TMI Blog2020 (5) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... was not searched in presence of a Magistrate or a Gazetted Officer does not ipso facto mean that provisions of Section 50 were not complied with - but, merely because Laya was not searched in the presence of a Gazetted Officer or a Magistrate, would not invalidate her search or the recovery of the contraband from her bag. In the present case, all of the witnesses present at the Airport had deposed that Laya was handed over a notice under Section 50 of the NDPS Act. PW-1 and PW-3 had testified that Laya was duly informed of her rights of being searched in presence of a Magistrate or a Gazetted Officer. She had, thereafter, desired to be searched by a lady officer and did not want her search to be conducted before a Magistrate/Gazetted Officer - It is established that Laya is familiar with the English language and the notice clearly informed her of her rights to be searched before a Gazetted Officer or a Magistrate, if she so desires. In view of the above, this Court is unable to accept that provisions of Section 50 of the NDPS Act were not complied with. Whether there was any infirmity in the search conducted by the NCB officials? - HELD THAT:- The fact that the seizure memo b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in possession of the said sample. This does raises some doubts in the matter. Whether there is any evidence on record to establish beyond reasonable doubt that Laya and Okafor had entered into a conspiracy committing an offence punishable under the NDPS Act? - HELD THAT:- There is a raging debate whether any statement made to officials of NCB would be admissible in evidence. It is contended that officials of NCB are police officers for all intents and purposes; therefore, any confessional statements made before them would be inadmissible in evidence. The NCB contends that their officials are not police officers and therefore, the confessional statements made before them and recorded under Section 67 of the Act would be admissible in evidence - The consequential question whether the statement recorded under Section 67 of the NDPS Act is required to be treated as a statement under Section 161 of the CrPC or whether it is in the nature of the statement made under Section 164 of the CrPC, has also been referred to a larger bench. A statement, which is made and signed by a person before any officer empowered under Section 53 of the NDPS Act for investigation of offences during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 29 of the NDPS Act). Accordingly, Laya is also acquitted of committing an offence under Section 29 of the NDPS Act and her conviction is set aside - Laya s conviction for commission of an offence punishable under Section 21(c) of the NDPS Act also cannot be sustained, as there was no charge framed against her for committing the said offence - there is considerable doubt as to the manner in which the contraband was recovered and the chain of custody of samples has also not been established. The possibility of tampering with the same also cannot be ruled out. Thus, her conviction for committing of an offence punishable under Section 23(c) of the NDPS Act also cannot be sustained. The appeals are allowed - The appellants are acquitted. - CRL.A. 1186/2015 and CRL.M.A. 41216/2019 and CRL.M.(BAIL) 1943/2018 and CRL.M.(BAIL) 2070/2019 - - - Dated:- 13-5-2020 - VIBHU BAKHRU, J Advocates who appeared in this case: For the Appellant: Mr. K. Singhal and Mr. Arshid Bashir. Mr. Harsh Prabhakar and Mr. Anirudh Tanwar. For the Respondent: Mr. B.S. Arora. JUDGMENT VIBHU BAKHRU, J 1. The appellants have filed the present appeals impugning a judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aya Emilyn. Thereafter, the accused was served with a notice under Section 50 of the NDPS Act and was informed about her legal right to be searched before a magistrate or a gazetted officer. However, she refused to exercise the said right and instead chose to be searched by the lady officer. Thereafter, her personal search was conducted and her luggage was also searched. A blue colour bag was found and on opening the same, seven silver colour pouches and some personal belongings were found inside it. The pouches were opened and were found to contain white colour powder. The powder was tested with the help of field-testing kit and it tested positive for cocaine. The entire substance was mixed and weighed and it was found to be 1.780 kgs. 5. Thereafter, samples were made of the substance and put into separate pouches. The remaining substance was converted into a parcel. The blue coloured bag along with the hand bag and certain documents (including her passport, one tag and boarding pass) were seized. Thereafter, Laya was summoned under Section 67 of the NDPS Act. She made a voluntary statement that the said substance was directed to be delivered to one Okafor Chukwuka Ugochukwu (O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch entailed Laya importing the said quantity of cocaine from abroad to India and the accused Okafor receiving the same from her. The Trial Court held that this was an offence punishable under Section 29 of the NDPS Act and accordingly, Okafor was convicted for committing an offence punishable under Section 29 of the NDPS Act. 8. Laya was convicted for committing offences punishable under Sections 21(c), 23(c) and Section 29 of the NDPS Act. Evidence 9. Before proceeding further, it is important to briefly examine the evidence led by various witnesses. 10. Sh Vikas Kumar, who was posted as Intelligence Officer with NCB DZU on 15.05.2010, was examined as PW-1. He deposed that secret information that a lady named Laya Emilyn Mananquil, a Philippines National aged about 50 years, would arrive at IGI Airport from Dubai by Emirates Airlines (Flight no. EK 510) at about 9:15 am, was received. Pursuant to this information, he constituted a team consisting of himself, superintendent Shri YR Yadav, IO Vikas Kumar, IO Sanjay Rawat, IO Akhilesh Mishra, IO Jai Bhagwan, IO GS Bhinder, IO Smt Savitri Jaswani and Hawaldar Shiv Ratan. He deposed that they left the NCB office in two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lips were prepared on which signatures of the two public witnesses and the accused Laya were taken along with the signature of PW-1. The said samples were sealed with the seal of NARCOTICS CONTROL BUREAU DZU-5 and the said paper slips were also put in before sealing. 12. PW-1 further deposed that the proceedings were completed at about 1:30 pm. Certain documents were also seized at the spot, that is, two passports, one boarding pass with tag numbers and four electronic tickets. The raiding party alongwith the case property and the accused Laya returned to the office of NCB and the case property was deposited in the malkhana at about 1415 hours and entries regarding the same were made in the malkhana register. 13. PW-1 stated in his cross examination that the boarding pass of the accused did not have the luggage tag pasted on it and volunteered that the luggage tag filed on the judicial record was affixed on the luggage. 14. GS Bhinder, who was posted as Intelligence Officer at NCB, DZU, was examined as PW-2. He deposed that on 15.05.2010, he joined the investigation team headed by Sh Vikas Kumar, IO and reached the airport at around 7:30 am. The team consisting of seven in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered from Laya s personal search. Thereafter, she came out with the accused Laya at the exit gate of the airport where the other members of the investigating team were conducting the search of the luggage of the accused. On a search of her luggage by the other members of the team, 7 silver pouches were found from one bag and the same was found to contain white powder. On being tested with the help of field testing kit, the white substance was found to be cocaine and its weight was found to be 1.780 kg. Thereafter, two samples of 5 gm each were taken out from the said white powder and were marked as A1 and A2. The accused was then served with a notice under Section 67 of the NDPS and accordingly, she alongwith the all the members of the team came to office of NCB and there, IO Akhilesh recorded Laya s statement and PW-3 conducted her personal search. She then collected Laya s personal belongings, put them in a bag and deposited them in the malkhana. 16. On being cross-examined, she stated that they had not recorded the statement of the immigration officer who had confirmed the identity of the accused. It was further stated that when she alongwith her team came out of the airpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and Dave to collect a consignment of cocaine from Ms. Layla Emilyn. He further admitted that he is involved in drug trafficking and was supposed to get ₹ 20,000/- for this particular job. 18. In his cross-examination, PW-4 deposed that on 15.05.2010 he along with other members of the raiding party left the NCB office at about 14:15 hours for Hastal Vihar. He deposed that he was informed by Sh YR Yadav about the accused Okafor and was instructed to interrogate him and bring him to NCB office. Sh YR Yadav or any other NCB officer did not disclose to him that Ms Laya Emilyn was supposed to deliver cocaine to the accused Okafor. Later, while the raiding team were on their way to Hatsal Vihar, PW-4 was informed by YR Yadav that the accused Laya had disclosed that she was supposed to deliver the cocaine to the accused Okafor. 19. Vikas Kumar, who was on deputation to NCB, DZU on the day of incident, was examined as PW-5. He deposed that in pursuance to the summons issued by Sh Sanjay Rawat (PW-4) to the accused Okafor, he (Okafor) appeared before him (PW-5). And, on Okafor s request, PW-5 wrote down his statement as per his dictation (Ex.PW4/D). 20. In his cross-examina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts on her own. He further deposed that he had not informed the Superintendent that the accused Laya had mentioned in her statement that she had visited the house of Okafor and that she should be taken there for pointing out the said house. The team had already left for the house of Okafor on the basis of the information revealed by Laya in the vehicle. He deposed that recording of Laya s second statement was concluded at 5:30 pm after Okafor was produced before her and she had identified him. 23. Sepoy Rajbir, the driver with DZU, NCB was examined as PW-9. He deposed that after the raid at the airport, the team returned to the NCB office at about 1:30 PM. He further deposed that on 17.05.2010, Sh YR Yadav called him and handed over one sample packet marked A-1, duly sealed with the seal of Narcotics Control Bureau, DZU at the four corners of the samples alongwith two forwarding letters and one more paper. The said samples and the forwarding letter (PW-8/A) were handed over by PW-9 to Sh AK Moharia, Chemical Examiner, CRCL office. In his cross-examination, PW-9 deposed that the forwarding letters were not sealed. 24. Sh Y R Yadav, Superintendent NCB DZU, was examined as PW-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he test memo in duplicate to CRCL through driver Rajbir Singh. 26. He deposed that the statement of the accused Laya was recorded by Sh Akhilesh Mishra before IO Sanjay Rawat on the dictation of the accused. He deposed that when Sanjay Rawat had produced the accused Laya before him, she had not been arrested. PW-10 was present in the room for some time in which the said statement was being recorded. The information provided by accused Laya was in respect of accused Okafor, who was a Nigerian national and to whom she was supposed to deliver the consignment of cocaine. IO Sanjay Rawat did not record the said information in writing separately and the same was included in the statement of the accused Laya. PW-10 deposed that in his presence, accused Laya did not disclose that she could point out Okafor s house. He further deposed that at the airport, the luggage of the accused Laya was locked and the same was opened by her during the search. 27. Sh Pramod Kumar, a public witness was examined as PW-12. He deposed that he generally drives taxi around the airport. On 15.05.2010 at about 8:15 am, he was standing near the VIP parking taxi stand when four or five persons including one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he called him from his mobile phone. It took about 15 minutes for the person to reach the station and then the NCB officer had spoken to him. Thereafter, some written proceedings were conducted and PW-12 alonwith both the accused and NCB officers had signed on the said written proceedings. He further deposed in his cross-examination that on the date of incident, he remained with YR Yadav and the NCB team at the airport during the period 08:30 am-11:15 am and none of the NCB officers had left the VIP parking area at gate no.2. 29. Gurdev Singh, the owner of C-21, third floor, Hastal Vihar, Uttam Nagar was examined as PW-13. He deposed that he had rented the third floor of the said premises to Okafor around two/two and a half years prior to the date of the incident, on rent. He deposed that in May 2010, NCB officials had come to the said house and searched the premises, however, nothing was recovered from the premises. He was called by the NCB officials and was told to give his statement. 30. During his cross-examination, PW-13 stated that he was present at the tenanted premises when the accused Okafor was searched in presence of three/four NCB officials. 31. Sh Ramesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as allegedly recovered from Laya s luggage, she was also searched. And, in the aforesaid circumstances, it was mandatory that the provisions of Section 50 of the NDPS Act be complied with. He referred to the decision of the Supreme Court in S. K. Raju @ Abdul Haque @ Jagga v. State of West Bengal: (2018) 9 SCC 708 in support of his contention that where a person is searched in addition to his luggage being searched, the provisions of Section 50 of the NDPS Act are required to be complied with. 34. Second, he submitted that Laya s luggage was not searched in her presence. He referred to the testimony of IO Savitri Jaswani (PW3) and Vikash Kumar (PW-1) and contended that Savitri Jaswani had searched Laya in a public convenience while, her luggage was allegedly searched by other officers of NCB. He further submitted that this raises doubts as to the recovery of the contraband. He also submitted that the manner in which the search was allegedly conducted also flouted the procedure as set out in the Drug Law Enforcement Field Officers Handbook prepared by NCB, which requires that the search of premises be conducted in presence of the occupier. 35. Third, he contended that the Drug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Safiullah v. State (Delhi Administration): 1993 DLT 193 and the decision of the Punjab and Haryana High Court in Gujrant Singh v. State of Punjab: (2007) 4 RCR (CRI) 226 in support of his contention that is was necessary to hand over the seals to independent witnesses and to ensure that the same was not available with the custodians of the sample, to obviate any possibility of tampering of the samples. 39. Seventh, he submitted that the logbook of the vehicle was also not produced and the same detracts the credibility of the case set up by the prosecution. 40. Eighth, Mr Prabhakar contended that none of the witnesses had deposed that the case property had not been tempered with. He relied on the decision of this Court in Hannan v. State: 2013 SCC OnLine DEL 1416 in support of his contention. 41. Lastly, he pointed out that there were several inconsistencies in the testimony of the independent witnesses (PW-12 and PW-14). He stated that their statements had been recorded at a much belated stage, that is, after a delay about four months. PW-14 had not even identified Laya in the dock. Further, PW-14 had deposed that all written proceedings were conducted at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and submitted that a statement made by any person, who was empowered under Section 53 of the NDPS Act for investigating the offences under the Act, is admissible provided certain conditions are met. He submitted that none of those conditions were met in the present case and the provisions of Section 53A of the NDPS Act could not be circumvented by recording the statement under Section 67 of the NDPS Act. Reasons and Conclusion 45. The first and foremost question to be addressed is whether provisions of Section 50 of the NDPS Act are applicable and whether the same were complied with. Admittedly, Laya was searched. Thus, plainly, provisions of Section 50 of the NDPS Act would be applicable notwithstanding that the recovery was made from the bag carried by her. This issue was considered by the Supreme Court in State of Rajasthan v. Parmanand and Anr.: (2014) 5 SCC 345 . And, the Supreme Court held as under:- 15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. This aspect was considered by this Court in a recent decision captioned Innocent Uzoma v. State: Crl. A. 139/2017, decided on 14.01.2020 . Thus, merely because Laya was not searched in the presence of a Gazetted Officer or a Magistrate, would not invalidate her search or the recovery of the contraband from her bag. 49. In the present case, all of the witnesses present at the Airport had deposed that Laya was handed over a notice under Section 50 of the NDPS Act. PW-1 and PW-3 had testified that Laya was duly informed of her rights of being searched in presence of a Magistrate or a Gazetted Officer. She had, thereafter, desired to be searched by a lady officer and did not want her search to be conducted before a Magistrate/Gazetted Officer. All of the witnesses for the prosecution has testified to the aforesaid effect. The independent witnesses (PW12 and PW-14) also testified that Laya was handed over a notice. She had read the same and thereafter, had consented to be searched by the lady officer. The notice under section 50 of the NDPS Act was brought in evidence (Ex.PW-1/B). The said notice also contains a noting made by Laya to the effect that she is permitting NCB lady ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caine were recovered from the blue bag; PW-12 deposed that the same were recovered from a white colored bag. However, on being crossexamined by the SPP, he corrected the same and stated that the recovery was made from the blue bag. He also deposed that on opening the bag, seven cardboard cartons were recovered and on opening the boxes, packets in bright packing paper were recovered. This evidence does not conform to the case of the prosecution. PW-12 testified that all documents other than the notice were prepared at the office of the NCB and he had signed them there. 53. PW-14 also deposed that all the written proceedings were done at the NCB office and not at the airport. Although PW-12 had also deposed that they had gone to Nawada Metro Station Uttam Nagar; both the public witnesses (PW-12 and PW-14) are consistent in their testimony that they had accompanied the NCB officials to the NCB office. This is not the prosecution s case. Although PW-12 and PW-14 have signed the seizure memo in English, neither of them are proficient in English. PW-14 testified that on the date of the incident, he had written his statement in Hindi and then the NCB officials had written it in English ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il including that he had called the person to whom the cocaine was required to be delivered from his phone. He had also written some facts on his hand (which he claimed was only a date) at the time of his testimony. He testified that YR Yadav and NCB team had stayed with him outside the airport at VIP parking area near gate no.2 till Laya had arrived and none of them had left the spot. PW-14 deposed that a lady official had searched the bag from which contraband was recovered. All of these assertions are inconsistent with the Prosecution s case. 57. In view of the above, there are significant doubts as to the case set up by the prosecution. 58. The next question to be examined is whether there was any infirmity in drawing the samples of the contraband and whether there is any doubt that the integrity of the samples was maintained. Mr Prabhakar had contended that the procedure established under Section 52A of the NDPS Act had not been followed and the same vitiated the entire process of seizure and sampling. He relied on the decision of the Supreme Court in Union of India v. Mohan Lal (supra) in support of his aforesaid contention. He also submitted that the sealed samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... photographs as true; or (c) allowing to draw representative samples ofsuch drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) When an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence. 15. It is manifest from Section 52-A(2)(c) (supra) thatupon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification, etc. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a timeframe into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found. The said pouches were opened and they were found to contain transparent polythene packets. On cutting the same, white-coloured powder was recovered. He testified that he took out a small quantity from each of the packets and all of them tested positive for cocaine. Because all the packets had tested positive for cocaine, they mixed the contents of all the pouches and made one packet and took out two samples from the same. These samples were marked as A-1 and A-2. PW-1 testified that he sealed the said two samples in a white envelope. Paper slips, which were signed by Laya as well as the two public witnesses, were affixed to the two samples marked as A-1 and A-2. The said paper slips were also signed by PW-1. These were then sealed with the seal of Narcotics Control Bureau DZU-5. 62. In view of the above, this Court is unable to accept that there is any apparent infirmity with the procedure of drawing of the samples as adopted by NCB. 63. The next question to be examined is whether it is established that the integrity of the sample was maintained. 64. PW-1 had testified that the said samples and the other case property was deposited at malkhana at about 2:15 PM (141 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the seal and he has also testified that he was in possession of the sample in question. However, there is no material on record to establish as to how he came in possession of the samples in question. He has also not testified that while the sample was in his possession it was not tampered with. In the given circumstances, this Court is unable to accept that NCB has established that the integrity of the sample was maintained. There is break in the chain of custody of the samples. It is well settled that the prosecution is required to establish the complete chain as to the movement of the sample in order to establish that the same had remained intact. In the present case, this chain had not been established as there is no material or evidence to indicate as to how PW-10 came in possession of the said sample. This does raises some doubts in the matter. 65. The next question to be addressed is whether there is any evidence on record to establish beyond reasonable doubt that Laya and Okafor had entered into a conspiracy committing an offence punishable under the NDPS Act. Concededly, there is no material on record other than the statement of Laya and Okafor recorded under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e treated as a statement under Section 161 of the CrPC or whether it is in the nature of the statement made under Section 164 of the CrPC, has also been referred to a larger bench. 68. Before proceeding further, it would be also relevant to refer Section 53A of the NDPS Act, which is set out below:- 53A. Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any officer empowered under section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that having regard to the circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67 of the NDPS Act. In other words, whereas a statement made under Section 53A of the NDPS Act can be read as evidence only in certain circumstances; according to NCB, the statement recorded under Section 67 of the NDPS Act is admissible in evidence and sufficient to sustain a conviction without meeting any of the conditions mentioned in Section 53A of the NDPS Act. This Court finds it very difficult to accept the aforesaid contention. The import of Section 67 of the NDPS Act, certainly, cannot be to circumvent the provisions of Section 53A of the NDPS Act. However, it is not necessary to dilate on this issue any further as this question has been referred by the Supreme Court to a larger bench and the scope of Section 67 of the NDPS Act would be examined in the said matter [Tofan Singh (supra)]. Thus, for the purposes of these appeals, it would be apposite to proceed on the basis that a statement made under Section 67 of the NDPS Act is admissible. Having stated the above, it would be essential to examine the evidentiary value of such statements. 72. In Kashmira Singh v. State of Madhya Pradesh (supra), the Supreme Court had held that a confession cannot be made as a foundat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu s case has been cited with approval. 76. In Surinder Kumar Khanna(supra), the Supreme Court referred to the earlier decisions and concluded as under:- 14. In absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of at least two other NCB officials, namely, Insp. Akhilesh Kumar Mishra (PW-6) and IO Vikash Kumar. She had also been interrogated while she was in the vehicle on the way to the airport to the NCB office. 79. The prosecution s case regarding Laya s disclosure of Okafor and his address and their actions are also inconsistent. 80. If the testimony of PW-6 is accepted, he had not disclosed the contents of Laya s statement to the IO and the first part of the statement where she had disclosed the name and address of Okafor was concluded at 3:30 PM. Thus, the name of Okafor and his address would have been known to the other officials of NCB only after 3:30 PM on 15.05.2010. However, PW-10 (S. R. Yadav) had immediately, on reaching the NCB office (which is about 2:00 PM), directed that a team be constituted for apprehending the co-accused Okafor. 81. It is also important to note that PW-10 had testified that the IO Sanjay Rawat had produced Laya before him and he was present when her statement was being recorded. He testified that IO Sanjay Rawat had not recorded the information regarding disclosure of Okafor or his residential address separately. In his cross-examination, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that on his way to Hasthal Vihar (address of Okafor) he was informed by Sh Y. R. Yadav that accused (Laya) had disclosed that she was supposed to deliver cocaine to accused Okafor. This, plainly, cannot be believed. 86. The testimony of PW-10, PW-4 and PW-6 raise considerable doubts as to when the disclosure regarding Okafor was made by Laya. According to PW-6, it was only recorded in her statement which was made available after 3:30 PM (that is, after it was recorded). According to PW-10, Sanjay Rawat had produced Laya before him and he was present when her statement was being recorded. There is an apparent inconsistency between this testimony and that of Sanjay Rawat. Sanjay Rawat had testified that on instructions of Y. R. Yadav, he had constituted a team and had left the NCB office at 1415 hours (2:15 PM). Thus, the question of his being present when Laya s statement (at least the first part) was allegedly being recorded by PW6 doesn t arise. More importantly, at the material time, there was no disclosure made by Laya regarding Okafor. Sh Y. R. Yadav (PW-10) had testified that he had directed Sanjay Rawat to constitute a team to find about a co-accused on the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation that $2000 were found during such search. This too indicates that there is little evidence to corroborate the statement made by Laya. 91. Okafor s statement also cannot be considered as voluntary. As deposed by PW-4 in his cross-examination, he was instructed to go and bring Okafor to the NCB office. Thus, clearly, Okafor had not come to the NCB office voluntarily. He was confined to the said office and his statement was recorded in the said circumstances. Further, there was really no occasion for Okafor to have made any voluntary statement. Considering that no incriminating evidence was found in his residential house and him being searched. Okafor had, thereafter, retracted his statement. In his retraction, he had stated that he was coerced to sign the said statement. He stated that he was coerced to sign many blank papers. And, he had done nothing voluntarily. 92. It is also important to note that there was no follow up investigation, which would corroborate any of the facts as disclosed in the statements made by Laya and Okafor. Laya, in her initial statement (the first part recorded prior to 3:30 PM), had not disclosed that she had stayed with Okafor. She had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in a false compartment beneath the front seat of the car. The only allegation with regard to the appellant is that after taking delivery of the contraband from Mohammed of Bombay, the co-accused was to take the heroin and hand it over to one Nalliappan. The said Nalliappan was to further hand over the heroin to the appellant. Neither the said Mohammed from Bombay nor Nalliappan have been examined in the case nor have they been arrayed as accused. Therefore, the link evidence is totally missing. Furthermore, the allegation is only in the nature of hearsay that Mohammed had told the co-accused that he had to deliver the contraband to the present appellant. Even if we take the confession of the co-accused Hasan Mohamed (A-2) into consideration, it would only prove that Mohammed (from Bombay) had told the co-accused that Nalliappan would hand over the contraband to the present appellant. This evidence of a co-accused is a very weak type of evidence which needed to be corroborated by some other evidence. The confession of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact is that Laya was in possession of two phones and obviously, she would have been in touch with somebody if she was speaking on the phone or trying to contact somebody. However, no investigation was done to even determine as to who Laya was in touch with. In order to sustain an allegation of conspiracy, it must be established that there was some meeting of minds of the co-conspirators. Clearly, examination of call record details would indicate whether Laya was in touch with Okafor. However, the fact that no such material/evidence has been brought on record, raises considerable doubt whether they were ever in touch with each other. In the circumstances, the prosecution has failed to establish that there was any meeting of minds between Okafor and Laya to sustain an allegation of conspiracy. 95. In view of the above, this Court is unable to sustain the conviction of Okafor. He is, accordingly, acquitted of the charges for which he was convicted (commission of an offence under Section 29 of the NDPS Act). Accordingly, Laya is also acquitted of committing an offence under Section 29 of the NDPS Act and her conviction is set aside. 96. Laya s conviction for commission of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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