Kizito E.L. Ibe vs Central Bureau Of Investigation
1989 Latest Caselaw 452 Del

JUDGMENT

Santosh Doggal, J.

(1) The appellant in this appeal has challenged his conviction for offence under section 21 of the Narcotic Drugs and Psycho-tropic Substances Act, 19S5 (for short Ndps Act), recorded by judgment dated 9th June, 1987 passed by Shri R.P. Gupta, Addl Sessions Judge, New Delhi. By separate order recorded on the same day, he was sentenced to R.I. for ten years and to a fine of Rs. 1,00,000.00 ; sentence in default being further R.I. for one year.

(2) The charge on which the applicant Kizito E L. Ibe was sent up for trial was of possession of heroin which, was as per prosecution case, recovered from him while present near the iron gate by the side of Decent Bright College, Gali No. 6, Sangtrashan, Pahar Ganj New Delhi at about 4 p m. on 21st December, 1986 when he was accompanied by another person named Emmanuel theonye. Both of them are Nigerian nationals.

(3) It is alleged that on a credible information having been received in the office of the Cbi around 2 p.m on 31st December, 1986 to the effect that two persons above-named, with details of their complete addresses of their native place in Neria, were indulging in smuggling of contraband heroin powder and that they would be delivering some quantity of the same in Pahar Ganj to some unknown narcotic smuggle near iron gate, Gali No. 6, Decent Bright College, Pahar Ganj, New Delhi. Pursuant to this information, the prosecution version goes on, a raiding party was formed by Dsp B.N. Mishra (Public Witness 2), who besides others, deputed Inspector Rajinder Singh (not examined) and one Head Constable (also not examined) to proceed to the spot ahead of them. The two persons were spotted by the raiding party and on the pointing out of the informer, the two were nabbed and on personal search of the appellant Kizito E.L. Ibe, a polythene bag was recovered, kept in the right side pocket of his pant. On being opened, the contents of said bag were found to be heroin, white in colour, which on weighment along with the polythene bag was found to be 217 gms. The personal search of the companion of the appellant Emmanuel The money did not lead to recovery of any contraband narcotic drug. Both of them were found carrying bags. which were also searched, but no contraband was recovered from either of the two bags.

(4) After seizure, three samples each of 5 gms. were taken, out and sealed in three separate envelopes by keeping them in the white paper pieces. and the remaining bulk was sealed separately in an envelope. All the parcels were sealed at the spot with the seal of 'RSI'. A recovery memo (Ex. PWI/A) was prepared at the spot witnessed by Dsp B.N. Mishra, and the two members of the raiding party, who had been taken along, after having been requisitioned from the office of the Staff Selection Commission; they being Badri Nath, Udc (not examined) and Ravinder Singh Ldc (Public Witness 1).

(5) The case further is that the seal after use was handed over to Badri Nath vide receipt Ex. PWI/C and then the seized property, personal belongings of the two persons, regarding which a separate list had been prepared, were all brought to the office of the CBI. The case was registered the same night for the offence under section 21 of the Ndps Act against both the person and subsequently after investigation it was found that no link of Emmanuel Theonye with the recovered heroin had been established, and consequently he was not sent up for trial but only shown in column no. 2.

(6) During trial the prosecution examined only five witnesses whereas the accused examined Emmanuel the money as his witness. The trial court after dealing with various arguments raised before it, as to merits of the prosecution case, as well as legal infirmities or points of law raised during arguments and after disposing of each point and after dismissing the defense plea as untenable or not sustainable, held the prosecution case fully proved and also not suffering from any infirmity and thus recorded the conviction as stated at the outset.

(7) During hearing in the appeal when the appellant was also got produced at request, Mr. K.K. Sud argued first of all that the whole of the prosecution case was full of suspicion, and unworthy of reliance, for the short reason that the defense plea right from the beginning was that it was Inspector Rajinder Singh who got him falsely involved in this case on account of enmity, and for personal reasons but he was not examined during trial as a prosecution witness, for which there was no reason or explanation given. Mr. Sud pointed out that the defense version was put to the very first prosecution witness, namely, Ravinder Singh (Public Witness 1), to the effect that it was because of quarrel between Balbir Singh. Proprietor of Balbir Guest House, and the appellant, regarding payment of rent charges of the guest house where he was staying, he had been falsely implicated in this case by Inspector Rajinder Singh of Cbi, who was brother of Balbir Singh. He read out from the cross-examination of this witness where a specific question was put to the witness whether there was a Balbir Guest House in Pahar Ganj area to which reply was that of ignorance, and then positive suggestion was given that they had all gone to room No. 6 of the said Balbir Guest House and that Balbir Singh was brother of Inspector Rajinder Singh. It was further put to the witness that on the day when the alleged recovery was made, Balbir Singh was present with Inspector Rajinder Singh to which the answer of the witness was of great hesitation as be remarked : "Hoon. There were two or three persons with Rajinder Singh Inspector and I do not know what was their name or anyone of them was Balbir Singh."

(8) According to the counsel, the defense version that the accused (appellant herein) had been falsely implicated at the instance of proprietor of Balbir Guest House, namely, Balbir Singh, who happened to be brother of Inspector Rajinder Singh of Cbi, because of some dispute between them, was very categorically put forward, in the cross-examination of not only Pwi, but also of Dsp B.N.Mishra (Public Witness 2), said to be the head of the raiding party. All that he could say in reply was that he did not remember whether Inspector Rajinder Singh bad any brother by the name of Balbir Singh and further while admitting the existence of Balbir Guest House in Pahar Ganj, he asserted that it would not be correct to say that this Guest House belongs to Inspector Rajinder Singh's brother. Thereafter a clear and positive suggestion was put to him that the appellant bad some quarrel with Balbir Singb, proprietor of Balbir Guest House and due to that be had been falsely implicated at the instance of Inspector Rajinder Singh, on the asking of his brother Balbir Singh.

(9) Mr. Sad contended that after disclosure of this defense version. Inspector Rajinder Singh, who had been shown as one of the seven prosecution witnesses when the charge sheet was filed in court, was held back and not examined, without setting forth any reason. He argued that non-appearance of Inspector Rajinder Singh, who was an important witness, and vital link to prove the prosecution case, because it was he whose seal had been used. and it was he who had prepared the recovery memo and other papers, could be for no reason other than the fact that he could not have been able to deny the fact of his relationship with Balbir Singh, or his being proprietor of Balbir Guest House.

(10) The learned counsel placed reliance on a judgment of the Supreme Court in support of his contention that when an important witness is not examined in case, the court becomes entitled to draw an adverse inference against the prosecution case. He cited Air 1986 S.C. 1402, (Karnesh Kumar Singh and others v. State of Uttar Pradesh), where the proposition about the duty of the prosecution to examine material witnesses was highlighted, adding that if such witnesses are deliberately kept back then the court should draw an adverse inference and in a proper case record such failure as constituting a serious infirmity in the proof of the prosecution case. To the same effect is another judgment (Bir Singh and others v. State of Uttar Pradesh), where it was held that although it may not be incumbent upon the prosecution to examine each and every witness but this rule does not apply where the evidence of some witnesses suffers from serious infirmities and cannot be relied upon unless properly corroborated. He cited then another judgment , (The State of Rajasthan v. Daulat Ram), to the effect that where all link witnesses were not examined so as to satisfy the court that the samples in the case under the Opium Act had not changed hands' or had not been tempered with, then it became a case where a lacuna was left in the prosecution case which cannot be subsequently tilled up He also placed reliance on the judgment of this Court in the case of Chaman Lal v. The State, , that where the prosecution case is surrounded by circumstances which appear to the Court absolutely suspicious, then the conviction of a person cannot be sustained.

(11) The braveman of Mr. Sud's argument in this respect thus was that Inspector Rajinder Singb's non-examination affects the prosecution case adversely for two reasons; firstly that the seal that was used being admittedly that of Inspector Rajinder Singh and it was very important that he was examined to vouchsafe for the fact that the seal had not been given back to him till the samples were sent to the Central Forensic Science Laboratory for analysis and secondly because of the defense version which had been put forward right from the beginning during cross-examination of Pw 1 and reiterated during cross-examination of Public Witness 2 and because of noncommittal replies given both of them, it was incumbent upon the prosecution to have examined Inspector Rajinder Singh to dispel the doubts raised in this regard.

(12) I have given my earnest thought to these aspects of the case and I cannot help coming to the conclusion that the case leaves a lurking suspicion about the authenticity of the recovery, as alleged, and the defense version becomes more and more plausible.

(13) In the first instance it is to be noted that when as given out, the raiding party was formed by Dsp Mishra, it is not clear as to why he did not have his seal with him, when he left the Cbi office. As revealed by Dsp Mishra, Inspector Rajinder Singh and one Head Constable proceeded to the spot ahead of other members of the raiding party. Not only Inspector Rajinder Singh, even that Head Constable has not been examined. As a matter of fact, no other member of the raiding party has been examined, after the defense version was put to the first two prosecution witnesses. Another peculiar feature of the case, that glares in the face is that although Inspector Rajinder Singh, in the presence of Dsp B.N. Mishra, in the hierarchical set up was neither the investigating officer nor seizing officer, much less head of the raiding party, but still it is he who conducted all the proceedings, such as preparing the recovery memos, it is he who took the search, and allegedly intercepted the appellant in the market place, and it is he who lent his seal for being put on the sealed parcels. The said seal was handed over to another witness, namely. Badri Nath, Udc (not examined). Only these two witnesses could tell as to at what point of time the seal came back to the custody of Inspector Rajinder Singh and whether it was before the samples had been sent to the Central Forensic Science Laboratory or thereafter. This Badri Nath was given up for the reason that he was not immediately available but for Inspector Rajinder Singh, the Public Prosecutor of the Cbi, who was conducting the case, did not deem it necessary to give an explanation for not being produced, though cited as a prosecution witness .and an important one at that. He conveniently skipped his name.

(14) There can be no manner of doubt that Inspector Rajinder Singh's examination was necessary, for no other reason, but to prove the fact that he did not come to possess the seal after the same had been used for sealing the parcels of the samples and the seized commodity, and the same remained throughout with Badri Nath to whom it is shown to have been handed over at the spot The only person who could have corroborated him in this regard was Badri Nath, and both of them have not been examined. It need hardly be impressed that the importance of the seal lies only in the fact that it ensures against tampering of the case property and for that reason only, the courts have insisted that full chain should be established that the case property with seals remained intact, and that there was no opportunity to tamper with the seals at any intervening time, till Chemical analysis by the experts, and in case any link is missing, then the prosecution case becomes beset with infirmity; benefit whereof goes to the accused.

(15) For this reason, the prosecution case was liable to be held as not warranting conviction of the accused but in the present case there are additional features which shroud the case in such a veil of suspicion that the conscience of the court is not satisfied about the genuineness of the recovery and defense has succeeded in making the whole case get eroded.

(16) As earlier noticed, the defense version has been put forward from the very start, and the two witnesses examined could not give a categorical reply, in the nature of things they were not in a position to do so. The only person who could answer these questions was Inspector Rajinder Singh, who stayed away from the witness box for no manifest reason. This gives rise to the unescapable inference that he could not face the cross-examination or could not dare deny on oath the facts put to him, namely, his relationship with Balbir Singh, proprietor Balbir Guest House.

(17) It is pertinent to note that the accused is a foreign national, and not a local who would otherwise be in the know of such particulars as he has given, about Balbir Guest House unless he had stayed there, as pleaded by him. In his statement under section 313 Cr. P.C , he told the court that he was staying in room no. 6 of Balbir Guest House which was situated in Pahar Ganj and that his name would be in the register of the Guest House and that he had signed it. I would say that it was the duty of the trial court, particularly when the prosecution had failed to examine Inspector Rajinder Singh, to summon record of Balbir Guest House and examine the plea of the accused.

(18) It ts also noteworthy that even in the secret information, as recorded, particulars of the accused persons as to their parentage, addresses or names of their native places in Nigeria, are given as under : 1. Kizito E.L. Ibe s/o Mr. Patrick I be r/o H. No. 104, Ezeogba Emekuku Owerri Imo-State. Nigeria. 2. Emmanuel the money s/o Mr. Joseph Iheonye r/o H. No. 76, Zander Street, Owerri, Imo-State, Nigeria.

(19) It goes without saying that the information was received orally, and from a local, as there is no indication to the contrary. It would be utterly impossible for anyone to be able to give the addresses and particulars. as extracted above, orally. It will be straining the credulity too much for any one to say that this was possible. The conclusion is unavoidable that these had been copied down subsequently from the passports of the two persons. This infests the prosecution case with a suspicion at the inception, namely, as to receipt of credible information.

(20) It is also a very strange conduct on the part of Dsp Mishra and other officers to whom the matter was entrusted, not to have brought the accused and his companion to the place where they were staying in Delhi. Normally, in the event of a person being apprehended in a market or other public place, it is common practice to take that person immediately to his residence or wherever he may be staying so as to ensure that there was no other quantity of the contraband kept there. There was no reason why the same course would not have been adopted in the present case after the appellant and his companion were apprehended near the Iron Gate of Decent Bright College, Pahar Ganj, as shown to be the case. Deliberately, not a single word has been said about this by Dsp Mishra in his statement. This is obviously for the reason that it would have led to the exposure of the fact that both these persons were staying in Balbir Guest House, as pleaded by them.

(21) I have even taken care to go through the police file as to what subsequent investigation was carried out to find out about the addresses of these persons but there is no record of any attempt having been made to investigate as to the place where these persons were putting up in Delhi. This can be for no other reason but for the fact that they had been taken away from Balbir Guest House, as alleged by them.

(22) It is also interesting to note that during trial, the court got produced the parcel of the belongings of the accused (appellant), admittedly recovered from his person contained in a bag, which he was allegedly carrying on his back. The proceedings of the trial court records the contents of the said parcel as follows : 1. One trolly for carry ing the bag on road. 2. Two kettles and one spoon. 3. Three polythene bags empty. 4. Six hangers. 5. One polythene bag containing 3 belts, one shoe brush, two money purses one purse for spectacles, two bottles of hair tonic, two cream tubes, one ball pen, one inhaler, one bottle of throat paint, one photo album, one pair of socks, soap pieces. 6. One heater (Angeethee type). 7. Shirts numbering 15. 8. Eight knickers one under wears. 9. Six pants. 10. One coat. 11. One jersey. 12 One banian. 13. One duster cloth (towel). 14. Two pairs of shoes. 15. One pair of chappal. 16. One comb. 17. Two hand shaped combs (hand shipped), 18. One purse with Rs. 2.50 P. 19. Cough links. 20. Documents i.e. letters & master card.

(23) This inventory which contains such items as heater, hangers kettles, clothes including shirts numbering 15, knickers & underwears numbering 8, and pants besides a coat and jersy. two pairs of shoes, one pair of chappals etc. eloquently speaks for the truth of the defense version namely, that all these belongings were collected from his room and removed when Inspector Rajinder Singh came there at the instance of his brother Balbir Singh, proprietor of Balbir Guest House, because no reasonable person can otherwise believe that a person who had come to a busy market place to hand over contraband heroin to a smuggler would make himself so conspicuous by carrying a huge bag of all his room belongings on his back His endeavor would be rather to come unobtrusively and meet his contact stealthily.

(24) The prosecution version could assume plausibility only if the case was that this accused and his companion were apprehended while they were leaving Delhi finally on their way to some airport or railway station or even bus stand. There is not even a whisper of suggestion that there was any such information that these people were finally leaving. On the contrary, as per statement of Public Witness 2 the information was only that these two persons would be coming to a place to give heroin to an unknown narcotic smuggler. If that was so, there was no reason for both of them to carry their entire belongings on their back. In the context of the defense plea, the contents of the bag assume significance, and lend support to the defense version that the appellant and his companion were taken away from their room and their entire belongings removed and taken along to the police station. The wholly unexplained non-appearance of Inspector Rajinder Singh lends plausibility to defense version, and renders the prosecution case utterly suspect.

(25) The court would be failing in its duty in not recording a word of deprecation about the cavalier attitude adopted by the prosecution, in not even finding the necessity to state the reasons for not producing Inspector Rajinder Singh. In fact. the Public Prosecutor quietly skipped his name. though it is a matter of common experience that whatever may be the nature of evidence of a witness, once he has been cited as a prosecution witness in the list of witnesses sent with the charge sheet, no public prosecutor takes upon himself not to examine said witness. The whole conduct is thus suspicious.

(26) In the result it becomes a case where a very material witness, who besides proving the important link of the prosecution evidence in relation to seal used on the samples parcels and other seized commodity, would have also given a lie to the defense suggestion by coming into the witness box, but he has either stayed away, or deliberately kept away. I am thus constrained to hold that the trial court certainly erred in holding the prosecution case proved, in face of such glaring lacunae in the case.

(27) As I propose to allow this appeal on this ground alone, because of a gnawing suspicion, about the genuineness of the prosecution case, having crept in, due to various factors noticed above, I do not deem it necessary to examine other points raised in the appeal which were argued by Mr. Sud, and diligently replied to by Mr. S. Lal, appearing for the CBI.

(28) In view of the foregoing discussion, I allow, the appeal and set aside the judgment, and order of sentence both dated 9th June, 1987 passed by the Additional Sessions Judge,. New Delhi, As a result, the appellant stands acquitted. He is in custody. He shall be released forthwith, if not required to be detained in any other case or proceedings.