TMI Blog2015 (1) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ddresses did not exist. There was also a serious discrepancy regarding the signatures of the so-called independent witness Shiv Dayal on the seizure memo (Ex.PW-2/D) and on his purported statement under Section 67 NDPS Act (Ex.PW-8/J). They were shown by DW-1, a handwriting expert, not to be of the same person. - On the voluntariness of the statements of the Respondents under Section 67 of NDPS Act, the trial Court noticed that as far as A-2 was concerned, in her statement under Section 313 Cr PC she stated that no summons were served upon her. The NCB had forcibly taken her from her house to their office and they mercilessly gave beatings to her cousin brother co-accused Rakeshnath Tiwari (A-3). She got scared and as per the dictation of the NCB officials, she wrote the statement in her own handwriting and signed it. This was substantiated by the medical report of A-3 (Ex.PW-2/A) prepared by the doctors of Safdarjung Hospital after the jail officials of Tihar Jail had refused to admit him on the ground that there were injuries on his body which were not mentioned in his medical report prepared by the NCB officials after arresting him. The medical report clearly shows that A-3 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ran s/o Mr. Gagan Singh and Shiv Dayal s/o Late Mr. Ram Swarup had voluntarily agreed to join the NCB team as independent witnesses. 4. It is stated that at about 8.30 pm one African woman came on foot from the Najafgarh road side and stopped in front of Shop No. D-6, Kiran Garden, Uttam Nagar and that after about ten minutes one white colour Indica car came from the Najafgarh road side and stopped near the African lady and that one Indian lady aged about 30 years alighted from the front seat of the said car and started talking to the said African lady. After a while the Indian woman is asserted to have handed over one white cloth handbag to the Nigerian woman. At that point of time the raiding party apprehended the Nigerian woman, A-2 and A-3. 5. It is stated that the accused declined to get themselves searched before a Magistrate or Gazetted Officer. They were then searched. While no contraband was recovered from A-2, a white cloth bag handed over by A-2 to the Nigerian woman was recovered and found to contain four transparent polythene packets having off white colour powder in it. When tested with the field testing kit it tested positive for heroin. 6. The said packets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld run away. The three accused were arrested on the basis of the seizure of the contraband and the samples drawn from the substance recovered were sent to the Central Revenue Control Laboratory ('CRCL'). 10. The further case of the NCB is that the independent witnesses were also summoned and their statements under Section 67 NDPS Act were recorded. All the incriminating evidence was put to the accused persons and their statements under Section 313 Cr PC were recorded. 11. A-2 and Nnoyim A.H. (A-1) were charged for the offences punishable under Section 21 read with Section 29 of the NDPS Act. A-3 was charged with the offence under Section 29 of the NDPS Act. 12. Since A-1 was declared to be a terminally sick patient by the All India Institute of Medical Sciences (AIIMS), the High Court by its order dated 9th April 2009 directed that she be released on bail and be deported to Nigeria and that the trial against her be separated and adjourned sine die. Consequently, the trial Court proceeded against A-2 and A-3. 13. The trial Court negatived the plea of the Respondents that the provisions of Section 42 of the NDPS Act were not complied with. As regards the recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 17. A perusal of the statement of Ram Karan s/o Shri Gagan Singh under Section 67 NDPS Act (Ex.PW-2/M) shows that his address is given as A-95, Kiran Garden, Uttam Nagar, New Delhi. The address given in the statement under Section 67 NDPS Act by Shiv Dayal on 30th June 2008 (Ex.PW8/J) is A-4/35, Mohan Garden, Uttam Nagar, New Delhi. According to Mr. Manchanda, since both were residents of Uttam Nagar it was but natural that they were associated with the raid. 18. The trial Court record has been perused. It appears that on 2nd August 2010 the trial Court summoned Y.R. Yadav, (PW-2) and all public witnesses . On the next date, i.e., 23rd August 2010, the Court noticed that summons issued to Ram Karan and Shiv Dayal had been received back with the report that addresses are not traceable. 19. In the case of Gita Lama Tamang v. State of (GNCT) of Delhi 2006 (3) JCC (Narcotics) 197 (supra) the record revealed that the independent witnesses were not traceable. In other words there is nothing to indicate that in the said case the addresses were themselves not traceable. If, as in the present case, the addresses of the independent witnesses to the seizure of the contraband wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced in Court. No effort appears to have been made by the NCB to ascertain the correct addresses and summon the independent witnesses. That was not the responsibility of the Court. In the circumstances, the only inference that was possible to be drawn was that the said witnesses and their addresses did not exist. 24. Turning to the seizure of the US$ 30,000, one of the independent witnesses to its seizure was Anand Singh (PW-9). He did not support the prosecution at all. In his examination-in-chief, he stated that I had not seen any proceedings conducted by the police officials in the premises of Anju Tiwari. He further stated that he asked me write on a blank paper and he also told me the contents which had been written by me as per his diction. The other witness was Sunil Kumari (PW-10), a police officer. 25. There was also a serious discrepancy regarding the signatures of the so-called independent witness Shiv Dayal on the seizure memo (Ex.PW-2/D) and on his purported statement under Section 67 NDPS Act (Ex.PW-8/J). They were shown by DW-1, a handwriting expert, not to be of the same person. 26. On the voluntariness of the statements of the Respondents under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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