NDPS Act and was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lac in default thereof, to undergo simple imprisonment for a period of one year in Sessions Case No. 13/09.

(2.) SHORN of unnecessary details, the prosecution case is that the Respondent -Narcotic Control Bureau (NCB) through its intelligence officer Sh. Akhilesh Kumar Mishra filed a complaint against the accused inter alia on the allegations that on 05.02.2009 at about 6.00 pm Sh. P.C. Khanduri received a secret information that a group of African persons are actively involved in the illegal export of heroin and drugs to various countries through courier and this group has a member namely Edward resident of Uttam Nagar who books parcels containing drugs through courier in Delhi. It was further informed that he would come to DTDC office at 1666 -C, first floor, Govind Puri Extension on the night of 05.02.2009 to book a parcel in which drug has been concealed. This information was reduced into writing and was put up before the Superintendent Sh.Ajay Kumar who issued search authorization in his favour and directed him to organize raid. Sh.P.C. Khanduri alongwith Sh.Ajay Kumar, Sh.Manoj Kumar, Sh.Vikas Kumar and the informer went to the DTDC Franchise office in a government vehicle bearing No. DL -9CC -3009 and reached there at about 8.30 pm and waited for Edward to come. At about 8.45 pm hours the accused came on a cycle rickshaw. He was carrying a cardboard box in his hand with which he went to the office of DTDC. On the identification of the informer, he was intercepted at the counter of DTDC office. Sh.P.C. Khanduri gave his introduction and told him about the information. Sh.Arvind Kumar, In -charge of DTDC office was joined to witness the proceedings. The accused was served with a notice under Section 50 of NDPS Act apprising of his legal right to be searched before a Gazetted Officer or a Magistrate explaining its meaning but he declined. The Investigating Officer also offered the search of the raiding party to the accused prior to his search which also he refused. On checking the cardboard box, it was found to contain six sarees of different colours. On its minute checking, nine long packets concealed inside the layers of the cardboard box containing off white powder were recovered which on testing gave positive for heroin weighing 770 grams. Two samples of 5 grams each were taken out from the powder. The remaining substance and the nine empty packets were kept in a cloth. Torn pieces of cardboard box and six sarees were also kept in a cloth. All the parcels were sealed with the seal of Narcotics Control Bureau DZU 2. The accused was also carrying a paper containing the consignor and consignee details which was taken into possession vide Ex.PW3/DA. Summons under Section 67 NDPS Act was served upon the accused to appear in the NCB office where he tendered his statement admitting his complicity in the business of drug trafficking. He was thereafter arrested. The seizing officer and the arresting officer submitted their reports under Section 57 NDPS Act to the Superintendent. The case property was deposited in the Malkhana. The sample alongwith the forwarding letter and the test memo was sent to CRCL through Shiv Ratan, Hawaldar. As per report Ex.PW4/A dated 23.03.2009, the sample mark A1 was found to contain diacetylmorphine with its purity 77.0%. After the investigation, the accused was sent for trial for the offence punishable under Sections 21, 23 and 28 of the NDPS Act.

(3.) IN order to substantiate its case, prosecution examined as many as 8 witnesses. In his statement recorded under Section 313 Cr.P.C, the accused controverted the entire prosecution case and pleaded his innocence. He stated that he never dealt with narcotic drugs and he was forcibly taken by the NCB officers to their office where they illegally kept him and forcibly made him to sign some written and blank papers and later on completed all the formalities. He denied visiting DTDC office. After hearing arguments and scrutinising the evidence, vide impugned judgment dated 06.05.2011, the appellant was convicted and sentenced, as mentioned hereinbefore.