Jude Chidibere & Ors. vs N.C.B.
2010 Latest Caselaw 984 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Crl.M.C.No.3784/2009

%                       Reserved on:      16th February, 2010
                        Date of Decision: 22nd February, 2010

#     JUDE CHIDIBERE & ORS.                 ..... Petitioners
!                 Through:           Mr.Manish Kumar Khanna,
                                     Advocate
                        Versus
$     N.C.B.                                 ..... Respondent
^                       Through:     Mr.Satish Aggarwala &
                                     Ms.Hrishika Pandit, Advs.

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?                   Yes

      2.    To be referred to the Reporter or not?                Yes

      3.    Whether the judgment should be
            reported in the Digest?                               Yes


: V.K. JAIN, J.

1. This is a petition under Section 482 of the Code of

Criminal Procedure seeking independent investigation into

the allegations made against the petitioners.

2. A complaint dated 21.8.2009 for the offences

punishable under Section 21 of NDPS Act read with Section

29 thereof was filed against the petitioners by Narcotics

Control Bureau. It was alleged in the complaint that on

receipt of information that some foreign nationals, residing in

WZ-40/2, 2nd Floor, Sant Garh, Delhi, were indulging in

supply of narcotic drugs, a team of NCB Officers reached that

house at about 11.00 p.m. on that day. Two independent

persons, namely, Raman Singh and Paramjit Singh, were

joined in the raiding party. The door of the house was

opened by a Thai national Supattra. On entering the room,

the raiding party found seven foreign nationals, including the

petitioners who were carrying out some packing in suitcases

and shoes, etc. On seeing the raiding party, they started

running inside the house, but, were surrounded by the team.

Two suitcases were seized, one from the possession of

Ms.Maria Lucia and the other from the possession of

Ms.Isabel Bonificio, co-accused of the petitioners. Off-white

colour substance was found concealed in both the cases and

also in a polythene kept in one corner of the room. Some

shoes were also found kept in cardboard. When those shoes

were checked after cutting them open, similar off-white colour

powder substance was found concealed in their heels. On

checking, the off-white colour substance tested positive for

Heroin. The total weight of Heroin was found to be 7 kg.

The petitioners Jude Chidiebere and Godson Augustine were

served with summons under Section 67 of NDPS Act

requiring them to appear before Shri Vikas Kumar,

Intelligence Officer, NCB, whereas the other petitioners were

required to appear before Shri Jai Bhagwant, Intelligence

Officer, NCB. Similar notices were served upon other

accused. In his statement under Section 67 of NDPS Act, the

petitioner Jude Chidiebere admitted his presence in house

No.WZ-40/2, 2nd Floor, Sant Garh on the night intervening

13/14th April, 2009. He also admitted the search carried out

by NCB officials and recovery of heroin in his presence. In

reply to a specific question as to why he was packing heroin,

he stated that his job was to pack heroin and he stated that

the ladies present in the house were to go to South Africa

with heroin seal in suitcases/shoes. He also admitted having

received Rs.10,000/- for packing the material. The petitioner

Solomon Ireme stated that he was staying in Sant Garh

along with his friend. The petitioner Godson Augustine

admitted the search by NCB officials and recovery of heroin.

He also stated that the ladies present in the house had to

leave for South Africa, with heroin in the suitcase and shoes.

The petitioner Ebie Godfrey stated that he had come to the

house of his friend on the second floor in property No.WZ-

40/2, Sant Garh, Delhi and they eight foreigners were

concealing Heroin in suitcase and chappals. He also

admitted the search carried out by NCB officials and recovery

of heroin by them. The petitioner Vincent had stated that his

friends staying in house No.WZ-40/2 paid him for stuffing

white powder in the suitcases. He also admitted search and

seizure by NCB officials. Maria Lucia, co-accused of the

petitioners stated that one person Ekenna had promised to

help her with money if she took a bag containing Heroin to

South Africa. She further stated that Ekenna called some of

his friends at his house at WZ-40/2, Sant Garh, Delhi for

filling up the bags for concealing drug. She admitted that she

and other persons were present in the house and were

packing the bags with Heroin, when NCB officials came there

and carried out the search. She also admitted the recovery of

heroin by NCB officials. Supattra, co-accused of the

petitioner who had opened the door at the time of raid by

NCB officials stated that she was staying in house No.WZ-

40/2, IInd Floor, Sant Garh, Delhi, with her friend Maria

Lucia. She also admitted the search and seizure carried out

by NCB officials. The petitioners were thereafter arrested. It

has been further alleged in the complaint that Sunita, owner

of House No.WZ-40/2 also appeared before the Intelligence

Officer pursuant to the summons served upon her and she

stated that she had let out the IInd Floor of the house to

Ms.Lovunge Ngullie and she also identified the accused

persons as those who were residing in or frequenting the

second floor o her house. The samples of Heroin when

examined by CRCL were found to contain 40%

Diacetylmorphine.

3. The case of the petitioners, as stated in the petition, is

that NCB officials carried out search of some other premises

and the persons of black origin who were present in that

house managed to escape. While searching them in

neighbouring houses NCB officials found the petitioners and

forming a bona fide opinion that they must have been those

boys who had run away of seeing them, NCB officials framed

the petitioners in this case.

4. The petitioners have placed on record the affidavit of one

Lakhvinder Kaur, who claims to be the wife of the owner of

house No.C-6, Gali No.14, Sant Garh, Tilak Nagar. In her

affidavit annexed to the petition, she has stated that on 13 th ,

at about 10.30 or 11.00 p.m., when she was walking, after

taking dinner, she saw 8-10 persons coming with Dandas,

chains and handcuffs. Three/four persons went upstairs of a

house, which was one house away from her house. She

heard sound of glass-breaking and someone shouting that

"they have run from the back side". The persons who were

standing downstairs ran to the back side of the house. After

sometime, they came back and asked her whether any South

African was living there. She told them that some South

Africans were living in her house with her permission. They

went inside along with her and her husband. Six boys who

were present there were taken for some verification. After

coming out, one of the boys escaped while the remaining five

were chained and taken in a van. She has further stated that

she did not see anything being recovered from her house.

5. The petitioners have also filed the affidavit of one

Inderjeet Singh, who has stated that his house is adjoining

house No.C-6, Ground Floor, Gali No.14, Sant Garh, Tilak

Nagar. He further stated that at around 10.30 or 11.00 p.m.,

when he came to his terrace on hearing commotion, he saw

some boys getting out of a house which was two houses away

from his house. He also saw some officials, including one

wielding a pistol and asking the boys to get inside. He saw

some staff members entering the house of Lakhvinder Kaur.

Subsequently, he saw staff bringing out six boys, out of

whom one was able to ran away and remaining, including

Godson and Solomon were taken away.

6. The petitioners have also filed the affidavit of one

Mr.Cosmos Azonim Ehiedu, who claims to be friend of

Solomon and Godfrey. In his affidavit, he has stated that he

had come along with Lakhvinder Kaur and Inderjeet Singh

and had introduced to them to Shri Manish Kumar Khanna,

the learned counsel for the petitioners.

7. Relying upon the affidavits filed with the petition, the

petitioners have sought independent investigations into the

matter from an independent authority. Crl.M.A.1318/2009

has also been filed by the petitioners seeking a direction to

the respondent to put them to lie detector test, brain mapping

and narco-analysis test. It has been further prayed that in

case the petitioners come out to be innocent, then every

witness of the case should be put to these very tests in order

find out the truth.

8. Admittedly, cognizance has been taken and the

petitioners are facing trial pursuant to a complaint filed by

the Intelligence Officer before the Special Judge. If the

procedure prescribed for trial before a Court of Sessions, laid

down in Chapter XVIII of the Code of Criminal Procedure,

followed, the stage of defence, as provided in Section 233 of

the Code, would come only after the evidence for prosecution

has been recorded and after taking evidence, examining the

accused and hearing the prosecution and defence on the

point the Judge comes to the conclusion that the accused is

not entitled to acquittal under Section 232 of the Code. In

case of trial of warrant cases instituted on police report, the

stage for asking the accused to enter upon his defence arise

only after evidence for prosecution has been recorded in

terms of Section 242 of the Code. In case of trial of warrant

cases instituted otherwise than on a police report, the stage

for defence evidence only after evidence in terms of Section

244 has been recorded, the accused is not discharged in

terms of Section 245 and after framing charge against him,

evidence in terms of sub-Section 5 and sub-Section 6 of

Section 246 of the Code has been recorded. If he so applies,

the Magistrate will issue process for compelling the

attendance of any witnesses, for the purpose of his

examination or production of any document, as the case may

be, unless he is of the view that the request made by the

accused is vexatious or has been made for the purpose of

delaying the trial or defeating the ends of justice. Thus, the

scheme of the Code does not envisage consideration of the

defence available to the accused at any stage before recording

of evidence of the prosecution. If the defence available to the

accused is considered at this stage, that would be absolutely

contrary to the scheme of trial envisaged in Chapter XIX of

the Code of Criminal Procedure. Hence, to examine the

defence of the accused, at this stage, will be in violation of the

mandate contained in the Code of Criminal Procedure.

9. In State of Orissa vs. Debendra Nath Padhi 2005(1)

SCC 568, a Three Judges Bench of the Hon‟ble Supreme

Court, inter alia, held that at the time of framing charge or

taking cognizance the accused has no right to produce any

material. The Hon‟ble Supreme Court held that its earlier

decision in Satish Mehra vs. Delhi Admn., (1996) 9 SCC

766, holding that the trial court had powers to consider even

materials which the accused may produce at the stage of

Section 227 of the Code, had not been correctly decided.

After considering a number of decisions on the issue before

it, the Hon‟ble Supreme Court, inter alia, observed as under:-

"All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition."

It was contended before the Hon‟ble Supreme Court

that the procedure which deprives the accused to seek

discharge at the initial stage by filing unimpeachable and

unassailable material of sterling quality would be illegal

and violative of Article 21 of the Constitution since that

would result in the accused having to face the trial for long

number of years despite the fact that he is liable to be

discharged if granted an opportunity to produce the

material and on perusal thereof by the court.

The contention was rejected by the Hon‟ble Supreme

Court noticing that if it is accepted there would a mini trial

at the stage of framing of charge, which would defeat the

object of the Code. The Hon‟ble Court observed that it is

well-settled that at the stage of framing of charge the

defence of the accused cannot be put forth and felt that

acceptance of the contention of the learned counsel for the

accused would mean permitting the accused to adduce his

defence at the stage of framing of charge and for

examination thereof at that stage which is against the

criminal jurisprudence. As regards some observations

made in Minakshi Bala vs.Sudhir Kumar (1994) 4 SCC

142, the Hon‟ble Court noted that in the above referred

case the Supreme Court was considering the rare and

exceptional cases where the High Court may consider

unimpeachable evidence while exercising jurisdiction for

quashing under section 482 of the Code of Criminal

Procedure. In State Anti-Corruption Bureau vs. P. Surya

Prakasan 1999 SCC(Crl.) 373, the Hon‟ble Supreme Court

held that the only right the accused has at this stage is of

being heard and nothing beyond that.

10. The statements contained in the affidavits of

Smt.Lakhvinder Kaur, Shri Inderjeet Singh and Mr.Cosmos

Azonim Ehiedu, are nothing but the evidence which the

petitioners claims to have in their defence. If these affidavits

are taken into consideration and a re-investigation or fresh

investigation is directed on the basis of these affidavits, that

will amount to not only taking the defence available to the

petitioners into considerations at the very initial stage of trial

but also to ask the investigating agency to verify the defence

being taken by the petitioners thereby relieving them of

discharging the onus placed upon them by law, to

substantiate the defence taken by them. This, to my mind,

will be contrary to the scheme contained in Code of Criminal

Procedure and in disregard of the law laid by the Hon‟ble

Supreme Court in the case of Debendra Nath Padhi (supra).

11. In Randhir Singh Rana vs. The State AIR 1997 SC

639, the learned Magistrate ordered further investigation

after accused had made his appearance and the case was at

the stage of considering whether charge should be framed or

he should be discharged. The Hon‟ble Supreme Court held

that the Magistrate on his own cannot order further

investigation.

12. In Rajesh & Ors. Vs. SHO Ist Town, Kadappa 2001

(10) SCC 759, the order passed by the High Court directing a

fresh and further investigation was set aside by the Hon‟ble

Supreme Court holding that the High Court had overstepped

its jurisdiction by directing further investigation.

13. In Rita Nag Vs. State of West Bengal, 2009 (4) LRC

11 (SC), the Hon‟ble Supreme Court has, inter alia, held as

under:

"What emerges from the above-mentioned decisions of this Court is that once a charge-sheet is filed under Section 173(2) Cr.P.C. and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the

application made by the investigating authorities permit further investigation under Section 173(8). The Magistrate cannot suo moto direct a further investigation under Section 173 (8) Cr.P.C. or direct a re-investigation into a case on account of the bar of Section 167 (2) of the Code."

14. In K. Chandrasekhar vs. State of Kerala, AIR 1998

SC 2001, the Hon‟ble Supreme Court, inter alia, observed as

under:

"From a plain reading of the above section it is evident that even after submission of police report under sub- section (2) on completion of investigation, the police has a right of further investigation under sub-section (8) but not 'fresh investigation' or 're- investigation'.... The dictionary meaning of „further' (when used as an adjective) is 'additional'; more; supplemental. 'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether."

Since the petitioners claim to be innocent, whereas the

complainant, after carrying out investigation, has concluded

that they are guilty of having committed offences punishable

under NDPS Act, the request of the petitioners seeking

investigation on the lines of affidavits of persons who claim

them to be innocent, is a prayer for re-investigation and not

for further investigation by another agency.

15. It is true that the power of this Court under Article 226

of the Constitution of India is not fettered by the provisions

contained in Section 173(8) of the Code of Criminal

Procedure. But even while exercising its jurisdiction under

Article 226 of the constitution, the court needs to refrain from

giving directions which would be contrary to and upset the

scheme of trial laid down in the Code of Criminal Procedure.

Ordinarily, it would not be appropriate for the High Court to

order a re-investigation or even fresh investigation at the

behest of an accused, when cognizance of the offence, alleged

to have been committed by him, has already been taken by

competent court and he is already facing trial on the

allegations made against him.

16. In case this Court directs a re-investigation fresh or

further investigation by an agency other than Narcotics

Control Bureau, as is sought by the petitioners, and that

agency after carrying out investigation and on the basis of the

evidence collected by it, comes to the conclusion that the

petitioners or some of them are innocent, that would result in

the Court being saddled with two contradictory sets of

evidence, one collected by Narcotics Control Bureau, showing

the commission of offence by them, and the other collected by

the new agency showing them to be innocent, and if that

happens, it would upset the entire Scheme of trial contained

in the Code of Criminal Procedure since it will not be possible

for the court to dismiss the complaint filed by Narcotics

Control Bureau and acquit or discharge the petitioners only

on account of the evidence collected by the other agency in

their favour. The Court cannot compel the complainant to

rely upon and produce the evidence collected by the other

agency, as his evidence. Unless the complainant is given an

opportunity to present his evidence before the trial court, in

accordance with the scheme contained in the court, it would

not be permissible for the trial court to give a finding on the

truthfulness or otherwise of the allegations contained in the

complaint. Therefore, since cognizance of the offence has

already been taken and the petitioners are already facing trial

for the offences punishable under the provisions of the NDPS

Act, it would not be appropriate for the court to direct a fresh

investigation or re-investigation by some other agency.

17. Even otherwise, the affidavits filed by the petitioners

are not such a strong reason as would persuade the Court to

order fresh investigation or re-investigation by some other

agency despite cognizance having already been taken by a

competent court and the petitioners are already being tried,

and despite the fact that if direct such an investigation that

will not be in consonance with the scheme contained in

Chapter XIX of the Code of Criminal Procedure. No evidence

of an unimpeachable nature warranting a re-investigation or

even a fresh investigation at their behest has been produced

by the petitioners, nor is there any such circumstance as

would warrant a departure from the procedure prescribed in

the Code. It may not be difficult to obtain such affidavits

from private persons and if re-investigation or fresh

investigation is ordered by this Court on the basis of such

affidavits, the Court would be flooded with petitions from

persons who are already facing trial and who have no

difficulty in obtaining affidavits from those who are willing to

support them either on account of relationship or friendship

with them or for extraneous considerations. The appropriate

course of action for an accused is to produce these persons

as his witnesses at an appropriate stage, as envisaged in the

Code of Criminal Procedure so that their testimony may be

tested by subjecting them to cross-examination.

18. Even otherwise, prima facie, sufficient evidence appears

to have been collected by Narcotic Control Bureau, to prove

the offence alleged to have been committed by the petitioners.

Besides the testimony of NCB officials, who formed the

raiding party that seized the heroin from House No.WZ-40/2,

Sant Garh, Delhi, independent evidence in the form of

statements of public witnesses Raman Singh and Paramjit

Singh who were joined in the raiding party and who were

examined under Section 67 of NDPS Act is available against

the petitioners. The landlady of House No.WZ-40/2, Sant

Garh, Delhi, Smt. Sunita has also been examined under

Section 67 of NDPS Act and she also has supported the case

of the complainant and has identified the petitioners in the

office of NCB. The petitioners themselves have been

examined under Section 67 of NDPS Act and have admitted

the allegations made against them in the complaint. Even if

these statements have been retracted by them, that by itself

does not render them inadmissible in evidence, particularly

when corroborative evidence in the form of depositing of NCB

officials as well as public witnesses and the landlady of the

house is available.

19. As regards the request of the petitioners for directing

the respondent to subject them to Lie Detector Test, Brain

Mapping and Narcotic Analysis Test, the obvious purpose is

to establish on the basis of outcome of these tests that they

are innocent. The reasons for not directing reinvestigation or

a fresh investigation on the request of an accused hold

equally good for not directing the respondent to subject them

to these tests, on their request.

20. Section 53 (1) of the Code of Criminal Procedure deal

with examination of an accused by a medical practitioner and

reads as under:-

"53. (1) Examination of accused by medical practitioner at the request of police officer.-(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a

police officer not below the rank of sub- inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner."

21. A bare perusal of the above referred provision would

show that (i) examination of an accused is envisaged only

during investigation and not after its conclusion and (ii) the

examination is envisaged only if so requested by a Police

Officer. The obvious purpose is to help the Investigating

Officer to collect such evidence as the medical examination of

the accused may disclose. There is not specific provision in

the Code of Criminal Procedure for medical examination of

the accused, at his request, in order to enable him to prove

his defence. May be, if an accused wants his medical

examination, in order to substantiate the defence taken by

him, there may not be a valid objection to the Court directing

such a medical examination even in the form of Lie Detector

Test, Brain Mapping or Narco Analysis Test, provided such a

request is made by the accused only at the stage he is called

upon to enter his defence. It would be contrary to the

scheme of trial contained in the Code of Criminal Procedure if

such tests are directed, on the request of an accused, at the

stage when the prosecution is yet to lead its evidence and the

accused is yet to be called upon to enter upon his defence.

22. The learned counsel for the petitioners has referred to

the decision of this Court in "Shailender Sharma Vs. State

& Another", 2009 (107) DRJ 499, where a learned Single

Judge, while upholding the directions of the trial court for

narco analysis of the petitioner Shailender Sharma held that

an incriminating statement, if made by the accused during

the test, cannot be used against him since use of such a

statement would be in contravention of the protection

available to an accused against self-incrimination. In the case

relied upon by the learned counsel for the petitioner, Narco

Analysis Test was directed on the request of the prosecution

and not on the request of an accused. Nowhere does this

judgment lay down the proposition that Narco Analysis Test,

Lie Detector Test or Brain Mapping Test can be directed on

the request of an accused, even after cognizance of the

offence has been taken but the accused is yet to be called

upon to enter upon his defence.

23. The learned counsel for the petitioners has referred to

the decision of the Hon‟ble Supreme Court in "Ashish

Batham Vs. State of Madhya Pradesh", 2002 (4) Crimes

220 (SC). On a perusal of this judgment, I have not been able

to find any such proposition in it as would persuade me to

direct re-investigation or further investigation at the instance

of an accused. The learned counsel has also submitted

abstract from para 379 from the decision of the Hon‟ble

Supreme Court in "Kartar Singh Vs. State of Punjab", 1994

(3) SCC 569. Again, I am unable to find any such proposition

in this judgment as would persuade me to pass directions of

the nature sought by the petitioners.

For the reasons given in the preceding paragraphs, I

find no merit in the petition and the same is hereby

dismissed.

(V.K.JAIN) JUDGE FEBRFUARY 22, 2010 RS/