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1993 Supreme(Del) 717
High Court Of Delhi
NAMDI FRANCIS NWAZOR - Appellant
Versus
NARCOTICS CONTROL BUREAU - Respondent
CRIMINAL APPEAL 122 of 1991
Decided On : 12/15/1993
D.R.Sethi, J.S.Arora, Raman Sawhney, S.S.DAS, Sabrina Bansal, SATISH AGGARWAL, Sudha Varshney
Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21 and 28 r/ws 23 Conviction under - Appeal. Nigerian National - Recovery of 180 gms of heroin from his possession - Failure to account for his possession - No missing link to raise any doubt that the sample not drawn from what was recovered from the possession of appellant - Offence for unauthorised possession of heroin - Conviction sustainable.
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 67 - Statement recorded under - Admissible in evidence, if it is made voluntarily and without any fear, inducement or coercion.
Held: As far as the voluntary nature of the statement made in this case is concerned, this statement was made on 23.6.1987. It was retracted for the first time on 3.8.1987 i.e. after more than 1-1/2 months after the accused engaged a Lawyer and got legal advice. It will not be out of place to mention here that earlier this appellant accused made an application before the court for getting "B" class facilities and even in that application he did not mention that the statement was obtained from him under force or coercion and by undue influence. That application for getting "B" class facilities was move on 19.7.1987. Besides a reading of the statement Ex. P.W. 1/D shows that it contains so many things which could not be in the knowledge of the N.C.B. Officer, to whom it was made. Further the statement, which runs into 5 written pages, was recorded by the appellant himself in his own handwriting. This fact also gives credence to this statement. No suggestion was put to P.W. 1 that this statement was obtained force, duress or coercion. The evidence coupled with the statement Ex. P.W. 1/D recorded under Section 67 of the N.D.P.S. Act makes it clear that the suitcase Ex. P. 5 belonged to this appellant accused from which the heroin was recovered besides other articles, which were taken into possession as per the Panchanama prepared in that regard. (Para 16)
(iii) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 50, 57, 53-A - A statement made and signed by a person before any officer empowered u/s. 53 for the investigation of offences - Relevant when;
Held: As per as the provisions of Section 53A the relevancy of the statement has to be seen. 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 the truth of the facts which it contains, 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, considered unreasonable; or 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 case, the statement should be admitted in evidence in the interest of justice. (Para 15)
(iv) NDPS Act, 1985 - Section 55 - Only an enabling provision - Gives option to the officer making a seizure under the Act to deposit the seized articles in the local police station - If such deposit 1S made, the officer-in-charge of the police station is bound to take charge of it for safe custody. (Para 17)
(v) NDPS Act, 1985 - No statutory requirement for handing over the seal used by the police officer in course of an investigation to third person. Piara Singh's case; 1982 (84) P.L.R. 244: Relied on. (Para 20)
Result: Appeal dismissed.
( 1 ) NAMDI Francis Nwazor, a Nigerian national, the appellant herein was booked and tried for the offences punishable under Sections 21 and 28 read with Section 23 of the N. D. P. S. Act. The Trial Court by its detailed judgment and order dated 19. 7,1991 found him guilty for the offence under Section 21 of the N. D. P. S. Act and sentenced him to undergo R. I. for ten years and a fine of Rs. 1 lakh and in default of payment of fine to further undergo R. I. for a period of one year. He was further sentenced to ten years R. I. and to pay a fine of Rs. 1 lakh and in default of payment of fine to further undergo R. I. for a period of one year for the offence punishable under Section 28 read with Section 23 of the N. D. P. S. Act. However, the substantive term of imprisonment was ordered to run concurrently.
( 2 ) AGGRIEVED, that judgment and order has been challenged by the appellant by filing this appeal.
( 3 ) IN brief, the prosecution version is that the appellant is a Nigerian national. On 23. 6. 1987 he was to fly from New Delhi to Lagos via Bombay by Air India Flight No. AI-860 and for that purpose he reported for customs clearance in the International Departure Customs enclosure of Indira Gandhi International Airport, New Delhi at the Air India counter. A team of the Narcotics Control Bureau consisting of Mr. U. K. Mishra, Mr. D. C. Mishra and Mr. K. K. Sood, Intelligence Officers was present at the I. C. I. Airport, New Delhi. On suspicion it was decided by the team of the Intelligence Officers of N. C. B. to check the baggage which the appellant had booked. Before doing so, the Intelligence Officers organised a raiding party in which two independent witnesses,namely, Mr. Sita Ram (Public Witness 2), who was working as Traffic Assistant with Japan Airlines and Mr. Dhir Singh (Public Witness 5), who was working as senior loader with Air India at I. G. I. Airport, New Delhi were also included. The raiding party asked the appellant whether he was carrying some narcotics drugs or any other contraband goods and on his refusal, the luggage which was got booked by the appellant were searched. He was carrying two hand bags, one black zipper hand bag and one black coloured leather hand bag. As per the prosecution version, on examination of "sky star" zipper suit case, which was got booked by the appellant, it was found to contain 153 cartons of Tetanus vaccine. All the cartons were opened and examined. 152 cartons were found to contain ampules but one carton was found to contain a poly thene packet containing brown coloured powder closed with black adhesive tape. The brown coloured powder recovered from that carton was weighed and it came to 180 grams. The said powder believed to be heroin was seized by Mr. U. K. Mishra under the provisions of the N. D. P. S. Act vide Panchnama Ex Public Witness I/b, which was attested by Mr. Sita Ram (Public Witness 2) and Mr. Dhir Singh (Public Witness 5), the witnesses to the recovery. Three representative samples were drawn from the seized powder which were sealed in three envelopes marked as H-I, H-2and H-3. The envelopes containing the samples were sealed with the seal of N. C. B. bearing No. 08, under the signatures of the witnesses. The remaining brown powder believed to be heroin along with the adhesive tape was kept back in the same carton marked "h" which was also sealed with the seal of N. C. B. No. 08 under the signatures of the witnesses. All the 152 cartons containing Tetanus Vaccine were kept back in the same "sky star suit case and the suit case was also sealed with the said seal of N. C. B. under the signatures of the witnesses.
( 4 ) THE prosecution version further goes on to say that the appellant was then examined under Section 67 of the N. D. P. S. Act and under Section 107 of the Customs Act and in his statement Ex Public Witness I/d he, inter alia, admitted the recovery of 180 grams of heroin from his possession and his attempt to export the same out of Ind
