Narcotics Control Bureau vs Anju Tiwari & Anr.
2014 Latest Caselaw 5488 Del

   IN THE HIGH COURT OF DELHI AT NEW DELHI

                            CRL.L.P. 353 of 2012

         NARCOTICS CONTROL BUREAU               ..... Petitioner
                   Through: Mr. Rajesh Manchanda, Advocate.

                                 versus

         ANJU TIWARI & ANR.                   ...... Respondents
                       Through: Mr. Sanjiv Kumar with
                       Mr. S.K. Santoshi, Advocates.

         CORAM: JUSTICE S. MURALIDHAR

                                 ORDER

05.11.2014

1. The Petitioner, Narcotics Control Bureau („NCB‟), seeks leave

to appeal against the impugned judgment dated 13th January 2012

passed by the learned Special Judge - NDPS in Sessions Case No.

156 of 2008 acquitting the Respondents, Anju Tiwari and

Rakeshnath Tiwari, for the offences under Sections 21 and 29 of

the Narcotic Drugs and Psychotropic Substances Act, 1985 („NDPS

Act‟).

2. The case of the prosecution is that on 28th June 2008 Mr. R.R.

Kumar, Superintendent, NCB, DZU (PW-1) received a secret

information that Anju Tiwari, Accused No. 2 (A-2) (Respondent

No. 1 herein) was indulging in trafficking of heroin and was

receiving Afghan origin heroin from a Punjab based supplier and

delivering it to Nigerians in Delhi. As per the information, A-2 was

likely to supply huge quantity of heroin to one Nigerian lady near

D-6, Kiran Garden, Main Matiala Road, Uttam Nagar on 28 th June

2008 between 8 to 9 pm and that the contraband would be carried in

one colour Indica car belonging to her associate Rakeshnath Tiwari,

Accused No. 3 (A-3) [Respondent No. 2 herein].

3. Pursuant to the aforesaid information, PW-1 issued a search

authorization on 28th June 2008 in favour of the Intelligence

Officer, Mr. Y.R. Yadav (PW-2) for the search of the car and

another search authorization in favour of Mr. P.C. Khanduri (PW-

8) for the search of the house of A-2 at No. 294, DDA, Pocket-1,

Phase-II, Dwarka. At around 6.45 pm on 28th June 2008, a raiding

team comprising PW-2, PW-8, Jai Bhagwan, Ajay Kumar (PW-3)

and Ms. Rajni Karki (PW-5) left the office of NCB and reached the

spot at main Matiala Road, Uttam Nagar at about 8 pm. It is stated

that two public witnesses, Ramkaran s/o Mr. Gagan Singh and Shiv

Dayal s/o Late Mr. Ram Swarup had voluntarily agreed to join the

NCB team as independent witnesses.

4. It is stated that at about 8.30 pm one African woman came on

foot from the Najafgarh road side and stopped in front of Shop No.

D-6, Kiran Garden, Uttam Nagar and that after about ten minutes

one white colour Indica car came from the Najafgarh road side and

stopped near the African lady and that one Indian lady aged about

30 years alighted from the front seat of the said car and started

talking to the said African lady. After a while the Indian woman is

asserted to have handed over one white cloth handbag to the

Nigerian woman. At that point of time the raiding party

apprehended the Nigerian woman, A-2 and A-3.

5. It is stated that the accused declined to get themselves searched

before a Magistrate or Gazetted Officer. They were then searched.

While no contraband was recovered from A-2, a white cloth bag

handed over by A-2 to the Nigerian woman was recovered and

found to contain four transparent polythene packets having off

white colour powder in it. When tested with the field testing kit it

tested positive for heroin.

6. The said packets were marked A, B, C and D and were weighted

separately. The weight of the each of the packets was one kg. Two

samples of 5 gram each were drawn from each of the packets and

separately sealed and marked A1-A2, B1-B2, C1-C2 and D1-D2.

The packets containing the remaining heroin were separately

packed in a cloth pullanda and sealed.

7. Thereafter, PW-8 and Jai Bhagwan along with A-2 reached her

residence at Flat No. 294, DDA Pocket-1, Phase-II, Dwarka. One

lady Constable, Sunil Kumari of Police Station (PS) Dwarka (PW-

10) and one public witness, Anand Singh s/o Zile Singh (PW-9) are

stated to have voluntarily joined the search of the residence of A-2.

Upon search US$ 30,000 was recovered from an almirah. Since no

satisfactory explanation was provided by A-2, a reasonable

presumption was drawn that the said amount was acquired from the

sale of heroin. The said amount was also sealed and deposited in

the malkhana.

8. It is asserted that A-2 and A-3 gave their voluntary statements

under Section 67 of the NDPS Act admitting to their complicity. In

her statement under Section 67 NDPS Act, A-2 is stated to have

disclosed that her husband Krishan Kumar Tiwari, Accused No. 4

(A-4) was lodged in Tihar Jail since 2004 in a murder and

abduction case. A-2 herself was facing eviction proceedings and

financial difficulties. In one of her visits to Tihar Jail, A-4 is stated

to have told her that he had developed contacts with the drug mafia

in Tihar Jail and that if she could deliver heroin to Nigerians, she

could earn enough money. A-2 disclosed that in the third week of

June on the instructions of A-4, A-2 had received 3 kg of heroin

from someone in Punjab and that she had handed over it to one

Nigerian lady at Uttam Nagar. She had again received 4 kg of

heroin from the Punjab supplier. On the morning of 28th June 2008

she had received payment of US$ 30,000 from the Nigerian lady at

Metro Station, Nawada and that in the evening, A-2 along with her

cousin (A-3) had gone to Matiala Road to deliver the heroin to the

Nigerian lady. It was at that stage that A-2 was intercepted by the

NCB officials.

9. In his statement under Section 67 NDPS Act, A-3 is stated to

have revealed that after reaching the main Matiala Road A-2

handed over one bag to one Nigerian lady. He disclosed that A-2

had told him that she was carrying some illegal articles with her

and therefore, he should run away. The three accused were arrested

on the basis of the seizure of the contraband and the samples drawn

from the substance recovered were sent to the Central Revenue

Control Laboratory („CRCL‟).

10. The further case of the NCB is that the independent witnesses

were also summoned and their statements under Section 67 NDPS

Act were recorded. All the incriminating evidence was put to the

accused persons and their statements under Section 313 Cr PC were

recorded.

11. A-2 and Nnoyim A.H. (A-1) were charged for the offences

punishable under Section 21 read with Section 29 of the NDPS Act.

A-3 was charged with the offence under Section 29 of the NDPS

Act.

12. Since A-1 was declared to be a terminally sick patient by the

All India Institute of Medical Sciences (AIIMS), the High Court by

its order dated 9th April 2009 directed that she be released on bail

and be deported to Nigeria and that the trial against her be

separated and adjourned sine die. Consequently, the trial Court

proceeded against A-2 and A-3.

13. The trial Court negatived the plea of the Respondents that the

provisions of Section 42 of the NDPS Act were not complied with.

As regards the recovery of the contraband, the trial Court noticed

that the summons issued to the independent witnesses, i.e.,

Ramkaran and Shiv Dayal were returned unserved with the remarks

that their respective addresses did not exist. In addition, Dr. S.P.

Singh, Handwriting Expert (DW-1) was engaged by A-2 for

comparing the purported signature of Shiv Dayal on the seizure

memo (Ex.PW2/D) and that appearing on his statement under

Section 67 NDPS Act (Ex.PW-8/J). Initially DW-1 gave his

opinion that the two signatures did not match, on the basis of the

photocopies of the documents. Subsequently, during his deposition

in the Court, DW-1 was permitted to examine the original

documents (EX.PW-2/D and Ex.PW8/J) and after doing so, "he

again confirmed that the signatures of Shiv Dayal purportedly on

the said two documents are not of the same person." The trial

Court accepted the plea of learned counsel for the accused that the

witnesses Ram Karan and Shiv Dayal were "fictitious persons". In

the absence of any satisfactory explanation by the prosecution

regarding the discrepancies in the signatures, it appeared that the

signatures of the said witness appearing on the statement under

Section 67 NDPS Act (Ex.PW8/J) and on the seizure memo

(Ex.PW2/D) were not that of the same person and therefore, it was

inferred that the said signatures had been manipulated by the NCB

officials.

14. As regards the seizure of US$ 30,000, Anand Singh (PW-9) did

not support the case of the prosecution. PW-10 could not be said an

to be independent witness. No conviction could be returned only on

the basis of the statement of A-2 under Section 67 NDPS Act,

particularly when the conduct of the NCB officials proved on

record was "not beyond reproach."

15. This Court has heard the submissions of Mr. Rajesh

Manchanda, learned counsel for the Petitioner and Mr. Sanjiv

Kumar, learned counsel for the Respondents.

16. The main thrust of the submissions of Mr. Manchanda was that

even if the NCB was unable to get the independent witnesses to

depose in Court the conviction could be based on the corroborated

testimonies of the official witnesses. Mr. Manchanda placed

reliance on the decision of this Court in Gita Lama Tamang v.

State of (GNCT) of Delhi 2006 (3) JCC (Narcotics) 197, and of the

Supreme Court in Sarjudas v. State of Gujarat AIR 2000 SC 403

and Iqbal Moosa Patel v. State of Gujarat (2011) 2 SCC 198.

17. A perusal of the statement of Ram Karan s/o Shri Gagan Singh

under Section 67 NDPS Act (Ex.PW-2/M) shows that his address is

given as A-95, Kiran Garden, Uttam Nagar, New Delhi. The

address given in the statement under Section 67 NDPS Act by Shiv

Dayal on 30th June 2008 (Ex.PW8/J) is A-4/35, Mohan Garden,

Uttam Nagar, New Delhi. According to Mr. Manchanda, since both

were residents of Uttam Nagar it was but natural that they were

associated with the raid.

18. The trial Court record has been perused. It appears that on 2nd

August 2010 the trial Court summoned Y.R. Yadav, (PW-2) and all

"public witnesses". On the next date, i.e., 23rd August 2010, the

Court noticed that summons issued to Ram Karan and Shiv Dayal

had been received back with the report that "addresses are not

traceable."

19. In the case of Gita Lama Tamang v. State of (GNCT) of Delhi

2006 (3) JCC (Narcotics) 197 (supra) the record revealed that the

independent witnesses were not traceable. In other words there is

nothing to indicate that in the said case the addresses were

themselves not traceable. If, as in the present case, the addresses of

the independent witnesses to the seizure of the contraband were

demonstrably fictitious then it creates doubt as to whether such

persons were in fact present at the spot and whether they

volunteered to be part of the raiding party.

20. Mr. Manchanda submitted that even if the evidence of the

independent witnesses is kept aside, the conviction could be based

on the statements of the official witnesses and that this case should

be treated as one where there is no independent witness. There are

several cases where the prosecution does not involve any

independent witnesses. In such an event it may be possible to argue

that the official witnesses cannot be disbelieved only because

independent witnesses were not examined. However, the situation

is different where independent witnesses are named; they are shown

to have been present during the raid and their statements are shown

to have been recorded under Section 67 NDPS Act by giving their

addresses.

21. A similar situation had arisen in Nnadi K. Iheanyi v. Narcotics

Control Bureau 2014 VIII AD (Delhi) 1 where again the court

pointed to an abject failure on the part of NCB to produce the

panch witness for examination in the Court and observed that the

responsibility to produce such witness cannot be shifted on the

accused. It was further observed that failure of NCB to produce the

panch witness led to a "serious unexplained doubt whether such a

witness in fact existed."

22. Mr. Manchanda submitted that a huge quantity of heroin worth

several lakhs had been seized in the present case and this fact

should weigh with the Court in convicting the Respondents. He

further submitted that the NCB would not needlessly implicate the

Respondents if they were not in fact involved in the crime.

23. The Court would like to observe that conviction cannot depend

only on the fact that a huge quantity of heroin is shown to have

been seized. Also, the argument that the prosecution will not

needlessly implicate innocent persons does not impress the Court.

The NCB has to discharge the burden of proving beyond reasonable

doubt that it is the Respondents who are guilty of the offences with

which they have been charged. Since the NCB has presented a

version in which independent witnesses are stated to have

participated throughout the raid, the NCB has to satisfactorily

explain how and why the addresses given for such witnesses has

turned out to be non-existent and they have not been produced in

Court. No effort appears to have been made by the NCB to

ascertain the correct addresses and summon the independent

witnesses. That was not the responsibility of the Court In the

circumstances, the only inference that was possible to be drawn was

that the said witnesses and their addresses did not exist.

24. Turning to the seizure of the US$ 30,000, one of the

independent witnesses to its seizure was Anand Singh (PW-9). He

did not support the prosecution at all. In his examination-in-chief,

he stated that "I had not seen any proceedings conducted by the

police officials in the premises of Anju Tiwari." He further stated

that "he asked me write on a blank paper and he also told me the

contents which had been written by me as per his diction." The

other witness was Sunil Kumari (PW-10), a police officer.

25. There was also a serious discrepancy regarding the signatures of

the so-called independent witness Shiv Dayal on the seizure memo

(Ex.PW-2/D) and on his purported statement under Section 67

NDPS Act (Ex.PW-8/J). They were shown by DW-1, a handwriting

expert, not to be of the same person.

26. On the voluntariness of the statements of the Respondents under

Section 67 of NDPS Act, the trial Court noticed that as far as A-2

was concerned, in her statement under Section 313 Cr PC she stated

that no summons were served upon her. The NCB had forcibly

taken her from her house to their office and they mercilessly gave

beatings to her cousin brother co-accused Rakeshnath Tiwari (A-3).

She got scared and as per the dictation of the NCB officials, she

wrote the statement in her own handwriting and signed it. This was

substantiated by the medical report of A-3 (Ex.PW-2/A) prepared

by the doctors of Safdarjung Hospital after the jail officials of Tihar

Jail had refused to admit him on the ground that there were injuries

on his body which were not mentioned in his medical report

prepared by the NCB officials after arresting him. The medical

report clearly shows that A-3 had a swelling and abrasion on his

forehead and bruises all over his back and on his knee. The injuries

noted in the said report substantiated his statement given under

Section 313 Cr PC that his head was banged against the wall by the

NCB officials and that he was beaten mercilessly by them at their

office. Consequently, the conclusion drawn by the trial Court as to

the statements of the Respondents under Section 67 NDPS Act not

being voluntary, cannot be faulted.

27. The decisions in Iqbal Moosa Patel v. State of Gujarat and

Sarjudas v. State of Gujarat (supra) reiterated settled principles but

on the facts of those cases are of no assistance to the Petitioner.

28. No ground has been made out for grant of leave to appeal.

29. The petition is dismissed. The trial Court record along with a

certified copy of this order be returned forthwith.

S. MURALIDHAR, J.

NOVEMBER 05, 2014 Rk