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High Court Of Delhi
KIZITO E.L.IBE - Appellant
Versus
CENTRAL BUREAU OF INVESTIGATION - Respondent
CRIMINAL APPEAL 165 of 1987
Decided On : 08/31/1989
NDPS ACT - POSSESSION OF HEROIN - SECTION 21 - CONVICTION SET ASIDE - SUSPICION ABOUT GENUINENESS OF RECOVERY - NON-EXAMINATION OF MATERIAL WITNESS - ADVERSE INFERENCE - LACUNAE IN PROSECUTION CASE.
Fact of the Case:
The appellant, a Nigerian national, was convicted under Section 21 of the NDPS Act for possession of heroin. The prosecution alleged that he was apprehended with a polythene bag containing 217 grams of heroin near the iron gate of Decent Bright College, Gali No. 6, Sangtrashan, Pahar Ganj, New Delhi. The appellant denied the charges and claimed that he was falsely implicated due to a dispute with the proprietor of Balbir Guest House, where he was staying, and Inspector Rajinder Singh, who was the brother of the proprietor.
Finding of the Court:
The court found that the prosecution case was beset with suspicion and infirmities. The non-examination of Inspector Rajinder Singh, who was a material witness and could have corroborated the prosecution's case, led to an adverse inference against the prosecution. The court also noted that the defense version, which was put forward from the beginning, was plausible and was not adequately rebutted by the prosecution. The court further observed that the contents of the bag allegedly recovered from the appellant, which included various personal belongings, were inconsistent with the prosecution's case that he was involved in drug trafficking.
Issues: 1. Whether the non-examination of a material witness by the prosecution leads to an adverse inference against the prosecution's case? 2. Whether the defense version, if plausible and not adequately rebutted by the prosecution, can lead to the acquittal of the accused? 3. Whether the contents of the bag allegedly recovered from the appellant were consistent with the prosecution's case?
Ratio Decidendi: 1. The court held that the non-examination of Inspector Rajinder Singh, who was a material witness and could have corroborated the prosecution's case, led to an adverse inference against the prosecution. The court relied on the principle that when an important witness is not examined in a case, the court is entitled to draw an adverse inference against the prosecution case. 2. The court held that the defense version, which was put forward from the beginning, was plausible and was not adequately rebutted by the prosecution. The court observed that the defense version was consistent with the evidence on record and that the prosecution had failed to provide a satisfactory explanation for the non-examination of Inspector Rajinder Singh. 3. The court held that the contents of the bag allegedly recovered from the appellant, which included various personal belongings, were inconsistent with the prosecution's case that he was involved in drug trafficking. The court observed that it was unlikely that a person involved in drug trafficking would carry such a large number of personal belongings with him.
Final Decision: The court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant.
( 1 ) THE appellant in this appeal has challenged his conviction for offence under section 21 of the Narcotic Drugs and Psycho-tropic Substances Act, 1955 (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 versioo 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 Theoney 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 lheonye 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 defence plea as untenable or not sustainable, held the prosecution case fully proved and also not suffering from any infirmity and thus reco
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