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IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
Okafor Chukwuka Ugochukwu - Appellant
Versus
Narcotics Control Bureau - Respondent
Criminal Appeal No. 1186 of 2015, 1041 of 2016; Criminal Miscellaneous Application No. 41216 of 2019; Criminal Miscellaneous (Bail) No. 1943 of 2018, 2070 of 2019
Decided On : 13-05-2020
The court examined the validity of a drug seizure and subsequent convictions under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The appellants, Laya Emilyn Mananquil and Okafor Chukwuka Ugochukwu, were convicted of offenses related to the possession and trafficking of cocaine. The court considered several issues, including compliance with statutory provisions, the admissibility of confessional statements, and the sufficiency of evidence to establish a conspiracy.
Fact of the Case:
On May 15, 2010, Laya was apprehended at the Delhi airport with seven silver-colored pouches containing white powder, later confirmed to be cocaine. Okafor was subsequently arrested based on information provided by Laya. Both appellants were convicted of various offenses under the NDPS Act.
Finding of the Court:
The court found that the provisions of Section 50 of the NDPS Act, which require a search to be conducted in the presence of a Magistrate or a Gazetted Officer, were complied with. The court also held that the search of Laya's luggage was conducted in her absence and that there were inconsistencies in the testimonies of the prosecution witnesses. The court further found that the procedure for drawing samples of the contraband, as prescribed under Section 52A of the NDPS Act, was not followed, raising doubts about the integrity of the samples. Additionally, the court held that the confessional statements made by Laya and Okafor under Section 67 of the NDPS Act were not voluntary and could not be relied upon to establish a conspiracy between them.
Issues: 1. Compliance with statutory provisions, particularly Section 50 of the NDPS Act, regarding the presence of a Magistrate or Gazetted Officer during searches. 2. Admissibility of confessional statements made under Section 67 of the NDPS Act. 3. Sufficiency of evidence to establish a conspiracy between the appellants. 4. Validity of the seizure of the contraband and the integrity of the samples.
Ratio Decidendi: 1. Compliance with Section 50 of the NDPS Act: - The court held that the provisions of Section 50 of the NDPS Act, requiring a search to be conducted in the presence of a Magistrate or a Gazetted Officer, were complied with in this case. - The court found that Laya had consented to be searched by a lady officer and had not expressed a desire to be searched in the presence of a Magistrate or Gazetted Officer. 2. Admissibility of confessional statements under Section 67 of the NDPS Act: - The court held that the confessional statements made by Laya and Okafor under Section 67 of the NDPS Act were not voluntary and could not be relied upon to establish a conspiracy between them. - The court noted that the statements were made while the appellants were in custody and that there were inconsistencies in their testimonies. 3. Sufficiency of evidence to establish a conspiracy: - The court found that there was insufficient evidence to establish a conspiracy between Laya and Okafor. - The court noted that the only evidence of a conspiracy was the confessional statements, which were unreliable, and that there was no other evidence to corroborate the existence of a conspiracy. 4. Validity of the seizure of the contraband and the integrity of the samples: - The court found that there were significant doubts about the validity of the seizure of the contraband and the integrity of the samples. - The court noted that the search of Laya's luggage was conducted in her absence, that there were inconsistencies in the testimonies of the prosecution witnesses, and that the procedure for drawing samples of the contraband was not followed.
Final Decision: The court allowed the appeals filed by Laya and Okafor. The appellants were acquitted of all charges, and the court ordered their immediate release from prison.
JUDGMENT
Vibhu Bakhru, J. - The appellants have filed the present appeals impugning a judgment dated 17.09.2015 passed by the Special Judge, NDPS Court, New Delhi in the case titled as "Narcotics Control Bureau v. Laya Emilyn Mananquil & Anr.", whereby the appellant, Okafor Chukwuka Ugochukwu (hereafter ''Okafor'') was convicted of an offence punishable under Section 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and the appellant Laya Emilyn Mananquil (hereafter ''Laya'') was convicted of committing offences punishable under Sections 21(c), 23(c) and 29 of the NDPS Act.
2. The appellants further impugn an order dated 21.09.2015. By the said order, Okafor was sentenced to rigorous imprisonment for ten years with a fine of Rs. 1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of two months, for committing the offence under Section 29 of the NDPS Act. Laya was sentenced to rigorous imprisonment for a period of ten years with a fine of Rs. 1,00,000/- each for committing the offences punishable under Sections 21(c), 23(c) and 29 of the NDPS Act. And, in default of payment of fine, Laya was directed to undergo simple imprisonment for a further period of two months. The three sentences were directed to run concurrently.
3. The case set up by the prosecution is that on 14.05.2010 at about 1200 hours, secret information was received by Sh Y.R. Yadav, Superintendent NCB-DZU that one lady, namely Laya Emilyn who is a national of Philippines, holding Passport no. XX3585148, would arrive at Delhi by Emirates Airlines (Flight no. EK510) at about 9:15 am on 15.05.2010, alongwith a huge quantity of cocaine in her baggage. Consequently, a raiding team was formed. The said team reached Terminal 2 of IGI airport at about 8:15 am. After reaching the airport, two persons from public voluntarily joined the raiding team to witness the proceedings conducted by the NCB team.
4. The flight arrived at the scheduled time, that is, at 9:15 am. The suspect was identified on the basis of description available and her identity was confirmed as Laya Emilyn Mananquil (Laya) by the immigration officials after her clearance. She collected her baggage and after waiting for 5-10 minutes, she started moving towards the exit gate. She was seen talking on her mobile phone. Thereafter, she attempted to engage a taxi and that time, the NCB officials intercepted her. On enquiry, she revealed her name as Laya Emilyn. Thereafter, the accused was served with a notice under Section 50 of the NDPS Act and was informed about her legal right to be searched before a magistrate or a gazetted officer. However, she refused to exercise the said right and instead chose to be searched by the lady officer. Thereafter, her personal search was conducted and her luggage was also searched. A blue colour bag was found and on opening the same, seven silver colour pouches and some personal belongings were found inside it. The pouches were opened and were found to contain white colour powder. The powder was tested with the help of field-testing kit and it tested positive for cocaine. The entire substance was mixed and weighed and it was found to be 1.780 kgs.
5. Thereafter, samples were made of the substance and put into separate pouches. The remaining substance was converted into a parcel. The blue coloured bag along with the hand bag and certain documents (including her passport, one tag and boarding pass) were seized. Thereafter, Laya was summoned under Section 67 of the NDPS Act. She made a voluntary statement that the said substance was directed to be delivered to one Okafor Chukwuka Ugochukwu (Okafor), who was a resident of house no. C-21, Third Floor, Hasthal Vihar, Uttam Nagar. On the basis of this information, a team consisting of officials went to Uttam Nagar where they met owner of the said house, one Mr Gurdev Singh, and requested him to join the proceedings. Thereafter, on enquiry, Mr Okafor was found to
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