By TIOL News Service

NEW DELHI, DEC 29, 2014: THIS is a classic case to show that arrest and seizure alone were not enough to prosecute an accused in Court.

The NCB seized some narcotics and cash and arrested some persons and wished they should be sentenced. The trial court acquitted them and the NCB is before the High Court.

The events according the Department ran like this:

At about 8.30 pm on 28th June 2008, one African woman came on foot from the Najafgarh road side and stopped in front of Shop No. D-6, Kiran Garden, Uttam Nagar; after about ten minutes one white colour Indica car came from the Najafgarh road side and stopped near the African lady and that one Indian lady aged about 30 years alighted from the front seat of the said car and started talking to the said African lady. After a while the Indian woman is asserted to have handed over one white cloth handbag to the Nigerian woman. At that point of time the raiding party apprehended the Nigerian woman, Anju Tiwari A-2, the Indian Woman and Rakeshnath Tiwari A-3.

While no contraband was recovered from A-2, a white cloth bag handed over by A-2 to the Nigerian woman was recovered and found to contain four transparent polythene packets having off white colour powder in it. When tested with the field testing kit it tested positive for heroin. Later her residence was searched and an amount of USD 30,000 was recovered.

The case of the NCB is that the independent witnesses were also summoned and their statements under Section 67 NDPS Act were recorded. All the incriminating evidence was put to the accused persons and their statements under Section 313 Cr PC were recorded.

The Trial Court noticed that the summons issued to the independent witnesses, i.e., Ramkaran and Shiv Dayal were returned unserved with the remarks that their respective addresses did not exist. The Court observed that no conviction could be returned only on the basis of the statement of A-2 under Section 67 NDPS Act, particularly when the conduct of the NCB officials proved on record was "not beyond reproach."

The High Court observed:

If, as in the present case, the addresses of the independent witnesses to the seizure of the contraband were demonstrably fictitious then it creates doubt as to whether such persons were in fact present at the spot and whether they volunteered to be part of the raiding party.

A similar situation had arisen in Nnadi K. Iheanyi v. Narcotics Control Bureau where again the court pointed to an abject failure on the part of NCB to produce the panch witness for examination in the Court and observed that the responsibility to produce such witness cannot be shifted on the accused. It was further observed that failure of NCB to produce the panch witness led to a "serious unexplained doubt whether such a witness in fact existed.”

Conviction cannot depend only on the fact that a huge quantity of heroin is shown to have been seized. Also, the argument that the prosecution will not needlessly implicate innocent persons does not impress the Court. The NCB has to discharge the burden of proving beyond reasonable doubt that it is the Respondents who are guilty of the offences with which they have been charged. Since the NCB has presented a version in which independent witnesses are stated to have participated throughout the raid, the NCB has to satisfactorily explain how and why the addresses given for such witnesses has turned out to be non-existent and they have not been produced in Court. No effort appears to have been made by the NCB to ascertain the correct addresses and summon the independent witnesses. That was not the responsibility of the Court. In the circumstances, the only inference that was possible to be drawn was that the said witnesses and their addresses did not exist.

On the voluntariness of the statements of the Respondents under Section 67 of NDPS Act, the trial Court noticed that as far as A-2 was concerned, in her statement under Section 313 Cr PC she stated that no summons were served upon her. The NCB had forcibly taken her from her house to their office and they mercilessly gave beatings to her cousin brother co-accused Rakeshnath Tiwari (A-3). She got scared and as per the dictation of the NCB officials, she wrote the statement in her own handwriting and signed it. This was substantiated by the medical report of A-3 (Ex.PW-2/A) prepared by the doctors of Safdarjung Hospital after the jail officials of Tihar Jail had refused to admit him on the ground that there were injuries on his body which were not mentioned in his medical report prepared by the NCB officials after arresting him. The medical report clearly shows that A-3 had a swelling and abrasion on his forehead and bruises all over his back and on his knee. The injuries noted in the said report substantiated his statement given under Section 313 Cr PC that his head was banged against the wall by the NCB officials and that he was beaten mercilessly by them at their office. Consequently, the conclusion drawn by the trial Court as to the statements of the Respondents under Section 67 NDPS Act not being voluntary, cannot be faulted.

The NCP petition is dismissed.

(See 2014-TIOL-2393-HC-DEL-NDPS)