Stephan Nti v. Narcotics Control Bureau

TALWANT SINGH, J OCTOBER 18, 2022/mr

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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Order pronounced on 18.10.2022 + CRL.A. 70/2021 STEPHAN NTI ..... Appellant Through: Mr. Sumeet Verma & Mr. Mahinder Pratap Singh, Advs. versus NARCOTICS CONTROL BUREAU ..... Respondent Through: Mr. Subhash Bansal, Sr. Standing counsel with Mr. Raghav Bansal, Adv. CORAM: HON'BLE MR. JUSTICE TALWANT SINGH Talwant Singh, J.: 1. The appellant has filed the present appeal challenging judgment dated 18.02.2020 and order on sentence dated 26.02.2020 passed by the learned Special Judge, NDPS, New Delhi Patiala House Courts in S.C. No. 8753/2016 under Section 21(c) NDPS Act, registered at PS NCB by which the present appellant was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and a fine of Rs. 1 lakh was also imposed. 2. It has been submitted that the judgment and order on sentence are liable to be set aside on the grounds that the learned Trial Court has failed to appreciate the facts of the case in appropriate manner; learned Trial Court has erred in holding that the prosecution has been successful in establishing the guilt of the appellant beyond reasonable doubts; the learned Trial Court further failed to appreciate that the contraband at the first instance was tested positive for Cocain and thereafter samples were sent to lab and the said samples tested positive for Heroin; the prosecution has failed to justify the deviation with reasonable explanation; swapping of sample has not been ruled out; PW-6 Vishwanath Tiwari has stated to have received secret information at around 2:00 PM in office but said witness was not present in the NCB office as he had left for raid at around 12:00 noon in another case where he was held up till 4:30 PM; the notice under Section 50 NDPS Act was not properly given; the statement made by PW-8 Manish Wahi is not voluntary; the complaint filed by complainant is false, fabricated and manipulated; the sentence awarded is harsh; there are gaping loop holes and unanswered questions in the story of prosecution. 3. Notice was issued to the NCB. Trial Court record were summoned and perused. I have heard the arguments. Brief synopsis has been filed by the appellant as well as respondent/NCB. 4. The case of the prosecution in brief is that on 31.07.2014 at about 2:05 PM, IO Vishwanath Tiwari received a secret information regarding the appellant being involved in drug trade business. The said information was reduced into writing and put before superintendent Sh. R.S. Joshi, who directed IO Ajay Dahiya to constitute a team and search authorization warrants were also issued. At the spot, landlord Kishori Lal and Manish Wahi met the NCB officials and confirmed that the appellant resides on third floor. Manish Wahi became an independent witness to join the raiding party. The door of the appellant was knocked, notice under Section 50 NDPS Act was given to accused but he declined to get himself searched before a Magistrate or a Gazetted officer. Nothing incriminating was recovered from his personal search. During search of the house, a white transparent polythene packet was recovered from the almirah, which the appellant admitted that it belonged to him. The content of the packet tested positive for Cocaine, the weight of the substance was 370 grams; samples were drawn; Panchnama was prepared and the material was sealed and seized. The passport of the appellant and one black colour mobile phone were also seized. Notice under Section 67 NDPS Act was served on the accused. 4.1 After coming back to NCB office, case property was deposited and other formalities were completed. The accused, in his statement under Section 67 NDPS Act, admitted the search proceedings and informed that he had bought the said contraband from his friend Obi, but his address was not known. Rather, he shared the mobile number of Obi. The accused was arrested. The statement of independent witness Manish Wahi was also recorded under Section 67 of NDPS Act. He also placed