Advocates Appeared:
For the Appellant : Inderjeet Sidhu, Adv.
For the Respondents: Satish Aggarwala, Adv.

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IN THE HIGH COURT OF DELHI

C. Hari Shankar, J.

Leysliener Zandile Luthuli ...Appellant Vs. Directorate of Revenue Intelligence ...Respondent

Crl. A. 1151 of 2014 Decided On: 27-11-2018

SUBJECT: JUDGEMENT - ACQUITTAL

ACTS REFERRED: CONSTITUTION OF INDIA: Art.141, Art.21 CRIMINAL PROCEDURE CODE: S.313, S.154, S.155, S.161, S.162 EVIDENCE ACT: S.114(g), S.145, S.157 INDIAN PENAL CODE: S.165(a) NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT: S.21(c), S.50, S.67, S.57, S.35, S.54, S.35(2), S.37

JUDGMENT

(!) C. Hari Shankar, J.

[11000614880001] The impugned judgment, dated 12th February, 2014, of the learned Special Judge (NDPS), convicts the appellant of having committed an offence punishable under Section 21(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act"). The subsequent order on sentence, dated 17th February, 2014, sentences her to rigorous imprisonment of 10 years and a fine of Rs. 1 lakh.

[11000614880002] The case of the prosecution may be set out thus:

(!) (i) PW-1 Anju Singh received intelligence that the appellant, a lady of African origin, would be coming to ISBT, Delhi, by a Punjab Roadways bus at about 8:15 PM on 5th January, 2009, carrying narcotic drugs. Following thereon, a team of officers of the Directorate of Revenue Intelligence (DRI), accompanied by two public witnesses, Harendra and Vishal, intercepted the appellant when she was disembarking from a Punjab Roadways bus. She was found carrying a black backpack.

(!) (ii) Three representative samples of 5g each were retrieved from the packets and kept in separate polythene pouches, marked A-1, A-2, A-3, and B-1, B-2, B-3 respectively. These were sealed and sent to Central Revenues Control Laboratory (CRCL).

(!) (iii) PW-1 prepared triplicate test memos. The entire proceedings were recorded in a detailed panchnama Ex. PW-1/C. The test reports of CRCL indicated heroin of 67% and 71.2% purity.

(!) (iv) The appellant tendered voluntary statements under Section 67 NDPS Act (Ex. PW-1/K), confessing her involvement in narcotics carriage at the instance of Ms. Lucy.

[11000614880003] The appellant was arrested on 6th January, 2009.

THE TRIAL [11000614880005] Fifteen witnesses were examined by prosecution. PW-1 Anju Singh was IO and complainant. (!)

[11000614880006] PW-1 testified regarding intelligence, raiding team, apprehension, recovery, sampling. PW-2 and PW-3 corroborated. Para 15 of impugned judgment records PW-1 Anju Singh "is also the complainant and main Investigating Officer".

THE IMPUGNED JUDGMENT [11000614880010] Trial court convicted relying on: (!) Consistent testimony of PW-1, PW-2 (!) Public witnesses signatures on documents though not examined (!) Non-joining of public witnesses not fatal (!) Appellant’s confessional statements under S.67 NDPS Act (!) Sections 35, 54 NDPS Act applied (!) CRCL report proved commercial quantity

RIVAL CONTENTIONS [11000614880013] Counsel for appellant submitted: (!) Public witnesses cited but dropped - fake witnesses, adverse inference u/s 114(g) Evidence Act (!) PW-1 was complainant and IO - vitiates proceedings (!) Statement u/s 67 retracted

[11000614880014] Counsel for respondent submitted: (!) PW-1 was seizing officer, not informant (!) Filing complaint in official capacity valid (!) Public witnesses not essential

ANALYSIS [11000614880016] Appellant entitled to acquittal on two counts: (!) (!)

1. PW-1 Anju Singh was both complainant and IO [11000614880017] Supreme Court holds informant/investigator cannot be same person. Investigation must appear fair. Applies where complainant/searching officer is IO. Proceedings vitiated.

2. Failure to produce public witnesses Harendra & Vishal (!) Public witnesses cited but dropped as "addresses incomplete/not traceable". Raises presumption witnesses fake, names included for credibility. Adverse inference u/s 114(g) Evidence Act justified. (!)

(!) Where prosecution claims public witnesses participated but fails to produce them, case severely dented.

CONCLUSION (!) Appeal allowed. Appellant acquitted. Impugned judgment and sentencing order set aside. (!) Appellant directed to be released forthwith.

Trial court record be returned.

Advocates Appeared: For Appellant: Inderjeet Sidhu, Adv. For Respondents: Satish Aggarwala, Adv.

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