Delhi High Court
Francis O Akahie vs N.C.B. on 3 December, 2009
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.No. 433/2009
Reserved on: November 30, 2009
% Date of Decision: December 3, 2009
# FRANCIS O AKAHIE ..... Appellant
Through:Mr. K.B. Andley, Sr. Advocate with
Mr. M.L. Mehta, Advocate
versus
# N.C.B. ..... Respondent
Through:Mr. Narendra Singh, SPP for NCB.
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
: V.K. JAIN, J.
1. This is an appeal against the judgment dated 30.4.2009 and
Order on Sentence dated 14.5.2009 whereby the appellant was
convicted under Section 21(c) of NDPS Act and was sentenced to
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undergo rigorous imprisonment for ten years and to pay a fine of
Rs.1 lakh or to undergo simple imprisonment for four months in
default.
2. The case of the prosecution, in brief, is that on 14.5.2001,
that Shri N.S.Ahlawat, Asstt. Director, Narcotic Control Bureau
received secret information that the appellant, after procuring
drugs from Albert‟s house at Vasant Vihar would come at T-
Junction of Sangam Vihar at Rao Tula Ram marg near a Marble
Plaque, to deliver the drug to an unknown person. After the
information had been reduced in writing and submitted to
superior officers, a team led by Shri N.S. Ahlawat, reached at the
spot after joining two persons namely Ved Prakash and Pradeep
Kumar in their team. The appellant was intercepted while
having a green bag on his shoulder. After serving a notice under
Section 50 of NDPS Act on him in reply to which the appellant
Francis told them that any officer could search him, the bag
being carried by the appellant was searched and was found to
contain two polythene bags. White powder was found in the
polythene bags which on testing with the help of Field Test Kit
gave positive result of narcotics substance. After drawing
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sample, and sealing them and filling up CRCL form. The samples
as well as the contraband were seized. The team of NCB also
went to the house in Vasant Vihar where Albert was staying and
recovered narcotics. The appellant also made a statement under
Section 67 of NDPS Act admitting the recovery and his
connection with Albert.
3. The prosecution examined 16 witnesses in support of its
case. No witness was examined in defence. PW-11 Shri N.S.
Ahlawat stated that on 14.5.2001, he received a secret
information that two Nigerians namely Francis and Albert were
drug smugglers and one Francis would come at T-Junction of
Sangam Vihar at Rou Marg to deliver heroin to some unknown
persons after procuring the same from Albert‟ house who was
the resident of Vasant Vihar. The information was reduced into
writing Ex.PW-11/A. He submitted the same to Zonal Director,
who directed him to raid and take necessary actions. The said
information bears signatures of the Zonal Director at point „B‟ on
it. The witness has further stated that he organized a team and
gave Search Authorization to Jyothimon, I.O. along with seal of
NCB DZU3. They reached the T- junction and took position on
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the spot. The appellant was intercepted by the team in presence
of two independent witnesses who were called by the IO before
hand and two kilogram of heroin was recovered from the green
bag which the appellant was carrying on his shoulder.
Thereafter, the team searched House No.B-9, Vasant Vihar
where a Nigerian who was inside the house threw something in
the toilet on seeing them and flushed it. By the time, the team
reached upstairs at first floor, he jumped from the window and
went up to the roof from where he fled away.
4. PW-2 Jyothiman has stated that on 14.5.2001, Shri N.S.
Ahlawat called him and informed him about the secret
information received by him. He thereafter joined the team
headed by Mr.Ahlawat and reached the junction of Rout Nagar
and Sangam Marg. Two punch witnesses Pradeep Kumar and
Ved Prakash, were joined in the team. The appellant came to the
spot at about 12:30 p.m. He told the appellant that they had
information that he might be carrying some narcotic drugs with
him and had authorization for his search. He has further stated
that he asked the appellant whether he required the presence of
any Government Officer or Magistrate during the search. Vide
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Ex.PW-2B, the appellant give his reply in writing and stated that
any officer present could take a search. The officers of NCB
offered their search to the appellant but he denied. The
appellant was carrying, on his shoulder a samsonite bag of green
colour out of which two polythene bags were taken out. White
powder was found in those polythene bags which on testing gave
positive test for heroin/cokain/methaquolain. He then weighed
the polythene bags and drew four samples, two from each of
them. The samples as well as the remaining substance were
seized after they had been duly sealed with the seal of NCB
DZU3. He has further stated that he also went to the house of
Albert in Vasant Vihar along with other officials and panch
witnesses. Two persons who met them in the house told them
that Albert had ran away from the other door. One packet of
white powder was recovered from the godown, which, on testing
gave positive result for kokains/methaquolain.
5. PW-5 Shri A.S.Budhwar, Directorate of Enforcement, Lok
Nayak Bhawan, has stated that on 16.5.2001, he took samples in
four envelopes along with test memos and deposited the same in
CRCL in intact condition through Mr.R.P.Singh, who issued
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receipt Ex.PW-5/B. PW-6 Shri Ved Prakash has also supported
the deposition of PW-2 and PW-11 regarding recovery of
payment from House No.F-9, Vasant Vihar. PW-10 Shri
N.K.Dhaka, Enforcement Officer Enforcement Directorate, has
stated on 14.5.2001, he recorded the statement of Ex.PW-10/A.
6. In his statement under Section 313 of Cr.P.C., the appellant
denied the allegations against him and stated that his signatures
were taken on many blank papers which were subsequently used
against him. He has claimed that he has forcibly picked up from
his house in Malviya Nagar and was brutally tortured. He has
denied having made any voluntary statement to anyone.
7. The conviction of the appellant has been assailed by the
learned counsel for the appellant only on the following two
grounds:
1. There was breach of section 50 of NDPS Act as the
appellant was not informed that he has a right to be searched in
the presence of a Magistrate of a Gazetted Officer.
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2. The quantity of the samples found in C.R.C.L. was less
than the quantity alleged to have been taken at the time of
seizure of the contraband.
8. The case of the prosecution is that the contraband was
recovered from a bag which the appellant was carrying on his
shoulder. No contraband is alleged to have been recovered from
the personal search of the appellant.
In State of Punjab vs. Balbir Singh AIR 1999 SC 2378
the constitutional Bench of the Hon‟ble Supreme Court, inter
alia, observed as under:
"On its plain reading section 50 would come into play only
in the case of a search of a person as distinguished from search
of any premises etc."
After considering a number of earlier decisions, the Hon‟ble
Supreme Court held that when an empowered officer or a duly
authorised officer acting on prior information is about to "search
a person" it is imperative for him to inform the person concerned
of his right under sub-section (1) of section 50 of being taken to
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the nearest Gazetted Officer or the nearest Magistrate for
making the search.
9. In Kalema Tumba vs. State of Maharashtra and another AIR
2000 SC 402 the appellant was found to carry heroine in a bag
which he opened in the presence of NCB officers from the key
which he took out from his pocket. It was contended before the
Hon‟ble Supreme Court that the mandatory requirement of
section 50 NDPS Act having not been complied, the evidence
regarding recovery and seizure of heroine was illegal. Rejecting
the contention the Hon‟ble Supreme Court noted that the search
of a baggage of the person as not the same thing as search of a
person himself and that if a person is carrying a bag or some
other article with him and narcotic drug or psychotropic
substance is found from it, it cannot be said that it was found
from his „person‟.
10. In Gurbax Singh vs. State of Haryana AIR 2001 SC 1002,
the appellant was carrying a gunny bag on his left shoulder. On
search, 7 kg of poppy straw were found in that bag. He having
been convicted, it was contended by his counsel for the
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provisions of section 50 of NDPS Act having not been complied
with, the conviction was not sustainable. The contention was
rejected by the Hon‟ble Supreme Court.
10. In State of Rajasthan vs. Daulat Ram AIR 2005 SC 3186,
opium was recovered from a bag carried by the accused. The
Hon‟ble Supreme Court rejected the contention that section 50
of NDPS Act applied to such a search. In State of Himachal
Pradesh vs. Pawan Kumar 2005 IV SCC 350, opium was
recovered from the attachie being carried by the accused. The
Hon‟ble Supreme Court held that section 50 of the NDPS Act was
not attracted to the search from the attachie being carried by the
accused.
Thus, section 50 of NDPS Act did not apply and hence there
is no merit in the first contention.
11. Coming to the second contention, it was pointed out by the
learned counsel for the appellant that though the case of the
prosecution is that 5 gm each was taken out as sample, one of
the sample weighed 4.05 gms whereas other one was found to be
4.98 gms, when the samples were weighed in the laboratory.
Crla433.09 Page 9
12. A perusal of Ex. PW1/A would show that both the samples
had seal of Narcotics Control Bureau, DZU 3 on them when they
were received in the laboratory on 16 th August, 2001. That was
the seal put on the samples at the time of seizure. The testimony
of PW 11 Shri N.S. Ahlawat shows that the seizures were
deposited by the investigating officer in the malkhana in his
presence being in-charge of malkhana and necessary entries
were made in the malkhana register about the seized drugs and
the samples. The samples were sent to the CRCL on 16.5.2001
along with his forwarding letter for testing. The forwarding
letter is Ex.PW5/A. The relevant entries in the malkhana register
is Ex.PW11/C.PW 5 Shri A.S. Badhwar has stated that on
16.5.2001 he took the samples in four envelopes along with test
memos in duplicate to CRCL and deposited the same in intact
condition, through Shri R.P. Singh who issued the receipt
Ex.PW5/B. Shri R.P. Singh has come in the witness box as PW 7
and has stated that on 16.5.2001 he received four sample
packets through Shri Narender Kumar, chemical examiner Grade
I issued the receipt Ex.PW5/B. The sample packets along with
the forwarding note and memos were kept in strong room and
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were taken out only on 19 th June, 2001 inthe presence of Shri
Narender Kumar, chemical examiner Grade I who used to keep
the keys of the strong room. Shri Narender Kumar, chemical
examiner Grade I has come in the witness box as PW1 and has
stated that on 16.5.2001 he had received 4 samples duly sealed
from the Narcotics Control Bureau along with forwarding test
memos. The prosecution has, thus, produced the entire link
evidence and thereby established that there was no possibility of
tempering with the seals that had been affixed on the samples, at
any point of time before they were examined in CRCL.
13. The scale which the NCB officers used in weighing samples
on the spot would obviously be different from the scale which
was used in CRCL. Unless both are electronic scales and are
hundred per cent accurate the possibility of the two scales
showing some variation, on weighing, cannot be ruled out. Also,
the quantity found in CRCL being less and not more than 5 gms
each, the loss of weight could be attributed to loss of moisture,
with the passage of time, between date of seizure and date of
chemical examination in CRCL. Since there was no tempering
with the seals put on the samples, it is obvious that the
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discrepancy in the weight recorded by the NCB officers on the
spot and the weight recorded by CRCL was on the account of
different scales being used or due to loss of moisture and not on
account of someone having tempered with the parcels containing
the sample. Both the samples analyzed in CRCL were found to
contain heroine. In one of the parcels the variation being only
.02 gm is so minimal that it can come even if the two scales used
for weighing the sample at different times are fully accurate.
14. Learned counsel for the appellant has referred to Mohd.
Ramzan vs. State (NCT of Delhi) 2005 (2) JCC (Narcotics) 134.
In that case the bail application filed by the petitioner came up
for consideration before this court. In that case the case of the
prosecution was that samples weighing 600 gms each were
drawn whereas the FSL found that their weight was 630 gms,
560 gms and 750 gms respectively. In these circumstances, it
was contended before this Court that the discrepancy in the
weight could not be attributed to scales since had that been the
case the discrepancy should have been either more or less in all
the samples and not greater in some and less in others.
Crla433.09 Page 12
This Court, taking the aforesaid discrepancy into
consideration granted bail to the petitioner. Since this is not a
judgment on merits of the case after trial and in any case it does
not lay down a legal proposition to the effect that even if there is
minor discrepancy in the weight of the samples sent for analysis
the accused would be entitled to acquittal on that ground alone.
15. The learned counsel has also referred to the decision of the
Hon‟ble Supreme court in Rajesh Jagdamba Avasthi vs. State of
Goa 2004(9) Scale 539. In that case, narcotic substance ws
alleged to have been recovered from the shoes which the
appellant was wearing. On weighing, the substance recovered
from the right shoe was found to be 100 gms whereas that
recovered from the left shoe was weighing 115 gms. The
recovery was effected on 14th December, 1994. The envelopes
containing the substance were sent to the Dte. Of Food and Drug
Administration on January 4, 1995 through a constable who had
not been examined. The quantity in one envelope was found to
be 98.16 gms whereas the quantity in the other envelope was
82.54 gms. The seals which were put on the two envelopes soon
after the alleged recovery of charas was different from the seal
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found on them by PW 1 who conducted the analysis of the
substance forwarded to him in the two envelopes. The Hon‟ble
Supreme Court noticed that there was discrepancy as the
inscription on the seal according to panch witnesses was
„ANCPS‟ while according to PW 4 it was „Anti Narcotoic Cell,
Panaji at Goa‟. According to the PW 1, it was „Anti Narcotics
Cell‟. It was also noticed by the Hon‟ble Court that according to
PW 4 he had taken the seal from PSI Thorat and after seizure he
carried both the packets to the police station where he handed
over the packets as well as the seals to Inspector Yadav and next
day he took the packet from the police station and sent them to
PW 3 who forwarded it to PW 4 for chemical analysis. In these
circumstances, the Hon‟ble Court found justification in the
argument that since the seal as well as the packets were in
custody of the same person there was every possibility of the
seized substance being tempered with. That was the only
hypothesis on which the distinction in weight could be explained.
In that case it was also found by the Hon‟ble Suprme Court that
PW 2, the panch witness associated with the case appeared to be
stock witness and the other panch witnesses had not been
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examined. In view of these features of the case the Hon‟ble
Supreme Court set aside the conviction of the appellant.
16. In my view the above referred judgments do not help the
appellant in the facts and circumstances of the present case. In
the case before this Curt there is no discrepancy as regards the
inscriptions on the seal used for sealing the samples a well as the
remaining contraband. No stock witness has been used as panch
witness and moreover the samples having not remained in the
custody of the same person throughout, there was no possibility
of any tempering with the samples. The most important aspect is
that the discrepancy seen is less than 1 gm in one sample and
only .02 gm in the other sample. Such a minimal discrepancy
cannot be treated at par with the discrepancy which was noticed
by the Supreme Court in the case of Rajesh Jagdamba Avasthi
(supra). Such minimal discrepancy in the weight of the samples
is attributable either to different weighing scales having been
used by the NCB officers and by CRCL or to loss of moisture due
to passage of time. Another important aspect in this regard is
that no opportunity was given to the IO to explain the
discrepancy. His attention was not drawn to the weight recorded
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by CRCL and he was not asked as to how the discrepancy had
occurred.
17. In Gita Lama Tamang vs. State of (GNCT) of Delhi 2006 (3)
JCC (Narcotics) 197, the case of the prosecution was that sample
weighing 5 gm was taken from the contraband seized from the
appellant whereas as per the report of CFSL, the weight was
found to be 3.29 gms. It was observed by this Court that the
difference in weight could be due to moisture and when the
sample was found intact condition having paper slip bearing
signature of the appellant, difference in the weight did not make
any difference. Similar view was taken in Gurdev Kaur vs. State
of Haryana 2002 Crl. L.J. 3016, which was relied upon by this
Court in the case of Gita Lama Tamang (supra).
18. No other submission having been raised on behalf of the
appellant, I find no ground to interfere with the conviction of the
appellant. The sentence awarded to him being the minimal
prescribed sentence for the offence committed by him, there is
no scope for interference with the sentence awarded to the
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appellant. The appeal is devoid of any merit and is hereby
dismissed.
(V.K.JAIN)
JUDGE
December 3, 2009
shitu/RS
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