TMI Blog2014 (12) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial Court also failed to notice another important aspect of the matter regarding the truthfulness of the so-called confessional statement made by the Appellant under Section 67 NDPS Act. The Appellant in both retraction statements, i.e., one dated 20th February 2009 and the subsequent dated 8th December 2010 stated that he had been picked up from his rented house at Patiala. Both the statements of retraction formed part of the record. Despite repeated reminders by the DRI to the Ministry of External Affairs, High Commission of Nigeria, High Commission of Nigeria, and Qatar Airways (City Office), Mumbai to confirm whether the visa stamp issued by the Indian Commission in Nigeria, no information was forthcoming. Additionally, Mr. Aggrawala placed on record a copy of letter dated 2nd December 2014 received from the Deputy Commissioner of Police, Special Branch-II, CID & FRRO, Mumbai that the name of the Appellant did not figure in the list of registered foreigners at the said office. Computer data showed that the Appellant, a Nigerian national, having the same passport a photocopy of which had been produced by the Appellant, did arrive at Mumbai on 19th October 2009 by Qatar A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect present address of the panch witnesses and secure their presence at the trial. 33. The Court is unable to agree with the approach of the trial Court in not drawing adverse inference against the DRI. In a situation where the panch witnesses are unable to be produced, because their addresses are non-existent, it is not sufficient for the DRI to simply drop the panch witnesses and avoid the consequence of an adverse inference being drawn. - record of the trial Court speaks for itself. It exposes the untruthfulness of the evidence placed before the Court by the DRI officers. The Court cannot help observing that the evidence of PWs 5 and 9 can hardly be stated to be reliable or truthful. On the contrary, the Appellant has been able to probablise his defence that he came to India by air as a tourist with a valid India visa stamp on his passport. These facts have been verified by the FRRO, Mumbai. As explained by the Supreme Court in State of U.P v. Zakaullah (1997 (12) TMI 635 - SUPREME COURT), that a conviction can be based even on the evidence of police officers but the evidence of DRI officers should inspire confidence. In the present case, the record of the trial Court speaks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 years of age, 5 feet 7 inches tall, sporting trimmed beard, wheatish complexioned with medium built, wearing sky blue coloured striped T-shirt would be handing over some narcotic substance to a medium built African person in the evening hours between 7.30 pm to 8 pm on that day in the parking area outside the Majnu Ka Tila Gurudwara, Delhi. The secret information (Ex.PW-1/A) was recorded on 5.30 pm on that very day and was placed before Mr. K.K. Sood, (PW-7), Assistant Director, DRI Headquarters. Mr. Sood then called IO, Mr. D.P. Saxena, [PW-9] and directed him to take appropriate action. The raid proceedings 4. On the above basis, PW-9 along with a team of DRI officers consisting of himself, Mr. Ashok Kumar, Senior Tax Assistant, [PW-5], Mr. Yogesh Kumar Choudhary, the then IO and two or three sepoys. They left the DRI office at about 6.30 pm on 7th February 2009 in a government vehicle and reached at the spot at about 7 pm and kept vigilance for the next 45 minutes. It has come in the evidence of PW-5 and PW-9 that at around 7.45 pm/7.50 pm they noticed a person matching the description contained in the secret information, who was carrying two shoulder bags was apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and tested with the help of Drug Detection Kit which gave positive result for the presence of heroin. The total weight of the recovered 19 packets and was found to be 19.046 kg. Samples of 5 gm each were taken from each packet and were marked, sealed and labelled. The test memos in triplicate were prepared and sent to the Central Revenues Control Laboratory ( CRCL ), New Delhi for examination. 7. According to PW-9, the panchnama proceedings started at 9 pm on 7th February 2009 and concluded at 2 am on 8th February 2009. The panchnama proceedings were explained in vernacular to the accused persons and got signed by them. Notices were issued to both the accused under Section 67 of the NDPS Act. The Appellant is stated to have made his voluntary statement pursuant thereto. The said statement was a typed one, and in purported explanation for this, at the end of the statement, the Appellant is shown to have written in his own hand that he can speak, read, write English but my speed in writing the English is very very poor. Therefore, on my request the above statement has been typed on the computer by an officer of DRI. The Appellant further wrote that he had read the above statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make their statement. Both the panch witnesses made their respective statements (Ex PW-9/P and Ex. PW-9/R) which are at pages 541-555 of the trial Court record. 10. It must be noted that on 20th February 2009 before the learned Metropolitan Magistrate ( MM ) the Appellant retracted the aforementioned statement. In his retraction (Ex DW2/A), the Appellant stated that he was in a friend s house situated at 252, Patiala Housing Estate, Patiala, Punjab just opposite Punjab University. Some men in plain clothes came to his place and asked for the owner of the flat. When they could not meet the owner, they forcibly picked up the Appellant and brought him to Delhi. He further stated that on arriving at the DRI Office at about 7 pm on 7th February 2009 he was tortured and forced to copy an already written statement and also made to sign many blank papers and slips. The Appellant's statement under Section 313 Cr PC 11. The prosecution examined nine witnesses. When the incriminating evidence was put to the Appellant under Section 313 Cr PC, he denied all the allegations levelled against him. He claimed that he did not know the co-accused before this case but he met him at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and to give the same to the Court on the next date. It is further wrong to suggest that I am deposing falsely. It is further wrong to suggest that no torture/beatings was used by the officers as stated by me in my examination-in-chief. 14. In his further cross-examination, he maintained that it was wrong to suggest that he had entered into India without a valid tourist visa or through any illegal means. The judgment of the trial Court 15. In the impugned judgment, the trial Court, while convicting the Appellant for the offence under Section 21 (c) of NDPS Act, came to the following conclusions: (i) the evidence of PW-5 and PW-9 showed that the proceedings including the service of notice on the accused under Section 50 NDPS Act were done in the presence of panch witnesses. The above evidence was corroborated by the documents which had the signatures of the panch witnesses; (ii) The failure by PW-9 to collect the identity documents of the panch witnesses, or his failure to secure their presence during the trial, could not lead to the presumption that no such panch witnesses either joined the investigation or that they were the fake witnesses; (iii) There was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to each of the accused, including the Appellant, under Section 50 NDPS Act. From the evidence placed on record it appears that soon after their apprehension outside the Gurudwara the accused were taken to the DRI office. There the DRI officers served notices on the accused under Section 50 NDPS Act. Both the Section 50 NDPS Act notices were typed. They were typed on a computer and printed out. On both notices, the addresses of two accused including their parentage, residential addresses have been set out. In the case of Appellant, his father's name and residential address in Zimbabwe have been typed out. 18. Mr. Aggarwala drew the attention of the Court to the panchnama (Ex.PW-9/C) which records that when they were apprehended each of the accused introduced themselves giving their parentage and full residential addresses. 19. Even if the above is accepted as a credible explanation of how these typed details figured in the notices, what is a total give away is that typed notices refer to the fact that the DRI officers had reason to believe that two accused were carrying heroin packets . The typed notice under Section 50 NDPS Act reads thus: On the basis of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has pointed out that a photocopy of his passport and one boarding pass etc. are in the judicial file to show that his arrival in India was not illegal, but due to the legal constraints, this Court cannot take note of any such documents as no steps have been taken on record on behalf of the accused to lead any evidence on this aspect. Hence, the above retraction statements of the accused cannot be given much weight and his above statement Ex.PW-5/A under Section 67 of the NDPS Act is held to be his voluntary statement. 23. The above approach of the trial Court was unfortunate given the fact that the DRI could have easily verified the above documents to ascertain their truth. 24. During hearing of the present appeal on 4th August 2014, this Court after noting the above observation of the trial Court, passed an order requiring the DRI to verify the above documents. Several hearings thereafter were consumed in trying to ascertain the correctness of the said documents from the Indian Embassy in Nigeria, the Nigerian Embassy in India and the Foreigners Regional Registration Office ( FRRO ). The FRRO in its report dated 26th November 2014 stated that the Appellant was not registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly this difficulty was not been appreciated by the trial Court. It unfairly cast the burden on the Appellant to further lead evidence to prove the details of his passport and visas stamps. It may be further added here that according to the Appellant, his original passport was with the Nigerian Embassy in India. The Appellant has been in judicial custody throughout and it is obvious that he does not have his passport with him. Non-examination of public witnesses 29. The next serious problem in the present case is the failure to secure the presence of the panch witnesses at the trial. A careful perusal of the record of the trial Court shows that as regards Arun Kumar Sahni, his address was shown to be A-181, Geeta Colony, Delhi. The proceeding of 30th May 2011 before the trial Court records that the address of public witnesses, Sh. Arun Kumar Sahni at Serial No. 4 is reported to be not existing and the report is forwarded by the IO/PW-9 Sh. D.P. Saxena himself, who is also present in Court today. The trial Court noted that such report was submitted by PW-9. It further s clearly stated that the above said summons could not be served upon him i.e., Arun Kumar Sahni because giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consequence of an adverse inference being drawn. The evidence of the DRI officials 34. As explained by the Supreme Court in State of U.P v. Zakaullah (supra), that a conviction can be based even on the evidence of police officers but the evidence of DRI officers should inspire confidence. In the present case, the record of the trial Court speaks for itself. It exposes the untruthfulness of the evidence placed before the Court by the DRI officers. The Court cannot help observing that the evidence of PWs 5 and 9 can hardly be stated to be reliable or truthful. On the contrary, the Appellant has been able to probablise his defence that he came to India by air as a tourist with a valid India visa stamp on his passport. These facts have been verified by the FRRO, Mumbai. Conclusion 35. The Court accordingly, set asides the impugned judgment dated 9th July 2013 and the order on sentence dated 20th July 2013 of the trial Court. The Appellant is hereby acquitted for the offence under Section 21 (c) of NDPS Act. The Appellant will now be released to the FRRO for further steps for deporting him. His bail bond and surety bond will continue for a period of three months in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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