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2014 Supreme(Del) 2594
High Court of Delhi
S. MURALIDHAR, J.
Lekan Akins
Versus
The State (N.C.T Of Delhi)
CRL.A. No. 483 of 2014
Decided on: 12-12-2014
Advocate Appeared:
For the Appellant:J.S. Kushwaha, Advocate.
For the Respondent: Rajat Katyal, APP.
The judgment emphasizes the mandatory nature of the provision under Section 50 NDPS Act and the requirement for strict compliance, as well as the impact of failure to associate independent witnesses, failure to deposit seals, delay in sending samples, and ownership of the motorcycle on the prosecution's case.
Headnote:
NDPS Act - Conviction under Section 21(c) of NDPS Act and Section 14 of Foreigners Act - Section 50 NDPS Act, Section 21(b) - Summary of Acts and Sections: The court discussed the compliance with Section 50 NDPS Act, failure to associate independent witnesses, failure to deposit seals in the malkhana, delay in sending samples, and ownership of the motorcycle. The judgment modified the conviction to one under Section 21(b) of NDPS Act due to the intermediate quantity of contraband and modified the sentence to four years of rigorous imprisonment and a fine of Rs. 10,000.
Fact of the Case:
The prosecution alleged that the Appellant, a Nigerian national, was involved in the illegal trade of cocaine and charas. The police conducted a raid and found the Appellant in possession of 100 grams of cocaine. The Appellant denied the evidence and claimed that the police fabricated the documents and evidence against him.
Finding of the Court:
The trial Court concluded that the prosecution had proved the case against the Appellant beyond reasonable doubt. The Appellant was found guilty of the offence under Section 21(c) of NDPS Act and Section 14 of FA. The trial Court sentenced the Appellant to undergo rigorous imprisonment for a period of ten years and imposed fines.
Issues: The issues included compliance with Section 50 NDPS Act, failure to associate independent witnesses, failure to deposit seals in the malkhana, delay in sending samples, and ownership of the motorcycle.
Ratio Decidendi: The court emphasized the mandatory nature of the provision under Section 50 NDPS Act and discussed the requirement for strict compliance. It also considered the impact of failure to associate independent witnesses, failure to deposit seals, delay in sending samples, and ownership of the motorcycle on the prosecution's case.
Final Decision: The judgment modified the conviction to one under Section 21(b) of NDPS Act due to the intermediate quantity of contraband and modified the sentence to four years of rigorous imprisonment and a fine of Rs. 10,000.
Introduction
1. The challenge in this appeal is to the impugned judgment dated 18th January 2014 passed by the learned Special Judge, Delhi in Session Case No. 14/11 convicting the Appellant, Lekan Akins, for the offence under Section 21(c) of the Narcotics Drugs and Psychotropic Substances Act 1985 (‘NDPS Act’) and Section 14 of the Foreigners Act (‘FA’) and the order on sentence dated 24th January 2014 whereby for the offence under Section 21(c) NDPS Act the Appellant had been sentenced to undergo rigorous imprisonment (‘RI’) for a period of ten years and fine of Rs. 1 lakh, and in default, to undergo simple imprisonment (‘SI’) for a period of two years and for the offence under Section 14 FA, he had been sentenced to undergo SI for two years along with fine of Rs. 10,000 and in default, to undergo SI six months. Both the sentences were directed to run concurrently.
The case of the prosecution
2. The case of the prosecution is that on 29th January 2011 Sub Inspector (‘SI’) Prabhanshu (PW-4) who was posted at Anti Auto Theft Squad (‘AATS’), North District, Delhi Police, was in his office situated at Daya Basti, Inder Lok. At 2.45 pm he is stated to have received secret information that one foreigner involved in the illegal trade of cocaine and charas would pass through Nangia Park and would go towards Inder Lok to supply it to someone. PW-4 transmitted the information to Inspector Shailender Tomar, (Incharge), AATS and recorded DD entry No. 10 (Ex.PW-4/A) to the said effect.
The raid proceedings
3. On the directions of Inspector Shailender Tomar, PW-4 constituted a raiding team consisting of himself, Constable (Ct.) Manoj (PW-11), Ct. Vivek Kumar (PW-12), Head Constable (HC) Mahesh (PW-3) and Ct. Ashok Kumar (PW-5). They are stated to have left the office at around 3.25 pm along with the secret informer in official vehicle driven by HC Ishwar Singh. They are stated to have travelled through Shastri Nagar metro station, Gulabi Bagh, 2 No. Chowki and reached at Nagia Park, police picket.
4. According to PW-4, they requested 4-5 passerby to join the raiding party but none of them was willing to join. Thereafter, PW-4 instructed the driver to park the vehicle about 30 meters away from the picket towards the road adjoining to the picket. They laid barricades on the road and started checking of the motorcycles coming from Nagia Park Gol Chakar towards 2 No. Chowki.
5. According to PW-4, at around 4.25 pm, they noticed the Appellant coming on a motorcycle wearing coffee colour jacket and blue jeans coming from Gol Chakkar side. The secret informer pointed out towards the Appellant. On seeing the police checking, the Appellant tried to turn his motorcycle back towards the Gol Chakkar. However, PW-4 instructed the staff to stop the Appellant and with the help of the staff members, they overpowered the Appellant. PW-11 caught hold him from behind and the Appellant tried to get himself free but PW-12 overpowered him from left side and PW-3 over powered him from the right side. According to PW-4, he called the driver of the vehicle to reach at the spot with the vehicle. The Appellant was instructed to remove the helmet. PW-4 stated that the motorcycle was of black colour and TVS make. The Appellant disclosed his name as Lekan Akins and that he was a Nigerian national.
6. PW-4 stated that he introduced the police party to the Appellant and informed him about the secret information. According to PW-4, the Appellant was informed under Section 50 NDPS Act about his legal right to be searched before any Gazetted Officer (‘GO’) or any Magistrate but he refused to exercise his right. The notice under Section 50 NDPS Act which was purportedly served upon the Appellant (Ex.PW-3/A) states that “it is your legal right to be searched in the presence of a Gazetted Officer or a Magistrate”. It is signed by PW-4 and two witnesses, i.e., PW-3 and PW-12. In the said notice, the Appellant is shown to have written in his own hand that “I Lekan Akins deny o
